The Second Amendment- Part Three: Court Interpretations

In Part One of this superlative series we explored the definition of “the militia” at the time that the Second Amendment was written and discovered that it referred to all citizens capable of bearing arms. In the equally brilliant Part Two we further examined how the Second Amendment refers to an individual right to keep and bear arms. Now we’ll examine how the Supreme Court has interpreted the Second Amendment through the years.

There are two things that gun-prohibitionists always say about the Second Amendment as interpreted by the Supreme Court. One is that the Supreme Court has never overturned a gun law on Second Amendment grounds and the other is that, in the case of U.S. v. Miller, the Supreme Court declared that the Second Amendment only applied to the right of states to arm their National Guard. One of those statements is true and the other is a lie.

Lets start with the lie. The case of U.S. v. Miller is often referred to by anti-gun activists as confirming their collectivist “National Guard” interpretation of the Second Amendment. It is the only Supreme Court case where they ruled upon the Second Amendment per se. In this 1939 case two suspected moonshiners were charged with violating the National Firearms Act of 1934 (NFA) by transporting an unlicensed sawed-off shotgun across state lines. In Miller the Supreme Court said that the NFA could stand constitutional muster. The court concluded:

"In the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense... The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." [Emphasis added.]

That’s hardly a rejection of the individual rights interpretation. It should be noted that although neither of the men involved were members of the National Guard, the court never even brought that fact up. Far from declaring that common citizens don’t have a right to bear arms, you could interpret the decision as meaning that individuals have a right to own military-style weapons only.

However you interpret the Miller decision, it’s important to note that the Supreme Court rendered its decision without ever hearing the defense’s argument. Neither the defendants nor their legal counsel appeared at the U.S. Supreme Court to argue their case. That’s why the court prefaced its decision with, "In the absence of any evidence…[.]” The lead defendant Jack Miller was found shot to death shortly before he could testify before the court and the other defendant, Frank Layton, quickly accepted a plea deal. The only argument presented to the court was by the government defending its own gun law!

While Miller was the only Supreme Court ruling on the Second Amendment itself, the Court has mentioned the Second Amendment peripherally in several other cases. In Dred Scott v. Sandford, for instance, the court debated whether or not blacks were citizens. The Court contended that if they were, they would be accorded the same constitutional rights as white citizens, including the right to keep and bear arms.

Scott v. Sandford:

"It would give to persons of the negro race... the right to enter every other State whenever they pleased,... and it would give them full liberty of speech...; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

"Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding."

In U.S. v. Cruikshank the Court ruled that the First and Second Amendments were protections against the federal government only, not state governments. In Presser v. Illinois the court ruled that a state law that prohibited civilians from drilling or parading with arms in cities or towns "[did] not infringe upon the right of the people to keep and bear arms."

Presser v. Illinois:

"States cannot... prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government."

In Miller v. Texas the Court ruled that the Second and Fourth Amendment did not limit state action. Thereby, states may pass laws prohibiting the carrying of firearms in some ways. While discussing the 13th Amendment in Robertson v. Baldwin, the Court recognized the Second Amendment as a "fundamental" individual right.

In Lewis v. U.S. the Court ruled that convicted felons can be deprived of many fundamental rights, including the right to keep and bear arms. During Moore v. City of East Cleveland the court listed the Second Amendment right to keep and bear arms with the other individual rights protected by the Bill of Rights, "the freedom of speech, press and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures…[.]"

U.S. v. Verdugo-Urquidez:

"'The people' seems to have been a term of art employed in select parts of the Constitution... [and] it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are a part of a national community or who have otherwise developed sufficient connection with this country to be considered part of the community."

While the Supreme Court hasn’t ruled directly on the Second Amendment in nearly 70 years, there are two recent lower court decisions that give freedom-lovers hope. In 2001, the U.S. Court of Appeals for Fifth Circuit ruled that the Second Amendment was indeed an individual right in U.S.v Emerson.

U.S. v. Emerson:

"All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans. We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training. We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with [U.S. v.] Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms..."

The Supreme Court refused to hear an appeal of the case. Anti-gunners tried to spin that fact by implying that the individual rights interpretation of the Fifth Circuit was so ridiculous that the Supreme Court didn’t even want to hear it. However, by not hearing the appeal, the Supreme Court allowed the Emerson decision to stand as legal precedent within the Fifth Circuit. If the high court disagreed with the lower court’s decision so much, they no doubt would have taken the opportunity to strike down the decision.

More recently, in March of 2007, the U.S. Court of Appeals for the District of Columbia Circuit struck down D.C.’s 32 year old ban on handguns as a violation of the Second Amendment in Parker, et al. v. District of Columbia.

Parker, et al. v. District of Columbia:

“To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.”

Desperate to keep their policy of victim disarmament, the nations murder capital appealed the case to the Supreme Court. If the Supremes agree to hear the case, it may be the our best chance to get a fair ruling on the Second Amendment in quite some time. Stay tuned.

Now that we’ve established that the Second Amendment does, in fact, protect an individual right for citizens to keep and bear arms, in the next installment of this masterfully written and provocative series we’ll see why that right is necessary.

FREEDOM IS ABOUT AUTHORITY

"FREEDOM IS ABOUT AUTHORITY!"

Yup, that is an exact quote from "Conservative Republican" presidential candidate Rudy Guiliani from March 16, 1994. In a more recent interview, the ex-New York mayor and gun-grabbing cross-dresser also noted that...

"WAR IS PEACE."

"FREEDOM IS SLAVERY."

"IGNORANCE IS STRENGTH."

Hmmm. Now where have we heard that before? So Orwell was only 24 years off.

Dear George

Dear George,

I trust that I can call you George, since we’ve been through so much together, right from the start. I was there at Jim Nussle’s barbecue in Amana where you first declared your candidacy for president. (You probably remember me. We shook hands.) I gave you the benefit of the doubt when you went to war to topple Saddam Hussein. (At which you did succeed, lest we forget.) I voted for you enthusiastically in 2000, then reluctantly, holding my nose, in 2004. But still, I voted for you twice George.

Since we’ve been buds for so long, I feel I need to tell you something that might be awkward coming from someone else: the fact that your recent veto of the bill expanding the SCHIP “children’s” healthcare program makes you look like a complete hypocrite.

Don’t get me wrong George, I fully support your veto of this massive expansion of the federal nanny-state. It’s just that your justification for vetoing it, that it is too expensive, seems strange given the last seven years of your administration.

You and the Republican Congress increased federal spending by 33%, twice the rate that it grew under Bill Clinton. If you didn’t have the money, it didn’t matter because, in the words of your V.P., “deficits don’t matter.” You guys once dumped $25 billion of additional, unneeded pork projects into a single transportation bill. You even started the new Medicare drug program which will cost 2 Trillion dollars over the next two decades. But the Democrats’ SCHIP expansion, which would cost an additional $35 billion over 5 years, is too expensive? Your new found principals as a born-again fiscal conservative seem odd since they only surface when it’s the “other” party handing you the big spending bills.

You could say that you vetoed the bill because it’s unconstitutional. You could point out that the Constitution only authorizes a handful of powers to the federal government and that funding healthcare isn’t one of them. But then, the Constitution doesn’t grant the federal government power to meddle in local education (like with “No Child Left Behind”) or to treat every petty street-crime as a federal offence (like with “Project Safe Neighborhoods”) or to implement a host of other programs and laws that you and the Republican Congress either passed or made no attempt to abolish. So I guess that line of reasoning won’t hold water either.

You rightly pointed out that the SCHIP expansion by the Democrats is a step “toward their goal of government-run health care for every American.” But you yourself want to expand the program, just not by as much as they do. So are steps toward government-run healthcare okay, as long as they’re baby steps? I fail to see the deep philosophical difference between expansion and “not quite as much” expansion. And wasn’t the aforementioned $2 Trillion government drug plan a big step toward “government-run health care for every American?” So that dog won’t hunt either, George.

So, there is no way in heck that your veto won’t make you look like a hypocrite. Your sudden aversion to the big-government excesses of the Democrats will always seem perplexing after spending years rubber stamping the big-government excesses of the Republicans. That’s what happens when a party abandons the key principals that distinguish it from another. Sorry George.

Warmest Regards,
Ben

THE TIME OF YEAR TO REALLY EXCERSIZE YOUR 2ND AMENDMENT RIGHTS

Above is a picture of a pal o' mine from the Iowegian Flatland territory out here in Montana last fall for his first antelope hunt. It shows typical "speed goat" country; i.e. miles and miles of miles and miles. My wife and I are headed there this weekend for Montana's antelope opener on Sunday the 7th.

Conventional wisdom says that antelope meat, to quote Michael Richards as Stanley Spadowski in the cinematic classic UHF, "Tastes like poop." We beg to differ. Then again, where we hunt speed goats, they are usually found under the irrigation pivots eating alfalfa or winter wheat every morning and evening. The wife and I put it right up there with whitetail venison.

Conventional wisdom in the form of the glossy outdoor magazines also says that you need the latest greatest flat-shooting .256-1/2 short-belted ultra super turbo Magnum cartridge. It's true that antelope hunting sometimes requires a long shot. But then again, if you're willing to get your fat butt out of the truck and do a little walking and stalking, you can shorten the range considerably.

In the photo you can see the type of country we hunt. And there's something special about antelope hunting out there. I have spotted them literally miles away and used my truck and my feet to make a detour of many more miles to be able to belly crawl over a small rise and be right in amongst them. Their normal vision is the equivalent of me and you looking through 8X binoculars, so when you can sneak up on them beasties unseen and unscented, you have accomplished a stalk you can be proud of. My first antelope, I shot at about 50 yards with my old .30-06. Just be aware of prickly pear cactus when crawling around the prairie; it once took me several months to get all the teensy little spines out of my knees after "sneaking" through some of that stuff.

Still, I now have my pet load for pronghorn whacking. An ordinary .30-06, when loaded with 130-grain Hornady bullets with a muzzle velocity of around 3,100 feet per second, has a maximum point blank range of 360 yards. That means if the critter is anywhere from fur-in-the-muzzle range way out to 360 yards, you just hold your crosshairs dead center on the boiler room and you will hit the vitals. If you can't sneak within 300 yards of a speed goat, you should either give up the sport or get out of the truck. This load, by the way, is more than enough medicine for deer and black bear as well, but a tad light for elk.

Remember, if God didn't want us to kill and eat animals, He wouldn't have made them out of meat.