2018: Will the Second Amendment Still Prevent Gun Bans?

Gary B. Wells, Firearms Attorney
Gary B. Wells, Firearms Attorney
Second Amendment Does Not Prevent Gun Bans
Second Amendment Does Not Prevent Gun Bans

USA -(Ammoland.com)- The United States Supreme Court decisions in District of Columba v. Heller and McDonald v. City of Chicago have been properly praised for their affirmation of at least some of the rights guaranteed under the Second Amendment.

Because of the narrow victory of only one justice in both of those decisions, the subsequent death of the Justice Antonin Scalia, the potential this country may elect another president who will appoint several “progressive” justices to the Supreme Court, the limited protections afforded by the Second Amendment may soon disappear and the Supreme Court will allow Congress, states, and municipalities to ban the ownership and possession of firearms.

Before dismissing this statement as hyperbole and conspiratorial, I invite you to review the very words of the four dissenting Supreme Court justices in Heller and McDonald. The recent and absurd Ninth Circuit opinion holding that the Second Amendment right to “bear” arms does not include bearing those arms concealed if outside the home provides only a small window of the extent a progressive court will go to ignore the clear language of the Second Amendment to effectively neuter it. The direction we can expect the Supreme Court to take with a new progressive appointee has already been outlined in the Heller and McDonald dissents. (In the interest of brevity, I have forgone the extensive footnotes required to state which opinion, which dissent, and which justices joined each dissent.)

Firearms Are Only for “State-Organized Militias”

The four dissenting judges in Heller maintained that the Second Amendment was “adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.”

Thus, “the Framers’ single-minded focus in crafting the constitutional guarantee ‘to keep and bear arms’ was on the military use of firearms, which they viewed in the context of service in state militias.” “As used in the Second Amendment, the words ‘the people’ do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.” The phrase “to keep and bear arms” is nothing more than “a unitary right: to possess arms if needed for military purposes and to use them in conjunction with military activities” and those activities are further limited to “service in a state-organized militia.”

No Right Exists for Self-Defense

According to the dissenting judges, the Second Amendment has nothing to do with “limiting the legislature’s authority to regulate private civilian uses of firearms.” They believe the Second Amendment protects only state militias and does not prevent the legislature from enacting laws to “regulate private civilian uses of firearms.” They also believe that the Second Amendment does not protect any rights to own or use firearms for hunting or self-defense because, unlike the protections provided by two states at the time the Second Amendment was passed, the Second Amendment does not specifically mention these purposes. “[S]elf-defense alone, detached from any militia-related objective, is not the [Second] Amendment’s concern.” In McDonald, Justice Breyer added, “the use of arms for private self-defense does not warrant federal constitutional protection from state regulation” and “the Fourteenth Amendment [which generally applies the Bill of Rights to the States] does not incorporate the Second Amendment right to keep and bear arms for purposes of private self-defense.” Still further, “the private self-defense right does not comprise a necessary part of the democratic process that the Constitution seeks to establish” and “the private self-defense right does not significantly seek to protect individuals who might otherwise suffer unfair or inhumane treatment at the hands of a majority.” Justice Stevens also stated that “the Second Amendment right to keep and bear arms (whatever that right’s precise contours)” has not been “incorporated into the Fourteenth Amendment” and therefore it does not apply to the states. Moreover, even if a right to self-defense exists, this does not create a “right to acquire and utilize specific instrumentalities in furtherance of that action” as “while some might favor handguns, it is not clear that they are a superior weapon for lawful self-defense.” “The marketplace offers many tools for self-defense, even if they are imperfect substitutes.”

Justice Stevens ignores the obvious and primary liberty interest from governmental tyranny, stating that “firearms have a fundamentally ambivalent relationship to liberty. Just as they can help homeowners defend their families and property from intruders, they can help thugs and insurrectionists murder innocent victims.”

The Second Amendment Does Not Prevent Restricting Individual Rights, Only Collective Rights

The dissent also refers to the “collective” nature of the rights granted to “the people” by the Bill of Rights. While recognizing the First Amendment “protects the individual rights,” they argue that the “concern” of the amendment was “with action engaged in by members of a group, rather than any single individual.” While the First Amendment refers to rights “that can be exercised by individuals, it is primarily collective in nature.” Thus, an individual’s rights can be restricted, so long as the rights of the collective group are not restricted, which makes the right meaningless. This collective right, combined with the limitation stated in the Second Amendment for “militias” justifies laws restricting the civilian use of firearms. After all, as the dissenting judges believe, “the ultimate purpose of the [Second] Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.” Thus, individual rights can be curtailed and infringed upon so long as some undefinable right of the collective is preserved. As George Orwell wrote in his book, 1984:

The first thing you must realize is that power is collective. The individual only has power in so far as he ceases to be an individual. You know the Party slogan “Freedom is Slavery.” Has it ever occurred to you that it is reversible? Slavery is freedom. Alone-free-the human being is always defeated. It must be so, because every human being is doomed to die, which is the greatest of all failures. But if he can make complete, utter submission, if he can escape from his identity, if he can merge himself in the Party so that he is the Party, then he is all-powerful and immortal.

Despite Reality, Courts Must Give Deference to Legislatures

According to the dissenting justices, courts should give deference to state firearm laws passed whenever the legislature has states nothing more than its intent to protect its citizens. While the dissenters acknowledged the evidence that 1) violence increased after gun laws were passed, 2) strict gun laws and high murder rates coincide, 3) there are significant benefits of firearm ownership for self-defense, and 4) firearm laws affect only law-abiding citizens, they dismissed this evidence as insufficient to “destroy judicial confidence in the reasonableness of a legislature that rejects them.”

Gun Bans Are the Least Restrictive Answer to Crime

The dissent made several additional and troubling comments justifying their belief that handgun bans are constitutional:

  • “The reason there is no clearly superior, less restrictive alternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns.”
  • “If a resident has a handgun in the home that he can use for self-defense, then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence. . . . If it is indeed the case, as the District believes, that the number of guns contributes to the number of gun-related crimes, accidents, and deaths, then, although there may be less restrictive, less effective substitutes for an outright ban, there is no less restrictive equivalent of an outright ban.”
  • “I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.”
  • “And, of course, guns that start out in the home may not stay in the home. Even if the government has a weaker basis for restricting domestic possession of firearms as compared to public carriage—and even if a blanket, statewide prohibition on domestic possession might therefore be unconstitutional—the line between the two is a porous one. A state or local legislature may determine that a prophylactic ban on an especially portable weapon is necessary to police that line.” (Italics added.)
  • “The link between handgun ownership and public safety is much tighter. The handgun is itself a tool for crime; the handgun’s bullets are the violence.”
  • “Thankfully, the Second Amendment right identified in Heller and its newly minted Fourteenth Amendment analogue are limited, at least for now, to the home.”

Precedent or Revisionist

We should be able to rely on the principles of precedent to ensure that the dissenting and any newly-appointed justices will preserve the legal principles set forth in Heller and McDonald, but that is not the case. The four dissenting justices have maintained that the legal principles and supporting arguments set forth in the majority opinions were “novel,” “unusual,” “conflicting,” “inconsistent,” “fashioned . . . out of whole cloth,” “far from clear,” “flawed,” “puzzling,” “wrong,” and “dangerous.” They concluded that the principle set forth in the majority opinion in Heller “was not ‘enshrined’ in the Second Amendment by the Framers; it is the product of today’s law-changing decision.” These are not the words of justices willing to abide by the court’s prior rulings. Heller and McDonald will be easily reversed or their holdings severely limited if the wrong person is elected president.

Gary B. Wells is licensed to practice law in the states of California and Texas. He provides a range of legal services for firearm businesses and owners. His recent book, “Firearm Laws for Businesses & Their Customers, Volume 1: Federal Infringements” can be purchased from his website at www.firearmslaw.attorney.

Firearm Laws for Businesses & Their Customers
Firearm Laws for Businesses & Their Customers