By Jonathon Blevins,
Legal Satyricon Second Amendment Correspondent
I have my own opinions on the Second Amendment that can be boiled down to this: The Second Amendment says what it says. While I will agree that it might not be socially desirable to have unfettered gun ownership in a nation of idiots, I can not pick and choose which rights guaranteed by the Constitution I may find socially desirable.
Mr. Blevins is the Chief Justice of the Moot Court Honors Board at Barry University School of Law. He has done a lot of research on this issue lately, and asked me why I hadn’t blogged on it.
Which got me thinking… why should I when I can just ask him to. What follows is his essay, which I am proud to present here at the Legal Satyricon.
The Second Amendment is the Bedrock of Individual Rights
This parse, twenty seven word amendment, is surprisingly the most important guarantee of individual rights:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed
Joseph Story wrote “the right of citizens to keep, and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers.” United States v. Emerson, 270 F.3d 203, 257 (5th Cir. 2001). However, the Second Amendment has been largely discredited and discounted based on the polarizing issue of gun control. It is time for the Supreme Court to finally address the substantive guarantee of the Second Amendment. The Court decided this past week to hear District of Columbia v. Heller (formerly, Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) at the dismay of gun control advocates and the National Rifle Association, alike. The Department of Justice adopted the individual rights approach in a nationally distributed memorandum in 2004. DOJ.
The question is whether the Second Amendment protects the individual citizen to keep and possession arms regardless of membership in a state militia. The question should be answered in the affirmative based on an independent analysis of the history, structure and wording of the amendment. It is important to note that a grant of an individual right does not create an absolute right. The accurate reading would establish a constitutional guideline for limited and proper state regulation.
Supreme Court & Circuit Court Precedent
The Supreme Court has never addressed the substantive guarantees of the Second Amendment. The only case from the Supreme Court to address the protections of the Second Amendment was United States v. Miller, 307 U.S. 174 (1939). The narrow holding of this case has been misapplied as binding precedent regarding the rights conferred by the amendment.
In the abscense of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ 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
Id. at 178. Since the case was decided, eight circuits have relied solely on Miller as the foundation for the finding of only a collective right to keep and bear arms. (1st, 3rd, 4th, 6th, 7th, 8th, 10th, 11th)(citations omitted). The theory of the collectivists states “the Second Amendment right to ‘bear arms’ guarantees the right of the people to maintain effective state militias, but does not provide any type individual right to own or possess weapons.” Silveira v. Lockyer, 312 F.3d 1052, 1060 (9th Cir. 2002). The theory is premised on the attenuated connection with the arms specific holding in Miller. Miller only decided that a specific type of firearm was not the type of firearm protected by the Second Amendment. The case did not establish who is protected by the amendment. Further, even the leading collectivist case, Silveira states that United States v. Miller could be used to establish both the individual right and the collective right. Id. at 1066 FN 16. Therefore, the eight circuits finding only a collective right to keep and bears arms based on Miller are wholly without foundation. An independent analysis of the Second Amendment is required.
In the nearly seventy years since Miller, only three circuits have analyzed the Second Amendment in context of the history, structure and wording. See United States v. Emerson, 270 F.3d 203 (5th Cir. 2001); Silveira v. Lockyer, 312 F.3d 1053 (9th Cir. 2002); Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007). Emerson and Parker held the Second Amendment confers an individual right to keep and bear arms. The Fifth Circuit and D.C. Circuit decisions, respectively, are the most accurate and faithful application of the amendment. Silveira is the leading collectivist case and the analysis parallels Emerson and Parker. However, the analysis and conclusion of the Silveira court is without merit. See Nordyke v. King, 319 F.3d 1185, 1192 (9th Cir. 2003) (stating “if we were writing in a black slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson.). Thus, the only circuits to conduct an accurate independent historical analysis of the Second Amendment have concluded an individual right is conferred.
Structure of the Second Amendment
The preamble of the Second Amendment is prefatory, thus not limiting the application of the substantive guarantees found in the operate clause. The Second Amendment is unique among the other provisions in the Bill of Rights because it is the only amendment with a prefatory preamble. However, the uniqueness of the structure does not create a different interpretation of the right. First, a prefatory preamble should not be read to limit the substantive rights. No preamble to the Constitution has been held to limit the substantive rights conferred therein. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Court held that the preamble to the United States Constitution indicates the general purposes of good government but not a source of power. Second, the preamble to the Copyright Clause has never limited Congress’ ability to provide protection for expressive works. The Court does not use “useful arts” as a limitation. Therefore, “[a] well regulated Militia, being necessary to the security of a free State” does not limit the right to keep and bear arms by the people to solely military use.
In the alternative, even if the Court were to adhere to a strict reading of the amendment, the individual right still finds credence. If the prefatory preamble was utilized to define the scope of the substantive guarantees, the protection of the individual right would protect the “well regulated militia.” The militia at the time of the Founding Fathers was all able bodied males capable of armed service in the common defense. See Miller. By providing the individual with the right to keep and bears arms, the ability of the state to mobilize a militia is protected in that the people would be armed. The individual right does not operate at the exclusion of the foundational aspect of the collectivist argument. The protection of the individual, by logical extension, protects the state.
The Wording of the Second Amendment
The most important and telling phrase in the Second Amendment is “the right of the people.” “The people” was intended to maintain the same definition as found throughout the contemporaneous provisions in the Bill of Rights and the Constitution as a whole. The inclusion of “the people” evidences the Founding Fathers’ intent to convey to the individual rights. The Founding Fathers sought to protect the people from a potentially tyrannical government and to codify the natural right of self-preservation with the Second Amendment. The debate between the Federalists and Anti-federalists illustrates the Founders’ intent to protect the individual. The Supreme Court adopted a uniform reading of the “the people.”
“The people” seems to be a term of arm employed in select parts of the Constitution which refers to a class of people who are part of a national community or who have otherwise developed sufficient connection with this country to be considered party of the community.
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). If the Court finds a different meaning to “the people” within the Second Amendment then “the people” would have a contradictory definition to the same term as found in the First, Fourth, Fifth, Ninth, and Tenth Amendments. It is illogical to follow the collectivist insistence that “the people” be read as synonymous with the state or be read only in context of the militia. “The people” maintains a specific definition.
Further, the inclusion of the Second Amendment within the Bill of Rights demonstrates the intent of the Founders to grant a right to the individuals. While the Bill of Rights is not wholly interpreted to be a grant of individual rights, the Second Amendment is expressly a conveyance of an individual right and intended to protect personal liberty. Parker, 478 F.3d 370. The collectivist theory is failing in the conclusion that the Second Amendment was only meant to protect the states’ ability to maintain a well regulated militia. The Constitution protects the militia is Art. I §8 cl. 15 – 16. The Founding Fathers were quite able to differentiate between the people and the states. The Tenth Amendment demonstrates the Founders’ ability to illustrate powers granted to the people versus powers granted to the states. Lastly, “’the people’ have ‘rights’ and ‘powers,’ government only has ‘powers’ or ‘authority,’ never rights.”(emphasis added) Emerson, 270 F.3d 203.
The Second Amendment protects the individual private citizen’s right to keep and bear firearms regardless of membership in a state militia, subject only to limited government regulation. The hurdle to overcome, in the court of public opinion, is the damning evidence of abuse regarding firearms. Specifically the Dept. of Justice produced evidence of widespread criminal abuse of firearms. However, even given the statistics, the DOJ adopted the individual right to keep and possess arms. Further, the abuse of a right is not enough to eliminate its protection. The First Amendment right to free speech should remain protected even if individuals utilize the right in an abhorrent manner. The Fourth Amendment protection from unlawful search and seizures should remain even in the context of suppressed evidence. It is the price of freedom. Individuals will use firearms to commit crimes and harms other; however, this contingent will not be dissuaded by the conveyance of only a collective right. The elimination of an individual right will only disarm law abiding citizens. Further, it will serve to arm solely the government. Both results fly in the face of the Founding Fathers’ intent to protect the individual’s ability to defend life, liberty and property and also to deter a potentially tyrannical government.
Lastly, there are other means of regulating the right to keep and bear arms. Criminal and civil laws exist to restrict misuse of firearms. Moreover, (though no discussed here) the right provides the states with a constitutional framework to regulate the right. The state cannot eliminate the right or unreasonably restrict the ability to keep and bear arms. The appropriate level of restriction lies in strict scrutiny or a reasonable time, place, manner restriction. The right is not absolute.