Posted by Curt on 14 April, 2016 at 9:40 am. 5 comments already!


David French:

Progressives like to insist that the Second Amendment to the U.S. Constitution protects a collective, rather than an individual, right to “keep and bear arms.” Or, put another way, they say that the only right Americans have to the ownership of lethal weaponry exists within the context of state-sanctioned military service. As a result, progressives conclude that there is nothing in place to stop the federal government from prohibiting the private ownership of firearms and allowing access to weapons only to those who belong to the National Guard — the modern descendant of early-American state and local militia forces.

In 2008, the Supreme Court decided the landmark case of District of Columbia v. Heller, ruling — by a bare 5­–4 majority — that this relatively recent view is incorrect. The Second Amendment, the majority concluded, protects the rights of the individual.

Justice Scalia, the author of the Heller opinion, died in February of this year, and the Court is likely to remain deadlocked on the Second Amendment until he is replaced. This explainer outlines the textual, historical, and philosophical reasons why the next Supreme Court must uphold Heller and continue to recognize the individual right to keep and bear arms.

The text of the Second Amendment supports the existence of an individual right.

Proper constitutional analysis always begins with the actual words of the document. The Second Amendment states: “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.”

As Justice Scalia noted in his Heller decision, the amendment contains both a prefatory clause and an operative clause. The prefatory clause, a common feature at the time of drafting, does not limit the operative clause; rather, it explains its purpose.

The operative clause is, of course, clear: “the right of the people to keep and bear arms, shall not be infringed.” As Scalia correctly observed, every other time the original, un-amended Constitution or the Bill of Rights uses the phrase “right of the people,” the text “unambiguously refer[s] to individual rights.” Further, the language clearly indicates that the amendment wasn’t creating a new right but recognizing a pre-existing individual liberty — one that is referenced in the 1689 English Bill of Rights. The language “shall not be infringed” indicates recognition, not creation.

But what about the prefatory clause? What does the a “well regulated militia” have to do with an individual right? Scalia explained well in Heller:

The Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right — unlike some other English rights — was codified in a written Constitution.

To believe that the Second Amendment is a collective right, Scalia concluded, is to believe that the authors of the Bill of Rights employed individualist language in order to protect the people’s right to take part in militia organizations over which the national government enjoys plenary power.

Naturally, neither the Constitution nor the Bill of Rights spells out every individual liberty. (Indeed, the Ninth Amendment declares this quite clearly, saying, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) But, in the face of pressure from those who were skeptical of the new government, a few core rights were given special protections to which the people might appeal if the government attempted to take them away. As explained below, the colonists remembered the English king’s tyrannical efforts to suppress liberty in part through the confiscation of arms. The Second Amendment was the response.

The historical record unequivocally supports the existence of an individual right.

It is critical to remember that the Founding Fathers were Englishmen before they were Americans. When they began to sow the seeds of revolt against the British crown, they sought not to destroy all that had gone before but to protect rights that they believed they already possessed. Thus, when George III responded to unrest by attempting to disarm rebellious colonists, he “provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms,” Scalia wrote. (“Arms,” incidentally, did not mean only “muskets” but included any personal weapon that could be wielded by an individual, including but not limited to “musket and bayonet,” “side arms,” and “sabre, holster pistols, and carbine.”)

Justice Scalia understood this well:

By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” and “the right of having and using arms for self-preservation and defence.” Other contemporary authorities concurred. Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. (Citations omitted.)

Writing in 1803, after the ratification of the Bill of Rights, St. George Tucker updated Blackstone’s Commentaries. In America, Tucker wrote, “the right of the people to keep and bear arms shall not be infringed . . . and this without any qualification as to their condition or degree, as is the case in the British government.” The United States, he boasted, “may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.”

Similar explanations were forthcoming from all of the major jurists of the era, including William Rawle and Joseph Story. There are no published arguments to the contrary.

Not all colonists owned guns. But it is well established that guns were widely owned and widely used in colonial America. Frankly, the assertion that there was no right to own a weapon would have utterly mystified the American colonist, who would have rightly seen such a notion as dangerous to his independence and to his life. As free men have argued since the days of Justinian, every individual enjoys an inalienable right to self-defense. To strip him of access to arms is, effectively, to strip him of the capacity to exercise that right. For an example of this, one needs only look at the Reconstruction-era South, in which whites were helped along in their domination of freed blacks by laws that deprived former slaves of their guns.

And that brings us to the final, critical point.

Natural law supports the existence of an individual right.

One cannot analyze the Second Amendment without understanding its moral and philosophical underpinnings. Colonial America was a land populated by people who were both highly literate biblically and steeped in Lockean philosophy.

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