Although Congress has the constitutional authority to make laws, the Supreme Court has the constitutional authority to declare laws passed by Congress as unconstitutional, and thus unlawful. So, what happens when the Supreme Court rules that a law is unconstitutional, even if it is not actually unconstitutional or vice versa, declares that a law is constitutional even though the Constitution prohibits such a law? Is it even possible for the court to do this?
In the Heller decision in 2008, the Supreme Court ruled that the Second Amendment protects an individual’s right to keep and bear arms, unconnected with service in a militia, for traditionally lawful purposes such as self-defense within the home. The Second Amendment does not actually address a right of individuals to keep and bear arms outside of the context of a well-regulated militia.
“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.”
People, including justices who decided in the affirmative in Heller, who take the position that the Second Amendment extends to individuals outside of the context of a well-regulated militia, only focus on the second part of the amendment, and completely ignore the first part of the amendment that addresses WHY “the right of the people to keep and bear arms, shall not be infringed”. The Constitution does not address, at all, whether individuals have a right to defend themselves in their homes, by any means. As the Constitution relates to guns, it only addresses them in the context of a well-regulated militia. That is it. End of story.
Individuals can defend themselves in many ways. They may choose to use a gun, a knife or anything available to them in order to defend themselves. However, the Constitution never took under consideration whether they could defend themselves with a gun or a knife or anything else.
Because in the Heller decision the majority extended a right to keep and bear arms to individuals outside of the context of a well-regulated militia, Americans are killing themselves and others with guns at a rate of nearly 40,000 annually, yet lawmakers cannot or will not regulate gun ownership and possession because Heller says they can’t. That it is unconstitutional.
So basically, the Supreme Court has ruled that it is ok for individuals to purchase guns and use them to kill other people. Of course, the killer can be prosecuted for using a gun to kill someone, but the person or persons who are killed, are DEAD. They are no longer with us. They have no more constitutional rights, because the right of someone to keep and bear arms for the purpose of self-defense in their home superseded the right of those who were killed, to live.
Who is responsible for these deaths? Obviously, the shooter/killer is responsible. Is the shooter/killer the only person who is responsible? Does the gun manufacturer bear some responsibility? The gun seller? How about the justices on the Supreme Court who ruled that lawmakers cannot regulate the ownership and possession of guns in order to protect the lives of innocent men, women and children?
If the 2nd amendment is all about regulating people’s guns then why did it end with the Shall not infringe statement? You can’t regulate anything without infringing on the people’s rights. So the people have the right to keep and bear arms and that shall now be infringed. The militia can be regulated as it is now. Militias at the time were formed by the people of a State to protect the State’s rights against a stronger federal government.
“Their swords and every other terrible implement of the soldier are the birthrights of an American. … [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
– Tenche Coxe, Delegate for Pennsylvania to the Continental Congress, The Pennsylvania Gazette, Feb. 20, 1788.
“Arms in the hands of the citizens may be used at individual discretion for the defense of the country, the overthrow of tyranny or private self-defense.”
“The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.”
President George Washington said:
“From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to ensure peace, security, and happiness, the rifle and pistol are equally indispensable … the very atmosphere of firearms everywhere restrains evil interference – they deserve a place of honor with all that is good.”
Madison, who introduced the Bill of Rights in Congress, said that the amendments “relate first to private rights.” In The Federalist #46, he wrote that the federal government would not be able to tyrannize the people, “with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by [state] governments possessing their affections and confidence.”
In The Federalist #29, Alexander Hamilton wrote, “if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”
Supreme Court Justice Joseph Story, in his Commentaries on the Constitution (1833), still regarded as the standard treatise on the subject, wrote, “the right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic.
In U.S. v. Miller (1939), the most recent of the important Second Amendment-related Supreme Court cases prior to Heller, the court recognized, as it did in U.S. v. Cruikshank (noted above), that the right to arms is individually-held and not dependent upon militia service. Had the court believed the amendment protected only a militiaman’s privilege or state power, it would have rejected the case on the grounds that the defendants were neither actively-serving militiamen or states. As the Heller court noted, the Miller court never questioned the defendants’ standing. It questioned only whether a short-barreled shotgun had “a reasonable relationship to the preservation or efficiency of a well-regulated militia,” which it described as private citizens “bearing arms supplied by themselves and of the kind in common use at the time.”
As indicated in the Heller decision, the Supreme Court has always recognized that the Second Amendment protects, and was intended by the Framers to protect, a purely individual right of individuals to keep and bear arms useful for defense, hunting, training, and all other legitimate purposes.
The Supreme Court recognized the right to arms as an individual right in U.S. v. Cruikshank (1876), Presser v. Illinois (1886), U.S. v. Miller (1939) and the U.S. v. Verdugo-Urquidez (1990). In Cruikshank, the Court said the right existed before the Constitution.
Constitutional scholar Stephen P. Halbrook has found no historical evidence that the amendment was intended to protect a “collective right” of states to arm militias, or a “sophisticated collective right” to use arms only when serving in a militia. Richard Henry Lee said the militia are “the people themselves.” George Mason said the “the whole people” are the militia. In U.S. v. Miller, the Supreme Court described the militia as “civilians, primarily, soldiers on occasion . . . a body of citizens. . . . bearing arms supplied by themselves.”
In the U.S. v. Emerson (2001), the U.S. Court of Appeals for the Fifth Circuit said the Second Amendment protects an individual right to arms, with “limited, narrowly tailored specific exceptions . . . not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.”
On June 26, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment—”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”— protects a purely individual right, as do the First, Fourth and Ninth Amendments. “Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right,” the court said. “The term [‘the people’] unambiguously refers to all members of the political community.”
The court’s 5-4 majority rejected the notion pushed by D.C. officials and gun control supporters in Heller —taken from the Kansas Supreme Court’s decision in Salina v. Blaksley (1905)—that the amendment protects only a privilege to possess arms when serving in a militia. All nine justices rejected gun control supporters’ alternate and mutually exclusive idea—invented by the U.S. Court of Appeals for the 3rd Circuit in U.S. v. Tot (1942)—that the amendment protects only a state power (a so-called “collective right”) to maintain a militia.
Citing a previous decision by the court, recognizing that the right to arms is individually-held, the court noted, “As we said in United States v. Cruikshank (1876), ‘[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed.'”
The court also declared that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation,” including “all instruments that constitute bearable arms.” It said that people have the right to keep and bear handguns (the type of arm at issue in Heller), because “[T]he inherent right of self-defense has been central to the Second Amendment right. . . .Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,’ would fail constitutional muster.”
Thanks so much for this article, TOCB.
I’m always amazed that corrupt justices like Scalia would justify their outrageous rulings by claiming to be “Constitutional Originalists.” A murky term, I always thought, which seems to imply that they were able to discern precisely what the Founders were thinking when they wrote the Constitution. Did Scalia and others hold seances and summon the dead authors to elucidate exactly what was in their minds at the time? Do they have access to secret Skull and Bones documents that explain their elders’ thought processes?
If not, I would say that these alleged “Originalists” are doing what any other garden variety student of history might do and reading their own personalities into these purportedly immutable documents.
Which means that their take on the 2nd Amendment could be completely inaccurate and false (and you make a good argument that it is), and hence liable to be tossed out along with the Dred Scott decision into the Big Mistakes Bin of history.
The term, “Constitutional Originalists” is REALLY out of place in the Heller decision, as the original intent of that amendment was SOLELY to address whether to protect the free state by establishing a standing army or to use a citizens army, i.e., a well-regulated militia to protect the free state. In the eighteenth century almost everyone in the USA used guns to hunt for food, to protect themselves from bears and wolves, as well as for self defense. There was never a question as to whether people had a right to protect themselves, so there was no need to address such an issue in the Constitution.
It is intellectually dishonest for ANYONE, especially a Supreme Court justice, to suggest that the Second Amendment had anything to do with anyone keeping and bearing arms outside of the context of a well-regulated militia.
Exactly, TOCB. For these justices to suggest that they’re acting in the spirit of the writers of the Constitution? Well, it would be funny if it weren’t so tragic.
The Heller decision was a case of activist judges ignoring The Constitution to advance their political beliefs and it’s no surprise that Scalia was in the middle of it. The RW always accuses Democrats of what they are guilty of, whining about “liberal activist judges” while their RW activist judges are responsible for assisting in the mass murder of Americans.
No rights are absolute, the RW is happy to infringe on all the other amendments except the 2nd which they worship as immaculate.
I have supported the idea of the Dems, if they win in 2020, enlarging the SCOTUS by 2 judges which would then shift to favor a moderate, more liberal agenda. One strong argument for this is to save American lives by reversing the Heller decision. Add to that, reversing Citizens United, gerrymandering and voter suppression and approving of campaign finance laws among other things.
The argument against that is that Repubs would just do the same thing when they regained unified power in DC. My response to that is, they already cheated to steal a SCOTUS seat so what’s the difference? Even more so, with gerrymandering, voter suppression and Citizens United addressed, the Repubs wouldn’t even have a shot at winning unified power for many years. And by then, so much good will be done and so much corruption, which they rely on, would be stopped. They are a minority and the only way to grow to a majority would be to leave their racism and corruption behind.
The alternative is not rocking the boat and spending a generation under the oppression of RW rule in the SCOTUS with no guarantee it won’t continue through our lifetimes. We will just sit back and watch our losing one right after another including abortion, the right to vote, equality for women, LGBTQ, minorities, etc, the right to privacy, separation of church and state and on and on.
We need drastic change to stop the increasing murders of Americans by weapons of war and so much other madness the SCOTUS allows to continue. Adding seats to the SCOTUS and having a more reasonable court can lead to a permanent change in this country for the better.
I think that is an EXCELLENT suggestion. I have always taken the position that judges at any level, but especially at the Supreme Court level, should not be ideological in rendering decisions. If justice is blind, there cannot be a conservative justice and a liberal justice. I agree that something desperately needs to be done to take politics/ideology out of Supreme Court decisions.
That is such an important component of justice, impartiality. Justice should not vary based on a judge’s political bent.
Additionally, I think there should be a term limit on judges, the idea of lifetime appointments might have made sense in 1776 when the average lifespan was 36 years old but nowadays, having people in their 80s making such life-altering decisions for the country? It’s crazy!
Also it would allow the sooner recycling of human garbage that Repubs shove onto the court like Kavanaugh.
I think 10 years could be a good term limit for all federal judges including SCOTUS. We should be able to have a refreshing of the brain trust in the judiciary more often than waiting for them to die. That’s not very democratic and pretty morbid too.
I don’t have a problem with a “responsible” gun owner having a handgun or a hunting rifle, after an extensive background check and completion of a safety course. No one needs assault weapons that can wipe out 50+ people in seconds. That is where I have a problem with the law, and people’s interpretation of the 2nd amendment. Those who refuse to admit that we have a gun problem … and are in a position to do something and wont – are 100% responsible.
I don’t have a problem with responsible gun ownership either, and I think that is probably the position of reasonable people. A responsible gun owner should want guns to be safely used as not to harm people. That means a responsible gun owner should support common sense restrictions on gun ownership and possession.
In point of fact, when I was in the military during peacetime, repairing black boxes on fighter jets, I was NEVER issued a gun, BECAUSE I had no need for one. Even when we had war games to prepare to deploy to a war zone, we were issued cardboard guns, not real guns, IN THE MILITARY. So how in the world can the Constitution be reasonably interpreted to extend gun ownership and possession to civilians when it doesn’t even extend to military personnel who don’t have a need to have a gun? The Constitution does not say civilians cannot have guns, and it does not say they can.
IMO Conservative SCOTUS just handed mass killers a present!
Hey Opie! It is nice to see comments from you. I think justices should be held accountable for their decisions. I don’t know what the remedy should be for a justice who issues a ruling as out of whack and as damaging as the Heller decision, but I think there needs to be some kind of mechanism to prevent such overtly ideological decisions.
TY! I am admin at New Yabz where we have formed a community, and I also am admin at Medium (where they were not too kindly to you) as well as checking out posts here on PPOV, so I’m hopping around. lot. I do check out your posts here TOB. I always find them to resonate with much of what I believe.
I too want SCOTUS to be held responsible for their RW bias on some of these terrible decisions like Heller.