In the face of this Supreme Court record, is it accurate for gun controladvocates to claim that the non-individual nature of the Second Amendment is"perhaps the most well-settled" point in all of Americanconstitutional law? The extravagant claim cannot survive a reading of what the Supreme Court hasactually said about the Second Amendment. In the written opinions of theJustices of the United States Supreme Court, the Second Amendment does appear tobe reasonably well-settled--as an individual right. The argument that aparticular Supreme Court opinion's language about the Second Amendment does notreflect what the author "really" thought about the Second Amendmentcannot be used to ignore all these written opinions--unless we presume thatSupreme Court Justices throughout the Republic's history have written thingsabout the Second Amendment that they did not mean. While the Warren Court and the Burger Court offered mixed records on the SecondAmendment, the opinions from the Rehnquist Court (including from the Court's"liberals" Ginsburg and Stevens) are just as clear as were theopinions from the Supreme Court Justices of the nineteenthcentury: "the right of the people to keep and bear arms" is a rightthat belongs to individual American citizens. Although the boundaries of theSecond Amendment have only partially been addressed by Supreme Courtjurisprudence, the core of the Second Amendment is clear: the Second Amendment--like the First, Third,Fourth, Fifth, Sixth, and Fourteenth Amendments--belongs to "thepeople", not the government.
The Justice's Second Amendment is obviously an individual right, intended toprevent the tyrannical tactic of "making it an offence to keep arms."The purpose of arms possession is to facilitate a militia, and the purpose ofthe militia is to suppress disorder from below (in theform of riots) and from above (in the form of tyranny). In contrast to sometwentieth century commentators, Justice Story shared the conventional wisdom of the nineteenth century :removing a tyrannical government would not be "insurrection" butinstead would be the restoration of constitutional law and order.
Caveat emptor. By Anonymous 14-yr old writing her essay for 8th grade English classIn 1791, the founders of the United States wrote, "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." This is the Second Amendment, guaranteeing American citizens the right to self-protection and safety.
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Federal law provides a five year mandatory sentence for anyone who"carriesa firearm" during a drug trafficking crime. Does the sentence enhancement apply when the gun is merely contained in anautomobile in which a person commits a drug trafficking crime--such as when thegun is in the trunk? The Supreme Court majority said "yes." In dissent, Justice Ginsburg--joined by Justices Rehnquist, Scalia ,and Souter--argued that "carries a firearm" means to carry it so thatit is ready to use. In support for her view, Justice Ginsburg pointed to the Second Amendment"keep and bear arms" as an example of the ordinary meaning of carryinga firearm:
[FN109].As in this quote from Cody, the First Circuit's 1943 Cases decision is sometimescited as a lower court following Miller. See . To the contrary, Caseslimits Miller to its facts, and refuses to apply the Miller relationship-to-the-militia test. The Miller test, explained the Cases judges, would allow"private citizens" to possess machine guns and other destructiveweapons. Cases upholds a federal gun control law while acknowledging that thelaw limits the exercise of Second Amendment rights.
But the issue of whether the right to bear arms is granted to "thepeople" only in connection with militia service is not even addressed inthe Verdugo-Urquidez decision. At most, the decision implies that the Second Amendmentright extends only to U.S. citizens; it does not address the precise scope ofthe right granted. In no way does the Court's ruling contradict the idea thatthe right of the people to bear arms is exercised only through membership in a"well regulated Militia."
After writing the Parade essay, Chief Justice Burger participated in anadvertising campaign for Handgun Control, Inc., in which he called the NRA'sview of the Second Amendment "a fraud." Given that the Chief Justiceagreed with the NRA that the Constitution protects a right to own home defenseguns and recreational sporting guns, and disagreed with the NRA about"Saturday Night Specials," the "fraud" rhetoric was ratherextreme. Was it reasonable to call the NRA fraudulent for locating the right inthe Second Amendment, as opposed to the other (unknown) part of the Constitutionthat the Chief Justice would prefer?
How many times have you heard an opponent of gun control cite the "right tokeep and bear arms" without mentioning the introductory phrase "A wellregulated Militia, being necessary to the security of a free state..." ? Infact, some years ago, when the NRA placed the words of the Second Amendment nearthe front door of its national headquarters in Washington, D.C., it omitted thatphrase entirely! The NRA's convenient editing is notsurprising; the omitted phrase is the key to understanding that the SecondAmendment guarantees only a limited right that is not violated by laws affectingthe private ownership of firearms.
Because this article is only about the Second Amendment, it does not analyzeSupreme Court cases involving gun control or the militia in which the SecondAmendment was not mentioned
[FN13].See, e.g., (9th Cir. 1996) ("the Second Amendment is aright held by the states"); UnitedStates v. Nelson, 859 F.2d 1318, 1320 (8th Cir. 1988) ("Later caseshave analyzed the Second Amendment purely in terms of protecting state militias,rather than individual rights."); (7th Cir. 1982) (upholding city's ban onhandguns; "the debate surrounding the adoption of the Second and FourteenthAmendments...has no relevance to the resolution of the controversy beforeus"); (6th Cir. 1976)("it is clear that the Second Amendment guarantees a collective rather thanan individual right"); Eckertv. Philadelphia, 477 F.2d 610 (3d Cir. 1973); (5th Cir. 1971) ("the SecondAmendment only confers a collective right of keeping and bearing arms"); ("not adopted withindividual rights in mind, but as a protection for the States in the maintenanceof their militia organizations"), rev'd on other grounds,.
If a disarmed National Guardsman does not have a cause of action, then who elsecould exercise the Second Amendment right to be armed in "a well- regulatedmilitia" ? The fundamental problem with Henigan's theories (and with thoseof his followers) is that the theories are not meant as an actual explanation ofanything. They are meant to convince people that the Second Amendmentplaces no restraint on gun control, but the theories are not meant to describewhat the Second Amendment does protect.