The Second Amendment Comes Before the Supreme Court: The Issues and the Arguments

The Heritage Foundation ^ | March 14, 2008 | Nelson Lund, Ph.D.

[EdReform]

The United States Supreme Court has decided only one significant case involving the Second Amendment, and that was almost 70 years ago. Next week, the Court will return to the issue when it hears arguments in District of Columbia v. Heller. This is a test case brought by a D.C. special police officer who carries a gun while on duty. Under D.C.'s extremely restrictive gun control laws, he is forbidden to keep a handgun, or an operable rifle or shotgun, in his home.

The U.S. Court of Appeals for the D.C. Circuit held that these laws violate the Second Amendment. The court concluded that handguns are lineal descendants of founding-era weapons and are still in common use today, so they may not be banned; the court also held that D.C.'s requirement that guns be stored in a mechanically disabled condition is unconstitutional because it prevents them from being used for self-defense.1 The Supreme Court is now reviewing that decision.

The parties presenting arguments next week offer three different interpretations of the meaning of the Second Amendment. D.C.'s argument--that the Second Amendment protects a right to arms only in service of a government-organized militia--does not stand up to historical analysis or textual scrutiny. Heller's position--that the Amendment establishes an individual right to keep ordinary weapons for self protection--is sound but not persuasively argued. And the Bush Administration's position--recognizing an individual right but leaving the government with some large and undefined power to curtail the right--is dangerously vague and legally weak.

Careful textual analysis, along with the relevant historical context, yields a remarkably clear, sensible, and workable answer to the question presented in this case. The Amendment protects an individual right to keep operable firearms for self-defense, which cannot be taken away by federal law...

[robertpaulsen]

"Do you claim that 25 percent of the entire population was in the militia?"

It was around one in six or 17% at the time who were eligible.

"Or was it intended for citizens outside of the militia?"

Was what intended for citizens outside of the militia? Second amendment protection? No, why would it be?

The Founders wanted to protect the formation of a state Militia from federal infringement. If Congress refused to arm the Militias, the Founders wanted to ensure that they could arm themselves.

That was the whole purpose of the second amendment. Individual RKBA was protected by each state.

[thackney]

To oblige the great body... would be a real grievance

That is an argument against requiring the citizens to be armed. That is different from not permitting them to be armed.

a Militia member had SIX MONTHS to acquire a smooth-bore musket

That was not a requirement of all militias.

[Osage Orange]

My guess is...half of the sheeple will give their guns up....and a portion will turn in their grandpa/mom/neighbor/etc....

The folks that are left will ALL be criminals in the eyes of the state. Of those....3/4's will actually BE criminals...the others will be folks like you and I.

[robertpaulsen]

"Where are the arms for those constituted differently from the militia coming from?"

Sounds to me like he's talking about a police department -- or SWAT team. The arms would come from the community.

[thackney]

"Do you claim that 25 percent of the entire population was in the militia?"

It was around one in six or 17% at the time who were eligible.

Then Madison was referring to more than the Militia when he spoke of number able to bear arms.

That was the whole purpose of the second amendment. Individual RKBA was protected by each state.

No. The Bill of Rights contains the phrase "right of the people" many times. The meaning does not change back and forth for who that represents. It is not a protection of state government. It was protection of the right of the people.

[spunkets]

"Yes. And in 1792, who exactly were "the people"? Everyone?"

The people are the same people that are mentioned in the 1st Amendment, whose right and Freedom of religion, speech and assembly were not to be infringed. Only an accurate description of the people matters. An accurate description includes blacks and women, all else is arbitrary BS, that's been addrressed and corrected since 1792.

"Once you figure that out, compare your answer to those who qualified to be in a Militia in 1792. They should match. If they don't, go back and start over."

Not going to do that, nor will the corrections made since then regarding who is "people" be reversed. If anyone wishes to deny the rights of my fellows as was done in 1792 on arbitrary grounds, on the basis of sex, skin color, or other characteristic, I will oppose them. The same applies to those that wish to deny the rights and Freedom of my fellows in general. The days of Dred Scott and Plessy vs Ferguson and are long over.

[thackney]

The arms would come from the community

The community is the people.

[robertpaulsen]

"That is different from not permitting them to be armed."

Geez Louise. Here you just got finished trying to convince me that arming everyone is important because their ranks will be drawn upon as needs increase.

Now you're saying, "Well, actual arming is optional". WHAT?!? How is merely "permitting" them to be armed preparing them for Militia duty .... if they choose not to arm?

"That was not a requirement of all militias."

That was in the Militia Act of 1792. I don't care if it was or was not a requirement of all militias. What's important to note is that it is assuming people don't already have the necessary arms laying around the house.

[thackney]

Here you just got finished trying to convince me that arming everyone is important because their ranks will be drawn upon as needs increase.

No, I did not claim that arming everyone is important. I am supporting the same idea as the founders, that every citizen has the right to bear arms and is not limited to only members of the militia.

That was in the Militia Act of 1792

The Bill of Rights was written and ratified before that. It was not a requirement at the time.

[Centurion2000]

(1) is protected. (2) is not.

Maybe you should have listened to the Supreme Court hearing today. You're wrong and about 8 Justices are about ready to rule on it.

[robertpaulsen]

"Then Madison was referring to more than the Militia when he spoke of number able to bear arms."

First of all, in your quote, Madison is talking about a federal standing army, NOT a Militia.

Second, he's estimating that the largest standing army that can be carried (I assume he means afforded) is 1/100th of the entire population (or 1/25th of those in the population who are eligible to carry arms).

He then compares that small number to the large number of those in a Militia who would oppose them.

[thackney]

"Then Madison was referring to more than the Militia when he spoke of number able to bear arms."

First of all, in your quote, Madison is talking about a federal standing army, NOT a Militia.

When Madison wrote "one twenty-fifth part of the number able to bear arms", the number able to bear arms is not a federal standing army or the militia. It is a large number of people than either of those.

[thackney]

Sorry, typo It is a large larger number of people than either of those.

[Yosemitest]

This weblog for conservative philosophers might help.

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Deriving Gun Rights from the Right to Life
Posted by Bill Vallicella on March 22, 2005 6:33 PM

I take the view that some rights are logically antecedent to anything of a conventional nature such as a group decision or a constitution. Thus the right to life is not conferred by any constitution, but recognized and protected by well-crafted ones. If so, whether we have the right to life, or any natural right, cannot depend on the interpretation of any document. Therefore, with respect to the question of gun rights, the interpretation of the Second Amendment to the Constitution of the United States, albeit important, is logically secondary. The logically prior question is whether there are natural gun rights that need constitutional codification, recognition, and protection.

Here is a stab at an argument for natural gun rights.

(1) Every human person possesses a right to life.

(2) If a human person has a right to life, then he has a right to defend his life against those who would seek to violate it.

(3) If a human person has a right to defend his life, then he has a right to an effective means of defending his life.

(4) A handgun is an effective means of defending one's life, and indeed, in some circumstances, the only effective means.

(5) Therefore, human persons have a right to possess handguns.

It is easy to see that the conclusion follows from the premises. But are the premises true?

Surely (1) is uncontroversial.

Note that this argument does not assume that every human being is a human person. Saddam Hussein is a human being, but it is arguable that by the commission of his crimes he forfeited his personhood, and with it his right to life.
Some will hold that human fetuses are not persons, and so have no right to life. I believe they are wrong, but the above argument does not rest on the assumption that they are.

To see that (2) is true, consider what happens if you negate it. The negation of (2) is:

(~2) Human persons have a right to life, but they do not have the right to defend their lives.
The absurdity of this is self-evident. How can I have a right to life if it is morally impermissible for me to defend my life?
My having a right to life does not entail any moral obligation on my part to defend my life, but it surely entails the moral permissibility of self-defense. For if I have a right to life, then others have an obligation not to harm me. This obligation of theirs entitles me to meet a deadly threat with force sufficient to thwart the attack up to and including killing the assailant. We appear to be at moral rock-bottom here. I say (2) is self-evident. Reject it, and there is probably no point in further discussion. "You have a right to defend yourself, but no right to the possession of any effective means of so doing."

To will the end is to will the means. So, to will one's defense is to will the means to one's defense. Therefore, if it is morally permissible to will one's defense, then it is morally permissible to will the means to one's defense. I grant that qualifications may be needed.
Arguably, felons ought not have the right to purchase firearms. A felon either forfeits his right to self-defense, or has that right overridden by the community's right to be safe from his predation.

(4) is obviously true pending some obvious qualifications that I left out for the sake of brevity, the soul of wit. A handgun is an effective means of self defense, but not in all circumstances, only if the defender is properly trained in the use of firearms, etc. (as opposed to the individual qua member of some collective such as a police force or military unit) has an individual right to posses firearms for the purpose of defending his own life. The existence of such an individual right does not entail that it is unlimited. Thus if I have a right to firepower sufficient to my self-defense, it does not follow that I have a right to firepower sufficent to lay waste to a city. One non sequitur to avoid is this:

There is no unlimited individual right to keep and bear arms;

ergo, the right to keep and bear arms is a collective right.

Arguments like the foregoing make appeal to people's reason. Like all my arguments, it is directed to open-minded, reasonable people who are doing their level best to form correct opinions about matters of moment.
You decide whether I have been employing right reason. But if you wish to criticize, just be sure that you engage what I have actually written and not something you have excogitated on the occasion of skimming my post.

---

[Triple]

“Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms.” - James Madison

[Triple]

“The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms.” - James Madison

[Yosemitest]

This weblog for conservative philosophers might help.

---

Deriving Gun Rights from the Right to Life
Posted by Bill Vallicella on March 22, 2005 6:33 PM

I take the view that some rights are logically antecedent to anything of a conventional nature such as a group decision or a constitution. Thus the right to life is not conferred by any constitution, but recognized and protected by well-crafted ones. If so, whether we have the right to life, or any natural right, cannot depend on the interpretation of any document. Therefore, with respect to the question of gun rights, the interpretation of the Second Amendment to the Constitution of the United States, albeit important, is logically secondary. The logically prior question is whether there are natural gun rights that need constitutional codification, recognition, and protection.

Here is a stab at an argument for natural gun rights.

(1) Every human person possesses a right to life.

(2) If a human person has a right to life, then he has a right to defend his life against those who would seek to violate it.

(3) If a human person has a right to defend his life, then he has a right to an effective means of defending his life.

(4) A handgun is an effective means of defending one's life, and indeed, in some circumstances, the only effective means.

(5) Therefore, human persons have a right to possess handguns.

It is easy to see that the conclusion follows from the premises. But are the premises true?

Surely (1) is uncontroversial.

Note that this argument does not assume that every human being is a human person. Saddam Hussein is a human being, but it is arguable that by the commission of his crimes he forfeited his personhood, and with it his right to life.
Some will hold that human fetuses are not persons, and so have no right to life. I believe they are wrong, but the above argument does not rest on the assumption that they are.

To see that (2) is true, consider what happens if you negate it. The negation of (2) is:

(~2) Human persons have a right to life, but they do not have the right to defend their lives.
The absurdity of this is self-evident. How can I have a right to life if it is morally impermissible for me to defend my life?
My having a right to life does not entail any moral obligation on my part to defend my life, but it surely entails the moral permissibility of self-defense. For if I have a right to life, then others have an obligation not to harm me. This obligation of theirs entitles me to meet a deadly threat with force sufficient to thwart the attack up to and including killing the assailant. We appear to be at moral rock-bottom here. I say (2) is self-evident. Reject it, and there is probably no point in further discussion.
"You have a right to defend yourself, but no right to the possession of any effective means of so doing."
To will the end is to will the means. So, to will one's defense is to will the means to one's defense. Therefore, if it is morally permissible to will one's defense, then it is morally permissible to will the means to one's defense. I grant that qualifications may be needed.
Arguably, felons ought not have the right to purchase firearms. A felon either forfeits his right to self-defense, or has that right overridden by the community's right to be safe from his predation.

(4) is obviously true pending some obvious qualifications that I left out for the sake of brevity, the soul of wit. A handgun is an effective means of self defense, but not in all circumstances, only if the defender is properly trained in the use of firearms, etc. (as opposed to the individual qua member of some collective such as a police force or military unit) has an individual right to posses firearms for the purpose of defending his own life. The existence of such an individual right does not entail that it is unlimited. Thus if I have a right to firepower sufficient to my self-defense, it does not follow that I have a right to firepower sufficent to lay waste to a city. One non sequitur to avoid is this:

There is no unlimited individual right to keep and bear arms;
ergo, the right to keep and bear arms is a collective right.

Arguments like the foregoing make appeal to people's reason. Like all my arguments, it is directed to open-minded, reasonable people who are doing their level best to form correct opinions about matters of moment.
You decide whether I have been employing right reason. But if you wish to criticize, just be sure that you engage what I have actually written and not something you have excogitated on the occasion of skimming my post.

---

[Yosemitest]

Sorry for the double post.

[Triple]

I’d say Madison is very clear. The right to bear arms is for americans/citizens/people, and for possible confrontation with a government/standing army, including the government he was putting in place.

The foundaer were wary of governments and standing armies.

[Triple]

“Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms.” - James Madison

“The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation where the governments are afraid to trust the people with arms.” - James Madison