Supreme Court ruled in 2008 that Second Amendment applies to individuals, not militias, and may include military weapons

This post first appeared at Fellowship of the Minds

On February 23, 2018, during a radio interview with Hugh Hewitt, Stanford U. political science professor and President George W. Bush’s secretary of state Condoleezza Rice said:

“I think it is time to have a conversation about what the right to bear arms means in the modern world. I don’t understand why civilians need to have access to military weapons. We wouldn’t say you can go out and buy a tank.”

By “military weapons,” Rice means the semi-automatic AR-15 rifle that confessed Parkland school shooter Nikolas Cruz allegedly used to kill 17 students and teachers on Feb. 14 in Parkland, Florida.

It is astonishing that a political science professor doesn’t seem to know that ten years ago in 2008, the Supreme Court had ruled 5-4 that:

  1. The Second Amendment’s guarantee of the “right to bear arms” pertains to individuals and not, as some insist, to militia.
  2. The Second Amendment’s prefatory clause [a “well regulated Militia, being necessary to the security of a free State“] may include citizens’ right to bear military weapons because today’s military has sophisticated weapons that government didn’t have in the 18th century. To ban individual right to such weapons would effectively render meaningless the prefatory clause’s “well regulated Militia, being necessary to the security of a free State”.

District of Columbia v. Heller, 554 U.S. 570, was the first Supreme Court case to decide whether the Second Amendment protects an individual’s right to keep and bear arms for self-defense. Prior to the Court’s ruling, the Firearms Control Regulations Act of 1975 had restricted District of Columbia residents from owning handguns except for those registered prior to 1975.

But the Court, in District of Columbia v. Heller, struck down the Regulations Act’s ban on handguns as unconstitutional, as well as the Act’s requirement that all firearms — including rifles and shotguns — be kept “unloaded and disassembled or bound by a trigger lock”.

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The majority opinion, written by the late Justice Antonin Scalia, is considered an example of constitutional originalism — interpreting the meaning of the U.S. Constitution in accordance with the original intent of our Founders. According to the Court’s ruling:

    1. The Second Amendment protects the individual‘s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. (Pg. 2–53 of District of Columbia v. Heller)
    2. The “people” to whom the Second Amendment right is accorded are the same “people” who enjoy First and Fourth Amendment protection. In the words of Justice Scalia: “The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.”
    3. The Court’s interpretation is confirmed by:
      1. Analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. The Second Amendment’s drafting history reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. (Pg. 28–32 of District of Columbia v. Heller)
      2. Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century. (Pg. 32–47)

      But the Supreme Court also ruled that the Second Amendment right, like most rights, is not unlimited:

      (1) The right to bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

      (2) On the matter of “military weapons,” the Supreme Court ruled that:

      “We also recognize another important limitation on the right to keep and carry arms. Miller [United States v. Miller, 307 U. S. 174] said . . . that the sorts of weapons protected were those ‘in common use at the time.’ 307 U. S., at 179. We think that limitation is fairly supported by the historical tradi­tion of prohibiting the carrying of ‘dangerous and unusual weapons.’ […] It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause [a “well regulated Militia, being necessary to the security of a free State”]. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have lim­ited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.” (pp. 58-59)

      Clearly, SCOTUS’ 2008 ruling understood the 2nd Amendment as a safeguard against a tyrannical government via citizens owning arms to defend themselves. What those arms are depend on the circumstances, specifically, arms technology. In the 18th century, those arms were rifles. But in the 21st century, handguns and rifles are insufficient against the vastly superior armament of the government’s military. And so, in District of Columbia v. Heller, the Supreme Court left open the possibility of individual right to military-grade weapons as a means to defend against a tyrannical government.


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