soldier with rifle american civil warState Of The Union

The Right to Bear Arms

District of Columbia v. Dick Heller

(2008) 554 U.S. 570


Scalia, joined by Roberts, Alioto, Thomas and Kennedy

"The second amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, Because a well-regulated militia is necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."

Note: In considering the meaning of the entire language of the amendment, it is reasonable to think that, before the Constitution was ratified, "the people," in their sovereign capacity, possessed the right to keep and bear arms.


If this proposition is true, the question becomes—where did this "right" come from? What was it based upon? The answer seems obvious: it is a necessary ingredient of the natural right of self-preservation the patriots incessantly spoke about. Thus, it is easy to see that the scope of the right to keep and bear arms, in the minds of the patriots, was not limited to the duty a citizen owes his State to protect its existence from a hostile force.


But, contrary to the both the majority and minority opinions, it seems impossible to allow the Federal Government any power to regulate the right to keep and bear arms, because doing so necessarily means the Government has an opportunity, under the guise of regulating the general use of firearms, to effectively destroy the ability of the State to have its citizens in ready position to immediately come to its defense when it is attacked by a hostile force.


Keep in mind, here, that the State, itself, is constrained by its own constitution in the manner in which it can regulate its citizens' use of firearms. For example, the state constitutions of New York, Virginia, North Carolina and others, that existed prior to 1789, expressly prohibited the State from infringing upon the people's right to keep and bear arms for the purpose of self-defense. The States, under this constitution, though, might regulate the use of the firearms; e.g., firearms could not be carried into public buildings, could not be discharged inside the limits of towns and cities, etc.


  "The first salient feature of the operative clause is that it [constitutionalizes] a `right of the people.'"

Note: Scalia points to the fact that in the Ninth and Fourth amendments, the term "right of the people" is used to refer, he says, to "individual rights," and, therefore, so too must the "framers" meant to use the term in the Second amendment. But, given the context, it seems more reasonable to think the amendment deals with the "collective" right of the people of the States to defend their state with their militia against the Federal Government's unjust use of power against them.


Scalia's starting point—"We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans—is misleading: it implies that the right to keep and bear arms, which indisputably belongs to all Americans, is meant by the amendment to be exercised individually.


 In the context of the amendment, the right is plainly meant to be exercised by the people of a State when its sovereignty is being threatened. Whether or not the State, itself, Virginia say, might restrict the individual's right to keep and bear arms generally, like no carrying of a firearm into a building (or a district, or a city), is not the subject of the amendment.


Both sides of the Court in the Heller case are hiding the ball: The constitution nowhere gives Congress the power to control the domestic policies of any State. The police power, including the power to regulate the use of firearms inside the state, is strictly a matter of domestic policy. The Second Amendment clearly was meant by the ratifying conventions that proposed it, as a qualification to the power granted the congress in the Constitution itself—"to provide for organizing, arming, disciplining, the Militia. . . ." While the Congress may "provide for. . . arming. . . the Militia," under no circumstance may it disarm the Militia.


The Second Amendment also has a qualifying effect—granted this effect must be implied—to the power granted Congress to use the Militia "to enforce the laws of the Union [and] suppress insurrection." Though Scalia's side of the case rejects the fact, the historical record Justice Stevens marshals for his side, makes plain that the state ratifying conventions proposed the amendment with concern for the security of their State as a "free State" paramount in their mind.


Given the fact that the "security of a free State" depends upon the "right of the people" to keep and bear arms, " it is silly to suggest that the State conventions that formulated the language of the amendment intended it to be interpreted to mean that the Federal Government could call forth their militia to destroy the security of their free State. The idea is just ridiculous in the extreme when the matter is thought through. So, while certainly the use of their militia to suppress an insurrection inside a state was within their meaning of the amendment, the use of their militia to suppress an insurrection by their free State against the Federal Government was not.


            Note: The amendments were not the product of "the framers." The "Framers" were the men gathered at the Philadelphia Convention of 1787. The amendments came out of the state ratifying conventions, were transmitted to the House by James Madison, in his capacity as a member, and the House, with the concurrence of the Senate, caused those proposed amendments of which it approved, to the State Legislatures for ratification. Thus was the constitution, originally ratified by the people in conventions assembled in their respective states, changed, not by the people, but by their State Legislatures.


Scalia then goes off on a discussion of what generally was meant in 1776 by the term "to keep and bear arms" and shows reasonably that the term meant the right of a person, based on the natural right of self-preservation, to defend himself against any one threatening his security. Justice Stevens seems not to seriously dispute the point. But he argues that, since the right was subject to regulation by the States, the Second Amendment does not prohibit the Federal Government from regulating it—outside the context of the people of a State defending their "free State" from insurrection or invasion. But Stevens and his crowd seem to be wrong here, as any power granted the Federal Government to regulate the use of firearms in a non-military context, necessarily gives the Government by implication the power to render meaningless the right of the people to defend their State against its usurpations of unconstitutional power.

Scalia does no better in conforming his theory to reality than does Stevens. Scalia refuses to recognize that the amendment is concerned only with the people of the States keeping and bearing of arms for the purpose of defending their States from the Federal Government, and not concerned with the problem of regulating gun use generally. Both sides, remember, ignore the reality that the original Constitution did not grant Congress any power to control the domestic policies of the States, among these policies of which there must be placed the police power.

The problem for the Supreme Court, in the aftermath of the inclusion of the Second Amendment as a qualifier on the original grant of powers to Congress necessarily would be to determine how a regulation by Congress of the people of a State keeping and bearing arms could possibly not impinge upon their right to keep and bear arms for the purpose of defending their free State from Congress's use of force against them.

That the people of the States possessed the right to keep and bear arms for their defense is acknowledged by both sides of the Heller case.

Here is Scalia writing:

"Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded the adoption of the Second Amendment. Pennsylvania's Declaration of rights of 1776 said: "That the people have a right to bear arms for the defense of themselves and the state; Vermont in 1779 adopted the identical provision. North Carolina also, in a Declaration of Rights, codified a right to bear arms in 1776: That the people have a right to bear arms, for the defense of the State. In 1780, Massachusetts Constitution was amended to read: "The people have a right to keep and to bear arms for the common defense."

Justice Stevens, joined by Breyer, Souter, Ginsburg

"The Second Amendment was adopted to protect the right of the people of each of the several states to maintain a militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias. . . posed an intolerable threat to the sovereignty of the several states."

Note: What the whole court, in Heller, is leaving hidden under the table, here, is that there would have been no rational need for a "state militia" if the Federal Government truly held the sovereignty of a supposed "nation;" under such circumstance, the Federal Government's security would be all that mattered and to protect itself necessarily all the "keeping and bearing of arms" should be under its absolute control. The fact the ratifying conventions insisted that the Second Amendment be a counter against that argument, demonstrates the Amendment's purpose as a means of preventing the federal government from doing what naturally it would do if it had the chance.


None of the States had any interest in this context in protecting the keeping and bearing of arms generally, as the Constitution granted Congress no power to regulate the keeping and bearing of arms inside a state beyond the scope of the power granted to "provide for the arming of the militia" and to "call forth the militia to enforce the laws of the Union and suppress insurrections. They had no interest, because the constitution did not grant Congress power to regulate the police power of the States.


Stevens cites the Declarations of rights by the several Sates, to prove its point.

The Virginia declaration of rights in 1776: "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State."

The Maryland declaration of rights in 1776: A well-regulated militia is the proper and natural defense of a free government."

Delaware's in 1776: "A well-regulated miltia is the natural and safe defense of a free government.

New Hampshire's in 1783: "A well-regulated milita is the proper and sure defense of a state."

Stevens is right when he writes, "But the original constitution's retention of the militia and its creation of divided authority over that body did not prove sufficient to ally fears about the dangers posed by a standing army. For it was perceived by some that, while the constitution empowered the Congress to organize, arm and discipline the militia, the constitution did not prevent Congress from providing for the militia's disarmament."

Note: Why is he right? Because, under the power granted Congress "to provide for the arming" of the militia, the Congress might use the power to claim the right to disarm the militia. Against this perceived threat, the ratifying conventions proposed the antidote of the Second Amendment.


Though the controversy over gun control has nothing to do with the question we are interested in—what was the scope of constitutional authority to suppress an insurrection of a collection of States, in 1861—the logic of the history both sides of the case produce in support of their contradictory positions, in Heller suggests strongly that the Federal Government, in the exercise of the police power it enjoys in its oversight of the District of Columbia, has the power to regulate the keeping and bearing of arms within that space. Similarly, the city of Chicago, in the exercise of the police power it enjoys in its oversight of the city's space, has the power to regulate the keeping and bearing of arms within that space—qualified by any restriction in the Illinois state constitution similar to that found in the state declarations of right I previously quoted.


Joe Ryan