Indeed, I do not believe, that Providence has done so much for nothing. It has always been my creed that we [i.e. America] should not be left as an awful monument to prove, “that Mankind, under the most favourable circumstances for civil liberty and happiness, are unequal to the task of Governing themselves, and therefore made for a Master.”
Gen. George Washington to the Marquis de LaFayette, June 19, 1788
With the above quote from General Washington's letter as welcome, I present to you the distilled results of more than twenty years of study related to the Second Amendment and the U.S. Bill of Rights, and a carefull reading of the majority Opinion and two Dissents in the Supreme Court case D. C. v Heller (2008). I am confident that you will find here a Presentation not afforded elsewhere, either in print or on the web.
To understand the true meaning, purpose and intent of the Second Amendment we must clearly understand the true original purpose and intent of America itself as envisioned by the Founders and Framers of our constitutional federal republic. Many times I have heard America described as an experiment in democracy. No, America is an experiment in citizen self government. Certainly this would be accomplished through democratic means, but the Founders truly intended that We the People would be the government quite literally and in every way—including safety, security, the common defense, and law enforcement. That is, America is very much a ‘do it yourself’ nation.
This quickly brings us to the concept of the “well regulated Militia”. Because the original militia practiced in the early decades of America no longer exists, the general public today really has no factual understanding of this basic Institution. I refer to Article 13 of the Virginia Declaration of Rights (ratified June 12, 1776) and Article I, Section 8, clauses 15 & 16 of the original U.S. Constitution (ratified June 21, 1788) for clarification. In Article 13, Col. George Mason wrote, “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defence of a free state.” Clause 16 of the Constitution granted to the federal and State governments full power and authority to organize, arm, equip, discipline, train and officer the Militia, thereby rendering it “well regulated”. Clause 15 stated that the Militia would be called forth to “…execute the Laws of the Union, suppress Insurrections and repel Invasions;”. It is important to note that the Constitution makes no other provision to the federal government for domestic security and law enforcement power other than the “well regulated Militia”.
The Second Amendment well regulated Militia can be more easily understood by considering its close cousin: the modern ‘well regulated’ volunteer fire and rescue company. A volunteer fire company is a civilian force properly organized, equiped, disciplined, trained, and led so that it can quickly respond to a call to muster in order to take to the field to successfully fight a fire and/or provide emergency medical assistance. The well regulated Militia obviously utilized firearms as part of its equipment in order to enable security and law enforcement performance. The well regulated Militia was also intended to enroll the entire population of able-bodied citizens whereas the volunteer fire/rescue company would include only those citizens willing to step forward to serve in that capacity.
The well regulated Militia was intended to be a citizens' force maintained so that the federal and State governments would not be required by necessity to raise up professional military/police forces out of the public Treasury for security and law enforcement purposes. As Col. Mason continued in Article 13, “…that standing armies, in time of peace, should be avoided, as dangerous to liberty,…”. Today those “standing armies” would have to include our professional paramilitary police forces from the FBI down to our local SWAT teams.
I approach the Second Amendment by way of the concept of a Bill (or Declaration) of Rights. Many people are unaware that the First Congress included an explanatory Preamble to the proposed Bill of Rights amendments submitted to the several States. The relevant portion of that Preamble declared, “The Conventions of a number of the States having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers,that further declaratory and restrictive clauses should be added:…”. This is a very good explanation of the purpose and intent of any citizens' bill of rights. Indeed, every Article in the U.S. Bill of Rights must address at least one of these four important subjects: ‘misconstruction’, ‘abuse’, ‘declaratory’ and ‘restrictive’. It will soon be clear that the Second Amendment addresses and satisfies all four subjects.
With the preceding as foundation I now directly examine the Second Amendment itself—enumerated as “Article the fourth” in the documents originally submitted to the several States for consideration: “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.” The phrase “A well regulated Militia…” refers to the citizens' force provided for in Article I, Secion 8 of the original Constitution. That is, a civilian force competent and capable of quickly answering a call to muster and then taking to the field to accomplish a security or law enforcement objective.
Furthermore, I would point out that the term “well regulated” must not be misconstructed as meaning “a rigidly controlled government asset”. Rather, it is to be understood as simply meaning that the federal and State governments were granted the power and authority to provide the general framework so that the citizens' Militia would be properly and uniformly organized, equiped, disciplined, trained and led for security and law enforcement purposes on a national basis, to the benefit and safety of all; as opposed to an uncoordinated armed mob, which works to the danger of all. As William Rawle put it in his A View of the Constitution… (1829, linked at end.), “That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.”
The two words “…being necessary…” serve a dual purpose. First, they declare the right to citizens' militia security as a fundamental fiber in the fabric of American society. As the Supreme Court observed in its Cruikshank decision (92 U.S. 542 (1876) which will be quoted later in this article), the ancient right of organized citizen's Militia security and the concomitant “right of the people to keep and bear Arms” that undergirds Militia security, preexists the U.S. Constitution and would continue to exist even if the Constitution were to be terminated. That is, Militia security is a fundamental and “necessary” right of citizenship, ergo the explicit right to Arms.
They also address the possibility of misconstruction or abuse of the Powers of Congress as relates to the “well regulated Militia”. As originally written, all of the Article I, Section 8 powers of Congress are discretionary in nature. That is, they may be exercised or not as Congress pleases. One of the fears of the Anti-Federalists was that the new federal government would weaken or destroy the Militia by simple neglect. It was hoped that the words “being necessary” would raise the Article I, Section 8, cl. 16 Militia from a discretionary option of the Congress to a mandatory duty to perform (Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, 286 § 318; quoting Tucker's Black. Comm. note D. p. 170).
However, the power to violate still remains. The reason for this is that both Rep. James Madison's original militia proposal to the House of Representatives (quoted later in the article) and the finalized Preamble of the Second Amendment as submitted to the several States for ratification were both grammatically framed as general political/philosophical observations rather than as firm imperative directives for Congress to perform. This goes a long way towards accounting for the decline and eventual extinction of the Second Amendment well regulated Militia.
“…to the security…” relates to the necessity of safety, security, law enforcement, and the common defense in a citizens' republic.
The prepositional phrase “…of a free State,…” is very tricky and must be handled with great care. The reason for this caution is that the words ‘free’ and ‘State’ have spectrums of definition, the various combinations of which can have very different final meanings. As regards the Second Amendment, the word ‘free’ can have a general meaning of: operating openly and respectfully; non-abusive; not arbitrary or tyrannical; conducive to liberty. However, a more modern, contemporary understanding of ‘free’ would be: able to act at will; not hampered; not under compulsion or restraint (courtesy of ‘synonym.com’). Relevant synonyms of ‘free’ can include ‘liberal’, ‘unrestrictive’, ‘safe’, and ‘open’. Once again, however, contemporary synonyms have a harsher edge: ‘sovereign’, ‘unbounded’, ‘unrestricted’, ‘unhampered’, ‘unrestrained’, ‘unconstrained’, ‘self-governing’, ‘unconfined’ and ‘autonomous’ (ibid).
The capitalized word ‘State’ also has its range of meanings. It can be understood in its obvious but strict, limited governmental sense, or in the less common but much larger and broader ‘conditional’ or ‘societal’ sense; that is, the word ‘State’ as the entire body politic of We the People, with the mechanism of government as a subordinate creature of the People (Story, at pgs. 193-196).
To fully comprehend my concern, let us do this simple exercise. We will write three different versions of the Second Amendment in order to cover the full spectrum of possible meanings:
A well regulated Militia, being necessary to the security of an open Society, the right of the people to keep and bear Arms, shall not be infringed.
A well regulated Militia, being necessary to the security of a safe Government, the right of the people to keep and bear Arms, shall not be infringed.
A well regulated Militia, being necessary to the security of an unrestrained Government, the right of the people to keep and bear Arms, shall not be infringed.
The difference between these three readings is, I feel, quite stark. While all three are correct according to the basic rules of grammar, they do not have the same meaning or effect. The first reading easily comports with the purpose of a citizens' Bill of Rights. It protects We the People while restricting and restraining the government. Indeed, substituting any societal/conditional word into the place of “State” along with any synonym of “free” yields the same desirable result. The second reading does not seem to invite misconstruction or abuse. Indeed, I feel that Justice Story would be quite comfortable with this reading, and little danger would result from it. The erroneous misconstruction resulting from the third reading, on the other hand, fairly invites abuse and would make the Second Amendment a ‘wolf in sheeps clothing’. Rather than restrict government, this reading (with any modern synonym for “free”) would declare the federal government to be an unrestricted sovereign Power, while leaving the citizens' Militia as a discretionary instrument of that Power. Such a dangerous clause would have no place in a citizens' Bill of Rights.
For maximal safety of the rights and liberties of the People in modern America, while keeping government in its subordinate role as a creature of the People, the correct and official understanding of the phrase ‘of a free State’ must be in the largest, most liberal societal sense. This conclusion is underscored by the fact that Rep. James Madison used the word “country” in his original proposal that would become the Second Amendment (quoted below), as did Supreme Court Justice Joseph Story in the Second Amendment section of his still authoratative Commentaries on the Constitution of the United States (1833; also quoted and linked below). The full import of the above will become quite clear in my critique of Justice John Paul Stevens' Dissent in D. C. v Heller later in the article.
Continuing with the analysis, “…the right of the people…” explicitly declares a citizens' ‘right’, thereby affirming the Second Amendment's place in a true Bill of Rights. It is well worth noting that the Justices of the U.S. Supreme Court in D. C. v Heller (2008) unanimously recognized this right as pertaining to the individual citizen.
The phrase “…to keep and bear Arms,…” clarifies that the ‘Arms’ in this clause are to be purchased, owned, kept and used by the Militia members—We the People! The U.S. Supreme Court affirmed this when it said, “…And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. … (pg 179)” in its lengthy historical review of the well regulated Militia in U.S. v Miller (1939; linked at end).
The concluding phrase “…shall not be infringed.” requires special attention. Parsing each word yields this result: My Webster's II New Riverside University Dictionary (1988) defines “shall” with the words ‘command’ ‘directive or requirement’, and ‘must’. The word “not” is defined as ‘in no way: to no degree — used to express negation, denial, refusal, or prohibition’. The word “be” is defined as ‘3.to take place’. The word “infringed” (and this is where the rubber meets the road, isn't it?) is defined as ‘to violate or go beyond the limits of’ and ‘to encroach upon something’. My Merriam-Webster Thesaurus (1989) gives ‘trespass’ ‘violate’ and ‘impose’ as synonyms for “infringe”. A stitched-together version would be: “…must to no degree take place encroachment.” This declaratory and restrictive phrase, of course, indicates that any ‘gun control’ enforced in modern America must be of the lightest and least inhibiting kind as regards the ordinary law abiding citizen.
I end this section by reemphasizing that the well regulated Militia protected by the Second Amendment is an ancient and fundamental right of the People, not a resource of power for the aggrandizement of government. The sole purpose of the Article 1, Section 8 Militia Clauses is to ensure that the People's Militia is competent and uniform so as to allow it to accomplish its responsibility of securing society on a national basis. While all of the other enumerated powers of Congress are purely discretionary in nature, and obviously pertain to and should only be exercised by government, the Militia Clauses uniquely establish a duty of the U.S. Congress and the legislatures of the several States to perform a service in support of a fundamental and “necessary” citizen's Right.
That fundamental Right, however, exists whether Congress and the several States perform their duty or not. As agravating and disturbing as they may be, the home-grown militias that have sprung up in recent decades are a result of governmental neglect to provide a “well regulated Militia” program on a national basis. Their logic is simply that if government neglects to do its duty, then the power to organize Militia devolves back to the People. The best way to quell these ‘militias’ is for the federal and State governments to do their duty to effect true Militia of “the body of the people, trained to arms” on a national basis. A citizen's Right must never be destroyed by simple governmental neglect (or refusal) to do its explicitly enumerated duty.
Indeed, militia training should be a routine part of public school education right along with phys-ed and drivers education programs, with formal Militia enrollment upon adulthood being as common and expected as getting a drivers license or voter registration as a sure sign of fully vested modern American citizenship. Every able bodied citizen should be able to answer these three question: What is the formal name of my Militia Company? Where do I muster? What is my formal Militia officer chain of command, from local Militia Company Commander, through State governor, up to the President of the United States?
To close this section of the article, the obvious demise of the Second Amendment “well regulated Militia” in modern America demands some explanation. I offer three reasons. First is simple human laziness. Ask yourself this question: “Where whould I rather be of a Saturday morning: in bed sound asleep, or down at the local armory for militia drill, inspection and instruction?” Why, the question fairly answers itself.
The second reason is population dilution. After the successful establishment of the new federal government, several generations of Americans lived in relative safety and security. The personal discipline and commitment necessary to maintain ‘well regulated Militia’ became more and more bothersome, and therefore undesirable. Add to this the immigration of people from countries having little or no concept of ‘citizen sovereignty over a self-created government’ or a ‘people's right to keep and bear Arms’, and you see the dilution and weakening of the very idea of Militia security.
The third reason is simply that government itself has no incentive whatsoever to maintain the national Militia. Governments in general greatly prefer to regard themselves as the ultimate sovereign authority of their respective countries, and ours is no different. Therefore it is clearly in the interest of the federal and State governments to neglect their militia duties and instead to hire professional soldiers, officers, and agents out of the public Treasury for security and law enforcement purposes. These three reasons brought the Second Amendment “well regulated Militia” into steep decline by the time of Justice Story and his Commentaries in 1833, and then its extinction by the turn of the twentieth century. Today, the very idea of citizen Militia security and law enforcement is downright alien and frightening to the modern American mind.
With our basic understanding of a Bill of Rights and the Second Amendment fully secure, I take up the subject of personal self defense. This now brings into view the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The immediate goal of the Ninth Amendment was to declare that the U.S. Bill of Rights was not an exhaustive and finalized listing of all possible rights; that other Rights do exist, but remain unenumerated. As Justice Story put it, “This clause was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others;…”. (Story, at 751 § 1898)
As regards the conduct of civilized Society there are two general classes of rights: Political (i.e., related to Positive Law) and Natural (i.e., related to Natural Law). The primary purpose of a bill of rights is to act as an interface or buffer between the citizens of a country and their government. Beyond that are common and traditional rights such as personal property rights and hunting rights, along with the Natural rights pertaining to our existance as members of the Animal Kingdom. First and foremost of these Natural rights is the right to self defense in order to preserve physical life and existence. After all, what value is there in any of our other rights—Political or Natural—if you have been killed by a predator or enemy? Murdered people have no need for religion or free speech, and care nothing of “houses, papers, and effects”. “The privilege of the writ of habeus corpus” is moot if you are the ‘corpus’; killed by predator or enemy.
How may self defense against deadly attack be accomplished? Really, by any means commensurate with the threat. Ordinary animals use tooth, hoof, horn and claw for self defense. Humans have developed a fairly wide range of non-body weapons that can be used for self defense. Most relevant to this study is the personal protection handgun. It has earned high marks for effectiveness in warding off or ending a physical attack. There's nothing like looking down the barrel of a gun to get the undivided attention of a would-be attacker. With that observation in mind, I segue to the subject of U.S. Supreme Court case D. C. v Heller (554 U.S. 570, 2008, linked at end).
The driving issue in this case was the gun control laws in Washington D. C. that were so prohibitively restrictive that no one was allowed to have an assembled and functional firearm within the city limits at any time, for any reason, or under any circumstance—including self defense against direct criminal attack. Never mind that at that time Washington D. C. was regularly at, or near, the top of national homicide lists, illustrating that the criminals of that city were ignoring the laws. Only the law abiding were being restrained.
Enter Dick Heller, a resident of Washington D. C. who had no legal means to own or keep a functional handgun in his home for self defense. He initiated a case challenging the D. C. gun control laws. This case went all the way up to the U.S. Supreme Court. The late Justice Antonin Scalia wrote the Opinion for a bare minimum five justice Majority in a deeply divided Court. The majority held that the Operative Clause portion of the Second Amendment “right of the people to keep and bear Arms” extends to protecting having a loaded, functional handgun in the home for personal self defense. Justices John Paul Stevens and Stephen Breyer both authored dissenting Opinions which were signed by the remaining Justices. I will examine the Dissent by Justice Stevens later in this article, but the gist of both dissents was that the Second Amendment pertains only to the government's well regulated militia—which has nothing to do with individual self defense in the home. Therefore the D. C. gun control laws were constitutional; at least as far as these four Justices were concerned.
At this point we must seriously consider the interconnectedness of Arms for Militia security and Arms for personal self defense. Since the U.S. Supreme Court in U.S. v Miller (1939) used military utility as the acid test for firearms protection under the Second Amendment, any law that “infringed” upon the citizens' right to “keep and bear” such firearms would clearly violate the protection of the Second Amendment. But would the ownership—the ‘keeping and bearing’—of such a protected firearm preclude its use for personal self defense? I think it rank sophistry to argue that a militia-grade firearm can be ‘kept and borne’ by the Citizen only for governmentally authorized and organized militia purposes, but put to no other use by the individual Citizen.
There is hardly any firearm worthy of Militia use that can not also be used for defensive purposes. Militia security and personal security fit hand-in-glove. The ‘infringment’ of one effectively infringes the other. This would establish the baseline of firearms protection under the Second Amendment, thereby putting physicality to a Ninth Amendment-claimed right to personal self defense. I do not know the specifics of Dick Heller's handgun, but quite likely it would qualify as a military/militia grade firearm. After all, handguns are commonly used by military as well as law enforcement personnel. Indeed, Dick Heller was employed at that time as a professional armed security guard!
It is extremely unfortunate that in the more than two hundred years since the ratification of the U.S. Bill of Rights, the Ninth Amendment has languished in neglect by lawyers, scholars, judges—and the National Rifle Association. So much so that it was mentioned en passant only three times within the Majority Opinion (and then, only because of the words “the people”) and made no appearance at all in the two Dissents.
Justice Scalia did a true heroic job of shoehorning individual self defense into the Second Amendment, but it seems a forced fit. The plain and simple fact of the matter is that the Preamble to the Second Amendment clearly declares the general citizen's Political right of Militia security, not the Natural right of individual self defense against personal criminal attack. While the Majority in Heller correctly concluded that the utterly general, unrestricted, unqualified wording of the Operative Clause of the Second Amendment forms an umbrella of protection, it is highly debatable as to exactly what—beyond the explicitly declared “well regulated Militia”—lies within the shelter of that umbrella.
Of course, the two Dissents clearly indicate that many respected and qualified people deny that an umbrella exists at all, and that “the right of the people to keep and bear Arms” begins and ends with the government controlled militias. Had the Ninth Amendment been properly developed over the past two centuries to clearly include personal self defense, Heller's lawyer could have—should have—advanced a combination Second and Ninth Amendment case. This two-prong approach would have most naturally, understandably, and securely placed personal self defense handguns under the the very real umbrella of Second Amendment protection.
The D. C. gun control laws clearly deprived its citizens of the most effective instrument for personal defence against criminal attack. The unrestricted Operative Clause of the Second Amendment unambiguously guarantees to the citizen the right to keep and bear Arms—period. The D. C. gun control laws were equally violative not only of a Ninth Amendment unenumerated but obvious Natural right to citizen self defence, but also clearly ‘infringed’ the Second Amendment Political right to Arms, and effectively prevented even the possibility of Second Amendment militia protection. That is, the D. C. gun laws—like so many of the State and municipal gun control laws nationwide—directly violated the spirit and letter of both the Preamble and the Operative Clause of the Second Amendment.
Before directly examining the dissenting opinion by (now retired) Justice John Paul Stevens we must return to the Constitutional Era for some historical review. The inclusion of a citizens' bill of rights in the new Constitution was by no means an inevitability. A bill of rights was not produced by the Philadelphia Convention of 1787, and not every State Constitutional Ratification Convention called for one. However, several did, and even listed extensive suggestions for a bill of rights. On the other hand, there were many respected people who opposed adding an explicit bill of rights to the U.S. Constitution on the grounds that such an instrument was either unneeded or would, in practice, do more harm than good (Story, at 713 § 1852).
However, a very significant portion of the people of the Constitution Period desired that a real and substantial bill of rights be produced by the new Congress as soon as practicable. The temper, philosophy, experience, and genius of these people—the Anti-Federalists in particular—expected a full-blooded bill of rights.
The House of Representatives in the First Congress of 1789, on the other hand, was not in a generous or expansive mood as it was compelled by Rep. James Madison (after several postponements) to take up the subject of a bill of rights (Young, 647). Quite honestly they had other matters in mind that they felt were far more pressing, and resented the imposition on their time by the effort required by this relatively low priority task. Indeed, many of the members of the First Congress (both House and Senate) were philosophically opposed to the very idea of a ‘bill of rights’, feeling that such an instrument was unneeded or would actually be harmful and counterproductive. That being the case, they took Mr. Madison's extensive proposal for amendments and a ‘bill of rights’ and trimmed it down to the barest minimum essentials that they felt would take this nuisance problem off their table and allow them to get back to more important work.
As regards “the right of the people to keep and bear Arms”, the members of the First Congress really and truly had only one concern in mind: the continuation of the “well regulated Militia” provided for in Article I, Section 8 of the original Constitution. These men had lived under the bootheel of Imperial tyranny and had an almost pathological fear and hatred of standing armies, so their primary interest was in the preservation and effectiveness of the citizens' “well regulated Militia” that would preclude the use of professional military law enforcement and could be called into service by the new federal government to “execute the Laws of the Union, suppress Insurrections and repel Invasions”. The amendment they proposed clearly emphasized and protected that particular purpose of Citizen firearms ownership while declaring and guaranteeing the general “right of the people to keep and bear Arms” as clearly stated in the Operative Clause of the Second Amendment.
To understand the difference between Public expectation and Congressional reality, we must compare Rep. James Madison's original proposal in the House of Representatives regarding the ‘right to Arms’ (which echoed the wording from three State Constitutional Ratification Convention suggestions, quoted later in the article) with the final finished product passed three months later by the Senate.
Original proposal in the House:
“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” (June 8, 1789)
Finalized version approved by the House and Senate:
“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.” (September 9, 1789)
Richard Henry Lee was a Senator from Virginia in that First Congress. He commented that there were senators opposed to devoting time to a Bill of Rights, just as there was opposition in the House. In a September 14, 1789 letter to Patrick Henry he had this to say about the whole process:
“I have since waited to see the issue of the proposed amendments to the constitution, that I might give you the most exact accounts of that business. As they came from the house [sic] of Representatives, they were far short of the wishes of our convention, but as they are returned by the Senate they are certainly much weakened. …I am grieved to see too many look at the rights of the people as a miser examines a security, to find a flaw in it. …The preamble to the amendments is really curious. A careless reader would be apt to suppose that the amendments desired by the states had been graciously granted, but when the thing done is compared with that desired, nothing can be more unlike. Some valuable rights are indeed declared, but the power to violate them to all intents and purposes remains unchanged (Young, 713).”
James Madison's original proposal for “the right of the people to keep and bear Arms” went from the expansive to the specific. That is, he started with a large, unrestricted, imperative statement of citizens' general Right; then went on to a philosophical, but non-imperative, observation regarding the importance of a more specific subset of the general Right (i.e. the government-managed well regulated Militia); and then went to an imperative particular point of the subset (i.e. religious scruple to Militia service).
The House of Representatives (along with the Senate) appeared to turn this around, making the subset (i.e., the ‘Militia Preamble’) seem to be the exclusive purpose of the Amendment, and then making the unrestricted, imperative statement of citizens' general Right (i.e., the ‘Arms Operative Clause’) seem to be a greatly contracted and dependent auxiliary component of the subset. This confusing, and almost deceptive, grammatical sleight-of-hand confounds the will and understanding of the People and allowed the rather narrow application of the Second Amendment adopted by the Justices in U.S. v Miller (1939) and the even narrower and misguided strict interpretation from the four dissenting Justices in D. C. v Heller (2008).
With the preceding review under our belts I now briefly examine Justice John Paul Stevens' dissenting Opinion. A major problem with his entire work is that Stevens seemed to intentionally ignore the fact that he was dealing with a Peoples' ‘Bill of Rights’. Rather, he treated the Second Amendment as an enumeration and expansion of the governmental power, resource and prerogative related to the Article I, Section 8 Militia Clauses. A bill (or ‘declaration’) of rights is intended to protect and benefit the citizens of America while restricting and restraining the government. That being the case, Supreme Court justices should interpret and apply the first ten amendments to the U.S. Constitution with the largest liberality and expansiveness in favor of the Citizens over the government.
On page 10 of his opinion, Justice Stevens wrote: “Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment's preamble [i.e. “A well regulated Militia, being necessary to the security of a free State,…”]. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States' share of the divided sovereignty created by the Constitution.” [quotation added]
In his dissenting Opinion, Justice Stevens got so wrapped up in militia minutiae that he completely lost sight of ‘The Big Picture’. The Second Amendment “well regulated Militia” was not demanded by the People merely as a utility tool or prerogative of power for the benefit of government at either the State or federal level. The “well regulated Militia” is a fundamental right of the People that acts as a restriction and restraint on the physical power of government. Since the several States cannot maintain standing troops (i.e. professional soldiers) without congressional approval (Art. 1, Sect. 10, cl. 3), and since the federal government itself must rely upon the militia to “execute the Laws of the Union, suppress Insurrections and repel Invasions” (Art. I, Sec. 8, cl. 15), the militia serves the interests of the People by being the final ‘check and balance’ on the physical power of the government. Indeed, We the People would be the power of the government! If government (at any level) acts tyrannically or abusively, “We the People” as the militia can stop the abuse and effectively disarm the government by simply refusing to answer the call to muster; or mustering, turn on the would-be tyrants so as to either “alter or abolish” them.
The act by Justice Stevens of reducing “the right of the people to keep and bear Arms” to a mere subservient “duty to serve” the governmental State, or worse yet “…more importantly, that the ultimate purpose of the Amendment was to protect the States' share of the divided sovereignty…”, makes a mockery of a citizens' Bill of Rights and turns the Second Amendment into a philosophical travesty. To borrow from Justice Scalia: “Grotesque” (pg. 13). This shocking misconstruction of the Second Amendment (and abuse of the English language) lacked but one vote on the High Court from becoming the official and binding meaning of the Second Amendment in modern America. From that point it would be but the smallest step to officially understanding the words “free State” as meaning ‘unrestrained Government’. From there the Second Amendment would effectively be subsumed out of the Bill of Rights and transfered to Article I, Section 8 as a full-fledged Power of an unrestricted, unrestrainable, sovereign governmental National State.
At this point I would pose a couple of questions to Justice Stevens:
Proceeding onward, the First Congress took Rep. Madison's original overall—and rather extensive—proposal for amendments and a ‘bill of rights’ and trimmed it down to the bone. Justice Stevens harped on the utilitarian military nature of the Second Amendment. If merely protecting a prerogative of the several States and a resource of the new federal government was the sole meaning and purpose of the Second Amendment, then this clause could have been very efficiently included in the First Amendment thusly: “Congress shall make no law effecting a disarming of the militias of the several States; or respecting an establishment of religion…” etc., etc.; or keeping the unnecessarily wordy construction of the actual Amendment, simply changing the Operative Clause to say, “…the right of the people to keep and bear Arms for Militia service…” or “…the right of the several States to maintain Militias shall not be infringed.” All ambiguity, doubt, and disagreement would have been eliminated in Justice Stevens' favor.
On page 16 Justice Stevens wrote, “When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” By the logic of his overall dissenting opinion, this would make sense only if the Second Amendment was generally understood thusly: “The federal government shall not infringe upon the right of the people to serve in the interests of the central State.” If you find this reading to be a bit odd, I find it to be absolutely monstrous. Yet Justice Stevens' (and Justice Breyer's) overall interpretation really allows no other meaning.
We the People do not have a “right” to be obligated to the service of the central State. Our ‘duty’ is not to the government but “to ourselves and our posterity”. The “right of the people to keep and bear Arms” is the fundamental source of justice, tranquility, the common defense, the general welfare, and the blessings of liberty. They are not established or guaranteed by ink-on-paper, nor by judicial ‘opinions’. They are established by “the Laws of Nature and of Nature's God”, and are guaranteed by power. Physical power. Nothing else will suffice to safeguard the liberties of the People in a dangerous world riddled with criminals, madmen, tyrants—and misguided Justices.
The Second Amendment clearly protects the ancient and fundamental Peoples' right of militia security. It does so by declaring and guaranteeing the general “right of the people to keep and bear Arms” for all purposes legitimate, proper and traditional. So, Mr. Justice Stevens, let's see to it that “each word in the text is given full effect” as understood and practiced by the People of this country for over two hundred years. Stevens wrote, “The burden would remain on those advocating a departure from the purpose identified in the preamble…”; that is, the Preamble of the Second Amendment. But that “purpose” would be the security and rights of the People, not the power and prerogatives of government. I would further point out that the Majority Opinion in D. C. v Heller in no way cancelled or even weakened the Preamble of the Second Amendment. That Opinion simply recognized that the Operative Clause extends beyond its obvious Militia purpose to include all other right and proper uses of firearms. As for “settled law”, it will just have to give way to the rights of the People. The government and its laws are here for the benefit of the People, not the other way around.
Continuing, on page 25 Justice Stevens wrote, “Madison's decision to model the Second Amendment on the distinctly military Virginia proposal is therefore revealing, since it is clear that he considered and rejected formulations that would have unambiguously protected civilian uses of firearms.” Rep. Madison did not “reject” any of the rights of the People. He knew that he was going to have to be concise in his proposals to a decidedly hostile Congress, so he simply refrained from insulting their intelligence and trying their already strained patience by needlessly stating the obvious: that We the People have a preexisting fundamental right to Arms for legitimate and traditional purposes such as hunting, self defense, manufacture and trade, recreation, personal property, etc.—in addition to Militia security.
On pages 21-24, Justice Stevens effectively refuted his own assertion regarding the purely governmental military purpose of the Second Amendment by quoting from the relevant portions of ‘bill of rights’ proposals from the State Constitutional Ratification Conventions of Virginia, North Carolina and New York:
This, from both the Virginia and North Carolina Convention's twenty proposals: “17th, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and be governed by the civil power.” Elliot 659. “19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.” Ibid
And this, from the New York Convention's twenty-one proposals: “That the people have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural, and safe defence of a free State… That standing Armies, in time of Peace, are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be kept under strict Subordination to the civil Power.” 2 Schwartz 912.
In the relevant portion of his extensive proposal to the House of Representatives for Constitutional amendments and a bill of rights (see link at end), Rep. James Madison simply carried forward the grammatical construction used in those proposals from the State Constitutional Ratification Conventions by stating the large, unrestricted, unqualified, general people's “right to keep and bear Arms” first; then observing the strict, dependent point of particular philosophical concern (the State-managed well regulated militias); and following up with any related or peripheral concerns (such as religious scrupal to militia service); everything compartmentalized by the use of semicolons.
I would also point out (along with the Justices on the Miller Court in 1939) that the Second Amendment “well regulated Militia” is a quintessentially civilian endeavor: “…the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion. (p. 179)” A standing army is established as a creature of the government; subservient and obedient to its Master. A true militia will have a mind of its own. “Composed of the body of the People, trained to arms…” (Va. Dec. of Rights, Art. 13), called forth for a specific purpose and officered by those of its own choosing, a militia will not slavishly act so as to abuse or tyrannize its own families, neighbors, and communities. A professional standing army (which today would include our paramilitary standing professional police forces) is on the government payroll, and therefore will go where it is ordered to go, do what it is ordered to do, and do so without question; which is why Col. George Mason continued Art. 13 with “…That standing armies, in time of peace, should be avoided as dangerous to liberty.” A professional standing army—and modern professional police forces—will slavishly obey where a Citizens' militia might balk—or rebel.
Supreme Court Justice Joseph Story (quoted at length by Justice Stevens on page 33) clearly understood this when he wrote in his Commentaries on the Constitution of the United States (1833, linked at end) that “The militia is the natural defence [sic] of a free country against…domestic usurpations of power by rulers.” and “The right of the citizens to keep and bear arms has justly been considered as the palladium [i.e., the ‘safeguard’, ‘defense’ or ‘protection’] of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. …” (Story, at 746 § 1890; synonyms for the archaic meaning of ‘palladium’ added. This section echoed James Madison in Federalist No. 46)
Justice Story's analysis in no way constricts or reduces the “right of the people to keep and bears Arms” to only the support of the State-run militias, though its application in the Second Amendment obviously facilitates that particular purpose of individual citizen firearms ownership. As Justice Scalia quite correctly pointed out on page 4 of the majority opinion: “…a prefatory clause does not limit or expand the scope of the operative clause.” I would further point out that the wording of the Operative Clause in the Second Amendment is utterly general and unrestricted, and is therefore the “supreme Law of the Land” (Article VI, Clause 2. From the Table of Contents on my home website of Deep Thought 1 please select my Bill of Rights article for a critique of the serious problems in Barron v Baltimore (1833)).
Starting on page 38, Justice Stevens wrote: “The postratification history of the Second Amendment is strikingly similar. The Amendment played little role in any legislative debate about the civilian use of firearms for most of the 19th century, and it made few appearances in the decisions of this Court. Two 19th-century cases, however, bear mentioning.” Those two cases being Cruikshank (1876) and Presser (1886), detailed below.
With due respect to Justice Stevens, I think that a third 19th-century case is highly relevant and should also be considered: Dred Scott v Sandford, 60 U.S. 393 (1857). At page 417 of that infamous antebellum decision, Chief Justice Roger Taney (writing for a seven justice majority) gave a litany of racist reasons why negroes should not be recognized as citizens under the U.S. Constitution. In their opinion…
“…It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. …[emphasis added]”
I would remind the reader that the above list enumerated some of the common rights, liberties, privileges and immunities enjoyed by the ordinary free white Citizenry of that time. Considering that Justices McLean and Curtis did not object to this assessment in their respective Dissents, I think that I can safely say that a 19th-century Supreme Court unanimously recognized “the right of the people to keep and bear arms” to be an individual, discretionary right of the People that is not dependent upon militia membership or service; that is, a privilege and immunity of American citizenship for all legitimate, lawful, proper and traditional purposes.
Continuing on page 38, Justice Stevens began an examination of three Supreme Court cases relevant to the Second Amendment. The first case was United States v. Cruikshank, 92 U.S. 542 (1876). Stevens quoted from the single paragraph in that rather lengthy Decision (at page 553) related to the Second Amendment and then made his own comments undermining the Majority Opinion in D. C. v Heller. I'm going to include both the quote and Justice Stevens' comments. As you read the quote, note that the phrase “bearing arms for a lawful purpose” was the Cruikshank Court quoting directly from the respondents' original indictment. Please read the entire quote very, very carefully:
“The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen [per Barron v Baltimore, (1833)], means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.” Id., [at 553; reference added]
Please clearly understand that when the Court said “This is not a right granted by the Constitution…” the Cruikshank Court was not saying that the right did not exist, but simply that the Constitution did not create the right. The right existed before the Constitution was written, and was merely formalized by ‘ink on paper’ in the Second Amendment of the Bill of Rights. Also, the statement “Neither is it in any manner dependent on that instrument for its existence…” the Court was not saying that the right of “bearing arms for a lawful purpose” depended on the existence of the Constitution. Quite the contrary, the ‘right’ exists utterly independent of the U.S. Constitution and would continue to exist even if the Constitution was terminated. And now Justice Stevens' comments:
“The majority's assertion that the Court in Cruikshank “described the right protected by the Second Amendment as ‘“bearing arms for a lawful purpose,”’” ante, at 47 (quoting Cruikshank, 92 U.S., at 553), is not accurate. The Cruikshank Court explained that the defective indictment contained such language, but the Court did not itself describe the right, or endorse the indictment's description of the right [citation and emphasis in Stevens' original Opinion].”
Although I disagree with Justice Stevens in most of what he wrote in his Dissent, it is obvious that he sincerely and honestly believed in the correctness of what he wrote. The above quote, however, is the only place in his Dissent that I can charge Justice Stevens with being intentionally disingenuous. True, it is in the narrowest possible sense correct that “…the Court did not itself describe the right, or endorse the indictment's description of the right [emphasis added].” This, really, is to be entirely expected. Cruikshank was not a case focused on the Second Amendment. The Court in Cruikshank was dismissing a multitude of defective counts in the original case that covered a wide range of constitutional and legal issues, and was not called upon by this rather large case to render an exhaustive analysis of the Second Amendment or the wording of the original indictment on this subject. They handled all matters in this case with dispatch.
However, it is quite obvious upon a very careful and honest reading of the Court in Cruikshank that those Justices did not bat an eye at the assertion that the Second Amendment means that We the People have a right of “bearing arms for a lawful [i.e. ‘proper’, ‘recognized’, or ‘legitimate’] purpose”. They clearly accepted the assertion by neither rejecting, correcting or modifying it, and then saying, “The second amendment declares that it shall not be infringed;”. I would further point out that neither the original indictment nor the Court's Opinion mentioned Militia service in relation to the keeping and bearing of Arms by the individual citizen. The Court also confirmed that the Second Amendment is a restriction of governmental power, not an augmentation. The rest of this single paragraph devoted to the Second Amendment (out of more than 30 counts dealt with in this case) was just technical clarification regarding the proper application of Constitutional civil rights, and how State-on-citizen or citizen-on-citizen violations of Constitutional rights might be remedied through Law and the Courts. (Again, please read my Bill of Rights article in the home website, linked above, regarding the serious defects in Barron v Baltimore)
The second case was Presser v Illinois, 116 U.S. 252 (1886). This was a 100% pure ‘militia’ case. Presser was leading and parading a home-grown militia group in violation of local and State laws, therefore the Supreme Court's entire focus was on militia issues. Self defense and the overall scope of the Second Amendment simply had no part in this case at any level—city, State or federal. Indeed, Presser is most noteworthy as an example of the Supreme Court dodging both Second and Fourteenth Amendment issues by saying that the Second Amendment does not apply to the States (per Barron v Baltimore), and that insufficient reference was given by Presser to warrant invoking the Fourteenth Amendment. This case, therefore, sheds no light at all on either Amendment as regards personal self defense and the overall scope of the Second Amendment.
I now pause to comment on a single, casual, almost throwaway sentence found on page 41 of Stevens' dissent: “In 1901 the President revitalized the militia by creating “‘the National Guard of the several States,’” Perpich, 496 U.S., at 341, and nn. 9-10;…” With this token tidbit a careless reader would be apt to suppose that the Second Amendment ‘well regulated Militia’ had been graciously granted a new lease on life in modern America. But when the National Guard is compared with the original understanding, intent, and practice of the “well regulated Militia”, nothing can be more unlike. The ‘well regulated Militia’ of the Founding Era was “the body of the people, trained to arms”, keeping and bearing Arms supplied and owned by themselves (see U.S. v Miller (1939), pgs. 179-181), and acting in concert, with officers appointed by and loyal to the several States, not only for the common defence and domestic tranquility, but also as a bulwark against tyranny and abuse (per Justice Story, quoted above; and Mr. Madison in Federalist No. 46, along with Mr. Hamilton in Federalist No. 29).
The National Guard, however, fails as the Second Amendment “well regulated militia” on at least three major points. First, the Second Amendment “well regulated Militia” is to be composed of the “body of the people, trained to arms”. As of the 2010 census, the ‘body’ of people in the 18 to 45 year Militia age group was about 113 million souls, while the number of people in the National Guard is only about 450 thousand souls; roughly 0.4 percent of the Militia age population. This means that the National Guard is composed of only a tiny subset of the general population of able-bodied eligible citizens, and is therefore a ‘select militia’; that is, a creature of the government.
Second, the officers of the National Guard are fully commissioned federal Army officers—in direct violation of Art. I, Sect. 8, cl. 16 of the U.S. Constitution. Third, literally all of the equipment—especially the Arms and ammunition—of the National Guard is owned and kept by the government in locked armories. The National Guard is, in truth and reality, merely a reserve extension of the U.S. federal standing Army, and is therefore the philosophical and practical opposite of the Second Amendment “well regulated Militia”. Indeed, the National Guard is the very thing that the Founders of this nation and Framers of our Constitution and Bill of Rights sought to ‘guard’ against.
Moving on, the most relevant and important pre-Heller Second Amendment case is U.S. v Miller, 307 U.S. 174 (1939). Two points must be clearly understood about this case. First, the very narrow and highly specific question before the Supreme Court was whether or not Congress had violated the Second Amendment by placing in the 1934 National Firearms Act what amounted to prohibitive requirements on purchasing, registering, tax-stamping, owning and possessing sawed-off shotguns, and the stringent regulations for transporting them across State lines. It was the illegal interstate transport of an unregistered sawed-off shotgun that brought about the original arrests. The defendants in this federal case, a pair of common criminals named Jack Miller and his partner Frank Layton, however, were silently assumed by the Miller Court to have an individual ‘right to keep and bear Arms’ quite apart from their criminal records or membership and service in any militia. Those questions were never at issue.
Second, as Justice Stevens pointed out on page 43 of his Dissent, the Federal District Court Judge in the original trial did not give a “reasoned opinion” (i.e., ‘detailed explanation’) as to why he agreed with the argument by Miller's defense attorney and ruled that the 1934 National Firearms Act was unconstitutional on these very specific points, and therefore dismissed the charges against the defendants. It was the U.S. Justice Department that appealed this case directly to the Supreme Court. Also highly relevant was the fact that the lawyer for the defendants in this case neither submitted a brief on their behalf nor attended oral arguments before the Supreme Court so as to defend their right to “keep and bear” such a firearm. The High Court considered only the legal brief and the oral arguments from the U.S. Justice Department, which was acting on behalf of the Police Power interests of the federal government and its laws.
Justice Stevens tried to brush aside the critically serious deficiency in the Miller decision of the lack of any Bill of Rights counterpoint to the government's Police Powers side of the case. He wrote, “But, as our decision in Marbury v. Madison, 1 Cranch 137, in which only one side appeared and presented arguments, demonstrates, the absence of adversarial presentation alone is not a basis for refusing to accord stare decisis [i.e., ‘respect for prior decisions’; emphasis in the original] effect to a decision of this Court.”
Mr. Justice Stevens flirts with disingenuousness by saying “…absence of adversarial presentation alone…[emphasis added]”. He is well aware of the multiple problems with U.S. v Miller. He is also well aware that Marbury v. Madison was not a Bill of Rights case. Considering the serious deficiencies and inherent limitations in the Miller decision (along with the aforementioned prior decisions of the High Court), and the fact that it dealt with fundamental Citizens' liberties and protections related to the Bill of Rights, Justice Stevens and his three Brothers and Sister should have welcomed with large and open minds a fresh airing of this difficult but important issue.
I now need to make two points as relate the cases U.S. v Miller and D. C. v Heller. First, the Heller Majority Opinion did not reverse Miller; it expanded upon it. Second, that technically the Miller Court did not actually close the door to the Majority Opinion in D. C. v Heller as Justice Stevens asserts. After quoting the Article I, Section 8 Militia Clauses, the Miller Court said: “…With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. (pg. 307, U.S. 178)”
Well, no duh. If the Second Amendment does not do that, then it does nothing at all! At issue is whether the Miller Court actually meant: “With obvious and exclusive purpose…” and “…must be interpreted and applied with only that end in view.” As regards the very narrow technical points being considered by the Miller Court, and its lack of Bill of Rights historical review, Justice Stevens tried to force the Miller Court to a narrow extreme that it might not have intended.
Unfortunately, the Justices on that Court are currently unavailable for consultation;-)
It is important to keep in mind that by the year 1939 the Miller Court was a truly modern court. Firearms technology, including militia-grade semiautomatic guns with large capacity detachable magazines, was fully developed and those firearms and accessories were commonly available on the civilian marketplace. All of this was fully known by the High Court. Also, the legal doctrine of an overriding ‘Police Powers’ authority of government for general safety, security, and law enforcement purposes was fully developed by that time, and the extinction of the physical Second Amendment ‘well regulated Militia’ was utterly complete. The Justices on that Court could very well have sided with the Police Powers authority of government by declaring that both the Article I, Section 8 Militia Clauses and the Preamble of the Second Amendment were effectively ‘dead letters’ by abandonment, therefore the Operative Clause “right of the people to keep and bear Arms” was now a mere privilege that could be regulated—or terminated—at the pleasure of government at any level.
Instead, the Miller Court quoted (and therefore validated) the Article I, Section 8 Militia Clauses, and then explicitly recognized both the declaration of the Preamble and the guarantee of the Operative Clause of the Second Amendment to be alive and well in modern America despite governmental neglect of its duties regarding the Militia Clauses in the original Constitution.
To close, I feel that the Majority Opinion in the Heller decision adequately covers the subject of U.S. v Miller. I would add only this from the very end of the opinion in Miller: “Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seems to afford any material support for the challenged ruling of the court below.”
If, as Justice Stevens asserts, the Second Amendment pertains only to governmental Militia service, it seems strange to me for the Miller Court to use the words “right guaranteed”, or even mention the idea of “scope”. It is almost laughable to suggest that “We the People” have a constitutional ‘right’ to serve the interests of the governmental State. Also, a ‘duty to serve’ is not something that is “guaranteed”. A ‘duty to serve’ is something that is imposed or enforced upon the People by a government through Law, not guaranteed to the People through a Bill of Rights. And if the Second Amendment pertains only to service in the State controlled militias, then what “scope” can there be? Mere comparison of State militia statutes? Differences in drill and presentation of Arms? Variations in armory and equipment requirements? This does not seem like “scope” to me, and would have no philosophical or practical application as far as a fundamental, enumerated “right of the people” is concerned.
Or perhaps the question is really this: In the view of Mr. Justice Stevens and his three miserly, dissenting Fellows, what is the micro-scope of the Second Amendment “right of the people to keep and bear Arms” in modern day America?
Thus ends my review of the dissenting Opinion by Mr. Justice Stevens. The dissenting Opinion in this case by Mr. Justice Breyer was so deficient, defective and ill-reasoned that it stands as its own refute and therefore deserves no review. I continue with a question strangely avoided in all three opinions in D. C. v Heller: in the Second Amendment, what is the meaning and application of the closing phrase “…shall not be infringed.”? The possible extent of legitimate and constitutional ‘gun control’ in modern America surely hinges on this phrase.
As relates to this issue, the concept of ‘control’ (please read the related article on my home website linked above for my comments on modern gun control) can run the gamut from ‘advice’ to outright ‘prohibition’. However, the word “infringed”, as intentionally and consistently used throughout the framing of the Second Amendment, would strongly indicate that any ‘control’ of the “right of the people to keep and bear Arms” must be of the lightest and least restrictive kind. That being the case, the continuing efforts by city governments such as Washington D. C. and Chicago (in the wake of the McDonald v Chicago (2010) Fourteenth Amendment case, linked below) to enact gun control regimes as harsh and constrictive as possible would certainly be clear-cut cases of ‘infringing’ the “right of the people to keep and bear Arms”. Only time will tell if these efforts succeed or fail.
At this point I must admit ignorance as to the internal workings of the U.S. Supreme Court as it formulates its opinions. Are the Justices bound in their opinions by the limitations of the cases that rise to their review? As regards Heller, was the High Court required to consider only the Second Amendment because that was all that was advanced by Hellers' lawyer? If the U.S. Supreme Court is truly Supreme, then it seems to me that in a case dealing with a subject pertaining to the Bill of Rights that the Justices should take as wide-ranging, exhaustive and comprehensive a view as needed in order to fully resolve the issue(s) at hand. Again, I admit ignorance. Perhaps the Justices must bake their cakes with only the ingredients provided them from below.
In closing, my conclusion is that the Supreme Court got it wrong in D. C. v Heller. Both the Majority and Dissenters simply did not do their homework in regards to the fundamental nature of America, the original purpose and intent of the peoples' ancient right to a “well regulate Militia” (clearly declared in the Preamble of the Second Amendment), and the true purpose of a citizens' bill of rights in a free Society. This was compounded by the almost total neglect of the Ninth Amendment since it's ratification in 1791.
It is for us, the living, rather, to be dedicated here to the unfinished work which they who fought here, have, thus far, so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us that from these honored dead we take increased devotion to that cause for which they here gave the last full measure of devotion that we here highly resolve that these dead shall not have died in vain that this nation, under God, shall have a new birth of freedom and that government of the people, by the people, for the people, shall not perish from the earth. (emphasis added)
Pres. Abraham Lincoln
Gettysburg Address, 1863
IN our future commentaries upon the constitution we shall treat it, then, as it is denominated in the instrument itself, as a CONSTITUTION of government, ordained and established by the people of the United States for themselves and their posterity. They have declared it the supreme law of the land. They have made it a limited government. They have defined its authority. They have restrained it to the exercise of certain powers, and reserved all others to the states or to the people. It is a popular government. Those who administer it are responsible to the people. It is as popular, and just as much emanating from the people, as the state governments. It is created for one purpose; the state governments for another. It may be altered, and amended, and abolished at the will of the people. In short, it was made by the people, made for the people, and is responsible to the people. (emphasis added)
Justice Joseph L. Story, LL. D.
Commentaries on the Constitution of the United States, Book 3, Chapter 5 at § 397
Hilliard, Gray & Co., Boston, 1833.
Young, David E.
The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787 - 1792 (Second edition)
Ontonagon: Golden Oak Books, 1995
Kammen, Michael
The Origins of the American Constitution: A Documentary History
Penguin Books, 1986
Farrand, Max
The Records of the Federal Convention of 1787
Farrand's Records (1911)
Library of Congress website
Story, Joseph, LL. D.
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
Commentaries (1833)
Lonang Institute website
Hamilton, Jay & Madison (writting as “Publius”)
The Federalist Papers
The Federalist (1788)
U.S. Congress website
The Founders' Constitution
Presented online by the University of Chicago
The Founders' Constitution
Rep. James Madison's original proposal for amendments, presented in the House on June 8, 1789:
Madison to the House
McDonald v Chicago (at page 742)