Americans view liberty as a birthright guaranteed by a written Constitution and Bill of Rights. Feeling overly secure in their liberties, most cannot imagine any branch of the federal government abrogating constitutional rights such as the freedom of the press or of assembly. These First Amendment guarantees are enshrined in the Bill of Rights in clear, unmistakable language.
Moreover, in interpreting the Constitution, the judiciary often has a tendency to expand enumerated rights rather than to restrict them. For example, the Supreme Court has gone so far as to use the “penumbras” and “emanations” from the Third Amendment’s prohibition on quartering troops to strike state laws regulating contraceptives.
Freedom and written constitutional guarantees, however, should not be taken for granted. On June 26, the Supreme Court came within one vote of erasing the Second Amendment from the Bill of Rights. This amendment, of course, reads as follows: “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 plain language recognizes a personal right, belonging to “the People,” to possess firearms. Through legal legerdemain, gun-control advocates and four justices sought to limit the Second Amendment to military service.
District of Columbia v. Heller was a challenge to Washington, D.C.’s total ban on possession of usable handguns in the home. Under the district’s laws, it is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. Registered long guns kept in the home must be unloaded and disassembled or bound by a trigger lock. The result is that citizens have no legal means of defending themselves, should an intruder enter their residences.
In a 5-4 decision written by Justice Antonin Scalia, the Court struck down the D.C. gun laws and held that the Second Amendment is “an individual right having nothing whatever to do with service in a militia.” Justice Scalia traced the origin of the right to bear arms to Great Britain, where the eminent jurist William Blackstone in 1765 recognized that it was “the natural one of resistance and self-preservation.” In his Americanization of Blackstone’s Commentaries, St. George Tucker noted that the Second Amendment permitted a citizen to “repel force by force” when “the intervention of society in his behalf, may be too late to prevent injury.”
Justice Scalia further noted that history taught the founding generation that tyrants sought to oppress the people not by banning militias, but by taking away the people’s arms, enabling a select militia, or raising a standing army. Anti-Federalists feared that the new federal Congress would use its power to organize, arm, and discipline the militia to create a select militia or to ban it outright. Thus, to guard against these possibilities, the Second Amendment was added to the Constitution and cannot be viewed as a corporate right associated with military service.
Scalia opined that, “if [the district and mayor] are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation.”
In other words, a corporate right associated with military service would not have addressed Antifederalist criticisms and would have done nothing to limit federal power. Under the district’s interpretation, the Second Amendment would have been a meaningless, cosmetic addition to the Bill of Rights.
Heller is being described as one of the most important Court decisions of the new century. While it is a landmark case and the Court reached the right result, Americans should not forget that this was a 5-4 decision. Four justices of the Supreme Court would have ignored the plain language and historical context to permit the disarming of the citizenry. Believing themselves at liberty to rewrite fundamental law, these justices would leave Americans at the mercy of street thugs and federal tyranny. The efforts of the four dissenting justices should alarm Americans and remind them that constitutional liberties are not as secure as they might think.