Does the Second Amendment Give People the Right to Own Any Type of Gun They Want?

It is not surprising that a reason some people today own AR-platform or “military style” rifles – sometimes MANY of them — is “because they can.” Recall that 2% of respondents in a 2013 Pew Research Center poll said the primary reason they owned guns is because it is their Constitutional right – the same percentage as gave collecting as a primary reason.

But it does raise the question of what is permissible under the Constitution of the United States. Does the Second Amendment to the Constitution give people the right to own any type of gun they want?

PRELIMINARY: This post is about what the Supreme Court of the United States (SCOTUS) said in its 26 June 2008 decision in Heller v. District of ColumbiaYou can disagree with the Heller decision, like New Yorker writer Adam Gopnik who two days ago called it “absurd.” SCOTUS has been wrong before (e.g., Dred Scott), but for now at least the Court has spoken.

RESOURCE: Those wanting a single book that covers the history of guns in America in the context of a compelling story about the Heller decision should read Adam Winkler’s Gunfight: The Battle over the Right to Bear Arms in America.

DISCLAIMER: I am not a Constitutional lawyer any more than I am a gunsmith or psychiatrist or proficient shooter. I am trying to provide the clearest and most accurate information possible as I understand it. Comments and corrections are always welcome.

“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.”

 

A Pre-Existing Right

The phrasing of the question motivating this post is significant because the language of the Second Amendment does not GIVE people the right to keep and bear arms (RKBA) but acknowledges the right already exists and shall not be infringed.

Whether or not you believe the right is God-given, the right to bear arms does have historical roots that precede the founding of the United States. According to William Blackstone’s 18th century Commentaries on the Laws of England, “the right of having and using guns for self-preservation and defense” is encoded in the English Bill of Rights. It is an “auxiliary” right necessary for secure other more basic rights: “personal security, personal liberty, and private property” (Winkler, Gunfight, p. 102). According to Winkler, “The founding fathers borrowed liberally from the English Bill of Rights,” including the 1st, 5th, and 2nd amendments (p. 102).

Heller v. DC: The Right to Keep and Bear Arms is an INDIVIDUAL Right

SCOTUS has not decided many Second Amendment cases. The Heller decision is significant because it for the first time argued that the RKBA is an individual right, connected to personal defense and not simply the common defense as part of militia service.

I find two arguments for the individual right position compelling:

(1) Three of the first four amendments to the Constitution found in the Bill of Rights refer to “the right of the people”:

Amendment I – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment IV – The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In Amendments I and IV, these are clearly interpreted as individual rights.

(2) 44 out of 50 states have Constitutional provisions protecting the right to keep and bear arms. (The 6 states with no Constitutional provision are: California, Iowa, Maryland, Minnesota, New Jersey, and New York.) Only 5 of the 44 states with RKBA provisions make any reference to “militias.” Among the earliest is Pennsylvania, which declared more directly in 1790: “The right of the citizens to bear arms in defence of themselves and the State shall not be questioned” (Art. 1, § 21). Connecticut used similar language in 1818: “Every citizen has a right to bear arms in defense of himself and the state” (Art. I, § 15).

The Right to Keep and Bear Arms is NOT UNLIMITED

In Heller, also for the first time, the Supreme Court declared a law violated the Second Amendment.

At the same time, the right affirmed is not unlimited. The relevant language of the decision follows with references deleted for ease of reading:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should 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.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

This clearly leaves the door open to all manner of restrictions on the right to keep and bear arms, including on “military-style” rifles and/or “high capacity” magazines.

For example, in April 2015, the 7th Circuit U.S. Court of Appeals upheld a Highland Park (Illinois) ordinance banning “assault weapons.” The Supreme Court declined to consider the case on appeal.

Similarly, the City of Sunnyvale (California) banned possession of handgun and rifle magazines holding more than 10 rounds with no grandfathering for those who already owned them in the city. In March 2014, SCOTUS Justice Kennedy rejected a request to block enforcement of the law pending appeal. The 9th Circuit Court of Appeals in March 2015 upheld the ban as not violating the Second Amendment.

So the issue is not the constitutionality of bans on certain types of guns, but the lack of political consensus in many localities, states, and Congress to do so.

 

5 comments

  1. Winkler’s book is a fine read. Here is a pretty good set of papers on the topic that traces the right of self defense back to England; IIRC, all the way back to the Norman invasion. All are downloadable as pdfs.

    http://scholarship.law.duke.edu/lcp/vol80/iss2/

    By the way, the DC circuit just threw out DC’s may issue handgun permit law, so there is now a circuit split on may issue, ie, the DC court threw out their law while the 9th Circuit upheld California’s in the Peruta case. This may end up at SCOTUS, as a circuit split is one of those times when it is hard for The Supremes to duck an issue.

    Liked by 1 person

    • And of course, the Founders thought that rights existed independently of the Constitution and thus the Bill of Rights was to enumerate some of those “natural rights” we have that were asserted by those philosophers during the Enlightenment. In other words, to keep government from usurping them. Its all a paradigm we take for granted.

      If governments exist to secure those natural rights, to paraphrase Jefferson, then there is some sort of balance to how government works to secure those rights while ensuring the “King’s Peace” which I would now suppose to be the “people’s peace”. (See Saul Cornell’s essay in the link.)

      Liked by 1 person

  2. Miller didn’t actually say “in common use” though. That’s a Heller mis-synopsis. Probably Kennedy driven.

    “In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time -has some reasonable relationship to the preservation or efficiency of a well regulated militia-, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary -military- equipment, or that its use could contribute to the common defense.”

    dashed emphasis mine

    Miller didn’t involve full auto, just a short-barreled shotgun, and Miller could not be found (had died?) prior to SCOTUS taking up the appeal, so no contrary evidence of the efficacy of SBS for militia use was presented to them.

    From the actual hodling though, it is clear that the defining characteristic for what the Miller court felt was Constitutionally protected was a reasonable relationship to usefulness as a militia weapon. It’s possible to argue about storage regulations (armories) for things with explosives involved, and definitely for restrictions on use to appropriate safe ranges, but it would be hard to argue that private ownership and possession (given the cites in that ruling about “expected to appear”) of the personal weapons of an infantry soldier (so true “assault rifles” like actual 14″ bbl M4’s) are not -explicitly- covered based on Miller’s true holding.

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    • Not only that, but short barrelled shotguns were apparently in common use in WW I infantry. I think Miller got it wrong with the details, but right with the overarching question, i.e., the 2A clearly justifies an individual right to keep and bear based on the militia concept, but got it wrong in defining the short barreled shotgun as irrelevant.
      https://en.wikipedia.org/wiki/Winchester_Model_1897#Military_use
      That said, it is hard to argue that AR type rifles should be banned based on Miller/Heller.

      Like

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