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Self-Defense and the Role of Government

Standing up for the Second Amendment


By Alastair Cleve

After America's War of Independence had been won, the country was in a desperate state. Wartime liabilities were haunting the Treasury, political order was descending into feudalism, and borders were under attack by Native Americans. The new Republic was fragile. Worse still, it was painfully clear that the Articles of Confederation were desperately weak. America needed a stronger central government, buttressed by real legal authority. What grew out of this need was the Constitution. While it gave the federal government much more authority than the Articles it replaced had provided, the Constitution nonetheless strictly limited the powers of Congress reserving all unenumerated powers to the people or the states. Despite the relative clarity of the document, however, the debate over certain sections still rages, and while Alexander Hamilton's objections to the inclusion of the Bill of Rights appear to be, in retrospect, remarkably prescient, the fact remains that the Bill of Rights exists and is the basis for a tremendous body of Constitutional law.


Of the Bill of Rights' provisions, perhaps none is as divisive in modern America as the Second Amendment: its meaning and significance are incessantly debated. Certain intellectual communities have even gone so far as to declare its death—a necessary externality of modernity. Because guns are implicated in homicide, the thinking goes, their distribution and sale ought to be heavily regulated—even restricted. I argue, however, that many of these points are moot. The effect of negative externalities of Constitutional rights is not an argument against those rights. I am not forbidden to use a racial slur, despite the potential negative externality of psychological harm. Likewise, I ought not be forbidden to own a gun, despite the potential for harm. In summary, Constitutional rights exist a priori; the Founding Fathers consciously removed them from the scope of government action. Consequently, they may not be infringed. It was with this in mind that the Supreme Court recently reaffirmed this fundamental American right.


On June 28, 2010, the Supreme Court of the United States made history when, in a 5-4 decision, it held that the Second Amendment is incorporated into the Due Process Clause of the Fourteenth Amendment such that the Second Amendment applies to the states. In Otis McDonald, et al. v. City of Chicago, Illinois, et al., 561 U.S. ___ (2010), the Court held that Chicago's gun registration law violated Otis McDonald's right to own a gun in his home for the purposes of self-defense. Justice Alito, in the majority opinion of the Court, held that the Second Amendment applied to the states through the Due Process Clause of the Fourteenth Amendment: namely that the Second Amendment could be considered fundamental to American liberty. In a concurring opinion, Justice Thomas argued that the Second Amendment was incorporated by the Privileges or Immunities Clause of the Fourteenth Amendment, an opinion that, if it had been held by the Court, would have overturned several important cases and dramatically redefined the relationship between the federal and State governments.


In order to understand the McDonald decision, we must understand the legal context in which the case arose. On March 18, 2008 the Court heard oral arguments in District of Columbia et al. v. Heller, 554 U.S. ___, concerning a 32-year old law which forbade citizens in the District of Columbia from possessing usable firearms in their home for the purposes of self-defense. On June 26, 2008, the Court struck down the law, holding that the Second Amendment protected Respondent Heller's right to keep a usable firearm in his home for lawful purposes such as self-defense. Mr. Heller was a special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. Heller filed a petition with the District of Columbia in order to maintain a gun in his home. When his petition was rejected, he filed a lawsuit in the Federal District Court for the District of Columbia seeking "to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibit[ed] the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibit[ed] the use of 'functional firearms within the home.'" Justice Scalia and the Court held the D.C. law unconstitutional.


The Second Amendment is divided into two clauses: a prefatory clause and an operative clause. The prefatory clause reads: A well regulated Militia, being necessary to the security of a free State. The prefatory clause, argued the petitioners in D.C. v. Heller, limited the scope of the operative clause, which reads: the right of the people to keep and bear Arms, shall not be infringed. This collective-rights argument rests on the understanding that the mention of the "Militia" in the prefatory clause limits the keeping and bearing of arms to militiamen only. The individual-rights argument, pushed by the respondent and supported by Justice Scalia, urges that this is not the case: rather, the prefatory clause merely provides a reason for the Second Amendment. As Justice Scalia pointed out, 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." Or, as legal scholar Nelson Lund has written: "Imagine if the First Amendment said, 'A well-educated Electorate, being necessary to self-governance in a free state, the right of the people to keep and read books shall not be infringed.' Surely no one would suggest that only registered voters (i.e., members of the electorate) would have a right to read."


What's more, Justice Scalia meticulously explored the meanings of each of the words of both clauses of the Second Amendment. The "right of the people," he argued, refers to an individual right. "Only individuals have rights," legal scholar Stephen Halbrook wrote, "while the United States and the states have 'powers.'" Consider other instances of the phrase the right of the people: it appears in the First Amendment and appears in the Fourth Amendment, which was itself meant to protect the First and Second Amendments. It also appears, in the plural, in the Ninth Amendment. "All four of these Bill of Rights guarantees protect individuals from government action; none of them delegate or reserve powers to governmental bodies," Halbrook writes. It is also worth mentioning that the phrase "the right" appears in the Sixth and Seventh Amendments, and, it is argued, the article the qualifies the right as preexisting. Halbrook comments: "It would be rather curious if 'the people' means only such persons as the government selects. To suggest that 'the right of the people' means only a command issued by a government to persons appointed by the government demeans the very nature of a bill of rights."


Justice Stevens asked whether "the people" of the Second Amendment really did mean the same thing as "the people" of the First and Fourth Amendments. The Court, Stevens argued, limited the scope of application of the Second Amendment to "law-abiding, able citizens," yet that same class of citizens is not similarly limited in the First and Fourth Amendments. However, what Justice Stevens forgot is that even irresponsible citizens have those rights. All sides admit that constitutional protections are not infinite, and "the people" of the First Amendment may not protect speech such as slander. If free speech does not include slander, then it is reasonable to suggest that "the people" of the Second Amendment does not include the right to keep and bear arms as a felon. Furthermore, the Second Amendment is not a protection against criminal investigation, like the protection against unwarranted search and seizure in the Fourth Amendment. Criminal rights are not the same as civil rights, and the Second Amendment clearly falls into the latter category.


The collective-rights analysis also fails a logical test: the logical fallacy of denying the antecedent. Legal scholar Stephen Halbrook explains:


Rephrasing the amendment as a conditional (hypothetical) syllogism, its first premise would state: If a well regulated militia is necessary to the security of a free state (p), then the right of the people to keep and bear arms shall not be infringed (q); that is, p implies q. If one then asserts p as a second premise, then the conclusion q would follow. Logicians speak of this syllogism as being valid by reason of modus ponens. Yet the denial of the antecedent, should it be expressed in the second premise, fails to imply the denial of the consequent in the conclusion; that is, even if a militia is not necessary for the existence of a free state, the people still have the right to keep and bear arms. To say that 'not p' implies 'not q' is to commit the logical fallacy of denying the antecedent.

In other words, the prefatory clause gives a reason for the operative clause, the substantive part of the Amendment. It does not limit it in any way. The denial of the prefatory clause does not have any effect on the truth of the operative clause.


Justice Stevens, in his dissent, argued for precisely the opposite: that the "Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated Militia." Stevens said "it was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States." A great part of Justice Stevens' argument rested on the Court's previous ruling in United States v. Miller, 307 U.S. 174 (1939), that the Second Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons." However, even if we read the Second Amendment as protecting only the right of the States to form militias, then the Constitution is silent on the subject of the individual right to keep and bear arms. In such a case, Congress is not empowered to regulate such activity. Furthermore, the Tenth Amendment would require that such regulation be relegated to the States only and not to the Federal Government. Nevertheless, in McDonald v. Chicago, the right to keep and bear arms was held to be incorporated into the Fourteenth Amendment such that States themselves cannot prevent citizens from keeping and bearing arms.


Prior to the American Revolution, the crown attempted to suppress gun ownership as a means of suppressing revolutionary sentiment. The colonists considered the right of keeping and bearing arms to be a natural English right: Britain was usurping their rights; they were not, in fact, attempting to assert new rights. Despite debates amongst the Founding Fathers about the necessity of including a Bill of Rights, there was wide-scale agreement as to the right embodied in the Second Amendment. Both Federalists, such as Hamilton and Adams, and Anti-Federalists, such as Jefferson, saw the right as inviolable—as preexisting. The Second Amendment merely states that this preexisting right shall not be infringed. Historically, the right itself was secured in 1689 against the abuses of the Stuart Crown, and Jefferson and the other anti-Federalists pushed for its enumeration as a right in the Bill of Rights as a measure to guard against usurpatory government similar to that under King George III. In U.S. v. Cruikshank, 92 U.S. 542 (1876), the Court wrote that the Second Amendment did not create a right to bear arms but rather recognized and guaranteed a preexisting fundamental human right. The question of the framers' day was not whether Americans should be allowed to keep and bear arms, but whether that statement should be explicitly stated in a Bill of Rights or left unmentioned.


It is often suggested by advocates of strict, unconstitutional gun control laws that such laws are needed to protect the people—that is, to promote the general welfare. The petitioners in Heller cited legislative history as a defense, which amounts to saying that once a right is transgressed, that transgression is automatically constitutional. Much of the current legislation on gun control can be traced back to the worst piece of legislation ever passed by Congress: the Eighteenth Amendment. The Eighteenth Amendment (1919), which established Prohibition, prevented the manufacture, sale, or importation of intoxicating liquors for thirteen years. It was repealed in 1933 by the ratification of the Twenty-First Amendment. Prohibition created the incentive for the creation of large black markets for the sale and consumption of alcohol. Given the illegality of alcohol, large cartels and organized crime families became involved. As is often the case, bad men use guns, and those bad men used many guns. Organized crime used lethal force, and, in response, serious legislation, beginning with the National Firearms Act of 1934, was passed in order to curtail the use of firearms. The Second Amendment had been severely bruised by the Eighteenth Amendment.


With the repeal of Prohibition, alcohol was legal, and market forces were allowed to clean up the liquor industry. Despite this, however, organized crime persisted. The negative externalities of Prohibition still needed to be addressed. As is often the case, Congress authorized progressively stricter gun control legislation in an attempt to curtail gun violence. Rights were no longer relevant. Nevertheless, a new war has been initiated: the war for the recovery of that preexisting right: the right to keep and bear arms. In 2008, the Court held that Mr. Heller had the right to own a gun in his home, enforceable against the federal government. And, finally, in 2010, the Court held that Mr. McDonald also had that same right, fundamental and enforceable against state and city. The Second Amendment was now incorporated. Writing for the McDonald Court Justice Alito defended liberty:


Two years ago, in District of Columbia v. Heller, we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia's, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.