Gun Control Debate, Part III: Is it time to Amend the Second Amendment?

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.

It may surprise some of you, but in the two hundred and twenty one years the Second Amendment has been part of our Constitution, the Supreme Court has delivered only six decisions dealing directly with the Amendment. While there have been numerous lower court rulings, as well as a number of cases where the Second Amendment was referenced, only six cases form the basis of how this law is interpreted directly by the highest court in the nation. A seventh case, Miller v. Texas (1894) was dismissed due to a lack of a Federal Question. A third of these cases have been decided in the last five years. Prior to 2008, you have to go back to 1939 to find a case that directly questioned the Second Amendment. Here are the cases:

United States v. Cruikshank (1875)
Presser v. Illinois (1886)
Robertson v. Baldwin (1897)
United States v. Miller (1939)
District of Columbia v. Heller (2008)
McDonald v. Chicago (2010)

 In the first case, US v. Cruikshank, the court found that:

The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.

In Presser v. Illinois, the court said the Second Amendment:

is a limitation only on the power of Congress and the national government, and not of the states. But in view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the states cannot prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security.

But that:

It shall not be lawful for any body of men whatever other than the regular organized volunteer militia of this state and the troops of the United States to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of this state without the license of the Governor thereof, which license may at any time be revoked

In Robertson v. Baldwin, the Court found:

the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons

And in the only case of the 20th Century, United States v. Miller, the court said:

 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.

Up to this point, the court had said, in regard to the Second Amendment, that the Federal Government can't infringe the rights of the States, that the states can not prohibit bearing arms for public safety, that only the State organized militia can drill or parade with arms without the license of the Governor, that prohibiting concealed weapons did not infringe upon one's Second Amendment Right, and that weapons not used in the militia are not protected under the Amendment.

I find a few things interesting here. First, that of these first four cases, two address the Second Amendment in regard to how it relates to the militia. The first clause of the Amendment is directly related to the second. Secondly, two of the cases speak to restrictions on arms that do NOT infringe on the rights provided within the Amendment. So, according to these rulings, bearing arms was considered in direct relation to the primary purpose of serving the militia. A right to bear arms was not guaranteed, except in service of the militia.

In United States v. Miller (1939) the decision goes on to say:

The Constitution, as originally adopted, granted to the Congress power --

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

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.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.

This speaks directly to what we now call the National Guard, Citizen Soldiers. A citizen may possess a firearm that can be used for the common defense, but if the common defenders (militia) don't use such a weapon, there is no reason for it to be protected within the Second Amendment.

It is important to note that US v. Miller was a direct result of the National Firearms Act of 1934 that, rather than attempting to ban certain types of weapons, levied a $200 tax on each firearm named in the Act, in this case, sawed off shotguns and machine guns, and required owners or anyone transferring such a weapon to register and pay the tax. Failure to comply with this tax could result in a $2,000 fine and up to five years in prison.

When the Court ruled unanimously in US v. Miller, they provided an out around this taxation end-run around the Second Amendment. You might be interested to know that the $200 tax amount has not changed since 1934. So, if you file the necessary paperwork with the ATF, register, and pay the tax, you can own a machine gun, made prior to May 19, 1986, when the Firearm Owners Protection Act finally outlawed civilian ownership of these weapons. You will hear many people say that owning a machine gun is illegal. This is only the case where states have specifically outlawed it, and for guns made after May 1986. Currently, only five states, California, Delaware, Hawaii, New York, and Washington have bans, as well as the District of Columbia. So, if you find yourself an owner of a pre '86 machine gun willing to transfer ownership to you, and you don't live in one of those states, you are good to go. What was I saying in my last post about the problem of grandfather clauses?

Now let's jump to a more recent Supreme Court Case, District of Columbia v. Heller. Here is the court's summary of the case presented:

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and disassembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

And this was their 5-4 decision:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. (c) The Court’s interpretation is confirmed by analogous arms- bearing rights in state constitutions that preceded and immediately followed the Second Amendment. (d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. (f) None of the Court’s precedents forecloses the Court’s interpre- tation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual- rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.

 The court appears to be saying that even though the Second Amendment has two clauses, they are independent of one another and then goes on to attempt a justification of this reasoning. Also note that the Court uses the term "individual" not "people". My question is, if this is the case, why are the clauses not their own sentences? Why are they connected? Just as US v. Miller's justification, cited in this ruling, was quite thin, so too is this justification of a separation of the clauses.

I guess I am not surprised at the Court's ruling. It seems that this interpretation, that the Second Amendment means an individual has a right to bear arms, independent of any need of the common defense, has been growing in popularity over the past several decades. In fact, this interpretation is likely the most common one you will hear from anyone lobbying against gun control.

If this is the case, then an individual should also have the right to bear whatever weapon they so choose. Strangely though, immediately following the above ruling, the Court added this:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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 fire- arms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

They seem to want it both ways. Unlimited individual freedom, yet limited by some precedence. In McDonald v. Chicago (2010), the court found that the individual right in the Heller case also applies to the states. States may not bar an individual from owning a firearm either, though one presumes that whatever limits exist do apply to the states as well. Whatever those might be.

It seems clear that the current court, with these 5-4 decisions, thinks that individuals, aside from convicted felons and the mentally ill, have the right to bear arms regardless of Federal or State restrictions. And while they acknowledge certain limits, those limits seem very nebulous. I wonder how long they will stand. In this regard, the final line above is rather disturbing: 'the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.' In common use at what time? At the time the Amendment was ratified? At the time of the decision? Now? Weapons in common use in 1939 are certainly not the same as they are now. How can we have this both ways? If the Court means whatever is common now, then how do we define common? Common in the militia and military? Common in civilian use? And why isn't this set? Won't feature creep, as manufacturers add new weapons, redefine what is common over time? And what constitutes dangerous and unusual? I am not a lawyer, but if this is the basis of the restrictions, I'm fairly certain I can make a good case for why I should be able to own and bear any weapon my local National Guard has in common use in their arsenal.

And so, this is where I stand. If the two clauses are really independent of one another, if the first part is just a preface that has no limit or bearing upon the later, as the current court suggests, then there is really no need for the prefatory clause. Why doesn't the amendment simply read "The right of the people to keep and bear arms, shall not be infringed"? Why do we have a preface at all? Ultimately, if the individual's rights are what is important, then I should be able to own whatever arms I want.

Because of this slippery slope, and because I think it is clear that the Second Amendment was poorly written, I think it is time we examine what it should mean and make it clearer. I think it is likely that the Supreme Court has so few rulings on the Second Amendment, not because there aren't questions about it, but because they saw how nebulous it was and avoided it at all costs. We should have a conversation about what it means, what it should mean, and then amend it to be perfectly clear. If we want to ensure that we have militias AND individual rights, but with limitations, we can do that.  What should those limits be? If the NRA had its way, we would not have individual limits, but it is clear that most Americans feel some limits are necessary.

Here are the results of a recent Pew Center Poll about Gun Control.  I was quite surprised by the results of this poll. The NRA would have us believe that the public does not support any gun restrictions, yet this clearly indicates that a vast majority favor most of the current proposals made by the Obama Administration, and even more surprising to me is that nearly 60% of the respondents favor a ban on Semi-Automatic weapons.

These results are largely supported by this Washington Post / ABC Poll though the number slips to 51% when asked specifically about banning semi-automatic handguns.

If these numbers can be trusted, then I think we have reached a true tipping point toward the eradication of civilian semi-automatic weapons. In this regard, we can learn something from how Australia did exactly this in 1996.

After a massacre in Port Arthur, Tasmania, in April 1996, where 35 people were killed and 23 wounded, the Australians passed a comprehensive gun control law titled the National Firearms Agreement. The law covered nearly every aspect of gun control, expressly banning all semi-automatic rifles, and created a nationally integrated licensing and registration system. After shootings in 2002 involving handguns, that had not been banned in 1996, they passed an additional bill that placed severe restrictions on handguns, banning all semi-automatic handguns with barrels shorter than 120mm and limiting all handguns to .38 caliber.

Such wide reforms met with some resistance, particularly within a few provinces. The pro-gun lobby exerted considerable force against the bills, but then a funny thing happened, citizens in favor of the controls discovered that two USA groups were funneling resources into the campaign to kill the legislation: The Christian Coalition and the NRA. Once this information was disclosed to the public, opposition to the controls dried up and the bills were passed.

The Australians helped solidify the new law by embarking on a massive weapons buy back program. In one year, from the fall of 1996 to the fall of 1997, the Australian Government bought back about 640,000 weapons. Part of the program also compensated gun shop owners for loss in revenue. You will notice that there was no grandfather clause in the 1996 ban either. The people were given one year to comply and use the buy back program to dispose of their banned weapons.

The homicide rate in Australia peaked in the 70's and has been declining since then. They had a rate of 1.9 total homicides per 100,000 people in 1990-91 and a rate of 1.2 in 2010.

Looking at homicides from firearms presents an even more drastic picture.  The year prior to the 1996 massacre, there were .37 gun related homicides per 100,000 people, and since the 1996-1997 gun buy back, the rate has plummeted, and was only a third of the 1995 rate in 2010, just .13 per 100,000. In 2004-2005, it was even less.

I have no illusions that such a program has much of a chance in the United States, but if the goal is actually to reduce gun related deaths, this is the model to use. Our country has changed a great deal since the drafting of the Second Amendment. We have the most skilled and capable Armed Forces in the world. We have proud and capable citizen soldiers in every state, and arguably the most extensive police force in the world. Banning semi-automatic weapons from civilian use will neither threaten our national or state security, nor prevent hunters like me from tromping through the woods with my rifle.

I'm sure many will argue that individuals need to have the ability to bear arms to prevent a tyrannical government from suppressing the people. I have attempted to use this argument myself and found that it simply does not hold water. Our military, militia, and police forces have far more powerful arsenals than any individuals ever will. If you want to take your AR-15 up against an apache helicopter, well, I guess you can try. Just remember that Red Dawn is a fictitious movie, not a documentary.

In researching the information about Australia's Gun Control Policies, I was surprised to find that a certain Rupert Murdoch agrees with me on this. Yes, that Rupert Murdoch. On the day of the Sandy Hook shooting, he tweeted this:

Rupert Murdoch ‏@rupertmurdoch

Terrible news today. When will politicians find courage to ban automatic weapons? As in Oz after similar tragedy.

Perhaps we'll be seeing pro gun control material on Fox News.