“Since the Supreme Court’s landmark decisions in District of Columbia v. Heller  and McDonald v. City of Chicago  announced that the Second Amendment guarantees an individual right to keep and bear arms and incorporated that right against the states, courts and scholars have struggled to determine the reach of those opinions” (Meltzer 2014).
Heller and McDonald held that citizens have a right to keep handguns in the home. Left in question was the rights of individuals to carry guns outside the home, and whether or not they could be concealed. Over the last few years since Heller and McDonald, dozens of challenges to gun regulations have been brought forward. “The issue is extraordinarily important to proponents and opponents of gun rights alike. For proponents, the only way to truly vindicate the right to self-defense is to allow law-abiding citizens to carry firearms on their person. According to opponents of gun rights, an individual right to carry would constitutionalize extreme behavior, allow for vigilantism, and undermine public safety” (Meltzer 2014).
TWO POINTS OF VIEW
“The debate has resulted in odd political alignments which in turn have caused the Second Amendment to be described recently as the most embarrassing provision of the Bill of Rights” (Vandercoy 1994). Embarrassing, because people who might be 100% behind freedom of speech, ready to defend it against government encroachment, along with defense of all other rights in the First, Fourth, Fifth, and Sixth Amendments – are reticent to defend the 2nd amendment with the same vigor, if at all.
Following Heller and McDonald, lower courts have been left to decide how far the right to gun ownership extends:
“Some have taken after Heller, conducting significant historical analysis to determine the extent of the Second Amendment right outside the home. Others have concentrated on tiers of scrutiny, weighing the benefits of the gun regulation at issue against its intrusion on the right to keep and bear arms. Others still have refused to extend the right outside the home absent further instruction from the Supreme Court” (Meltzer 2014).
According to Judge Wilkinson in United States v. Masciandaro, “[t]he whole matter [of the right to carry outside the home] strikes us as a vast terra incognita that courts should enter only upon necessity and only then by small degree.” The Court of Appeals of Maryland agreed, stating, “[i]f the Supreme Court . . . meant its [Heller] holding to extend beyond home possession, it will need to say so more plainly.” (Meltzer 2014)
However, other courts, using the same historical examination of evidence that was used in Heller, have found that United States citizens do have a right to carry their guns outside of the home, while a third set of courts has ruled that while carrying a gun is legal, it must be ‘open carry.’ Concealment isn’t allowed” (Meltzer 2014).
Both the Second and Tenth Circuit Courts, while agreeing the right to carry exists, have issued opinions denying the right to ‘concealed carry.’ They came to their conclusions following “extensive historical evidence regarding limitations on the right to carry” (Meltzer 2014).
Many scholars agree and continue to argue that the Second Amendment does not bar reasonable regulation of guns. A 1995 paper published in the Boston University Law Review laid the foundation for pro-regulation arguments. “Viewing the Second Amendment as an absolute barrier to firearms regulation is like the assertion that the First Amendment’s Free Speech Clause absolutely prohibits any speech regulations,” argued Andrew Hertz in his 1995 paper, ‘Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility,’ published in the Boston University Law Review.
Hertz painted the pro-gun lobby as the deceitful root of the public’s fear of regulation. “Out in the heartland, the “right to bear arms” resonates in the hearts and minds of a very vocal and active portion of the American public. Nurtured if not conditioned by the gun lobby’s barely-challenged drumbeat of propaganda, these people believe in the “right” — constitutionally or divinely ordained — to bear arms against brutal thugs and feds” (Herz 1995).
Erwin Chemerinsky also seemed to mock the constitutional argument concerning the bearing of arms against brutal feds. He said;
“… [It] seems silly. With the possible exception of the Civil War, never in the 217- year history of the United States have people needed guns for this purpose. If ever there were a truly tyrannical government in the United States, it is highly questionable that individuals having their own guns would make much difference. Interestingly, Robert Bork put this best when he said: “The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government. Now that the federal government has stealth bombers and nuclear weapons, it is hard to imagine what people would need to keep in the garage to serve that purpose. “The incredibly remote chance that guns might be helpful against a tyrannical government hardly seems a reason to accept the tremendous human costs of guns” (Chemerinsky 2004)
Herz’s paper, written years before the Supreme Court took on Heller, went so far as to deny a constitutional right to own guns exists. “Indeed, constitutional false consciousness has claimed fair-minded gun-lobby analysts like Osha Gray Davidson, and even ardent gun control activists like Handgun Control, Inc. presidents — both Pete Shields and Richard Aborn have spoken of the mythical “right to bear arms” (Herz 1995), and yet, according to Hertz, “courts have consistently found that the Second Amendment guarantees a right to bear arms only for those individuals who are part of the ‘well-regulated Militia’…there is no right to bear arms for self-defense, hunting, or shooting competitions, much less arsenal-building in preparation for resistance of potential domestic tyranny” (Herz 1995)
Hertz referred to the gun culture as “…a disease, just as surely as drug and alcohol abuse are societal diseases” (Herz 1995). He concludes the paper ‘Gun Crazy’ with a warning that continuing to entertain the gun lobby will result in the “sacrifice more than one hundred men, women, and children every day on the altar of exaggerated firearms freedoms” (Herz 1995).
Hertz was proven wrong in 2008 with the Supreme Court ruling in Heller, but his attack on the integrity of those who supported the constitutional right to own guns remains today. At the least, there remain many who want to work around the constitution to create the regulation they desire.
“One way that the Court could affirm a personal right to self-defense without constitutionalizing open carry would be to evaluate the right to self-defense through a wider frame… narrow reading of the antebellum case law should lead the Court to find that only open carry is constitutionally protected. But by widening its scope, and instead finding that the nineteenth-century case law stands only for the existence of an individual right and nothing more, the Court could then fashion that right as it saw fit—as requiring an alternative outlet, for example” (Meltzer 2014).
“A second way the Supreme Court might escape enshrining a right to open carry would be to simply insert ahistorical reasoning into a case otherwise reliant on history. The Court would have a particularly good model for such a maneuver: Heller itself. …Washington, D.C.’s handgun ban posed something of a problem for the majority in Heller, seeing as the framers of the Second Amendment undoubtedly had long guns in mind in 1791. To avoid this problem, the Heller Court determined that because handguns were the overwhelming choice of modern-day Americans for use in self-defense, they should receive protection under the Second Amendment… the Court had no trouble making these thoroughly modern accommodations” (Meltzer 2014).
Contrary to the assertions of Hertz, “Research conducted through the 1980s has led legal scholars and historians to conclude, sometimes reluctantly, but with virtual unanimity, that there is no tenable textual or historical argument against a broad individual right view of the Second Amendment” (Barnett and Kates 1996).
What the research has shown is that “…the original intent of the Second Amendment was to protect each individual’s right to keep and bear arms, and to guarantee that individuals acting collectively could throw off the yokes of any oppressive government which might arise. Thus, the right envisioned was not only the right to be armed, but to be armed at a level equal to the government” (Vandercoy 1994).
The history of the Second Amendment reveals the critical reasons our forefathers knew the amendment to be necessary. “Eighteenth-century commentators frequently discussed the evils of standing armies.’ …In free states, the defense of the realm was considered best left to citizens who took up arms only when necessary and who returned to their communities and occupations when the danger passed. Standing armies were viewed as instruments of fear intended to preserve the prince’” (Vandercoy 1994).
“By the end of the Tudor period, the citizen army or militia concept had become a fixed component in English life. The period’s commentators attributed English military successes to the universal armament practice prevalent in England but absent on the continent…Historians suggested that English universal armament caused a moderation of monarchial rule and fostered individual liberties because the populace had in reserve a check which soon brought the fiercest and proudest King to reason: the check of physical force” (Vandercoy 1994).
Various abuses by King James brought the 1689 English Parliament to insist the current sovereigns, William and Mary, sign a Declaration of Rights restricting their powers. “The declaration set forth the positive right of Protestant subjects to have arms for their defense, suitable to their conditions, and as allowed by law. The Declaration did not create a new right. The English had been able to possess individual arms for centuries and at times were required to keep them. Nevertheless, the debates attending the Declaration make clear that Parliament thought the right should be recognized as a right of individuals” (Vandercoy 1994). The first draft stated: ‘[I]t is necessary for the Publick Safety, that the Subjects which are Protestants, should provide and keep Arms for their common Defence. And that the Arms which have been seized, and taken from them, be restored.’ …The final version read: “[T]hat the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.”‘ The term “as allowed by law” was not a limitation on possession, but a limitation on use” (Vandercoy 1994).
“…The essence of republican thought was that a citizenry could rule itself without the paternal guiding hand of a monarch.” One of the leading republican theorists was James Harrington.” Harrington’s beliefs were simple and direct. He believed that ownership of land gave people independence’” (Vandercoy 1994)
“…Harrington also believed that the actual independence attained would be a function of the citizen’s ability to bear arms and use them to defend his rights” and “that an armed population is a popular government’s best protection against its enemies, both foreign and domestic” (Vandercoy 1994, 1021).
This background to the Second Amendment has been available for all to read, including those critics denying the purpose of the Second Amendment. Constitutional Attorney Rob Natelson states, “We can understand what it did and didn’t include by examining the history of the Founding. It has always bothered me that so many judges and constitutional writers merely speculate about what First and Second Amendment rights mean, rather than going to the historical records and finding out” (Natelson 2013).
At times, these critics appear to have purposefully distorted the history and facts. Professor Randy Barnett writes, “Gun Crazy portrays the near-unanimous scholarly literature as “pro-gun lobby” propaganda. One of Gun Crazy’s tactics is to reject twenty-five law review articles defending the individual right view as biased per se. These are articles by nonacademics whom Gun Crazy identifies as employees of the NRA and other pro-gun groups or whom Gun Crazy denigrates as “[g]unrights litigators and activists,” “leading gun-rights litigators and lobbyists,”” and “warhorses.”” At the same time, Gun Crazy derives its substantive arguments on the Second Amendment from the handful of articles on the other side which it cites without ever informing readers that their authors are officers or paid employees of anti-gun groups” (Barnett and Kates 1996).
In addition to an honest study of history, scholarly parsing of the text is necessary for a correct understanding of the amendment. Natelson states, “In recent years, people offering answers to that question have often focused on the militia part of the Second Amendment: “A well-regulated militia being necessary for the security of a free state. . .” But…The militia phrase is … a “preamble”—a non-binding explanation of intent. It is not the effective, or operative, part of the amendment. In other words, it is only a guide to interpretation, not the actual law. The actual law is “the right of the people to keep and bear arms shall not be infringed” (Natelson 2013).
He goes on,
“First, it refers to ‘THE right of the people to keep and bear arms.’ Like ‘the freedom of speech’ and ‘the freedom of the press’ in the First Amendment. The Founders were referring to a right already existing before the Constitution was ever adopted. In the Founders’ view, it was a natural right, given by God and not to be impaired by government. On the contrary, it was a right that government must guarantee” (Natelson 2013).
Natelson takes it to the furthest end of the spectrum from Herz, stating, “Today, political demagogues talk about imposing “common-sense” or “reasonable” restrictions on the right to keep and bear arms. But the Constitution, properly understood, is clear that there are NO permissible restrictions on the right, however much the politicians may think they are “common sense” or “reasonable.” (Natelson 2013).
“…The Second Amendment cannot be limited to muskets and flintlocks any more than the power of Congress to regulate interstate commerce can be limited to trade in sailing ships and horse-drawn wagons. Even an old-fashioned constitutionalist like myself believes that Congress can use the Commerce Power to regulate railroads and air travel, although those forms of travel did not exist when the Constitution was ratified. Otherwise, the Commerce Power would mean nothing. For the same reason, the right to keep and bear arms must include the free use of modern technology appropriate for self-defense” (Natelson 2013).
The Second Amendment of the United States Constitution states that: “A well-regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed”
According to David Vandercoy, our forefathers understood two things from English history: standing armies were beholden to the government and therefore, a threat to liberty. That said, the only true check on a tyrannical government is an armed populace. “… the public purpose of the right to keep arms was to check government, the right necessarily belonged to the individual and, as a matter of theory, was thought to be absolute in that it could not be abrogated by the prevailing rulers. These views were adopted by the framers, both Federalists and Antifederalists…The intent was not to create a right for other governments, the individual states; it was to preserve the people’s right to a free state, just as it says” (Vandercoy 1994).
Rob Natelson agrees,
“The author of the first draft of the Second Amendment was James Madison. Madison’s favorite book of political theory was Aristotle’s Politics. Several times in that work Aristotle makes the point that all citizens should have weapons, and that only those with weapons should be citizens. Otherwise, he wrote, those that are disarmed are the slaves of those who are armed” (Natelson 2013).
Men have understood this all the way back in ancient times, In Nehemiah, 4:17-18, “Those who built on the wall, and those who carried burdens, loaded themselves so that with one hand they worked at construction, and with the other held a weapon. Every one of the builders had his sword girded at his side as he built…” They each kept a weapon handy for defense.
Lastly, this concept has always been understood by tyrannical governments. One of the first thing Hitler did was disarm his populace. Men who want control over other men – disarm them.
“The widespread ownership of firearms, therefore, helps to preserve freedom, usually without the need for armed violence. When politicians limit or harass gun ownership, the threat is far wider than the threat to guns alone. By reducing the number of citizens who are armed, gun control emboldens the authoritarian politicians to control everything else we do, thereby imperiling freedom generally” (Natelson 2013).
Barnett, Randy E., and Don B. Kates. “UNDER FIRE: THE NEW CONSENSUS ON THE SECOND AMENDMENT.” Emory Law Journal (Georgetown Law Library) 45 (Fall 1996): 1139-1259.
Chemerinsky, Erwin. “Putting the Gun Control Debate in Social.” Fordham Law Review 73, no. 2 (2004): 477.
Herz, Andrew D. “Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility,.” Boston University Law Review 75 (1995): 57.
Meltzer, Jonathan. “Open Carry for All: Heller and Our Nineteenth-Century Second Amendment.” The Yale Law Journal 1123, no. 5 (2014): 1118-1625.
Natelson, Rob, interview by The Tenth Amendment Center. The Founders and the 2nd Amendment (3 23, 2013).
Vandercoy, David E. “THE HISTORY OF THE SECOND AMENDMENT.” Valparaiso University Law Review 28 (1994): 1007.