In the aftermath of the recent shootings in Orlando, the public discourse over gun control and the Second Amendment to the Constitution has once again taken center stage. While politicians and pundits on both sides of the issue are quick to comment, my perception is that an understanding of the basic premise of the debate may be lacking. Perhaps the following will help put the difficult questions in context.
The first ten amendments to our Constitution, the Bill of Rights, seek to protect individual liberty, while restricting the power of government. Our Constitution, including the Bill of Rights, is the yardstick against which all of our laws are to be measured. While it is the function of our duly elected legislature to enact those laws, it is the duty of the Supreme Court to determine whether or not those laws are valid under our Constitution. The Supreme Court does so by interpreting and applying the Constitution to the facts of specific cases that are brought before the Court. Those decisions, interpreting and applying the Constitution, comprise our ever growing body of Constitutional law.
The Second Amendment to the Constitution (ratified on December 15, 1791), states 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.”
That’s it, in its entirety: 27 words. Telling you what the Second Amendment says is easy. Telling you what it means is much more difficult. While early Supreme Court cases have interpreted the term “militia” to mean individuals (not merely collective militias), other decisions have made it clear that government does have the right to regulate the manufacture, ownership and sale of firearms. Two fairly recent cases help to add context to the debate.
The first case is The District of Columbia v. Heller, which was decided by the Supreme Court on June 26, 2008. At issue in the Heller case was what the Court described to be a total prohibition on the possession of a handgun in one’s home. The Heller decision established a number of things, including that: 1) the Second Amendment protects an individual right to keep and bear arms; 2) the Second Amendment right to keep and bear arms is not unlimited — it is not a right to keep and carry any weapon whatsoever in any manner whatsoever for any purpose whatsoever; and 3) the District of Columbia’s total ban on handgun possession amounted to a prohibition on an entire class of “arms” (handguns) that Americans overwhelmingly choose for the lawful purpose of self-defense. For these and other reasons, the Court decided that the District of Columbia’s prohibitions went too far and were unconstitutional.
The second case, McDonald v. City of Chicago, was decided by the Supreme Court on June 28, 2010. McDonald dealt with laws enacted in Chicago, and a number of Chicago suburbs, that effectively banned the possession of handguns by almost all private citizens. The plaintiffs in McDonald challenged such laws under the Second and Fourteenth (the Due Process Clause) amendments to the Constitution. The Supreme Court in McDonald ruled that under the due process clause of the Fourteenth Amendment, the Second Amendment protections announced in the Heller decision applied to individual states. In other words, state governments cannot enact restrictions more onerous than what the federal government might do.
The gun control debate is emotionally charged, with strong and persuasive opinions and arguments on both sides of the issue. Because it centers upon the interpretation and application of our Constitution as it speaks to what can be life and death issues, open, honest, civil and rational discourse is very much in our collective best interest.