Second Amendment Right to Self Defense and the Right to Form a Militia

Second Amendment Right to Self Defense and the Right to Form a Militia

Ten years ago this June, the U.S. Supreme Court, per Justice Antonin Scalia, delivered its opinion in District of Columbia v. Heller. The Court found unconstitutional a law that effectively banned private possession of handguns and required long arms to be disassembled or bound by a trigger lock. The Court reasoned that the Second Amendment reflected the fundamental right of personal self-defense by use of appropriate means, including handguns. Two years later, in McDonald v. Chicago, the Court applied Heller to states and municipalities, using the Fourteenth Amendment’s Due Process clause. The Court approvingly quoted tests from other cases that rights “so rooted in the traditions and conscience of our people as to be ranked as fundamental” and those that are “the very essence of a scheme of ordered liberty” are protected under the Fourteenth Amendment.

A key unresolved issue is the precise level of judicial scrutiny to be applied to legislative restrictions on private gun ownership. This has left the lower courts floundering and to their own devices to divine the proper test and its application to various restrictions on gun ownership. The Court’s silence recently led Justice Clarence Thomas to object in a dissent from a denial of review by certiorari that the Ninth Circuit had erroneously applied deferential “rational basis” review. Because infringements of constitutional rights are normally subjected to “strict” scrutiny, Thomas characterized the Second Amendment as the Court’s “constitutional orphan.”

Heller’s definition of the right to possess weapons “in common use at the time” for lawful purposes is derived from a formulation in U.S. v. Miller, a 1939 challenge to the National Firearms Act. When the Second Amendment was adopted, as well as earlier, it was common practice in a muster of the militia to require free adult white males to bring their own weapons and ammunition of types that were commonly used. Weapons used for militia service were also commonly used for defense of the person or home, especially in frontier areas, against attacks by ruffians or American Indian war parties. Thus, the lawful purposes for which (appropriate) weapons might be possessed include the right of personal defense and defense of the community. Weapons for hunting and sport shooting probably are also covered.

Certain types of gun restrictions likely will be upheld. The Heller court noted that laws that keep guns out of “sensitive zones,” such as churches, schools, or government buildings are constitutional. Whether or not such openly “gun-free” zones are effective is a matter of policy, not constitutional law. Similarly, laws that prohibit gun ownership by ex-felons or mentally ill people are unobjectionable under Heller. Penalty enhancements that single out crimes committed with a gun are constitutional, although their use as other than symbolism is unclear. A crime victim is unlikely to feel less violated, or a neighborhood less threatened, if the crime is committed with a knife than with a gun.

Restrictions on the sale of guns to persons under 21 are constitutionally problematic. The minimum age at which persons were deemed part of the militia and expected to know how to use the weapons was between 16 and 18; federal law today puts the age at 17. It is an ancient and long-adhered-to principle of republican government that capacity for political participation and capacity to share defense of the community are closely tied, with the right to the former coming after the duty of the latter.

Reasonable permit laws, background checks, and training requirements are constitutional. The Court noted that Mr. Heller did not challenge the constitutionality of the permit law, provided it was applied in a non-discriminatory fashion. Under First Amendment jurisprudence, permit laws that leave the licensor too much discretion and are not defined by neutral factors unrelated to protected speech content are unconstitutional. Likewise, permit laws, such as in California and Massachusetts, that leave undefined or vaguely defined discretion in the hands of local law enforcement to deny gun permits raise serious issues. History serves a warning. Laws that discriminated against Blacks in the post-Civil War South on their face or by application were denounced repeatedly in Congressional debates over the adoption of early civil rights laws and the Fourteenth Amendment. Such discriminatory laws were subsequently expanded to target poorer Whites, as well. Among such laws at times were confiscations, vague permit laws, record-keeping requirements, special taxes, and laws against certain types of weapons (such as cheaper “Saturday Night Specials”). The danger today is that ill-defined police discretion will be used against ordinary citizens, but will not deprive politicians of armed police escorts or the personal right to own weapons and will not deprive celebrities and the wealthy of armed bodyguards.

Background checks combined with brief waiting periods may be constitutional. Lengthy across-the-board waiting periods to “cool off” are problematic, despite the Ninth Circuit’s approval of California’s law in 2016. The Supreme Court might consider by analogy its jurisprudence regarding the burden of such waiting periods in abortion cases.

Other gun restrictions target types of weapons. With severe restrictions on acquisition of automatic weapons already in place, legislators now seek to ban certain semi-automatic weapons classified as “assault rifles.” A federal law of that type expired in 2004. A lower court has upheld such a state law, but there has been no Supreme Court decision. Were the Court to address the constitutionality of such laws, a rigorous application of Heller likely would doom them. There is massive confusion among the public and politicians as to the types of weapons involved. Semi-automatic weapons are those that fire one shot per finger-pull, with a new round chambered through the process of firing. They are ubiquitous and come in many forms–pistols, rifles, and shotguns. “Assault rifles” banned under such laws, such as AR-15 platforms (the “AR” does not stand for “assault rifle”), generally have merely cosmetic differences from semi-automatic rifles of similar or greater lethality that are not covered. A ban on all semi-automatic firearms, or even just rifles, would appear to violate the Heller test for “weapons commonly used for lawful purposes.” Limiting only some because they “look scary” and mimic “military style” (they are not functionally military weapons) would not seem to meet even the intermediate scrutiny test that Heller demands as a minimum. Indeed, such rifles are used in only a comparatively small number of homicides, considerably less often than hands and feet.

A more recent suggestion has been to restrict ammunition sales. Leaving aside the difficulty of policing that and preventing criminals from getting ammunition, the constitutional issues would be the same as with restricting gun ownership. As the Court wrote in Miller, the possession of firearms also implies the possession of ammunition. One doubts that the Court would protect the right to terminate a pregnancy by abortion, yet turn a blind eye to laws that restrict access to implements necessary for the procedure, or protect the freedom of the press to publish, but permit severe restrictions on the right to acquire printing presses, computers, etc.

Other laws seek to restrict the capacity of magazines. Again leaving aside the efficacy of such laws, since 3 times 10 equals 1 times 30, at some point application of Heller would look at common use. One standard might be the magazine capacity police departments consider necessary for their officers’ self-defense. While bans of high-capacity magazines have been upheld by some lower courts, even those courts rejected restrictions that prohibited 10-cartridge magazines.

More novel proposals in jurisdictions deemed hostile to gun ownership, such as New York and California, include pressuring financial institutions to prohibit use of credit cards for gun purchases and to restrict access to financing for gun manufacturers or sellers, as well as to require gun owners to purchase insurance while also preventing insurance companies from offering such insurance. The constitutionality of such programs, if state governments are involved, has not yet been tested.

Justice Scalia tied his Second Amendment analysis in Heller more broadly to the natural right of self defense. Therein lies the problem for those who would severely curtail the right to own guns. Difficult as it might be procedurally to repeal the Second Amendment, as retired Justice John Paul Stevens recently suggested, the real hurdle is the natural human drive to survive. The police have neither the ability nor the constitutional duty to protect an individual from the depredations of others. Drastic restrictions on gun ownership, drastically enforced, will reduce currently lawful private possession of firearms to some extent, and might even make it more difficult for criminals to obtain firearms. However, experience has shown repeatedly that prohibition of an article does not keep it out of the hands of those most likely to abuse it, particularly when it is a useful tool in the pursuit of criminal objectives. Perhaps a better tactic, therefore, would be for the authorities to enforce more consistently the many constitutionally unobjectionable restrictions on gun ownership and use already enacted.

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