Two hundred years ago, the rights secured by the first 10 amendments were so widely accepted that many of the Framers considered a Bill of Rights unnecessary. Yet the Anti-Federalists wisely insisted on a Bill of Rights, fearing that fundamental tenets of individual liberty might later be deemed inconvenient, impractical, or even dangerous.
The Constitution's words have since weathered constant assaults from miscreants who would suppress speech, control our private lives, or deny due process — usually in the name of public safety and the greater good.
The prohibitionist attack on Second Amendment rights is thus familiar, even if the arguments against the right to keep and bear arms are demonstrably false. In District of Columbia v. Heller — a case in which we will present oral argument on Tuesday, March 18 — the Supreme Court should recognize some basic truths.
The Second Amendment is an integral part of the Bill of Rights. Read in the same familiar, straightforward manner as other constitutional provisions, it secures a meaningful individual right, a sphere of individual autonomy into which the state may not intrude without good reason and great care. Acknowledging this right does not spell anarchy, but it does mean that law-abiding adult citizens are entitled to keep ordinary functional firearms, in their own homes, for self-defense.
Gun prohibitionists bristle at the notion that private gun ownership is a social good, but their policy arguments are both unpersuasive and irrelevant.
Drug-warriors and terror-warriors advance similar arguments for truncating Fourth Amendment rights. Some moralists have little use for the establishment clause. Others would compromise the free exercise clause. But courts do not declare those constitutional provisions obsolete or undesirable.
Nor should the Supreme Court treat the Second Amendment as if it did not exist. First and foremost, the Supreme Court resolves questions of law — and as a matter of law, Heller is not a close call.
THE PEOPLE'S RIGHT
The Second Amendment guarantees a "right of the people." The "people" protected by the Second Amendment, as well as by the First and Fourth Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, are all the same: individual members of the American community.
Recognizing that truism, the city and its fellow prohibitionists have abandoned the "pure" collective-rights Second Amendment theory — which secures only a right of states to arm an organized militia. Instead the city has adopted the "sophisticated" or "hybrid," but equally wrong, collectivist view: that the Second Amendment guarantees rights to individuals, but only when they are serving in a state-controlled military organization.
Imagine a right — intended, in part, as a deterrent to oppressive government — that can be exercised only when, where, and in the manner that government directs.
The collectivist vision seeks support by claiming, first, that "bear arms" has an exclusively military meaning. Yet "bear arms" was often used in a nonmilitary context. Various 18th century state constitutions secured the people's right "to bear arms in defense of themselves and the state," including Pennsylvania in 1776 and Kentucky in 1792. And James Madison, author of the Second Amendment, introduced a hunting bill in the 1785 Virginia Legislature, drafted by Thomas Jefferson, which differentiated between "bearing a gun" privately and doing so "whilst performing military service." Other examples of "bearing arms" appear throughout framing-era literature and legislative enactments — too many to support the prohibitionists' narrow views.
Moreover, gun prohibitionists conveniently ignore the word "keep," which plainly relates to nonmilitary activity. "Keep" and "bear" in the Second Amendment are different concepts, like the Sixth Amendment's guarantee of "speedy and public" trials. Keeping a handgun in a D.C. home is not the same as bearing a weapon on the District's streets. Heller is about the former, not the latter.
A CITIZEN MILITIA
What, then, of the Second Amendment's preamble, "A well regulated Militia, being necessary to the security of a free State"?
Again, the prohibitionist view depends on misconstruction of the words. Properly construed, "militia" is far broader than a state-organized military unit. That term, referenced throughout the Constitution, was understood to comprise ordinary citizens possessing their own arms and able to come together in time of need to restore order.
The "militia system," declared the Supreme Court in United States v. Miller (1939), "implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence." Citizens were "expected to appear bearing arms of the kind in common use, supplied by themselves."
The militia did not depend on state organization. Indeed, during the Revolution, the Royal Governors' official provincial militia clashed with the "independent" militia organized by patriotic neighbors. The patriots' militia — decidedly not under state control — were crucial to American victory.
Americans viewed their ability to act as militia as the final check upon tyrannical usurpation of lawful authority — a point reiterated by every notable legal scholar from the time of the Second Amendment's adoption and a hundred years thereafter. Legal scholars St. George Tucker, William Rawle, Joseph Story, and Thomas Cooley all understood the Second Amendment to secure a private, individual right to arms and the militia to be society's last resort against government oppression.
George Mason, who organized an independent "well regulated" (meaning, well-supplied and well-trained) militia company, cautioned that a private right to keep and bear arms was essential to the people's service as militia. "The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless — by disarming them."
Of course, the Second Amendment's militia purpose is hardly exclusive. That the Framers secured an individual right to arms, distinct from any militia function, is not surprising. By 1776, English law had "settled and determined" that "a man may keep a gun for the defence of his house and family," as stated in Mallock v. Eastly (1744).
The King's attempt to check his restless American subjects by disarming them backfired, inflaming the revolutionary spirit of Americans, who fervently believed they had a right to keep and bear arms for self defense. Indeed, the Second Continental Congress declared the disarmament of Boston a cause for taking up arms against the British. Fear of individual disarmament was a common revolutionary theme.
To be sure, some Anti-Federalists agitated for constitutional amendments that would have secured the states' ability to maintain military forces as a counterweight to the federal army. But those proposals were debated and expressly rejected by the First Congress. To the Framers, the Second Amendment was good enough: It guaranteed people power, not state power.
A SIMPLE CASE
Heller is controversial not because there are good arguments endorsing a collectivist view of the Second Amendment, but because anti-gun advocates are unreconciled to the Framers' insistence on securing an individual right to keep and bear arms.
On its facts, Heller is remarkably simple. Because Dick Heller challenges a categorical ban on handguns, as well as a near-total prohibition on exercise of Second Amendment rights relating to long guns, the outcome of the case does not depend on applying a specific constitutional standard of review.
If, however, the Court were to declare the operative standard, the only standard grounded in logic and precedent is strict scrutiny: Government must have a compelling state interest to regulate firearms, and its regulations must be narrowly tailored to achieve the stated aims and in the manner least restrictive of the fundamental right at stake.
After all, an individual right to arms can have life-or-death consequences. And self-defense — exercised on behalf of individuals or as "necessary to the security of a free State" — is clearly "so rooted in the traditions and conscience of our people as to be ranked as fundamental [and] implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed," to quote Washington v. Glucksberg (1997).
Strict scrutiny would not endanger the nation's basic, common sense gun laws. The government undoubtedly has a compelling interest in regulating guns — an interest that easily sustains the ban on felons possessing firearms, instant background checks for gun buyers, and sentence enhancements for using a gun in commission of a crime.
But D.C.-style prohibition, or regulations that effectively bar possession in the home of functional firearms commonly used for self-defense, cannot be squared with any plausible reading of the Second Amendment.
For its part, the city concedes rational basis is an improper standard, but instead offers "reasonableness" — as determined by the legislature and rubber-stamped by the courts. This is merely rational basis review by another name, and no more legitimate or protective of the fundamental right at stake — a standard pulled from thin air into which the Second Amendment would thereby evaporate.
The U.S. solicitor general purports to invoke so-called "intermediate" scrutiny, but in the same breath requests a remand of the case to determine whether the nation's most oppressive laws might yet be legitimized after additional years of litigation. That the solicitor general does not believe Washington's gun laws self-evidently burden Second Amendment rights tells us all we need to know about his proposed standard of review.
The facts are clear, the issues are clear, and the Supreme Court, for the first time in nearly 70 years, will have an opportunity to declare unambiguously that the Second Amendment means what it says.