The NRA and gun advocates claim the Second Amendment to the US Constitution gives them an absolute right to own guns. They have everyone thinking there is nothing they can do to restrict guns. Gun regulation will happen over their dead bodies. There are many reasons why the claims are not true. There was no reason for the Constitution to thoroughly address laws about guns because they were permitted by Common Law. But other rights can take precedence. The clash of rights helps frame the conflict. I'm not a lawyer, and I don't even play one on TV (although I write a researched novel series about a lawyer and his team). This article is a general review from my research intended as a resource for discussion, and no legal opinions or specific legal advice are intended. Attorneys should be sought out for specific actionable legal advice.
It's difficult to understand gun "rights," without understanding the laws they are based on. The preeminent law of the land is the US Constitution. The Constitution establishes our government, divides responsibilities by federal and state, and gives us our rights, or liberties. It is generally not a document that places restrictions on us. So to look at the Constitution to see if it restricts gun ownership is the wrong perspective. It permits gun ownership, particularly handguns for self defense in your home. To an extent, restrictions can be established by state and local laws. We look to the Constitution to see what it permits.
More than any other law that was brought here by the settlers was English Common Law, and it served while the land was under the domination of the English. Prior to the Constitution, it was the only law of most of the land. It didn't disappear with the Constitution. Very little of Common Law was affected by the Constitution. Common Law doesn't apply in states where it was not adopted.
Common Law remains part of the case law of the US, and is a body of case law decisions that judges refer to for precedent and build on, including constitutional law. In this way Judges contribute to the development of the laws of our nation.
In the early days after our Constitution was implemented, judges would still refer to legal decisions in England for precedent because the land and legal system were so similar. Referring to English decisions is rare today, and not done as precedent but as comparisons.
Custom in Law, and tradition
Custom Law is presumptive law related to the practices, customs, and traditions of our society. If a practice, such as carrying a rifle while traveling, is common and customary, then the law presumes it is legal because it has never been made illegal. This type of law stands until a court makes a ruling negating it.
Federal and state legislatures can create new laws, or modify existing laws, to meet the needs of the nation. These laws must not negatively impact the liberties granted in the US Constitution.
International law is a framework of rules for conduct between nations, and has no affect on individuals in those nations. Like US law, it recognizes customary practices between nations. Disputes are settled by the UN International Court of Justice (which is not the International Criminal Court which prosecutes things like war crimes).
We have "comity" with other nations and their laws so that a marriage or divorce in another country is recognized here. Comity: "The legal principle that political entities (such as states, nations, or courts from different jurisdictions) will mutually recognize each other's legislative, executive, and judicial acts."
Based on comity, or treaty, a person who commits a fraud or other criminal act in the US, can be extradited from another country back to the US to stand trial.
Comity is not absolute. An exception to comity would be that Mexico doesn't recognize our legal consequence of execution, so would not send criminals back here to face trial if execution was a potential penalty.
Influences on law
Laws often have to be interpreted. "Intent" is a very important concept of legal interpretation. It's also called, "originalism." For example, what did the founders of our nation mean in the Constitution by the Second Amendment? Did they mean that individual ownership of guns was subject to being a member in a militia? Or did they mean that every individual could own a gun? And did they mean that every kind of weapon could be owned, or was ownership limited to the type of guns of that time, for the purpose of that time? Looking back to the thoughts of those in 1776 is not an easy task.
In criminal law, the intent of the person who committed the crime is also taken into consideration. If the person's motives in offending the purpose of a statute was not criminal in intent (mens rea or guilty mind), then his intent may possibly be judged "exculpatory," meaning he is free of guilt or blame.
The court may look at such factors as whether the person knew the law, had general intent (knew the likely consequences of an action), or had specific intent (intended harm from the outset). It's the difference between immediately punching someone who offends you, and going out of your way to find the person and punch them. Infractions of some state and federal laws will be punishable whether you knew the law or not.
Statutory interpretation can permit influence by a large number of factors. The Supreme Court will judge first whether to hear a case, and may use a concept called degree of "burden" to decide: rational basis, intermediate, or strict scrutiny. Burden is "... the hierarchy of standards that courts use to determine which is weightier, a constitutional right or principle or the government's interest against observance of the principle." The Strict Scrutiny standard is used when a fundamental constitutional right may be infringed.
Laws can also be influenced by Common Law and by regulations created by administrative agencies.
Effect and Opinions
Judges also have the burden of determining the effect the interpretation of a law may have on society. It may place unfair burdens on people or organizations. In which case the judge(s) can issue opinions that limit the damaging effects or the scope of their interpretation. They can also issue opinions that explain how they interpreted the law, the intent, and any limitations they wish to put on their interpretation. These opinions are binding in that they set precedent. For example, the judge can interpret, but not rewrite, the Constitution. But their interpretation sets precedent.
The Tommy Gun, a fully automatic machine gun, and the sawed off shotgun, were guns of choice by mobsters in the 1930s. The Supreme Court banned weapons of war, automatic weapons, and the sawed off shotgun, as public menaces. This interpretation of law has not changed and is consistent with the Heller decision.
The English 1689 Bill of Rights is still part of the common law of the land today, although important elements of it were written into our own Bill Of Rights, which are our Constitutional Amendments, as opposed to the primary Articles. It hasn't been specifically removed, although some of Common Law has been limited or removed. The English Bill is part of the body of case law on which judges decisions are made. This Bill asserted: "ancient rights and liberties," and regarding self defense declared the right to weapons of self defense, "suitable to their conditions and as allowed by law." This was and is the law of our land. Notice that it is not absolute, but provides for restrictions. The Supreme Court, in the Heller decision, recognized this.
Columbia University The US Legal System Is a Common Law System
The English Common Law In The United States, Harvard Law Review
Reception of English Common Law in the American Colonies
Should the U.S. Supreme Court Cite Foreign Precedents?
So You Think You Know the Second Amendment? - New Yorker online magazine
Common Law may not apply. If the court finds that a dispute is fundamentally distinct from previous cases, they can decide the case differently. Wikipedia. So for example, the semi-automatic rifle may be ruled unnecessary and a public hazard when compared to common uses of guns in 1776.
English Bill of Rights 1689
Other nations have other law traditions. For example many European nations, such as Holland, have roots going back to Roman and other law codes. In many nations there is no right to own firearms, even for self defense.
Common Law gives us the right to arms used for self defense. But it may be subjected to restrictions.
"Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Related is the idea of prescription; a right enjoyed through long custom rather than positive law." - Wikipedia
Guns were the norm in the early days of our nation, just like killing game for food. They were a necessity for many. Rifle ownership consisted of owning muzzle loading muskets. They were loaded by shoving a bullet down the rifle bore with a ramrod. People needed guns outside the city limits for hunting for food, protection from wild animals, and for protection from others. They had muzzle loading pistols as well for personal protection.
Arms (gun) ownership was already the law of the land in the US, based on Common Law and Custom Law, so the Constitution had no real need to address gun ownership, other than possibly to affirm it. In fact, the Articles of the Constitution don't address individual ownership of weapons. Amendment 2 simply codifies Common Law so that the right can't be removed by other laws. But it isn't absolute, as will be seen in Part 3.
From the examples of other nations' experience there was some concern by our founding fathers that armed individuals and militias were needed to counter potential government tyranny. James Madison felt that the presence of armed individuals and militias presented a barrier to tyranny. George Washington saw in contrast that armed individuals and militias could be lawless and commit crimes against the public. Washington felt that these crimes could be prevented by a powerful government and army. He further thought that, "A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite ...." These thoughts likely influenced the Second Amendment, which is very brief.
What American Founding Fathers Really Thought About Guns
If you want to know how militias can become dangers to the public, read the book "Tabernacle of Hate," about a peace loving group that turned violent. Also consider Timothy McVeigh and Terry Nichols, who bombed a federal building in Oklahoma City, killing 168 people. Today there are 276 active militias in the US. The FBI monitors them for illegal activities, which very commonly include attacking the police and government. George Washington was prophetic.
FBI Domestic Extremism-Terrorism
The Constitution Articles do address militias. Article 1, Section 8 of the US Constitution addressed the need for militias. Congress has the power for the common defense. It organizes and controls the militias, provides their armaments, specifies training and discipline. The purpose is to put down insurrections and defend against invasion. See: US Constitution Article 1, Section 8.
Militias were eventually transformed into the National Guard. Independent militias other than those initiated by the Federal Government, may be illegal, depending on the state.
It became the Supreme Court's responsibility to sort out what was meant by Amendment 2.
The Supreme Court and the Second Amendment
The US Bill of Rights was added as amendments to the Constitution, including Amendment 2. Various states also put into their constitutions statements similar to the US Constitution Second Amendment. Amendment 2 is what gun rights activists point to as justifying gun ownership. But the reading of the Second Amendment is open to interpretation.
The entire 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." The clause, "the right of the people to keep and bear arms, shall not be infringed." seems disconnected from the rest, or can be seen in the context of militias, or it could be interpreted to mean individual rights.
Until the late part of the 20th. Century, courts interpreted the Second Amendment as applying to militias, and placed individual gun ownership rights subservient to militias. In a more conservative era, under President Reagan, the Supreme Court, notably with Justice Scalia, interpreted the Second Amendment to be about individual rights. But the government held that it couldn't expand ownership rights to other guns because only handguns are necessary for self-defense. In this sense, it conforms to the "ancient rights and liberties" common law.
In a February 2017 case, the Federal Appeals Court in Maryland upheld Maryland's ban on 45 kinds of assault weapons and its 10-round limit on gun magazines, reasoning in a 10 to 4 decision, that guns banned under Maryland's law aren't protected by the Second Amendment. "Put simply, we have no power to extend Second Amendment protections to weapons of war ...."
The Second Amendment is not absolute for a number of reasons. The court did not expand the amendment to include any weapons beyond handgun ownership for defense of the home. The Supreme Court has upheld bans on other types of guns and weapons. You can't own hand grenades and automatic weapons - basically weapons intended for war. The sawed off shotgun was banned in the 1930s as a public menace, since it was being used by mobsters. Other weapons can certainly be banned. The court has upheld bans on gun ownership by certain types of individuals, and on bringing guns into certain environments. The ancient rights and liberties, is still subject to "suitable to their conditions and as allowed by law."
You can own a tank or an F16 fighter jet if it has had military hardware removed.
Another reason the Second Amendment is not absolute is that it is subject to other stronger rights in the Constitution.
Here's why: Intent of a law and of a law breaker, are major considerations when applying the law. The intent of the US Constitution is stated in the Preamble to the Constitution. The phrases, "establish Justice, insure domestic Tranquility, provide for the common defence," are particularly relevant to the current situation with guns. Beyond asking about guns ruining domestic tranquility, we have to ask if we are being defended by our government when there is a mass murder every day of the year, and school, movie theater, church, and event shootings are growing in frequency and severity.
A primary intent within our our Constitution is our "right to life." This follows from the Preamble to the Declaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." In the 5th. Amendment (regarding legal due process), "... nor be deprived of life, liberty, or property, without due process of law;" In the 14th. Amendment is the phrase, "... nor shall any state deprive any person of life, liberty, or property, without due process of law ...." The right to life is an inalienable right enshrined in our country's heritage and laws. Guns are not given that revered position. The Second Amendment is subservient to the right to life.
Inalienable rights are absolute rights. "Infringe" means to limit or undermine (a right or law). I think absolute right beats limit or undermine gun rights, especially under ownership rights that are subject to "law and conditions."
Conclusion: We have a right to weapons for self defense from Common Law and precedent. The Second Amendment is not an absolute right. As proof, the Supreme Court upholds restrictions on owners, gun types, and locations. Common Law also provides that they can be restricted subject to law and conditions. The right to life in our Constitution takes precedent as an absolute. Restrictions and bans could be placed on such things as handgun magazine capacity, semi-automatic rifles, and requiring semi-automatic rifles to be safely stored only on firing ranges and not removed.
Please keep in mind that I'm not an attorney, I don't even play one on TV, and I am not giving specific legal advice. These are my general opinions for the purpose of discussion. To get specific legal advice, talk to an attorney.
Additionally from the paper reviewing Supreme Court rulings on the Second Amendment, Post-Heller Second Amendment Jurisprudence by Sarah S. Herman Legislative Attorney, the following supports what I say in the preceding text:
The court opinions are specifically relevant to handguns for use in protecting the home. Any firearm use beyond this is questionable.
"... in a 5-4 decision authored by Justice Scalia, affirmed the D.C. Circuit’s conclusion that the Second Amendment provides an individual right to keep and bear arms for lawful purposes."
"... the Second Amendment codified a pre-existing right that included using firearms for self-defense and hunting, and thus the pre-existing right also informs the meaning of the Second Amendment."
"Nor, the Court added, did Miller “purport to be a thorough examination of the Second Amendment,” and thus, the Court reasoned, it cannot be read to mean more than “say[ing] only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns"
"... as for the kind of weapons that may obtain Second Amendment protection, the Court noted that Miller limits Second Amendment coverage to weapons “in common use at the time” a reviewing court is examining a particular firearm, which, the Court added, “is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons."
"... the Court held that the Second Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment."
"The Court reiterated much of the information recited in Heller about the founders’ relationship to arms, including the fear many held—based on King George III’s attempts to disarm the colonists—that the newly created federal government, too, would disarm the people to impose its will. And even though the initial perceived threat of disarmament had dissipated by the 1850s, the plurality asserted that, still, “the right to keep and bear arms was highly valued for purposes of self-defense.” The Court also pointed to congressional debate in 1868 of the Fourteenth Amendment, during which Senators had referred to the right to keep and bear arms as a “fundamental right deserving of protection."
Summary of the court's view of the Second Amendment after Heller: "Heller did not define the full scope of the right protected by the Second Amendment, but the main take away may be summed up as follows: The Second Amendment protects the right of law-abiding citizens to possess weapons for lawful purposes, notably, self-defense in the home."
“Longstanding” and “Presumptively Lawful” Regulations
For certain types of firearms regulations, some courts ask under step one whether the challenged regulation is “longstanding” and “presumptively lawful” and, if the answer is in the affirmative, the inquiry ends. This analysis derives from the passage in Heller in which the Supreme Court announced that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions” that the Court considered to be “presumptively lawful,” on the possession of weapons by certain categories of persons and in certain “sensitive places,” as well as restrictions on possessing and selling certain types of weapons. In particular, the Court mentioned that such laws include those prohibiting felons and the mentally ill from possessing weapons; forbidding firearms from being carried in schools and government buildings; and imposing conditions on the commercial sale of firearms. This list was not meant to be exhaustive"
Assault Weapons and High Capacity Magazines
"Several state “assault weapon” bans have been upheld in federal court, including those in the District of Columbia, New York,
The Supreme Court, on the Second Amendment, restricts itself to handguns used for protection of the home. The Supreme Court chose to leave expanding this for a later court to decide. It upholds restrictions by states.
Conclusion: The Supreme Court in the Heller decision, the most recent one, thoroughly examined the origin of the Second Amendment to determine its meaning, and explained their decision in their written opinion. Use of handguns for protection of the home is a protected liberty. Amendment 2 is not an absolute right. They did not expand that liberty beyond handguns for protection in the home. They affirmed that other restrictive laws on types of guns, locations, and types of people are upheld and can be further restricted.
It is from Common Law, starting with English law that was brought here, that we have our law of the land, which is "Case Law" and considered "Settled Law," used by judges as a sound basis for decisions. Case Law is also law that judges and legislatures can modify.
Common Law permits weapons for self defense, "as allowed by law." The only restrictions on it are those imposed by legislatures or judges in states.
The Constitution, in contrast, like the English and American Bill of Rights (Constitutional Amendments) gives us rights. It's a document of permissive rights, not a restrictive one. The Constitution currently gives us, in Amendment 2, specifically the right to use a handgun for self defense in our home. It doesn't give us more gun related rights than handguns in our home. This is Justice Alito's interpretation as well as others, on the last significant decision, the Heller decision.
If a state legislature makes a law that restricts "assault weapons," then it has no impact on Amendment 2. Amendment 2 doesn't give absolute rights to all weapons. The Supreme Court traditionally upholds bans on "dangerous weapons."
The belief that Amendment 2 gives people rights to all kinds of guns and to carry them everywhere is a myth. It has never, ever been interpreted that way.
The US Supreme Court generally would only consider gun legislation that impacts Amendment 2 on handguns in the home. Banning "assault rifles" wouldn't impact the amendment. Unless a strong case is made on how the ban would impact the Second Amendment, they likely would not hear it. The court looks at it this way: it will give "intermediate scrutiny, where a court asks whether a law is substantially related to an important governmental interest."
I'm not an attorney, and I don't play one on TV. This article is intended as a source for discussion and no specific legal advice is intended. For legal advice, consult an attorney.
Several sources were used for reference in preparing this article, and are believed accurate. For Supreme Court information I'm indebted especially to this paper prepared by Sarah S. Herman Legislative Attorney: Post-Heller Second Amendment Jurisprudence by Sarah S. Herman Legislative Attorney.
Custom Law is presumptive law related to the practices, customs, and traditions of our society. If a practice, such as carrying a rifle while travelling, is common and customary, then the law presumes it is legal because it has never been made illegal. This type of law stands until a court makes a ruling negating it.
Natural Law, and Morality, have no standing before the US court. For a moral or ethic to become law, the legislature would have to write and enact a law.
Recent decisions and the reasoning of the Supreme Court
This information is gleaned from Post-Heller Second Amendment Jurisprudence by Sarah S. Herman Legislative Attorney
Gun Violence Claims Reviewed and Evaluated. This is a very comprehensive, full review of the subject.
Heller decision: "... the Supreme Court, which, in a 5-4 decision authored by Justice Scalia, affirmed the D.C. Circuit’s conclusion that the Second Amendment provides an individual right to keep and bear arms for lawful purposes."
Prefatory Clause: “A well regulated Militia, being necessary to the security of a free State . . .”
Operative Clause: “. . . the right of the people to keep and bear Arms, shall not be infringed.”
"" the Court concluded that “the prefatory clause does not limit . . . the scope of the operative clause.”46 Accordingly, the Court assessed the meaning of the Second Amendment’s two clauses.
"Next, the Court turned to the meaning of “to keep and bear arms.” “Arms,” the Court said, has the same meaning now as it did during the eighteenth century: “any thing that a man wears for his defence, or takes into his hands, or use[s] in wrath to cast at or strike another,” including weapons not specifically designed for military use.
The Court then turned to the full phrase “keep and bear arms.” To “keep arms,” as understood during the founding period, the Court said, was a “common way of referring to possessing arms, for militiamen and everyone else.” And “bearing arms,” during the founding period as well as currently, the Court said, means to carry weapons for the purpose of confrontation; but even so, the Court added, the phrase does not “connote participation in a structured military organization.”
Taken together, the Court concluded that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”
The Court added that its textual analysis was supported by the Amendment’s historical background, which was relevant to its analysis because, the Court reasoned, the Second Amendment was “widely understood” to have codified a pre-existing individual right to keep and bear arms.
Turning back to the prefatory clause, the Supreme Court majority concluded that the term “well regulated militia” does not refer to state or congressionally regulated military forces as described in the Constitution’s Militia Clause; rather, the Second Amendment’s usage refers to all “ablebodied men” who are “capable of acting in concert for the common defense.”
And the security of a free “state,” the Court opined, does not refer to the security of each of the several states, but rather the security of the country as a whole.
Coming full circle to the Court’s initial declaration that the two clauses must “fit” together, the majority concluded that the two clauses fit “perfectly” in light of the historical context showing that “tyrants had eliminated a militia consisting of all the able-bodied men . . . by taking away the people’s arms.”
Thus, the Court announced, the reason for the Second Amendment’s codification was “to prevent elimination of the militia,” which “might be necessary to oppose an oppressive military force if the constitutional order broke down.”
But the reason for codification, the Court clarified, does not define the entire scope of the right the Second Amendment guarantees. This is so because, the Court explained, the Second Amendment codified a pre-existing right [Common Law] that included using firearms for self-defense and hunting, and thus the pre-existing right also informs the meaning of the Second Amendment.
On Miller: " the Court reasoned, it cannot be read to mean more than “say[ing] only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."
" the right secured by the Second Amendment is not unlimited." Nevertheless, the Court left for another day an analysis of the full scope of the right.
The Court did clarify, however, that “nothing in our opinion should 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 firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of firearms,” among other “presumptively lawful” regulations.
And as for the kind of weapons that may obtain Second Amendment protection, the Court noted that Miller limits Second Amendment coverage to weapons “in common use at the time” a reviewing court is examining a particular firearm, which, the Court added, “is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons."
"... a near-total handgun ban—and concluded that they were unconstitutional."
"... possessing weapons for self-defense is “central to the Second Amendment right,” yet the District’s handgun ban prohibits “an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.” Moreover, the handgun prohibition extended into the home, where, the Court added, “the need for defense of self, family, and property is most acute.”
Additionally, the requirement that firearms in the home be kept inoperable is unconstitutional because, the Court concluded, that requirement “makes it impossible for citizens to use them for the core lawful purpose of self-defense.”
Thus, the Court ruled, the District’s handgun ban could not survive under any level of scrutiny that a court typically would apply to a constitutional challenge of an enumerated right."
McDonald: "The Court reiterated much of the information recited in Heller about the founders’ relationship to arms, including the fear many held—based on King George III’s attempts to disarm the colonists—that the newly created federal government, too, would disarm the people to impose its will.
And even though the initial perceived threat of disarmament had dissipated by the 1850s, the plurality asserted that, still, “the right to keep and bear arms was highly valued for purposes of self-defense.”
The Court also pointed to congressional debate in 1868 of the Fourteenth Amendment, during which Senators had referred to the right to keep and bear arms as a “fundamental right deserving of protection.”