Right to Bear Arms: The Heller and McDonald Supreme Court decisions

Right to Bear Arms: The Heller and McDonald Cases

The Second Amendment is one of the amendments of the Bill of Rights that was drafted in 1789. The creation of this amendment was fueled by pressure from the Anti-federalist to adopt certain rights and limitations within the constitution in attempts to safeguard the freedoms of the people. The interpretation of this amendment has remained increasingly controversial and an issue of extensive debates. The controversy surrounding the interpretation of the Second Amendment is based on whether it secures a collective and/or individual right. Moreover, what precisely follows from the conclusion that the Second Amendment secures an individual right? This paper explores the history of the Second Amendment, what rights it was initially designed to protect, and the differing opinions as to its actual meanings. In order to accomplish this, we will also examine the two major Supreme Court decisions surrounding the Second Amendment.

History of the Second Amendment

The drafting of the Second Amendment can be traced back to the 18th Century when commentators usually talked about the wrongdoings of standing armies given that professional soldiers were a threat to liberty (Vandercoy, p.3). Given that standing armies were regarded as instruments of fear whose main aim was to preserve the prince, citizens in free states would take up arms and defend their communities until the threat passed. The link between arms and liberty was constantly examined across various periods in the history of the nation.

The founding fathers' views on the relationship between arms and democracy or civil liberties were significantly influenced by English republican views on the same. There were two different groups that shared contradictory views regarding this relationship i.e. Federalists and Anti-federalists. Federalists seemingly supported the standing armies since they supported the establishment of a strong central government. On the contrary, Anti-federalists believed that freedoms including the right to self-rule were best safeguarded through preserving local autonomy. However, Federalists and Anti-federalists concurred that there as an inextricably strong link between arms and liberty.

When the Constitution was drafted, the Federalists supported it and did not dispute the argument that legislative tyranny was the basic evil that individuals had to protect themselves against. In support of the Constitution, Federalists contended that the proposed Constitution offered sufficient guarantees to check the threats of any standing army. In essence, Federalists believed that the proposed Constitution had enough checks and balances that would act as an actual deterrent to governmental abuse. On the other hand, Anti-federalists believed that the standing army was a threat to liberty. Federalists and Anti-federalists believed that the major threat to the republic was tyrannical government. Consequently, the eventual check on tyrannical government was an armed public. In essence, both sides agreed that having an armed population was essential in preserving and guaranteeing liberty.

Nonetheless, Federalists and Anti-federalists disagreed on several issues despite their agreement on the threat of tyrannical government. First, these groups disagreed on whether the proposed Constitution had enough checks and balances to prevent the national government from oppressing the population. Secondly, while Anti-federalists argued that a bill of rights should be included in the Constitution to guarantee some civil liberties, the Federalists contended that it was unnecessary on the premise that the proposed Constitution had enough checks and balances. One of the major reasons that fueled Anti-federalists position against the Constitution was the concern that the new government will use it as an instrument to disarm thirteen state militias that had emerged to protect civic liberties from abuse by the government (Waldman, p.xi).

The framers of the Constitution clearly embraced James Harrington's political theory based on the belief that an armed population is crucial towards preserving liberty. This political theory suggests that the extent of liberty obtained and maintained was directly linked to the ability of armed citizens to claim and protect those rights from any enemies (Vandercoy, p.17). The ratification process of the proposed Constitution was characterized by publication of various Federalist and Anti-federalist pamphlets that were geared towards influencing this process with regards to how the Constitution would be effective. These pamphlets, other documents, and the framers' political philosophy generate more concerns regarding the right to bear arms. For instance, there were concerns that the federal government would eventually create its own militia that would later disarm people.

New York, New Hampshire and Virginia ratified the Constitution on the premise that individuals had a right to bear arms. These states also understood that the Congress would never disarm citizens who followed the law. On the contrary, North Carolina and Rhode Island did not ratify the Constitution until individual rights like the right to keep and bear arms were acknowledged and guaranteed through amendments. While Pennsylvania and Massachusetts made attempts to amend the Constitution before ratification, these efforts were defeated though not on their merits.

The framers of the Constitution were seemingly against the preservation of states' rights because of fear of governmental tyranny regardless of whether it was state or federal government. As a result, they tried to safeguard people's rights to retaining local autonomy and civil liberties in form of different state governments. The distrust of states' power was later evident during the Revolutionary era and in the enactment of state constitutions. For instance, states like Maryland and New Hampshire provided for a militia in their constitutions but did not explicitly provide a right to bear arms.

After completing the ratification process and the assembly of the First Congress, amendments that would ultimately become the Bill of Rights were introduced by James Madison since the ratification process had promised that amendments would be made. The Second Amendment was one of the nineteen major items that were introduced by Madison on June 8, 1789. This amendment sought to guarantee the right of the people to keep and bear arms free from any infringement by the government. Madison's proposal was influenced by the belief that a well-regulated and well-armed militia was the best possible way to ensure a free country. This proposal among others was referred to a select committee that ultimately provided the wording of the Second Amendment.

According to Vandercoy, the Second Amendment read, "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" (p.26).

The Second Amendment

As evidenced in the brief overview of the history of the Second Amendment, this amendment was drafted among others in 1789 as part of the Bill of Rights. The development of this amendment was fueled by various issues and concerns during this period. One of the major influences towards the eventual drafting of the Second Amendment was pressure from Anti-federalists. This group advocated for specific rights and limitations within the Constitution in order to protect people's freedoms. The Anti-federalists achieved their goal through exploiting weaknesses in nearly every clause in the Constitution tyrannical mandates that were not subjected to any limitations (Raffin par, 2). Moreover, the view by Federalists and Anti-federalists that an armed population is essential in safeguarding civil liberties helped foster efforts towards the enactment of the Second Amendment.

As previously indicated, the Second Amendment reads, "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 Constitution of the United States," Amendment 2).

Original Intentions behind the Second Amendment

The original intentions behind the Second Amendment have remained an issue of increased controversy. Throughout the years, various arguments have been raised regarding the probable meaning or intention of the Second Amendment. These arguments have basically been centered on whether the Second Amendment secures a collective and/or individual right to keep and bear arms. This generates additional concerns on what exactly follows the assumption that this amendment secures an individual right. The controversial nature of this issue is evidenced in the disagreements between various courts and the lack of a single approach to resolve it. These are several factors that have made it difficult to determine the original intentions behind the Second Amendment including...

Landmark Supreme Court Rulings

The original meaning and intentions behind the Second Amendment have been difficult to deduce following two landmark Supreme Court's decisions in Heller v. District of Columbia and Mcdonald v. City of Chicago. In these cases, the Supreme Court ruled that the Second Amendment does secure an individual right to keep and bear arms. In the aftermath of these landmark decisions, scholars, states and courts have increasingly struggled to determine the extent of these opinions and how to interpret this precedence. Lower courts have disagreed on how to interpret the Supreme Court precedent on the application of the Second Amendment (Meltzer par, 1). Moreover, lower courts have disagreed on the extent with which the right to keep and bear arms is protected by the Second Amendment.

While the landmark rulings by the Supreme Court were made to help deduce the original intentions behind the Second Amendment, several questions are still unanswered and new concerns continue to emerge. There are questions on whether lower courts should enforce their dicta on permissible restrictions when addressing cases that implicate the Second Amendment. In addition, there are concerns on the level of scrutiny that lower courts should apply when examining a law that infringes on the Second Amendment ("Second Amendment" par, 5).

Gun Regulations

The understanding of the original intentions behind the Second Amendment has become more difficult in the past decade given the numerous challenges state and federal governments have encountered in enacting gun regulations. State and federal governments have experienced challenges in gun regulations ranging from bans on guns to legislation preventing the sale of guns to individuals below 21 years. These difficulties have been compounded by the fact they have to carry out a historical analysis of the Second Amendment vis-a-vis the landmark decisions by the Supreme Court in cases relating to this amendment.

Vague Writing

The wording of the Second Amendment is vague; leaving many unsure if it was intended to protect a collective or individual right to arms. During Virginia's Convention to ratify the Constitution in 1788, George Mason, co-author of the Second Amendment, stated...

"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."

As quoted in the Philadelphia Independent Gazetteer on August 20, 1789, Samuel Adams argued that...

"And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms;..."

In a letter to Justice John Cartwright on June 5, 1824, Thomas Jefferson provided his opinion regarding the Second Amendment by stating...

"The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed;... " ("Jefferson Quotes" par, 2).

These opinions were raised because of the vague wording of the Second Amendment, which does not explicitly state whether it secures a collective and/or individual right. As a result, the wording of this amendment has made it difficult to identify the intentions behind it or those of its drafters. However, while the writing of the Second Amendment itself is left vague, it is clear that many of the founding fathers did intend it to protect an individual right to bear arms against both foreign and domestic forces. Whether this is the way in which the Second Amendment should be interpreted today is a subject of debate.

To understand the original intentions behind the Second Amendment, an analysis of the issues that prompted its adoption is essential. While the meaning of this sentence is not self-evident, it was widely accepted because of unanimous agreement that the federal government should not have the power to violate people's right to keep and bear arms (Glum par, 3). This was on similar premise that the federal government should not have the power to breach freedom of speech or ban free exercise of religion.

Heller and Mcdonald Cases

Following the adoption of the Second Amendment, the U.S. Supreme Court became involved in its interpretation more than a century later. In its decisions in 1875 and 1886, the court ruled that this amendment did not restrict individuals but limited the state and federal governments. However, there was a differing opinion in 1939 when justices held that unregistered, sawed-off shotguns were not protected under the Second Amendment. In 2008, the Supreme Court ruled that the capital could not prohibit handguns since the Constitution did not permit absolute ban of handguns that are held and utilized for self-defense at home. These varying rulings show the differing opinions provided by the Supreme Court regarding the interpretation and meaning of the Second Amendment. However, the court has made two landmark rulings on the possible meaning of the Second Amendment in the following cases...

Heller v. District of Columbia

District of Columbia v. Heller was a case heard in 2008 by the Supreme Court and reversed a precedent that stood for approximately 70 years, which was established by the same court in United States v. Miller (307 U.S. 174) in 1939. The case involved a law in District of Columbia that prohibited the possession of all handguns, and all other firearms were to be kept unloaded and disassembled when not in use. The legislation criminalized carrying an unregistered firearm and banned the registration of handguns. However, the law authorized police chief to grant 1-year licenses since no individual was allowed to carry an unlicensed gun.

Dick Heller, a police officer in the District of Columbia applied to register a handgun he wanted to keep at home but his application was rejected. Heller challenged the law by filing a lawsuit that sought to enjoin District of Columbia from enacting the prohibition on registration of handguns. Moreover, he sought to enjoin the city from implementing laws that prohibited carrying an unlicensed firearm in the home based on the licensing requirement and use of functional firearms in the home based on the trigger-lock requirement ("DISTRICT Of COLUMBIA v. HELLER" par, 1). Heller filed his lawsuit on Second Amendment grounds that secure an individual right to keep and bear arms.

The District Court dismissed the case, a decision that was later reversed by the Circuit court in the city. The Circuit reversed the decision on the premise that the Second Amendment safeguards the right of an individual to possess firearms. Therefore, District of Columbia's absolute prohibition on handguns and requirement that firearms at home should be kept non-functional even in situations for self-defense infringed the Second Amendment.

In a split (5 to 4) decision, the Supreme Court held that absolute prohibition of firearms was unconstitutional since it violated the Second Amendment. This decision was based on the assumption that the Second Amendment protects an individual's right to bear arms separate from service in a militia. Justice Scalia delivered the Court's opinion in which it was argued that the Second Amendment secures an individual's right to bear a firearm unconnected with militia service and to use that weapon for conventionally legitimate reasons like self-defense at home. The majority contended that similar to other rights, the Second Amendment is not unlimited since it does not suggest that individuals should keep and carry weapons in any manner and for whatever reasons. Therefore, the Court's opinion should not be used as the premise for casting doubt on longstanding bans on possession of firearms by the mentally ill and felons, or legislation prohibiting carrying weapons in sensitive settings like government buildings and schools ("DISTRICT Of COLUMBIA v. HELLER" par, 1). These justices also argued that District of Columbia's handgun ban and trigger-lock requirement in relation to self-defense infringed the Second Amendment.

According to the Court's opinion as delivered by Justice Scalia, the Second Amendment's prefatory clause proclaims a purpose but does not restrain or enlarge the operative clause i.e. the second part. In essence, the text and history of the operative clause suggests an individual's right to keep and bear arms. Therefore, the prefatory clause concurs with the Supreme Court's interpretation and application of the operative clause ("DISTRICT Of COLUMBIA v. HELLER" par, 3). The historical context that resulted in the drafting of the Second Amendment was to prevent the government (state or federal) from disarming people in order to disable citizen's militia. The Court's opinion was in line with the historical context of the Second Amendment by helping ensure the government did not disarm people and helping preserve the concept of citizens' militia. The ruling of the Supreme Court in this case was also influenced by the fact that the Second Amendment's interpretation by scholars, courts and legislators throughout its history supported its conclusion. Moreover, the Court's precedents did not dismiss individual-rights interpretation of the Second Amendment by limited the kind of weapon the amendment is applicable to.

The dissenting opinion, which was delivered by Justice Stevens, provided a differing interpretation of the Second Amendment and its application. The dissenting justices argued that this amendment was enacted to secure the right of the people to sustain a well-regulated militia in attempts to prevent the Congress from disarming state militias and threatening state sovereignty. Therefore, the wording of the amendment or arguments provided by its proponents does not show any evidence that the drafters wanted to limit the legislature's authority to regulate the use of firearms by private citizens. In essence, the Second Amendment only secures militia-related interests rather than interests relating to self-defense.

They further argued that the Second Amendment does not suggest that the framers intended to enjoin the common law right of self-defense in the American Constitution. In reference to the ruling in United States v. Miller (1939), the dissenting justices contended that while the amendment secures individual right to keep and bear arms for militia-related reasons, it does not limit the power of the Legislature to control ownership and nonmilitary use of weapons. The dissenting judges argued that the majority did not identify any new evidence to justify claims that the Second Amendment was intended to restrict the Congress' power to regulate the use of weapons by civilians. They also cited colonial history to support their claims by arguing that it provides significant examples of types of gun regulation that civilians would then have considered compatible with the Second Amendment. Some of these examples include substantial regulation of firearms in urban centers and regulations that limited the use of firearms in order to safeguard the home.

The adoption of a true strict scrutiny standard for evaluating gun control regulations would be impossible and I would adopt an interest-balancing inquiry. In applying this kind of standard the Court normally defers to a legislature's empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional fact finding capacity.

McDonald v. Chicago

The second landmark case in the United States that shows contrasting opinions in the interpretation of the Second Amendment is Mcdonald v. Chicago. Following the ruling in Heller v. District of Columbia, Mcdonald et al. (commonly referred to as Mcdonald) filed lawsuits against the City of Chicago and Village of Oak Park (Jackson & Johnson par, 5). The lawsuits, which were filed in the Northern District of Illinois, sought to challenge municipal laws that were akin to the federal legislation dismissed in Heller v. District of Columbia. The City of Chicago and Village of Oak Park had established laws that banned the possession of most handguns. The Chicago law established a virtual prohibition on handguns by banning the possession of unlicensed firearms and the registration of most handguns. Similar to Chicago law, Oak Park's legislation forbade the possession of handguns.

In this case, Mcdonald contended that the Second Amendment right should be enforced in all states and municipalities using either Due Process Clause or the Fourteenth Amendment's Privileges and Immunities Clause. Mcdonald's arguments on the interpretation and application of the Second Amendment were largely based on the ruling in Heller v. District of Columbia, which was made a day before these lawsuits were filed. Through a cursory opinion, the district court rejected Mcdonald's lawsuits, which was followed by an appeal to the Court of Appeals for the Seventh Circuit. However, Mcdonald's appeal was dismissed by the Seventh Circuit on similar grounds to the district court's opinions. In dismissing the appeal, the Seventh Circuit argued that Heller v. District of Columbia case addressed legislation enacted under the authority of the national government. The Illinois laws were enforced by subordinate bodies of a State, which implied that similar standards could not be used. The court of appeals also argued that Supreme Court has declined to include the Second Amendment against states in the past (Jackson & Johnson par, 6). The Court of Appeals for the Seventh Circuit also stated that the issue on whether the right to bear arms should be included against states through the Privileges and Immunities Clause of the Fourteenth Amendment could be decided by the Supreme Court. As a result, the Supreme Court issued certiorari in September 2009 to determine issues raised by the Petitioner in the district and appeals courts.

The Supreme Court ruled in favor of the Petitioner by striking down state laws that banned handguns. In essence, the Court reversed decisions by the district and appeals court by ruling that the Fourteenth Amendment makes the Second Amendment applicable to states. Actually, the Supreme Court used the Due Process Clause of the Fourteenth Amendment to rule that the Second Amendment right for individuals to bear arms was applicable to state and local governments. The ruling was also a split decision like in Heller v. District of Columbia with Justices Stevens and Breyer dissenting yet again.

When delivering the majority opinion, Justice Samuel Alito stated that the Court considered rights that are essential to the country's scheme of ordered freedom and deeply entrenched in its history and tradition as applicable to all states through the 14th Amendment. Therefore, Heller v. District of Columbia was an example of a case in which a fundamental and deeply rooted right to self-defense was upheld. In light of its ruling in Heller v. District of Columbia, the Supreme Court reasoned that this right was applicable to state and local governments. Justice Alito pointed out that the Fourteenth Amendment's Due Process Clause included the right to keep and bear arms for self-defense purposes as acknowledged and upheld in Heller v. District of Columbia.

However, the majority opinion differed on whether the Privileges or Immunities Clause of the Fourteenth Amendment more suitably incorporated the Second Amendment against the states. Unlike Justice Alito, Justice Clarence Thomas who supported the Supreme Court's ruling argued that the Fourteenth Amendment's Privileges or Immunities Clause incorporated the Second Amendment against the states more appropriately than the Due Process Clause ("Mcdonald v. Chicago" par, 4). This claim was rejected by Justice Alito who argued that the Supreme Court's decision in the Slaughterhouse Cases dismissed the use of the Privileges or Immunities Clause for incorporation purposes. Therefore, the appropriate mechanism for incorporating rights was through the Due Process Clause of the Fourteenth Amendment.

The dissenting judges delivered their opinion though Justice Stevens who had also dissented in Heller v. District of Columbia. They argued that the Fourteenth Amendment did not incorporate the Second Amendment against the states. Moreover, Justice Stevens stated that owning a personal firearm was not a liberty interest that was guaranteed by the Fourteenth Amendment's Due Process Clause. They also stated that the Second Amendment does not contain anything in its wording, history or underlying rationale that classifies it as a fundamental right, which would be incorporated against the states through the Fourteenth Amendment.

United States v. Miller

The United States v. Miller case is one of the Supreme Court cases that established a precedent for interpretation of the Second Amendment. The case sought to challenge a section of the National Firearms Act that was considered an unconstitutional infringement of the Second Amendment. In its ruling in this case, the Supreme Court adopted a collective rights approach when examining the National Firearms Act vis-a-vis the Second Amendment right to keep and bear arms. Consequently, the Court ruled that Congress had powers to regulate a sawed-off gun that had been transported in interstate commerce under the 1934 National Firearms Act ("Second Amendment" par, 2). This decision was informed by the fact that evidence in this case did not indicate that movement of the shotgun had significant links to the preservation and efficiency of a well-regulated militia as stated in the Second Amendment. The Supreme Court further explained that the Framers of the U.S. Constitution included the Second Amendment to promote and guarantee the military's effectiveness and not necessary personal interests.

The ruling in United States v. Miller established a precedent for interpretation and application of the Second Amendment. This precedent existed for nearly 70 years when the Second Amendment's interpretation was revisited in Heller v. District of Columbia (which is also cited as District of Columbia v. Heller in other publications). While this ruling adopted a collective rights approach, it did not provide an absolute standard for interpreting the Second Amendment right to keep and bear arms. Moreover, the decision was influenced by the fact that the weapon under scrutiny was not part of any common military equipment or the fact that usage of the shotgun could contribute to common defense.

Analysis

As evidenced in the previously examined lawsuits, the interpretation and application of the Second Amendment right to keep and bear arms has remained controversial since it was enforced into law. The controversial nature of this amendment is shown in the lack of a unanimous decision in Supreme Court's rulings in cases relating to this constitutional provision. Even though Supreme Court's rulings have established precedents for interpreting the original meaning and intentions of the Second Amendment, there are still questions on whether the amendment secures a collective or individual right.

The wording or text of the Second Amendment has not helped determine the issue because it does not explicitly state the intentions of its drafters. While the Second Amendment's text is left vague, it's evident that many of the founding fathers did intend it to protect an individual right to bear arms against both foreign and domestic forces. However, whether this is the way the Second Amendment should be interpreted today, especially with increased need for constitutional gun control laws and measures, is debatable.

The precedent established in United States v. Miller demonstrates that the Second Amendment secures a collective rather than individual right. However, this precedent is not applicable to all scenarios because it examined a weapon that was not part of common military equipment or could contribute to ordinary defense. Therefore, this precedent is applicable to the assumption that the Second Amendment right is only applicable to specific types of weapons. The utilization of this ruling as the premise for determining the Second Amendment's interpretation and application is erroneous because United States v. Miller does not claim to be a comprehensive evaluation of the amendment in terms of its original meaning and interpretation.

The majority opinion in Heller v. District of Columbia determined that the Second Amendment secures or guarantees an individual's right to keep and bear arms. The Court considered self-defense as the central component of the Second Amendment right even though the prefatory clause suggested that preserving the militia was vital to understanding the right (Meltzer par, 11).