More Questions Than Answers-An examination of D.C. v Heller

Recently I wrote Supreme Court Justice Stephen Breyer a letter in which I questioned his position on the interpretation of the Second Amendment. Much to my surprise I actually got a reply from Justice Breyer. Although brief, he mentioned that he had read my letter and found it thoughtful. He also included two court rulings in which the court had ruled upon the intent of the Second Amendment.

Upon receiving these two rulings, the first thing I did was to glance over the syllabus of each case. Once I understood the overview of both, I began my study chronologically by reading the courts decision in the case of D.C. v Heller. I had hoped that by studying the ruling that I would gain an understanding of how the Justices came to their decision. Instead, it has left me even more perplexed than I was before I began searching for answers.

While reading through the Heller decision I came across numerous examples where the Court seemed to contradict itself. This was most evident when they discussed the type weapons shielded under the protection of the Second Amendment. These contradictions all were found within the majority ruling, not within the dissent, which made it even more puzzling. I don’t know if this was an accident, or done by design to leave the Court a loophole, or some wiggle room, should future questions arise regarding this Amendment. If you will grant me your patience, I will try to explain why I feel so confused regarding the ruling of the Court.

In the syllabus of the Heller case it was held that: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

Secondly, it states: (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

Now, skipping ahead to where the Court discusses the meaning of the operative clause of the Amendment, we read, Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Sruikshank, 92 U.S. 542, 533 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that is shall not be infringed…”

The Court also referred to the case of Nunn v State in which the Georgia Supreme Court had construed the Second Amendment as protecting the “natural” right of self defense. The Court stated:Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:

The right of the whole people, old and young, men and women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained; the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I, and his two wicked sons and successors, re-established by the revolution on 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”

Next, the Court stated that: Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g. Reno v American Civil Liberties Union, 521 U.S. 27,35-36 (1997), and the Fourth Amendment applies to modern forms of search, e.g. Kyllo v. United States, 533 U.S. 27, 35-36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Finally, in discussing the meaning of the phrase, keep and bear, the Court states: In Muscarello v. United States, 524 U.S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment…indicate[s]: ‘wear, bear, or carry…upon the person or in the clothing or in a pocket, for the purpose…of being armed and ready for offensive or defensive action in a case of conflict with another person.’”

After reading the above quotes, one would come to the conclusion that the Second Amendment protects, not grants, but protects a pre-existing right in which we are guaranteed the right to own weapons, even those not in existence at the time of the American Revolution, and to carry, and use those weapons for our own defense.

The Court even went as far to quote the following: See 2 Tucker’s Blackstone 143. In Note D, entitled, “View of the Constitution of the United States,” Tucker elaborated on the Second Amendment: “This may be considered as the true palladium of liberty…The right to self-defense is the first law of nature; in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under an colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

From the quotes provided from the Heller ruling so far, it would seem that the Court has ruled that our right to keep and bear arms is unlimited, as long as we exercise that right with a certain measure of common sense and restraint.

Now I will show you why I feel so confused. In the syllabus the Court also said: Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever and for whatever purpose.

Now I can understand the for whatever purpose part, but it is the any weapon whatsoever part that puzzles me. Did not the Court say “…the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

In justifying this position, that not all weapons are covered by the Second Amendment, the Court based much of its decision upon the precedent set in U.S. v Miller. In the Miller case, the defendants were appealing a case in which they were arrested in violation of the National Firearms Act of 1934 for carrying a short-barreled shotgun across state lines for interstate commerce.

Now the Heller ruling clearly states that all instruments that constitute bearable arms are covered by the Second Amendment. Then would that not imply that the National Firearms Act of 1934, and any other firearms act which restricts, or prohibits the possession of a specific type of weapon, would be considered a violation of the intent of the Second Amendment? Does a restriction or a prohibition not signify an infringement?

To quote from the Heller case: It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were ”bear[ing] arms” not” for…military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

If I recall correctly, the Court used the precedent set in the case of Nunn v State, which states, “The right of the whole people, old and young, men and women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia.”

The whole case of U.S. v Miller was based upon the fact that the defendants had a form of short-barreled shotgun, that according to the Court, had no relationship to the efficiency of a well regulated militia.

However, if one goes back and does the research of weapons used during the Revolutionary War, they will find that one of the weapons common at the time was the blunderbuss.

The blunderbuss was a muzzle loaded weapon that could shoot shot and, due to its funnel shape barrel was easily reloaded while on horseback. A shorter, pistol type, version of the blunderbuss, called the dragoon, was also a common weapon during the time frame previously mentioned.

In fact, according to historical records, just shortly after the ‘shot heard round the world, General Gage promised the people of Boston that if they would turn in their arms, they would be free to leave the city of Boston. Among those arms confiscated were, “634 pistols, 973 bayonets, and 38 blunderbusses.” (The Founders Second Amendment, Stephen P. Halbrock.)

So, for the court to say that a short barreled shotgun, even in pistol form, was not in use at the time of the Revolutionary War, or that it had no place in the militia, is a misrepresentation of the facts. Yet they ruled that: We therefore read Miller to say 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.

If you will bear with me, I would like to spend a few moments more upon the subject of weapons that are considered short barreled shotguns. As many people know, I live in the state of California. In my state it is illegal to own a short barreled shotgun, and any weapon resembling a short barreled shotgun, such as the Taurus Judge. Yet if I were to live in the state of Colorado, owning a Taurus Judge is perfectly legal.

Where then is the equality in my Second Amendment right to own that particular weapon? The other ruling sent to me by Justice Breyer was MCDONALD et al v CITY OF CHICAGO ILLIONOIS. According to that ruling, “JUSTICE ALITO delivered the opinion of the Court…concluding that the Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense.”

Therefore, if it is perfectly legal to own a particular weapon in one state, and another state chooses to enact laws which prohibit the possession of that weapon, then the state which prohibits that weapon has infringed upon the Constitutionally guaranteed rights of its citizens.

In Heller, the Court ruled that: We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government-even the Third Branch of Government-the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judge’s assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that’s scope too broad.

To sum things up so far. Our rights, as the Court has upheld, are pre-existent of government, they rely not upon the Constitution for their protection, as they came before the Constitution, and therefore are beyond the scope and power of any agency created by that document.

To limit the type of weapon that a citizen might keep and bear, is an infringement of the right protected by the Second Amendment. I wonder, had the British, at the time of the Revolutionary War, been in possession of automatic weapons, do you not think that the founders would also have thought it reasonable for the citizens of the colonies to be armed with them as well?

In the Heller case the Court ruled that: In Nunn v State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defense” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right.

They also ruled that: The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

So, any attempt, by either State, or the Federal government to disarm, or infringe upon our right to keep and bear arms, should be enough for the Court to deem that law unconstitutional.

It is my opinion, and I may be wrong, that the founders would not have tolerated any gun laws that prohibit citizens from owning the weapon of their choice, as long as the citizen showed restraint, and common sense, in its usage.

It is also my opinion that any law which requires the registration of firearms, or limit’s the ability of a person to purchase ammunition for that firearm, would have been considered a step towards tyranny. Did not the British attempt to restrict the colonists access to powder and ball prior to the Revolutionary War?

In the case of Walker v. Birmingham, Justice Robert Stewart is quoted as saying, “The right to defy an unconstitutional statute is basic in our scheme. Even when an ordinance requires a permit to make a speech, to deliver a sermon, to picket, to parade, or to assemble, it need not be honored when it’s invalid on its face.”

In the case of State v. Sutton, the Court ruled that “When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it. ”

Former Supreme Court Justice William O. Douglas is also quoted as saying, “When a legislature undertakes to proscribe the exercise of a citizen’s constitutional rights it acts lawlessly and the citizen can take matters into his own hands and proceed on the basis that such a law is no law at all. ”

Finally, Former Supreme Court Justice Hugo Black once wrote, “Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind.”

So there you have it. On the one hand it sounded like the Court ruled that the Second Amendment did not limit or expand the right of the people to keep and bear arms. Yet, on the other hand there is sufficient evidence to prove that their ruling did just that, limit our right to keep and bear ANY type arm.

If you have made it this far, I will leave it up to you to decide. I feel that the Second Amendment guarantees that I have the right to own, and carry on my person, any type weapon I choose. I should not be required to obtain a permit, or register my weapons with the government either. Of course in so doing I should I exercise a certain measure of common sense. I see no reason to walk down the street with a machine gun slung over my shoulder. But, that does not mean I should be restricted from doing so, should I chose to.

The ruling of D.C. v. Heller has left me with many unanswered questions. Hopefully my examination of this case has caused you to ponder those questions as well.