The Right to Bear Arms

"The ultimate authority ... resides in the people alone. ... The advantage of being armed, which the Americans possess over the people of almost every other nation ... forms a barrier against the enterprises of ambition." — James Madison (Federalist No. 46)

The Second Amendment to the Constitution states:

“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.”

Until 2010 in spite of extensive discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. The opposing theories, perhaps oversimplified, were an “individual rights” thesis whereby individuals are protected in ownership, possession, and transportation, and a “states’ rights” thesis whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units. Whatever the Amendment may mean, it is considered a bar only to federal action, not extending to state or private restraints. The Supreme Court had given effect to the dependent clause of the Amendment in the only case in which it had tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force.

In United States v. Miller, the Court sustained a statute requiring registration under the National Firearms Act of sawed–off shotguns. After reciting the original provisions of the Constitution dealing with the militia, the Court observed that “with obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.” The significance of the militia, the Court continued, was that it was composed of “civilians primarily, soldiers on occasion.” It was upon this force that the States could rely for defense and securing of the laws, on a force that “comprised all males physically capable of acting in concert for the common defense,” who, “when called for service were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. ”Therefore, “in the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than 18 inches in length’ 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

But, this changed in 2008 and 2010. The case of the District of Columbia v. Heller, 554 U.S. 570 (2008), was a landmark case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for traditionally lawful purposes in federal enclaves, such as self-defense within the home. The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states, which was addressed later by McDonald v. Chicago (2010). It was the first Supreme Court case in United States history to decide whether the Second Amendment protects an individual right to keep and bear arms.

On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Parker v. District of Columbia. The Court of Appeals had struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are "arms" for the purposes of the Second Amendment, found that the District of Columbia's regulations act was an unconstitutional banning, and struck down the portion of the regulations act that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." "Prior to this decision the Firearms Control Regulation Act of 1975 also restricted residents from owning handguns except for those registered prior to 1975."

In 1010 The McDonald Case, cited above, finally put the nail in the coffin of the states wanting to restrict gun ownership. Falling back on the incorporation of the Due Process Clause of the 14th Amendment the Supreme Court determined that not only was the federal government prohibited from “infringing” on the right to bear arms, so were the states. The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states.

Here is what James Madison had to sat about citizens bearing arms in Federalist No. 46:

“Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it. The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people. On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.”

The primary consideration in the mass murder in Aurora, Colorado, last week is the issue of Essential Liberty. The natural right "endowed by our Creator" to keep and bear arms is, as James Madison's Chief Justice, Joseph Story, put it, "the palladium of the liberties of the republic." So given that some are pushing to take away that right, here are a few thoughts.

If at least one concealed-carry permit holder had been allowed to carry a firearm into that theater, the killer could have been stopped. Unfortunately, it is unlawful to carry a concealed weapon in Aurora, though that can't preempt Colorado law, and the theater itself bans carried weapons, so the only one with a weapon that night was the perpetrator. Neither Aurora's gun restrictions nor Colorado's laws against murder stopped this incident, and taking more rights from the law-abiding won't stop the next crime, either.

We wonder if the Left ever pondered this: Why don't mass murders take place at gun shows or NRA conventions? Answer: The bad guys aren't dumb and look for so-called "gun-free zones" where they can kill at will. Suggesting that violence is a "gun problem" ignores the real issue — the now-generational socio-pathology instituted by the Left.

Of course, those inconvenient truths didn't stop the leftist chorus of gun grabbers.

New Jersey Democrat Sen. Frank Lautenberg pontificated, "Let's stop wasting time and start saving lives. We have to face the reality that these types of tragedies will continue to occur unless we do something about our nation's lax gun laws." Therefore, the Senate added an amendment to the pending cyber-security bill banning magazines with a capacity higher than 10 rounds.

New York Mayor Michael Bloomberg recommended that America's police officers should strike until more draconian gun control laws are enacted. "I don't understand why the police officers across this country don't stand up collectively and say we're gonna go on strike, we're not gonna protect you unless you, the public, through your legislature, do what's required to keep us safe."

Setting aside the sheer legal idiocy of this remark — police officers are forbidden from striking precisely because of the potential threat to public safety, which Bloomberg was forced to admit — the mayor sounded just like an urban politico who has a 24/7 police escort. Perhaps he should set the example by discontinuing his security detail and displaying a "Gun Free" sticker. After all, if he's assaulted and seconds count, the NYPD will only be minutes away!

Even Mexican President Felipe Calderon chimed in, saying, "Because of the Aurora, Colorado, tragedy, the American Congress must review its mistaken legislation on guns. It's doing damage to us all." And he would know, since Obama was practically gift-wrapping guns for Mexican drug cartels.

Not only did Obama's lemmings carry water for him on gun control, but the leftwing media piled on as well. The Associated Press's Steven Hurst "reported" that, "controlling access to guns would appear, on its face, the simple answer to preventing public massacres like the movie-theatre tragedy in Colorado." We note that this was not an opinion column, but a "news article."

Perhaps the most egregious offense, however, was when ABC's Brian Ross fired a round at the Tea Party with his now-infamous remark that the murderer, "Jim Holmes of Aurora, Colorado," is mentioned "on the Colorado Tea Party site, talking about him joining the Tea Party last year." With his unsubstantiated innuendo, Ross carelessly smeared an unrelated "Jim Holmes of Aurora," all for the sake of a political point against the Tea Party.

Barack Obama couldn't resist the temptation to personalize it: "My daughters go to the movies. What if Malia and Sasha had been at the theater?" Of course, if Malia and Sasha had been in the theater, nobody with so much as a nail clipper would have been allowed in that mall. But then our kids don't all travel with a Secret Service entourage. The bottom line: We mustn't allow the Left to take away our Liberty. If we do, we become slaves.

Justice Joseph Story, appointed to the Supreme Court by our Constitution's principal author, James Madison, wrote in his "Commentaries on the Constitution of the United States" (1833), "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

Gun-free nations are safer — at least for folks like Hitler, Mussolini, Stalin, Mao, Idi Amin, Castro, Pol Pot and Saddam, all of whom disarmed their detractors before slaughtering them by the tens of millions.

History records the consequences of disarming people, both in terms of protection, in their person and property, from tyrannical governments and from criminals. Regarding the latter, "If guns are outlawed, only outlaws will have guns."

Thomas Jefferson understood that maxim. In his Commonplace Book, Jefferson quotes Cesare Beccaria from his seminal work, On Crimes and Punishment: "Laws that forbid the carrying of arms disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."

The same can be said of so-called "gun-free zones" in America, as on the campus of Virginia Tech.

In 2002, at the Appalachian School of Law just up the road from Virginia Tech, a Nigerian student, who had flunked out, returned to campus, murdered three people and wounded three others. Fortunately, his killing spree was interrupted by two students who had retrieved handguns from their vehicles and held the murderer at gunpoint until police arrived.

In 1997, an assistant principal in Pearl, Mississippi, retrieved a handgun from his car and apprehended a murderer. A few days later, a copycat assault in Edinboro, Pennsylvania, ended after a nearby merchant wielding a shotgun forced the attacker to surrender. Off campus, it is estimated conservatively that gun owners use their weapons defensively more than 1.3 million times each year.

With that as a backdrop, in 2006 Virginia Tech admonished a student for having a handgun on campus — never mind that the student had a state-issued concealed-carry permit.

That admonishment was a motivating factor behind a proposed bill before the Virginia legislature to prevent academic institutions from enacting "rules or regulations limiting or abridging the ability of a student who possesses a valid concealed-handgun permit from lawfully carrying a concealed handgun."

The legislation died in committee, prompting Tech's associate vice president, Larry Hincker, to praise the General Assembly in a Roanoke (Virginia) Times op-ed: "I'm sure the university community is appreciative of the General Assembly's actions because this will help parents, students, faculty and visitors feel safe on our campus. We believe guns don't belong in the classroom. In an academic environment, we believe you should be free from fear."

A month later, there was a murder near Tech's campus, prompting a lockdown.

In response, Tech grad student Bradford Wiles penned an op-ed in the campus paper calling on the school to allow those with concealed-carry permits to carry guns on campus should they choose.

Larry Hincker emerged again, protesting, "It is absolutely mind-boggling to see the opinions of Bradford Wiles. Surely, [the editors] scratched their heads saying, 'I can't believe he really wants to say that.' Guns don't belong in classrooms. They never will. Virginia Tech has a very sound policy preventing same."

Congratulations Mr. Hinkler. Your "sound policy" created a "safe campus" for only one student — Cho Seung-Hui — who was able to slaughter 32 people without interruption.

Suggesting that mass murder is a "gun problem" ignores the real problem — murderous pathology and the culture which nurtures it is.

If guns cause homicides, then one may, by logical extension, draw the following conclusions about causal factors for the top U.S. mortality groups: golden arches cause heart disease, cigarette lighters cause cancer, sex causes abortions, steering wheels cause car accidents, toxic-warning labels cause poisonings, ladders cause falls, and bottles cause deaths associated with alcohol abuse.

Of course, by way of this liberal blame shifting logic, one may also conclude that commercial jets and truck bombs cause buildings to collapse, freedom causes tyranny, beards cause terrorism, SUVs cause global warming, White House interns cause infidelity, saying "no" causes rape, chains cause slavery, matches cause arson, cameras cause pornography, burgers cause obesity, bathing suits cause drowning, marriage causes divorce, crowbars cause burglary, credit cards cause bankruptcy, elections cause corruption, 24-hour news-cycle talking heads cause ignorance, ad nauseam.

According to the most recent annual statistics from the Centers for Disease Control, there were 11,500 homicides committed by perpetrators using guns. There were 18,000 deaths committed by perpetrators using vehicles after consuming alcohol. Your chances of being killed by a drunk driver are 56 percent higher than being killed by a perp with a gun.

In the last decade, there were almost 180,000 (that's 180 thousand) people killed in car wrecks where alcohol abuse was a key factor. In the same ten-year period, there were 110 students (including those at VA Tech) murdered on campus by psychopaths. [2006 statistics]

Perhaps the Brady Campaign and Democrats in Congress should set their sights on federal legislation mandating a five-day waiting period before purchasing alcohol. After all, many of the perpetrators who used guns instead of cars to commit homicide were also abusing alcohol.

Fact is, if we exclude gang-bangers and crack heads, the probability of being murdered in the U.S. is more in line with the oft-cited lower murder rates in Western Europe — but let's not separate the wheat from the chaff.

Cato Institute Senior Fellow Robert Levy recently noted: "Many politicians have exploited a few recent tragedies to promote their anti-gun agenda. But gun controls haven't worked and more controls won't help. In fact, many of the recommended regulations will make matters worse by stripping law-abiding citizens of their most effective means of self-defense. Violence in America is due not to the availability of guns but to social pathologies — illegitimacy, dysfunctional schools and drug and alcohol abuse. Historically, more gun laws have gone hand in hand with an explosion of violent crime."

Forty states now issue carry permits to law-abiding citizens — but the liberal press is unrelenting in its effort to undermine such policy.

As Ronald Reagan stated after being shot by the deranged assailant John Hinckley; "You won't get gun control by disarming law-abiding citizens. There's only one way to get real gun control: Disarm the thugs and the criminals, lock them up and if you don't actually throw away the key, at least lose it for a long time. It's a nasty truth, but those who seek to inflict harm are not fazed by gun controllers. I happen to know this from personal experience."