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Judge Jeffrey S. Ryan
No ‘individual right’ to bear arms
State regulations of firearms does not violate U.S. Constitution
The Shootings at Columbine High School have understandably generated strong reactions. Inevitably, the subject of the Second Amendment has come up.
A letter to the editor published in the Summit (Colo.) Daily News by Kevin Bridges misinterprets the amendment, as well as misstating history. In fact, the media, too, are guilty of fostering confusion about the amendment, as journalists routinely refer to the "right" to keep and bear arms without consulting those charged with saying what the amendment actually means: the federal courts.
The following are facts, not opinions, and carry the force of the law.
The Second Amendment acts as a constraint on the federal government, not state or local governments. Initially, the Bill of Rights, of which the amendment is a part, applied only to the federal government. In 1868 after the Civil War, the 14th Amendment was ratified by the states. The 14th Amendment caused certain of the amendments in the Bill of Rights to be binding in the states. The Supreme Court has held that the Second Amendment was not one of these, and does not apply in the states. And since the Constitution gives the Supreme Court the Job of deciding cases involving the Bill of Rights, the court has the final word.
This means state and local governments are free to regulate possession and use of firearms without violating the federal Constitution. Arguments that a particular state gun laws goes against the Second Amendment are meaningless, because the states are not required to follow it.
What of the Second Amendment in the federal arena? Every single federal court of appeals that has addressed the issue has ruled that the amendment forbids Congress from disarming the "well-regulated" militias of the various states. (The Supreme Court has held that the modern National Guard is the militia referred to by the Constitution.) In other words, the amendment is designed to protect the right of the states to maintain militias. It has never been held to apply to the use of arms against criminals, or, more ludicrously, against the government. Most important, the courts have uniformly held that the amendment does not create or recognize a personal right to "keep and bear arms."
Let me stress that this is not a matter of dispute in the federal courts or appeals. Each one that has considered the Second Amendment has reached the same conclusion. The Supreme Court has been asked to review many of these decisions, and has declined every time. That leaves the decisions of the courts of appeals as the final, controlling law.
It is not that the Founders didn’t consider an individual right to posses arms: Samuel Adams proposed that the Constitution contain such a right, but even he wound up voting against it. The New Hampshire delegation also offered such a proposal. It was defeated. Robert Whitehall of the Pennsylvania delegation proposed a guarantee of an individual right to bear arms. It was likewise defeated. So it is clear that the Founders could have provided for such right, but chose not to.
he Second Amendment originally contained a provision, in a final phrase, that exempted conscientious objectors from having to perform militia services. This was removed because Eldridge Gerry, a delegate from Massachusetts, feared that the government might unilaterally declare certain classes of people, e. g. Catholics, to be "scrupulous of bearing arms," and discriminate against otherwise eligible militiamen. But such a provision further makes clear that the amendment concerned state militias, and not an individual right to possess firearms.
Bridges’ letter to the editor also states that "Hitler first required firearms registration and … authorized confiscation of all privately owned firearms." This is not true.
The German Weapons Law of March 18, 1938, enacted by Hitler’s National Socialist government, liberalized gun ownership, as opposed to restricting it. It lowered the legal age for gun ownership from 20 to 18; extended the period a weapons permit was valid; eliminated a previous limit on the number of guns a person could own; and did away with a previous requirement of permits for long guns. While the law forbade Jews from manufacturing or selling firearms, it did not forbid them from owning firearms, contrary to popular thought. When American GIs occupied Germany, they were shocked at the number of guns that private citizens owned. Notably, all this gun ownership did not prevent the rise of Nazism or the extermination of the Jews. (An oft-cited Hitler "quote" about gun registration has been proved to be a hoax, though that has not stopped many from repeating it.)
Without providing any proof that gun ownership was forbidden in the former Communist bloc (it certainly wasn’t in Russia), Bridges invokes those nations as proof of the perils of gun control. He fails to mention that countries such as Japan and Great Britain also have extremely strict gun control. Perhaps he considers these to be totalitarian, oppressive governments as well, but, if so, he is in a distinct minority.
The Second Amendment was primarily authorized by James Madison. It was created to satisfy the anti-Federalists, who feared dilution of states’ rights, not individual rights. Concern from the state militias was a result of fear of a federal standing army. But the Constitution not only created the mechanism for such a standing army, the newly created federal government had in fact won the argument by gaining true control over them.
Many organizations with agendas have spread inaccurate interpretations of the Second Amendment. Unfortunately, despite the very clear decisions of the courts, the press and the public have parroted these misinterpretations with no critical analysis.
If people are misinformed about the law, they will be quite disappointed when the courts rule as they inevitably must.
Most of the public is, unfortunately, ill-informed about the law and the Constitution as it is. Mindlessly parroting the phrase "the right to keep and bear arms," with no explanation of the phrase’s true history and meaning, to say nothing of its militia context, doesn’t help.
Last, some words from people far wiser than I:
"The real purpose of the Second Amendment was to ensure that the ‘state armies’ – ‘the militia’ – would be maintained for the defense of the state. … The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires." – Warren E. Burger, former chief justice of the United States.
"A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment. Our decisions belie that argument, for the Second Amendment was designed to keep alive the militia." - William O. Douglas, former justice of the U.S. Supreme Court.
If people intend to invoke the Second Amendment, which is a matter of constitutional law, they should at least know what that law is.
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Jeffrey S. Ryan is a Summit County judge in Breckenridge, Colo. This is reprinted from the Summit Daily News.
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