The Constitutionality of Federal Gun Control Laws and the Question as to Whether Local Resolutions Are Appropriate | Eastern North Carolina Now

    The Heller and McDonald Decisions --

    It just so happens that at this point, the Supreme Court has confirmed the original meaning of the Second Amendment.

    The District of Columbia v. Heller (2009) and McDonald v. City of Chicago (2010) cases marked the first time in about 70 years that the Supreme Court was willing to consider the meaning of the Second Amendment. For the first time, the Court was presented with the question of whether the Second Amendment protects an individual's right to bear arms for private purposes. In Heller, the Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes, such as self- defense. The Court based its holding on the text of the Second Amendment and its history, as well as applicable language in state constitutions adopted soon after the Second Amendment.

    The McDonald case came to the high Court from the Seventh Circuit, where the panel of judges held that states had the right to enact gun bans because the Fourteenth Amendment did not require the states to respect the rights protected under the Second Amendment. Luckily, the Supreme Court reversed the Seventh Circuit. It held that, indeed, the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. In analyzing whether a particular right protected in the Bill of Rights applies to the States through the Fourteenth Amendment, the Court has come up with a threshold determination and that question asks whether the particular right is one that is "fundamental to the Nation's scheme of ordered liberty" or one that is "deeply rooted in this Nation's history and tradition." If the Court determines that it is so, then the Court will declare that the particular right is appropriately applied to the states through the Fourteenth Amendment. Based on the review done in Heller and the decision it reached, the Court in the McDonald case recognized that the right to self-defense was one such "fundamental" and "deeply rooted" right. Justice Clarence Thomas went through a detailed analysis to explain just how deeply-rooted that right is.

    Prior to the Heller case, the last case the Supreme Court heard on the Second Amendment was United States v. Miller, in 1938. It was a questionable decision then and unfortunately, because of the Court's doctrine of stare decisis ("that which has been decided": otherwise known as court "precedent"), the Court was still bound by it. Actually, the argument was never asserted in Miller that the Second Amendment protects the individual right to bear arm. Yet the Supreme Court nevertheless upheld a federal gun control law and said that the Second Amendment only protects arms that are reasonably related to the maintenance of a state militia.

    Since that horrible decision, federal circuit and federal district courts have ruled on dozens and dozens of cases in which gun control laws were challenged under the Second Amendment and they have consistently read the Second Amendment to protect a state's right to preserve a militia and have it armed... but not as an individual right to bear arms for private purposes unrelated to militia services. So, while the militia theory of the Second Amendment, or collective rights theory of the Second Amendment, had only been vaguely mentioned by the Supreme Court in Miller, it had become the dominant law of the land in the federal courts in the 70 years prior to Heller.

    In the meantime, scholars began to study the Second Amendment and its history. Over the years, much historical, academic, scholarly material were collected which completely undermined the argument that the Second Amendment protected only a state's right to preserve a militia and not an individual's right to bear arms. Over the last 30 years there has been literally a tidal wave of scholarship looking into the original meaning and purpose of the Second Amendment. The overwhelming majority of studies have sided with view that our Founders sought to protect the individual's right to bear arms for self-defense. And it was this new-found understanding and appreciation of the Second Amendment that guided the Court's decision in Heller and then McDonald.

    In February 2003, the six residents of Washington, D.C. filed a lawsuit in the District Court for the District of Columbia, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975, a local law (part of the District of Columbia Code) enacted pursuant to District of Columbia home rule. This law restricted residents from owning handguns, excluding those grandfathered in by registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also required that all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." A district court judge dismissed the lawsuit. The US Court of Appeals for the D.C. Circuit, however reversed the dismissal and struck down provisions of the FCRA as unconstitutional. In 2008, the case (District of Columbia v. Heller) came before the Supreme Court. The issue presented was whether the Second Amendment protects an individual right to keep and bear arms for the purpose of self-defense. The Court held that it does and as such, the DC ordinance which banned the possession of handguns in the home was struck down as an unconstitutional violation of a fundamental and essential individual right.

    In 2009, 75-year-old Chicago resident Otis McDonald took the initiative to protect himself from the increased threat of crime in his neighborhood of Morgan Park. Since buying a house there in 1971, he watched as the neighborhood fell into the hands of gangs and drug dealers. His lawn was regularly littered with refuse and his home and garage had been broken into a combined five times, with the most recent robbery committed by a man McDonald recognized from his own neighborhood. An experienced hunter, McDonald legally owned shotguns, but believed them too unwieldy in the event of a robbery, and wanted to purchase a handgun for personal home defense. But he was unable to do so under Chicago's city-wide gun ban. Pursuant to the ban, all handguns were prohibited (after 1982) and all firearms had to be registered. In 2008, he joined three other Chicago residents in filing a lawsuit challenging the ban as an unconstitutional violation of the Second Amendment. The case (McDonald v. City of Chicago) was heard by the Supreme Court in 2009.

    The question presented to the Court was whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment's Privileges or Immunities or Due Process Clauses. In other words, the Court was asked to determine whether the US Constitution protects the Second Amendment against infringement or violation by the States. Writing for the majority, Justice Clarence Thomas answered in very strong terms that it does.

    American Thinker gave an excellent presentation of the case: "The most important job of the government is the protection of its people. That protection involves their physical safety and the security of their property. It means providing police presence to deter criminals before they commit crimes and harsh penalties for offenders whose crimes were not deterred. The fact is that most crimes cannot be deterred because the bad guys don't generally mug people in front of the officer on patrol. Since the police can't be everywhere, people need a way to protect themselves. And that was how Otis McDonald felt when he walked into a Chicago police station and applied for a .22-caliber pistol two years ago. As the lead plaintiff in the lawsuit challenging Chicago's 28-year handgun ban, McDonald was a sympathetic figure: an elderly man trying to protect himself from violent hoodlums preying upon his neighborhood. He was also a neighborhood activist, proposing alternative policing strategies to make his neighborhood safer; his efforts earned him death threats from local gangs."

    The Supreme Court was given statistics from the Chicago Police Department which showed that the City's handgun murder rate actually increased since the ban was enacted and that Chicago residents now face one of the highest murder rates in the country. They were given statistics to show that guns increasingly end up in the hands of criminals, gang members, and others who are mal-intentioned. It is also a statistical fact that legal gun owners are exponentially less likely to commit a crime. Bob Weir, a former detective sergeant in the New York City Police offered his views on gun control laws: "We have often heard a scenario in which a law-abiding citizen, unable to wait for assistance any longer, took action against an intruder and lived to talk about it. One of the scariest scenes I can imagine is one in which I'm awakened in the middle of the night by strange sounds coming from another room of the house and I have no weapons to protect my family.... During my twenty years as a cop, I took a lot of guns off the bad guys, none of which were registered. How could they be? Bad guys aren't allowed to have registered guns! Only good guys have that right. Hence, when you make gun possession illegal for the good guys, the bad guys will be the only ones with guns."

    It is also worth noting that in the weeks leading up to the decision, Chicago suffered a surge in gun violence, with between 26-55 shootings per week and many of them being fatalities. Bob Weir commented: "We'll never know if some of those lives would have been spared had the victims been armed. But one thing seems obvious: If the guys with illegal guns knew that the rest of the population was unarmed, they could kick down any door and have their way with the residents. The only thing stopping them now is the knowledge that many people have guns and are willing to use and capable of using them to protect their families. We've all heard tape recordings of people who dialed 911 as someone was breaking into their home only to be told that the police may be several minutes away. In cases where the caller was armed, shots could be heard as the intruder gained entry and tried to attack the caller."

    Police will often joke that many street gangs are equipped with enough firearms to take on the Taliban. In New Jersey, a Trenton-area gang threatened war on the Trenton Police. They sent an anonymous letter to the Trenton Times warning that at the hour of their choosing, they would bomb the building. Eventually the Trenton police would uncover an incredible arsenal of weapons that the gang had compiled. No gun control law could have prevented that arsenal. Such laws only strengthen the black market. Furthermore, our law enforcement and criminal justice system has often proven inadequate to protect law-abiding citizens who become victims of crime and inadequate to disarm the thugs that roam freely throughout the country.

    To make matters worse, the DC Court of Appeals had handed down a ruling in 1981 that should weigh heavily on anyone even contemplating giving up gun rights to the government. It held that a city has no legally enforceable duty to protect its citizens from crime. That case was Warren v. District of Columbia. It involved three women who were living in a townhouse in DC. Under DC law at the time, they were forbidden not only to own handguns but also mace, pepper-spray, and other non-lethal tools of self-defense. Late one evening in March 1975, two thugs broke into the townhouse and attacked the woman downstairs at the time. They began beating her and then raped here. The other two women, hearing the struggle, called 911 and were told that police were being sent. As the transcript later showed, the dispatcher reported only that there was a domestic disturbance. The squad car that responded simply drove past the residence, didn't observe any sign of a disturbance, and drove on his way. The women upstairs then called 911 again and were again told that help was on its way. This time, the dispatcher didn't even bother to send out a radio call. Believing their friend was dying, the women called down to the intruders, telling them that "Police are on their way!" Instead of fleeing, the thugs went upstairs and forced the women at knifepoint to the apartment below. For the next 14 hours, the three women were held captive, raped repeatedly, beaten, abused, and forced to commit sex acts upon one another for the intruders' entertainment. Luckily, the women were spared their lives.

    The women sued the District of Columbia for failing to provide police assistance and lost. The DC Court of Appeals agreed and ruled that the city had no legal duty to protect its citizens, even when its employees have given assurances that help would be provided. Under the ruling, the government is free from responsibility in protecting its citizens even as it is also free to ensure that they cannot protect themselves either.

    The Heller and McDonald cases have undermined the government in one aspect of the Warren decision. The government cannot prevent law-abiding citizens from exercising their right to keep and bear arms for self-protection. The Supreme Court, in those cases, held that the right to own a gun (bear arms) is a fundamental right, one that is firmly rooted in our history and heritage, and as such, citizens cannot be denied this right by the federal government or by any State.

    But permitting the government to condition, qualify, and regulate the right of self-defense will put the power back in the hands of criminals, will put law-abiding citizens at risk, and will set the country on the same path of government gun control that has defined the tyrannical regimes of Europe, Asia, and Africa. The bottom line is that the measures are unconstitutional and the power to stand up to such unconstitutional measures lies with the States and with each state and local elected official and state and local civil servant who has taken a solemn vow to support and defend the US Constitution.


    References:

    Tennessee SB0250 - http://legiscan.com/TN/text/SB0250

    Michael Maharrey, National Communications Director for the Tenth Amendment Center, addresses the arguments made by Tennessee Robert Cooper in his brief against SB0250 - https://www.youtube.com/watch?v=65o_vo8nUIU

    The Intent of the Second Amendment - http://constitution.org/leglrkba.htm

    Federalist No. 45 - http://www.constitution.org/fed/federa45.htm

    Federalist No. 78 - http://www.constitution.org/fed/federa78.htm

    Marbury v. Madison, 5 U.S. 137 (1803)

    Cooper v. Aaron, 358 U.S. 1 (1958)

    Dred Scott v. Sanford, 60 U.S. 373 (1856)

    McDonald v. City of Chicago, 153 U.S. 535 (Oct. 2009)

    District of Columbia v. Heller, 554 U.S. __ (2008)

    Warren v. District of Columbia (444 A.2d. 1, D.C. Ct. of Ap. 1981)

    Bob Weir, "Thanks to Otis McDonald and the Supremes," American Thinker, July 3, 2010.

    James Madison: Report on the Virginia Resolutions (Jan. 1800) - http://press-pubs.uchicago.edu/founders/documents/v1ch8s42.html

    Thomas Jefferson: Resolutions Relative to the Alien & Sedition Act (November 10, 1798) - http://press-pubs.uchicago.edu/founders/documents/v1ch8s41.html

    The Legal and Historical Roots of the Second Amendment (video) - http://www.secondamendmentdocumentary.com/

    The Police Have No Legal Duty to Protect Its Citizens (from the legal documentary "In Search of the Second Amendment") - https://www.youtube.com/watch?v=lb3rAglRsqU

    Alo Konsen, "The Second Amendment Definition of 'Arms'," 2003. Referenced at: http://brainshavings.com/the-right-to-keep-and-bear-what/

    Publius Huldah explains why federal gun control laws are unconstitutional -http://publiushuldah.wordpress.com/2013/03/03/publius-huldah-shows-federal-gun-control-is-unlawful/

    "Obama Gun Control Ban: Confiscate Firearms, NRA Claims," Newsday New York, January 23, 2013. Referenced at: http://newyork.newsday.com/news/nation/obama-gun-control-plan-seize-firearms-nra-claims-1.4697883

    "Here are Obama's 23 Executive Orders," Forbes, January 16, 2013 - http://www.forbes.com/sites/rickungar/2013/01/16/here-are-the-23-executive-orders-on-gun-safety-signed-today-by-the-president/

    The 23 Gun Violence Reduction Executive Actions:

    1. Issue a Presidential Memorandum to require federal agencies to make relevant data available to the federal background check system.

    2. Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.

    3. Improve incentives for states to share information with the background check system.

    4. Direct the Attorney General to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks.

    5. Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun.

    6. Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers.

    7. Launch a national safe and responsible gun ownership campaign.

    8. Review safety standards for gun locks and gun safes (Consumer Product Safety Commission).

    9. Issue a Presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations.

    10. Release a DOJ report analyzing information on lost and stolen guns and make itwidely available to law enforcement.

    11. Nominate an ATF director.

    12. Provide law enforcement, first responders, and school officials with proper training for active shooter situations.

    13. Maximize enforcement efforts to prevent gun violence and prosecute gun crime.

    14. Issue a Presidential Memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence.

    15. Direct the Attorney General to issue a report on the availability and most effectiveuse of new gun safety technologies and challenge the private sector to developinnovative technologies.

    16. Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.

    17. Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.

    18. Provide incentives for schools to hire school resource officers.

    19. Develop model emergency response plans for schools, houses of worship and institutions of higher education.

    20. Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover.

    21. Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges.

    22. Commit to finalizing mental health parity regulations.

    23. Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health.

    Reference:

http://www.forbes.com/sites/rickungar/2013/01/16/here-are-the-23-executive-orders-on-gun-safety-signed-today-by-the-president/

    Publisher's note: Diane Rufino has her own blog, For Love of God and Country. Come and visit her. She'd love your company.

poll#35

If, by chance, this one liberal fantasy could come true: Would gutting the 2nd Amendment of the U.S. Bill of Rights be worthy of saving just one life from gun violence?

8.82%   Yes, I have a zero tolerance to the loss of life if the government would just only help

81.37%   No, the 2nd Amendment is one of our most important amendments

9.8%   This is all so boring

102 total vote(s)     Voting has Ended!