The right to bear arms: what is the confusion?
By Donald C. Brockett
The Tyrannical Rule Of The U.S. Supreme Court: How The Court Has Violated The Constitution by Donald C. Brockett – published 2015
THE SECOND AMENDMENT TO THE CONSTITUTION provides:
“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.”
You will notice that there are no limitations on this right as stated. How then can limitations be placed on this right by the Court under the plain wording of the Constitution? Because the Court has been allowed to get away with it!
Let’s start at the beginning. What was the militia? It was every able- bodied man who could be called into service in the event the country needed him. The Continental Army was made up of the men from the militias from the states who then defeated the English. Since the founders did not want a standing army, because it could be taken over by the federal government and divest them of their rights, the troops disbanded and went home but they could be called up and form a militia if needed.
When studying the Constitution it is important to consider the understanding of the people when they were writing various provisions in order to protect them from the federal government.
Let’s look at the drafting of the 2nd Amendment. The first draft of the 2nd Amendment proposed by James Madison read as follows:
“The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” 144 (underlining added)
When the amendment was finally sent to the states and ratified by them it 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.” 145 (underlining added)
Notice the difference? In the amendment ratified by the states, the conscientious objector phrase was eliminated and, more importantly, the language that the militia was “the best security of a free country” had been replaced by the language that it was “necessary to the security of a free State”.
Why is that important to our discussion of the 2nd Amendment? Because, as previously stated, the Constitution was designed to limit what the federal government, once established, could do. With the experience of the colonists in the revolution establishing this country, our founders wanted to assure that the federal government could not invade a state to establish federal rule without the citizens of that state having the ability to repel them with their own weapons. So the right was specifically established for them to have their own “arms” so they could be called up as a militia for the defense of their state.
Further support is found for this position in the language of Article I, Section 10 of the Constitution where it is stated:
“No state shall, without the Consent of Congress, … engage in War unless actually invaded, or in such imminent Danger as will not admit of delay.”
How would the citizens of a state have the ability to repel an invasion if this provision did not exist and they had no ability to have or use weapons because they could not possess them? If there were limitations to the provisions of the 2nd Amendment it would render the language of Article I, Section 10 null and void.
When considering the 2nd Amendment, rarely does anyone look to the 3rd Amendment for guidance. At the time, the citizens of the United States did not want to have a standing army because they knew the government could take charge of the army and cause it to rule them. For that reason, and since the militias of the states had been called up in order to the fight the British for their freedom, our founders put into place the 2nd and 3rd Amendments. The 3rd Amendment is often considered as the forgotten amendment.
The 3rd Amendment provides:
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
How would citizens be able to prohibit soldiers from being quartered in their homes if they had no ability to possess weapons individually because they were only allowed in militias? The 3rd Amendment would be meaningless.
In the first case to be determined under the 2nd and 3rd Amendments, the Court decided the provisions of those amendments applied only to the federal government. The Court decided the state of Louisiana could by state law deprive African-Americans of the rights guaranteed under those provisions of the federal Constitution.
The Court stated:
“The government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the constitution or laws of the United States, except such as the government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States.” 146
So, the states had such powers because the amendments only applied in prohibition to the acts of the federal government.
In Presser v. Illinois, a case following in 1886, Presser was charged with a violation of a state statute saying it was a crime for any group of men, other than the regular organized volunteer militia of the state, and troops of the United States, to gather as a military company or organization, or to drill or parade with arms in any city or town of the state, without the license of the governor.
Presser’s charge said that he “did unlawfully belong to, and parade and drill in the city of Chicago with an unauthorized body of men with arms, who had associated themselves together as a military company and organization, without having a license from the governor”. Among other arguments, Presser argued the law violated the 2nd Amendment of the US Constitution.
The Court said:
“We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.” 147
The Court further added, showing that states, at the time of this decision, were the controlling factor:
“It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine.”148
In other words, since this was a state law, it was up to the citizens of the state of Illinois to determine that their right to bear arms also allowed them, separate from their regular state militia, to gather and form a group that could drill, parade, etc.
The writings of President Thomas Jefferson are also instructive relative to the 2nd Amendment when he said:
“No free man shall ever be debarred the use of arms.” 149
You will notice Jefferson’s statement has no limitations on the right to bear arms.
In a limitation not found in the Constitution, the Court has decided that if a weapon is not for the use of one in a militia at the time, it can be prohibited under the law and the possession of it can be a crime. In United States v. Miller 150 the Court stated:
“In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen 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”151
How did the Court have the ability to decide this when the 2nd Amendment contains no limitations regarding what type of weapon a citizen can possess? It was based on the fact, it said, that the Constitution gave Congress the power to call up the militia and,
“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 and applied with that end in view.” 152
How, logically, does what the Court stated make sense? So the effectiveness of a militia if called up by Congress depends on the individuals of the militia being armed in the same manner as would be required of an invading army? Then, apparently, under that reasoning citizens can be armed with machine guns, automatic weapons, etc., in order to confront an enemy similarly armed for the purpose of warfare. The Court then discusses at length the history of the militia and what was expected of citizens to be ready and able to be called up at any time.
The Court, however, has changed its mind in reference to the right to bear arms.
First, in the District of Columbia v. Heller decision issued in 2008, the Court held that the right to self-defense granted a protection under the right to keep and bear arms provision of the 2nd Amendment against a federal law.153
Then in a 2010 decision, the Court applied that same reasoning to local ordinances of Chicago and Oak Park, Illinois.154 The opinion of the Court was written by Justice Samuel Alito who stated:
“Two years ago, in District of Columbia v. Heller, 554 U. S. (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.” 155
The Court then explains the history of the application of the Bill of Rights to the states through the doctrine of “incorporation”, set out in detail earlier in this book. What had to be decided, according to the Court, was whether the Second Amendment was by virtue of the doctrine of “incorporation” and under the due process clause to be applied to the states. Justice Alito stated:
“ … In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U. S., at 149, or as we have said in a related context, whether this right is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).” 156
Justice Alito goes on to say:
“ … Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,15 and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right. 554 U. S., at (slip op., at 26); see also id., at (slip op., at 56) (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at (slip op., at 57) (some internal quotation marks omitted); see also id., at (slip op., at 56) (noting that handguns are “overwhelmingly chosen by American society for [the] lawful purpose” of self-defense); id., at (slip op., at 57) (“[T]he American people have considered the handgun to be the quintessential self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at (slip op., at 58).” 157
15 Citing Jewish, Greek, and Roman law, Blackstone wrote that if a person killed an attacker, “the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame.” 4 W. Blackstone, Commentaries on the Laws of England 182 (reprint 1992).
Heller makes it clear that this right is “deeply rooted in this Nation’s history and tradition.” Glucksberg, supra, at 721 (internal quotation marks omitted). Heller explored the right’s origins, noting that the 1689 English Bill of Rights explicitly protected a right to keep arms for self- defense, 554 U. S., at – (slip op., at 19–20), and that by 1765, Blackstone was able to assert that the right to keep and bear arms was “one of the fundamental rights of Englishmen,” id., at (slip op., at 20).
Blackstone’s assessment was shared by the American colonists. As we noted in Heller, King George III’s attempt to disarm the colonists in the 1760’s and 1770’s “provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms.”16 Id., at (slip op., at 21); see also L. Levy, Origins of the Bill of Rights 137–143 (1999) (hereinafter Levy).
The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights. “During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.” Heller, supra, at (slip op., at 25) (citing Letters from the Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti- Federalist 234, 242 (H. Storing ed. 1981)); see also Federal Farmer: An Additional Number of Letters to the Republican, Letter XVIII (Jan. 25, 1788), in 17 Documentary History of the Ratification of the Constitution 360, 362– 363 (J. Kaminski & G. Saladino eds. 1995); S. Halbrook, The Founders’ Second Amendment 171–278 (2008)….” 158
Additionally, referring in a historical context to the passage of the 14th Amendment, Justice Alito wrote:
16 For example, an article in the Boston Evening Post stated: “For it is certainly beyond human art and sophistry, to prove the British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights, and, who live in a province where the law requires them to be equip’d with arms, &c. are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs.” Boston Evening Post, Feb. 6, 1769, in Boston Under Military Rule 1768–1769, p. 61 (1936) (emphasis deleted).
“Evidence from the period immediately following the ratification of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental. In an 1868 speech addressing the disarmament of freedmen, Representative Stevens emphasized the necessity of the right: ‘Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty.’ “The fourteenth amendment, now so happily adopted, settles the whole question….” 159
He continued, in reference to what was recognized in the states at that time:
“The right to keep and bear arms was also widely protected by state constitutions at the time when the Fourteenth Amendment was ratified. In 1868, 22 of the 37 States in the Union had state constitutional provisions explicitly protecting the right to keep and bear arms. See Calabresi & Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition? 87 Texas L. Rev. 7, 50 (2008).26 Quite a few of these state constitutional guarantees, moreover, explicitly protected the right to keep and bear arms as an individual right to self-defense. See Ala. Const., Art. I, §28 (1868); Conn. Const., Art. I, §17 (1818); Ky. Const., Art. XIII, §25 (1850); Mich. Const., Art.XVIII, §7 (1850); Miss. Const., Art. I, §15 (1868); Mo. Const., Art. I, §8 (1865); Tex. Const., Art. I, §13 (1869); see also Mont. Const., Art. III, §13 (1889); Wash. Const., Art. I, §24 (1889); Wyo. Const., Art. I, §24 (1889); see also State v. McAdams, 714 P. 2d 1236, 1238 (Wyo. 1986). What is more, state constitutions adopted during the Reconstruction era by former Confederate States included a right to keep and bear arms. See, e.g., Ark. Const., Art. I, §5 (1868); Miss. Const., Art. I, §15 (1868); Tex. Const., Art. I, §13 (1869). A clear majority of the States in 1868, therefore, recognized the right to keep and bear arms as being among the foundational rights necessary to our system of Government.”160 (citations omitted)
Justice Alito concluded this portion of the opinion by stating:
“In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. 161
Does this mean that the Court will now change its mind in reference to having a shotgun because that weapon could be used by a person in self- defense in their own home?
Going on to discuss issues of reasonable regulations on firearms, Justice Alito said:
“ … It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at _– (slip op., at 54–55). We repeat those assurances here….” 162
So, the Court has decided that you have a 2nd Amendment right to “bear arms” but you can only bear those arms if you have a certain mental capacity, do not carry those weapons in certain places and if the government approves of the type of firearm and ammunition used. The Court did not want to “cast doubt” on those laws or regulatory measures and assured their decision did not speak to any of those issues. How could the Court state those reassurances when the case before them did not involve any of those issues? This is a perfect example of pure “dicta” or meanderings of the judge having nothing to do with the decision in the case. In fact, in the future, when a case involving one of the issues is before the Court it may come out differently than those “reassurances”.
This is not say that it is improper not to allow the right to bear arms to certain people because of their mental condition, or not to allow weapons to be carried in certain places. Those issues, however, should be addressed by an amendment or amendments according to Article V and not be subject to the vagaries of how the Court feels at any moment in time.
How can a person depend on the stability of the law in such a system? In fact, in the area in which I practiced for many years, the criminal arena, there is a saying that “this is the only game that is played where a conviction is obtained and after the case goes through all the procedures of appeal in the state and federal systems, the Supreme Court changes the rules and throws everything out the window.”
Therefore, the tyrannical rule continues.
Author Donald C. Brockett
Donald C. Brockett was born in Chicago, Ill. in 1936 and moved with his family to California and then Spokane, Wash. in 1947. He graduated from Lewis & Clark High School and attended Gonzaga University where he graduated from law school in 1961.
Brockett began his legal career in the Spokane County Prosecuting Attorney’s office that year and served as a deputy prosecuting attorney until 1969 when he was appointed prosecuting attorney. He was elected to the position in 1970 and then re-elected six times after that.
He retired at the end of 1994 after serving as the elected prosecuting attorney for 25 years of a 33-year-career in the office. He then entered private practice, remaining there for another seven years. After 52 years of practice, he retired from the practice of law and now is an honorary member of the Washington State Bar Association.
During his time in the prosecutor’s office, he tried numerous cases in the District and Superior courts of Spokane County. He was appointed a special U.S. attorney and assisted in the prosecution of the leader of a biker gang in Spokane, also prosecuting him for the murder of a police officer. He also prosecuted three death penalty cases.
For many years, he handled all appeals in the Washington State Supreme Court and later in that court and the newly created Court of Appeals for Division III. He has argued cases in the Ninth Circuit Court of Appeals, and the US Supreme Court. One of the case he brought concerning obscenity, Brockett v. Spokane Arcades, reached the US Supreme Court. He argued and won the case of Aldinger v. Howard in the US Supreme Court, defending the Spokane county treasurer against a civil rights lawsuit.
One of his most memorable criminal prosecutions was that of Fred Coe, known as the “south hill rapist”, after a number of women had been raped in Spokane. After the trial resulting in several convictions, Coe’s mother tried to hire a hit man to have the trial judge killed and Brockett beaten into the state of an “addlepated vegetable” who was to be in diapers for the rest of his life. Police learned of the plot and met with Mrs. Coe, recorded her conversation, and arrested her. She was then prosecuted and sentenced to jail for 90 days of “school release time.” The case became the topic of Jack Olson’s book Son and was a 1991 television program “Sins of the Mother.”
Brockett currently lives in Spokane with his wife. They had five children, 13 grandchildren and 10 great-grandchildren.
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The Tyrannical Rule of the U.S. Supreme Court: How the Court Has Violated the Constitution
The court has become an oligarchy exercising a tyrannical rule over our country. Instead of us changing our lives through our representative government, amending the Constitution if necessary, we are ruled by the court’s interpretation of clauses of that document or creating words and phrases not contained therein in order to reach the decision they desire.
The present situation must change. We have put up with this nonsense for too long!
The Constitution was born out of the reflective wisdom of our founders, some of the giants of our nation, forming an experiment in government never before tried. Let us not have their work be in vain. They tried to protect us from what history had done over and over to people in subjugating them to the will of the few. They wanted those decisions important to our lives left to us to decide through those we elect.
The Tyrannical Rule of the US Supreme Court was written so you can decide for yourself!
The U.S. Supreme Court, by the way in which it has interpreted the Constitution, inventing words and phrases to justify decisions, has violated Article V in the Constitution. Phrases like “the right to privacy” and now as “right to dignity” have been invented to mold social changes as the court desires them when those terms are nowhere to be found in the Constitution.
In this book, you can expect to find a full discussion of these issues and others of importance to all Americans. Is the court—the third branch of the federal government and meant to be the weakest of the three—fulfilling its duties and functions as envisioned by those who drafted our Constitution and those citizens in the states at the time when it was ratified? Is it time to change it?
The future of our country is in in your hands!
Softcover, 168 pages
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