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March 18th, 2008
05:19 PM ET

Gun Control and the Second Amendment

A pro-gun advocate holds up a sign outside the Supreme Court in Washington, as the court heard arguments in an attempt to overturn the District of Columbia's firearms ban. The District of Columbia is asking the Supreme Court to preserve the capital's ban on handguns in a major case over the meaning of the Second Amendment's “right to keep and bear arms.
A pro-gun advocate holds up a sign outside the Supreme Court in Washington, as the court heard arguments in an attempt to overturn the District of Columbia's firearms ban. The District of Columbia is asking the Supreme Court to preserve the capital's ban on handguns in a major case over the meaning of the Second Amendment's “right to keep and bear arms.

Kevin R.C. Gutzman
J.D., Ph.D.

Neither side has it right in the Second Amendment case currently before the Supreme Court.

District of Columbia v. Heller is an appeal from a federal appeals court’s decision that the D.C. gun control laws violate the Second Amendment. The circuit court’s decision reflected what I believe is the emerging scholarly consensus around the position that the Second Amendment involves an individual right to keep and bear arms.

Gun control advocates on one side and gun rights advocates on the other dispute this question. Since I am known as an originalist, I was asked to sign an amicus brief arguing that the Second Amendment bans laws like D.C.’s.  I refused to sign.

Does that mean that I do not believe that the Second Amendment reflected an individual right to keep and bear arms? No, it means that I do not believe that the District of Columbia is governed by the Second Amendment.

Why? Because the District of Columbia, insofar as it behaves as a state, is properly treated as a pseudo-state by the Supreme Court.

The original understanding of the Bill of Rights, including the Second Amendment, was reflected in the Bill’s preamble. That preamble says that the Bill of Rights was added to the Constitution "in order to prevent misconstruction or abuse of its [that is, the federal government’s] powers." It was not about empowering federal judges to strike down state laws, in other words, but about limiting federal power.

The Supreme Court reflected this understanding in the 1833 case of Barron v. Baltimore (1833). There, for a unanimous Court, Chief Justice John Marshall said that the Bill of Rights limited only the powers of the federal government, not those of the states. This was the only significant decision in which Marshall came out for a limitation on federal power; he did so because what he was saying was indisputable.

One might counter by saying that the District of Columbia is part of the federal government. Yet, Congress long ago delegated home rule functions to D.C., and it allows residents to elect mayors, city councilors, and a delegate to Congress. When it comes to the Second Amendment, then, D.C. is a state, and the Second Amendment does not restrict its policy-making discretion.

This is not to say that gun control laws are a good idea. It also does not mean that D.C. residents do not have a right to keep and bear arms. What it means is that if they want that right to be respected, people in D.C. should take that up with their own government, not end-run the republican process by trying to get the Court to overturn its valid laws.

If the conservative majority on the Supreme Court rules in favor of Mr. Heller and against the D.C. gun laws, it will be ruling against the original understanding of the Second Amendment.

Editor's note: Gutzman, an associate professor of history at Western Connecticut State University, is the author of The Politically Incorrect Guide to the Constitution and, with Thomas E. Woods, Jr., of the forthcoming Who Killed the Constitution?  The Fate of American Liberty from World War I to George W. Bush


Filed under: Crime & Punishment • Gun Control • Supreme Court
soundoff (15 Responses)
  1. e.h.

    I am currently have a concelled handgun liscense and as a father i have the gun for my families protection. If you take away individual rights to own handguns only the criminals have guns. I have seen several people say some things about gun registration. Guns are registered to the person who purchases them. If someone attempts harm to me or my family they will pay with their life.

    March 19, 2008 at 12:08 am |
  2. Nancy V.

    Re" Guns don't kill people, blah, blah..."
    If a deranged person rushed into a university lecture hall (ala University of Northern Illinois), without a gun and threatened to kill everyone in the hall, how many students would be killed?

    The current Supreme Court is a joke. They take away home rule and the neo-cons on the Court still haven't given Americans a valid interpretation of the 2nd Amendment.

    March 18, 2008 at 9:55 pm |
  3. Womenvoice

    It is overdue that this law-constitution is amended. Just look at how many innocent people have been killed senselessly.

    Yes, criminals will bear a killing intention with or without guns, but they would kill far fewer without a gun.

    March 18, 2008 at 9:37 pm |
  4. Johnny Too Good

    I LOVE MY GUN and I need it!
    if the government takes away the citizens' guns who will protect the law abiding citizens from the criminals who continuously break the law?

    March 18, 2008 at 8:51 pm |
  5. SJW

    Devo-Mar – You are correct: Art. I, Sec. 8 gives Congress the authority to pass laws necessary for governing D.C. But aren’t you conveniently forgetting something? – namely that Congress can’t pass a law that violates the Constitution? See Marbury v. Maddison, 5 U.S. 137 (1803).

    March 18, 2008 at 7:17 pm |
  6. ROBERT LEE

    THE EARLY AMERICAN'S NEEDED THEIR GUNS AT THE READY AT ALL TIMES,BECAUSE THEY HAD NO ARMY OF SORTS,SO EVERY MAN NEEDED A GUN.POLICE WAS SCARCE . DO WE NEED SEMI
    AUTOMATIC'S TO HUNT,I DON'T THINK SO.HOW MANY MORE WILL
    DIED SO THE BOTTOM LINE CAN BE MET. THE 2ND WAS FOR MILITIAWE DONT'S HAVE ONE NOW.

    March 18, 2008 at 7:14 pm |
  7. kathy

    Bad people will get guns law or not.

    March 18, 2008 at 7:07 pm |
  8. Alan

    The Constitution does not protect your right to own a car. It does protect your right to bear arms.

    March 18, 2008 at 7:06 pm |
  9. J-Z

    I love how in order to "stop crime" people advocate taking away my rights as a gun owner rather than punish the actual criminals. someone murders a person with a gun they get 3 hots and a cot. access to information, books education, exercise equipment, drugs, sex and cable. This way they can tell the world what victims of society and how unfair it is. then they get out and commit more crimes, But it is my fault crime exists, because I'm a legal gun owner.

    March 18, 2008 at 6:42 pm |
  10. John

    Can't we just agree that the second amendment became somewhat antiquated when a well-regulated militia was no longer necessary to the security of any free state? We DO rely on a professional millitary now, the premise upon which the ammendment is asserted, to secure states, is no longer the function of any civilian with a gun.

    March 18, 2008 at 6:41 pm |
  11. Steve

    Makes sense- Allow the sale of semi-automatic weapons and other weaponry but take away the homeowners hand guns. Our society is so screwed up when it comes to the ridiculous acceptance of guns. How about a presidential candidate actually saying something meaningful about one of the country's most serious problem that too many people turn there heads too!

    March 18, 2008 at 6:10 pm |
  12. Tammy

    It wouldn't be the first time the Supreme Court justices have trumped states' rights, and it probably won't be the last, if they rule in favor of Heller. I am a gun owner, and I do believe gun control is an issue for individual states to settle, not the federal courts. Thanks for posting something that actually made me think today (besides the Shock and Awe post earlier).

    March 18, 2008 at 6:05 pm |
  13. Cindy

    I don't think that the government should be able to take away everyone's right to own a gun. I mean there is a need for gun control laws to keep them out of the wrong hands. But if you are a law abiding citizen then you should be able to own as many as you like. It should be no ones business but your own.

    Cynthia, Covington, Ga.

    March 18, 2008 at 5:48 pm |
  14. Joseph Kowalski, North Huntingdon, PA

    Since I am not a lawyer, I have nothing to say about the merits of this particular case from either side.

    But with so many gun related deaths and injuries in the United States, something must eventually be done to control gun ownership.

    We have more laws governing who should own a motor vehicle than we do a gun and a motor vehicle's primary purpose isn't killing as is a gun's primary purpose. At the very least, there should be a registration system for guns similar to what we have for motor vehicles.

    March 18, 2008 at 5:43 pm |
  15. Devo-Mar

    If I remember correctly Congress has the supreme authority over the District of Columbia and allows the city of Washington to have a Mayor.
    Therefore it is up to Congress to set the laws that protect the three branches of the U. S. Government.

    March 18, 2008 at 5:36 pm |