2018: Will the Second Amendment Still Prevent Gun Bans?

Gary B. Wells, Firearms Attorney
Gary B. Wells, Firearms Attorney
Second Amendment Does Not Prevent Gun Bans
Second Amendment Does Not Prevent Gun Bans

USA -(Ammoland.com)- The United States Supreme Court decisions in District of Columba v. Heller and McDonald v. City of Chicago have been properly praised for their affirmation of at least some of the rights guaranteed under the Second Amendment.

Because of the narrow victory of only one justice in both of those decisions, the subsequent death of the Justice Antonin Scalia, the potential this country may elect another president who will appoint several “progressive” justices to the Supreme Court, the limited protections afforded by the Second Amendment may soon disappear and the Supreme Court will allow Congress, states, and municipalities to ban the ownership and possession of firearms.

Before dismissing this statement as hyperbole and conspiratorial, I invite you to review the very words of the four dissenting Supreme Court justices in Heller and McDonald. The recent and absurd Ninth Circuit opinion holding that the Second Amendment right to “bear” arms does not include bearing those arms concealed if outside the home provides only a small window of the extent a progressive court will go to ignore the clear language of the Second Amendment to effectively neuter it. The direction we can expect the Supreme Court to take with a new progressive appointee has already been outlined in the Heller and McDonald dissents. (In the interest of brevity, I have forgone the extensive footnotes required to state which opinion, which dissent, and which justices joined each dissent.)

Firearms Are Only for “State-Organized Militias”

The four dissenting judges in Heller maintained that the Second Amendment was “adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.”

Thus, “the Framers’ single-minded focus in crafting the constitutional guarantee ‘to keep and bear arms’ was on the military use of firearms, which they viewed in the context of service in state militias.” “As used in the Second Amendment, the words ‘the people’ do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.” The phrase “to keep and bear arms” is nothing more than “a unitary right: to possess arms if needed for military purposes and to use them in conjunction with military activities” and those activities are further limited to “service in a state-organized militia.”

No Right Exists for Self-Defense

According to the dissenting judges, the Second Amendment has nothing to do with “limiting the legislature’s authority to regulate private civilian uses of firearms.” They believe the Second Amendment protects only state militias and does not prevent the legislature from enacting laws to “regulate private civilian uses of firearms.” They also believe that the Second Amendment does not protect any rights to own or use firearms for hunting or self-defense because, unlike the protections provided by two states at the time the Second Amendment was passed, the Second Amendment does not specifically mention these purposes. “[S]elf-defense alone, detached from any militia-related objective, is not the [Second] Amendment’s concern.” In McDonald, Justice Breyer added, “the use of arms for private self-defense does not warrant federal constitutional protection from state regulation” and “the Fourteenth Amendment [which generally applies the Bill of Rights to the States] does not incorporate the Second Amendment right to keep and bear arms for purposes of private self-defense.” Still further, “the private self-defense right does not comprise a necessary part of the democratic process that the Constitution seeks to establish” and “the private self-defense right does not significantly seek to protect individuals who might otherwise suffer unfair or inhumane treatment at the hands of a majority.” Justice Stevens also stated that “the Second Amendment right to keep and bear arms (whatever that right’s precise contours)” has not been “incorporated into the Fourteenth Amendment” and therefore it does not apply to the states. Moreover, even if a right to self-defense exists, this does not create a “right to acquire and utilize specific instrumentalities in furtherance of that action” as “while some might favor handguns, it is not clear that they are a superior weapon for lawful self-defense.” “The marketplace offers many tools for self-defense, even if they are imperfect substitutes.”

Justice Stevens ignores the obvious and primary liberty interest from governmental tyranny, stating that “firearms have a fundamentally ambivalent relationship to liberty. Just as they can help homeowners defend their families and property from intruders, they can help thugs and insurrectionists murder innocent victims.”

The Second Amendment Does Not Prevent Restricting Individual Rights, Only Collective Rights

The dissent also refers to the “collective” nature of the rights granted to “the people” by the Bill of Rights. While recognizing the First Amendment “protects the individual rights,” they argue that the “concern” of the amendment was “with action engaged in by members of a group, rather than any single individual.” While the First Amendment refers to rights “that can be exercised by individuals, it is primarily collective in nature.” Thus, an individual’s rights can be restricted, so long as the rights of the collective group are not restricted, which makes the right meaningless. This collective right, combined with the limitation stated in the Second Amendment for “militias” justifies laws restricting the civilian use of firearms. After all, as the dissenting judges believe, “the ultimate purpose of the [Second] Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.” Thus, individual rights can be curtailed and infringed upon so long as some undefinable right of the collective is preserved. As George Orwell wrote in his book, 1984:

The first thing you must realize is that power is collective. The individual only has power in so far as he ceases to be an individual. You know the Party slogan “Freedom is Slavery.” Has it ever occurred to you that it is reversible? Slavery is freedom. Alone-free-the human being is always defeated. It must be so, because every human being is doomed to die, which is the greatest of all failures. But if he can make complete, utter submission, if he can escape from his identity, if he can merge himself in the Party so that he is the Party, then he is all-powerful and immortal.

Despite Reality, Courts Must Give Deference to Legislatures

According to the dissenting justices, courts should give deference to state firearm laws passed whenever the legislature has states nothing more than its intent to protect its citizens. While the dissenters acknowledged the evidence that 1) violence increased after gun laws were passed, 2) strict gun laws and high murder rates coincide, 3) there are significant benefits of firearm ownership for self-defense, and 4) firearm laws affect only law-abiding citizens, they dismissed this evidence as insufficient to “destroy judicial confidence in the reasonableness of a legislature that rejects them.”

Gun Bans Are the Least Restrictive Answer to Crime

The dissent made several additional and troubling comments justifying their belief that handgun bans are constitutional:

  • “The reason there is no clearly superior, less restrictive alternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns.”
  • “If a resident has a handgun in the home that he can use for self-defense, then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence. . . . If it is indeed the case, as the District believes, that the number of guns contributes to the number of gun-related crimes, accidents, and deaths, then, although there may be less restrictive, less effective substitutes for an outright ban, there is no less restrictive equivalent of an outright ban.”
  • “I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.”
  • “And, of course, guns that start out in the home may not stay in the home. Even if the government has a weaker basis for restricting domestic possession of firearms as compared to public carriage—and even if a blanket, statewide prohibition on domestic possession might therefore be unconstitutional—the line between the two is a porous one. A state or local legislature may determine that a prophylactic ban on an especially portable weapon is necessary to police that line.” (Italics added.)
  • “The link between handgun ownership and public safety is much tighter. The handgun is itself a tool for crime; the handgun’s bullets are the violence.”
  • “Thankfully, the Second Amendment right identified in Heller and its newly minted Fourteenth Amendment analogue are limited, at least for now, to the home.”

Precedent or Revisionist

We should be able to rely on the principles of precedent to ensure that the dissenting and any newly-appointed justices will preserve the legal principles set forth in Heller and McDonald, but that is not the case. The four dissenting justices have maintained that the legal principles and supporting arguments set forth in the majority opinions were “novel,” “unusual,” “conflicting,” “inconsistent,” “fashioned . . . out of whole cloth,” “far from clear,” “flawed,” “puzzling,” “wrong,” and “dangerous.” They concluded that the principle set forth in the majority opinion in Heller “was not ‘enshrined’ in the Second Amendment by the Framers; it is the product of today’s law-changing decision.” These are not the words of justices willing to abide by the court’s prior rulings. Heller and McDonald will be easily reversed or their holdings severely limited if the wrong person is elected president.

Gary B. Wells is licensed to practice law in the states of California and Texas. He provides a range of legal services for firearm businesses and owners. His recent book, “Firearm Laws for Businesses & Their Customers, Volume 1: Federal Infringements” can be purchased from his website at www.firearmslaw.attorney.

Firearm Laws for Businesses & Their Customers
Firearm Laws for Businesses & Their Customers
  • 23 thoughts on “2018: Will the Second Amendment Still Prevent Gun Bans?

    1. Just today. I read in a political statement that Sen. Schumer of N.Y. stated that if he takes control of the Senate after the election. He will change the Ist. Amendment with Clinton help.They will rewrite it. So that only political members of Congress will be allowed to have free speech. We the citizens try to talk about our Goverment and some person or persons reports us. It will be 20 years in prison. Plus Clinton will go after the NRA and try to shut there speech down.Fill the S.C with judges who do not care about the 2A. Guys and girls if this happens and A.G Lynch is still there. She stated that she will hunt down and try people who do not turn in there weapons.This is feeling like 1940’s in Germany.I can hear the tanks,planes.drowns,and foot grunts moving.

    2. In my opinion, I don’t believe the gun laws should become a state’s right issue. I’m not knowledgeable on any legal precedent that sanctions state gun laws. So this is just my opinion and thoughts on said issue.

      The Founding Fathers intended for the Constitution to protect us from a tyrannical government. It, the Constitution, was meant to give people freedom from such tyranny. Intended to give people the power, not the government. Unfortunately, many state governments are, or becoming, what the Founding Fathers wanted to protect us from.

      Since the Bill of Rights is a Federal right or power, if you will. In line with the 10th Amendment, only the Federal government should have a say in the matter.

      If we let states regulate guns, then we will fall right into the divide-and-conquer stratagem. Look at Senator Feinstein’s anti gun bill(s). For more than a decade she’s been trying to get it passed. Recently, she made another unsuccessful attempt. Now compare that record of failure to state legislatures. Many state legislatures have passed what Feinstein wishes she could pass. It’s better to fight ONE battle than hundreds of battles in state legislatures and municipalities.

      In closing, imagine, if we had only one Federal Constitutional Carry law enforcing the Second Amendment rather than multiple laws and jurisdictions. No longer would one have to reference multiple state or municipality carry laws. A maze of laws that could entrap the unwary America.

      1. @Eric_CA,if I was in Cali.I wouldn’t want it to be a states right issue either. The key is to live in a free state that supports and defends the Constutution/Bill of Rights.

        1. Hey TEX, I hear you. My plan is retire in another state. I’ve looked at three states and I’m leaning towards Arizona. Unfortunately, my wife and I are on different tracks. I plan on retiring in 1.5 min. to 3.3 max years. My wife will retire in about 7 to 9 years. So until that times comes, I’ll do what I can to support RTKBA in California.

      2. In principle, I think you are right. Tactically, there could be a different answer. (Moreover, there could be in principle a different answer under an argument of States’ rights.).
        Suppose, as you argue, we the PotG hold that the 2A is a Federal-issue ONLY; and, that there is no States’ Rights issue at stake whatsoever. Very well, then, Congress, with (or without the President’s signature) could effectively write the 2A off-the-books. Or, 5 Justices of the Supreme Court could do so in one opinion. Do we, the PotG, want to concede such power to the Federal government?
        Consider an interruptive tactic. Suppose we the PotG hold that the Federal Constitution sets a sort-of-floor under which no State may fall. “The Right” of “the People” shall not be “Infringed”. Having “incorporated the 2A upon the States, the States are obliged to respect that “Right”. And yet, each State holds the Power under its own constitution to grant greater rights than those protected by the 2A.
        Now, the Congress or SCOTUS could strangle the 2A in its crib; but in so doing, could NOT stop any State from recognizing some State-constitutional Right not protected by the 2A. Think about that.
        Think about a States’ Rights position about guns just as there is a States’ Rights issue about Pot.
        Imagine the Federal Government attempting to enforce a National Power in Alaska or Wyoming. With no Police Chief or Sheriff of those States willing to cooperate. Imagine the US Attorney trying to raise a Grand Jury or petit jury willing to convict a citizen of their State for violating a Federal gun-control law.
        So long as we hold that there IS -and forever will remain – a States’ rights issue in the Right to KBA, the Federal Government can not prevail. The Feds will have to fight us from 45 to 44 to 43 . . . to 3, 2 and finely 1 hold-out. They could never succeed in this count-down from 50 to 1.

        1. Hi Mark, Thank you for your comment. You made some interesting points. I’ll try to provide a reasonable rebuttal.

          1. “Congress, with (or without the President’s signature) could effectively write the 2A off-the-books.” Congress on it’s own can’t repeal a Constitutional Amendment. To repeal an amendment, Congress needs two-thirds vote. Then two-thirds of states to ratify a the new amendment repealing the existing one. This is not easy to do.

          2. “Consider an interruptive tactic. Suppose we the PotG hold that the Federal Constitution sets a sort-of-floor under which no State may fall. “The Right” of “the People” shall not be “Infringed”. Having “incorporated the 2A upon the States, the States are obliged to respect that “Right”. And yet, each State holds the Power under its own constitution to grant greater rights than those protected by the 2A.” Unfortunately, some states are restrictive and unconstitutional. This where the Federal law should supersede the state’s law and anything less or restrictive should be an infringement.

          3. “Now, the Congress or SCOTUS could strangle the 2A in its crib; but in so doing, could NOT stop any State from recognizing some State-constitutional Right not protected by the 2A. Think about that.” It’s hard to argue this point. SCOTUS is too powerful and that’s scary. They should be impeached for not following there oath or an procedure for overruling the SCOTUS. I like Mark Levin’s The Liberty Amendment in regards to SCOTUS.

          4. “Think about a States’ Rights position about guns just as there is a States’ Rights issue about Pot.” Pot is not in the constitution, so I think the Federal Government is over reaching. This should be a state issue.

          5. Your last paragraph makes a strong argument for State gun rights. But what if the State is more restrictive? I honestly don’t know which way would be better. Good discussion though.

    3. Time is drawing closer and closer to another “Patrick Henry” moment in time!
      Do you live on your knees, kissing the feet of a tyrannical government, OR, do you die on your feet defending our liberty. As for me I would count it an honor just to polish the boots of Thomas Jefferson, the author of the Declaration of Independence!

    4. If H.C is elected. One can expect an out attack on your weapons. She stated if she wins the President race. She will try Aussie style of turning all your weapons in to the state or Goverment. If you do obey she will turn lose the Police. Military or ask the U.N. for thousands of Blue Helmets. If you think this old bag cares about being President. Think again. She wants ruling power. Does not care about the country or its citizens.If this happens. Just think Revolt.
      .

    5. What I find amazing is the dissenting judge’s failure to read the preamble to the bill of rights and existing federal code. Yes, there is a preamble to the bill of rights, look it up, and there is existing defining documents as to what is the militia.
      In the preamble to the bill of rights, it is plainly written out why these amendments are needed and to the purpose of these amendments. That is, these amendments are restrictive and declarative statements, to hold in check the federal powers.
      Our founding fathers viewed the militias “manpower” to be comprised of all citizens physically able and armed to respond to any threat. I am a member of my state militia, see: U.S. Code Title 10 section 311.

    6. The Founders understood the people to be the militia, and that is how they used the language in Bill of Rights provisions. Thus, the Second Amendment is not confusing at all. Those who support gun control just don’t like what it says and are in complete denial of extensive historical documentation available at On Second Opinion Blog and in The Founders’ View of the Right to Bear Arms, which is where all of the period history and Mason Triad context are presented. Read the journal article cited above and note that the militia are not the military, they are the people, and they only become part of the military if they are in fact called out into service, and then only when there is an actual relevant emergency for that call out, per the Fifth Amendment. The Second Amendment was intended to make certain that the civil population, which is the civil power mentioned in Mason Triads, were in control of government military force. The only possible way of accomplishing this is to protect private rights, and that is exactly how James Madison treated both clauses of the Second Amendment in his proposal to Congress in 1789.
      Read the period historical sources. No one has ever regretted doing so. This way pro-rights supporters understand those rights much more thoroughly allowing them to provide documented correction to pro-control types, and pro-control supporters learn they are completely wrong about pretty much everything.

    7. Why would the 2nd Amendment need to protect the right to bear arms for the state militia ? I’ve never seen anybody argue that the 2nd Amendment is needed to allow the military to have all sorts of weapons including WMDs nor the police to have grenade launchers and select fire weapons. The NFA regulates firearms owned by the non-military and non-police. By default, it demonstrates that firearm possession by government entities are unlimited. The Constitution limits what the government can do to restrict the people. The 2nd Amendment protects the people from government’s attempt to be oppressive. So, simply put, if the government (militias) doesn’t need the 2nd Amendment, it must apply to the people.

    8. Justice Stevens’ Heller dissent is founded upon a fallacious conflation of two different amendments proposed by the Virginia Ratifying Convention of 1788. To prove his state militia protecting argument, Stevens quoted George Mason discussing the need for an amendment of Article 1, Section8 militia powers. He did not quote the actual amendment Mason stated because it was not the Second Amendment predecessor. However, he applied the intent of this “other” amendment from the “other” amendments list of Virginia to the predecessor of the Second Amendment, which was in the bill of rights list since it was an exact copy of Virginia’s own 1776 Declaration of Rights that limits the state government. Justice Stevens Heller dissent went on to erroneously assert that the Second Amendment’s immediate predecessor was the amendment Mason was discussing and apply the wrong intent to all Second Amendment predecessors.
      This fundamental error underlies everything Justice Stevens wrote in the Heller dissent. And the error was compounded by the fact that Mason also stated that his militia powers proposal was the only change needed to the militia powers of Article 1, Section 8. Mason wrote all of Virginia’s 1788 proposed amendments, and this means that the author of Virginia’s 1788 for the U.S.Bill of Rights understood the Second Amendment as unrelated to militia arming authority.
      These facts are documented at On Second Opinion Blog in the first part of a series on Justice Stevens’ Train Wreck of American History, here: http://onsecondopinion.blogspot.com/2014/02/the-district-of-columbia-vs-heller.html
      This information from the author of Second Amendment’s predecessor directly contradicts ALL gun control advocate beliefs and claims regarding the reason for its addition to the Constitution. The second part of the On Second Opinion Blog series documents the same points using entirely different documents from Virginia’s 1788 Ratifying Convention here: http://onsecondopinion.blogspot.com/2014/02/the-district-of-columbia-v-heller.html
      A complete, documented journal article on Second Amendment developmental history is available online here: http://www.secondamendmentinfo.com/Journal/index.html
      The truth is out there – go look up Mason Triads.

    9. Chelsea Clinton recently said that the USSCourt had previously been “inconsistent” re the 2nd and that her mom would correct that. Of course, what she means by “inconsistent” is the lack of consistent, constant movement to abolish the 2nd Amendment. If possible, Hillary will correct that.
      That is why the USSC is the most important issue in this election. Whoever wins will appoint at least two and possibly as many as four justices. That will, in turn, produce decades of law – either good or bad.

    10. I thank the author for bringing this facet to our attention. SCOTUS might try to reverse Heller and McDonald by redefining the 2A as a State’s Right to a militia. If so, it could be made to backfire. Gun rights States’ legislatures could unilaterally revive the institution of their respective State militia. One easy way to do so would be to authorize their municipalities to organize a militia under the chief executive (mayor) or CLEO. Perhaps the only municipality in the State to take up the authorization would be Podunk; but, in so doing, the gun owners of that one municipality would compel SCOTUS to tolerate making and manufacturing AR-15s in that State to supply that one militia company.
      Now, let’s turn to the States that won’t buck the gun banners. We would need a case of a municipality making a case that its State legislature was depriving them of the right to organize a militia for mutual defense of their home-rule territory. Moreover, the State legislature’s failure to act to maintain its State militia deprives the Federal government of a meaningful power to call forth the militia in defense of the republic. To so deprive the Federal government of an effective use of Congressional power is indisputably a Federal issue of supremacy.

      1. I had a similar thought. Pro-gun states could simply place everyone of legal age in the state militia, unless they chose to opt out. Since laws regarding self-defense and the right to carry firearms in public are already state matters, there wouldn’t be much change there, though I suppose the feds could get involved in high profile cases.

        Also, we are living in a time when states are openly not complying with federal drug laws with regard to marijuana, even for recreational use in Colorado and Washington. What would stop pro gun states from simply saying, no we won’t enforce assault weapons bans or firearm registration?

    11. I’m not worried about a damn thing. I really think what this whole thing will come down to is what state you live in. In a few years gun laws will become a states right issue. (As it should be) ! Living in Texas I’m not worried about a damn thing !

      1. Tex: In your case ignorance is NOT bliss. Don’t think that your state (or any other) is immune from Supreme Court rulings. How did that ‘states rights’ position work out for Texas during the Civil War? Hint: very, very badly.

        1. Well Clark, you correctly point out that we, in Texas, are not immune from S. Ct rulings, but we don’t plan to litigate. Reconstruction taught the entire South how to shut up and go about our own business. Now it is called living under the radar, and I could give you many examples, but I don’t want to let any cats out of the bag and spoil the way things are because everything that we say over the phone or write on a forum gets collected and stored at the Utah Data Center.
          We are also aware of the outcome of the war of northern aggression. We are very aware of why things went badly and we are seeking to attract industry from the north that will remedy those shortcomings. But it isn’t off the table, and in these modern times, it will not be the only southern states that demand to be let go.
          When California, the world’s sixth largest economy, decides to break away, someone will have their hands full. That will be a good time for Utah, Arizona, Wyoming, Montana, and the Dakotas to break away. Then maybe the old confederacy (minus Virginia) will leave. Washington and Oregon might decide to go with Ca.
          And why not just let us go? Do you think that the liberal socialist Northeastern states will want to take those kinds of casualties again? Do you think that the liberal socialist states would put up with another tyrant like Lincoln, in this day and age? The north no longer needs our cotton production, now the north needs our food, oil, and even electricity production.

          1. @Wild Bill – You’re right, it comes down to ‘living Free via non-compliance’, at least until they catch on to what you’re doing. The ‘Leftists’ roped everyone in with their “Live and let live” rhetoric of the 1960’s. Now it’s live how we tell you or we’ll find a way to criminalize you.

        2. I Agree Clark, the next months o weeks will be more damaging than ever Now is not the time to
          sit on our thumbs. The reason we are in such a mess is because it is all about power and money.

      2. Me neither, Tex. I’m to the point that I could care less what dumbassed “laws” they pass. I’m going to live my life as a Free man to the greatest extent possible. If they want to try to take my guns, or my Freedom, let them. Either way, I win.

    12. Why are we worrying about this sort of thing anymore? Plan is easy, elect Trump, and if he double-crosses us be ready for civil war. If he tries and fails to change anything for the better be ready for civil war. If Hillary wins be ready for civil war because her control push will most likely include Wacoing some people. We’re at the point now where right and left can no longer coexist in America as long as both of them have the right to engage in political action- we want violently contradictory things out of government with no bridge possible. So you can either get your mind right and be ready to take your place as a ruler, or you might as well sell your guns now and get practice kneeling for whoever wins the civil war.

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