Laurie Richards, Lawyer and Program Coordinator for Paralegal Studies at Mt. San Jacinto College, was the featured speaker at April’s monthly club meeting. The topic was very timely given the recent defeat of all gun control legislation in the Senate.  She opened her talk by explaining that it was based on a “pet peeve” of hers, namely the amount of misinformation regarding the 2nd amendment and what rights it actually conveys. Laurie gave a brief but informative history of the 2nd amendment, its original intent, and the court decisions that over time have morphed the right of states to have a “well regulated militia” into the right of individuals to carry personal firearms.

Indeed the original intent of our founders when writing the 2nd amendment was to prohibit the Federal government, not the states, from restricting states rights to raise and maintain a militia.  It is only one sentence long: “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.” In fact, our Founding Fathers included the full Bill of Rights as “Prohibitions against infringement by the federal government, not the states (unless expressly stated in the amendment itself)”.

The 14th amendment also plays a historic role in further confirming this perceived right. The purpose of this amendment was to ensure that no specific state could abridge the rights of individuals. The relevant part reads, “…No State shall make or enforce any law which shall abridge the privileges or immunities of U.S. citizens; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person the equal protection of the laws.”

In the late 1800’s cases testing these amendments relative to gun rights came before the Supreme Court who is the last word on whether or not federal and state or local laws violate the Constitution. In 1876 a case upheld that the 2nd amendment restricted only the federal government, not the states. In 1886 another case held that the 14th amendment doesn’t apply to the 2nd amendment because the 2nd amendment doesn’t involve a privilege or immunity of individuals except in their duties within a militia. Again in 1897 another case held that the equal protection clause applied to certain parts of the Bill of Rights but again, not the 2nd amendment.

The most critical precedent was set in 1939 in United States vs. Miller, a case involving two men who had carried unregistered sawed off shotguns across state lines. This case definitively confirmed that the 2nd amendment did NOT grant an individual the right to bear arms, but in fact, held that the U.S. Constitution enumerates Congress’s power to provide for calling up the militia to execute federal laws, suppress Insurrections and invasions, “to provide for organizing, arming …the Militia, reserving to the States respectively, . . .the training of the Militia….” The Court held that the 2nd Amendment furthers the Founders’ intent, namely that the use and possession of firearms must bear a reasonable relationship to the preservation or efficiency of a well-regulated militia.

So how is it that today any attempts to implement gun control laws raise complaints that they will violate the 2nd amendment given the above interpretations?  We can thank the current Supreme court who overturned the 1939 precedent in the case involving Washington, D.C.’s attempt to ban handguns. In DC vs. Heller, by virtue of overturning the 1939 decision, an individual’s right to bear arms was established. It was an astonishing and rare occurrence invoking the ire of Justice Stevens who criticized the court’s violation of the “Stare Decisis” principle that has guided the court since a 1932 dissent written by Justice Brandeis.

Stare Decisis, according to Wikipedia, “is a legal principle by which judges are obliged to respect the precedent established by prior decisions. In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters.” It is considered more flexible in the case of constitutional cases because the Supreme Court is the final word and therefore it is considered more important to “get things right”. This was made clear in 1932 when U. S. Supreme Court Justice Brandeis said: “The fundamental conception of a judicial body is that of one hedged about by precedents which are binding on the court without regard to the personality of its members. Break down this belief in judicial continuity and let it be felt that on great constitutional questions this Court will determine them all according to the mere opinion of those who temporarily fill its bench, and our Constitution will be bereft of value and become a most dangerous instrument to the rights and liberties of the people.”

Justice Stevens believed the 2008 decision was exactly what Justice Brandeis warned of in this statement.  In his dissenting decisions he stated, “Even if…arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all our predecessors on this court, and for the rule of law itself…would prevent most jurists from endorsing such a dramatic upheaval in the law.”

But even with this radical interpretation overturning the 1939 decision, the door for implementing gun control was still slightly ajar since the ruling still only applied to a “federal enclave, (Washington DC) rather than a state. The 2008 decision also still left some room: “We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons”.

However, in 2010 yet another decision closed that door. In McDonald vs. City of Chicago, the court reversed the line of cases holding that the 2nd amendment didn’t apply to the states because they decided that it does indeed apply via the 14th amendment. This now means that laws such as California’s, the strictest gun laws in the country, are now vulnerable to attack in the Federal courts.

But all is not (yet) totally lost. As Laurie stated, “The Heller and McDonald cases do not prohibit any of the restrictions sought by recent legislation; do not prohibit an assault weapons ban. KEEP REMINDING LEGISLATORS AND THE NRA OF THAT FACT. KNOWLEDGE IS POWER IN THE FIGHT FOR GUN SAFETY!”

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