Wednesday, March 3, 2010

McDonald v. Chicago & the Second Amendment

Yesterday, the Supreme Court heard the opening arguments for McDonald v. the City of Chicago. The court case will be interesting because it will determine whether the handgun laws, as well as many other facets of gun regulation in Chicago, are unconstitutional. What makes the case interesting is that the plaintiffs of the case are trying to argue that the right to bear arms is applicable to the states due to the Fourteenth Amendment’s Privileges and Immunities clause, as well as the Due Process clause. I am confident that McDonald will win the case, not only because of the recent precedent set by District of Columbia v. Heller, but also because the justices who voted 5-4 on the aforementioned case are all justices on this case.

What interests me about this case, though, is whether or not we even have the right to bear arms in the first place. Normally, I would use case law as an indicator of the status of the amendment, but historically speaking, American jurisprudence is light on Second Amendment case law. Aside from District of Columbia v. Heller, the only other case of recent memory, not to mention relevance, would be United States v. Emerson, which was a decision by the Fifth District Appellate court that stated that the Second Amendment is an individual right. Although Emerson came from a state court, it was nevertheless cited in the Heller case back in 2008. Prior to that, the last case the Supreme Court heard on the Second Amendment was United States v. Miller, which was ruled upon in 1939. Even though that ruling was made seventy years ago, it is worth noting the irony that both sides of the gun control side cite this case. Gun control advocates cite it because they believed it attacked the notion of self-defense being protected by the Constitution, whereas gun advocates claim the Court ruled that the Second Amendment protected the right to keep arms that are “part of ordinary military equipment.” The ambiguities become moot because of the more recent ruling of the Heller case, stating that the Second Amendment does indeed provide the individual the right to bear arms.

Even with the case precedent set, and continuing to be set, the question in mind is whether or not they had the right to make such a ruling. In order to ascertain that answer, two facets of the right to bear arms need to be examined: contextual and textual. But before we do that, we might as well know the verbiage of the amendment itself:

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.

Liberals will contend that the Second Amendment only applies to the National Guard, whereas others would have you believe that we are talking about an individual right. If liberals wanted to take historical context into mind, one would have to ask “since when were the rights of a solider to bear arms ever an issue?” The challenge with coming up with an example for this one is that one does not exist. From the Spartans to Genghis Khan to today’s National Guard, soldiers have never had their ability to bear arms threatened in the slightest.

Using actual historical context, we need to look at the British Empire. Being heavily influenced by Anglo-Saxon common law and jurisprudence, it should be of no surprise that a posse comitatus, a group of armed citizens to locally keep the peace, is mentioned in the Constitution. Also, any man between the ages of sixteen and sixty were to arm himself to be ready for military service. The right to bear arms can actually be traced back to Aristotle, who stated that “those who possess and can wield arms are in a position to decide whether the constitution is to continue or not.” Sir William Blackstone points out that in 18th-century England, men had the right to bear arms. Throughout pre-modern European history, and leading up to 1787, the indicator of a free man was whether or not he was able to bear arms.

An issue during the American War for Independence was that the militia was subservient to King George III. To make sure that people would not acquiesce to tyranny again, the second clause, “the right of the People to keep and bear arms, shall not be infringed,” was written to assuage the fears of the anti-Federalists. As Richard Henry Lee, a Virginian statesman who is best known for being a president of the Continental Congress, stated that “To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike, especially when young, how to use them.”

No comments:

Post a Comment