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Conversely, a proper ruling under the “well
regulated Militia” approach would result in recognition of an absolute
personal right for almost all common Americans to keep certain types of
firearms: that is, a right which is not subject to (is immune from) any
regulation—“reasonable,” “compelling,” or
otherwise—because “the right of the people to keep and bear
Arms” is actually the consequence of an individual constitutional
duty to do so. And no government, National, State, or Local, can have any
power whatsoever—under color of some supposedly “compelling
interest” or any other excuse—to prohibit or inhibit the
fulfillment of a constitutional duty that is “necessary to the security
of a free State”, upon the continued existence of which the very
legitimacy of that government depends. (This conclusion would hold even if
“the right of the people to keep and bear Arms” were largely an
“individual right,” provided that it could serve as an instrument
in aid of “[a] well regulated Militia”—that is, provided
the Second Amendment’s two clauses were construed as mutually
supporting, rather than as separate from and independent of one another.)
Indeed,
because the Second Amendment declares—and everyone in the United
States, public official and private citizen alike, is bound by its
declaration—that “[a] well regulated Militia” is
“necessary to the security of a free State”, the
government’s most “compelling interest” must be the
preservation of “well regulated Militia”. For this very purpose,
the Second Amendment commands that “the right of the people to keep and
bear Arms, shall not be infringed”. Therefore, the government can have
no “compelling”—or, for that matter, even any legitimate
“interest”—in disarming common Americans, but instead must
have a “compelling” interest in allowing them to arm themselves.
Where the Second Amendment is concerned, the “compelling governmental
interest” theory is unidirectional. Once again, though, this chain of
reasoning depends upon construing the Second Amendment’s two clauses as
inextricable.
A
pragmatist should also consider that, although an “individual
right” “to keep and bear Arms” would to some degree support
“[a] well regulated Militia”, because some individuals would
choose to possess firearms useful for Militia service, nonetheless the Militia
approach (if properly enacted into law) would guarantee that almost every
able-bodied man and woman in the United States, from sixteen to sixty years
of age, and not a conscientious objector, would be suitably armed. Thus, the
Militia approach would in fact provide more of a practical “individual
right”, in terms of the number of people actually in possession of
firearms in their own homes and on the streets (and trained to use those
firearms safely and effectively), than would the “individual-right
theory”. As for individuals less than sixteen years of age, no prudent
person doubts that their access to and use of firearms are properly subject
to supervision, in the first instance by their parents or guardians, and
where that fails by public authority. Individuals more than sixty years old
would almost all have served in the Militia in earlier years, and would
always be allowed to volunteer for Militia service thereafter, and on the
basis of that previous service and present possibility alone would be
entitled to an absolute right to possess firearms.
In
addition, patriots should remember that only the Militia approach can
serve the vital purpose of the Second Amendment, which is not to
promote hunting, target shooting, or other “sporting” or
“recreational” uses of firearms (although the Militia approach
would protect these activities too), but instead is to arm “the
people” so as to provide “the security of a free State”
through “well regulated Militia.” By itself, an “individual
right” to possess firearms cannot protect this country against the
imposition of a police state by rogue public officials. For what good will
arms in individuals’ hands prove to be against large-scale para-militarized
police forces and other instruments of oppression, without thoroughgoing
organization of those individuals and legal authority for their collective
action in defense of their liberties? The Militia are the constitutional
institutions that provide both—which is why the Second Amendment
declares them to be “necessary to,” not simply useful let
alone optional for, “the security of a free State.”
Assume,
though, for purposes of argument, that somehow or other the Supreme Court
stumbles into a decision favorable to Heller on the “individual-right theory”.
What can one expect will be gained? Perhaps not much more than Americans
already have now. For, in all likelihood, a favorable decision will be very
narrow.
A
basic rule of constitutional adjudication is that the Supreme Court ought not
to write an opinion that is broader than the legal issues and the facts
actually before it in the case under consideration. Anything beyond that
amounts to an “advisory opinion”, which lies outside the
Court’s constitutional jurisdiction. If the decision is in favor of
Heller, it will be to some degree consistent with the Constitution. If to
some degree consistent with the Constitution, it will be written by one of
the Justices who is at least a lukewarm constitutionalist. And even a
lukewarm constitutionalist will respect the rule against “advisory
opinions”.
The
facts in Heller’s case are peculiarly susceptible to a narrow ruling,
too. First, Heller himself is a “licensed armed protection
officer” who works for a private security company. So he has been
investigated and trained, and is supervised, far in excess of an ordinary
citizen. A majority of Justices might very well consider this a basis for
voiding the D.C. gun law as an “unreasonable regulation”, or as
serving no “compelling governmental interest”—but only
as against Heller and others similarly situated, not as against just any
ordinary citizen. Second, Heller is asserting a right to keep a working
firearm and ammunition in his home for purposes of self-protection there.
A majority of Justices might accept this particularized, localized purpose,
without opining on any other possible purposes, or especially other venues,
for private citizens’ possession of firearms. Third, Heller desires to
keep a medium-caliber centerfire pistol in his home. A majority of Justices
might agree that this is an “appropriate” firearm for
self-defense, and that therefore Heller’s possession of it is protected
by the Second Amendment, while at the same time denying that other types of
firearms—such as so-called “assault rifles”, big-bore
“sniper rifles”, or short-barreled shotguns—are embraced by
that constitutional guarantee. Any good decision on the second and third of
these points would doubtlessly be welcomed by all patriots. Yet such a
decision might be so tailored to the extremism of the District’s law as
to have little applicability in other jurisdictions, where “gun
control” is less draconian.
Even
if the Court rules that an ordinary citizen has a constitutional right to
keep some type of handgun or other firearm “appropriate” for
self-protection in his home, it may not explain how a resident of the
District of Columbia (or any other large city with strict
“gun-control” ordinances) who does not already have such a
firearm in his home can arrange to acquire one, particularly if the District
prohibits or stringently regulates the retail sale or other transfer of
firearms within its territory. What good is a “right” for most
people to possess firearms in their homes without a “right” to
obtain firearms in the first place, typically through the channels of private
commerce? And before anyone concludes that such a “catch-22”
decision is unlikely, he should compare Stanley v. Georgia, 394 U.S.
557 (1969), with United States v. Reidel, 402 U.S. 351 (1971). If that
is the result, rather than settling matters once and for all Heller
will simply spawn further complex, contentious, and costly litigation in the
lower courts.
Besides
all this, the overriding fact in Heller is blatantly political
and propagandistic in nature: namely, that the District of Columbia is
the capital of the United States—and if not the “murder
capital” of this country today, certainly a perennial challenger for
that dubious title. The Justices will naturally try to avoid any decision
that they imagine might exacerbate, or even might simply appear to
exacerbate, this situation. Also, the District is a metropolis that follows
the myopic pattern of such other large cities as Boston, New York, Chicago,
and so on, in having strict “gun control”, as well as high rates
of violent crime. Unable to fathom (or unwilling openly to admit on the pages
of the United States Reports) that “gun control” actually
stimulates and facilitates crime by empowering criminals as against their
victims, the Justices will doubtlessly try to avoid any decision that might
throw into doubt the rationality and legitimacy of the
“gun-control” regimes in all of those cities. What, after all,
would Mayor Bloomberg say? The strange reality of the present era is that
jurists who do not seem to lose sleep over being directly responsible for
tens of millions of premeditated homicides-for-hire by abortion undoubtedly
would cringe in the face of editorials in the Washington Post or the New
York Times, claiming on the basis of the post hoc ergo propter hoc
fallacy that, as a result of some decision barely favoring the Second
Amendment, narco-gangster killings, drive-by shootings, or massacres
perpetrated in “gun-free” schools and shopping malls by
drugged-up zombies had multiplied in those cities. And what if a series of
sensational “gun crimes” coincidentally occurs just before the
Supreme Court actually decides Heller?
How
broad, or how narrow, a favorable decision in Heller might be also
depends upon what sort of “individual right” a majority of the
Justices deigns to recognize. To be sure, a very clear-cut, specific
“right of the people to keep and bear Arms”—immune from
“infringement” by “reasonable regulations” or
“compelling governmental interests”—could be derived from
the dozens and dozens of pre-constitutional Militia statutes in the
Colonies and independent States, were the “Militia”
interpretation the basis for decision: namely,
*Who
enjoys the right—essentially every common American above the age
of sixteen years (thus defining “the people.”)
*What
“Arms” does the right encompass—every type of
firearm that could have a use with respect to Militia service, including
“assault rifles,” “sniper rifles,” “combat
shotguns,” and other small arms of contemporary regular light infantry
(thus defining “Arms.”)
*Where
and how can the right be exercised—by personal acquisition of
“Arms” in the free market, and personal possession of
“Arms” in every American’s home and on the streets
(thus defining “keep and bear.”)
*When
can the government prohibit such behavior—never (thus properly
defining a “right,” because it cannot be
“infringed.”)
In
the absence of the “Militia interpretation” and reliance on the pre-constitutional
Militia statutes, though, the Justices will essentially have to make up
“the right of the people to keep and bear Arms” as they go
along—on the basis of historical speculation, lawyers’ arguments,
and the Justices’ own political and sociological prejudices that hide
behind the labels “reasonable regulation” and “compelling
governmental interest”. As with anything ersatz, although their
concoction may perhaps suffice for the immediate purpose, it will nonetheless
not be the real thing, and therefore will prove not good enough for the long
haul.
But
one superficially read in constitutional history may object: Did not the
Founding Fathers speak, again and again, to the meaning of “the right
of the people to keep and bear Arms”? Certainly that is the technique
often employed in naive studies of the Second Amendment: namely, marshaling
statements attributed to James Madison, Thomas Jefferson, George Mason, and
even Alexander Hamilton, in order to establish legal principles by reference,
deference, and adherence to personalities. Now, these statements may
themselves be facts—in the sense that such and so is what some Founder
actually said or wrote. But their substance consists, not necessarily of
historical or legal truths, but only of the opinions of the men who
made them—even if those men were in high public office at the time.
Fundamentally, this is why so-called “legislative history” such
as records of legislative debates were rightly considered incompetent
evidence during the founding era and for many decades thereafter:
“Doubtless, the intention of the Congress which framed and of the States
which adopted [a constitutional] Amendment must be sought in the words of the
Amendment; and the debates in Congress are not admissible as evidence to
control the meaning of those words.” United States v. Wong Kim Ark,
169 U.S. 649, 698 (1898). (Today, “legislative history” is often
employed by lawyers and judges for the purpose of expanding or contracting
laws beyond their actual terms—and legislative debates are often
intentionally larded with tendentious statements in aid of this subversive
procedure, either by legislators who opposed a law and want to see it
constricted, or by legislators who supported a broader version of a law than
was actually enacted, or both.)
Edwin
Vieira
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