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July 17, 2008


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With regards to Section III, paragraph 3, once you establish that the 2nd Amendment recognizes an individual right to keep and bear arms, don't the final three words of the amendment kick in with their clear meaning? That is, isn't any regulation or restriction an infringement of an individual's right to keep and bear arms, and therefore unconstitutional? Thus, isn't the legal burden on the proponents of a regulation/restriction to prove that such a reg/rest _is not_ unconstitutional?


Brannon P. Denning

Dear Shootingperfection: All constitutional rights are understood to be subject to "reasonable" regulation. None are absolute. For example, the First Amendment says, "Congress shall make no law . . . abridging the freedom of speech . . ." but it's not unconstitutional to, say, punish speech threatening another's life. For better or worse, the courts -- including the Supreme Court -- develop "standards of review" to help lower courts (and elected officials) predict whether their regulation will be permissible or impermissible. Heller specifically mentions a number of "infringements" that the majority says it does not intend to call into question, e.g., the prohibition of firearms possession by convicted felons or by the mentally ill. But the majority is a little coy as to what sort of standard of review ("strict scrutiny," "intermediate scrutiny," etc.) it is directing lower courts to apply. Justice Breyer's dissent takes the majority to task for this, to which Justice Scalia replies, "well, this is our first Second Amendment case in 60 years, so you can't expect us to answer all the questions in one go." It will be interesting to see what standard of review the lower courts think the Court intends them to apply, and whether the Court will accept future cases that articulate the scope of the right to keep and bear arms more than it did in Heller. I hope this answers your question.---BPD

Charleton Heston

One has to wonder why the First Amendment refers to "abridgment", whereas the Second Amendment refers to "infringement". The definitions of those terms are too similar to discern how they should be treated differently. So, we are left with how analogous the deprivation of "speech" may be to the deprivation of "arms". But, you can't readily apply rules meant for speech to arms. Gun control advocates will undoubtedly point to abridgments of speech based on public safety as support for "reasonable" regulation of arms, citing examples of gun violence. Gun owners will urge that firearm possession and use in the hands of responsible persons has no adverse public safety impact, and might even have a positive effect in deterring crime (See concealed carry statistics). In the case of speech, the behavior is the "speech" itself (the content), i.e. we don't regulate vocal cords and instrumentalities like computers which enable us to create impermissible content. In the case of guns, we have innumerable laws which are directed toward the prevention or punishment of behavior, and yet persons with criminal intent continue to use guns in violation of those laws. It's no different with speech. No one is arguing whether constitutional rights (as a general principle) are subject to some amount of well-considered limitations, but we already have laws in place to restrict behavior in the realm of speech, and we already have laws in place to restrict behavior in the realm of firearm use. The Second Amendment directs that the right to keep and bear "arms" shall not be infringed, not that gun usage shall not infringed. It seems to me that further restrictions on gun ownership would be tantamount to regulating computers, keyboards, and microphones. Just because one dislikes the instrumentality doesn't mean that restrictions on gun ownership by "law abiding" persons are constitutionally permissible or justifiable in any context. For that reason, many people are still unwilling to concede (as Scalia appears to have done) that regulation of machine guns, suppressors, and other firearms under the National Firearms Act of 1934 is "reasonable". Would it be okay to regulate physical items that facilitate "speech" because they are sometimes used by a minority of the population to create content that courts have determined to be "impermissible" and unprotected by the First Amendment? Wouldn't that adversely affect the rights of the vast majority of the population who create content that is protected? The same rationale goes for guns. Some would argue that computers, keyboards, and microphones have a greater utility that makes their regulation impossible or undesirable, and that guns are not analogous to such items. However, I would argue that firearms in the right hands and used for the right purposes, including but not limited to self defense, are no less useful to a civilized society.

Dick Baker

Mr. Reynolds, Mr. Denning: let me preface my question by saying that I know little about constitutional law and the courts.

Having said that, Justice Scalia's writings in the majority opinion seemed to me to suggest that the Second Amendment not only confers an individual right to keep arms, but it also confers a right to bear them.

If I'm correct in my interpretation, can it then be argued that prohibitions on the carrying of arms are unconstitutional? Or does the fact that the Second Amendment has not been incorporated allow states to prohibit the carrying of arms?

Thank you for any reply.

Brannon Denning

Mr. Baker: A few comments. First, you're absolutely correct that for the Second Amendment to apply to state and local laws, it will first have to be "incorporated" through the Fourteenth Amendment and applied to the states. Second, the majority seemed to assume that "keep" and "bear" were to be read separately, not collectively as the Stevens dissent argued. But even if assuming Heller recognized a right to bear arms, it, like the right to keep them, would be subject to reasonable regulations. I think that at least traditional prohibitions on the carrying of concealed weapons would not be presumptively unconstitutional. In fact, many states have gone to a "must issue" regime for concealed carry permits.--BPD

Gordon DeSpain

I've been studying this particular line of reasoning for most of my life, and, slowly evolved an Opinion that many try to refute: It is unconstitutional to write 'a'
Law that infringes or abridges a Law Abiding Citizens Constitutional Rights, in any manner.

Take for example, Section 23 of the Texas Bill of Rights: "Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."

Study the section following the Semi-Colon, and, you'll find that it's a False Premise, even a non-sequiter. Not one single Law in the History of the World has prevented a single, 'determined' Criminal from committing 'a' Crime with any weapon he had to hand. A Law can only be written to control the actions of a person who would not break a law, because, he is by definition a Law Abiding Citizen. Determined, professional Criminals take pride in breaking Laws, and, the only thing that affects them are penalties and punishments, which, with todays "Country Club Prisons," proves to be no punishment at all. The 'punishment' only serves to provide them with a comfortable Bed, three good meals a day, and, protection from inclement weather, until they get out, and, do it again.

The same can be said of all State RKBA Sections or Amendments that begin or end with the phrase, "Subject to the Police Power." There is no "Police Power" granted by the Constitution, or, any Amendment thereto.

And, there is no Power granted by the Constitution or any Amendment thereto, that allows Congress, State Legislatures, County or Municipal governments to usurp unto themselves a 'Power' to Grant Powers to anyone, by any name, let alone "Select Militias" called Police, Deputies, Swat Teams, FBI, ATF, or, Special Units...whatever.

Any law that is written using any term, or wording, that creates Super-Citizens, Quasi-Noble Titles, or, even "Special People," is unconstitutional.

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