On January 12, 2014, Bearing Arms published my article titled: “Metcalf Apologists At Work: It’s Not His Fault, It’s Yours.” In that article, I took to task various Leftist authors and media outlets, including The New York Times, for using Metcalf to advance their anti-gun agenda. A number of readers suggested that I should outline my views on the Second Amendment, and on January 22, I responded with the first of this two-part series: “The Limits Of Liberty And the Law.”
While that initial article was an exposition of the state of Second Amendment jurisprudence, some took it to be a sort of Metcalfian surrender to gun grabbers. Particularly distressing to some was this sentence:
We know that there is no such thing as an unrestricted right, and that in Heller (District of Columbia Et Al. v. Heller), the Supreme Court acknowledged this reality, while affirming that the right to keep and bear arms is a pre-existing, individual right:
Even in my first article about Metcalf at my home blog, I was obliged to agree with him on one point: each of the rights in the Bill of Rights has limitations. There is no such thing as an unlimited right. One may maintain that “…shall not be infringed” in the Second Amendment means there can be no infringement whatever on the right to keep and bear arms, and I agree fully with the sentiment, but sentiment and reality are, in this case, not the same thing. We are a constitutional republic, a nation existing under the rule of law, and under that system, and when necessary, the Supreme Court reviews the law and may declare it unconstitutional. It may also uphold various limitations—infringements—on rights.
The current definitive cases on the Second Amendment are Heller (2008) and McDonald (2010) . Prior to those cases, only Miller (1939) touched on the Second Amendment in any real way. Miller did not delineate the nature of the right, but did essentially establish an 18” minimum barrel length for lawful shotguns. Interestingly, Miller can logically be read to indicate that all weapons commonly in use by the military are equally appropriate for individuals.
One may argue that the Second Amendment means what it says and says what it means and should be interpreted that way—and I would be in agreement—but that interpretation does not comport with the reality of our federal system or of the law. Ignoring that reality does not help in the never-ending battle for securing the Second Amendment and forcing government to honor it.
The primary reason for the existence of the Second Amendment is to serve as a check on tyranny. Arms in the hands of citizens allow them to rise up and dethrone those that would rule Americans. Contemporary progressives howl with indignation at the idea that the Second Amendment enables citizens to resist tyranny, calling it unpatriotic, treasonous, and disdainfully snickering that small arms could not stand against a modern military. But history teaches us that the Second Amendment was indeed intended to serve as a means to displace tyranny, and it also teaches that small arms are indeed effective against modern military forces (see Vietnam, Afghanistan, etc.). At one time, Democrats, even leaders of their party like Hubert H. Humphrey, understood this:
Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizens to keep and bear arms. This is not to say that firearms should not be carefully used and that definite safety rules of precaution should not be taught and enforced. But the right of the citizens to bear arms is just one guarantee against arbitrary government and one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible.
Since Barack H. Obama became President, Americans have been obliged to contemplate the importance of arms in resisting tyranny, and have responded by buying firearms and ammunition as never before.
As I noted in the first article of this series, the Supreme Court—and by extension, all lower courts—apply the judicial standard of strict scrutiny, the highest standard, in examining the constitutionality of Second Amendment issues. This should mean that no infringement, no restriction is valid unless there is substantial, convincing evidence that it is necessary to achieve a compelling governmental purpose and unless it has been as narrowly drawn as possible to achieve that purpose. As I also noted, the minority in Heller, and likely, left-leaning lower courts and politicians, would prefer to apply a far less stringent standard, allowing the shell of the Second Amendment to remain intact for political cover, but allowing any imaginable infringement as a compelling governmental necessity.
Under the current standard, there are very few, if any, restrictions that are constitutionally valid. This is so because there is no evidence that any of them will in any way enhance public safety or in any way deter criminals or lower crime rates. Many, in fact, actually endanger the innocent while making the lives of criminals easier, less dangerous, and more productive.
This is particularly obvious when one considers one undeniable truth, a truth that will not be altered by any kind of research or data crunching: criminals don’t obey the law; that’s why they’re criminals. Expecting people whose normal way of thinking and living revolves around theft, assault, rape, burglary, drug use and dealing, extortion and murder to obey laws relating to what sort of firearms and accessories may be owned and to care about the places where such things are illegal to carry is the very definition of insanity. In fact, for many types of so-called “common sense” regulation, there is already a very clear example of the inevitable failure of such policies: The Clinton gun ban, AKA the “Public Safety and Recreational firearms Use Protection Act” enacted in 1994 and allowed to expire in 2004.