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The Irrelevance of the Second Amendment

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The killing of six people on January 8, 2011, in Tucson, Arizona, and attempted assassination of a “public servant” and her staff members has brought forth a predictable response from the left and gun-control groups: We need stricter gun-control laws to prevent tragedies like the Tucson shooting.

But calls for banning extended-capacity magazines, instituting gun-free zones, more thorough background checks, longer waiting periods for gun purchases, limits on gun purchases, stricter licensing of gun dealers, comprehensive databases of gun owners, repealing concealed-carry laws, gun registration and licensing, and outright gun bans will not prevent gun violence any more than drug-prohibition laws stop people from using drugs.

If someone is willing to commit murder, he is unlikely to be deterred by any gun-control regulations or laws. Would-be murderers aren’t the least bit concerned about gun-free zones, bans on certain types of guns and ammunition, restrictions on concealed weapons, trigger lock requirements, and gun bans. And they will either reluctantly comply with waiting periods and background checks or circumvent them by purchasing a gun from an individual or on the black market.

It is those who use guns responsibly, whether for hunting, sporting, or recreation, and those who desire to own a gun for self-defense, collecting, or peace of mind, that overwhelmingly bear the brunt of the inconvenience, hassle, expense, and loss of liberty that results from the myriad of federal gun rules and regulations regarding the purchase, sale, manufacture, transport, storage, and use of firearms.

The self-defense issue is especially important because in the Supreme Court cases of South v. Maryland (1855), Castle Rock v. Gonzales (1985), the Court ruled that law-enforcement officers do not have a constitutional duty to protect a person from harm. Their primary responsibly is to enforce the law.

Gun enthusiasts, some civil libertarians, sportsmen, hunters, gun-rights organizations, concerned citizens, and others that take a dim view of most gun-control legislation have likewise come forth with a predictable response: The Second Amendment right to keep and bear arms is not the cause of tragedies like the Tucson shooting.

They are right, of course, just as they are also correct in emphasizing — contrary to most gun-control advocates — that the right to keep and bear arms is an individual right. Their case has been made easier since the Supreme Court ruled in District of Columbia v. Heller (2008) that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” And also since the Court reaffirmed this opinion in McDonald v. City of Chicago (2010) and further ruled that the Second Amendment applies to the states.

The U.S. Department of Justice’s Office of Legal Counsel had, in 2004, already answered the question “whether the right secured by the Second Amendment belongs only to the states, only to persons serving in state-organized militia units like the National Guard, or to individuals generally.” The conclusion was definitive: “The Second Amendment secures a right of individuals generally, not a right of states or a right restricted to person serving in militias.”

And as Stephen Halbrook more than demonstrated in The Founders’ Second Amendment: Origins of the Right to Bear Arms (The Independent Institute, 2008), such a view was held throughout early American history.

Although the Heller and McDonald cases affirmed that the Second Amendment protects an individual right, they at the same time made it abundantly clear that government can still infringe upon that right. According to the majority decision written by Justice Alito:

It is important to keep in mind that Heller, while striking down a law that prohibits the possession of handguns in the home, recognized that the right to keep and bear arms is not a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here.

In a footnote to this last phrase quoted from the Heller decision, Justice Scalia makes an important clarifying statement: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”

Scalia also makes it clear in Heller that the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” But it gets worse, for Scalia goes on to say: “We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”

No wonder some advocates of gun control liked the Heller and McDonald decisions.

Indeed, just days after the Heller decision, in two federal court decisions, Mullenix v. BATF and U.S. v. Dorosan, the Heller decision was relied on to uphold federal gun right infringements. And the D.C. city council merely enacted new gun regulations.

But when it comes to real gun liberty, the Second Amendment is irrelevant, but not because lip service is given to it even while it is ignored.

The Amendment was adopted because, as Scalia wrote in Heller: “During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.”

But it should be understood that the Second Amendment confers no positive right. The Bill of Rights is an additional limitation on federal power to infringe upon gun rights besides the fact that no authority is granted to the federal government in its limited, enumerated powers to infringe upon them in the first place. If the Second Amendment didn’t exist, Americans would still have the natural right to keep and bear arms.

From a constitutional (and libertarian) perspective, the federal government has no authority to ban or regulate handguns, shotguns, sawed-off shotguns, rifles, assault rifles, extended-capacity magazines, high caliber guns and ammunition, automatic weapons, or bazookas.

And neither does the federal government have the constitutional authority to establish gun bans, gun-free zones, background checks, waiting periods, limits on gun purchases, licensing of gun dealers, gun-owner databases, gun licensing, gun registration, age restrictions, or concealed weapons laws.

When looked at from this perspective, the self-proclaimed opponents of gun control and stanch defenders of the Second Amendment in Congress don’t look much different from their opponents. Republicans in Congress are already looking at working with Democrats to tighten federal gun laws.

The issue is not even about guns; the issue is about the limited powers of the federal government under the Constitution. If a clearly unconstitutional exception can be made for guns, then a way can be found to make an exception for anything.

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