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Gun Rights: A Somewhat Forgotten but Essential Liberty

Your Vote in November for President Could Decide your Right to Keep and Bear Arms!

It may not happen again. But I have to thank Canadian Prime Minister Justin Trudeau for demonstrating the essential importance of gun rights enshrined in basic law (from the CBC):

Trudeau announces ban on 1,500 types of ‘assault-style’ firearms — effective immediately

A couple of little gems from the article:

“These weapons were designed for one purpose and one purpose only: to kill the largest number of people in the shortest amount of time,” Trudeau said. “There is no use and no place for such weapons in Canada.”
While he acknowledged that most firearms owners are law-abiding citizens, he said hunters don’t need this sort of firepower.

To be honest, the firepower needed to hunt is none of the government’s business. And it gets worse – it’s not even an Act of Parliament (as bad as that might be) it is a regulation:

The ban will be enacted through regulations approved by an order-in-council from cabinet — not through legislation. Trudeau said the government was ready to enact this campaign promise months ago, before the COVID-19 pandemic disrupted the legislative agenda.

Here is the text of the Second Amendment:

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.

And Virginia (Virginia was first: June 12, 1776 – Art. I, Sect. 13):

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

The language is very similar. Here is the corresponding right to keep and bear arms in the Canadian Constitution:

It’s blank. There isn’t any. And now the people in Canada have lost an important and essential liberty: the right to keep and bear arms.

This is a good start for an essay on guns. Alas, I have to move to, not too exciting for most readers, court cases.

The issue on what does the Second Amendment mean was not squarely placed before the Supreme Court until 2008. (Yes there was a Depression-era case involving sawed-off shotguns [United States v. Miller, 307 U.S. 174 (1939)] that held that possession of such a weapon that was was not part of the arsenal of a militia was not protected by the Second Amendment.) Some think that is because few questioned the Second Amendment right until more recently.

In 2008, the Supreme Court of the United States held that a non-felonious citizen has a right to possess a weapon in self-defense (subject to certain administrative requirements) in District of Columbia, et al. v. Heller [554 U.S. 570 (2008)]:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful fire-arm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

There are a number of exceptions:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or 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

There is also an exception (admittedly very unclear) prohibiting “dangerous and unusual” weapons. It could be read to prohibit “assault weapons”. That case will someday reach the Court.

I apologize for all the legal cases and there is one more but it can be easily discussed: McDonald, et al. v. Chicago (561 U.S. 742 [2010]) where the Second Amendment is “incorporated” into the Fourteenth Amendment and thus enforceable against state and local governments.

Alas, there is little analysis in all these cases. What judicial scrutiny – what standard does a government restriction on the right to keep and bear arms have to meet to be constitutional. Strict scrutiny is a very compelling state interest and the least restrictive alternative must be used. Rational based scrutiny is pretty much what it implies: If the state law has a rational basis, it will be upheld. There is also an intermediate level of scrutiny. It requires the government to assert an important interest and there has to be a substantial basis between the state law and the important governmental interest. It is very likely that the right to bear arms will either have strict scrutiny or intermediate scrutiny.

Most of the explicit constitutional rights (e.g, freedom of expression) receive strict scrutiny and so does some classifications (race-based classifications); the major classification that receives the intermediate level of scrutiny is gender-based classifications.

This would speak powerfully for strict scrutiny but the Fourth Circuit (the federal appellate court that has jurisdiction over Virginia) has adopted the intermediate level of scrutiny and upheld the so-called “assault weapons” ban. (The federal court held that assault weapons were military style weapons and not protected by the Second Amendment at all.)

There is one major problem with not applying strict scrutiny to Second Amendment rights: An explicit personal right gets less constitutional protection (“…small not be infringed”) than another explicit personal right (“Congress small make no law…”). There has to be an important reason for such a distinction.

The Supreme Court will decide this issue at some time. Virginia laws such as the banning of most private sales or transfers of firearms (so-called “Universal Background Checks – a misleading term at best in that universal background checks are in fact required for all sales through federally-licensed dealers), and the so-called “red flag” laws (which raise another constitutional issue: Procedural due process – is the manner the state provides for a hearing to be heard on the deprivation of gun rights fundamentally fair); I think the one gun a month law is probably constitutional.

I suggest that both of these laws are constitutionally problematic. Banning an entire class of gun sales is a clear infringement on the right to bear arms probably not shown to effectively prevent mass shootings but will affect the right to self-defense. Red flag laws could be constitutional if the firearm possession issue is subordinate to the matter at hand: Is the owner of the firearm(s) a threat to him/herself or others? If so, custody could be the answer without emphasizing gun rights. (A relative or friend could have authority to temporarily seize the gun(s) until a later court says give them back to the owner.) The fact that it takes law enforcement to start the process under the Virginia red flag law leans the law toward it being constitutional. Finally, there are two ancillary issues, one fairly important and another not as critical to courts looking at the law as written: The important issue is that protected speech cannot be a reason to take guns, even if that speech is “mean and hateful”. The speech has to be a clear imminent threat to violence. The second is that different countries and cities in Virginia might have unstated but very different standards for the seeking and taking of guns. I would think Wise County would have a very different view of the criteria to remove guns than say Arlington County. But that might arise after the law is in effect for some time but not compelling to its initial constitutional review. Judges will assume fair and even application of a law in its initial review.

I apologize for all the legal stuff! Hence I must close with this: Four justices of the Supreme Court (Justices Sotomayor, Ginsburg, Breyer and Stevens) held in BOTH Heller and McDonald basically held that there is NO personal right to bear arms. Stevens has even after he left the Court, suggested the Second Amendment ought to be repealed. Stevens was replaced by Justice Elena Kagan who is not likely to be materially different on gun rights.

Let us also remember (please note to the Public Safety Minister in Canada) that one right to the right to keep and bear arms – which I am afraid the late and great Justice Scalia did not adequately give enough credit to in Heller: An armed citizenry is a threat to tyrannical government.

James Madison is quoted as saying both the right to bear arms and limited government are defenses against tyranny:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”

George Washington said:

“A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent of others for essential, particularly military, supplies.” 

Both quotes came from here.

Thankfully, the people of the US have as Jefferson put it, “the rational and peaceable instrument of reform”, the ballot.

Alas it is today unfortunately true: Who you cast that ballot for in 2020 for President and United States Senate is critical to the continuance to your right to bear arms. I’d run ads in key states saying exactly that.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

3 Responses to “Gun Rights: A Somewhat Forgotten but Essential Liberty”

  1. Since I’m not an attorney, I’ll resist the urge to debate Sandy on what level of scrutiny the Supreme Court should apply to Second Amendment cases. I think regulation of enumerated rights should get a very careful look when challenged in court. I also happen to think that courts should only uphold them when the State can demonstrate a compelling interest in making just that regulation in just that way.

    I agree that government must demonstrate that it has good reasons for wanting to restrict firearm ownership, transfer, and use. I happen to think that government has a general interest in protecting public safety by reducing the number of firearms in circulation. I also think government has a compelling interest in specific gun regulations that target specific problems, such as school and workplace shootings, suicide, and misuse of weapons (e.g., allowing a toddler to pick up a gun and shoot another child). Most gun rights activists will find these reasons for regulating firearms less than…compelling…when compared against what they see as more important individual rights to armed self-defense and collective rights to shed the blood of tyrants.

    Constitutionally speaking, however, Congress has a very important, specific, and yes, compelling interest: disciplining and regulating the militia:

    “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress…” (emphasis mine).

    Second Amendment activists like to claim membership in a militia made up of, in the words of the Virginia Constitution, of “the whole body of the people.” This unambiguous Constitutional language gives Congress the power to form (organize) militia units, decide how they would be armed, and to prescribe appropriate discipline. This power would include deciding who held membership in the militia, what weapons they would bear, and what sort of failure to maintain discipline would cause expulsion from that militia. My point here is simply that any claim to militia membership carries with it limits to that membership as defined in Article I, Section 8, Paragraph 16. A prohibition against infringement of a “right to bear arms” does not create a militia outside that organized by Congress. This seems like a pretty clear black letter reading of the text to me.

    It’s also clear that the men who wrote the Constitution never intended to protect an individual right to own firearms. More than one State Constitution at the time specifically protected such a right (Virginia’s was not one of them, by the way), and the Committee that addressed the issue at the Convention considered including such language in the Second Amendment but rejected the idea.

    The Founders did indeed discuss the need to safeguard against tyranny supported by standing armies. But they also discussed the need to protect the militia as a safeguard against rebellious slaves. Madison understood that without an Amendment protecting militias as “necessary to the security of a free State,” Virginia would never ratify the Constitution.

    Antifederalist Patrick Henry made this clear at the 1788 ratifying Constitutional Convention when he expressed worry that Congress would only call up the militia in the event of outside invasion. He had an internal enemy in mind:

    “If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it… In my state [Virginia] there are 236,000 blacks, and many in several other states. But there are few or none in the northern states . . .Have they [the government] not power to provide for the general defence and welfare? May they not think that these call for the abolition of slavery?”

    Henry worried that Congress would refuse to use militias to suppress slave revolts or make them so ineffective local and state government could not rely on them. This is a clear statement that he worried more about militias as slave patrols than he did about individuals arming themselves for self-defense. The Second Amendment exists because the Constitution gives Congress the power to organize, arm, discipline, and call to service militias organized by the States. Slave state leaders like Henry worried that Congress would use this authority to abolish slavery, perhaps by eliminating slave patrols or making them ineffective.

    The Madison and Washington quotes Sandy closes with support this argument. Madison points out that “subordinate governments” form the “barrier against enterprise and ambition,” not loosely organized bands of armed citizens who take on the task of enforcing their view of constitutional law. And Washington made sure to say that “A free people ought not only to be armed, but disciplined,” which required a “uniform and well-digested plan” before going on to say that an independent nation needs an independent defense industry.

    These were not men who believed that liberty or national defense depended on unregulated firearm ownership and use by any random individual who felt the need to bear arms. This right did not apply, for example, to that class of people with darker skin. Whether or not it’s a good idea today is another question. I’ll get to that soon.

Trackbacks/Pingbacks

  1. […] the Sanders-Scott Debates. The first entries, on abortion policy, are here and here. You can read Sandy’s entry on this issue at Virginia Right. We’ll be crossposting […]

  2. […] series – the Sanders-Scott Debates. The first entries, on abortion policy, are here and here. Sandy’s entry on this issue is also posted at Virginia Right. You can read my entry on this issue at Foggy Bottom Line […]


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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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