WE’VE ONLY JUST BE “GUN” – THE SECOND AMENDMENT AND SELECTIVE INCORPORATION

This past week, the United States Supreme Court handed down its much-awaited decision in the District of Columbia, et al v. Heller, 2008 U.S. Lexis 5268. The full decision with official pagination has yet to be published.

While many gun rights advocates are hailing this as a victory for the Constitution and gun ownership and possession, it is simply another step in the Court’s progression of using selective incorporation to make guarantees found in the Bill of Rights applicable against the states through the 14th amendment.

The Heller decision involved laws passed by the District of Columbia, a federally-created entity. Since the Bill of Rights was passed to limit the federal government, the Court addressed the gun legislation in the context of federal action.

The Second Amendment is somewhat unique in its structure in that its wording created an ambiguity that has been the subject of much debate. The Amendment used a prefatory clause – A well-regulated Militia, being necessary to the security of a free State – to introduce the operative clause – the right of the people to keep and bear Arms, shall not be infringed.

The debate that has raged since the passage of the Second Amendment is whether the authors intended the right to bear arms to be a collective right limited to participation in a militia or whether of necessity, the right was an individual right which belonged to the individual to use as needed.

The Court, ultimately, found that the operative clause was not limited by the prefatory clause, and, thus, an individual right to bear arms existed rather than a collective right. The Court also made clear that the right secured by the Second Amendment was not unlimited. Enumerating several situations in which restrictions are acceptable, the Court left no doubt that the possession of guns could be regulated.

The journey has now begun to determine what regulations and restrictions will be upheld and which will be rejected. The states and their derivatives have typically been the entities which have sought to control gun ownership, thus the 14th amendment with its mandatory wording will apply to future analysis by the courts. The following is the 14th amendment.

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The following is a list of the states and the wording contained in the individual constitutions addressing the issue of the right to bear arms:

Alabama – That every citizen has a right to bear arms in defense of himself and the state.

Alaska – 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. The individual right to keep and bear arms shall not be denied or infringed by the State or a political subdivision of the State.

Arizona – The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.

Arkansas – The citizens of this State shall have the right to keep and bear arms, for their common defense.

California – no state constitutional provision

Colorado – The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

Connecticut – Every citizen has a right to bear arms in defense of himself and the state.

Delaware – A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.

Florida – The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.

Georgia – The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.

Hawaii – 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.

Idaho – The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.

Illinois – Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.

Indiana – The people shall have a right to bear arms, for the defense of themselves and the State.

Iowa – no constitutional provision

Kansas – The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.

Kentucky – The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

Louisiana – The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person.

Maine – Every citizen has a right to keep and bear arms and this right shall never be questioned.

Maryland – no constitutional provision

Massachusetts – The people have a right to keep and to bear arms for the common defence.

Michigan – Every person has a right to keep and bear arms for the defense of himself and the state.

Minnesota – no constitutional provision

Mississippi – The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the Legislature may regulate or forbid carrying concealed weapons.

Missouri – That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.

Montana – The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.

Nebraska – no constitutional provision

Nevada – Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.

New Hampshire – All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

New Jersey – no constitutional provision

New Mexico – No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.

New York – no constitutional provision

North Carolina – 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. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.

North Dakota – no constitutional provision

Ohio – The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.

Oklahoma – The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.

Oregon – The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be keptin strict subordination to the civil power[.]

Pennsylvania – The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.

Rhode Island – The right of the people to keep and bear arms shall not be infringed.

South Carolina – 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.

South Dakota – The right of the citizens to bear arms in defense of themselves and the state shall not be denied.

Tennessee – That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.

Texas – 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.

Utah – The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms.

Vermont – That the people have a right to bear arms for the defence of themselves and the State.

Virginia – 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.

Washington – The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

West Virginia – A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.

Wisconsin – The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.

Wyoming – The right of citizens to bear arms in defense of themselves and of the state shall not be denied.

With 42 of 50 states providing a provision regarding the right to bear arms, the primary task of the courts will be to determine whether or not the regulations passed by the states will be constitutional or not. The constitutional provision that will be used to accomplish that task will, I believe, be the 14th amendment and its due process clause.

Ah yes, we’ve only just be “gun.”

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About Charlotte A. Weybright

I own a home in the historical West Central Neighborhood of Fort Wayne, Indiana. I have four grown sons and nine grandchildren - four grandsons and five granddaughters. I love to work on my home, and I enjoy crafts of all types. But, most of all, I enjoy being involved in political and community issues.
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8 Responses to WE’VE ONLY JUST BE “GUN” – THE SECOND AMENDMENT AND SELECTIVE INCORPORATION

  1. ice-ironman says:

    Sooooo we are back to lawyer talk and defining the definitions of definitions? I dont think that the founders were all that concerned about prefactory or opperitives. I think they were saying what they had seen in real life. And that is, if govt gets too much power the people need to be able to take it back (Mugabe). At that time( and now for that matter) guns were the way to do it if neccisary.

    Let me ask you this…IF the NRA changed its name to the National Rifle Association MILITIA. Could I join and satisfy the leftist judges that voted against the decision. Have I satisfied the PREFACTORY and the OPERATIVE at that point?

    What do you think will happen in the liberal cities that have banned guns from law obieding citizens?

  2. Ice-ironman:

    Nope, not back to lawyer talk at all. Just giving my opinion of what will happen given the history of the other rights contained in the Bill of Rights.

    I read the decision, and the majority who ruled in favor of the individual right spent a great deal of time talking about the prefatory clause as well as the operative clause. So you are really criticizing the very justices who ruled the way you wanted them to. That is how the Supreme Court just did their analysis.

    My post addresses how the Supreme Court will now go about determining wether the regulations go too far or are acceptable.

    The “liberal” cities who have banned guns will now have to modify their regulations based on the Heller decision.

  3. ice-ironman says:

    Im not criticizing anyone except those who strech to find things that are not there. Of course we have to look at what the constitution says. The courts just anylize things to suit their political leanings.

    Again, If the NRA was a militia, and I was a member, could we forget about this whole thing? We would satisfy the prefactory clause and the opeative, Right?

  4. Phil Marx says:

    Charlotte,

    First of all, that was great that you listed each states provision on the matter. What surprised me the most was the Texas law. Seriousl, for Texas I thought it would say: Gun Control? – You must be kidding!

    As to the recent case, I think that you are diluting the decision to some degree. While there are centainly some who think that there should be absolutely no regulation of any type on guns, this is very far from the mainstream view. You have pointed out here and on several other blogs that this is a victory of sorts for gun control advocates because it establishes that guns may be subject to some types of control. I just dion’t believe that this issue was ever in serious question.

    However, the main impact of the ruling is that citizens throughout the country are now guaranteed the right to keep handguns in their own homes. I think that if this ruling had went the other way, then the Second Amendment would have been effectively nullified. I see this as a huge victory for gun right, and I think that is the main impact of their decision.

    By the way, although I own two guns (handgun and shotgun) have a permit to carry a weapon, and am generally in support of the right to bear arms, I do support many restriction, including some that are not very popular with ther NRA.

  5. Phil:

    The victory I see is that we now have the certainty of knowing that the right to bear arms is now subject to regulations. In the past, the argument seemed to be focused on whether or not gun control should even exist at one extreme and banishing guns at the other.

    We now have a middle ground that says the right to bear arms is a protected right that can be regulated.

    I guess I see the victory in the certainty that has now been established.

  6. Ice-ironman:

    You betcha the courts analyze based on their political leanings. And in the federal judiciary it is even more critical since justices serve for life unless they get booted first.

    And, yes, if you belonged to the NRA and it was a militia, this discussion would be moot. 🙂

  7. ice-ironman says:

    Soooo if the right to bear arms is subject to regulations—Soo should the right to privacy. Privacy shouldnt be an absolute right?

  8. The right to privacy is subject to restrictions; it is not an absolute right.

    Even though the right to privacy covers a number of issues such as the freedom to marry whomever you choose, the right to have legal birth control, the right to an abortion, etc., the right itself is not absolute.

    Otherwise we wouldn’t have laws about the possession of child pornography in the privacy of one’s home. The right to privacy isn’t absolute in the arena of information gathering as we have seen the government request and obtain otherwise private information based on national security grounds.

    Companies send out privacy notices all the time to let you under what circumstances they can release personal information that otherwise is considered private.

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