On March 18th, arguments were made before the United States Supreme Court over the constitutionality of the Firearms Control Regulations Act of 1975, which essentially banned the ownership and use of handguns by residents of the District of Columbia. At issue in the case, named District of Columbia v. Heller, is whether the Act infringes upon the right of an individual to bear arms as protected by the Second Amendment of the Bill of Rights, which reads, “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.”

Supporters of the Act, which is by far the strictest restriction of gun rights in the United States, contend that the Second Amendment only protects the right to bear arms with regard to State militias. Since those no longer exist, they argue, the Amendment now refers to the National Guard. Those who oppose the Act take the position that the Amendment refers to the individual right of the citizen to possess firearms. It is clear that the latter camp has the Constitutional upper hand.

The anti-gun rights position initially seems to win a semantic victory insofar as the Amendment is introduced with the notion of “[a] well-regulated Militia”, dashing the hopes of gun-rights proponents. The idea that the Second Amendment would extend to the State alone is illogical. The Constitution already provides for the existence and arming of a militia in Article I, Section 8; for the Second Amendment to guarantee the same thing again would be both redundant and unnecessary. Moreover, the other seven of the first eight Amendments to the Constitution all refer to the rights of the individual to protection from the State, so for the Second Amendment to refer to the right of a collective group would not be consistent with the rest of the document.

But then, what was meant by the first part of the Amendment? UCLA law professor and publisher of the Web log The Volokh Conspiracy Eugene Volokh notes, “Some people suggest the justification clause provides a built-in expiration date for the right.” The right to bear arms would thus only apply so long as the security of a free State necessitated a well-regulated militia; the right would go away once the circumstances changed and the necessity disappeared. However, “This reading is at odds with the text: The Amendment doesn’t say ‘so long as a militia is necessary’; it says ‘being necessary.’ Such a locution usually means the speaker is giving justification for his command, not limiting its duration.” In other words, the Second Amendment is still and for ever will be legally binding. As Thomas Jefferson wrote to Supreme Court Justice William Johnson on June 12th, 1823, “On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

The first part of the text of the Second Amendment is a non-binding preamble. Like many other legal documents in the 1700’s, the Amendment had a preamble not for restrictive reasons but as a statement of purpose. In Parker v. District of Columbia, the lower Court ruling which led to the current Supreme Court case, this point is made abundantly clear: “The Amendment does not protect ‘the right of militiamen to bear arms,’ but rather ‘the right of the people.’ The operative clause, properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias.” The ruling also commented that “the drafters’ view [was] that the people possessed a natural right to bear arms, and that the preservation of a militia was the right’s most salient political benefit….”

Also of note is the original wording of the Second Amendment. James Madison’s first draft read, “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” And speaking of Madison, what does “well-regulated” mean with regard to “the militia”? Madison wrote in Federalist #29, a militia acquired “the degree of perfection which would entitle them to the character of a well-regulated militia” by going “through military exercises and evolutions, as often as might be necessary.” Richard Henry Lee, who, in the Second Continental Congress, called for the American colonies’ independence from Britain, wrote, “To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike, especially when young, how to use them.” In other words, “well-regulated” refers not to government regulation but to the training that would allow individuals to use arms efficiently.

When the Constitution’s ratification was debated, States began demanding that a Bill of Rights be added in order to protect the individual citizen from the tyranny of the State. New Hampshire, Virginia, New York, North Carolina and Rhode Island all requested or demanded at their ratification conventions that the Constitution protect the right to keep and bear arms. George Mason, considered the father of the Bill of Rights, declared, “Who are the militia? They consist now of the whole people,” and that “to disarm the people… was the best and most effectual way to enslave them.”

The last two Amendments of the Bill of Rights refer to the relationship of the State to the individual. The Ninth Amendment reads, “The enumeration of the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Historian Thomas E. Woods, Jr. notes the Amendment was drafted to assure those who were concerned that the prior eight rights were exclusively protected and that all other rights not singled out would be insecure. Because of the Ninth Amendment, the Second is not necessary to protect the individual right to bear arms. Were the Second Amendment never drafted, the right would still be protected as part of British common law, which served as the basis of the document. The Framers of the Constitution included the Second Amendment so that the right to bear arms would be an explicitly enumerated right, rather than unenumerated right protected by the Ninth Amendment.

The Tenth Amendment guaranteed the States’ rights to self-government: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” Washington, D.C. is in an odd position in that it is neither a State, nor part of a State. The District has been given home rule over many affairs, although Congress intervenes on various issues. One could support the gun ban if one looks at it as part of Washington’s “pseudo-state” powers, as does Kevin R. C. Gutzman, an historian who favours gun rights. The ban, he argues, should be taken up by D.C. residents with their own government, and not be overturned by the Supreme Court, which would be overturning a valid law.

The key problems with that analysis are that the District is not a State and Congress still has oversight over it. One can holler all he wants that D.C. is in the same category as a State, but unless the Constitution is amended to say otherwise, it is still a part of the Federal government. Also, even if the home rule were in play, no State has the ability to violate the rights of the people as established in the Constitution, whether they live in Washington, D.C. or New York. The power of the States goes both ways: Just as the Federal government can not overturn that which is in the purview of the States, neither can the States overturn the Constitution. Until our elected officials - to say nothing of unelected judges - understand this, we the people will be subject to the tyranny which arises from Constitutional chaos.

It requires the most scurrilous reading of history to determine that the Founders opposed the individual right to possess firearms. Having been kept under the heel of the British Empire and seen the dangers of an overreaching centralised government, the Founders declared that the right of able-bodied citizens to defend themselves was absolute, and that no other party could restrict that right. They knew full well that prohibiting them would be both ineffective and immoral. Thomas Jefferson quoted criminologist Cesare Beccaria’s On Crimes and Punishment in his “Commonplace Book”: “Laws that forbid the carrying of arms… disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

Economist Tench Coxe wrote in his “Remarks on the First Part of the Amendments to the Constitution”, which appeared in the Philadelphia Federal Gazette, “As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the article in their right to keep and bear their private arms.” James Madison wrote Coxe a thank-you note, which read that ratification of the Amendments “will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen.”

Well, I hope that matter is settled. Now, if you’ll excuse me, I’m off to the firing range, by which I mean my Wii.