The Second Amendment Has Become Optional

BY Herschel Smith
5 years, 9 months ago

Jacob Sullum at Reason:

Ten years ago this week, the Supreme Court for the first time explicitly recognized that the Second Amendment protects an individual right to armed self-defense. Since then the Court has revisited the subject only twice, while it has heard about 45 cases involving the Fourth Amendment and about 60 involving the First.

That stark disparity reflects a failure noted by critics on and off the Court. After waiting more than two centuries to acknowledge that the Second Amendment imposes limits on legislation, the Court has passed up dozens of opportunities to clarify the extent of those limits, leaving the task to lower courts that are often hostile to gun rights.

District of Columbia v. Heller, decided on June 26, 2008, overturned a handgun ban in the nation’s capital, finding it inconsistent with the Second Amendment right to use firearms for self-defense. Two years later, the Court overturned a similar law in Chicago, confirming that the Second Amendment constrains states and cities as well as the federal government.

Aside from those two landmark decisions, the Court has enforced the Second Amendment in just one case. In 2016 it ruled that the Supreme Judicial Court of Massachusetts had flouted Heller when it upheld that state’s ban on stun guns based on the mistaken premise that the Second Amendment applies only to militarily useful weapons that were in common use when it was enacted.

That is far from the only time a court has reached a conclusion that seems inconsistent with what the Court has said about the Second Amendment. “Most federal judges have not accepted Heller,” Alan Gura, the lawyer who argued the case, recently told Tom Gresham on the radio show Gun Talk. “They have taken the posture of ‘go ahead and make me do it.'”

Well, there are two things at work here.  First, regular readers know that I consider the Heller decision to be weak.  Scalia did an awful job with it focusing on self defense, when we know full well that isn’t the framework in which the second amendment should be interpreted.

The conversation would clarify a great deal (and get off of the “well regulated” part) if it focuses on the overthrow of tyranny rather than self defense.  Then “well regulated” can be seen in the proper context, i.e., well regulated and calibrated firearms which the shooters knew how to use.

Scalia left an opening as wide as my truck for the controllers to drive through.  Furthermore, his statement that their ruling doesn’t amend the obviously necessary rules for prohibitions in certain sensitive locations (my wording) doesn’t help in the least.

Then there is the issue of recalcitrant judges who don’t care about the constitution or God-given rights.  McDonald was a “make-me-do-it” case, just as other such cases following have been.  And no one has made them do it yet.  It’s still impossible to get a concealed handgun permit in Hawaii, New York or New Jersey.

For these recalcitrant judges, the best solution is for them to be treated as the traitors they are.


  1. On June 29, 2018 at 11:33 am, Hiram said:

    Wah, wah, I no longer give a hoot what SCOTUS or any other federal or state employees think – robed or not. My rights are not for them to decide and are non-negotiable. What rights are those? Specifically for this discussion, my rights to defend myself, my family and my property by ANY means necessary.

  2. On June 29, 2018 at 2:33 pm, George Pace said:

    Thanks for mentioning Hawaii as “no issue”. It’s rare that anyone talking about carry laws mentions that Hawaii has been the strictest state ever. Only 4 (four) CCW licenses (called “citizen” on the official state reporting forms, as opposed to “security” which means open carry that is only available to employed security personnel while in uniform and on the clock) issued in the past 21 years since reporting became required, one to a judge, one to an active duty military non-resident, and two whose records from 2001 are claimed to be “lost”. The Hawaii state senate is 100% Democrat, and the state house 91% Democrat. I did persuade one legislator this past session to introduce a bill to repeal the ban on possession of “stun guns” (and I included the SCOTUS Caetano per curiam, etc., Hawaii joins New York and Rhode Island as the only three states to still ban such possession), and neither of the committees it was referred to not only wouldn’t hold a hearing on it, the chair and members wouldn’t respond to any of my multiple email and phone requests to tell me why they wouldn’t hold a hearing on a bill to repeal an obviously (according to SCOTUS) unconstitutional law. That’s how things work here. They did manage to ban bumpstocks though. Aloha.

  3. On June 29, 2018 at 6:06 pm, Gary said:

    My understanding is that Heller (and MacDonald) are so weak is that is what they had to do to get 5 votes – with the recently announced Justice Kennedy the weak link. They have been reluctant to bring another case up due to concerns which way Kennedy would rule and they didn’t want to establish bad precedent if he went the other way. Hopefully with his wishy washy ass off the Court we can get 5 justices to rule on the true merits of the Second Amendment.

  4. On June 29, 2018 at 6:24 pm, scott s. said:

    Hawaii doesn’t allow any CCW, meanwhile Hawaii County is “protecting” its citizens by preventing them from entering their real property to defend themselves and their property.

  5. On June 30, 2018 at 7:20 am, Ron W said:

    Re: “recalcitrant judges”, Thomas Jefferson’s prescient statements were right on:

    “Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them. . . . The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” (Letter to Abigail Adams, September 11, 1804)

    “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so . . . and their power [is] the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with corruptions of time and party, its members would become despots.” (Letter to William Jarvis, Sept. 28, 1820)

  6. On July 4, 2018 at 12:41 pm, Scott in Phx AZ said:

    Gary, several cases on concealed carry (NJ, CA) and city level “assault weapons” have been appealed to the SC since Heller/MacDonald.

    In all (except for the stun gun decision referenced above) the SC couldn’t get 4 votes to take the case.

    Scalia and Thomas, and now Thomas and Gorsuch have written scathing dissents from those decisions to deny cert.

    Clearly there are not 5 votes on the court even now to guarantee a win on carry or semi-auto rifles.

    And there may have only been 5 in Heller/MacDonald because Scalia was willing to write a weak decision. In other words he may have had to write that week “dicta” in order to get the 5th vote (or even 4th and 5th vote).

    That is sad to think about.

    And it shows that we may have to get 2 more good judges on the SC in order to get decent decisions on the 2A in the future.

    Let’s hope Trump gets the chance to do that and that those justices are indeed going to read the 2A correctly.

  7. On July 16, 2018 at 7:03 pm, Haikii said:

    If there is one thing that explains why U.S. Court of Appeals judge, Brett Kavanaugh, is not qualified as a nominee for the United States Supreme Court, it’s his,.. a judge must be “independent,.. straight forward,.. must interpret the Constitution as written,..” and a long-standing adherence to text, attitude. Judge Kavanaugh only sees the Constitution in what he wants to see, his clear reasoning effort. Something that this former Supreme Court clerk should have learned before making judgment on the Second Amendment, is to study the Constitution. I will tell you why he has failed Constitution 101. Embarrassing, yes. It should be.

    My concern, under the circumstances, if Judge Kavanaugh is fit for the Circuit Court of Appeals.

    49 reasons why I took a second look at the Second Amendment. One wonders, how could Judge Kavanaugh have missed the obvious, with his long-standing adherence to text, if he would have read the Constitution?

    “This is a strong political movement, the Second Amendment,” Trump said. “And there can be no other interpretation … I mean, give me a break.” ———— Trump (letter) 7/29/18 explaining Second Amendment “people” by substituting the word “individuals.” “..which ensures the right of individuals to keep and bear arms.” ————————-

    The NRA has no claim to the Second Amendment, here is why.

    Since others believe and cultivate something I do not see, neither logic or theory I can understand, I have been forced to study and relate my reading of the Second Amendment. In the making of our United States Constitution I have 49 plus reasons that help to explain my understanding of the Second Amendment. ———————–

    The United States Constitution emphasizes it’s intent and unquestionable purpose of the Second Amendment with the words in it’s Preamble to the Constitution, “We the people… provide for the common defence…” ( Merriam-Webster; belonging to, or serving the community).—————–
    The Constitution of the United States was established and formulated as a result of the Articles of Confederation. Article 6, reflects part of that vision, “..nor shall any body of forces be kept up by any State in time of peace,… but every State shall always keep up a well- regulated and disciplined militia,…”———————-

    If, as some may argue, that the Second Amendment’s “militia” meaning, is that every person has a right to keep and bear arms. The only way to describe one’s right as a private individual, is not as a “militia” but as a “person” (“The individual personality of a human being: self.”).—————–

    Articles of Confederation lists eleven (11) references to “person/s.”
    “If any person guilty of…
    “..and no person shall be capable of…”
    “..nor shall any person…”
    “..shall be protected in their persons..”
    “..nor shall any person holding any office…”
    “..granted or surveyed for any person, ..
    “..Congress shall name three persons..”
    “..list of such persons each party shall..”
    “..and the persons whose names shall..”
    “..nominate three persons..”
    “..provided that no person be allowed to serve..”——————

    “Person” or “persons“” is mentioned in the Constitution 49 times, to explicitly describe, clarify and mandate a Constitutional legal standing as to a “person”, his or her Constitutional rights. (Articles of Confederation 11 times.)————————-

    Whereas in the Second Amendment, reference to “person” is not to be found. Was there are reason?. The obvious question arises, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey same legal standard in defining an individual’s right to bear arms as a “person”? ——————-

    “Person” is one as described by Merriam-Webster Dictionary as a “citizen”. “A person who owes allegiance to a government and is entitled to its protection.”——————

    Merriam Webster “militia”, “a body of citizens organized for military service : a whole body of able-bodied male citizens declared by law as being subject to call to military service.”———–

    In the whole of the U.S. Constitution, “militia” is mentioned 5 times. In these references, there is no mention of person or persons. One reference to “people“ in the Second Amendment. People, meaning not a person but persons, in describing a “militia”. “People” is mentioned a total 9 times. ————————-

    It’s not enough to just say that “person(s)” is mentioned in the United States Constitution 49 times. But to see it for yourself, and the realization was for the concern envisioned by the Framers that every “person” be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person”. ——————–
    “..No Person shall be a Representative..” (Article 1 Section 2)
    “..whole Number of free Persons,..” (Article 1 Section 2)
    “..three fifths of all other Persons…” (Article 1 Section 2)
    “..No person shall be a Senator…” (Article 1 Section 3)
    “..And no Person shall be convicted…” (Article 1 Section 3)
    “ Person holding any Office…” (Article 1 Section 6)
    “..Names of the Persons voting for…” (Article 1 Section 7)
    “…of Such Persons as any of the States…” (Article 1 Section 9)
    “…not exceeding ten dollars for each Person…” (Article 1 Section 9)
    “…And no Person holding any…” (Article 1 Section 9)
    “…or Person holding an Office of Trust of…“ (Article 2 Section 1)
    “…and vote by Ballot for two persons,…” (Article 2 Section 1)
    “…List of all the Persons voted for,…” (Article 2 Section 1)
    “…The Person having the greatest Number of Votes shall be the President…” (Article 2 Section 1)
    “…and if no Person have a Majority,…” (Article 2 Section 1)
    “…the Person having the greatest Number of Votes…” (Article 2 Section 1)
    “…No person except a natural born Citizen or a Citizen,…shall be eligible to the Office of
    President” (Article 2 Section 1)
    “…Any Person be eligible to that Office….” (Article 2 Section 1)
    “…No Person shall be convicted of …” (Article 3 Section 3)
    “…except during the Life of the Person attainted….”. (Article 3 Section 3)
    “…A Person charged in any State…” (Article 4 Section 2)
    “…No Person held to Service…” (Article 4 Section 2)
    “…The right of the people to be secure in their persons,…” (Amendment IV)
    “…and the persons or things to be seized….” (Amendment IV)
    “..No person shall be held to answer…” (Amendment V)
    “..nor shall any person be subject for the same offense….” (Amendment V)
    “…they shall name in their ballots the person voted for as President,…” (Amendment XII)
    “…the person voted for as Vice-President,…” (Amendment XII)
    “…all persons voted for as President,….” (Amendment XII)
    “…all persons voted for as Vice-President…” (Amendment XII)
    “…The person having the greatest Number of votes for President, …” (Amendment XII)
    “…and if no person have such majority,…” (Amendment XII)
    “..the persons having the highest numbers …” (Amendment XII)
    “… The person having the greatest number of votes…” (Amendment XII)
    “..and if no person have a majority,…” (Amendment XII)
    “…But no person constitutionally ineligible to the Office of President…” (Amendment XII)
    “…All persons born or naturalized …” (Amendment XIV Section 1)
    “… any State deprive any person of life, liberty, or property,” (Amendment XIV Section1 )
    “…nor deny to any person within …” (Amendment XIV Section1)
    “…number of persons in each State,….” (Amendment XIV Section 2)
    “…No person shall be a Senator or …” (Amendment XIV Section3)
    “..and such person shall act accordingly….” (Amendment XX Section3)
    “…of the death of any of the persons from…” (Amendment XX Section4)
    “…case of the death of any of the persons from…” (Amendment XX Section4)
    “…No person shall be elected to the office of the President…” (Amendment XXII Section1)
    “…and no person who has held the office of President,…” (Amendment XXII Section1)
    “ which some other person was elected President…” (Amendment XXII Section1)
    “…shall not apply to any person holding the office of President…” (Amendment XXII Section1)
    “..prevent any person who may be holding the office of President…” (Amendment XXII Section1)
    The President was elected on 13 of these references. Of which 11 are Amendments, conditioning a “person,” unlike the Second Amendment, to the role of the President of the United States.——————-

    Finally, another reason and need for…. “A well regulated militia, …” exactly, because we fight among ourselves.————

    Just another thought on the subject.————- New laws are created every day. Now is that time to make a new law to satisfy gun owners.

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You are currently reading "The Second Amendment Has Become Optional", entry #19557 on The Captain's Journal.

This article is filed under the category(s) Second Amendment and was published June 28th, 2018 by Herschel Smith.

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