SECOND AMENDMENT RIGHTS
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Second amendment rights have become a tremendous issue in Virginia and across the country, particularly in late 2019 and into 2020 since Virginia's legislature has been overtaken by the Democratic party. As such, it is important to educate the public as much as possible with regard to the Second Amendment, how it applies to the states, and for what it stands.
SECOND AMENDMENT SANCTUARIES A great number of counties throughout the Commonwealth of Virginia have elected to resolve to be "Second Amendment Sanctuaries." The term "Second Amendment Sanctuary" refers to resolutions adopted by some jurisdictions in the United States to not expend resources to enforce certain gun control measures perceived as violative of the Second Amendment. The resolutions oppose enforcement of universal gun background checks, high capacity magazine bans, assault weapon bans, red flag laws, and more. WHAT IS THE SECOND AMENDMENT? The Second Amendment of the United States Constitution 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." Such language has created considerable debate regarding the Amendment's intended scope since its ratification in December, 1791. STATES' RIGHTS Each respective state has an individual constitution. States' rights refers to the political rights and powers granted to the states of the United States by the U.S. Constitution. Under the doctrine of states' rights, the federal government is not allowed to interfere with the powers of the states reserved or implied to them by the 10th Amendment to the U.S. Constitution. https://www.thoughtco.com/states-rights-4582633. FREE DOWNLOAD: Law Journal Article: "The Second Amendment: An Analysis of Interpretations"
Commentary by St George TuckerTucker/BlackstoneThe earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone's Commentaries on the Laws of England, a critical legal reference for early American attorneys published in 1803 Tucker wrote:
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. Amendments to C. U. S. Art. 4. This may be considered as the true palladium of liberty ... The right of self defence is the first law of nature: In most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game : a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty. |
THE COMMONWEALTH OF VIRGINIAVirginia's Constitution also carries a right to bear arms.
Article I. Bill of Rights Section 13. Militia; standing armies; military subordinate to civil power; 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. WHAT IS A "MILITIA" The Supreme Court held in 1939, the Framers used "militia" to refer to all adult able-bodied males under age 45. Even today, under the 1956 Militia Act, all male citizens between 18 and 45 are part of the militia. (Women are probably also included, given the Supreme Court's sex-equality precedents.) "Well-regulated militia" in late 1700s parlance meant the same thing -- "the body of the People capable of bearing Arms," which is how an early propsoal for the amendment defined it. And the individual-rights view is the nearly unanimous judgment of all the leading 1700s and 1800s commentators and cases. Volach, E. UCLA School of Law, Wall St. J., April 12, 1999, p. A23. PRESENT HOLDINGS The individual right to bear arms is a guaranteed right in the United States Constitution that is applicable to the individual based on the incorporation doctrine, the Fourteenth Amendment, and stare decisis. District of Columbia v.Heller is a seminal case in the interpretation of the second amendment as granting a right for individuals to keep and bear arms, absent any requirement of use of the weapon in or relative to a militia. In its extensive, written opinion, the Court provided a thorough analysis of the prior case law, the facts of the case, the incorporation doctrine, the Second Amendment, the Fourteenth Amendment, current cultural views, and focused squarely on the issue of whether an individual right to bear arms exists, in the absence of military service. The Court firmly held, "Applying the standard that is well established in our case law, we hold that [3] the Second Amendment right is fully applicable to the States." Heller clearly sets out the Court's opinion that individuals may possess firearms and that this individual right is absolute as granted by the Second Amendment. Second Amendment proponents point to this element of the ruling as a staunch win. It is important to note, however, that the holdings in Heller do not reverse or specifically modify any of the previous Supreme Court rulings. The Heller case simply adds to these and provides clarification from the Court. The Heller Court specified, however, that the individual right to bear arms is not utterly unrestricted. The Court stated, "[20] Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Obviously this observation alludes to the prior holding in Miller in which the Court upheld the National Firearms Act and its application to reasonable rules covering gun possession and ownership. The Court continued to state that "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." Last the Court held that there existed yet another limitation on firearms. The Heller Court quoted Miller, stating, "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." 307 U.S., at 179, 59 S. Ct. 816, 83 L. Ed. 1206. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." The Court's focus appears not to attempt to exclude firearms that have evolved over time, but to preclude and properly regulate weapons that are not reasonable. An example may be fully automatic firearms, military grade weapons, explosives and similar weapons. All of this from the Supreme Court arising from a case that began as a challenge to the individual right to possess a handgun in the District of Columbia. It would appear that it was important to the Court to attempt to put bring some level of finality to interpretation of the Second Amendment right to bear by the individual. However, it was only a short time until another case was before the Court. The most recent case heard by the U. S. Supreme Court interpreting the right to bear arms is McDonald v. Chicago, 561 U.S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894; 2010 U.S. LEXIS 5523; 78 U.S.L.W. 4844; 22 Fla. L. Weekly Fed. S 619, a 2010 case. In McDonald, the Petitioners filed three suits against respondent municipalities the City of Chicago and the Village of Oak Park in the United States District Court for the Northern District of Illinois, alleging that municipal ordinances banning handgun possession violated the Second and Fourteenth Amendments. In McDonald, Petitioners Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson were Chicago residents who desired to firearms, more specifically, handguns in their homes for purposes of self-defense. The Petitioners were prohibited from doing so by Chicago's firearms laws. A City ordinance provided that “[n]o person shall . . . possess . . . any firearm unless such person is the holder of a valid registration certificate for such firearm.” Chicago, Ill., Municipal Code § 8-20-040(a) (2009). The Code then prohibits registration of most handguns, thus effectively banning handgun possession by almost all private citizens who reside in the City. § 8-20-050(c). The Court stated in its analysis that, similar to Chicago, Oak Park made it “unlawful for any person to possess...any firearm,” for essentially any purpose, thus effectively outlawing the ownership of individual firearms within the boundaries of Chicago and Oak Park, Illinois. The McDonald ruling clarified the Court's earlier decisions that limited the amendment's impact to a restriction on the federal government, expressly holding that the Fourteenth Amendment applies the Second Amendment to state and local governments to the same extent that the Second Amendment applies to the federal government. Both Heller and McDonald clearly establish that the individual right to bear arms exists separately and distinctly from military service. The Court has not stricken down any of the provisions of the four key cases in its rulings in subsequent cases. In fact, each has built upon the prior rulings. As an example, although the individual right to own, possess, and bear arms has been confirmed by the court, the Court continued to recognize that reasonable restrictions can be placed on that right. The Courts have provided clear guidance that the Constitution of the United States provides this individual right. Both the Federal and State governments are at liberty to implement appropriate controls on the sale, transfer, transport, and possession of firearms. So, now the focus should be exclusively on "reasonableness" of restrictions. Any other approach, such as banning weapons, is unconstitutional. What does it all mean? Regardless of politics, the Second Amendment is validly applicable to the states. The individual right to bear arms belongs to the people, albeit with reasonable restrictions. It does not appear that the battle between proponents of gun rights and opponents of the same will ever be settled. Yet, for now, thanks to the Supreme Court rulings in Heller and McDonald, there is more clarity than ever before in American history. | ||||
