America's "Big Stick"

There are many questions that have plagued our modern judicial system for some time – abortion or life? Federal government’s expansion or state’s rights? – but none have caused the stir as of late like those surrounding the Second Amendment. The Second Amendment states that “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.”  Theodore Roosevelt once said “Speak softly and carry a big stick: you will go far.” America’s “Big Stick” has always been our military dominance, and some claim our military is the extent of the 2^nd Amendment. So the question presented to us today is this: is the 2^nd Amendment an individual right? And if so, is it applicable today? I think so. There are a number of recent court cases in favor of this, the Founding Fathers’ intent appears to show this, and other Amendments seem to support it as well. Join me as I explore my reasoning behind this conclusion to this epic debate.

Let us start our journey by looking at the Tenth Amendment, which some say supports the individual’s right to Keep and Bear Arms. Amendment X of the United States Constitution reads as follows: “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.” Now, it may take some stretching of the imagination, but this could support the 2^nd Amendment, due to the fact that the 2^nd Amendment does not explicitly say “the right of the People to individually Keep and Bear Arms,” or “the right of the People through the Federal Government to Keep and Bear Arms.” By using the 10^th Amendment, one could argue that the right to Keep and Bear Arms is reserved to the States and their constituents, since it’s not given to the Federal government. However, this argument is rather flimsy, and has very little real substance. The Ninth Amendment also can support the 2^nd Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This is simply stating that Our Bill of Rights does not grant rights, it preserves and guarantees pre-existing individual rights. Since the 2^nd Amendment is just that – one of the Bill of Rights – it is obviously an individual right. In fact, if you look at the intent of the Founding Fathers, they seem to support this interpretation.

To get the context of the Constitution, and from that, the Founder’s intent, you have to look at the history of our nation. In the 1700s, when the Constitution was written, the American colonies were still under the thumb of the British Empire. The Intolerable Acts had reduced the rights of British subjects across the pond, and one of those rights infringed upon (among others) was the right to bear arms. Now, the British army had plenty of rifles, cannons and pistols, and were supposed to be there for the colonists’ protection, but they ended up being King George III’s riot police and brute squad. That, coupled with the Quartering Act – which allowed British army regulars and Redcoats to be housed in private residences without compensating the owner – drove our Founders to add the 2^nd Amendment. (Kindig, 1999) They didn’t want the citizens of the newly-formed United States of America to ever have to worry about some government official deciding they were too incompetent or too dangerous to have a gun (barring convicted criminals of course). A quote from John Basil Barnhill can sum it up nicely: “Where the people fear the government you have tyranny. Where the government fears the people you have liberty.” Our Founding Fathers knew this, and so they sought to protect our right to Keep and Bear Arms – well, all our rights – safe from a dictator’s grasp.

And all of this brings us to the crescendo of my argument: a series of modern day court cases on the 2^nd Amendment. The headline case in regards to this topic is District of Columbia et al. v. Heller, a landmark case from 2008. In this case, the law allowing the indiscriminate banning of firearms in the District of Columbia was challenged by DC resident Dick Heller, and supported by many hunting, gun rights and law enforcement advocate groups, like the National Rifle Association and the Fraternal Order of Police, in addition to numerous persons not affiliated with any of these groups. Various political figures signed the amicus curiae (friend of the court) brief as well, including Dick Cheney as the President of the United States Senate, and our very own Maricopa County Attorney’s office. The case was started when Heller, a DC policeman, attempted to register his personal sidearm with the City of DC. He was refused. Because of this, he sued the city based on the 2^nd Amendment, to keep the city from “enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home.” (DC v. Heller, 544 US 1, 2008) After a ping-ponging of dismissals, reversals and appeals, it finally made it to the highest court in the land, where the Supreme Court ruled 5-4 that the 2^nd Amendment is an individual right, and cannot be infringed upon in any federal district. Now, that wasn’t good enough for some anti-2^nd Amendment people, stating that that was only in federal districts, so Otis McDonald, a resident of the City of Chicago, filed suit against Chicago. The mayor at the time was Richard Daley, and he had overseen the enforcement of restrictive gun laws not unlike DC’s, but McDonald’s argument was based on selective incorporation, a legal term meaning – in this case – that laws applicable to the federal government is applicable to the states and cities as well. (Doherty, 2010) This case, too, made it to the Supreme Court, where they ruled by a 5-4 margin in favor of the 2^nd Amendment.

Some people would argue that these cases give to much freedom to the people, that we will abuse it and go back to the days of the Wild West, where the streets get cleaned up with a gun. Statistics have shown that is untrue. According to BATFE (the Bureau of Alcohol, Tobacco, Firearms and Explosives), gun sales rose dramatically in November 2008 – 450,000 more sales than the year before, when 21,000 a month is the average – and they recorded the crime rates dropped almost as dramatically. The national murder rate dropped 7.4% alone – the largest drop since 1999! Others might raise the issue of Mexican drug cartels getting their weapons from American dealers. We have many laws in place to prevent this, in addition to the National Instant Criminal Background Check System, or NICS. Besides, the cartels are literally waging a war south of our border: real assault rifles are not available to the general public here (and no, the Clinton-era gun ban’s definition of an “assault rifle” is not accurate), just as belt-fed machine guns or rocket-propelled grenades are not. Granted, some of our weapons, especially our pistols, are smuggled across the border, but that is performed by criminals. More laws will not prevent a criminal – who is by definition a law-breaker – to begin obeying the law.

So is the 2^nd Amendment an individual right? And if so, is it applicable today? Yes, it is. The Supreme Court has found that our Founders intended it to be a personal, God-given right to every American citizen, and that it is very, very applicable in our modern day and age! And I am a proud proponent and supporter of this right, and currently exercise it as I plan to do for the rest of my life!

References

Kindig, Thomas. (1999). The Intolerable Acts. Retrieved from http://www.ushistory.org/ declaration/related/intolerable.htm

Doherty, Brian. (2010). You've Come A Long Way, Baby. Reason, 42(5), 24-32. Retrieved from OmniFile

District of Columbia v. Heller, 544 US 1 (2008)