Is the Second Amendment 'Absolute'?

Are Democrat Gun and Magazine Ban Proposals Unconstitutional?

On June 2, several days after an especially terrible crime in Texas, nominal president Joe Biden said “the Second Amendment, like all other rights, is not absolute.” Of course, the Second Amendment and the right to keep and bear arms are not the same thing. One is an amendment that guarantees a right; the other is the right that the amendment guarantees.

Biden would unquestionably have been wrong if he had meant that the Second Amendment is not absolute. The amendment is a complete sentence, and like other amendments in the Bill of Rights, contains a clear command. We can debate the nature and purpose of the right that the Second Amendment guarantees, but whatever the right is, the amendment’s command that it “shall not be infringed” is absolute.

Of course, Biden meant to say that the right to keep and bear arms is not absolute. We know this because he quoted the Supreme Court’s statement in District of Columbia v. Heller (2008), “Like most rights, the right secured by the Second Amendment is not unlimited.”

But was the Court correct? To illuminate its statement, the Court said:

“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. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”

Blackstone is the English jurist Sir William Blackstone, whose Commentaries on the Laws of England (1765-1769), in the chapter covering the “rights of persons,” explained that people have the right to use arms to protect their other rights “when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” He continued:

“[T]o vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defence.”

Heller’s “whatsoever . . . whatsoever . . . whatever” verbiage refers to Blackstone’s explanation that the English Statute of Northampton (1328) prohibited carrying weapons in a manner apt to terrorize innocent people. The law was not a limit on the right to arms, because terrorizing people was never considered part of the right in the first place. Thus “Blackstone” does not support the Court’s claim that “the right . . . is not unlimited.”

Where the Court said “from Blackstone through the 19th century cases,” it skipped the all-important statements of the Framers of the Constitution and Bill of Rights about why they considered an armed citizenry so important, why they were concerned about the federal government disarming the people, and why they adopted the Second Amendment to guarantee the right to keep and bear arms. For example, James Madison, who introduced the Bill of Rights in the House of Representatives, wrote in The Federalist, No. 46:

“Let a regular army, fully equal to the resources of the country be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the state governments with the people on their side would be able to repel the danger. [To an army of the size possible in the late 18th century] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.”

And in another example, Alexander Hamilton wrote in The Federalist, No. 29:

“[I]f circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens.”

So much for Heller’s author, the late-Justice Antonin Scalia, being an originalist.

The “19-century cases” to which the Court referred in Heller also do not support the idea that “the right . . . is not unlimited.” Heller said that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” If that is true, 19th-century state court decisions upholding restrictions on carrying weapons concealed, imposed by state legislatures after the federal and state constitutions were adopted, therefore criminalizing activity that was within the scope of the right to arms when the constitutions were adopted, proves nothing but that state courts and legislatures in the 19th century, like those at the federal level in the 20th and 21st centuries, have sometimes ignored the federal and state constitutions.

Furthermore, the Court’s claim that “the right . . . is not unlimited” is contradicted by the first of those “19-century cases,” Bliss v. Commonwealth, decided by the Kentucky Supreme Court in 1822.

Mr. Bliss was convicted of carrying a sword concealed in a cane, in violation of an act of the legislature forbidding “wearing concealed weapons,” imposed after the adoption of Kentucky’s constitution, which stated “the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned.” The court struck down the act, saying:

“That the provisions of the act in question do not import an entire destruction of the right of the citizens to bear arms in defence of themselves and the state, will not be controverted by the court; for though the citizens are forbid wearing weapons concealed in the manner described by the act, they may, nevertheless, bear arms in any other admissible form; it is the right to bear arms in defence of themselves and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution.’

“If, therefore, the action in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious.’

“And can there be entertained any reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with the enemy, were not allowed the use of bayonets; and if the act be consistent with the constitution, it cannot be incompatible with that instrument for the legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise.”

In short, the Kentucky court recognized that the wording of the state constitution—“the right of the citizens to bear arms”—indicated that the right existed before the constitution was adopted. The court therefore concluded that anything related to bearing arms that was lawful when the state constitution was adopted was necessarily lawful and within the scope of that right, then and thereafter.

Similarly, in the Bill of Rights, the Second Amendment guarantees “the” right to keep and bear arms; the First Amendment guarantees “the” free exercise of religion, “the” freedom of speech and the press, and “the” right of assembly and petitioning the government; the Fourth Amendment guarantees “the” right to be secure against unreasonable searches and seizures; the Sixth Amendment guarantees “the” right to specific protections during criminal proceedings; and the Seventh Amendment guarantees “the” right of trial by jury in lawsuits. Thus the Framers considered all these rights and freedoms to exist before the Bill of Rights was adopted.

What about the Democrats’ anti-gun legislation?

Given, as Heller said, that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them,” several of the Democrats’ anti-gun proposals are afoul of the Second Amendment. For example, when the amendment was adopted, it was lawful for people to buy long guns and handguns, thus those activities were within the scope of the right that the amendment says “shall not be infringed.”

Also, the Militia Act of 1792 defined the militia to include able-bodied males of ages 18-44, under federal law today the Militia of the United States also includes 17-year-olds, and as the Supreme Court said in U.S. v. Miller (1939), when called for service, militia members are “expected to appear bearing arms supplied by themselves.”

Furthermore, when the Second Amendment was adopted, people could buy the same or better firearms than were issued to soldiers, and Miller said that the right to arms includes those that relate to “the preservation or efficiency of a well regulated militia,” such as those that are “part of the ordinary military equipment” and other arms the use of which “could contribute to the common defense.” For that proposition, the Court cited the decision of the Tennessee Supreme Court in Aymette v. State (1840) that, under that state’s constitution’s “keep and bear arms” provision:

“As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. (Emphasis in the original.)”

But House Resolution 7910, introduced by Democrat Representatives Jerrold Nadler and Sheila Jackson Lee, with 176 co-sponsors (all Democrats) would prohibit a firearm dealer from selling to anyone under 21 years of age not only “ordinary military equipment,” but tens of millions of other firearms the use of which “could contribute to the common defense.”

Specifically, H.R. 7910 would ban “any semiautomatic centerfire rifle or semiautomatic centerfire shotgun that has, or has the capacity to accept, an ammunition feeding device with a capacity exceeding five rounds.” And it defines “ammunition feeding device” to include “any” magazine for such firearms, whether detachable or fixed, the only two kinds.

The breadth of the prospective prohibition is immense. It would include any centerfire semi-automatic rifle or shotgun that uses any detachable magazine, even one that holds only one round of ammunition. That is because a firearm that can use a detachable magazine that holds any number of rounds, can also use a detachable magazine that holds any other number of rounds. It would also include any centerfire semi-automatic rifle or shotgun that has a fixed magazine that can hold more than five rounds, such as the M1 “Garand” and numerous rifles and shotguns generally designed for hunting and marksmanship competitions.

For another example, Biden, Vice-President Kamala Harris, Democrats in Congress, and Texas Democrat gubernatorial candidate “Beto” O’Rourke (who once wrote of his desire to run over children with a car) advocate banning Americans of all ages from acquiring various firearms such as AR-15s and rifle, shotgun, and handgun ammunition magazines that hold more than 10 rounds. But those firearms and magazines would generally be the type best suited for the purposes described in Aymette and Miller, and, as the Second Amendment says, for “the security of a free state” against tyranny. Judge Roger Benitez, of the U.S. District Court for the Southern District of California, explained this in considerable detail in Miller v. Bonta (2021).

AR-15s and magazines that hold more than 10 rounds, and other firearms that would be banned by H.R. 7910, are also constitutionally protected under the standard adopted by the Supreme Court in Heller, namely that they are “in common use.” For years, AR-15s and comparable rifles have been the type of long gun most commonly acquired in the United States, and the same can be said for rifle and handgun magazines that hold more than 10 rounds. Today, Americans own roughly 20 million of those firearms and many tens of millions of those magazines. “Common use” is a standard with no basis in the Second Amendment’s legislative history, but it is nevertheless the one the Court has adopted.

Another Democrat, Rep. Don Beyer of Virginia, is proposing a 1,000 percent tax on the same firearms and magazines. Because such firearms and magazines are within the scope of the right to arms, the tax would be unconstitutional because Beyer says he intends it to prevent acquisitions of those arms, saying of the tax, “It’s severe enough to actually inhibit and restrict sales.”

If poll taxes, imposed in days gone by, have been rendered unconstitutional because their intent was to prevent people from exercising their voting right, Beyer’s proposal, like the outright ban on those guns and magazines that Biden and other Democrats really want, and H.R. 7910, is unconstitutional before it gets out of the gate.

© 2022 Mark Overstreet