By Richard L. Guion
The US Constitution is not and can never be used as a limit upon the people. All too often people regard the introductory statement of the Second Amendment, “A well-regulated militia, being necessary to the security of a free state…” as a clause upon which the right of the people depends. Nothing could be further from the truth.
As opined in US v. Miller back in 1939, the Supreme Court unanimously agreed that the introductory statement of the Second Amendment specifically protects arms of efficacy to the military for the militia…which is comprised of the people.
Since Miller wasn’t represented in the arguments, and as such, no evidence that a short barreled shotgun was of efficacy to the military was presented, they upheld the convictions of Jack Miller and Frank Layton for violating the the National Firearms Act. I’m sure that our special forces would have a different opinion of the efficacy of such a weapon today.
Regardless, in Miller SCOTUS correctly cited the introductory statement in support of the true meaning of the Second Amendment…for the People to retain their natural right to fight all enemies, foreign and domestic.
In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.
United States v. Miller
This is the proverbial writing on the wall for the entire NFA et seq. in a post-Bruen world.
It’s quite surprising that this logical challenge to the NFA, based upon this ruling, has never been brought forth by some young, industrious attorney looking to make a name for himself. Enter the post-Bruen era, which is likely to see an end to ridiculous laws restricting weapon types and magazine capacities. A common-sense, overarching challenge to the NFA also seems inevitable.
A win against the NFA restrictions of machine guns, short barrel rifles, and suppressors would usurp and preemptively overrule individual states’ unconstitutional laws that have clearly defied SCOTUS rulings.
The only operative statement in the Second Amendment is “the right.” As the did with all of the enumerated rights in the Bill of Rights, the Founders chose their words carefully. When they referred to “the right” in the Second Amendment, they acknowledged and affirmed that all rights are natural or inherent and pre-exist, independent from the document.
The Bill of Rights doesn’t grant or give us rights. It’s intended to protect them, especially those the Founders thought were most important. We must honor and fight for those principles and not seek to undermine them.
As for how we “interpret” these words today, I agree that SCOTUS’s opinions regarding historical tradition and “common use” are fundamentally wrong. Rights, by their very definition, are absolute and not subject to infringement, restriction, or governmental control in any way. Full stop, period.
That’s not to say that laws punishing the exercising of a right that harms others wouldn’t be constitutional. So, yes Virginia, one can yell fire in a crowded theatre when none exists. We have never even suggested crafting laws to ban the word “fire” in fear it may be misused. We have laws to punish that act. Just as we have laws to punish speech which defames or slanders. But we have no such speech laws that are equivalent to gun bans, which would seek to take away the tools of exercising the First Amendment.
Laws don’t prevent, they punish. Are laws passed with the intent of deterrence? Certainly. Those of us who believe we are law-abiding perform a rational cost/benefit analysis before violating laws on almost a daily basis. We roll through stop signs. We exceed the speed limit. Sometimes we simply choose not to scan every item in our grocery basket.
But we also choose not to shoot our neighbor because his dog frequently tears up our yard. This is all down to personal choice, not a prevention. Nothing is stopping anyone from changing their cost/benefit analysis paradigm.
A portion of our society does that daily, too. We call them criminals. The law doesn’t prevent their deeds, it can only punish them. And they’re clearly undeterred by the existence of the laws on the books.
These are the simple truths of the matter. As long as we fail to understand what our rights truly mean and fail to bear true faith in their meaning, we will continue to have this seemingly gap in understanding of the Second Amendment. SCOTUS is equally at fault here, as they too seem to miss the true meaning of a right, and through their error, perpetuate the fallacy that rights have limits. Only by holding to the principles upon which this great nation was founded, can we end this absurdity.
If you’re uncomfortable with our government banning particular words or thoughts or religions then you should be equally uncomfortable with our government banning guns, or the right to buy or bear them in any way. Justice Thomas was certainly correct when he said that that the Second Amendment is not a second class right. All rights are first class. And that is the simple truth.