As "We the People" celebrate the birth of our nation on the Fourth of July, let us recall and also celebrate our July 6, 1775, "Declaration on the Causes and Necessity of Taking Up Arms."
My last article focused on the First Amendment Establishment Clause: "Wartime Religious Symbols 'Don’t Offend the Constitution'."
As the first two of the original 12 articles were not ratified in 1791 along with the final 10 Articles, "Article the fourth" of the original Bill of Rights became the Second Amendment:
"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."
Fun Facts: Readers under 45 years old may be surprised to learn that they are members of the "Militia of the United States," a tradition going back to the Militia Act of 1792. Today, Title 10 of United States Code, Section 246, still provides that, "The militia of the United States consists of all able-bodied males at least 17 years of age and . . . under 45 years of age . . . and of female citizens of the United States who are members of the National Guard," defining the "organized militia" as "the National Guard and the Naval Militia," and "the unorganized militia" as "the members of the militia who are not members of the National Guard or the Naval Militia."
In District of Columbia v. Heller, 554 U.S. 570 (2008), the United States Supreme Court struck down a District of Columbia law generally prohibiting the possession of handguns, and making it a crime to carry any unregistered firearm.
Writing the opinion for the Supreme Court, Justice Antonin Scalia explained that in interpreting the text of the Second Amendment, "we are guided by the principle that the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning." 554 U.S. at 576 (internal quotes and citation omitted).
Justice Scalia then went on to explain the "normal and ordinary" meaning of each of the words and phrases in the Second Amendment, as understood by the American voters in 1791.
Justice Scalia explains, for instance, that:
Three provisions of the Constitution refer to "the people" in a context other than "rights"— the famous preamble ("We the people"), § 2 of Article I (providing that "the people" will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with "the States" or "the people"). Those provisions arguably refer to "the people" acting collectively — but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a "right" attributed to "the people" refer to anything other than an individual right. [554 U.S. at 579-80]
Justice Scalia concluded, "on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course . . . we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose." 554 U.S. at 595 (emphasis in original).
After reviewing the history of the right to keep and bear arms from before the Constitution through modern times, Justice Scalia clarified that, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons or the mentally ill, or law 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." 554 U.S. at 626-27.
Justice Scalia concluded that, "For whatever reason, handguns are the most popular weapons chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid. . . .
"We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many . . . who believe that prohibition of handgun ownership is a solution.
"The Constitution leaves the District of Columbia a variety of tools for combatting that problem, including some measures for regulating handguns, . . . .
"But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home."
For a deeper dive into our lesser-known 6th of July Declaration, see "1775 Declaration Foreshadowed Current Need for Unity."
In the meantime, let’s celebrate our right to bear arms on both July 4th and 6th.
Joseph E. Schmitz serves as Distinguished Constitutional Fellow for "The Oversight Project: It’s Your Government." During the 2016 presidential campaign, he served as foreign policy and national security adviser to Donald Trump. Mr. Schmitz served as Inspector General of the Department of Defense from 2002-2005. He now serves as chief legal officer of Pacem Solutions International. He graduated with distinction from the U.S. Naval Academy, earned his J.D. degree from Stanford Law School. He is the author of, "The Inspector General Handbook: Fraud, Waste, Abuse, and Other Constitutional 'Enemies, Foreign and Domestic'" (2013). Read More of His Reports — Here.