Does the Bill of Rights grant rights to the People? Or does it affirm rights that predate its writing?
This is actually an important question. One noted authority claims that the former is true. (And some of you, after clicking that link, have reflexively decided that the latter must therefore be true!)
The Obama White House, in their above “Constitutional History for Dummies” page, writes about the 2nd Amendment…
The Second Amendment gives citizens the right to bear arms.
The Truth About Guns posted an open letter from Gun Owners of America (Who are not big fans of these pages, by the way…) pointing out that this simplification is wrong in oh so many ways.
The first error is the notion that the Bill of Right “gives” or grants rights. It doesn’t. As Justice Scalia noted in the Heller opinion, the 2nd Amendment recognizes a right that has always existed.
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment.We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.”
District of Columbia, et al, v. Heller, Page 19 (Emphasis in the original)
In other words, you’ve always had the right to keep and bear arms. This right, like your rights to freedom of speech, or freedom of religion, or freedom from unreasonable search and seizure, did not spring into existence the moment the Bill of Rights was ratified. Were the 2nd Amendment repealed tomorrow, you would still have the right to keep and bear arms. You have this right because you are a human being, not because of a signed piece of paper.
The next error is regarding the precise nature of the right protected. The full text of the 2nd Amendment is…
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.
At this point, some people jump up and down, screaming “IT SAYS MILITIA!! IT SAYS MILITIA!! THAT MEANS NATIONAL GUARD!!” No, it doesn’t. As the Court points out…
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
Heller, Page 3
So let’s focus on the operative clause: the right of the people to keep and bear arms shall not be infringed. This clause actually addresses two rights. There is the right to keep arms and the right to bear arms. You have the right to own weapons as well as the right to carry them. Obama grudgingly recognizes only the right to bear them. One presumes that he’s still clinging bitterly to the notion that the 2nd Amendment protects the right of the National Guard to bear arms. Never mind that things get all wibbly-wobbly, timey-whimey trying to figure out why the 1st Congress, sitting in 1789, would pass an amendment protecting a government agency that wouldn’t exist until 1933.
This is where the District of Columbia ran afoul of the Constitution. The city’s licensing scheme made it impossible to obtain a license after 1976. This effectively banned possession of firearms for most of the city’s population. Those few people who did have licenses were forced to keep their guns inoperable, rendering them useless to bear for self-defense; even in their own homes. Thus the city’s law violated the right to keep arms as well as the separate but related right to bear them.
It interesting to note that while the White House got the 2nd Amendment wildly wrong, they are pretty much correct about the other 9 parts of the Bill of Rights. It makes one wonder if the mistake was made accidentally on purpose.
