• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • Protecting the Second Amendment (But Just Barely)

    In what is probably the most important Second Amendment case in Supreme Court history, the Court today held that the “right of the people to keep and bear Arms” cannot be infringed by the states. In 2008 in District of Columbia v. Heller, the Court for the first time held that the right to bear arms was an individual right. But that decision, which struck down a virtual ban on handguns and a requirement that rifles and shotguns had to be kept “unloaded and disassembled or bound by a trigger lock” in the District of Columbia, applied only to the federal government because the District is a federal enclave. What had never been decided before today’s decision in McDonald v. Chicago was whether the protection of the Second Amendment is incorporated through the Fourteenth Amendment’s Due Process Clause to apply to state and local governments.

    In a long-awaited decision on the final day of the Supreme Court’s term, a 5-4 majority of the Court in an opinion written by Justice Alito overturned the City of Chicago’s regulations on firearms. These regulations included a ban on handguns, a requirement that other guns be registered prior to their acquisition (which is impractical in many cases), a burdensome annual reregistration requirement and annual fee, and a punitive provision that would bar the reregistration of a gun once its registration expired.

    The opinion holds that the right to keep and bear arms is among the most fundamental rights necessary to this Nation’s system of ordered liberty and is deeply rooted in our history and tradition. Thus, it applies to the states through the Due Process Clause of the Fourteenth Amendment.

    It is hard to believe that anyone could rationally argue that the Second Amendment does not protect a fundamental right. Yet liberals on the Court, including Justice Stevens whose last day is today, could not even bring themselves to recognize this fundamental right because they don’t like the result. They would never do this with other amendments in the Bill of Rights that lead to results they agree with. McDonald was actually an easy decision because, just like in the Heller case, the regulations in both Chicago and Illinois were little more than outright bans that prevented city residents from owning guns.

    The difficult cases are those that are sure to follow the McDonald decision. The Court clearly said that some government regulation of guns is allowed. But how far can state and local governments go? How burdensome can their regulations be? Can they decide to allow gun ownership that will enable a homeowner to protect himself and his family in his home, but prohibit the concealed carrying of a handgun? All of these questions remain unanswered by today’s opinion that was decided by a narrow one-vote majority.

    But those issues reemphasize the importance of the other event that is starting today – the confirmation hearing of Supreme Court nominee and Solicitor General Elena Kagan. If she is confirmed, she will be helping to decide how far states can go in restricting gun rights and requiring potentially burdensome registration requirements. And her record on this is cause for great concern. As a law clerk for Justice Thurgood Marshall, Kagan recommended in1987 that the Court not even consider a claim by a D.C. resident remarkably similar to that asserted in the Heller case: “that the District of Columbia’s firearm statutes violate his constitutional right to ‘keep and bear Arms’” as her own memo stated. She was “not sympathetic” to that claim, a claim that the Supreme Court ultimately upheld in the Heller decision (the Court refused to review the case Kagan was so contemptuous of and the plaintiff’s conviction for violating an unconstitutional law was not reversed).

    As a lawyer in the Clinton White House, Kagan was deeply involved in efforts to get around the Supreme Court’s 1997 ruling in Printz v. United States, the case in which the Court struck down parts of the 1993 Brady handgun law, through possible executive orders. She pushed for White House events and policy announcements on gun control measures such as a law that would “hold adults liable if they give children easy access to guns,” or a new gun design that would allow it to be fired only “by authorized adults.” She drafted an executive order to restrict certain semiautomatic rifles and in one memo even compared the NRA to the Klu Klux Klan. Kagan was apparently thus so hostile to gun rights that she compared the biggest gun-rights organization in the U.S. to one of the most vicious and despised racist hate groups in our history. She is apparently unaware of the fact that one of the key reasons for gun control laws passed in the South after Reconstruction when Jim Crow was imposed was to take away the gun rights of black citizens so they would be defenseless in the fact of intimidation, assaults, and murders.

    In the McDonald case, Elena Kagan in her capacity as Solicitor General decided not to file a brief or participate in potentially the most important constitutional law case of any type this decade. Can anyone imagine the Solicitor General not filing a brief in a case of this magnitude construing other amendments in the Bill of Rights, much less one that will decide an issue that has not been previously decided by the Supreme Court?

    The fact that Kagan was unwilling to file a brief to protect the Second Amendment rights of Americans says more about her than almost anything else she has done in recent years. She clearly was not willing to assert the fundamental importance of the Second Amendment. And that is something that should concern not just the Senators reviewing her record and asking her questions today about her judicial philosophy, but all Americans who believe in the fundamental importance of the Bill of Rights and the Second Amendment.

    Posted in Legal [slideshow_deploy]

    28 Responses to Protecting the Second Amendment (But Just Barely)

    1. norris hall says:

      This is a BIG A victory for home grown terrorists all over the nation.

      The supreme court has made it even easier to home grown terrorists to kill Americans

      Now they can walk into a local gun shop in any city in our nation, purchase all the guns and ammunition they want, practice to their hearts content and be ready for the big day.

      Bombs are unpredictable. They can often fail. Just ask Umar Farouk Abdulmutallab who tried to blow up an American airliner with a bomb hidden in his underwear. Or ask Connecticut resident Faisal Shahzad whose crudely home made bombs failed to detonate in Times Square

      Handguns, on the other hand, are designed to work every time…even for someone with very little training in their use. Just ask Maj. Nidal Malik Hasan, army psychiatrist Maj. Nidal killed 13 soldiers at Fort Hood and wounded 30 using a semi automatic pistol he purchased legally at a civilian gun store. He was well known to be sympathic to terrorist causes but with the NRA protecting the rights of "suspected terrorists" like Hasan there's nothing much you can do except ask him if you can show him other weapons he might like to buy.

      If you were a wanna be terrorist, which weapon would you choose…a crudely home made bomb or a factory tested semi automatic weapon that even a child can operate?

    2. Brian Sheets says:

      Then not only should we ban guns, but we should ban free speech, because those terrorists are spreading their hate speech, and we really need to ban freedom of the press, and freedom to assemble, because we all know that if we ban that, then those terrorists wont be able to get together to plot those evil acts.

      What other parts of the constitution do you want to ban?

      Big victory for home grown terrorists… please.

    3. West Texan says:

      As you wish Norris, you're welcomed to go gun free. But don't cry in your Kool-Aid when your local home grown terrorist, street thug, gangster, home invader or like criminal comes knocking on your door. You can believe such folks wouldn't pose a real threat if it wasn't for those guns. After all, what other weapon like possibilities are available to such individuals? We'll simply disarm millions of law abiding citizens with the hope your bad guys will back off. On second thought, I think I'll keep my guns and the defensive options they offer.

    4. Wildcat from Dallast says:

      I for one am glad the Supreme Court rendered that ruling. It is and always has been a right of American citizens excluding the period following the South’s reconstruction for newly minted American citizens who, thru the rather distorted lenses of those passing the laws failed to grant and uphold full rights associated with citizenship. That did eventually get remedied along with the concurrent receipt laws relative to military pension pay received concurrently with disability pay from disabilities resulting from military service. That one did not get remedied until the late 1990’s or very early 2000’s.

      I do NOT agree with Norris about this being a big win for homegrown terrorists. It appears that virtually all the terrorists caught here have either made a choice to return to their former area of the world for terrorist training [probably because they do not really want to assimilate into our society] or ones that may have been converted then immediately radicalized in prison. *They’re not supposed to be able to buy, possess or use a firearm as that is the one right they usually gave up when they committed a crime (and got caught, tried and convicted). Homegrown terrorist to me means they were born here as American citizens but now have an axe to grind against everything American and use terroristic tactics to wage attacks, usually against unarmed, peaceful civilians with the occasional special target to attack with a bomb etc. You would have to ask Bill Ayers or his mate how he came to that decision back in the 1960’s when they bombed a NYC police station and other places etc as active members in the Weather Underground.

      I’m also glad because we then shouldn’t have the rise in crime like those places did that banned personal gun ownership like Australia and England. The law abiding citizens dutifully turned in their guns while the criminal elements did not which resulted in a dramatic rise in violent crimes such as armed robbery and murder. No, I would rather have the ability to keep my weapons and legally defend myself and my family in my house and, if need be, in public. I would imagine there are a great many Americans who would prefer to be armed should some terrorist(s) show up to attack unsuspecting peaceful citizens. They already use various firearms to inflict their terror as well as bombs (homemade & others) and have most likely found ways around the prying eyes of inspectors to get their weapons inside America.

      The preponderance of gun wielding “terrorist-like” attacks in America have been for other reasons (or excuses) and done in places like churches, schools and a mall or two by criminals (or the crazy one like the Lubbys Restaurant in Killen, TX who had girlfriend issues), not terrorists of any shape or form. The one who killed about seven people while in church in Texas was stopped by a woman with a loaded gun in her pocketbook who took action to kill him thereby preventing any more from harm.

      When the feces hits the preverbal oscillator, I would prefer to have the legal right to unlock my loaded (and previously concealed weapon) and adroitly neutralize the threat before he or she hurts or kills me or my family. Long ago I learned and live by this today, “the more I sweat during peacetime, the less I will bleed in war”. I practice and stay current and legal so I’m not the one bleeding and dying when that unsuspecting trauma happens in my vicinity.

    5. James, North Carolin says:

      This is victory for freedom, not terrorism! Any criminal can get access to a gun, but law abiding citizens have had their right to defend themselves unethically taken away for too long! In this nation laws are to punish those who have been convicted of crimes, not to harass people because they might commit a crime! The earlier comment shows the danger that conservatives raise when terrorism becomes the central issue. If we care about defeating a faceless, nameless enemy more than defending a life of liberty then we have ceased to be a free nation and have become the oppressive regime we used to fear. This is exactly why I'm Libertarian, not conservative. Both conservatives and liberals are ruled by fear, not by a commitment to the principles of liberty.

    6. Walter Brown, Oceans says:

      Mr. Hall has used the boogeyman label du jour, "domestic terrorist" to justify his position. If a person he chooses to so label has a felony conviction that person is subject to multiple Federal laws prhibiting the touching, posession, transfer or use of any firearm or ammunition. If the person doen't have a felony convition on record the that person is no different from myself (and presumably Mr. Hall) and can (and probably should) posess a firearm for whatever legal activities he or she might pursue. To deny a civil right because of fear, hatred or disagreement is despotism.

    7. Pingback: Court: Yes, Chicago, there is a Second Amendment | Kyle Wingfield

    8. Pingback: SCOTUS: You Actually Do Have Second Amendment Rights

    9. Pingback: Protecting the Second Amendment (But Just Barely) « Fight Obama

    10. Cymond says:

      Terrorists? are you kidding?

      Bombs may fail but they have significant advantages over firearms. First, a bomb damages property as well as taking lives. Bomb damages leaves a horrific image of destruction and chaos that lingers after the bodies are buried and the blood washes away. It serves as a constant reminder to the survivors. A shooter can only be in 1 place at any moment, but a bomber can create multiple bombs and spread them over a large area. Further, a shooter is always at risk of being shot by law enforcement or an armed citizen. (Maj. Nidal Malik Hasan was shot by an law enforcement officer, ending his killing spree sooner than he would have liked.) Shooters may die before accomplishing their goals while bombers survive long enough to commit more crimes.

      Regardless of the whole bomber vs shooter thing, Sept-11 was committed with box cutters. Anyone with violent intent can steal, smuggle, improvise, or build a weapon. Only law abiding citizens care are impacted by the availability of legal weapons.

    11. Pingback: Don’t Celebrate Yet: Second Amendment Not Out of the Woods

    12. Pingback: » Links To Visit – 06/28/10 NoisyRoom.net: The Progressive Hunter

    13. Chris, Springfield, says:

      I'm sorry Wildcat…"The preponderance of gun wielding “terrorist-like” attacks in America have been for other reasons (or excuses) and done in places like churches, schools and a mall or two by criminals (or the crazy one like the Lubbys Restaurant in Killen, TX who had girlfriend issues), not terrorists of any shape or form."

      Those people are absolutely terrorists. People who indiscriminately kill people in public are the DEFINITION of terrorists! Just because they aren't Muslim has little to do with it. I understand the desire among people to dissemble, but there is absolutely no reason to minimize what are textbook terrorist actions (no matter if you're only doing it to point out that lawful gunowners are sometimes able to stop a gunwielding "TERRORIST"). I am all for gun rights, but you all resort to some ridiculous arguments to justify your position, but I guess if you openly carry one would be less likely to press you for better arguments.

    14. Chris, Springfield, says:

      I'm sorry Wildcat…"The preponderance of gun wielding “terrorist-like” attacks in America have been for other reasons (or excuses) and done in places like churches, schools and a mall or two by criminals (or the crazy one like the Lubbys Restaurant in Killen, TX who had girlfriend issues), not terrorists of any shape or form."

      Those people are absolutely terrorists. People who indiscriminately kill people in public are the Definition of terrorists! Just because they aren't Muslim has little to do with it. I understand the desire among people to dissemble, but there is absolutely no reason to minimize what are textbook terrorist actions (no matter if you're only doing it to point out that lawful gunowners are sometimes able to stop a gunwielding "terrorist"). I am all for gun rights, but you all resort to some ridiculous arguments to justify your position, but I guess if you openly carry one would be less likely to press you for better arguments.

      *I used all caps in my first post a few times. I removed them before trying to repost.

    15. Pingback: Don't Celebrate Yet: Second Amendment Not Out of the Woods | Galaxy Shopping

    16. Pingback: Second Amendment Rights Upheld by The Supreme Court | The American Jingoist

    17. Doug, New York says:

      The Second Amendment says that Americans have the right to keep AND BEAR arms. This clearly means that we have the right to carry them outside the home. If it did not, the word "bear" would not appear.

      I wonder why those who, through positions of power such as mayors Bloomberg and Daley, who use that power to purposely deny obvious, clear and unambiguous rights are never hauled into court and suffer personal punishment. It seems that elected officials who affirm or swear that they will support their state and federal constitutions ought to be held accountable for purposely violating their oaths.

    18. Pingback: Protecting the Second Amendment (But Just Barely) - Whitley County Patriots

    19. Bob. WA/ says:

      'If you were a wanna be terrorist, which weapon would you choose…a crudely home made bomb or a factory tested semi automatic weapon that even a child can operate?'

      Mr. Hall, that is a NO BRAINER – the BOMB OBVIOUSLY! A bomb does not require your presence, reloading, and can easily have a MUCH larger impact. Unless one has a personal death wish, why expose oneself to potential risk while you can casually be hundreds of miles away while simply operating a button on a cell phone and live to kill others in the future? Such technology is easily available and readily understood bu most any average person.

    20. dean, texas says:

      Chicagos’ political leaders have chosen to ignore the Supreme Court ruling on gun control. What can be done to stop such disregard for the law?

    21. Melissa Valdosta says:

      What burns my biscuit is that a right that is supposed to be guaranteed by our constitution just barely passed when the court considered it's validity and constitutionality. There is a good reason that we as citizens have the right to have and bear arms. It was necessary when it was created AND IT IS STILL necessary TODAY .

    22. norris hall says:

      Get use to seeing more home "suspected" home grown terrorist choose a legally purchased semi automatic over the bomb. The last two bombing attempts…Tmes Square and the underwear bomber incident turned out to be dismal failures. It take skill to make a working bomb

      On the other hand, Nidal Hasan proved to would be terrorist that a legally purchased handgun is the most efficient weapon of mass destruction. Just look at his results. 13 dead and 30 injured

      Compare that to the results of the underwear bomber and the times square fiasco. NOTHING but smoke

      Terrorist trainers are certain note that buying a gun at a gun show in Americas is as easy as walking into walmart and buying shoes

      No questions asked. Especially if you are only a suspected terrorist.

      And if you can get off the first shots, you can even attack a well armed military base…and there's little that can stop you from taking out dozens of people before you become a martyr.

      The NRA , with it's idiotic view that "suspected terrorist" have the right to own a handgun are only giving a green light to suspected terrorist to "use a handgun"

    23. norris hall says:

      Walter Brown said:

      If the person (Nidal Hasan) doesn't have a felony conviction on record the that person is no different from myself (and presumably Mr. Hall) and can (and probably should) possess a firearm for whatever legal activities he or she might pursue. To deny a civil right because of fear, hatred or disagreement is despotism.

      I disagree. We arrest innocent people all the time on "suspicion" of committing a crime. The justice system doesn't have to wait till the trial is over and a conviction is handed down before it can act to protect public safety.

      Maj. Nidal Malik Hasan was widely known by his coworkers and authorities to have expressed extremist views.

      Hasan exchanged e-mails asking for spiritual guidance regarding violence with Imam Anwar al-Awlaki.

      In one of the e-mails, Hasan writes al-Awlaki: “I can’t wait to join you” in the afterlife. Hasan also asks al-Awlaki when jihad is appropriate, and whether it is permissible if innocents are killed in a suicide attack.

      In the months before the shooting, intercepted emails from Hasan asked al-Awlaki how to transfer funds abroad without coming to the attention of law authorities.

      They also intercepted messages with Nidal discussing suicide bombings and other threats,

      In his emails he likens a suicide bomber to a soldier who throws himself on a grenade to save his colleagues, and sacrifices his life for a “more noble cause.”

      Authorities were aware that Hasan attempted to contact Al Qaeda and that he had “more unexplained connections to people being tracked by the FBI” than just Anwar al-Awlaki.

      So you and the NRA are saying that a guy with this background should be able to walk into a corner gun shop and buy the gun that lead to the death of 12 US servicemen and 1 civilian …not to mention the dozens who were injured….just because he has the RIGHT to?

      No way. If authorities have good reason to suspect that someone is a terrorist…they should have every authority to restrict his access to buy a semi automatic weapon…no matter what the NRA and gun rights purist say.

      I can't believe Americans will stand up and defend that guy's RIGHT to buy the gun that killed all those innocent servicemen.

    24. kim krausfeldt, Mani says:

      Every citizen of the U.S. should write their Senators and Representatives to let them know we are not in favor of Elena Kagan being appointed to the Supreme Court. This should be a priority. The 5 to 4 decision is a victory, barely. This shows how close we are to losing our gun rights. Not how victorious we are about saving them. Thank God For Alito.

    25. kim krausfeldt, Mani says:

      Mr Hall, Are you a supporter of the Brady Foundation? You are the very reason this Country is going down. The Constitution was carefully crafted 200 hundred years ago and each one of the bill of Rights is what has kept us Free. Do you know the definition of Freedo? I do. Removing any of these rights means removing freedom. And Freedom is what has made this Country great. If you do not want to own a gun. Don't buy one. Move to a neighborhood where other people don't want guns. But don't tell me I cannot own one. This is the liberal think process. You all think you know better. Well guess what? Most people don't care what you think. Maybe you should move to a country where the gun rights have been taken away. Then you can feel safe. As for me I support the Constitution and this Country. If you support Gun bans and gun control then you do not support America and you should leave. It is very simple, Gun bans won't stop crime. This has been prove over and over. Just as Socialism doesn't work. That has been prove over and over also.

    26. James Fletcher Utica says:

      For norris hall ;

      This is a BIG A victory for people in the defeat of home grown terrorists all over the nation.

      The supreme court has made it even easier for people to defend themself from home grown terrorists that would kill Americans

      Now they can walk into a local gun shop as we have been able to do in any city in our nation, purchase all the guns and ammunition they want, practice to their hearts content and be ready for the big day as we have been able to do for the entire life of our free nation, and this is why we haven't had such acts in the past, it is only now that those that would commit such acts feel emboldened becouse they know more and more of the population dosen't carry and are unable to retaliate in their defence!

      Bombs are unpredictable. They can often fail. Just ask Umar Farouk Abdulmutallab who tried to blow up an American airliner with a bomb hidden in his underwear. Or ask Connecticut resident Faisal Shahzad whose crudely home made bombs failed to detonate in Times Square that was stoped by a vigilant ,And this is why we need people armed on the airlines, the 9-11 bombers used box cutters, and killed thousands, if ONE person was armed on those planes they would all be alive today and 9-11 would be just nother day!

      Handguns, on the other hand, are designed to work every time…even for someone with very little training in their use.So even a woman, child or man with no experiance can use them, and this is only part of the way we will defend our nation from those that would opress the freedoms all Americans . Just ask Maj. Nidal Malik Hasan, army psychiatrist Maj. Nidal killed 13 soldiers at Fort Hood and wounded 30 using a semi automatic pistol he purchased legally at a civilian gun store. If the others on the base were able to be armed he would never been able to kill the unarmed soldiars. He was well known to be sympathic to terrorist causes but with the NRA protecting the rights of People even “suspected terrorists”(Inocent untill proven guilty) there’s nothing much you can do except ask him if you can show him other weapons he might like to buy. Hasan should never have slipped through the cracks in the military, it was a failure of his superiors for not interveneing in his Treasonist activities ! It is just another instance that the Government has shown its inability to manage things becouse of the beurocratic red tape .

      If you were a wanna be terrorist, which would you choose…a populas that is unarmed and unable to defend itself or a people that is armed to the teet that you never know who is armed becouse EVERYONE has the right to"Keep and Bear Arms" defend their home . AND it is their DUTY to defend their constitution and country!

      Jim Fletcher !

    27. richmond va says:

      "the Court in an opinion written by Justice Alito overturned the City of Chicago’s regulations on firearms"

      The Court did not overturn Chicago's regulations, it struck down the appeal court's decision and now we wait what that appeal court will say in its revised decision.

    28. Larry Linn says:

      How do I join a "Well regulated militia"?

      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.

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.

    ×