Proponents of federal gun control have seized upon the most recent mass shooting in Orlando to advance their agenda, predictably trotting out the same worn narratives.
Chief among these we find the argument that the Second Amendment was only intended to protect a “corporate” right of the “people” to keep and bear arms, and that it was meant to apply only to militia service.
I’ve covered the relationship between the Second Amendment and the militia in my Constitution 101 series, explaining the militia was not an exclusive body of people, and it certainly wasn’t the National Guard, which was not established until 1903. As George Mason explained it, the people were essentially the militia.
I ask, Who are the militia? They consist now of the whole people, except a few public officers.”
But for the sake of argument, let’s accept a narrow interpretation of the Second Amendment. Let’s assume it only relates to service in the militia.
The federal government still has no authority to regulate firearms.
As I explained in my Constitution 101 article on the Second Amendment, the Constitution only delegates specific powers to the federal government. The enumeration of certain powers logically excludes all powers not listed. Designato unius est exclusio alterius is a legal maxim meaning, “the designation of one is the exclusion of the other.” You will find no authority to regulate firearms or ban certain types of weapons in the Constitution. The supporters of the Constitution consistently argued that the federal government would not possess the authority to exercise any power not explicitly given.
As a condition of ratification many states insisted on a Bill of Rights, including amendments to make this rule of construction explicit. The result was the Ninth and Tenth Amendments.
So, even if the Second Amendment was never ratified, or if we accept the very narrow application preferred by progressives, the federal government still cannot infringe on the individual right to self-defense.
The Ninth Amendment was ratified to ensure that listing certain rights in the Bill of Rights would not be construed as all-inclusive.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Madison’s proposal for what became the Ninth Amendment makes clear the intent was to amplify the limits of federal power – specifically to ensure the enumeration of certain rights was not taken to imply the federal government could violate rights that were not mentioned.
The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but rather as actual limitations of such powers, or as inserted merely for greater caution.”
In other words, even if we accept the erroneous notion that the Second Amendment only protects a “collective” right to keep and bear arms, that doesn’t mean that the federal government can infringe on an individual right to keep and bear arms. That right would then fall under the category of “other rights retained by the people.”
The individual right to self-defense was well-established when the Constitution was ratified. St. George Tucker wrote the first systematic commentary on the U.S. Constitution shortly after ratification. He called the right of self-defense the “palladium of liberty.”
The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible.”
In reality, the Second Amendment was intended to check this tendency of government to infringe on the right to self-defense.
The American founding generation drew much of its legal theory from Blackstone. In his paper, The History of the Second Amendment, legal scholar David Vandercoy traced the right to keep and bear arms back to Blackstone and English common law.
Blackstone described the right to keep arms as absolute or belonging to the individual, but ascribed both public and private purposes to the right. The public purpose was resistance to restrain the violence of oppression; the private was self-preservation. Blackstone described this right as necessary to secure the actual enjoyment of other rights which would otherwise be in vain if protected only by the dead letter of the laws.”
In Blackstone 1:139, he described a “natural right of resistance and self preservation.”
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” [Emphasis added]
Some will read Blackstone’s words and say, “See! ‘Such as are allowed by law,’ and ‘due restrictions.’ They never intended an unlimited right to have any kind of gun you want to.”
That brings us to the Tenth Amendment. It works together with the Ninth Amendment to explicitly define the limits of federal power.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Because the Constitution does not delegate gun control to the federal government, and because the Ninth Amendment makes it clear that the federal government cannot infringe on individual liberties – even those not listed in the Bill of Rights – any regulation or laws regarding guns remains the province of state governments, as dictated and limited by their constitutions.
Simply put, no matter how you care to interpret the Second Amendment, based on a constitutional reading guided by Amendment IX and X, the federal government possesses zero authority to enforce any type of gun laws, or infringe on the right to self-defense in any way whatsoever.