Bucks Writs - Spring 2018 - 17

is unreasonable or inappropriate in Second Amendment
terms. This the majority cannot do.

A sharply divided SCOTUS held that
D.C.'s ban on handgun possession in the
home and the requirement that weapons
be rendered inoperable in the home
violated the Second Amendment. The
Court held, for the first time, that the
Second Amendment protected an
individual right to keep and bear arms
separate and apart from any collective
militia-related purpose.

- D.C. v. Heller, 554 U.S. 570, 574-76 (2008)

Id. D.C. held hearings, reviewed studies and counterstudies, took evidence and came to the conclusion that the
ordinances in question were appropriate solutions to the
gun violence problems the city was facing. Breyer opined
that D.C.'s judgment, while some might disagree with it,
was "nevertheless supported by 'substantial evidence.' . .
. [T]he District's decision represents the kind of empirically
based judgment that legislatures, not courts, are best suited
to make." Id. at 704-705.

Culture Wars and the
Power of Messaging
Love it or hate it, most people agree that the NRA has done a
remarkable job marketing the idea that the individual right to
bear arms is sacrosanct and that any gun control legislation
violates the Second Amendment. Indeed, the NRA proclaims
on its website that "Firearm ownership is a constitutional
right, and that means government has very limited power
to restrict it."1 Public opinion appears to have been affected
by such marketing campaigns, and many advocates on both
sides of the issue have come to believe that the government's
hands are tied when it comes to gun control. But is this true?

The dissenters object to the majority's decision to ignore
the prefatory clause's reference to a well-regulated militia
being necessary to the security of a free state ("That is not
how this Court ordinarily reads such texts . . ." Id. at 643)
and the majority's unsatisfactory attempts to distinguish the
precedential holding in Miller (that the Second Amendment
must be interpreted and understood as relating to the
preservation of a well-regulated militia).
Until today, it has been understood that legislatures
may regulate the civilian use and misuse of firearms so
long as they do not interfere with the preservation of
a well-regulated militia. The Court's announcement of
a new constitutional right to own and use firearms for
private purposes upsets that settled understanding, but
leaves for future cases the formidable task of defining
the scope of permissible regulations.

Retired Chief Justice Warren Burger, a conservative, said the
following during an interview conducted in 1991:
This has been the subject of one of the greatest pieces
of fraud, I repeat the word fraud, on the American
public, by special interest groups that I have ever
seen in my lifetime... If the militia which was going
to be the state army was going to be well regulated,
why shouldn't 16 and 17 and 18 or any other aged
persons be regulated in the use of arms the way an
automobile is regulated?2

Id. at 679.
Further, Breyer argues that no matter what right is
enshrined in the Second Amendment, it is not absolute.
The government is permitted to regulate the interests that
it serves. Id. at 681. For example, as we all know, the right
to free speech can be, and is, regulated. One may not yell
"fire" in a crowded theater for example. Therefore, even
if there is an individual right to keep and bear arms in the
Second Amendment, which Breyer disputes, that right can
be regulated by government.

Heller was decided in 2008, 27 years after Justice Burger's
comments, and it is currently the law of the land. Is it
correct, therefore, that the government's hands are tied and
any attempt to regulate the right of the people to keep and
bear arms violates the Second Amendment? Not exactly.
Heller does not stand for the proposition that the
government must keep its hands off our guns. Rather,
Heller specifically recognizes that there are limits to our
Second Amendment rights stating that

Thus, irrespective of what those interests are -
whether they do or do not include an independent
interest in self-defense - the majority's view cannot be
correct unless it can show that the District's regulation

1

2

17

https://www.nraila.org/second-amendment/
https://www.youtube.com/watch?v=Eya_k4P-iEo
SPRING 2018


https://www.nraila.org/second-amendment/ https://www.youtube.com/watch?v=Eya_k4P-iEo

Table of Contents for the Digital Edition of Bucks Writs - Spring 2018

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