The True Palladium of Liberty

August 03, 2021

By James Baehr

The Second Amendment remains  among the most hotly contested of rights laid out in the Bill of Rights, with widespread divergence in elite and popular opinion concerning its fundamental meaning. Some legal scholars have traditionally “marginalize[d] the Amendment,” describing it as a protection of a collective right to “bear arms” only in connection with service in a militia and having little application today (Levinson, 1989). Meanwhile, a recent poll shows that 73.4 percent of Americans believe the Second Amendment protects the rights of “law-abiding citizens . . . to legally own firearms for things like hunting, sport and personal protection” (McLaughlin, 2021). The tension between these two views, the collective and the individual rights model, came to a head in the District of Columbia v. Heller, 554 U.S. 570 (2008), where a divided Supreme Court reviewed the text, history, and precedent of the Amendment and held in favor of individual rights. 

The Heller decision also turned on the drafters’ focus on the inherent nature of the right. The wording “shall not be infringed” meant that the Amendment implicitly “codified a preexisting right” rather than creating a new one (Heller, 554 U.S. at 592) (emphasis in original). Founding-era scholar St. George Tucker called the Amendment “the true palladium of liberty . . . The right of self defence is the first law of nature . . . [w]herever . . . the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction” (Heller, 554 U.S. at 605) (quoting Tucker). Tucker explicitly contrasted this inalienable right with the “English game laws” that restricted gun ownership in England for hunting. Such a view that the Amendment protected inherent, individual rights to gun ownership for more than just militia membership — but defense and hunting — held the day in Heller. Blackstone likewise described gun ownership as “fundamental” and “the natural right of resistance and selfpreservation” — broader than mere militia service (Heller, 554 U.S. at 594) (quoting Blackstone). In light of recent polling, such a view still holds with the American people (McLaughlin, 2021)

The Court has not fully clarified which specific “arms” Americans can bear — and where. The holdings of Heller and the follow-on case of McDonald v. City of Chicago, 561 U.S. 742 (2010) that incorporated the Second Amendment to the states have been described as “narrowly confined to invalidating bans on the possession of handguns by civilians in their own homes” (Spalding et al., 2013). The Heller Court declined to “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools or government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” (Heller, 554 U.S. at 626-27). The Court also noted approvingly the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’” despite the martial nature of the preface (Heller, 554 U.S. at 627). Heller, however, approvingly cited several opinions that struck down prohibitions on the open carrying of firearms (Heller, 554 U.S. at 629). The Supreme Court recently agreed to hear a challenge to a New York state law that significantly restricts the carrying of firearms outside the home, suggesting that the Court is prepared to expand its interpretations of the Second Amendment’s protections (Williams, 2021)

A u t h o r B i o g r a p h y 

James Baehr is a Senior Fellow of the America First Policy Institute. He is a Major in the Marine Corps Reserve and served as a Special Assistant to the President.

 

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