The recent sudden death of 79 year old Supreme Court Justice Antonin Scalia brought renewed attention to one of his most heralded and criticized decisions on the Second Amendment. The Amendment states: “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.” In 2008, Scalia scripted the court’s 5-4 majority decision on guns with a controversial ruling that the Amendment protects an individual’s right to own a firearm for self-defense in the home.
But the Second Amendment only protects the right of people in the states to maintain militias. It is Congress that holds the power to organize and arm the militia and call up the militia “to execute laws, suppress insurrections and repel invasions.” The Constitution spells out no specific individual right to firearms ownership.
Scalia, however, described the “militia” not as a formal military organization but as everyone qualified to keep and bear arms. The Second Amendment therefore means that all who exercise firearms rights should be “well-regulated.”
Scalia recognized that gun ownership is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” He cited prohibitions on the possession of guns by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Despite the nation’s harrowing problems of mass shootings and the roughly 30,000 lives lost to gun violence each year, Republicans, backed by the National Rifle Association, oppose gun controls. The NRA lobbies against all forms of gun regulations at the local, state and national levels. It uses the baseless argument that the government intends to trample gun owner rights and to confiscate their firearms. The NRA has succeeded in persuading state legislators to expand gun rights in the form of vigilante-style “stand your ground” and “open carry” laws.
Sensible regulation, on the other hand, would mean requiring everyone who owns a gun to register it, creating a comprehensive data base of all guns and their owners. Gun owners would also need a license demonstrating their responsible use of a firearm and passing a background check. Registration could employ emerging technology, recording unique characteristics of a firearm’s barrel and stamping ammunition with identifiers. Such effective gun regulations would not prevent law-abiding people from obtaining guns for lawful self-defense.
Without Scalia, the justices are evenly divided between Republican and Democratic appointees—which probably means a hung court on many issues. Under the Constitution, President Obama has the power to nominate judges of the Supreme Court. But congressional Republicans have already indicated that they will block the President’s choice until after the upcoming national elections. By taking this position, Republicans merely continue to obstruct almost any initiative of the Obama administration, even one that the Constitution gives to the President. Given the Senate’s constitutional role to advise and consent on the President’s selection of Supreme Court judges, refusing to even hold hearings amounts to an unconstitutional act.
Scalia’s death comes amid the political turbulence in an election year, and it brings into question the Supreme Court’s standing on gun rights. Several other issues on labor, voting rights, and women’s health are now pending before the court. This fall, Americans will not just pick a new chief executive and members of Congress, they will set the course of the Supreme Court for a generation.
Ralph Scharnau teaches U.S. history at Northeast Iowa Community College, Peosta. He holds a Ph.D. from Northern Illinois University. His publications include articles on labor history in Iowa and Dubuque. Scharnau, a peace and justice activist, writes monthly op-ed columns for the Dubuque Telegraph Herald.
US Congress should pass.
In order to create a well regulated militia, citizens wishing to bear arms, must annually register their arms with the Federal Government. The well regulated militia is needed in maintaining a free state. To suppose arms in the hands of citizens may be used at individual discretion in private self defense, or by partial orders of towns, counties, or districts of a state, is to demolish every constitution…it is a dissolution of the government.
A good first step.
“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.”
“To suppose arms in the hands of citizens may be used at individual discretion in private self defense, or by partial orders of towns, counties, or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government.”
A Defence of the Constitutions of Government of the United States of America, Chapter Third: Marchamont Nedham, Errors of Government and Rules of Policy, 1787; The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations, by his Grandson Charles Francis Adams, (Boston: Little, Brown and Co., 1856) 10 volumes, Volume 6
General George Washington:
“The distinction between a well regulated Army, and a Mob, is the good order and discipline of the first, and the licentious and disorderly behaviour of the latter.”
(August 25, 1776)
President George Washington:
“The devising and establishing of a well regulated militia, would be a genuine source of legislative honor… carrying to its full energy the power of organizing, arming, and disciplining the militia; and thus providing, in the language of the constitution, for calling them forth to execute the laws of the union, suppress insurrections, and repel invasions.” (Address to Congress, November 19, 1794)