That Every Man Be Armed: The Evolution of a Constitutional Right. Revised and Updated Edition.

Update to the New Edition

225 ✯ UPDATE TO NEW EDITION T his book originally appeared in the aftermath of the unprecedented handgun ban passed by Morton Grove, Illinois, which the U.S. Court of Appeals for the Seventh Circuit upheld in 1982 on the basis that the Second Amendment did not protect individual possession of a handgun, and in any event, that the Fourteenth Amendment guaranteed no right to have arms from state infringement.1 California’s equally unprecedented ban on countless rifles—pejoratively called “assault weapons ”—was upheld in 1992 by the Ninth Circuit. That was the first case barely to acknowledge the existence of, but to find of no consequence, the intent by the Reconstruction Congress that the Fourteenth Amendment would protect the right to arms.2 Adhering to the “collective rights” invention of the mid-twentieth century , much of academia and the judiciary continued to be in denial that “the right of the people” in the Second Amendment actually referred to any liberty of any person. These unlikely champions of “states rights” zealously touted the virtues of what they depicted as today’s militia, the National Guard, but only for the purpose of this argument. Yet the charade did not have the intellectual underpinnings to last. UPDATE TO NEW EDITION 226 In the 1990s, mention of the Second Amendment appeared in decisions of the U.S. Supreme Court, which also interpreted portions of the federal firearms laws narrowly. Referring to “the right of the people” in the Bill of Rights, the Court in Verdugo-Urquidez stated that “‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments . . . refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”3 Could it really be that “the people” means the same in all three amendments? The Supreme Court next decided three cases under the federal Gun Control Act adversely to the government. United States v. Thompson/Center Arms (argued by this author) ruled that, under the Due Process Clause, ambiguous definitions of restricted firearms must be interpreted according to the rule of lenity, i.e., in favor of persons to whom they may apply and against the government.4 In Staples v. United States, the Court held that to convict a person of possession of a restricted firearm, the prosecution must prove that the person had knowledge of the firearm’s characteristics that made it restricted, and could not make a criminal out of a person possessing what appeared to be an ordinary gun.5 And in United States v. Lopez, the Court ruled that the ban on possession of a firearm in a school zone had no basis under the Commerce Clause and Congress had no constitutional power to enact it.6 A crack in the dike came with the Supreme Court decision in Printz v. United States (1997), which invalidated, on Tenth Amendment grounds, the federal Brady Act command that chief law enforcement officers in the states conduct background checks on handgun purchasers. This author argued the case on behalf of sheriffs who challenged the mandate. In his concurring opinion, Justice Clarence Thomas suggested that the law might also run afoul of the Second Amendment, adding: “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment’s text suggests, a personal right.” Together with this book and Joyce Lee Malcolm’s pathbreaking To Keep and Bear Arms (1994), he cited the growing body of law review articles on both sides of the subject.7 As if to challenge the Court being conspicuously AWOL on the Second Amendment, in contrast with other Bill of Rights guarantees, Justice Thomas added: “Perhaps, at some future date, this Court will have the UPDATE TO NEW EDITION 227 opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms ‘has justly been considered, as the palladium of the liberties of a republic.’”8 The stage was now set for acknowledgment by the federal judiciary that the Second Amendment actually meant what it said. In United States v. Emerson (1999), U.S. District Court for the Northern District of Texas quoted Justice Thomas’s Printz concurrence and expanded on the original meaning of the Second Amendment, also citing this book.9...