By David E. Young
The Chicago amicus brief filed in the Heller case in support of Washington D.C.'s handgun ban presents a view of the U.S. Bill of Rights' Second Amendment that is clearly contradicted by America's Bill of Rights history. Chicago claims that the Second Amendment is not like protections found in the First, Fourth, and Seventh Amendments protecting fundamental, private rights of the people, but instead a federalism provision with a federalist purpose. According to Chicago, the Second Amendment is like the Tenth Amendment and was intended to divide power between the federal and state governments and reserve power to the states. On this foundation, Chicago argues that the Second Amendment is entirely related to government control of the militia, and the protection afforded against the federal government is protection for state government control of the militia and militia arms (all other arms being under state control due to police powers). Chicago's reason for this approach is clear -- to deny the Second Amendment is a private rights protection that can be applied against the states to negate laws like Chicago's own virtual handgun ban.
While there is no doubt that one of the reasons for the Tenth Amendment was to protect state authority against federal encroachment, that is not its only purpose. Chicago conveniently overlooks the Tenth Amendment's actual language indicating that powers are reserved to the "States respectively, or to the people." Powers are not just divvied up between the federal and state governments by the Tenth Amendment as Chicago emphasizes. Actually, it is divided between those two levels of government and the people, who authorized both levels of government and from whom power originates in the first place. The Tenth Amendment itself recognizes that there are powers not given by the people to either the federal or state governments (or any of their subdivisions). Also, the Tenth Amendment merely reaffirms the division of power that the Federalists had made between the states and federal levels of government in the Consitution originally.
Contrary to Chicago's view, the Second Amendment is NOT at all like the Tenth Amendment. The historical sources for the Tenth Amendment compared to the First through Eighth Amendments are separate and distinct. The first eight amendments of the U.S. Bill of Rights were developed directly from state bill of rights provisions limiting the state governments in favor of individual rights, and they were taken from a ratifying convention Bill of Rights. The Tenth Amendment was not developed from this source nor for the purpose of protecting specific rights against government abuse. It was developed from a list of other amendments, none of which were based on state bill of rights protections.
Chicago's equating of the Second Amendment and Tenth Amendment is merely the latest attempt to rewrite the Second Amendment's history in order to evade its clear purpose, protection of an armed civilian population. The very issue in the case is whether the Second Amendment protects an armed populace by protecting private rights, or does something else as Chicago claims. In spite of Chicago's twenty-plus assertions of a federalism related purpose for the Second Amendment, the historical facts contradicting the Windy City are the same. Stating "federalism provision" repeatedly throughout the brief is merely repeating one side of the contested issue in the case. It is nothing more than a circular argument. The historical arguments presented by Chicago are all irrelevant for understanding the Second Amendment because Chicago never directly addresses the pertinent historical facts that would help decide the disagreement. Besides, all historical information presented in the brief is twisted to fit Chicago's faulty understanding of the Second Amendment's claimed federalist purpose.
Historically, the Second Amendment is exactly like the other first eight amendments because the protections they all provide came from restrictions upon the state governments found in the original state bills of rights. Also, Chicago's constant use of "federalism" language overlooks the historical fact that Federalists were for federal power. It was the Antifederalists who were for state power and a bill of rights based on the state bills of rights. One of the reasons Antifederalists were for state power was because most of the state governments were restricted by state bills of rights. Returning power from the federal government back to the states placed that power under the limits on the state governments found in the state bills of rights. Every state bill of rights had a Second Amendment related provision at the time.
Federalists routinely opposed and voted against the Bill of Rights protections (including Second Amendment predecessors) during ratification of the Constitution except when politically forced to accept them by the Antifederalists. It was the Antifederalists who actually developed the protections for "those great and essential rights" that James Madison promised to support in the Virginia Ratifying Convention and later took to the first Congress as the foundation of the U.S. Bill of Rights. Antifederalists led by George Mason actually prepared and proposed that Bill of Rights, which was later adopted by Virginia's Ratifying Convention.
Looking back on how that situation came about reveals the most relevant information for deciding the entire Second Amendment dispute. Towards the close of the Federal Convention, George Mason sought a committee to form a bill of rights based on the state declarations of rights. A bill of rights committee was unanimously voted down, an action that infuriated Mason. He refused to sign the Constitution and afterwards became the most prominent Antifederalist opponent of the Constitution and influential supporter of a bill of rights. Opposition to the Constitution and public support for a federal bill of rights increased throughout the Ratification Era due to the efforts of Antifederalists like Mason. George Mason's Bill of Rights became the model for all of the last four ratifying conventions. North Carolina's Convention copied Virginia's Mason based proposed Bill of Rights verbatim. Mason's Bill of Rights was also the basis of that included in the ratification of New York and later Rhode Island. Mason's Bill of Rights contributions are essential for any proper understanding of the Second Amendment but they are routinely ignored in discussion by supporters of gun control.
The actual history of the Second Amendment makes clear that it was not adopted for the purpose claimed and used by Chicago as the foundation of its brief. Instead, the Second Amendment was intended to prevent the Federal Government, just as its predecessors were intended to limit the state governments, from violating pre-existing private rights to possess and use arms for legitimate purposes. Chicago's brief is fundamentally defective historically, and as a result, only adds to the tremendous confusion already surrounding the most disputed of all Bill of Rights provisions.
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This page last updated: March 5, 2008