WHY THE SECOND AMENDMENT MATTERS

Last summer, the Supreme Court of the United States (hereinafter SCOTUS) ruled that Americans have an individual right to keep and bear arms. Why does the decision in DC V HELLER matter to city-dwellers like you and I that live or work in Federal Way and have almost no place in our lives for hunting, target shooting or toting a pistol as we go about our busy routines?

The fact that the Washington State Constitution already guarantees Washingtonians protection if we choose to possess firearms also raises the issue of what was, if any, the HELLER decision’s impact on residents of our local communities. Any law-abiding U.S. citizen of sound mind (twenty-one or older) can obtain a Concealed Pistol License in Washington State. You can even keep and wear a weapon in your own home or business without obtaining a CPL. So why does DC V HELLER matter in the Evergreen State?

To answer the question we need to a nutshell course on Second Amendment jurisprudence. When the federal government first got involved with regulating guns pursuant to the National Firearms Act of 1934 (NFA). In the 1939 case of UNITED STATES V MILLER, SCOTUS took up the issue of whether the NFA’s prohibition against sawed-off shotguns violated the Second Amendment. The MILLER court decided the issue by analyzing whether sawed-off shotguns are militarily useful. Ever since that time gun control advocates, law professors and even a minority of Supreme Court justices in the HELLER dissent have been able to point to United States Circuit Court precedents in which the decisions cited the MILLER case and rejected claims that the Second Amendment protects an individual right. Thus, prior to recent times, a majority of legal scholars and even our own Ninth Circuit Court of Appeals have taken the position that the “people” that have the right to keep and bear arms are the states; i.e., the U.S. Constitution only protects a state’s right to maintain a militia.

Pro-gun folks advocate that MILLER only dealt with the issues in a very oblique fashion for a number of reasons, including the fact that the only representatives that appeared to argue the issues in MILLER were the government lawyers! Because the defense did not appear, there was arguably no way for the judges to hear both sides of the issues. It is worth noting that, despite the assertion in the MILLER opinion declaring that sawed-off shotguns have no military usefulness, short barreled shot-guns were very much in use as trench guns in WW I.

It can be argued that the HELLER case is actually the first case in which SCOTUS has dealt directly with the issue of who has standing to assert the right to keep and bear arms. The HELLER decision almost guarantees that many more Supreme Court decisions will follow. Because Washington, DC is not a state there are bound to be cases that decide whether the states are obligated to abide by the Second Amendment and what restrictions are reasonable for the states and the federal government to enact. Keep in mind that many rules dealing with firearms are administrative and are buried deep within arcane intricacies of local, state and federal bureaucracies.

Those of you that resent rampant militarism, the Founding Fathers are on your side! The legislative history of the Bill of Rights reveals that the Founders were conflicted about the wisdom of permitting standing armies that could be used against the people to usurp American’s civil rights. The Federalists compromised with the anti-Federalists by leaving the size of the military up to the President and Congress. By keeping the people armed, Americans would be prepared if the government neglected the national defense and, at the same time, the people would have recourse in the event that the new federal government ran roughshod over our liberties. You have to say one thing for those old boys- they were radical!

Dick Heller, an armed security guard for a government agency, was prohibited under Washington, DC’s draconian gun laws from possessing a gun in his home, even though the United States Government entrusted him to guard life and the U.S. Government’s property. Because he challenged and overturned the DC gun ban, cities like Morton Grove, Illinois are already revising their gun laws to permit at least some private possession of guns within their city limits.

History has demonstrated that the federal government, states and local governments can and will enact laws that deprive individuals and states of the ability to take control of our own destinies. The Interstate Commerce Clause has been invoked to justify economic regulation and federal incursions into almost every area of our lives. Presidents can enter into all kinds of treaties and there are many legal scholars prepared to argue that treaties may be valid even without going through the cumbersome process entailed by the plain meaning of the U.S. Constitution. My Constitutional law professor taught me that treaties supersede the Constitution!

Consider also that in the very near future, you will be hearing a great deal about a proposed UN Treaty that is being touted as a “common sense” agenda to limit trafficking in small arms- a solution to international terrorism and other criminal activities. The only problem is that everywhere we look in the world, the thugs in high places are busy building up arsenals, while the honest folks are mostly disarmed- except in the United States of America. The fact that treaties may preempt state laws may raise some real Constitutional issues, especially since the UN wants to preempt guns in the hands of you and yours. If you think I am being reactionary look at all the countries that already have become signatories to the UN Treaty on Small Arms. There is, however, a state preemption law that prohibits local and county governments from enacting any restrictions on our gun rights:

The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter. Such local ordinances shall have the same penalty as provided for by state law. Local laws and ordinances that are inconsistent with, more restrictive than, or exceed the requirements of state law shall not be enacted and are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such city, town, county, or municipality.

RCW 9.41.290

But there is considerable pressure from Mayors, city councils and others for the legislature to do away with RCW 9.41.290. Many cities in Washington (like Federal Way) are already banning weapons in parks and other public places in full knowledge that such bans violate state law. If our Washington State legislators cave-in to pressure from cities like Seattle, you could have a situation where every time you cross a municipal boundary, or enter into a public place, you will be forced to stop and look up that jurisdiction’s municipal code or administrative regulations in order to avoid the possibility of being arrested and charged as a criminal. Thus, your CPL would become almost useless.

The U.S. Constitution does not mandate state preemption laws but the DC v Heller case makes it far more difficult for the executive branch of the federal government, Congress or a federal judge interpreting an international treaty to undermine the protection that Washingtonians enjoy under various state laws.

For example, if state preemption of local firearms laws is overturned, then it may be a matter of time before all semi-automatic rifles are defined as “illegal assault rifles”, the fact that they are “militarily useful” under the MILLER case notwithstanding. The next thing you know, certain calibers are banned and then “high capacity” magazine clips. Such a process is already gradually happening in California and other states. It remains to be seen how the U.S. Supreme court will deal with firearms related issues in the future. Future Supreme Court appointments will impact the future of Second Amendment jurisprudence in ways that are difficult to predict at this time.

Hopefully, by now you are seeing all the layers of legal protection that we enjoy as potentially well-armed U.S. citizens. In a very real sense, the Second Amendment helps to protect our First Amendment rights. But guns have no inherent ability to guarantee that we will remain a free people.

In conclusion, you should take a final look at a not-so-apparent but self-evident truth. The right to protect our loved ones does not come from a constitution or other legal document. Protecting our families and communities from violence is not really even a right! It is a duty that is placed on us by God. Even if you, like most people, do not choose to obtain a CPL and go about armed, the predators in our midst are still very aware of the fact that many of us are going about our business with enough training and firepower to stop a criminal assault. Thus, that soccer-mom or senior citizen that might be carrying a concealed pistol often represents as much of a deterrent to violent crime as a six foot, two-hundred pound police officer. Why? Because predators never know where and when the armed citizen may respond with deadly force!