LIBERTY LEGAL JOURNAL Spring/Summer 2016 | Page 15

The folly of the comparison in Heller is this: if the First Amendment
does not protect the right to speak for any purpose, then we ought
similarly to say that the Second Amendment does not protect the
right to keep and bear arms for any purpose. To carry around an
axe, a knife, a musket, or even a semiautomatic rifle for the purpose
of scaring people is not protected. Why? Because that purpose is
not the purpose of the Second Amendment. To scare people is not
an act of self-defense. If, however, one were to use an axe, a knife,
a musket, or even a semiautomatic rifle for the purpose of self-defense, then logically, such use is protected because the weapon used
was merely one of many different tools capable of carrying out the
intended purpose. The issue is not therefore the type of tool that is
used (i.e., a pistol, rifle, or shotgun) but the purpose for which that
tool is used. Just as speaking for the purpose of inciting imminent
lawless action is prohibited, so too is carrying around a semiautomatic rifle for the purpose of scaring one’s neighbors.
Thus the sentence in Heller ought instead to say: The Second
Amendment does protect the right of citizens to carry arms for any
sort of confrontation, so long as the purpose of that carrying falls within the purpose of the Second Amendment. By this reasoning, semiautomatic rifles would be perfectly permissible (and thus the ban
unconstitutional) so long as their use is limited to the purpose of the
Second Amendment, that is, self-defense against both the individual
and the hypothetically tyrannical government.
Indeed, this conception of the Second Amendment as a check on
tyranny was already articulated in Heller, where Justice Scalia specifically cited the example of the Catholic King Charles II who, un-

Letter from Thomas Jefferson to William Smith (Nov. 13, 1787) (transcript available in
the Library of Congress), https://www.loc.gov/exhibits/jefferson/105.html.
1

der the 1671 Game Act, “ordered general disarmaments of regions
home to his Protestant enemies,” as a means of suppressing his political opponents.15 As a result of such disarmaments by the state,
William and Mary thereafter included a clause in the Declaration of
Right that guaranteed Protestants the right to “have arms for their
defence[.]”16 This right, noted Justice Scalia, is the “predecessor to
our Second Amendment.”17
Advocates for gun control often forget these roots. Worse yet, they
envision a “living” Constitution that changes with time, perhaps
even to the extent that gun manufacturers today could potentially
be held accountable for the crimes of individuals.18 But the right to
bear arms was not granted by the Constitution and therefore does
not change with time. As noted, the Supreme Court has repeatedly
reasoned that the Second Amendment merely codified a “pre-existing right.”19 That right was granted by God—not government—to
Protestant, Catholic, and atheist alike. The Second Amendment
does nothing more than promise (in writing) that it “shall not be
infringed.”
Interestingly, gun control advocates don’t always practice what they
preach. If disarmament really is the best policy, why not start with
disarming all bodyguards and security personnel assigned to progun control politicians? As a demonstration of fervent faith in their
theories, every pro-gun control congressman, senator, or other public figure should consider posting a large sign stating “GUN-FREE
ZONE” in front of their offices, vehicles, and homes. As far as
weaponry is concerned, guns are clearly too violent for bodyguards.
Pepper spray and whistles should do just fine.

11

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

12

2

H.R.4269 - Assault Weapons Ban of 2015, CONGRESS.GOV (Dec. 16, 2015),
www.congress.gov/bill/114th-congress/house-bill/4269/text.

https://

Lesley Stahl, Justice Scalia On the Record, 60 MINUTES (Apr. 24, 2008), http://www.
cbsnews.com/news/justice-scalia-on-the-record/.
13

3

Id.

4

124 Anti-gun Democrats Introduce Semi-Auto Gun and Magazine Ban in House of Representatives, NRA-ILA INSTITUTE FOR LEGISLATIVE ACTION (Dec. 29, 2015), https://
www.nraila.org/articles/20151229/124-anti-gun-democrats-introduce-gun-and-magazine-ban-in-house-of-representatives.
5

FACT SHEET: New Executive Actions to Reduce Gun Violence and Make Our Communities
Safer, THE WHITE HOUSE (Jan. 4, 2016), https://www.whitehouse.gov/the-press-office/2016/01/04/fact-sheet-new-executive-actions-reduce-gun-violence-and-make-our.
6

Dist. of Columbia v. Heller, 554 U.S. 570, 603 (2008).

Supreme Court Justice Scalia Sits Down With Chris Wallace on Fox News Sunday, FOX
NEWS (Jul. 29, 2012), http://video.foxnews.com/v/1760716797001/supreme-court-justice-scalia-sits-down-with-chris-wallace-on-fox-news-sunday/?#sp=show-clips.
14

Id.

15

Heller, 554 U.S. at 593.

16

Id.

17

Id.

18

7

See, e.g., Michele Gorman, Sandy Hook Lawsuit: Judge Rules Against Gun Companies,
NEWSWEEK (Apr. 14, 2016, 12:53 PM), http://www.newsweek.com/connecticut-judge-dismisses-gun-manufacturers-motion-dismiss-447918.

8

19

Jefferson, supra note 1.
Heller, 554 U.S. at 595 (emphasis added).

9

Id. at 595

10

Id.

Heller, 554 U.S. at 592. See United States v. Cruikshank, 92 U.S. 542, 553 (1876)
(“This is not a right granted by the Constitution. Neither is it in any manner dependent
upon that instrument for its existence. The second amendment declares that it shall not be
infringed[.]”).

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