Gun Rights “Shall Not Be Infringed”: Philosophy trumps legality–get to know Senate Bill 199 and Senate Bill 180

I get really tired of all this talk about gun control. On Saturday Night Live shown on October 10, 2015 the obvious attack against guns was incredibly obvious. They did several skits attacking guns showing how the progressive New York culture sees the rest of America. Well, just for clarity not to the gun owners who read this site each day, but those progressive types who are way too politically left-winged, the Second Amendment is not up for debate. It is not up for negotiation. And there is no interpretation of the words “shall not be infringed,” that opens the door for more rules, confiscation, or government involvement. As lawyers do try to discuss the meaning of words which can take on different meanings as times change the Bill of Rights is an extension of American philosophy for which legal terms evolved. The intent of the Constitution therefore does not fall under the proper interpretation of legal minds, but philosophy. And the essence of that philosophy is that governments cannot be trusted—which is grossly evident in our modern news cycles. Here is how the terminology has been misinterpreted by legal minds giving the illusion that the Second Amendment can be modified to suit some progressive diatribe—such as those shown on left leaning news outlets and entertainment venues.

The Second Amendment of the United States Constitution reads: “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.” Such language has created considerable debate regarding the Amendment’s intended scope. On the one hand, some believe that the Amendment’s phrase “the right of the people to keep and bear Arms” creates an individual constitutional right for citizens of the United States. Under this “individual right theory,” the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language “a well-regulated Militia” to argue that the Framers intended only to restrict Congress from legislating away a state’s right to self-defense. Scholars have come to call this theory “the collective rights theory.” A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.

In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun “has some reasonable relationship to the preservation or efficiency of a well-regulated milita . . . .” The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.

This precedent stood for nearly 70 years when in 2008 the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller (07-290). The plaintiff in Heller challenged the constitutionality of the Washington D.C. handgun ban, a statute that had stood for 32 years. Many considered the statute the most stringent in the nation. In a 5-4 decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms and struck down the D.C. handgun ban as violative of that right. The majority carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purpose. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purposes as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.

Thus, the Supreme Court has revitalized the Second Amendment. The Court continued to strengthen the Second Amendment through the 2010 decision in McDonald v. City of Chicago (08-1521). The plaintiff in McDonald challenged the constitutionally of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens. In a 5-4 decisions, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine. However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense. While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.

However, several questions still remain unanswered, such as whether regulations less stringent than the D.C. statute implicate the Second Amendment, whether lower courts will apply their dicta regarding permissible restrictions, and what level of scrutiny the courts should apply when analyzing a statute that infringes on the Second Amendment.

Recent case-law since Heller suggests that courts are willing to, for example, uphold

  • regulations which ban weapons on government property. US v Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) (upholding defendant’s conviction for bringing a handgun onto post office property);
  • regulations which ban the illegal possession of a handgun as a juvenile, convicted felon.  US v Rene, 583 F.3d 8 (1st Cir. 2009) (holding that the Juvenile Delinquency Act ban of juvenile possession of handguns did not violate the Second Amendment);
  •  regulations which require a permit to carry concealed weapon. Kachalsky v County of Westchester, 701 F.3d 81 (2nd Cir. 2012) (holding that a New York law preventing individuals from obtaining a license to possess a concealed firearm in public for general purposes unless the individual showed proper cause did not violate the Second Amendment.)

That’s just a bit of history on how the Second Amendment has been knocked back and forth over the years. Yet the trend in spite of New Yorkers like those found on Saturday Night Live around the rest of the country is for gun laws to become less stringent not more so. For instance in my home state of Ohio there are two pro-gun bills being introduced for discussion which are very important.   The Ohio Senate Civil Justice Committee had a hearing Wednesday, October 7, at 2:30 p.m. in the Finance Hearing Room to discuss two pro-gun bills.

Senate Bill 180, sponsored by Senator Joe Uecker (R-14), would allow an employee to store a firearm in their locked vehicle without fear of employer retribution.  Throughout the country, many employers have adopted “No Firearms” policies that extend beyond the physical workplace to include employee parking lots – areas often accessible to the general public and not secure.  In order to comply with these policies, many employees must choose between protecting themselves during their commutes and being subject to termination by their employer.

The fundamental right to self-defense should not stop simply because you park your car in a publicly accessible parking lot owned by your employer.  When companies invite employees to park on their property, they should not be allowed to dictate employees’ constitutional rights inside one’s own vehicle.

Senate Bill 199, also sponsored by Senator Uecker (R-14) and Senator Randy Gardner (R-2), would allow an active duty member of the military to carry a concealed firearm without obtaining a concealed carry license if the active duty member is carrying a valid military identification and a certificate indicating a small arms qualification.

If your company has such a misguided policy that impedes your inherent right to self-defense, please contact NRA-ILA’s State and Local Division at state& and share this information.

And that’s where I stand, there needs to be a lot more guns out there, not less, and we need to be able to carry them in more places more often. The trend is clear and the necessity for more guns is obvious. Guns are not just instruments of death the way left leaning politics frames them—they are part of the philosophic American experience. They transcend legal interpretation as philosophy trumps legality because it is in thought that all law emerges. So to undo some of the laws misinterpreted by sissy-driven legal minds over the years, the Ohio Senate Civil Justice Committee is working to walk back the intrusions that gun owners have been conceding—illegally due to improper legal negotiations from the anti-gun lobby over previous decades. The activism displayed on Saturday Night Live and other anti-gun venues made a false assumption—that gun rights “shall not be infringed,” were up to debate. They aren’t under any circumstance. End of story. It’s not complicated. Guns=philosophy which trumps legality.

Rich Hoffman


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One thought on “Gun Rights “Shall Not Be Infringed”: Philosophy trumps legality–get to know Senate Bill 199 and Senate Bill 180

  1. If you believe, as the founders did, that government is a necessary evil, then the second amendment makes great sense for the individual. If, on the other hand, you believe that the government is an inherent good, then the second amendment is unnecessary at the individual level. Simple observation ought to lead to the conclusion that the founders were right, and that even today their wisdom still holds true.


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