Nixon's Chief Justice on the Second Amendment

Let's hear what Warren Burger, who was appointed Chief Justice of the Supreme Court by Richard Nixon in 1969, has to say about the Second Amendment (via NPR):


In the interview Burger said:

This [the Second Amendment] has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.

Burger goes so far as to say that he would not have included the Second Amendment if the Bill of Rights were being written today, but that is unnecessary: the Constitution clearly grants the Congress and the President the authority to regulate Arms.

In particular, the Second Amendment grants "the people" the right to bear Arms. The people is a collective noun that does not mean all persons. Where the Constitution means an individual person, it says a person. For example:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Don't you just love that "importation of such Persons" and the ten-dollar tariff part?

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. 

and

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

and

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 

This last paragraph illustrates the difference between the people and a person. The Second Amendment grants the right of the collective people (i.e., the Militia of a State) to bear arms, but persons cannot be denied life, liberty, property and equal protection of the laws.

If the Second Amendment meant every person can own whatever guns they hanker for, it would have been written without any preamble about Militias and States, thusly: "The right of a Person to keep and bear Arms shall not be infringed." It does not say that.

Congress can pass laws as Congress sees fit to regulate Arms, and all individuals must be treated equally under those laws. The government cannot deprive persons of lawfully owned Arms without due process.

The Second Amendment does not grant an individual the absolute right to own any kind of weapon, including hand guns, AR-15s, hand grenades or nuclear weapons, or the right to carry guns around wherever they feel like it in order to threaten others. It grants the people of the States' Militias the right to bear Arms, as regulated by the Congress.

Congress can pass gun laws. States can pass gun laws. The Heller decision acknowledged that states can regulate guns, it simply ruled that the District of Columbia went too far in banning handgun ownership in the home.

In essence, Heller says that regulating gun ownership is just a matter of degree. The error in Heller is in denying the state's right (remember states' rights?) to decide what that degree is.

The conservative justices who decided Heller were using the Second Amendment as a lame excuse to prevent the District of Columbia from stopping them from keeping guns under their pillows.

I'm not a liberal, wild-eyed gun-confiscating nut: all I'm saying is that federal and state governments have the right to pass laws that regulate gun ownership. Those laws should include those that make sure that the persons who own guns are not criminal or violent, and are mentally stable and competent in firearm use; that weapons in private hands are not overly dangerous; and that weapons are properly stored so that children and unstable people can't steal or otherwise access them.

If you want a wild-eyed, gun-confiscating nut look up this guy named Donald Trump: he thinks that he can seize people's guns without due process.