The Common Law #10

The Common Law #10
(The following column originally ran in a June, 2009 edition of the Moody County Enterprise.)

The Common Law:

By N. Bob Pesall 
Attorney At Law 
Flandreau, SD

A gentleman from Minnehaha County recently published a passionate letter in a popular Sioux Falls newspaper about guns. In this letter, he contended his readers did not have an individual right to own guns, and that the whole notion of private ownership of firearms was a huge hoax perpetrated upon the public by the NRA. The Supreme Court of the United States, our national constitution, and our state constitution all disagree with him. However, his letter gives us a nice incentive to discuss the ever-contentious Right to Bear Arms.

As with most of our rights, the Right to Bear Arms is guaranteed by both our national constitution and our state constitution. The text of the Second Amendment to the Constitution of the United States is well known to all. “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.” Unfortunately, that business at the start of the Amendment, about the militia, tends to trip people up. 

For almost 100 years, there had been an ongoing dispute as to whether this reference to the “Militia” meant that the whole amendment was directed at people actually serving the State in some sort of military capacity. (This was due in part to a 1939 ruling by the national Supreme Court which permitted a law against sawed-off shotguns because they had no practical military use.) Thus, the argument went, the rights protected by the Second Amendment do not apply to private citizens going about their daily lives. The Militia, as it existed in the late 1700's when the Second Amendment was ratified, is not in use today. It has been replaced over time by our National Guard. Under our state constitution, an unorganized militia still exists in South Dakota, but the details of this are beyond the scope of this column.

There were a two major problems with this approach. First, the Second Amendment clearly stated that this was a “right of the people.” It hardly made sense to define a “right of the people” as a right which actually belongs to the state militia or the national guard. The second problem with this approach was trying to figure out exactly what the amendment was supposed to protect. It made even less sense to enact a constitutional amendment which guaranteed the military the right to use weapons.

Fortunately, these questions were answered recently by the Supreme Court of the United States. In the case District of Columbia v. Heller, decided in June of 2008, the Court held that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self defense within the home.” This case considered the total ban on private ownership of handguns in Washington D.C. On the issue of handguns specifically, the highest Court made it clear that individuals had a right to own these under the Second Amendment as the “quintessential self defense weapon” in America.

This right under the national constitution is not unlimited, however. The Court also held that longstanding prohibitions against possession of arms by felons or the mentally ill, or rules against possession in schools or public buildings were legitimate limits to the right. In addition, Congress was still free to impose reasonable regulations on the national markets for firearms and ammunition. 

The Heller case is not the end of the issue, however. It was a 5-4 decision, and there are a lot of very passionate people out there who believe we would be better off, as a society, to get rid of all these guns. Opponents of this rule regularly cite the fact that, except for the total ban on handguns in Washington D.C., no major firearm restriction has been overturned as a result of this case, as evidence that the decision still permits broad limits on gun ownership. Also, the Heller case left open the question of whether or not the Second Amendment applies to state laws, or only to federal laws. After all, contrary to popular belief, not every right enshrined in the national constitution applies to state governments. Thus, it might still be possible for individual states to pass laws restricting gun ownership which Congress cannot. 

Efforts continue in our sister states to impose ever tighter regulations on the private ownership of firearms. In South Dakota, however, those efforts have little possibility of gaining any traction in the legislature. This is due not only to our proudly rural culture, but also our State Constitution. Just as the national constitution limits the laws that Congress can pass, our State Constitution limits the laws that our state legislature can pass. When it comes to the Right to Bear Arms in South Dakota, our constitutional requirements are much clearer. Our constitution avoids the militia question all together, and simply requires that “The right of the citizens to bear arms in defense of themselves and the state shall not be denied.”

In short, as a citizen of South Dakota and of the United States, you have an individual right to bear arms. That right includes handguns. Congress cannot take that right away, and neither can the state legislature. However, they can impose some reasonable regulations on it, and will probably continue to do so. In the mean time, I give you the same advice my father gave me. Guns are not toys. Always assume that any you see gun is loaded, and do not point them at people. Scholars will probably question whether the right to bear arms or the right to free speech can actually do more damage. Only time will tell.

The foregoing column is written for informational purposes only, and does not constitute legal advice.  For more information, see Washingdon D.C. v. Keller, 128 S.Ct. 2783 and S.D. Const. Art. 6 Sec. 24.  N. Bob Pesall can be reached at P.O. Box 23, Flandreau, SD 57028, by telephone at (605) 573-0274, or on the web at