Individual gun rights should never be confused with Second Amendment rights. Ratification of the Bill of Rights (BR), including the Second Amendment, was completed Dec. 15, 1791, when Virginia, the 11th state, approved it. Did that adoption of the BR guarantee an individual right to gun ownership the next year, or the next decade or even the next century? Absolutely not.
Of course, the BR created no individual rights since it placed no restrictions on state actions. If the framers had intended to create individual rights somewhere, the BR would have used the words employed in Article I, Section 10 of the Constitution: “No state shall...”. Since the framers failed to use those words, or words to that effect, individual gun rights were enjoyed only at the pleasure of an individual’s state — as was religious liberty.
A unanimous Supreme Court made this clear in the United States versus Cruikshank in 1876 — a full century after our Declaration of Independence. The court held: “The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.” This enabled states to criminalize gun ownership and even Bowie knife ownership.
In 1983 (Quilici v. Morton Grove), the Court left intact a municipal ordinance banning handgun possession. In sum, through the 1700s, 1800s and 1900s, there were no guaranteed individual gun rights. Conservative Republican appointed Chief Justice Burger, aware that the BR was written on behalf of states’ rights advocates, emphatically declared it was “fraudulent” to claim the Second Amendment created individual rights because its very language speaks of a “well-regulated militia.”
Then, in 2010, five men, with the stroke of a pen, used the 14th amendment to strike down state and municipal gun regulations. (See Chicago v. McDonald) Most individual rights were created by the federal judiciary from the 14th amendment because it does use those magic words: “No state shall....”.
It is deeply ironic that the BR, which was written to protect states’ rights, was used by activist judges, who were actuated by a fraudulent theory, to disregard all precedents, diminish states’ rights and damage federalism. Traditional conservatives would adhere to precedents and were loath to damage federalism and states’ rights.
Apparently, the fraudulent theory (the completely baseless notion that the Second Amendment was written to create individual rights) was behind the Weber County Commission’s ill-advised decision to designate Weber County a “Second Amendment sanctuary.” The poorly informed commission has confused Second Amendment rights with individual gun rights.
Might I suggest the Commission read what Chief Justice Waite wrote for a unanimous court in Cruikshank. He said the right to bear arms for a lawful purpose “is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence.”
Clearly, individual gun rights should never be confused with Second Amendment rights. The Second Amendment came into existence a good two centuries before individual gun rights were created by the federal judiciary. The country pays a high price for conflating the two.