What is the Bill of Rights?

The U.S. Supreme Court today announced its decision in the case of District of Columbia v. Heller. By a 5-4 vote, the Court ruled that a D.C. gun control ordinance is unconstitutional because it is incompatible with the Second Amendment to the Constitution, which is part of the Bill of Rights.

As I stated here, it's not within the scope of this blog to discuss whether the decision is good or bad. But it touches on an interesting topic that I have not yet addressed: what is the Bill of Rights?

The Constitution, as it was drawn up by the Constitutional Convention in Philadelphia in 1787, did not directly address the right to own guns, and it generally did not deal with the other issues of individual rights that were eventually addressed in the Bill of Rights.

Article 7 of the Constitution stipulated that nine states needed to ratify the Constitution before it could come into force. During ratification debates in some states, arguments were raised to the effect that the document inadequately protected individual rights. By June 1788, nine states had ratified, despite the lack of a bill of rights.

The First Congress under the Constitution noted the political will in the states for such provisions, and proposed a set of 12 constitutional amendments.

Article 5 of the Constitution describes the amendment process. The basic process is for Congress, by a two-thirds vote of both houses, to propose amendments to the states. Any such amendments are ratified when approved by the legislatures of three fourths of the states. Alternatively, Congress can provide that state ratification be considered by state conventions specially elected for that purpose; that process has been used only once: for the 21st Amendment (repeal of prohibition). Article 5 also allows the states to petition Congress to call another constitutional convention; that provision has never been invoked.

Of the 12 amendments proposed by the First Congress, the states had ratified 10 of them by 1791. These 10 amendments are what is known as the Bill of Rights. They address such issues as freedom of religion, press and speech; the right to bear arms; protection against unreasonable search and seizure; right to a jury trial, etc. Another of the amendments was finally ratified in 1992, and is now known as the 27th Amendment. That amendment provides that, when Congress votes itself a pay raise, the raise cannot take effect until after the next election. One of those 12 proposed amendments, one that places a maximum on the population of each congressional district, has never been ratified.

The Second Amendment reads as follows:

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.

There has been much debate about whether the effect of that amendment is limited to allowing states to maintain militias (now called the National Guard) or whether it extends to allowing individuals to own guns for self-defense or hunting. Given the amount of discussion of that question in the news media, and by the executive and legislative branches of all levels of government, I find it interesting that the federal Supreme Court has only today directly addressed that question for the first time.

The majority opinion, authored by Associate Justice Antonin Scalia, provides in part 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.

Scalia goes on to state that this right is not absolute. It is subject to reasonable regulation, but it cannot be completely denied, which is what the D.C. ordinance, in effect, did.