CONSTITUTIONAL INTERPRETATIONS

On June 26, 2008, the United States Supreme Court answered the prayers of many Americans, perhaps even a majority, who wanted increased Constitutional protection against gun control legislation. On that day, the Court solemnly declared, for the first time in American history, that the Second Amendment to the United States Constitution prohibited legislation that interfered with Americans’ “traditional” “right to keep and bear Arms” “in their own home.” District of Columbia v. Heller, 554 United States Reports 570 (2008) (partially quoting the Second Amendment). Thirty years later, the Court solemnly declared that that “traditional right” included a “right” to carry handguns out into public places, as long as the gun carrier was exercising his or her “right” to personal self-defense. New York State Rifle & Pistol Ass’n v. Bruen, 597 United States Reports 1 (2022). The Court is now faced, this term, with the issue of whether that personal “right” carries over onto private property when it is open to the public, but when the property owner has not explicitly stated an invitation to visitors to carry their handguns onto the property. See Wolford v. Lopez, Sup.Ct. docket no. 24-1046 (to be argued January 20, 2026).

Until the Heller Case, the Court had construed the Second Amendment more narrowly, as prohibiting only the enactment of legislation by the Congress of the United States to outlaw militias that were organized and maintained  by state governments. See United States v. Miller, 307 United States Reports 174 (1939). In other words, the application of the Second Amendment had been limited to laws that interfered with the Amendment’s militia-oriented purpose. The Amendment, as written,  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.

In the Heller Case, the Court downplayed the significance of the Amendment’s militia-oriented purpose, and claimed that it served the additional purpose of protecting the people’s personal right of self-defense, at least in their own homes. The Bruen Case extended that personal right to public places outside the home.

The Court’s ruling in the Bruen Case clearly exceeded its Constitutional authority. There is absolutely no textual basis whatsoever in the United States Constitution for a personal right of self-defense. See U.S. Const., Preamble (citing the Constitution’s overall purpose, inter alia,  to provide for a “common defence”) and the Second Amendment (citing the need of a “free State” for a “Militia”).

Proof of the Court’s error is clearly shown in the Heller Case itself. There the Court proclaimed that the Second Amendment did nothing more than to codify the “Arms” Clause of the English Bill of Rights, enacted by Parliament nearly a century earlier. The English Bill of Rights’ Arms Clause reads, as literally quoted by the Court itself, as follows:

That the Subjects which are Protestants, may have Arms for their Defence suitable  to their Conditions, and as allowed by Law.

See Heller, supra, 554 U.S. Reports at 593, quoting the English Bill of Rights.

In Britain, the Parliament itself established the “Law,” and could change the “Law” at will. There was no superseding written constitution prohibiting such legislation. The Second Amendment of the American Constitution incorporated the “allowed by Law” principle by explicitly limiting the Amendment’s application to “infringements” carried out in violation of law. To “infringe” a legal right means, and has always meant, “To commit a breach or infraction of (a law, obligation, right, etc.); to violate or break (an oath, pledge, treaty, etc.); to transgress, contravene.”[1] In America, elected legislatures do not violate the law whenever they make new laws. That is their authority and their job under both the federal Constitution and  the state constitutions, all of which are written.

Historically, a true violation of the law, as written in the English Bill of Rights, occurred on April 19, 1775, less than twenty years before the Second Amendment was adopted. On that date, professional British soldiers marched to Lexington, Massachusetts under the sole orders of their commanding General. Their orders were to confiscate firearms held in reserve by the Massachusetts militia. When a confrontation occurred between the British soldiers and members of the Massachusetts militia (most of whom were probably farmers), shots were fired, and several Massachusetts men were killed. As a result, war between Britain and its American colonies broke out and lasted for eight years. The Americans won independence from Britain, requiring a new “constitution.” In 1791, the Second Amendment was added to the new United States Constitution, along with nine other amendments, all to prevent the newly formed government of the “United States” from committing acts similar to those that generated the Revolutionary War. One of those prohibited acts was any effort to disband the state militias or to disarm the potential members of those militias, i.e., the citizens of each “’’free state.” See U.S. Const., Second Amendment. However, nothing in the new United States Constitution prohibits the states, or the federal government, from enacting legislation to regulate the carrying of arms outside the home.[2] The Bruen Case is clearly repugnant to the United States Constitution and should be overruled.

/s/ Dan D. Rhea  

[1] See “Infringe, V. (1), Sense 2.” Oxford English Dictionary, Oxford UP, September 2025, https://doi.org/10.1093/OED/5295206971.

[2] The Heller Case, limited to its facts, may have some support under the common law “castle doctrine” (i.e., the doctrine that regards a person’s home as his or her “castle”), which in turn may be implied by the wording of the Fourth Amendment.