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In a racist ruling that primarily functioned as a way to disarm black residents while protecting white Southern paramilitary groups, the Supreme Court held that the Second Amendment applied only to the federal government. Chief Justice Morrison Waite wrote for the majority:

The most frequently-cited Second Amendment ruling in U.S. history has been United States v. Miller, a serious but challenging attempt to define the Second Amendment's right to bear arms on the basis of how well it serves the Second Amendment's well-regulated-militia rationale. As Justice James Clark McReynolds wrote for the majority:

In a 5-4 ruling, the U.S. Supreme Court decidedfor the first time in U.S. historyto strike down a law on Second Amendment grounds. Justice Scalia wrote for the narrow majority:

The first salient feature of the operative clause is that it codifies a 'right of the people.' The unamended Constitution and the Bill of Rights use the phrase 'right of the people' two other times, in the First Amendments Assembly-and-Petition Clause and in the Fourth Amendments Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology ('The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people'). All three of these instances unambiguously refer to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body ...

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendments text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Courts decisional process than on the reasoning in the opinion itself ...

Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Courts announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations ...

The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choicethe choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Courts opinion, I could not possibly conclude that the Framers made such a choice.

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Second Amendment and Gun Control Supreme Court Cases

President-elect Donald Trump is expected to push to relax gun laws when he takes office, but significant changes in the firearms industry began as soon as he was elected and some put the law of unintended consequences squarely in the cross hairs.

For instance, while Trumps unapologetic pro-Second Amendment stance may be good for gun owners, it has already dealt a blow to manufacturers, who enjoyed record sales throughout President Obamas eight years in office. Stocks in companies like Smith & Wesson and Sturm, Ruger & Co. plunged on Nov. 9, and experts say it is because Trumps election erased fears that guns would become harder to get.

A lot of people were buying guns simply because they were worried Hillary Clintons regulations would make it more costly and more difficult to buy guns, and people are not going to feel quite the need to go out and buy guns now, Crime Prevention Research Center President John Lott told FoxNews.com. I think the stock market is a pretty good predictor of whats going to happen, and the fact that you see drops in stock prices by almost 20 percentage points I think thats pretty significant.

While the government does not publish an official number of gun sales, background checks, a gauge of how many people try to buy guns, skyrocketed under President Obama. In 2008, 12.71 million background checks were conducted, a number on pace to double this year, to set an all-time record.

The prospect of a pro-gun control administration of Hillary Clinton following Obama, together with a campaign that put gun rights in the spotlight, was the likely driver of the firearms boom, acknowledged Joshua Horwitz, executive director of the Coalition to Stop Gun Violence. But he was skeptical that a rise in 2016 gun sales or an anticipated dip in the coming year will have a major effect on crime.

Gun violence is obviously a complicated issue and doesnt just turn around because of a month or two of different sales, Horwitz said. There are so many guns in America that a blip in the sales rate is not going to change the death and injury rate in any meaningful fashion, and its just too early to tell.

The weekend following Trumps election, arms vendors from all over the country set up their exhibits in Oklahoma for the semi-annual Wanenmachers Tulsa Arms Show, the largest gun and knife show in the world. Show founder Joe Wanenmacher told FoxNews.com sales were steady, but wouldve been through the roof if Clinton had won.

Had Secretary Clinton been elected, it would have been panic sales, because gun shows were in her sights to either be eliminated, or make it so difficult to sell that they wouldnt be effective, Wanenmacher said. When there is complacency, there isnt the motive to buy guns in anticipation of something bad happening.

One attendee agreed.

I think if Trump hadnt won, it would have been chaos, she said. It was a relaxed atmosphere and everyone was upbeat.

Fear of new gun control laws was not the only sales driver in recent years, said National Shooting Sports Foundation spokesman Mike Bazinet. He said local crime also spurred people to buy guns, and does not expect that factor to diminish in the near future.

There is no question that the concern over political situations over the past several years, where people may have feared additional restrictions of access to firearms was a motivator, but it wasnt the only one, Bazinet said. Our retailers tell us that a more important factor is local crime.

Trump has said he intends to work with state and local governments to repeal gun-free zones, do away with the special tax on silencers, encourage expansion of conceal carry laws and carry out a host of other pro-gun industry initiatives. Advocates of gun control say such measures will put more people at risk of becoming victims of gun violence, but Trump and other Second Amendment stalwarts disagree.

If you get rid of gun-free zones and make it easier for people to carry, you will deter criminals, Lott told Fox News. You will be able to reduce crime.

The irony is that an administration more sympathetic to the gun industry could hurt its bottom line.

There is no doubt that the firearms industry will not be treated as a social disease by the Trump Administration, Alan Gottlieb, founder of the Second Amendment Foundation, told Fox News. The president-elect will make the Second Amendment great again.

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Trump's pro-Second Amendment platform could end gun sales ...

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Clifford Tyler is a law-abiding and peaceful citizen living in Grand Rapids, Michigan. In 1985, his wife of 23 years was having an adulterous affair. She ran off with the other man and took all of Cliffords money with her. His daughters found him so upset and depressed, banging his head on the floor, that they called the authorities, fearing he might harm himself.

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Tyler was taken before a Michigan judge, who ruled there was sufficient reason to be concerned about the distraught man to commit him to a facility for psychiatric evaluation. A couple weeks later the doctors released him with a clean bill of health, saying that he was a perfectly normal person who had a really horrible day. Tyler continued to be a good citizen, a good employee, got remarried, has been a good father, and eventually even repaired his relationship with his unfaithful ex-wife.

Hes now age 74, and wanted to buy a handgun to keep at home for self-defense. But the government told him that federal law bars him from ever owning a gun, so he went to court to assert his Second Amendment rights.

In 2008, the Supreme Court inDistrict of Columbia v. Hellerone of the most famous decisions ever written by Justice Antonin Scaliaheld that the Second Amendment is an individual right, and as such does not allow the federal government to bar law-abiding and peaceable American citizens from keeping a handgun in their home. Heller was a 5-4 decision, and left other gun-rights questions for future cases.

Heller specified that it was not weighing in on certain issues, including laws that prohibit certain people from owning guns. Federal law in 18 U.S.C. 922(g)(4) is one of these gun-control laws, providing that no one who has been committed to a mental institution can own firearms.

In 1986 President Ronald Reagan signed an NRA-supported law advancing Second Amendment rights, including 18 U.S.C. 925(c), which empowers the Justice Department to restore gun rights if the attorney general finds a particular person to be safe and sane. But Congress stopped funding that program in 1992, canceling out that Reagan-era protection for Americas 90 million gun owners.

So in 2007 Congress passed a new law empowering states to set up their own review process to restore gun rights. Most states have established such a program, but some statesincluding Michigan, where Tyler liveshave not.

The federal district court in Michigan ruled against Tyler, but a panel of the U.S. Court of Appeals for the Sixth Circuit reversed. The Obama administration petitioned the Sixth Circuit to rehear the case en banc, meaning all the judges on the courtin this case, 16 judgeswould reconsider the case.

The petition was granted, and on Sept. 15, by a 10-6 vote in Tyler v. Hillsdale County Sheriffs Department the full Sixth Circuit struck down 18 U.S.C. 922(g)(4) as a violation of the Second Amendment, and remanded the case back down to the district court for more hearings. The court noted that Heller said laws that kept mentally ill people from getting guns were allowed under the Second Amendment, but held that Section 922(g)(4) went too far by mandating that any person who has ever been involuntarily committed to a mental institutioneven for a single daycan never own a gun for the rest of his or her life.

Writing the lead opinion for six judges of the en banc court (which is less than a majority, but still the controlling opinion in this case), Judge Julia Gibbons explained that similar to several other appeals courts, the Sixth Circuit had recently adopted a two-step process for Second Amendment cases. The first step asks whether the challenged law burdens conduct that falls within the scope of the Second Amendment right, as historically understood, she wrote. If it does, then the government bears the burden of justifying the constitutionality of the law under a heightened form of scrutiny.

Specifically, these judges decided that intermediate scrutinya term invented decades ago by the Supreme Courtshould apply to this type of gun-control law. As Judge Gibbons wrote, intermediate scrutiny requires (1) the governments stated objective to be important and (2) a reasonable fit between the challenged regulation and the asserted objective. This standard is less stringent than strict scrutiny, which is another judge-made test.

The lead opinion noted that the Justice Department in this case failed to cite historical material or other evidence supporting Section 922(g)(4). In the absence of such evidence, it would be odd to rely solely on Heller to rubber stamp the legislatures power to permanently exclude individuals from a fundamental right based solely on a past involuntary commitment.

Judge Gibbons continued, Some sort of showing must be made to support Congresss adoption of prior involuntary commitments as a basis for a categorical, permanent limitation on the Second Amendment right to bear arms.

The judges thought this principle applied with special force in this case. Tylers [lawsuit and evidence] suggest that Tyler is thirty years removed from a brief depressive episode and that he has no intervening mental health or substance abuse problems since that time.

None of the governments evidence squarely answers the key question at the heart of this case: Is it necessary to forever bar all previously institutionalized persons from owning a firearm?, the court reasoned. Then noting Congresss own restoration program in Section925(c) and the 2007 law allowing for state restoration programs, added, But the biggest problem for the government is Congresss most recent answer to this very question: No, it is not.

Thus, the court concluded that since the Obama administration presented no evidence supporting this statute, There is no indication of the continued risk presented by people who were involuntarily committed many years ago and who have no history of intervening mental illness, criminal activity, or substance abuse.

The Sixth Circuit thereby invalidated this federal law, holding, As we see it, the government may justify 922(g)(4) in one of two ways: (1) with additional evidence explaining the necessity of 922(g)(4)s lifetime ban or (2) with evidence showing that 922(g)(4) is constitutional as applied to Tyler because he would be a risk to himself or others were he allowed to possess a firearm.

Judge Jeffrey Sutton wrote a separate opinion, joined by several judges, as to why this federal law must be struck down.

Keep in mind that Tyler is not demanding a gun today, he wrote. He is demanding only what Congress used to permit and what most States still permit: an opportunity to show that he is not a risk to himself or others.

After a lengthy discussion, Judge Sutton continued, If there is one thing clear in American law today, it is that the government may not deny an individual a benefit, least of all a constitutional right, based on a sky-high generalization and a skin-deep assumption stemming from a long-ago diagnosis or a long-ago institutionalization.

Tyler has presented plenty of evidence that he is just fine, Judge Sutton concluded.

Judge Karen Moorea Clinton-appointed liberal who is a perfect example of the sort of judge Hillary Clinton would be expected to nominate to the Supreme Courtwrote an energetic dissent, joined by several other liberal judges. In it, she argued that Tyler should never be allowed to own a gun, and that Congress has all the power it needs to ban gun ownership by many other types of Americans as well.

Judge Moore also argued for the dissenting judges that Heller should be interpreted as saying that the Second Amendment does nothing to block federal gun-control power here, a reading that is utterly incompatible with what Justice Scalia actually wrote.

Although the Cincinnati-based appeals court reached the right result, it did not do so for the right reasons.

In fact, the only judge who followed Justice Scalias famous originalist approach in Hellerthe method of interpreting the Constitution and all laws according to the original meaning of their words, a method always followed by Justice Clarence Thomas, and often followed by Justice Samuel Alito as wellwas Judge Alice Batchelder.

Judge Batchelder faulted both the lead opinion and the dissenting opinion for failing to give adequate attention to the Second Amendments original public meaning in defining the contours of the mental health exception. And it is that meaning, informed as it is by the history and tradition surrounding the right, that counts.

She continued that the other opinions debate over strict and intermediate scrutiny gives little more than a nod to the originalist inquiry. This shortchanging of the Supreme Courts approach in Heller (and many other cases) thereby radically marginalizes the role played by the text, history, and tradition of the Second Amendment, and it replaces them with a thoroughly modern (and judge empowering) regime of heightened-scrutiny review.

The appeals courts taking such a course here is a forbidden peregrination from the actual meaning of the Constitution into the realm of judicial policymaking. Instead of fixating on strict or intermediate scrutiny with only a glance at history, the Supreme Court in Heller and McDonald put the historical inquiry at the center of the analysis, not at the margin.

Judge Batchelder then explored sources from the time of the Constitutions writing, examining what they said about mental illness, including the relevant factor here of when a person is unable to distinguish good from evil, and could be deprived by the law of certain rights.

She then noted that such deprivations were not once-for-all, and cited numerous sources from the time the Second Amendment was adopted to show that if a person regained their reason and sense of morality, they were no longer regarded as mentally ill.

Judge Batchelder then concluded:

As has been mentioned many times today, the dangers presented by guns are real, frightening, and obvious. Those realities will continue to factor heavily in the scrutiny analysis. Less obvious to the contemporary judicial mind are the Founding-era fears of tyranny and defenselessness that provided the impetus behind the Second Amendment. Whether the Founding generation struck a wise balance in ratifying that amendment is perhaps debatable. What is not debatable is that we federal judgesare neither philosopher kings empowered to fix things according to the dictates of what we fancy is our superior insight, nor rubber stamps, approving whatever laws the legislatures of this country happen to pass. We are bound, rather, by our oath to uphold and defend the Constitution, and we must therefore show restraint when that document restrains us and be active when it commands action.

As important as the Sixth Circuits Tyler decision is, that is not the most newsworthy aspect of this case. Because now a federal appeals court has struck down an Act of Congress on constitutional grounds.

That means the Obama administrations solicitor general will now petition the U.S. Supreme Court to grant certiorari to review this case. Under these rare circumstances, it is virtually 100 percent certain that the justices will grant review and hear the case.

That means that the Second Amendment will be back before the Supreme Court in 2017, after a ninth justice has been confirmed to replace Scalia. The Second Amendment has survived twice at the Supreme Court over the past decade, both by only 5-4 votes.

One of the ways that the justices could rule in favor of the federal government would be to overrule Heller, and hold that the Second Amendment does not apply at all to private citizens. [The leftist view of the Second Amendment is that its only meaning is that the federal government cannot stop state governments from arming their National Guard (i.e., militia) units with guns.]

So declarations from Donald Trump and Mike Pence that gun rights are in danger is no longer hypothetical. It is now certain. If Hillary Clinton wins the presidency, the Second Amendment can be effectively erased from the U.S. Constitution.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.

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Supreme Court Second Amendment Case Could Overrule Heller ...

I genuinely want to be done with defending the Second Amendment from theregular barrage of its historically illiterate and inept detractorsthe people who say this amendment protects only the right of the militia to own weapons.

One friend and fellow gun rights activist said its best to just ignore such people, in the same way that you might ignore people who say triangles have four sides or that the Sun orbits the Earth. It is tempting to just stop engaging the dopeswho simply refuse to consider basic, objective historical facts.

But I actually think this might be a bad strategy, as it may allow the debunked and nonsensical militia reading of the Second Amendment to gain ground. With a Hillary Clinton presidency and Supreme Court on the way, we need an American population that is historically knowledgeable. That means fighting back against the corruption of American knowledge.

Anti-gun folks will cheerfully exploit (and in many cases encourage) the ignorance of the American body politic to get what they want. It is important to push back against that wherever and whenever possible. By way of example: at the Huffington Post this week, Daryl Sneath, a recreational grammarian, is trying very hard totake advantage of American historical ignorance:

One of those things [the Framers]knew about is the comma, the only purpose of which is clarity. Doubtless the writers were acutely aware of this grammatical truism (despite their apparent affinity for complex diction) when they drew their collective stylus southward (certainly aware too of that symbolic direction) making the little mark immediately following the phrasethe right of the people to keep and bear arms. As such, the subject of the predicateshall not be infringedis clearly notthe right of the people. No subject is ever separated from its predicate by a comma alone. Put more plainly, the principal clause (or declaration) of the whole amendment is this:A well regulated militia shall not be infringed.The middle bit modifies the main.

Leaving aside the dubious grammatical reading, as well as the utter travesty of ahistorical non-engagement with contemporaneous eighteenth- and nineteenth-century primary sources, just marvel at this: A well regulated militia shall not be infringed. What would such a right evenmeanin the context of extant constitutional structure and precedent? It would actually meannothing.

Sneath seems to suggest that the Second Amendment provides some sort of bulwark to protect state militias against congressional infringement. But this is objectively, factually false: Congress hascompletecontrol over state militiasthe federal governmentcan organize and abolish the militiawhenever itfeels like it, and for whatever reasonand no serious historical scholar has ever suggested that the Second Amendment somehow circumscribes this congressional power in any way. Put another way: Sneath is implying that the Second Amendment prohibits Congress from doingthe very thing Congress is fully empowered to do.

I am genuinely curious: is there any other constitutional right, or any other constitutional amendment, that is so consistently and so aggressively handled with such base and inexcusable stupidity, on so regular a basis, and on such an industrial scale?I am not sure. You dont usually see arguments of this idiotic magnitude when it comes to, say, the Fourth Amendment, or the Sixth. You certainly see dumb interpretations of the First Amendment, but thats usually a matter ofdegree, notkind:you will have people arguing that the First Amendment doesnt protect hate speech, for instance, but nobody ever argues that the First Amendment only applies to state governments, say, rather than to individual members of the body politic.

Only the Second Amendment is subject to such illiterate and ahistorical analyses. Onceyou realizethat, you can fully graspwhy: many people simply do not like guns, and they will lieor else keep themselves deliberately ignorantto prevent other people from having them.

This is not an isolated incident: anti-gun folks are very happy to resort to falsehoods to advance their cause. Recently the National Rifle Association put out an ad that claims Hillary Clinton doesnt believe in your right to keep a gun at home for self-defense. This is entirely true, but Glenn Kessler over at the Washington Post calls it false:

Clinton has said that she disagreed with the Supreme Courts decision inHeller, but she has made no proposals that would strip Americans of the right to keep a gun at home for self-defense. Clinton is certainly in favor of more gun regulations and tougher background checks, and a more nuanced ad could have made this case.Conjuring up a hypothetical Supreme Court justice ruling in a hypothetical case is simply not enough for such a sweeping claim.That tips the ads claim into the Four-Pinocchio category.

This is just a shameless mess.As I have argued before, Clintons disagreement with the Supreme Courts ruling inHelleris anunequivocal rejection of the right to keep a gun at home for self-defense.That is the very rightHellerdecided in favor of!To be againstHelleris to be against the individual right to own firearms. This is not up for debate.

Now, Clinton claims she merely disagrees withHellerinsofar as she believes cities and states should have the power to craft common-sense laws to keep their residents safe. But this is nonsense:Hellernot onlyallows for such laws, itexplicitly authorizes them.Given that Hillarys justification for opposingHelleris meaningless, we must assume she opposes it for its core substancenamely, that it affirms the individual right codified in the Second Amendment.

In other words, Hillary Clinton wants to take your guns away. Shes been honest about it; why cant our fact checkers?

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Second Amendment: How Does It Work? Left Has No Idea

Donald Trump keeps saying that Hillary Clinton wants to essentially abolish the Second Amendment. But the media fact checkers are having none of it. Last week, CNN called his accusation persistent and false. At the same time, a Washington Post editorial also called the claim absurd.

In his analysis for CNN, Eric Bradner acknowledges Clintons support for many different types of gun control -- a 25 percent tax on handguns, an assault weapons ban, repeal of laws allowing permitted concealed handguns, and background checks on the private transfer of guns. Clinton also has supported increased fees and a variety of regulations that her husband imposed. Thanks to Bill Clintons regulations, the number of licensed firearms dealers from 248,155 in 1992 to 67,479 in 2000 -- a 73 percent reduction.

The media picks and chooses when to take Clinton at her word. CNN pointed to a recent Fox News Sunday appearance where Hillary Clinton claimed: "I'm not looking to repeal the Second Amendment. I'm not looking to take people's guns away." The Washington Post noted a statement from her campaign website about how gun ownership is part of the fabric of many law-abiding communities.

But in June, ABCs George Stephanopoulos pushed Clinton twice on whether people have a right to own guns. But that's not what I asked. I said do you believe that their conclusion that an individual's right to bear arms is a constitutional right? Clinton could only say: If it is a constitutional right . . . .

Similarly, in New York Cityin the fall, she told donors: The Supreme Court is wrong on the Second Amendment, and I am going to make that case every chance that I get. In Maryland in April, Chelsea Clinton promised that her mom would appoint to the Supreme Court justices who would overturn past decisions that struck down gun-control measures. But the only lawsthat the Supreme Court evaluated were complete gun bans and a law that made it a crime to use a gun.

Washington, D.C., had a complete handgun ban in place until 2008. It was also a felony, punishable by five years in prison, to put a bullet in the chamber of a gun. This amounted to a complete gun ban on using guns for self-defense. The U.S. Supreme Courts ruling in District of Columbia v. Heller struck down that ban.

Clinton told Stephanopoulos her opinion of this ruling: I think that for most of our history, there was a nuanced reading of the Second Amendment until the decision by the late Justice Scalia. She continued, There was no argument until then that localities and states and the federal government had a right, as we do with every amendment, to impose reasonable regulation.

Clinton went on to talk about her push for expanded background checks, an issue that was irrelevant to Scalias decision in Heller. Instead, the question is why was D.C.s local gun ban a reasonable regulation. Why should people be imprisoned for five years for defending their families?

In McDonald v. City of Chicago (2010), Supreme Court Justice Stephen Breyer wrote in his dissent: "I can find nothing in the Second Amendments text, history, or underlying rationale that could warrant characterizing it as fundamental insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes. Ruth Bader Ginsburg and Sonia Sotomayor signed on to Breyers opinion.

Breyer and Ginsburg were both appointed by President Bill Clinton. Sotomayor was Obamas first nominee to the Supreme Court. Obamas second nominee, Elana Kagan, would clearly have voted the same way had she been on the court at the time of McDonald. Indeed, Kagan served in Bill Clintons administration and helped lead the Presidents gun control initiatives.

The Washington Post dismisses all this talk about the Supreme Court by saying that appointing Justices to the court would not be anything like abolishing an amendment, which no court can do. And it is true that the court cant simply remove the amendment from the Constitution. But the media is appearing to be deliberately obtuse. If the court reverses Heller and McDonald and changes its interpretation of the Second Amendment as Hillary promises, what will really be left of the Second Amendment?

The media might not like to admit it, but The War on Guns is real. If Hillary wins in November, she will appoint Scalias successor and the Supreme Court will overturn the Heller and McDonald decisions. Make no mistake about it, the government will again be able to ban guns. Her claim that she isn't looking to take people's guns away is not consistent with her promise to overturn existing Supreme Court decisions.

John R. Lott, Jr. is a columnist forFoxNews.com. He is an economist and was formerly chief economist at the United States Sentencing Commission. Lott is also a leading expert on guns and op-eds on that issue are done in conjunction with the Crime Prevention Research Center. He is the author of nine books including "More Guns, Less Crime." His latest book is "The War on Guns: Arming Yourself Against Gun Control Lies (August 1, 2016). Follow him on Twitter@johnrlottjr.

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Trump foes miss the mark on Clinton's Second Amendment ...