U.S. Supreme Court Supports Gun Rights!
by Boge Quinn
June 26th, 2008
Today, June 26th, 2008, is a red-letter day in the history of the United States. For the first time, the Supreme Court has issued an opinion directly relating to whether the Second Amendment deals with an individual or collective right, and whether Government has the right to ban individual ownership of firearms, handguns in particular.
In a predictably narrow (five to four) majority, the Court has held that the Second Amendment affirms an individual right to own firearms, and that Government may not infringe upon that right to the extent of banning handguns within its jurisdiction. Assenting were Justices Scalia (who wrote the majority opinion), Roberts, Kennedy, Thomas and Alito, and dissenting were Justices Stevens, Souter, Ginsberg and Breyer. Justice Stevens filed the dissent, which was joined by the other dissenting Justices.
At issue was the long-standing and draconian District of Columbia handgun ban. The D.C. law forbade carrying handguns; required registration of any handgun legally owned before the 1976 ban took effect; required any registered handgun to be kept unloaded and either disassembled or disabled by use of a trigger lock; and prohibited ownership outright of any handgun acquired after the ban took effect. This constituted an outright ban on personal handgun ownership. Respondent Dick Heller, a D.C. Special Policeman, had sought to obtain the city's permission to exercise his right under the Second Amendment to keep a handgun in his home, and was refused; he therefore filed suit seeking to overturn both the ban on handgun ownership, and the trigger-lock requirement because its effect was to prohibit having a registered functional firearm in the home. The District Court dismissed the suit, but the D.C. Circuit Court reversed, holding that the Second Amendment protects an individual right to own firearms, and that the D.C. law violated that Constitutional right, both by prohibiting ownership and by requiring that legally-owned guns be disabled even when required for self-defense.
The Supreme Court of the United States upheld the Circuit Court's decision, holding that the Second Amendment protects an individual right to own firearms unconnected with service in a militia (thus disarming the common Liberal misconception that the Second Amendment had to do with the establishment of a militia), and to use firearms for traditionally-lawful purposes such as self defense (thus disarming the common Liberal misconception that the Second Amendment had to do with hunting). The majority opinion does hold that the Second Amendment is NOT unlimited, and specifically states that the Court's opinion does not remove restrictions such as banning possession of firearms by the mentally ill or by felons; banning carrying weapons in "sensitive places" such as schools and government buildings; or laws imposing conditions and qualifications pertaining to commercial gun sales (it is worth noting here that INDIVIDUAL gun sales are not mentioned, meaning individual transfers are neither marked as ripe for regulation nor explicitly protected). The Court further held that the D.C. ban on handgun ownership and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment because the D.C. law makes illegal an entire class of firearms commonly used for self-defense, and further requires that any legally-owned defensive firearm be rendered useless.
Justice Scalia's opinion is brilliantly-rendered and well-reasoned in that it asserts the Second Amendment as an individual right, interprets the Second Amendment in the same way that other individual rights are interpreted, and views it through the lens of history. As he states, in all six other provisions that mention "the people", the term unambiguously refers to all the people, not a particular group, such as a militia. He furthermore makes a bold and brilliant argument against those who hold that only the types of arms made during the 18th century are protected by the Second Amendment, stating that the Second Amendment protects use of modern firearms just as the First Amendment protects modern forms of communications and the Fourth Amendment applies to modern forms of police search.
Scalia also affirms that the Second Amendment applies not only to our right to "keep" (own) arms, but also to our right to "bear" (carry) arms. He further argues for the majority that this also does NOT apply to carrying arms in a military sense, but that our right to carry arms for personal defense must be protected; this is a provision of the Second Amendment that has all-too-often been ignored, even by people on the Constitutional side of the issue, and is truly a cause for rejoicing.
Scalia also correctly, and refreshingly, asserts that the rights recognized by the First, Second and Fourth Amendments were NOT established by the Bill of Rights, but were PRE-EXISTING rights which were simply codified by the Bill of Rights. This is further supported by Scalia's citing of historical fact, both before and after the drafting and ratification of the Bill of Rights; from the arguments leading up to ratification, through the illegality of the widespread disarming of blacks after the Civil War, through the U.S. vs. Miller case, through modern attempts at infringement such as the D.C. gun ban, Scalia's arguments are well-ordered and brilliant.
Scalia concludes the majority opinion by acknowledging that there exists a problem of handgun violence in the United States, and by further acknowledging that there also exists a variety of legal tools for addressing that problem, including some measures for regulating handguns. But, he asserts, "the enshrinement of Constitutional rights necessarily takes certain policy choices off the table". He then brilliantly states, in conclusion, "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct." Amen.
Justice Stevens' dissent predictably argues that the Second Amendment does not define an individual right, but a collective right of the militia. This is an argument that has been feebly postulated for decades, and it is an argument that has now been shot-down in impressive fashion by the majority opinion of the Court, which now represents the Law of the Land.
I strongly suggest you read the entire opinion/dissent. It is a long read, but certainly not a tedious one, as is so often the case with Court papers. Scalia's opinion is downright riveting in its scope and historical acumen, while Stevens' dissent is somewhat predictable. The document is available in PDF format here.
Finally, as distasteful as it may be to inject politics into an historical event such as this, it is further worth noting, to give credit where credit is due, that without President Bush's nomination and resolute support of Justices Roberts and Alito to the Court, the outcome might have been very, very different. A change of ONE vote on the Court would have enshrined the extremist D.C. gun ban as a model to be followed across the country, and the rights of all law-abiding citizens would have suffered immeasurably as a result. Like him, love him or hate him, today will stand as a prime example of President Bush's worth to history. Imagine what an "Obama Court" might have ruled, and remember what your imagination rendered come November.
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