Tuesday, June 29, 2010

Giving us back a right that was never theirs to take away

Yesterday the Supreme Court handed down a ruling, by a five to four margin, that extends the Heller decision that recognizes the Second Amendment as an individual right nationally (rather than just in the unique legal situation of Washington, D.C.). For those of us who are supporters of the Second Amendment, this decision was a “Well, duh!” decision, an obvious recognition of an obvious right. That the Second Amendment is an individual right and not a reference to the National Guard is not as intuitive to others who have an irrational fear of guns, or more specifically an irrational fear of law abiding citizens owning guns.

That raises the question, is the Second Amendment an individual right as affirmed by the Supreme Court (and liable to be “unaffirmed” if one of the five majority votes changes their mind or is replaced) or was the Second Amendment never intended to preserve the individual right to own firearms. First, what does the Second Amendment say?

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.

That is admittedly a little clunky in terms of the language employed. Some people emphasize the first part “A well regulated Militia” and others the second part “the right of the people to keep and bear Arms”. So what did the Framers intend? To answer that let’s look at the other 9 articles in the Bill of Rights to give us a picture of what the framers had in mind.

The first amendment clearly is an individual right. It protects the right of individuals to practice religion without governmental approval, as well as the right of the individual to assemble peaceably and to take grievances to the government. Even the right of the press to be protected is a right that is given to an entity outside of the Federal government.

The third amendment prevents the government from quartering soldiers in your home.

The fourth amendment protects individuals from illegal search and seizure.

The fifth amendment deals with due process for individuals under the law.

The sixth amendment gives individuals the right to a criminal trial by jury as well as guaranteeing a speedy trial in his or her own locale.

The seventh amendment likewise deals with trials, but in this case has to do with civil trials where the amount in question is more than $20.

The eighth addresses the amount of bail required, that it not be excessive as well as prohibiting cruel and unusual punishment.

The ninth amendment protects individual rights not specifically spelled out in the Constitution, i.e. there are other rights that are not spelled out in the Constitution that are nonetheless the rights of the people.

The tenth amendment is more of a blanket amendment that defers all powers not specifically delegated to the Federal government to the states and the people. In an age of a Federal government that has placed this country into debt to the tune of more than $10 trillion dollars in spending on areas that are not Constitutionally mandated to the Feds, the Tenth Amendment might as well be stricken from the Constitution because it is by and large ignored.

What is the big, overall theme of the Bill of Rights? It is clearly a protection for individuals against the encroaching power of the government, protecting individual rights while at the same time limiting the power and scope of the government. The Bill of Rights is a check against a government that overreaches by spelling out very specific rights that we enjoy in this country. It is also clear that the Bill of Rights are individual rights, not rights of states or municipalities. So when read plainly, the Second Amendment clearly is protecting the right of the people, i.e. individual citizens, to keep and bear arms. This is consistent historically and contextually and as such the only rational interpretation is that the Second Amendment was put in place specifically to protect the right of citizens to own private firearms, an ownership that was pivotal in the independence that led to the drafting of the Constitution in the first place. The framers knew full well that an armed citizenry overthrew the mighty British army and subsequent tyrants have recognized this as well. There is no surer sign of a tyrannical government than the willingness of that government to disarm the populace.

What is sad, as many commentators have already pointed out, is that four justices who serve for life on the United States Supreme Court based on their keen judicial minds saw fit to vote against the clear language and intent of the Constitution on this issue in order to appease their own ideological prejudices. The people of the United States shouldn’t have to come before the Court, hat in hand, to beg it to recognize the very rights that are specifically laid out in the Constitution and are in place by the express design of that Constitution. This nation wouldn’t exist without the Constitution and the Constitution was expressly drawn up to limit the power of government, not to dole out minor rights to the people at the whim of the government. Our government is supposed to serve by the consent of the governed, not the other way around.

One can only assume that the “reasonable limits” language in the decision will be clung to opponents of the Second Amendment and will lead to years of laws designed to challenge the boundaries of this decision. There is nothing more frightening to a certain segment of the population than law abiding citizens, the ones who grant the government the power to govern, possessing a firearm. The people that I know who are law abiding gun owners are the least likely people to commit a crime with a firearm and yet for some people they are a dangerous group that needs to be controlled, regulated and ultimately disarmed.
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