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Thursday, June 26, 2008

Post Heller Analysis

Today, the Supreme Court, in a 5-4 decision, overturned the D.C. gun ban.

The Supreme Court ruled Thursday that Americans have a constitutional right to keep guns in their homes for self-defense, the justices' first major pronouncement on gun control in U.S. history.

The court's 5-4 ruling struck down the District of Columbia's 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision went further than even the Bush administration wanted, but probably leaves most federal firearms restrictions intact.

While this decision is a victory for gun rights, it is still unclear just how much effect on the entire issue of gun rights. Here is an interesting post from SCOTUS blog.

If the Supreme Court’s historic ruling on gun rights brings about, as the dissenters said, “a dramatic upheaval in the law,” perhaps that was enough of a task to perform for one day. And, in fact, Justice Antonin Scalia’s opinion for the Court conceded that the ruling in District of Columbia v. Heller was but a first step, saying: “Since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.” And it definitely did not.

Still, it is remarkable how much was left undecided, and, therefore, how wide-ranging the post-Heller litigation is going to be. It is already apparent, from comments that the National Rifle Association was circulating among the news media Thursday, that the Nation will not have to wait long for those lawsuits — probably a flood of them — to begin. Justice Stephen G. Breyer’s dissenting opinion lists a wide array of gun control laws now in force that, one suspects, the NRA will soon challenge. Breyer, in fact, suggests that “the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States.”

What I have gathered from reading the commentary is that this decision will usher in an era in which the Supreme Court will visit and revisit the issue of gun rights. It is of course about time since the Supreme Court has said little over the last fifty years.

Gun control advocates base their arguments on several different areas. The first is that the second amendment does not guarantee an individual's right to own guns. Opponents say that the second amendment is a collective's right. The court was rather clear on this issue.

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

This has always in my opinion been a rather dubious argument against gun rights. First, here is the text of the 2nd amendment.

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.

The wording regarding the well regulated militia has created an opportunity for opponents of the 2nd amendment to claim that this right was created for military groups and not individuals. Of course, in my opinion, this is nonsense. Multiple times throughout the amendments the words "the right of the people" come up and always this protects an individual's right. In fact, the court alluded to the wording in the first amendment and essentially agreed with my argument on this issue.

The second argument is much murkier. Here, opponents say that while the second amendment protects an individual's right to bear it should be limited with "sensible" gun control legislation. Here is how Barack Obama verbalizes that argument.

Countering this argument requires examining the purpose of the 2nd amendment first. You will hear Barack Obama say that there is a tradition of owning guns in America and that Americans like to hunt. This is of course NOT the reason for the 2nd amendment.

The second amendment gives the citizens of this country the ability to protect themselves. The citizens must be protected from one of two entities 1) intruders or any other criminals looking to hurt them, whether in their homes or out and about and 2) from the government itself. The founders thought that the 2nd amendment was the last line of defense against a tyrannical government.

If citizens are protected by having a gun, they will protect themselves when the authorities aren't there and from the authorities themselves if they get out of line. This is the intent of the second amendment.

Generally, I have found so called "sensible" legislation as nothing more than an infringement on our constitutional right to bear arm. For instance, blanket banks on classifications of guns like bans on assault weapons are, to me at least, nothing more than an end run around the right to an individual to bear arms. The right to bear arms is supposed to protect against an invasion. How does the Supreme Court decide how much firearms are enough to protect against an invasion?

Thus, I believe in truly sensible curbs on the 2nd amendment, however those sensible curbs must not only truly be sensible, and most importantly, the curbs CANNOT infringe on the intention of the second amendment.

In conclusion, this decision upholds an individual's right to own arms, however it still leaves open the idea of "common sense" curbs.

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