07.01.2008 0

Gun Rights 101

  • On: 07/16/2008 14:05:32
  • In: 2nd Amendment
  • The Second Amendment has never been in graver danger with the Supreme Court having just heard a case – Heller v. District of Columbia – to determine whether individuals do indeed have a right to own firearms.

    Now, we know that D.C. has some of the most troubled schools in the nation, but we have to wonder: can anyone in Washington read and write?

    Surely, someone, somewhere in the city of D.C. knows the difference between a dependent clause and an independent clause. To give them some credit for their intellects, we’ll just assume that theirs is a case of willful ignorance of English 101.

    Does the Second Amendment, which states that “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,” mean that individual citizens have a right to carry guns? Or that just State militias do?

    That this is even up for debate is startling. But nonetheless, for everyone’s edification, the independent clause of the Amendment is “the right of the people to keep and bear arms, shall not be infringed,” and the dependent clause is “A well-regulated militia, being necessary to the security of a free state…” That means that you cannot have a “well-regulated militia” with “the right of the people to keep and bear arms” being infringed.

    Professor Randy Barnett had a good analysis of what’s at stake in this case in yesterday’s Wall Street Journal in which he notes that this case will be decided on textual grounds (i.e. what the Second Amendment actually means):

    “[B]oth sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual ‘right to keep and bear arms’ that ‘shall not be infringed.’ In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intention of the Framers of the Second Amendment was to protect the continued existence of ‘a well regulated militia,’ the right it protects was limited to the militia context.

    “So one thing is certain. Whoever prevails, Heller will be an originalist decision.”

    That may be good news, but if the Supreme Court rules in favor of gun-control laws, it would be directly at odds with the original intent of the Framers and the literal meaning of the Amendment. As the National Rifle Association notes in its Amicus Curiae brief on behalf of Heller:

    “Throughout the Constitution, individual rights are guaranteed to ‘the people’; when the Framers refer to a power of a State, they refer, unsurprisingly, to ‘the States.’ … The Framers also sought to ensure a well-regulated militia by guaranteeing private ownership of firearms, as civilian ownership and use of firearms would confer experience and arms invaluable to militia service, and a right of private ownership would prevent the federal government from effectively disarming the populace by declining to organize the militia.”

    As it relates to the Founders’ intent in formulating the Second Amendment, the NRA also refers to and then quotes the framer of the Bill of Rights, James Madison:

    “[I]n the Federalist No. 46, [Madison] specifically relied upon an armed citizenry to discount the possibility of federal oppression. After noting that the armed body of the American people would greatly outnumber any possible federal standing army, Madison went on to observe:

    “‘To [the federal army] would be opposed a militia of amounting to near half a million of citizens with arms in their hands, officered by men chosen among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence…’

    “Federalist No. 46 at 299 (James Madison) (C. Rossiter ed. 1961). Madison then referred immediately to ‘the advantage of being armed, which the Americans’—not merely some select body of them—‘possess over the people’—again, a reference to the general populace—‘of almost every other nation * * *.’”

    There can be no clearer articulation that the authors of the Bill of Rights intended for citizens to arm themselves as the necessary prerequisite for the State’s and the People’s security.

    ALG Prediction: This will probably be a 6-3 decision, with Roberts, Scalia, Kennedy, Alito, Thomas, and Souter siding with the actual meaning of the Amendment. The Supreme Court, when given a case to be decided on textual grounds, can only come down on the side of Heller, whose individual right to bear arms is most certainly protected by the Second Amendment.

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