Friday, November 23, 2007

More Guns, More Rights

As many are aware, the Nine on High (SCOTUS) have granted certiorari to review the case of District of Columbia vs. Heller, which challenges the District’s outright ban on handguns. Heller argues the District’s ban violates his Second Amendment right to bear arms. This will be the first time the Court addresses the scope and contours of the Second Amendment. Many are curious as to whether the Court will actually spell out the parameters of the Amendment, thereby applying it to the States, or if a narrower ground will be found for the decision. Both sides of the gun control debate are anxiously watching to see which way the Court will go. In this case, the Court will probably make a concrete decision and overturn the District’s ban.

The Second Amendment states – “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.”

Two points are important to the Court’s analysis of Heller. First, what does it mean for “the People to keep and bear arms”? The gun control lobby would have us believe this clause means the right of the States to outfit their militias (now National Guard) with weapons. Second, how would this right be “infringed”? A related question, and the greater issue, is whether the Court will extend the Amendment’s application to the States.

As to the first definition, the people’s right to “keep and bear arms” should be interpreted to mean every individual person possesses the right to own weapons and keep them at home. This phrase relates to a right of the “the People”. In other sections of the Constitution, “the People” has been interpreted to mean everyone, all of us, each individual in the United States. For comparison, the interpretations of “the People”, in the first and fourteenth amendments means individuals. In fact, in remarks to the Senate Judiciary Committee, Senator Orrin Hatch pointed out this glaring inconsistency of Constitutional mis-interpretation.

The gun control lobby’s argument is the Second Amendment does not apply to the individual, but to the State. The lobby would have us all put our collective heads in the sand and ignore both the plain words of the Amendment, but also the entire document in which it was included. The Second Amendment is included in the Bill of Rights; the section of the Constitution inserted by the Framers to ensure the federal government would not become too powerful (tyrannical). In many cases, the Framers have been given due credit for knowing what they were doing and what words they were choosing when the Constitution was drafted. Therefore, the Amendment’s words should be given their basic, simple, common sense meaning and people (individuals) are Constitutionally permitted to own weapons and use them in defense of their persons.

The second issue, pertaining to how the right could be “infringed” will be slightly more difficult for the Court to resolve. Heller is not the perfect test case because it arises within the District of Columbia. Thus, the Court will have to work in the 50 states, if they decide to overturn DC’s ownership prohibition. However, this is not too great an obstacle to overcome. The more important issue is whether the Court will invalidate the laws of the States which outright prohibit weapon ownership.

The trend in the States has moved toward more ownership. In the past 20 years, the number of States completely restricting gun ownership has decreased from 15 to 2 (Illinois and Wisconsin). The number of “may issue,” where a State agency has discretion to issue an owner’s permit has decreased from 26 to 9. Most interesting is the number of States requiring the State administrative agency to issue ownership permits with a “shall issue” law. Over the past twenty years, the number of States changing to “shall issue” has increased from 8 to 37! Considering the trend across the Union, complete and thorough restriction on the right to own is headed the way of the white buffalo.

The change in State statutes will be reflected by the likely decision by the Court. Most likely, the conservative bloc (Roberts, Scalia, Alito, and Thomas) will vote to strike down DC’s prohibition and leave the regulation issue to the States. The liberal bloc (Ginsburg, Souter, Stevens, and Breyer) will probably vote to uphold DC’s law in an effort to stem the tide of gun ownership. While Kennedy is the “swing vote”, I suspect he will join the conservatives, and support the right of the States to regulate, but not prohibit, weapon ownership.

The upshot of the Court's decision is the people will again have the ability to determine how their own rights are affected. If Professor Balkin is correct, then the people will have their work cut out for them to prevent the Hillary-crats from disarming our country. The Founding Fathers inserted the right to "keep and bear arms" in order to prevent the State from engaging in tyranny nanny-ism. Should the Court strike down DC's prohibition, the People should ensure the next government does not quickly reverse the Court through legislation.

1 comment:

Anonymous said...

yours is a very good analysis, however, I am not confident that Justice Kennedy will side with the conservative block. That's why the NRA was not behind this case...