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08/07/08
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April 07,
2008 The case concerns whether the District of Columbia’s ban on handguns violates the Second Amendment guarantee that “the right of the people to keep and bear arms, shall not be infringed.” Referring to the American Revolution, Justice Antonin Scalia noted that “tyrants took away the people’s weapons, not just those of the militia.” For the American settlers, Justice Anthony Kennedy added, “Wasn’t there a need for self defense against Indian attacks, robbers, wolves and grizzlies?” In recent years, Kennedy is the swing vote in close cases. The founders were not concerned with personal protection, insisted Walter Dellinger — solicitor general during the Clinton Administration, and now arguing for D.C.—but only with “bearing arms” in the militia. “Does the amendment have any effect today?” queried Justice Ruth Bader Ginsburg. “Only if a federal law restrained state militias,” Dellinger responded. So this “right of the people” has shriveled into a meaningless gesture exercised only by permission of the government. But the “exclusively militia” interpretation is only a facade. Those who deny this right of the people would be equally opposed to a robust state militia system in conflict with federal authority. The text of the Constitution already had a militia clause. As Kennedy noted, the preamble to the Second Amendment—“a well regulated militia, being necessary to the security of a free state”—supplemented that clause. “My view is that the amendment guarantees a general right to bear arms without reference to the militia.” And Scalia added that historically, English bans had been imposed on possession of arms by oppressed groups, such as Roman Catholics and Scottish Highlanders. Which “arms” are constitutionally protected? One test is whether the arms are of a type “commonly possessed” by the people. Dellinger tried to scare the court away from sanctioning handguns under this test, on the basis that it would also sanction machine guns, of which more than 100,000 are registered with the feds. Not an impressive number, given our population of 300 million. Solicitor General Paul Clement argued, on behalf of the United States, that the right is individual, but that the court should not decide whether the D.C. ban is unconstitutional. This “just don’t know” attitude may be explained by fears that the Justice Department’s prosecutions of citizens under this very ban for 30 years might be reopened. Clement also worried that voiding the ban would question restrictions on machine guns and armor-piercing ammo, but Chief Justice Roberts reminded him that the only issue is handguns. Justice David Souter found “keep and bear” to be a unitary concept “what is served by bear, if you can keep?” He quipped that “you do not bear arms to hunt; no one in the 18th century talked that way.” “Keeping” refers to possession in the home, Clement responded, and “bearing,” to carry. Jefferson sponsored legislation specifically referring to “bearing a gun” while hunting. Alan Gura presented the case for Dick Heller, the court security guard who lives in Washington, D.C. and protects judges with a handgun by day, but is not trusted with having one when he goes home. Justice Stephen Breyer queried how handguns had a militia purpose, and why was it not reasonable to ban them, given the high murder rate? “The handgun ban,” Gura responded, “weakens military preparedness.” Some seemed ready to scrap a militia arms test. “The second clause of the Second Amendment,” insisted Scalia, “goes beyond the militia—it is a right of the people. Why not acknowledge that?” Kennedy stated that a machine gun is more related to the militia than the handgun, but the latter is relevant to the homeowner. Stevens asserted that “only” two of the original states, Pennsylvania and Vermont, had arms guarantees referring to self-defense, and “all the others were for common defense.” Yet only two other states—North Carolina and Massachusetts—had an arms guarantee, and both accorded the right to “the people,” even though they referred to common defense purposes. As Gura pointed out, those provisions were interpreted to recognize self-defense. As is usual, the justices engaged in their own fencing match. “Look at the murder rate, the crime statistics,” anguished Souter. “All the more reason to allow homeowners to have handguns,” implored Scalia. Long guns, even though they must be trigger-locked and unloaded, would do fine for home defense, Dellinger insisted as the last word. He could remove the lock in three seconds, albeit in daylight. “And how long if you’re awakened at 3 a.m. and you reach for the lamp and your reading glasses?” Scalia asked, to general laughter. Justice Clarence Thomas asked no questions. But a decade ago, in Printz v. U.S., he wrote an opinion appearing to favor the individual-rights view. Looks like the Supreme Court is finally ready to recognize the Second Amendment as a real part of the Bill of Rights, and that D.C.’s ban is in big trouble. (Originally published by North County Times, used with permission.) [Editor's
Note: Since the right to life and liberty are properly recognized as "unalienable"
and "endowed by our Creator," just how do these people have
any power whatsoever to "allow" or disallow the means to preserve
those rights? This isn't about the safety of the people, it's about the
safety of the STATE and potential loss of control by those who have styled
themselves our masters. Slaves must remain unarmed...]
Stephen
P. Halbrook, Ph.D., J.D., is Research Fellow at The Independent Institute
in Oakland, Calif., and author of the forthcoming book, The
Founders' Second Amendment: Origins of the Right to Bear Arms, as
well as the books, That
Every Man Be Armed (Independent Institute) and Freedmen, the Fourteenth
Amendment, and the Right to Bear Arms.
Donald A. Downs is Professor of Political Science, Law, and Journalism at the University of Wisconsin, Madison, and Research Fellow at The Independent Institute.
Mike Moore is Research Fellow at The Independent Institute, former editor of The Bulletin of the Atomic Scientists, and author of the book, Twilight War: The Folly of U.S. Space Dominance.
John Semmens is a research fellow at the Independent Institute, a research project manager in the Arizona Department of Transportation Research Center, and contributing author to the Independent Institute book, Street Smart: Competition, Entrepreneurship and the Future of Roads, edited by Gabriel Roth.
S. Fred Singer, an atmospheric physicist, is Research Fellow at the Independent Institute, Professor Emeritus of Environmental Sciences at the University of Virginia, and former founding Director of the U.S. Weather Satellite Service. He is author of Hot Talk, Cold Science: Global Warming’s Unfinished Debate (The Independent Institute, 1997).
Dr. James L. Payne is Research Fellow at the Independent Institute and Director of Lytton Research and Analysis and author of numerous books, including A History of Force: Exploring the Worldwide Movement Against Habits of Coercion, Bloodshed, and Mayhem,and he has taught political science at Yale University, Wesleyan University, Johns Hopkins University, and Texas A & M University.
Ernest C. Pasour is Research Fellow at the Independent Institute, Professor Emeritus of Agricultural and Resource Economics at North Carolina State University, and author of Plowshares & Pork Barrels: The Political Economy of Agriculture (with Randy Rucker) and Agriculture and the State from the Independent Institute.
Randal R. Rucker is Research Fellow at the Independent Institute, Professor of Agricultural Economics and Economics at Montana State University, and co-author (with E.C. Pasour, Jr.) of Plowshares & Pork Barrels: The Political Economy of Agriculture.
Charles V. Peña is Senior Fellow at the Independent Institute as well as a senior fellow with the Coalition for a Realistic Foreign Policy, senior fellow with the George Washington University Homeland Security Policy Institute, and an adviser on the Straus Military Reform Project. Full Biography and Recent Publications
William Ratliff is Adjunct Fellow at the Independent Institute, Research Fellow at Stanford University's Hoover Institution, and a frequent writer on Chinese and Cuban foreign policies.
Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute and Assistant Editor of The Independent Review. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, Principal Defense Analyst at the Congressional Budget Office, Evaluator-in-Charge (national security and intelligence) for the U.S. General Accounting Office, and Investigator for the House Foreign Affairs Committee. Full Biography and Recent Publications
Jonathan J. Bean is Research Fellow at the Independent Institute, Professor of History at Southern Illinois University, and editor of the forthcoming book, Race and Liberty: The Classical Liberal Tradition of Civil Rights.
Anthony
Gregory is a Research Analyst at The Independent Institute. He earned
his bachelor's degree in American history from the University of California
at Berkeley and gave the undergraduate history commencement speech in
2003. In addition to his work with the Independent Institute, he regularly
writes for numerous news and commentary web sites, including LewRockwell.com,
Future of Freedom Foundation, and the Rational Review.
Dominick T. Armentano is professor emeritus in economics at the University of Hartford (Connecticut) and a research fellow at The Independent Institute in Oakland, Calif. He is author of Antitrust & Monopoly (Independent Institute, 1998).
Alvaro Vargas Llosa is director of The Center on Global Prosperity at The Independent Institute. He is a native of Peru and received his B.S.C. in international history from the London School of Economics. He is widely published and has lectured on world economic and political issues including at the Mont Pelerin Society, Naumann Foundation (Germany), FAES Foundation (Spain), Brazilian Institute of Business Studies, Fundación Libertad (Argentina), CEDICE Foundation (Venezuela), Florida International University, and the Ecuadorian Chamber of Commerce. He is the author of the Independent Institute books The Che Guevara Myth and Liberty for Latin America. Full biography and recent publications.
Robert
Higgs is Senior Fellow in Political Economy at The Independent Institute,
author of Against Leviathan and Crisis and Leviathan, and editor of the
scholarly quarterly journal, The Independent Review. Click
here for a bio on Dr. Higgs, the noted economist and historian.
William Marina is Research Fellow at the Independent Institute in Oakland, Calif., and Professor Emeritus of History at Florida Atlantic University.
David
T. Beito is a Research Fellow at The Independent Institute, Associate
Professor of History at the University of Alabama, and co-editor of
the book, The
Voluntary City: Choice, Community and Civil Society. For further articles and studies, see the Center on Peace & Liberty and OnPower.org.
For further information, see the Independent Institute’s book on wasteful farm programs, Agriculture and the State: Market Processes and Bureaucracy, by Ernest C. Pasour, Jr.
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