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Earlier this week, the Supreme Court of the United States heard arguments dealing with whether or not individuals have the right to own firearms.
Throughout history, there has been some controversy over whether or not the Second Amendment to the Constitution does indeed give that right to the people.
The text of the Second Amendment reads 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."
Some scholars have claimed that this only gives states the right to organize militias for self-defense. However, it seems that many of the justices are leaning toward the alternate view.
The issue currently in question is a ban on handguns in Washington, D.C. Some of the members of the court were skeptical that the law could be upheld in light of the Second Amendment.
Chief Justice John Roberts was quick to counter the militia-related view of the text. He rhetorically asked, "If it is limited to state militias, why would they say 'the right of the people'?"
A key swing justice, Anthony Kennedy, also hinted at viewing the amendment as an individual right. He claimed that "there's a general right to bear arms quite without reference to the militia either way."
Along with Justices Clarence Thomas, Samuel Alito and Antonin Scalia, Roberts and Kennedy will likely form a majority of the court that will potentially overturn D.C.'s longtime gun ban.
Furthermore, a precedent that recognizes an individual's right to own a gun will be set like never before. Without question, the intent of the Bill of Rights is to address certain indisputable rights that are meant for the individual. At the time of the ratification of these amendments, many people in the young U.S. owned firearms, and that individual right was never in dispute. Clearly, the intent of the Founding Fathers was to allow people to own firearms for self-defense and other purposes.
It does not make sense to ban firearms in the name of reducing crime. If a criminal will break the law using a gun, that person will not worry about possessing a firearm and violating the ban.
However, law-abiding citizens will be the victims, and those people who would never commit a crime with a gun will respect the law.
So in essence, only people willing to break the law anyway will possess guns.
I hope that a few of the other justices will see the Second Amendment as a clear individual right and establish a strong precedent that is plainly laid out in the Constitution.
This case should be open and shut. However, political persuasions have taken hold of Supreme Court Justices in recent decades, and common sense has been thrown out the window. With any luck, the members of the court will see this as an obvious right that the people have and overturn the ban.
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None of the Bill of Rights Amendments confer ANY power to the federal government. Please read the first phrase - "Congress shall make No Law..." The right to keep and bear arms is from God and unalienable - see the Declaration. AND the courts cannot make law see Article I, Section, 1, Cl. 1.
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To William H. Huff: I'm not so sure I understand your comments. "Congress shall make no law" is taken way out of context. The first amendment reads that no laws shall be made with regard to restricting or endorsing religion. As for the courts, they are not legislating. They are deciding whether D.C.'s legislation is unconstitutional. If it is, it must be overturned.
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Quite right Dan; this is an enjoyable, accurate and well written column. Nice job!
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Jason, I think the point Mr. Huff is trying to make is that the Bill of Rights is a specific set of limitations which apply directly and exclusively to the federal government. This is not ENTIRELY true, although it is specifically true for the first, 9th, and 10th amendments. You are right in pointing out here though that, in this case, the court is not, in fact, legislating - the SCOTUS is reviewing a law to assess its validity and legality under the COTUS. There are a lot of instances where the SCOTUS has overstepped its bounds and drafted what is tantamount to new legislation with its decisions (See Griswold v. Connecticut, Roe v. Wade, and any other right to privacy case you can think of). Judicial activism does need to be checked - but this case isn't one of judicial activism.
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It will be interesting to see if the strict constructionists Thomas, Alito and Scalia, become activist judges in this case and impose the Federal Government will on the States. We start with the premise that you have the right to do anything. Then, the Federal Government, through the Constitution and Bill of Rights, by defining what you can and can't do, simply restrict all rights with parameters that say "you can do this" "you can't do that" or "the government can do this" or "the government can't do that." The statement "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" is both prohibitive and allowing. First, it defines the right to create a "well regulated Militia" and why; "being necessary to the security of a free State" and how it may be created; "the right of the people to keep and bear arms" and how it may be sustained; "shall not be infringed." The Constitution doesn't create the personal right to own firearms. That existed before the Federal Government was created. The Federal Government, through the Constitution, limits that right by mentioning it only in the context of a well regulated Militia. Thus, a strict constructionist reading, leaves the individual right to bear arms to the States. Creating a "federal right to bear arms" through the Constitution is the equivalent of creating a "federal right to privacy" through Roe v. Wade. Let's hope that these strict constructionists don't become activist judges.
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The Bill of Rights does not simply restrict the Federal Government from infringing, and the 14th Amendment points this out. It is clear that the states must also respect the rights of the People as recognized in the Bill of Rights. Someone more clever than I made a wonderful analogy that points out the fact that it is our view of the object in question, and not the phrasing, that make the 2nd Amendment so controvercial. Consider if it said, "An educated electorate, being necessary to the security of a free State, the right of the people to own and read Books, shall not be infringed." No one would question whether or not you could own 1 book or 100, whether you could read it at home or in public, or how many pages a book could have. It would be clear to all that this was an individual right to own and read as many books as you wanted, and that the government couldn't pass any law to restrict it. The fact that our education system and culture have taught two generations of children that guns are evil does not change the facts. Guns are tools, and that's all. A car is more deadly. In 2005, firearms were used in only 9% of all violent offenses (US DOJ), out of more than 1.8 million violent offenses. So I ask: if guns are causing all the violent crime, why are they used in such a small percentage of those violent offenses? Perhaps it is a violent criminal problem we have, and not a gun problem.
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Kyle, I'm not sure I agree with you. The Bill of Rights enumerates rights that the individual people of our country implicitly have. It would be contradictory for a state to deprive its citizens of these rights which are considered "inalienable" by the federal government. I realize that the Constitution is a federal document, but am I wrong that it should and does "outrank" any state document that falls within its scope?
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