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The Right of the People...

by Conservativity Staff,
Originally Posted: 3/19/2008 11:38:20 AM

"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"  U. S. Const., Am. 2.

March 18, 2008 may well be an historic day, where the Supreme Court reverses a long trend of eroding the rights for which our forefathers have shed their blood for over 220 years.  On that day, the justices heard arguments both for and against the Washington, D.C., total ban on handguns.  If the justices’ questions to the solicitors appearing before them were any osrt of a signal as to their preliminary decisions on the issue, a watershed moment has been reached!

Those who wish to strip the people of the right to own weapons have long argued that the "A well regulated militia..." portion of the amendment restricts gun ownership to militias and denies such a general right to the people.  Four justices (Roberts, Alito, Scalia and Kennedy [considered a swing vote on this issue]) spoke plainly enough to telegraph that the Supreme Court will, at a minimum, declare that the Second Amendment states that the people have the right to bear arms, independent of the militia clause.  To quote the "swing voter" Justice Kennedy, "In my view, there’s a general right to bear arms quite without reference to the militia either way."  Justice Kennedy speaks sense.  As he pointed out, the Second Amendment concerned the right to bear arms for "the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that."  Even the left-leaning liberal stalwart, Justice John P. Stevens, made comments regarding the overbreadth of the DC handgun ban, noting that a ban on weapons in university dormitories might pass muster, but contrasting that with the broad and comprehensive ban on handguns that is in force in the nation’s capital.  That ban was enacted as a crime-control measure, but crime has risen, including gun violence, both in count and per capita, since the ban was enacted over 30 years ago.

This is a major victory.  Many Federal circuits, the Seventh and ninth coming immediately to mind, have explicitly held that there is no individual rigght to bear arms.  In 1939, the Superme Court itself said something similar.  These holdings are very bad law; reversing them would be a major victory not just for gun rights, but, more importantly, the sound policy of originalism.  Conservativity is on record as supporting a broad and strong right to own and bear arms.  We therefore celebrate this development.

However, this is only half of the fight.  The court could adopt the "individual rights" holding that the plain text of the amendment dictates, but then support the notion that "reasonable" restrictions may be placed upon that right.  To me, that means my right is "infringed."  The Solicitor General argued that "strict scrutiny," meaning that any burden on the ruight to bear arms would be subject to harsh review, as, for example, restrictions on free speech would be reviewed, is not necessary, and argued that the government should have the ability to enact laws banning machine guns, felon weapons possession, and the like.  Again, Conservativity strongly supports strict scrutiny on any restrictions of our Second Amendment rights.  We do not believe that State-issued permits, registration, cooling-off periods, weapons-class bans (except for artillery, WMDs and bombs) or anything else designed to ensure that the government could impose any sort of totalitarian rule because it is substantially better armed than the people could ever happen.

In the time when the Second Amendment was adopted, the people had the ability to arm themselves well enough to be a match for the military.  It’s how we won the American Revolution.  The Second Amendment is the People’s Constitutional check upon the entire government created by that same Constitution.  We need to retain that check.  It’s the ultimate form of personal protection afforded to us by our guns.