Armed for Liberty
Alan Gura and Robert A. Levy
Two hundred years ago, the rights secured by the first 10 amendments were so widely accepted that many of the Framers considered a Bill of Rights unnecessary. Yet the Anti-Federalists wisely insisted on a Bill of Rights, fearing that fundamental tenets of individual liberty might later be deemed inconvenient, impractical, or even dangerous.
The Constitution’s words have since weathered constant assaults from miscreants who would suppress speech, control our private lives, or deny due process — usually in the name of public safety and the greater good.
The prohibitionist attack on Second Amendment rights is thus familiar, even if the arguments against the right to keep and bear arms are demonstrably false. In District of Columbia v. Heller — a case in which we will present oral argument on Tuesday, March 18 — the Supreme Court should recognize some basic truths.
The Second Amendment is an integral part of the Bill of Rights. Read in the same familiar, straightforward manner as other constitutional provisions, it secures a meaningful individual right, a sphere of individual autonomy into which the state may not intrude without good reason and great care. Acknowledging this right does not spell anarchy, but it does mean that law-abiding adult citizens are entitled to keep ordinary functional firearms, in their own homes, for self-defense.
Gun prohibitionists bristle at the notion that private gun ownership is a social good, but their policy arguments are both unpersuasive and irrelevant.
Drug-warriors and terror-warriors advance similar arguments for truncating Fourth Amendment rights. Some moralists have little use for the establishment clause. Others would compromise the free exercise clause. But courts do not declare those constitutional provisions obsolete or undesirable.
Nor should the Supreme Court treat the Second Amendment as if it did not exist. First and foremost, the Supreme Court resolves questions of law — and as a matter of law, Heller is not a close call.
THE PEOPLE’S RIGHT
The Second Amendment guarantees a “right of the people.” The “people” protected by the Second Amendment, as well as by the First and Fourth Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, are all the same: individual members of the American community.
Recognizing that truism, the city and its fellow prohibitionists have abandoned the “pure” collective-rights Second Amendment theory — which secures only a right of states to arm an organized militia. Instead the city has adopted the “sophisticated” or “hybrid,” but equally wrong, collectivist view: that the Second Amendment guarantees rights to individuals, but only when they are serving in a state-controlled military organization.
Imagine a right — intended, in part, as a deterrent to oppressive government — that can be exercised only when, where, and in the manner that government directs.
The collectivist vision seeks support by claiming, first, that “bear arms” has an exclusively military meaning. Yet “bear arms” was often used in a nonmilitary context. Various 18th century state constitutions secured the people’s right “to bear arms in defense of themselves and the state,” including Pennsylvania in 1776 and Kentucky in 1792. And James Madison, author of the Second Amendment, introduced a hunting bill in the 1785 Virginia Legislature, drafted by Thomas Jefferson, which differentiated between “bearing a gun” privately and doing so “whilst performing military service.” Other examples of “bearing arms” appear throughout framing-era literature and legislative enactments — too many to support the prohibitionists’ narrow views.
Moreover, gun prohibitionists conveniently ignore the word “keep,” which plainly relates to nonmilitary activity. “Keep” and “bear” in the Second Amendment are different concepts, like the Sixth Amendment’s guarantee of “speedy and public” trials. Keeping a handgun in a D.C. home is not the same as bearing a weapon on the District’s streets. Heller is about the former, not the latter.
The rest of the column is at the link.
This is one of the most significant cases in US History. The only three recent cases on this level are the Gratz case (Affirm Action), Bush v Gore, and Kelo (eminent domain) cases. There is little precent with only the US v Miller case, and there Miller's side didn't show up to SCOTUS, so there was no chance for a good victory there, only a vague case cited by both sides.
This will be an interesting case to follow.