As this is the case, it becomes necessary to understand what was written in the recent case, Heller v. District of Columbia, 554 U.S. _____, 2008 (the link does not include a specific page reference. While I do not doubt that one has been attributed by this point, time constraints preclude my searching for it at this time), and understand the significance of this individual right.
First, a quick backgrounder on the case, as summarized in the opinion. Dick Heller was a special police officer who had desired to register his handgun in the District of Columbia. The District of Columbia, however, had rules so restrictive, it was virtually impossible to own one. You could not possess an unregistered handgun, and were not allowed to register handguns. You could apply for a 1 year license, approved by the chief of police, but Heller's application was denied, after which he filed suit. The suit was dismissed at circuit court, then reversed by the Court of Appeals on Second Amendment grounds, and the Supreme Court granted cert.
The Court held that the Second Amendment's right to Keep and Bear Arms clause protects an individual right, not connected with service to any militia.
In reaching the decision, Justice Scalia first reviewed the Second Amendment: "A well-regulated militia, being necessary to a free and secure State, the right of the people to keep and bear Arms, shall not be infringed." He noted that there are two clauses, a purpose clause and an operative clause, and that the operative clause did not rely on the purpose clause for its meaning. In other words, the purpose clause listed one reason for the RKBA, not the only reason.
Justice Scalia then parsed out the meaning somewhat more, delving into the operative clause. "The right of the people," according to the opinion, is a phrase that had been used 3 times in the unamended Constitution and the Bill of Rights, in the 1st, 2nd and 4th Amendments, and all of these times the rights mentioned referred to individual rights, not collective rights. This makes sense if you look at it from an historical standpoint. Remember, the Constitution was unpopular when ratified, and was only ratified contingent on a promise to enact a Bill of Rights. The federalist papers were Constitutional P.R. - trying to sell the document to a public who were leery of Governmental control. He then notes that in all iterations of "the people," both in these rights, but in exercising power (preamble, 10th amendment, and Sec. 2, Art. I), the phrase referred to all People, not a specific subset (though he neglects to mention that slaves were not considered "people" at the time), which if we were to interpret the operative clause of the 2nd Amendment to be contingent on the purpose clause, we would be forced to do.
He then discusses the meaning of the word "arms," and unsurprisingly finds it to mean weapons or armor. Moreover, the right to "keep" arms, he states, is the right to possess them, going back to Blackstone who remarked on "Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to 'keep arms in their houses.' 4 Commentaries on the Laws of England 55 (1769), as well as several other references to a right of all people to "keep arms." In a similar manner, he found that "bear arms" meant to carry or possess (not arms of bears).
He continues, "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment." Remember, the Constitution and the Bill of Rights registered rights given to the government by the people. The rights discussed in the 1st, 2nd, and 4th Amendments refer to pre-existing rights, as Justice Scalia noted, in other words, the right to keep arms existed before the Bill of Rights was ratified, and the 2nd Amendment limited the ability of the Government to infringe upon that right.
Justice Scalia concluded his analysis of the operative clause of the Second Amendment:
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course, the right was not unlimited, just as the First Amendment's right of free speech was not, see, e.g., United States v. Williams, 553 U.S. ____ (2008). Thus we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.He then went to the purpose clause, which I will gloss over. In a nutshell, he shows that the purpose clause refers to protecting a polity, not an individual state. He then lists three separate reasons why a militia would be necessary to a "free state,"
First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary - an argument that Alexander Hamilston made in favor of federal control over the militia (author's note, this helps explain why the National Guard operates in the stead of a militia according to the Court in a prior decision).... Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.Justice Scalia finished by pointing out that at the time of the Bill of Rights, one way tyrants oppressed the People was not by outlawing militias, but rather, denying them the tools with which to defend themselves from internal threats (i.e. the tyrant). This is what we must beware of, to paraphrase Justice William O. Douglas, lest we become unwitting victims of the darkness.
While I find the two dissenting opinions unconvincing, I would recommend reading them. Due to length concerns, I will not include them in this post.
I may be somewhat naive, inasmuch as I believe that generally, people are good. But my naivete is not so great as to believe that there will never be people who take a right and use it for the wrong purposes. However, simply because there are those who abuse the rights we enjoy does not mean that we should enjoin all others from that right and the protections they provide, be it the Right to keep and bear arms, the right to peaceably assemble and petition the government for redress of grievances, the right to own land, the right to choose, the right to learn, etc.
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