When Madison and others fashioned the Bill of Rights, they did not merely constitutionalize -- make fundamental -- the right to bear arms. They made the Second Amendment second only to the First, which protects the freedoms of speech, press, assembly and worship. They did that because individual dignity and self-respect, which are essential to self-government, are related to a readiness for self-defense -- the public's involvement in public safety. Indeed, 150 years ago this month, in the Dred Scott decision, Chief Justice Roger Taney said that one proof that blacks could not be citizens was the fact that the Founders did not envision them having the same rights that whites have, including the right to "keep and carry arms."
Increasingly, however, some constitutional scholars and judicial rulings argue that several restraints the Bill of Rights puts on government can be disregarded if the worthiness -- as academics or judges assess that -- of government's purposes justifies ignoring those restraints. Erwin Chemerinsky, professor of law and political science at Duke University, argued in The Washington Post last week that even if the Second Amendment is correctly construed as creating an individual right to gun ownership, the D.C. law should still be constitutional because the city had a defensible intent (reducing violence) when it annihilated that right.
Sound familiar? Defenders of the McCain-Feingold law, which restricts the amount, timing and content of political campaign speech, say: Yes, yes, the First Amendment says there shall be "no law ... abridging the freedom of speech." But that proscription can be disregarded because the legislators' (professed) intent -- to prevent the "appearance" of corruption and to elevate political discourse -- is admirable.
If the Supreme Court reverses the appeals court's ruling and upholds the D.C. gun law, states and localities will be empowered to treat the Second Amendment as the D.C. law does -- as a nullity. This will bring the gun control issue -- and millions of gun owners -- back to a roiling boil. That is not in the interest of the Democratic Party, which is supported by most ardent supporters of gun control.
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