Rights, Arms and the Man

Posted: Jul 01, 2008 12:01 AM
Rights, Arms and the Man

"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." Because of the inclusion of the M-word (militia), gun-control advocates have long argued that the Second Amendment applies to militia, but not to individual citizens.

Last week, the Supreme Court put an end to that nonsense when it issued a decision overturning the District of Columbia's 32-year-old ban on handguns -- even in citizens' own homes. In the 5-4 decision, Justice Antonin Scalia hailed "the right of law-abiding citizens to use arms in defense of hearth and home."

It was "an inevitable ruling," explained George Washington University Law Professor Jonathan Turley. "Even though I'm an advocate of gun control, it's very hard to read the Second Amendment and not see an individual right."

Yet, somehow, four justices did not see that the fundamental right -- actually, it's more than a right, it's a basic human instinct -- of self-defense. As Justice Stephen Breyer wrote in one of two dissenting opinions, "The Second Amendment protects militia-related, not self-defense related, interests."

John Eastman, law school dean at Chapman University in Orange County, Calif., found it ironic that the four justices relied on an interpretation, albeit erroneous, of the framers' original intent -- when they don't seem to care about original intent in so many other cases.

The dissenting four justices otherwise have agreed with Justice Anthony Kennedy when he wrote in another case that the court is supposed to determine whether death penalty cases are constitutional, based on "the evolving standards of decency that mark the progress of a maturing society."

But with this case, quipped Eastman, "Everyone seems to be an origin-alist now." Justice John Paul Stevens accused the majority of engaging in judicial activism -- by issuing a ruling that, after two centuries, directs federal courts to look at the right to bear arms as a fundamental right, even if it can be restricted.

But as Scalia wrote, "it is not the role of this Court to pronounce the Second Amendment extinct." And: "This Court first held a law to violate the First Amendment's guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified." And that was copasetic.

The reason for the 200-plus year delay, Eastman explained, is simple: "For most of our history, the question did not present itself."

In his dissenting opinion, Breyer argued that the Washington handgun ban does not preclude citizens from protecting themselves with rifles. To which Eastman countered, "Breyer seems never to have shot a gun." Handguns are easier to maneuver in small spaces; they are smaller, and hence harder to grab, and they are easier to handle for those with limited upper body strength.

Of course, the worst part of the Washington handgun ban is that it applied to an individual's home. That's right, the District of Columbia was legislating what citizens could have in their bedrooms.

"The NRA could not have written a law better for the purposes of challenge," Turley noted. Do I want more guns? No. I don't want more abortions either, but I recognize women's right to abortion. And if women have a right to abortion, they certainly have a right to defend their bodies against intruders.

In the end, the court settled a matter that had been ruled by sensibilities. When fashionable people can afford to hire security guards or live in gated communities, they tend to think of self-defense as a neurotic obsession of the gauche and overwrought. They don't think they need handguns, therefore no one needs handguns. They are undeterred by research that shows that their gun bans don't reduce crime, because it only matters that they mean well.

So they come to believe that they have the right to deny other less enlightened people the right to choose to defend their very homes -- because they long ago blurred the line between a legal right and personal desire.

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