My recent post on a petition relating to the Second Amendment, drew a response via Sphere It which tracked back to the following opinion piece in the Wall St Journal, which surprised me as I expected this source to go the other way.
This week, the Supreme Court agreed to hear the case of District of Columbia v. Heller. In March, the Court of Appeals for the D.C. Circuit declared unconstitutional the District's near-total ban on handgun possession. That 2-1 ruling, written by Judge Laurence Silberman, found that when the Second Amendment spoke of the "right of the people," it meant the right of "individuals," and not some "collective right" held only by state governments or the National Guard.
That stirring conclusion was enough to prompt the D.C. government to declare Judge Silberman outside "the mainstream of American jurisprudence" in its petition to the Supreme Court. We've certainly come to an interesting legal place if asserting principles that appear nowhere in the Constitution is considered normal, but it's beyond the pale to interpret the words that are in the Constitution to mean what they say…………..
The phrase "the right of the people" or some variation of it appears repeatedly in the Bill of Rights, and nowhere does it actually mean "the right of the government." When the Bill of Rights was written and adopted, the rights that mattered politically were of one sort--an individual's, or a minority's, right to be free from interference from the state. Today, rights are most often thought of as an entitlement to receive something from the state, as opposed to a freedom from interference by the state. The Second Amendment is, in our view, clearly a right of the latter sort………..
………It would seriously harm the Court's credibility if Justice Kennedy and the Court's liberal wing now turned around and declared the right "to keep and bear arms" a dead letter because it didn't comport with their current policy views on gun control. This potential contradiction may explain why no less a liberal legal theorist than Harvard's Laurence Tribe has come around to an "individual rights" understanding of the Second Amendment.
By the way, a victory for gun rights in Heller would not ban all gun regulation, any more than the Court's support for the First Amendment bars every restraint on free speech. The Supreme Court has allowed limits on speech inciting violence or disrupting civil order. In the same way, a judgment that the Second Amendment is an individual right could allow reasonable limits on gun use, such as to protect public safety.
Here's hoping the Justices will put aside today's gun control passions and look to the plain language of the Bill of Rights for instruction in this case, as Judge Silberman had the courage to do.
Just as a matter of interest lets have a look at what the 2nd says; "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."
The first part; “A well regulated Militia, being necessary to the security of a free State,” is essentially a preamble, basically nothing more than an introduction. It if anything reinforces what follows, by recognizing the right of the citizen to resist oppression and possess the means of doing so.
The second part is certainly clear in its intent however; “, the right of the people to keep and bear Arms, shall not be infringed.” There can be no argument as to what the draughters intended and that was that the state has no right to interfere with the right of people to keep and bear arms. Its that simple.