Investor's Business Daily, March 19th, 2007
Gun Control: Does striking down a draconian District of Columbia law barring residents from keeping handguns in their homes give "a new and dangerous meaning to the Second Amendment?" Or does it restore the Founders' intent?
The hyperbole above comes to us courtesy of a Washington Post editorial that takes issue with last week's first-ever appeals-court decision holding a gun-control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to the collective rights of state militias.
The Post blasts the ruling by the D.C. Circuit as an "unconscionable campaign ... to broadly reinterpret the Constitution so as to give individuals Second Amendment Rights." Not according to the guys who wrote it.
The court quite rightly noted the placement of the Second Amendment in the Bill of Rights, with every other amendment guaranteeing individual rights. So why one, the second one, guaranteeing states rights? As the court said, "The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well."
Columnist George Will notes in his column the opinion of Sanford Levinson of the University of Texas in a 1989 Yale Law Journal article, "The Embarrassing Second Amendment." Levinson noted that if the Second Amendment was written only to protect states' rights, it would have read, "Congress shall have no power to regulate state militias."
On Oct. 16, 2001, in U.S. vs. Emerson, a case about whether an individual under a restraining order could carry a gun, the U.S. 5th Circuit Court of Appeals recognized that the Second Amendment to the U.S. Constitution does indeed guarantee individual citizens a right to own guns.
"All the evidence," the judges concluded, "indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans," and "that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms."
The Bill of Rights was written to protect the rights of individuals -- rights such as freedom of religion, speech and the press -- not to protect the rights of states. It is absurd to suggest that in the middle of this list of individual rights the Founding Fathers wanted to protect the right of a state to have a militia.
George Mason, often called "the father of the Bill of Rights" said that a militia is the "whole people." In other words, all 300 million people in the United States are the militia.
James Madison also clearly considered anybody who could hold a weapon to be part of the militia and considered that militia of the whole people to be the best defense against tyrants and their standing armies.
James Madison, drafter of the Bill of Rights, in Federalist No. 46, alluded to "the advantage of being armed, which the Americans possess over the people of almost every other nation." In Europe, he noted, "the governments are afraid to trust the people with arms."
Duke University law professor William Van Alstyne said there is something ridiculous about an interpretation that suggests that the "'well-regulated militia the amendment contemplates is somehow a militia that is drawn from a people who have no right to keep and bear arms. Rather, the opposite is what the amendment enacts."
The Founding Fathers strongly believed in the right of ordinary citizens to bear arms, and not just for defense against foreigners. In general, people feared the new federal government and its standing army as much as they feared King George III. As James Madison explained in the Federalist Papers, the primary check on government tyranny and an abusive army was citizens with their own arms.
Governments have powers. It is individuals who have rights. The Bill of Rights were an enumeration of those individual rights to be protected from the intrusion of an oppressive government, whether it be freedom of speech, freedom of religion or the right to bear arms.
Copyright 2007 Investor's Business Daily, Inc.
