Posted on 03/08/2008 1:58:59 PM PST by neverdem
Do we the people have the individual right to own guns?
That is question before the U.S. Supreme Court on March 18 in the case of District of Columbia v. Heller. This case directly challenges the District of Columbia’s ban on handguns. In 1976, D.C. officials imposed a strict gun-ban law to supposedly curb increasing gun violence. But security guard Dick Anthony Heller believes he has a right to keep a handgun in his home and filed a lawsuit against the District. U.S. courts so far have agreed with Heller and ruled that the Second Amendment “protects an individual right to keep and bear arms … for such activities as hunting and self-defense.” D.C. officials have appealed the decision to the Supreme Court.
Heller is the first pure Second Amendment case the U.S. Supreme Court has heard since the landmark United States v. Miller case in 1939. In that case, the court found—perhaps because Miller himself was not represented in the court—that there was no evidence that the defendant's possession of a short-barreled shotgun was related to the purposes of the Second Amendment. Unfortunately, the Miller decision has been misinterpreted by lower courts as indicating that Second Amendment rights are not meant for individuals but for State militias such as the National Guard.
D.C. Mayor Adrian M. Fenty believes that only more violence will ensue if the Heller ruling is upheld. However, guns do not kill or rob people; criminals do. Criminals intent on misusing firearms and committing violent crimes such as murder, rape or robbery simply ignore such “gun-free zones” and are free to assault undefended people. Violent criminals prefer their victims to be unarmed. We have seen this throughout the country; D.C. presents daily examples of this criminal behavior.
In Virginia, when we abolished the lenient, dishonest parole system, we rejected the “holy criminal” apologists’ views; we sentenced violent criminals to longer terms. A government can lock up all the guns, but if criminals are loose, we are not safe. Rather than take away the right of law-abiding citizens to protect themselves, their families and their property, the government has a primary responsibility to protect citizens from criminals.
The results of the two competing philosophies are clear and instructive. The District of Columbia, with its gun ban, continues to have high crime rates. Its law-abiding citizens and visitors have been prohibited from possessing firearms the past several decades and crime-ridden D.C. is surely not the model of a safe place. Across the Potomac River in Virginia, during my service as Governor, we passed a “concealed carry” law and abolished parole resulting in dramatic increases in time served for violent felons. Since 1995, the violent crime rate in Virginia has declined by nearly 23 percent. The murder rate is down by 30 percent and the forcible rape rate has dropped by more than 15 percent. This is a logical result when one realizes that most crimes were being committed by criminals, not guns.
By referring to our history and secession from the British Monarchy, we can be enlightened on one of the reasons for inclusion of “the right to bear arms” in the Bill of Rights. The British tried to disarm the colonists, forced them to pay for the established Church and quartered the King’s soldiers among the colonists. Indeed, the Bill of Rights protects the peoples’ freedom of religion, assembly, and expression; citizens have to right to petition their government, to have due process and to bear arms. The Bill of Rights also provides other individual protections against taking of property, cruel and unusual punishment, and quartering of troops. On the basis of this historical context, it is therefore logical that a government prohibition against a law-abiding citizen who owns and possesses a handgun is a preposterous, clearly unconstitutional infringement of that natural and fundamental right to self-defense.
In correspondence with John Cartwright in 1824, Thomas Jefferson noted that “power is inherent in the people” and that “it is their right and duty to be at all times armed.” Second Amendment rights are inalienable and essential to personal self-defense. Let us hope that the Justices of the U.S. Supreme Court will read our history and properly allow our reasonable freedoms to endure.
The foundational principles of the Bill of Rights should truly continue to apply in the United States of America.
-George Allen, former Governor and Senator of Virginia, is currently the President of George Allen Strategies and serves as the Reagan Ranch Presidential Scholar. To learn more, visit www.georgeallen.com.
I'm not saying it didn't. Equally compatible with your statement is that the 14th Amendment was drafted in order to "constitutionalize" the Civil Rights Act, which made significant changes in the law of the land.
I certainly can't possibly make Berger's argument better than he, but just because the 13-15th amendments were passed doesn't mean that the point of those amendments were to "incorporate" the bill of rights against the states. Indeed, to this day, we still don't have full incorporation of the bill of rights. If in the past the failure to incorporate was due to failures of communication, why hasn't the Supreme Court simply announced that the bill of rights is fully incorporated?
I would argue that they haven't done so because that was not the purpose of the 14th Amendment, and I believe that the vast, vast majority of scholarship on the subject supports that opinion. As Berger points out:
"The extensive researches of Fairman, which I confirmed, corroborate Frankfurter; our view has won assent even from activists. Michael Perry concluded that Berger’s “finding that the fourteenth amendment was not intended to make the Bill of Rights . . . applicable to the States . . . is amply documented and widely accepted.” Among those who agree are Dean Alfange, Jr., Alexander Bickel, John Hart Ely, Judge Henry Friendly, Lino Graglia, Thomas Grey, Erwin Griswold, Louis Henkin, Forrest McDonald, Richard A. Posner, and Mark Tushnet." (citations omitted).
regarding who should have known what with respect to the scope of the federal Constitution in the late 18th and 19th centuries, beware of falling into the trap of presentism, of thinking that the pioneering generations had the convenience of cell telephones and networked archives to keep themselves abreast of USSC opinions, etc..
No, but as I said before, Berger correctly notes that the bench and the bar was well aware of the 14th Amendment and the Civil War when litigating, say, the Slaughterhouse cases.
Here's Berger's article.
http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=675&layout=html#chapter_106927
Yep, and I appreciate your candor. All of my friends and family know where I stand, and many on FR too.
I've been in bad situations before, and I'm typing here and now. Sure, it's possible to be ambushed, but I've been in those situations before also.
I'm not a young buck anymore, but nobody leaves this planet alive anyway. I would prefer SCOTUS to uphold the Constitution, but from what I've seen the last 40 years or more, well, you just don't know.
Again, I appreciate your post.
5.56mm
First of all, in my opinion, the idea that the 14th A. applied the BoR to the states is politically correct sleight-of-hand by secular-minded justices to force the 1st A.'s prohibition on religious powers of the federal government onto the states. This is evidenced by the fact that Sec. 1 of the 14th A. doesn't say anything about the BoR per se, but references essentially all the privileges and immunities in the Constitution. In fact, when John Bingham referenced the first eight amendments to clarify the scope and purpose of the 14th A., he emphasized that the 14th A. was actually targeting the privileges and immunities defined by these amendments. Indeed, Bingham had made it clear that the 14th A. was not intended to take away any state powers.
Also, the fact that Bingham referenced the privileges and immunities of the first eight amendments undermines the Court's idea of selective incorporation of the BoR.
I have one big problem with this article.
I don’t care what the effect of gun ownership is on crime. The second ammendment is clear. If the facts proved that gun bans decreased crime would it then be ok to ban guns? Where in the second ammendment does is say anything about gun rights being balanced against crime rates?
Tribe or one of his students would be, of course, a likely candidate to replace the ailing and aging liberals on the Supreme Court.
I suppose you're aware that Tribe has been secretly lobbying the Justices for years, using his former students (the clerks) as intermediaries, discussing current research with them and suggesting references. So that an ingenuous new Associate Justice might send a clerk off to "see what you can find" on habeas, for example, and end up having an unsuspected and unlooked-for conversation with Professor Tribe instead, in the form of the clerk's returns of cites and quotes.
Tribe was also seen lobbying Justice Kennedy up close and personal for over three hours in a Viennese coffeeshop, on the eve of the Planned Parenthood case that revisited Roe.
Bob Novak wrote a column about all that, which turned into the perfect Buddhist stone tossed into a pool: zero splash, zero ripples, zero consequences.
The man is interfering with the cardinal lawmaking organ of the United States Government and getting away with it.
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