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Gun briefs merely stating the obvious

Attorney General John Ashcroft has set off another political brushfire, this time among the politically correct anti-gun crowd. His offense was to order the Justice Department to state the obvious in a pair of briefs filed with the U.S. Supreme Court. The Second Amendment, the department says in its briefs, protects an individual right to “keep and bear arms,” not a state right. This supposedly marks a “radical reinterpretation” of the Constitution, but that would come as a great surprise to the Founders and to courts of roughly the first 150 years of the nation’s existence. The Bill of Rights, of which the Second Amendment of course is a part, was created explicitly because many of the founding generation were concerned that Madison’s Constitution provided no safeguard against federal accumulation of power. The Bill of Rights is almost entirely focused on the protection of individual rights, with the exception of the Tenth Amendment, which reserves to the states and “to the people” those powers not explicitly conferred upon the federal government. In recent years, courts and bureaucrats have taken the position that states have the right to strictly regulate guns, even to the point of for all practical purposes prohibiting ownership of common weapons. But this, as even noted liberal civil libertarians like Nat Hentoff note, is contrary to the body of the Bill of Rights. The Second Amendment right to keep and bear arms, Hentoff and numerous others argue, is crafted similarly to other individual rights, such as the Fourth Amendment’s right against unreasonable search and seizure, the First Amendment right to peaceably assemble and so on. One could argue that the Second Amendment right to bear arms provides the individual with the ability to protect his other individual rights against the state — by force if necessary. The Justice Department does not argue that Second Amendment rights are without limitation. Just as one may not yell “Fire!” in a crowded theater, it is reasonable, for example, to prohibit firearms inside courthouses. As UCLA law professor Eugene Volokh notes in a recent Wall Street Journal essay, if the Supreme Court accepts the Justice Department’s view, then it will have the effect of making it easier to enact modest, sensible regulations of guns. “Today,” he writes, “many proposals, such as gun registration, are opposed largely because of the quite reasonable fear that they’ll lead to ... gun prohibition.” He may be right. More important, however, the Founders were right. Unless the Second Amendment is repealed, the American people clearly have an individual right to bear arms.

Hentoff's pro-Second Amendment and pro-life.