Friday, July 18, 2008

A Troubling Gun Rights 'Victory' and the Necessary Battles Ahead

Although the U.S. Supreme Court, in the Heller case, struck down the Washington, D.C., gun ban and ruled that the second amendment protects individual gun rights, the decision provides little support for the right to keep and bear arms and scant comfort those who cherish individual liberty and freedom.

Many aspects of the decision are very troublesome and suggest that those who believe in and support the Constitution will have to continue to assert and fight for their values very vigorously in many hard contests in multiple venues in the coming decades.

To begin with, the view that the second amendment guarantees an individual rather than a collective or state right prevailed by only a single vote. A five to four margin provides scant comfort.

Even more disturbing was the fact that instead of principled dissents -- for which there was substantial room -- the dissenting judges in their opinions resorted to arguments that were blatantly dishonest. They ignored the words of the amendment itself, they ignored its history, they mischaracterized and distorted the precedents they cited and ignored those they didn't favor, and, worst of all, they falsified facts to support their position. In short, they despicably displayed disdain for the Constitution, for their duty to interpret it, and their function as judges in a transparent effort to reach a predetermined ideological outcome.

Almost as disturbing was a good bit of the dicta contained in the majority opinion. Much of what is contained in the decision may reflect only the judges lack of familiarity with firearms. However, if taken at face value their pronouncements would permit state and local governments to emasculate the rights the decision purported to uphold. The things that the court suggested might constitute "reasonable" and therefore presumably valid regulations would prohibit citizens from owning and carrying most common modern firearms.

If this assertion seems far fetched, take a look at the gun regulations that the District of Columbia has enacted in response to the Supreme Court decision and is using to turn down Mr. Heller's application to own an ordinary semiautomatic pistol.

Consider also the "to . . . bear" portion of "keep and bear arms." Unless one is prepared to completely ignore the words "to . . .bear" can only mean to carry. Many, and perhaps even most jurisdictions prohibit citizens from openly carrying firearms. At the same time many of them leave the issuance of permits necessary to lawfully carry a concealed weapon to the discretion of some public official.

If one has a constitutional right to bear arms, either the open carry prohibitions or the discretionary aspect of concealed carry permits has to be struck down as unconstitutional. Otherwise the right is nonexistent in the real world.

As evidenced by the new regulations enacted in the District of Columbia, gun control forces have been energized by, and are taking aggressive action in response to the Heller decision. Second amendment supporters are breathing an unwarranted sigh of relief and, exhausted, are inclined to let down, to rest on their laurels and take a breather they cannot afford.

Gun owners and supporters of individual rights and liberties would be well advised to keep their powder dry and stored in adequate amounts -- they are going to face many tough struggles in the coming decades, and the period is going to bring a bonanza for firearms litigation attorneys. Both had best be prepared for what lies ahead.

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