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Supreme Court upholds Second Amendment as individual right…BUT…

June 26, 2008

Perhaps the Second Amendment is too clear, too precise, too self-evident, to have required interpretation until now. But the semantic caprice of postmodern haziness has run slipshod over the law, and hence over our lives, liberty, and pursuit of happiness. And so the United States Supreme Court as found the Second Amendment to say what it says, as far as the Court would go.

The Second Amendment says,

Amendment II. 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.

But note that “the right of the people to keep and bear Arms” contains two distinct verbs, “keep” and “bear.” District of Columbia v. Heller, alas, did not consider both, because both were not part of the question. Mr. Heller simply applied for a permit to keep a gun at home for self defense. His right to bear a weapon was not problematic in his case, because he made his living as a D.C. special policeman. Not wishing to overstep the narrow question, the Court saw only “keep” on its docket. “Bear,” presumably, means carrying the weapon around within one’s home.

The Court’s holding is hardly “the shot heard round the world.” The decision is the shot heard from home, in an emergency. And the District of Columbia police had already sort of publicly confided, as it were, that there would be no enforcement of the city’s gun ban against anyone defending himself in his own home.

The D.C. law made it a crime to carry an unregistered weapon, and it prohibited the registration of handguns; it even provided separately that no one could carry an unlicensed handgun. The police chief could issue a one-year license to keep a “lawfully owned” gun at home, but the gun had to be unloaded and disassembled or disabled by a trigger-lock or similar device.

An interesting sidebar is that Mr. Heller applied to register his handgun so he could keep it at home. RKBA people tend not to be huge on registration, and in fact, tend to oppose it as a pre-emptive resource for confiscation. But Mr. Heller was simply seeking to be in compliance with D.C. law.

The holding of the Supreme Court that came down today states that, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” That is certainly a good holding, as far as it goes, and as far as the meaning of “keep” goes.

What about “bear?”

“Like most rights, the Second Amendment right is not unlimited.  It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.”

Are our rights all or nothing?

But the Court was not gutless; it affirmed the futility of D.C.’s trigger-lock requirement:

“The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.”

It appears that bearing one’s means of self-defense might await clarification in a future decision. But given rumors flying yesterday that the Court would come out with a plurality decision, it’s good that a majority reached a holding that overturned D.C.’s ban.

Will this holding discourage Seattle Mayor Greg Nickels’s proposed gun ban on city property? Unlikely. Justice Scalia acknowledged,

“The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” (bold emphasis added)

There is still plenty of sanity reclamation work ahead. 

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2 Comments
  1. June 26, 2008 4:48 pm

    Wow, all this at the same time we are gun shopping…:-)

  2. June 26, 2008 5:21 pm

    And all this time D.C. has been way off our list of possible places ever to live….

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