An unambiguous right

[ELKCHSR]

An unambiguous right
By Herbert W. Titus and William J. Olson

Compelled to take up arms to regain their liberties as Englishmen, America's Founders knew that even the constitutional republic they had established could threaten the freedoms for which they had fought. In the First Amendment, they established a first line of defense — the freedoms of religion, speech, press, assembly and petition.


Knowing that words and parchment barriers alone would prove inadequate to restrain those elected as servants from becoming tyrants, they added the Second Amendment to secure "the right of the people to keep and bear Arms" — not to protect deer hunters and skeet shooters, but to guarantee to themselves and their posterity the blessings of "a free State."


Their foremost concern was the precipitating events of the American Revolution, wherein British troops in Massachusetts and Virginia seized American muskets, cannon and powder — actions the Declaration of Independence calls "a design to reduce (the colonists) under absolute Despotism."


Entrusting the nation's sovereignty to the people, the amendment breaks the government's military monopoly, guaranteeing to the people such firearms as would be necessary to defend against the sort of government abuse of their inalienable rights the British had committed.


Thus, the amendment's "well regulated Militia" encompasses all citizens who constitute the polity of the nation with the right to form their own government. The amendment's "keep and bear Arms" secures the right to possess firearms such as fully-automatic rifles, which are both the "lineal descendant(s) of … founding-era weapon(s)" (applying a 2007 court of appeals' test), and "ordinary military equipment" (applying a 1939 Supreme Court standard).


No government deprives its citizens of rights without asserting that its actions are "reasonable" and "necessary" for high-sounding reasons such as "public safety." A right that can be regulated is no right at all, only a temporary privilege dependent upon the good will of the very government officials that such right is designed to constrain.


Herbert W. Titus and William J. Olson are attorneys for Gun Owners of America, which filed a brief in the Second Amendment case the Supreme Court heard Tuesday.

 

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Our view on the Second Amendment:
Preserve limits on guns

The U.S. Supreme Court has ruled on dozens of cases involving guns in the past 69 years, but not since it took up the case of a bootlegger's shotgun in 1939 has it tangled as directly as it did Tuesday with the meaning of the Second Amendment.

The amendment's text isn't much help. In oddly punctuated 18th century prose, it states that "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."

Even constitutional scholars disagree over what this means. Does it grant some sort of collective right to own guns in the context of a militia, or an individual right to all people? It's always risky to predict how the Supreme Court will rule after listening to oral arguments, but Tuesday's 97-minute debate gave the justices plenty of chances to tip their hands.

Enough of them did so — Justice Anthony Kennedy, often the court's crucial swing vote, said flatly that the amendment grants "a general right to bear arms" — that it seems likely they'll embrace an individual right when they decide this case sometime in the next three months.

If the high court overturns the District of Columbia's ban on handguns at issue in this case, the crucial question becomes: Then what? Is there no limit on government's ability to regulate what sort of "arms" a citizen can "keep and bear"?

What's vital is for the court to protect reasonable restrictions on weapons ownership, including registration of guns and licensing of their users. It's one thing to recognize a right to own handguns, rifles or shotguns. It's quite another to make it impossible for Congress, states or localities to set rational limits on assault rifles, machine guns, armor-piercing bullets or heavier weapons. That would be tragic.

The court shouldn't make it any easier for the sorts of deranged killers who have mowed down innocent people at schools, malls and places of worship in recent years to acquire even more firepower.

Encouragingly, even some of the court's most conservative members seemed to be wrestling Tuesday with how to strike the right balance. Justices repeatedly explored whether the right to bear arms is limited to those common at the time the amendment was written — chiefly rifles and pistols — or to today's similar, commonly owned versions.

Justice Antonin Scalia, long an anchor of the court's conservative wing, disagreed with the lawyer for the District of Columbia over whether the lower court decision that struck down the D.C. handgun ban also opened the door to weapons now subject to federal restriction.

"I didn't read it that way," Scalia said. "I thought (the lower court) said it had to be the kind of weapon … that is common for the people to have. … I don't know that a lot of people have machine guns or armor-piercing bullets."

This case gives Scalia and the other justices a rare chance to establish a sensible middle-ground on a hot-button issue. The court shouldn't take guns away from people who use them responsibly for sport or self-defense. Nor should it handcuff government's ability to keep the most dangerous weapons out of the hands of the most dangerous people.