I need to read the decision, but all the reports indicated that the majority of the Court actually held that there is an individual right to own a gun laid out in the Second Amendment. I have read it time and again, and I think the Second Amendment is too convoluted to permit any conclusions. Basically, either you think the militia clause means something, or you think it is a meaningless lead-in. Which translates into: based on your dogmatic bias for or against guns, you support one or the other.
Here is my quibble: Where are the (classically right wing) cries against an activist judiciary now?
SCOTUS didn't have to enumerate an individual right to own guns. It didn't do so last time, or indeed at any time since the drafting of the Constitution. It could easily have decided that the Second Amendement clearly permits some right to own a gun in some context, so a categorical ban on certain guns in all circumstances is unconstitutional. That's a measured, narrow interpretation. The fact that Scalia and others sought to go beyond that is just dogma winning out.
Oh, and one note on Justice Scalia's argument that guns are there for personal protection: Perhaps you can believe this if you are an originalist, and imagine yourself a rugged hunter/trader in the backwoods of the great western territory. But at what point does the outdated and romantic notion have to give way to the reality that the mayor and police chief of every single metropolitan area in America for gun laws? What about the pitifully few number of firearm defense stories buried under the thousands of handgun related accidents and crimes of passion, not to mention stolen guns used in crimes?
p.s. And don't go touting Israel to me - Those M-16s are huge, buried in the back of people's closets, and unloaded. Also, they earned the right to carry through rigid military training. You want a gun - fine. I'll send you the enlistment papers.
1 comment:
Okay, I'll bite.
"shall not be infringed." That's a pretty dramatic and sweeping phrase: much more so than, say, the First amendment's "Congress shall make no law" (although I've got a pal who thinks those are the best 5 words in the whole document).
I understand, and disagree with, the argument that refers to this as being about a collective right - given the context of writing, where a bunch of folks had recently won a war based on personally-owned weaponry, I have a very hard time with the idea that they would not have protected their own right to do so again.
I don't see this as judicial activism - there is a strong originalist argument to be made for the position that gun ownership is an individual right.
I think that guns are there for personal protection from the government. Fortunately, that isn't currently relevant, but I don't believe that we should give up the right or permit it to be redefined away easily.
I like how AE vanVogt put it: "the right to own weapons is the right to be free."
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