Saturday, October 06, 2007

A liberal's lament: The NRA might be right after all

By Jonathan Turley

This term, the Supreme Court may finally take up the Voldemort Amendment, the part of the Bill of Rights that shall not be named by liberals. For more than 200 years, progressives and polite people have avoided acknowledging that following the rights of free speech, free exercise of religion and free assembly, there is "the right of the people to keep and bear arms." Of course, the very idea of finding a new individual right after more than two centuries is like discovering an eighth continent in constitutional law, but it is hardly the cause of celebration among civil liberties groups.

Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda. Yet, two related cases could now force liberals into a crisis of conscience. The Supreme Court is expected to accept review of District of Columbia v. Heller and Parker v. District of Columbia, involving constitutional challenges to the gun-control laws in Washington.

The D.C. law effectively bars the ownership of handguns for most citizens and places restrictions on other firearms. The District's decision to file these appeals after losing in the D.C. appellate court was driven more by political than legal priorities. By taking the appeal, D.C. politicians have put gun-control laws across the country at risk with a court more likely to uphold the rulings than to reverse them. It has also put the rest of us in the uncomfortable position of giving the right to gun ownership the same fair reading as more favored rights of free press or free speech.

The Framers' intent

Principle is a terrible thing, because it demands not what is convenient but what is right. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: "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." Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.

Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence.

Another individual right

More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.

Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right - consistent with the plain meaning of the amendment.

None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that ... here's the really hard part ... the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.


Florida robber shot by neighbor: "Investigators say a man from Gainesville was shot to death, while robbing his neighbor's home. The accused shooter says it was an act of self defense. Alachua County deputies say 33-year-old John Wilds shot 42-year-old Robert Aden in the chest while they were at Wilds home. Wilds and a witness told deputies that Aden tried to forcefully enter Wilds home, and even broke off the front door's handle. Wilds then grabbed his 22 caliber handgun, told Aden to leave, and fired a warning shot in the air. Aden then came at Wilds with his fists clenched and shouting obscenities. Fearing for his life, Wilds shot Aden in the chest. Wilds isn't facing charges at this time, but deputies say they will talk with the State Attorney's Office about possible charges when the investigation is complete." [Good shot with a .22]

Colorado man shoots mother bear and cub: "A man shot and killed a mother black bear and then one of her cubs as each one separately tried to break into his Marble-area cabin over the course of last weekend, according to state wildlife officials. "The sow was tearing apart the floor of the (elevated) cabin and coming in from underneath" while the man, an employee of OutWest Guides, was home early Saturday morning, according to Colorado Division of Wildlife spokesman Randy Hampton. Hampton said no obvious food or garbage attractants were around the cabin to entice the bear. The DOW managed to catch two of the dead sow's three cubs and take them to a wildlife rehabilitation center in Silt, Hampton said, but the biggest cub remained at large and returned to the man's cabin late Sunday night, where it allegedly tried to break in. "The individual was afraid and shot the cub," Hampton said. The cub weighed about 50 or 60 pounds and was strong enough to break into the house despite its small size, Hampton said. "Think of it this way: Imagine if you had a 60-pound dog coming in the window growling." It's illegal to shoot black bears out of season or without a hunting license, but a state statute allows people to shoot bears in self defense".

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