A Splendid, Precarious Victory

By Peterson, Dan | The American Spectator, September 2010 | Go to article overview

A Splendid, Precarious Victory


Peterson, Dan, The American Spectator


The Supreme Court has incorporated the Second Amendment. But the party of government power will continue its efforts to disarm the American people.

THERE is NOW A CLASS OF PEOPLE in this country who at every turn seek to increase the power of government at the expense of the people's freedom, who in practice have largely inverted the meaning of the Constitution, who hold in contempt the beliefs on which this country was founded and prospered, and who aim to break and retrain American civil society, with themselves in the saddle.

They have rampaged nearly unchecked since the 2008 elections.

It is a thing of beauty, then, when these forces are thrashed and an emphatic victory is won for constitutionalism and the rights of a free and independent people. The case of McDonald v. City of Chicago, decided by the Supreme Court at the end of June, is such a victory.

In McDonald, the Court held that the Second Amendment protects the right of the people to keep and bear arms not only against usurpations by the federal government, hut also against infringement by states and localities. Disarming the American people is, of course, a central goal of the party of boundless government power. An armed people, determined to retain their guns in private hands, is a forbidding obstacle to oppressive government. Aithough this court decision will make it harder for them to disarm us, opponents of our constitutional freedoms will relentlessly continue their efforts to choke off, ban, and criminalize gun ownership,

Throughout most of the history of the republic, the Second Amendment's guarantee of the right to keep and bear arms was considered clear and uncontroversial. We were free American citizens; of course we had the right to own rifles, pistols, and shotguns; and the Constitution confirmed that right.

Then an odd thing happened. Principally in the latter third of the 20th century, Congress and many states and cities began imposing increasingly stringent regulation on firearms ownership and use. Confronted by such restrictions, and even by outright gun bans, the courts proved to be of surprisingly little use in protecting the right to keep and bear arms under the Second Amendment.

There were two main devices by which the courts undermined the Second Amendment's straightforward command that "the right of the people to keep and bear arms shall not be infringed." First, the courts sometimes held that the right protected by the Second Amendment was not a right of individuals to own and use firearms. Instead, these courts held it to be an amorphous "collective" right relating to militia service- which in practice meant no right at all. Second, some courts held that the Second Amendment applied only to bar infringements of gun rights by the federal government, and did not prevent similar infringements by states and cities. Tints, the Second Amendment was watered down by many courts to afford little or no protection for gun ownership.

The United States Supreme Court, however, had never squarely addressed either of these theories in recent times. The Supreme Court's decision in the McDonald case and its decision in District ofCnhimhia v. Heller, decided in 2008, together have created a revolution in Second Amendment law. Heller involved a challenge to the nearly total ban on handguns imposed by Lhe District of Columbia in the mid1970s. The District argued thai its ban could not be challenged by a private citizen who wanted to own a handgun, because the Second Amendment embraced only a collective right related to militia service. The Supreme Court disagreed, and held for the first time in its history that individuals have a Second Amendment right to own handguns in their homes for purposes of defense.

Because the District of Columbia is a federal enclave, Heller necessarily did not address whether this individual Second Amendment right protects against infringements by states, count ics, and municipalities.

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A Splendid, Precarious Victory
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