Friday, October 02, 2009

Second Amendment Revisisted

In District of Columbia v. Heller, the Supreme Court overturned a law banning Washington, D.C. residents from possessing a firearm. The Court at that time did not address any and all regulations concerning the use of and possession of firearms. Laws mandating background checks designed to keep guns out of the hands of criminals and the mentally ill remained untouched, as were laws forbidding the possession of semiautomatic weapons and laws restricting the number of sales that can be made at any given time.

Gun right advocates, nevertheless, were pleased since this was the first time in a long time since the Supreme Court voted to uphold an individual's general right to bear arms. The ruling did not overturn every law banning lawfully abiding citizens from the right to own a gun since it merely addressed federal laws designed to ban such laws.

To apply its logic across the nation, the Supreme Court would have to incorporate the Second Amendment to the states, as it had done most prominently with the First and Fourth Constitutional Amendments. Incorporation denies states the restrict the citizen from engaging in activities the federal government otherwise cannot restrict. The First Amendment, for example, forbids Congress, and only Congress, from passing any law "respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." But until the First Amendment was incorporated, states could. Nothing but the state's mercy would protect the Jew from religious discrimination or the socialist from writing his or her pamphlet. Now those rights are protected across the board.

Now the Court will consider whether it should incorporate the second Amendment and consequently, overturn all laws denying law abiding citizens from the right to gun possession.

The Political Heretic believes it should, and welcomes the Court's involvement. There is no constitutional principle which would justify the incorporation of some but not all of this nation's constitutional amendments. And holding that our right to have our gun rights protected from federal but not state law, would be inconceivable in today's constitutional climate. Individual rights are individual rights. We cannot speak of an individual right if the act can be expressly prohibited by one state player but not another.

Gun control advocates, to be sure, don't believe we have a right to bear arms and the wording for the Second Amendment is vague enough for people to reasonably disagree. "A well regulated militia," it states, "being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
The gun rights activists point to "security of a free state" clause to make their case against gun restrictions while their opponents focus on the "well regulated militia" phrase to say where that right is lodged.

It should be noted that the militia of the 1700s differs significantly from the militias of the 21st century. The militia of the 1700s were composed of villagers who were called to pick up arms when the homeland was invaded. Today's militias are regulated by the states. They can be sent into harms way if the president orders them to leave.Today's militias have more in common with the standing armies which our Founders' feared than they do with the militias of the 1700s. If the militias were sufficiently beneficial "to the security of a free state," there'd be no reason to object if the power was lodged with the Secretary of State.

States have every right to limit gun show purchases, bar mentally unstable and unsavory characters from buying guns, They have every right to pass laws forbidding its residents from carrying a gun but they shouldn't have to.

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