Tuesday, June 29, 2010

A Blow for Liberty

Yesterday the Supreme Court incorporated (or made applicable to the states) the Second Amendment which grants citizens the right to bear arms when it struck down as unconstitutional, ordinances enacted by several municipalities, Chicago among them, banning residents from purchasing or otherwise owning a handgun to use for their own protection.

It should be noted that many Constitutional rights which we now take for granted, were at best imperfectly protected by our national Constitution in so far as they only protected the people from the federal government's attempt to impose those restrictions on them. The First Amendment, for instance, explicitly forbids Congress, but no other political entity, 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."

Until the First Amendment was incorporated by the Fourteenth Amendment's Due Process of Liberty Clause, however, states were free to offer broader or narrower First Amendment-like rights as they saw fit.

Assuming, as the Supreme Court once did, that the Fourteenth Amendment's Due Process of Liberty Clause incorporated some but not all Constitutional Amendments never made sense. The Fourteenth Amendment, after all, does not say anything with regard to freedom of speech or religion rights, let alone gun rights. The Fourteenth Amendment merely deprives the states from depriving "any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Our Court had to interpret the Fourteenth Amendment's protections broadly in order to protect our right to participate within the political process.

Gun control advocates can offer no limiting principle that would justify incorporation of the First but not the Second, Constitutional Amendment. Their emphasis on the "well regulated militia" phrase is also deeply misguided. The Constitution already granted the national government the right to fund and otherwise maintain a standing army, so the "being necessary for a free state" preposition in all likelihood referred to the people's right to defend themselves from any would-be tyrant or for their right to home invaders and not this nation's collective right to defend itself from armed intruders.

The Court's ruling, it should be noted, does not bar state and municipal governments from conducting background checks designed to keep guns out of the hands of the mentally disturbed and felons. It does not bar state and municipal governments from barring citizens from carrying any concealed weapons in a crowded area and it does not bar state and municipal governments from requiring manufacturers to install child safety locks on their guns and it does not require bars to allow patrons to enter their establishments armed.

State and local governments will still maintain the right to enact reasonable gun restrictions provided that they do not bar law abiding citizens of sound mind from the right to own a handgun for their self protection.

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