Monday - March 03, 2008

The state of RKBA in a nutshell

Kevin over at the Smallest Minority posts a whopper of an essay; Of Law And Sausages is a 13,000 word read worthy of Bill Whittle and worth the hour it takes to read. Believe it or not, this is tight writing. He could have easily made it twice as big.

Back in May of 2003 when I started this blog, I had just begun a months-long debate with an Irishman living in London. The topic of that debate, unsurprisingly, was the Second Amendment. During that debate he asked me a question: “(L)et’s say a liberal government came to power and wanted to ban gun ownership. It would not be able to, because of the Second Amendment, right?”

That’s the question, alright. When the Supreme Court takes up District of Columbia v. Heller (née Parker v. D.C.) in a few days, we may finally get an answer to it.

After starting out with a “state of the state” that shows the very flawed beliefs held today, he then goes on to investigate the Second, citing many examples of Original Intent, and shows how the evolution of gun control laws have developed, with each one standing on the shoulders of the fallacies built by previous legislation, from the original and legally proper, if not poorly reasoned, reaction of the Kentucky legislation to their loss in Bliss v. Commonwealth in 1822, up through Cruikshank, Presser, Miller, Cases, and all the way to DC v. Heller which the Supremes will start looking at in a few days.

So from the founding of a nation in which, according to Thomas Jefferson, it is a citizen’s “right and duty to be at all times armed,” a nation in which St. George Tucker understood that the constitution could not be used to “permit any prohibition of arms to the people,” a nation where in 1857 the Supreme Court declared that the Second Amendment protected a right of citizens “to keep and carry arms wherever they went,” where in 1939 the Supreme Court ruled - not on a defendant’s membership in a militia, but on the suitability of his weapon for militia use, we reached the point where the right of individuals somehow became a right of the States - the famous shift from an “individual rights” understanding to a “collective rights” interpretation. Moreover, “no individual even has standing to challenge any law restricting firearm possession or use.” At least not in the Ninth Circuit (where I happen to live.)

The extinction of the right to arms was almost complete. The meaning of the Second Amendment of the Constitution was altered without the use of the Amendment process - merely by the repeated death-by-a-thousand-cuts judicial re-interpretation, and the power of stare decisis.

Now we reach today, and D.C. v. Heller. The city of Washington D.C., a Federal District under control of Congress and most emphatically not a “state,” passed what is essentially a complete ban on the possession of functional firearms by its (law-abiding) residents in 1975. Because Washington D.C. is not a state, the Cruikshank and Presser Supreme Court decisions do not have any influence - the Second Amendment applies directly to the city government. A lawsuit was brought against the city under the auspices that the gun ban violated the Second Amendment rights of the citizens of Washington, and the case proceeded all the way to the D.C. Circuit Court of Appeals, considered one of the most important circuits in the Appeals Court system for its precedent-setting.

A three-judge panel voted 2-1 that the right to arms IS an individual one (agreeing with the Fifth Circuit) and that the laws in question DID violate the Second Amendment.

The City appealed to the Supreme Court. Cert. was granted. Oral arguments start in just a few days from now.

And we may finally get an answer to the question: “(L)et’s say a liberal government came to power and wanted to ban gun ownership. It would not be able to, because of the Second Amendment, right?”

This is a Most Excellent undertaking on his part. He draws no conclusions at the end, even though we all know what his views are, even though the errors made by poor and specious decisions in the past are readily apparent. I could not have resisted banging the podium in closing, but in truth it isn’t necessary. If you can understand the part of the Second Amendment that says “shall not be infringed” then you can spot the house of cards being built out of whole cloth over the generations. This reference quality piece of work is the best of what blogging can be; Kevin’s essay could just as well be used as an amicus curiae brief for Heller.

A true and proper decision on Heller will overturn 130 years of bogus laws and benighted decisions by the Supremes. Hold your breath. Anarchy and “the Wild West” will not be the result, but a bit of freedom and some honest governing could be. (see? I couldn’t resist giving the bully pulpit at least one whack)

Posted by Drew458     on 03/03/2008 at 03:43 PM   
Filed Under: • Government • Guns and Gun Control •  
• Comments (3) • Trackbacks(0)  Permalink •  

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