A Clear Perspective On The Second Amendment And The Courts

I’ve brought you readers several articles of fact and perspectives on the Second Amendment and of late debate on the decision of the U.S. Supreme Court to hear the appealed case of Heller vs. District of Columbia, also referred to as the D.C. Gun Ban. (to find those articles, look under “Guns and Gun Rights” category to the right.) In today’s Southeast Texas Record, John G. Browning has an article about the Second Amendment, how the courts have ruled in gun rights cases and the efforts by our scholars to manipulate, pick and choose selected language to promote ideals.

Browning gives a pretty balanced perspective on this soon to be heated debate on gun rights. Although I have to agree with him on most everything he says, I wish some of it wasn’t true. Here’s an example. Browning says:

In what might prove to be a preview of the Supreme Court’s analysis, the D.C. Circuit doesn’t take the position that Second Amendment rights are absolute. After all, freedom of speech doesn’t grant carte blanche for hate speech or libel, any more than freedom of religion would protect human sacrifice. The appeals court acknowledged that Washington D.C. might be able to justify reasonable regulations in the name of public safety, such as requiring proficiency testing, registration requirements, or concealed-carry restrictions.

He is right that the courts don’t see rights as absolute but there are differences between human sacrifice pertaining to religious freedom and the requirement of gun registration for example. Taking this perspective, is it therefore “reasonable” to force that requirement on lawful citizens? After all, what exactly does registering guns do except provide government, the one that the Second Amendment was crafted to protect us from tyranny, a means of easily and quickly locating our weapons for confiscation, etc.? Contrary to what some like to espouse, registration of guns does not make us safer, so we can toss out the public safety debate here in considering reasonable restrictions. But not to get off topic.

With that said, I unfortunately have to agree with Browning that it is very likely that our court, should it rule in favor of the individual right, would view the Second Amendment as not being an absolute right and therefore we would see such “reasonable” restrictions. With such a ruling, I believe this would set off a barrage of lawsuits that would challenge what is reasonable. It is unfortunate the our highest court may make a ruling based on the actual interpretation of the Second Amendment but then unreasonably allow restrictions because they feel they should.

In reading Browning’s article, I wanted to make sure that I posted here what I considered my favorite part. With justices who think this way, there is always a chance that things will turn around in this country.

Justice Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit summed up this inconsistency in dissenting from a 2003 ruling rejecting an individual right to keep and bear arms:

“Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that ’speech, or…the press’ also means the Internet [for First Amendment purposes] and that ‘persons, houses, papers and effects’ also means public telephone booths [for Fourth Amendment purposes].

When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases…But…when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there. It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us….Expanding some to ….gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.” (emphasis added)

Tom Remington

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