"District of Columbia versus Heller" versus Gun Rights
There has naturally been a lot of discussion about the recent Supreme Court ruling in the "District of Columbia versus Heller" case that is believed to clearly uphold the view that the Second Amendment to the Constitution guarantees the right of individual's to keep and bear arms. While those who understand the importance of that right are celebrating this decision, it is unfortunately not as unambiguous as it might at first seem.
That ambiguity is obvious in many of the comments that have been made by various commentators about the decision, and their interpretation of what it means. The National Rifle Association, for example, wrote, "Anti-gun politicians can no longer deny that the Second Amendment guarantees a fundamental right," said NRA chief lobbyist Chris W. Cox. "All law-abiding Americans have a fundamental, God-given right to defend themselves in their homes. Washington, D.C. must now respect that right."
Talk about missing the point. Whether or not individuals have a right to defend themselves in their own home was not in question at all, it was whether or not they have a right to own and keep a gun in their home, unencumbered by any device that might prevent its use for that defense. It was that right the decision supposedly affirmed.
The Missing Principle
To really understand what this decision is, you must at least read the quotes from Justice Antonin Scalia's very readable majority decision, or better, read the decision itself—it is not long, is very clear, and is even humorous in parts. However, it contains a terrible flaw.
In writing the majority opinion, Justice Scalia seems to recognize that the right to own and carry a gun is not something granted by the second amendment, but a fact that it merely recognizes. As he wrote in that opinion, "it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed."
This seems to say, the whole point of the second amendment is not to grant citizens some privilege they might not otherwise have, but to prevent the government from doing anything that would limit, in any way, a right which is already theirs.
That seems clear enough, but what can this possibly be, then, but a contradiction of that very assertion:
"... nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
Here is another contradiction:
"We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ?dangerous and unusual weapons."
There are others, but it is the next one that points out the missing principle, or more importantly, the misunderstanding of what a principle is:
"Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose."
Principles are Not Negotiable
The founders regarded "rights" to be, as stated in the Declaration of Independence, "inalienable," pertaining to, "all men," that is, every individual. These rights were regarded to be inviolable and absolute—in the framer's language they were endowed by God and no human agency, individual or government, could rightly violate them. In fact, the sole purpose of government, they stated, is to insure those rights and principles are never violated.
Some rights were considered so important by the founders they enumerated them in the Bill of Rights. That they were considered absolute principles is clear—free speech cannot be "abridged," the right to keep and bear arms must not be "infringed."
In this day of postmodernist relativism the nature and necessity of absolute principles is little understood. It is assumed today, that right and wrong are determined socially or democratically by means of negotiation and compromise. The principles of right and wrong, however, like the principles of physics or chemistry, are facts determined by the nature of reality. The modern question, "who decides what is right and wrong," is as wrong-headed as the question, "who decides the organization of the periodic table?" No one decides the principles of reality, they are discovered, and one either discovers and conforms to them, if they are to live successfully, or defies them and dies.
Men may disagree about principles, but that principles are inviolable cannot be denied. If it is wrong to murder, it is wrong, absolutely. If murder were negotiable, if murder were only declared wrong by a majority vote or determined by certain social conditions, it would not be a principle. If it is wrong to steal, it is always wrong to steal, and no condition, or situation, or relationship, social or private, can make it right. If stealing were only wrong depending on a society's or some authority's say so, it would not be a principle. When principles are allowed to be compromised, they cease to be principles at all. We have seen the consequences. Murder is wrong unless the victims are Jews or Gypsies. Stealing is wrong unless the victims are rich or foreigners.
This is exactly what you see, however, in the majority opinion written by Justice Scalia. While it purports to defend the right of individuals to keep and bear arms, it in fact destroys that right as a principle.
Freedom of speech ceases to be a principle when any limitation or condition is placed on it. To write, "... we do not read the First Amendment to protect the right of citizens to speak for any purpose," means you do not have freedom of speech at all, and may only speak and write for purposes the government has determined you may. Freedom of speech ends as a matter of principle and becomes a game, a mad scramble of vying interest groups to demonstrate their purpose is a good one, and yours is a bad one, and have the government back them up. This was used by Justice Scalia to explain the same kind of restriction on gun rights.
Gun Rights Canceled
Though Justice Scalia's unambiguous statement that the right to keep and bear arms shall not be infringed seems like an assertion of that right as a principle, taken as a whole, the majority decision completely cancels that right and lays the groundwork for a total ban on all guns. Because the right is not defended as in inviolable principle, it ceases to be a principle at all.
If the right to keep (own) and bear (carry) arms is an inviolable principle, it means (as was the case in most of this country at one time) anyone could walk into any hardware store anywhere in America, select any gun on display, buy it and ammunition for it, load it, put it in his pocket or over his shoulder and walk out of the store without showing any kind of identification or getting anyone's permission. Anything less than that means you do not have gun rights.
And, of course you don't. Because the Supreme court has decided you cannot own and use a gun for, "any sort of confrontation," except those the government deems acceptable. Today it might deem defending yourself against any physical threat is acceptable. Tomorrow it might deem only defending yourself if your attacker has a gun you can see is acceptable. The next day they can decide that only when you have actually been shot or shot at is using your gun acceptable.
it's also been decided that you only have a right to keep and bear arms that are not, "dangerous and unusual weapons," you will have to surrender your 357s, 44s, and 45s, 9mms, etc. when the government deems any caliber larger than a 22 is "dangerous." What is a right to keep and bear arms if you can only keep guns that are not dangerous? What kind of gun is not dangerous? What good would a gun be that was not dangerous? And you might is well give up any rare or collectable guns now, because they are all "unusual," and as soon as the government realizes it, you know what will happen.
Remember the founders declared rights to be "inalienable," pertaining to, "all men;" but so-called "gun rights" pertain only to some men, those which some government does not exclude such as, "felons and the mentally ill." When the government decides it wants to take your guns away from you, this decision has provided the excuse for doing it. There is no doubt something you do or don't do, the government will make illegal and which will make you a felon, or else it will have some psychiatrist declare your behavior is evidence of a psychosis—global warming denial, perhaps.
Justice Scalia thinks "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings," are not a violation of the second amendment, but in fact they cancel the right to bear arms as a principle. "Sensitive places," might only include schools and government buildings now, but tomorrow could include all public property, businesses, vehicles, or anyplace else the bureaucrats decide. Schools and government buildings are just the kind of places where guns, especially for self-defense, ought to be. If guns are disallowed anyplace (except on private property at the discretion of the property owner), there are no gun rights.
Justice Scalia also thinks "laws imposing conditions and qualifications on the commercial sale of arms," are no violation of gun rights. Do you still have free speech rights if you have to get someone else's permission and approval to say or write something? Do you still have freedom of religion when you must have a license to practice it? If one only has a "right" to do something after jumping through government imposed hoops, it is not a "right" at all, but a government granted "privilege" which it can take away anytime, just by making those hoops impossible for anyone to jump through.
Far from guaranteeing the right of every individual to own and carry a gun, this Supreme Court decision has totally undercut the second amendment, and for all practical purposes, has canceled it. The NRA might believe this decision is a victory that recognizes "all law-abiding Americans have a fundamental ... right," to own and carry guns, but, in fact, this decision opens the door to Draconian government control of guns, and the only citizens who will have guns will not be the, "law-abiding," but those who defy the law. In a country where laws are no longer based on principles, those who live by principles are outlaws.