Re: [2ampd] A Well-Regulated Right to Bear Arms

the professor’s first mistake is calling
washington d.c.’s absolute ban on “bearing arms”
even in the privacy of ones home “reasonable”. he
goes downhill from there. when you cannot legally
“carry” a gun from the locked box where it is
stored in one room to another where your
workbench may be located to clean it, and mere
assembly of it may constitute a “crime” that law
is not “reasonable”, nor is it “reasonable” to
deny access to “pistol permits” to all citizens
when that denial affects only the law abiding,
leaving criminals free to get arms on the illegal
market subject only to the random risk of
encountering a police officer while violating the
law. a risk they evidently consider acceptable as
they go about their business of preying on a
disarmed public. a business this professor seems
to think is also acceptable, as long as he is
safe from being chosen as prey since he lives far
from washington. the professor demonstrates
vividly that education does not always bring
wisdom, that an educated fool remains a fool
still.
“gunner”
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Re: [2ampd] A Well-Regulated Right to Bear Arms
I have never understood how, when the 1st, 3rd, 4th, 5th, and 6th Amendments
define personal rights, anyone can even think the 2nd is anything but a
personal right. Simply amazes me…
JOhn
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Well-Regulated Right to Bear Arms
A law lecture on the Washington Post editorial page to inform us all.
Phil

A Well-Regulated Right to Bear Arms

By Erwin Chemerinsky
Wednesday, March 14, 2007; Page A15

In striking down the District of Columbia’s handgun ban last week, a
federal appeals court raised the crucial constitutional question: What
should be the degree of judicial deference to government regulation of
firearms? The decision by the U.S. Court of Appeals for the D.C.
Circuit interpreted the Second Amendment as bestowing on individuals a
right to have guns. But even if this reasoning is accepted, and it is
very much disputed, the Court of Appeals still should have upheld the
law as being a reasonable way of achieving the government’s legitimate
goal of decreasing gun violence.

There is a major debate among scholars and judges involving two
competing views of the Second Amendment. One approach, adopted by the
Supreme Court in 1939 and by most federal courts of appeals, sees the
Second Amendment as preventing Congress from regulating firearms in a
manner that would keep states from adequately protecting themselves.

This “collective rights” approach rejects the idea that the Second
Amendment bestows on individuals a right to have guns. The alternative
view, adopted by the D.C. Circuit on Friday, sees the Second Amendment
as creating a right for individuals to have firearms.

Each approach is consistent with the text of the Second Amendment, and
each is supported by strong historical arguments about the original
meaning of the provision. The Second Amendment says: “A well regulated
Militia, being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed.” Those who
take the collective rights approach focus on the initial language of
the provision, while those who take the individual rights approach
focus on the latter language.

Each side of the debate marshals impressive historical arguments about
what “militia” and “keep and bear arms” meant in the late 18th
century. In the past few years, two other federal courts of appeals
exhaustively reviewed this history, and one determined that the
Framers intended the individual rights approach, while the other read
history as supporting the collective rights approach.

The assumption in this debate, and one that the D.C. Circuit followed
Friday, is that gun control laws are unconstitutional if the
individual rights approach is followed. This assumption, though, has
no basis in constitutional law. No rights are absolute. Even the First
Amendment, which is written in the seemingly absolute language that
Congress shall make “no law” abridging freedom of speech or religion,
allows government regulation.

Therefore, under the individual rights approach, there still is the
question of what types of government regulations are appropriate.

For 70 years the Supreme Court has distinguished among constitutional
claims in deciding how closely to scrutinize laws and how much to
defer to legislatures. In instances where there is reason to distrust
the government, such as for laws discriminating on the basis of
race, “strict scrutiny” is used and the government can prevail only if
its action is necessary to achieve a compelling purpose.

But where there is little reason to doubt the legislatures’ choices,
courts give great deference to the legislatures and uphold laws so
long as they are reasonably related to a legitimate government
purpose. For example, discrimination that is based on characteristics
such as age, disability and sexual orientation need to meet only this
more relaxed standard. Even rights enumerated in the Constitution,
such as property rights, generally receive only this relaxed level of
judicial review. For this reason, for 70 years, government regulation
of the economy to protect employees and consumers has been upheld in
the face of claims that it unduly restricts property rights.

In other words, even if the D.C. Circuit is right in holding that the
Second Amendment creates individual rights, that does not answer the
question as to the level of scrutiny to be used in evaluating gun
control laws. I believe that there is a strong argument that the
regulation of guns should be treated the same as other regulation of
property under modern constitutional law: The regulation should be
allowed so long as it is rationally related to achieving a legitimate
government purpose.

Under this standard, there is no doubt that the D.C. gun law is
constitutional. The city’s government was pursuing the legitimate goal
of decreasing gun violence, and its means were certainly reasonable.

The Supreme Court will probably review the D.C. Circuit decision.
Whether the court takes the individual or the collective rights
approach, it should uphold the D.C. law and make clear that courts
will defer to legislatures in their regulation of firearms.

The writer is a professor of law and political science at Duke
University.

The Second Amendment IS Homeland Security !