Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: xm177e2
The US Constitution does not create rights, it only limits government and guarantees the protection of rights.

The 9th Amendment was added as additional reassurance of what all the founding fathers already knew: That We the People individually and as States possess certain UNALIENABLE rights, and that the listing of some rights and protections and limitations in the Constitution does NOT disparage those rights in any way.

Each one of us possesses the UNALIENABLE right to EFFECTIVE SELF DEFENSE both against criminals and, when necessary, against despotic or criminal government at any level. That unalienable right is not disparaged by the Second Amendment or any other portion of the Constitution.

So even if your view is correct (and I suspect many will disagree) no one should take your view to mean that either individual States or the Federal Government may obstruct the right to or the means of effective self defense away from individuals. And the bottom line: Effective self-defense at this time requires nothing less than firearms, and sometime more.

Of course you agree on this basis that even States may not prohibit the personal ownership of firearms, right?

13 posted on 11/09/2004 12:30:16 AM PST by Weirdad (A Free Republic, not a "democracy" (mob rule))
[ Post Reply | Private Reply | To 7 | View Replies ]


To: Weirdad
Each one of us possesses the UNALIENABLE right to EFFECTIVE SELF DEFENSE both against criminals and, when necessary, against despotic or criminal government at any level. That unalienable right is not disparaged by the Second Amendment or any other portion of the Constitution.
...
Of course you agree on this basis that even States may not prohibit the personal ownership of firearms, right?

I do think the biggest challenge to claiming an individual right to firearms ownership is that there is no explicit basis to do so in the text. But there is precedent for recognizing such rights. For instance, SCOTUS recognized a broad array of rights related to raising a family that never appear in the text: SCOTUS found a right to teach your children foreign languages and to send them to religious private schools. SCOTUS found a right to use birth control (Griswold v. Conn.) and a right to avoid sterilization (Skinner v. Oklahoma).

The Court has also found a right to "privacy," although it dresses that up in the fringes of the Bill of Rights rather than as something found in the 9th amendment (which is probably how it should be seen). I don't think anyone could credibly find an individual right to bear arms in the fringes of the 2nd Amendment, even based on the "spirit" of the amendment, or some other such B.S. Since we are conservatives who respect the Constitution, we won't go there.

The right to self-defense is generally accepted as a part of our culture; it would not be difficult at all to claim it as an individual right. But that only gives you the right to hurt someone in certain circumstances, not necessarily to possess the tools for such a purpose. In other words, only that which is fundamental to self-defense would be covered.

But I think just as one could not have a 1st Amendment right to free speech without the right to use publishing tools, one doesn't have an effective right of self-defense without weapons[1]. So some basic tools would have to be guaranteed: handguns and shotguns. In rural areas, people would also have to have rifles, because they might have to engage a threat at longer ranges.

But just as free speech is regulated (in terms of time, place, and manner), the firearms available for self-defense could be severely limited. I think even California's ridiculous gun laws would be legitimate. As long as some basic firearms are available, it should not matter which. Even if the government wanted to ban all Glocks but allowed 1911s, that sort of law would be valid. The right to possess firearms as implements of self-defense would not cover the right to a firearm of your liking, just one that would work well enough. As long as people can still exercise their right to self-defense (which we can, here in CA), it would be acceptable.

So the only actual gun laws I could see being overturned on this Constitutional claim would be those banning all handgun ownership (as far as I know, there are no laws banning shotguns and rifles; I could be mistaken). It seems clear to me that Washington D.C.'s ban on handguns prevents a lot of the most vulnerable people from protecting themselves, as is their right.

A right to carry concealed firearms is more difficult to figure out, because at different times in our history it has been legal, illegal, or just up to the discretion of the local area. In England, Parliament could do as it pleased. Then on the frontier, our government couldn't regulate firearms even if it wanted to. Then over the past century, more and more anti-carry laws were passed. Then over the past decade, more and more right-to-carry laws were passed. So it would be much more difficult to find a cultural right to carry. The right to defend oneself goes all the way back to the Hebrew Bible, and it's been basically unbroken in this country, but the same is not true for a right to carry. At the same time, one could argue it fundamental to self-defense to have weapons ready. So that is a much more difficult question.

[1] One could also claim an equal-protection argument in favor of allowing handguns: If swords and other meelee weapons are the only available tools for self-defense, it would effectively mean only the healthy, physically-fit could exercise their right to self-defense, which is not how it's supposed to be. Self-defense is an individual right, not a privilege.

15 posted on 11/09/2004 1:55:42 AM PST by xm177e2 (Stalinists, Maoists, Ba'athists, Pacifists: Why are they always on the same side?)
[ Post Reply | Private Reply | To 13 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson