George Allen: The Supreme Court will rule on gun rights

That is question before the U.S. Supreme Court on March 18 in the case of District of Columbia v. Heller. This case directly challenges the District of Columbia’s ban on handguns. In 1976, D.C. officials imposed a strict gun-ban law to supposedly curb increasing gun violence. But security guard Dick Anthony Heller believes he has a right to keep a handgun in his home and filed a lawsuit against the District. U.S. courts so far have agreed with Heller and ruled that the Second Amendment “protects an individual right to keep and bear arms … for such activities as hunting and self-defense.” D.C. officials have appealed the decision to the Supreme Court.

Heller is the first pure Second Amendment case the U.S. Supreme Court has heard since the landmark United States v. Miller case in 1939. In that case, the court found—perhaps because Miller himself was not represented in the court—that there was no evidence that the defendant's possession of a short-barreled shotgun was related to the purposes of the Second Amendment. Unfortunately, the Miller decision has been misinterpreted by lower courts as indicating that Second Amendment rights are not meant for individuals but for State militias such as the National Guard.

D.C. Mayor Adrian M. Fenty believes that only more violence will ensue if the Heller ruling is upheld. However, guns do not kill or rob people; criminals do. Criminals intent on misusing firearms and committing violent crimes such as murder, rape or robbery simply ignore such “gun-free zones” and are free to assault undefended people. Violent criminals prefer their victims to be unarmed. We have seen this throughout the country; D.C. presents daily examples of this criminal behavior.

In Virginia, when we abolished the lenient, dishonest parole system, we rejected the “holy criminal” apologists’ views; we sentenced violent criminals to longer terms. A government can lock up all the guns, but if criminals are loose, we are not safe. Rather than take away the right of law-abiding citizens to protect themselves, their families and their property, the government has a primary responsibility to protect citizens from criminals.

The results of the two competing philosophies are clear and instructive. The District of Columbia, with its gun ban, continues to have high crime rates. Its law-abiding citizens and visitors have been prohibited from possessing firearms the past several decades and crime-ridden D.C. is surely not the model of a safe place. Across the Potomac River in Virginia, during my service as Governor, we passed a “concealed carry” law and abolished parole resulting in dramatic increases in time served for violent felons. Since 1995, the violent crime rate in Virginia has declined by nearly 23 percent. The murder rate is down by 30 percent and the forcible rape rate has dropped by more than 15 percent. This is a logical result when one realizes that most crimes were being committed by criminals, not guns.

By referring to our history and secession from the British Monarchy, we can be enlightened on one of the reasons for inclusion of “the right to bear arms” in the Bill of Rights. The British tried to disarm the colonists, forced them to pay for the established Church and quartered the King’s soldiers among the colonists. Indeed, the Bill of Rights protects the peoples’ freedom of religion, assembly, and expression; citizens have to right to petition their government, to have due process and to bear arms. The Bill of Rights also provides other individual protections against taking of property, cruel and unusual punishment, and quartering of troops. On the basis of this historical context, it is therefore logical that a government prohibition against a law-abiding citizen who owns and possesses a handgun is a preposterous, clearly unconstitutional infringement of that natural and fundamental right to self-defense.

In correspondence with John Cartwright in 1824, Thomas Jefferson noted that “power is inherent in the people” and that “it is their right and duty to be at all times armed.” Second Amendment rights are inalienable and essential to personal self-defense. Let us hope that the Justices of the U.S. Supreme Court will read our history and properly allow our reasonable freedoms to endure.

The foundational principles of the Bill of Rights should truly continue to apply in the United States of America.

-George Allen, former Governor and Senator of Virginia, is currently the President of George Allen Strategies and serves as the Reagan Ranch Presidential Scholar. To learn more, visit www.georgeallen.com.

The article referenced in the OP is another pro-gun rights article where there is no mention of the 14th Amendment. Beware of discussions about the 2nd A. where its relationship to the 14th A. is not also mentioned.

To begin with, D.C. has seemingly fallen into the trap of presentism, evidently fantasizing America's 18th and 19th century pioneers reaching for their cell phones to dial 911 when vandals invaded their properties.

Next, the "bad news" for pro-gun rights people. The USSC decided in Barron v. Baltimore, 1833, a state land grab case claiming 5th A. protections, that unless explicitly stated, the federal Constitution's general restraints on government power applied only to the federal government, not to the states. So the 2nd A.'s government restraint that the right to keep and bear arms shall not be infringed was arguably a restraint only on the federal government, not the states. The states had seemingly reserved the power to infringe on gun rights for themselves even if they forbade the federal government from doing so.

Also, note that in the time between Barron v. Baltimore and the Civil War that word about the scope of the federal Constitution was evidently not getting around. This is reflected by the fact that some federal legislators at the time of the making of the post Civil War 14th A. thought that the federal BoR had always applied to the states as well, Sec. 1 of the 14th A. being a waste of Bingham's time.

Now for the good news for pro-gun rights people. Regardless what the scope and purpose of the Founders was for the 2nd A., the makers of the 14th A. essentially redefined the scope and purpose of the 2nd A., seemingly inadvertently.

More specifically, John Bingham, the main author of Sec. 1 of the 14th A., included the 2nd A. when he read the first eight amendments as examples of constitutional statutes containing privileges and immunities that the 14th A. applied to the states. (Bingham had expressed dismay that the USSC had decided in Barron v. Baltimore that the BoR didn't apply to the states as well.)

See the 2nd A. in the middle column of the following page from the Congressional Globe, a precursor to the Congressional Record. This is one of Bingham's discussions about the scope and purpose of the 14th A. after that amendment had been ratified.

http://tinyurl.com/y3ne4n

So given Bingham's inclusion of the 2nd A. when clarifying the scope and purpose of the 14th A. for his colleagues, there is no doubt in my mind that the 2nd and 14th Amendments protect the personal right to keep and bear arms from both the federal and state governments as much as any other constitutional privilege and immunity protects other personal rights.

So remember to get your guns out whenever you hear a discussion of the 2nd A. where the 14th A. is not also mentioned.

As a side note concerning Bingham's inclusion of the 2nd A. when clarifying the 14th A., consider the following words of Jefferson.

"The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law." --Thomas Jefferson to Albert Gallatin, 1808. ME 12:59

Good discussion, thanks for the post.

Laurence Tribe and Alan Dershowitz, no paleoconservatives they, have both addressed the issue and come to the same conclusion, viz., that 14A binds 2A to the States, and that the 2nd does indeed confer an individual right by its own terms, but absolutely indestructibly when considered further in the light of the 14th.

To arrive at this finding, the Court will have to overturn Presser vs. Illinois, the foundation of modern gun-control laws, and with it the despised 1939 Miller decision.

The Administration brief in the D.C. case, as in its pleading in Emerson previously, attempts to preserve all federal firearms laws in the teeth of their unconstitutionality. The Administration asks SCOTUS on the one hand to find an individual right, and on the other to proceed as if they were not dealing with a right at all.

“Next, the “bad news” for pro-gun rights people. The USSC decided in Barron v. Baltimore, 1833, a state land grab case claiming 5th A. protections, that unless explicitly stated, the federal Constitution’s general restraints on government power applied only to the federal government, not to the states. So the 2nd A.’s government restraint that the right to keep and bear arms shall not be infringed was arguably a restraint only on the federal government, not the states. The states had seemingly reserved the power to infringe on gun rights for themselves even if they forbade the federal government from doing so.”

Doesn’t every state Constitution accept the fed constitution as governing law so the 2nd A still works?

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.