Gunning Down The 2nd Amendment (Major Hurl!) More Bias from CBS News

This collective rights nonsense has been so thoroughly debunked that it's not worth the bandwidth to repeat all of the specifics. (Go to Clayton Cramer's page, Instapundit or The Volokh Conspiracy for no end of evidence against this stupid view.) It simply isn't true. The handful of courts that have voiced this opinion are an anomoly in American jurisprudence. The Individual Right view as expressed by the Ashcroft Justice Department is the prevailing view of modern legal scholarship.

The author contradicts himself when he claims that the collective rights view is the proper interpretation of the 2nd Amendment, but then calls for its repeal. If that view were correct, then repealling the Amendment would be unnecessary as no gun control law on the books violates that interpretation. He obviously accepts the individual right argument himself if he feels that the Amendment must be repealed to further the cause of gun control.

"The Supreme Court last dealt with the issue directly in 1939 when it clearly backed they collective, no-individual right position."

This, too, is an outright lie. The US Supreme Court did no such thing and the lying S of a B knows it.

When a Supreme Court decision is published, it is accompanied by a syllabus which is written by court staff--not by the justices themselves and which is supposed to give the gist of a decision but carries no legal weight. Unfortunately, the published syllabus for U.S. v. Miller does not accurately reflect certain key aspects of the decision, and seems to have been cited in some cases where it disagrees with what the actual decision says.

Contrary to what many people have been led to believe, neither Miller nor his co-defendant Layton were ever convicted of carrying a short-barreled shotgun. The Supreme Court did not uphold their conviction because there was no conviction to uphold. All the Court did was allow the government to bring its case when the government claimed that it could show that a sawed-off shotgun is not a suitable militia weapon. Had the government not plea-bargained away the charges for Frank Layton it would have had to have proved the impossible. Instead, however, the government declared victory and went home.

It's interesting that the government 'won' its case against Miller and Layton while plea-bargaining for nothing beyond time served. Of course, most of us would think that an odd form of 'winning'.

Where does this right come from?

The Second Amendment does not "grant" the right to keep and bear arms, but rather protects it from unsurpation. The right has deep roots in English common law and is related to the common law of self-defense. The battles of Lexington and Concord in 1775 represented a firm stand taken by the colonists against confiscation of their arms by British soldiers. 49 colonists died in those battles, so this obviously was not a trivial matter to them.

Why is it part of the Bill of Rights?

When the Bill of Rights was adopted in 1791, the infringement by a strong government upon their right to bear arms was fresh in the minds of our Founders, so they explicitly prohibited their new federal government from repeating this travesty. Or so they thought....
In recent decades, this right has been as much under attack as it was in 1775. Though no "redcoated" federal troops march through our towns (yet!), overzealous presidents and misguided members of Congress have sought to accomplish the same objective, step-by-step. And thanks to courts sympathetic to their crusade, the erosion of our rights is proceeding.

Why is gun ownership a key to freedom?

The freedom of the individual, the peace of the community, and the independence of the state all depend upon a substantial portion of the adult population having firearms. It is a hallmark of society in a constitutional republic that citizens have rights and responsibilities. Ownership of a well-maintained firearm is not only a right, it is a responsibility.

Responsibility? For what purpose?

Again, looking at the common law for guidance, the family, as a basic unit of society, has the "primary" responsibilty for certain functions, including its material support, the religious and practical education of its members, and "self protection". Since everyone must sleep or leave home on occasion, people have delegated others, primarily their local police, to supplement their own self-protection. But this does not relieve the head of the household from protecting his own family, nor does it excuse him from assisting his neighbors- when necessary- in the protection of the community at large.
But the Founders had more critical issues in mind when writing the Second Amendment. Richard Henry Lee said: "To preserve liberty, it is essential that the whole body of the people always possess arms." Lee knew that possession of arms by the people provides a roadblock to government officials intoxicated by power, a force to repel invaders, and protection from civil turmoil and anarchy.

Those who say that the 2nd Amendment pertains not to the people- but only to the National Guard- ignore the fact that the other nine amendments in the Bill of Rights are not so limited. Besides, the Bill of Rights does not grant rights- it prohibits government from intruding upon them.
"Gun rights" and all other rights go hand in hand. One cannot defend just one right. A government powerful enough to curtail one right can deny all others!

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