The Fringe on Infringement 2/27/13

The Infringement of the 2nd Amendment: from a court brief.

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Those who wish to further restrict our rights to own and use firearms are attacking on a variety of fronts, federally and in the states.  One impediment to the wholesale destruction of our firearms rights is the 2nd Amendment.

Part of the strategy of anti-firearms groups is to denigrate the 2nd Amendment as “out dated” and “unnecessary.”  They do this by suggesting that the armed citizen is no longer able to defend her or his homeland, and that the armed citizen is unnecessary because there is a standing army at the national level, and heavily armed cops on the local level.  The 2nd Amendment, these detractors insist, does not mean that individuals can own firearms, and since it doesn’t mean that, it no longer means anything at all.  Lawmakers are free to tramp over the freedom to keep and bear arms any way they wish.

However, the Supreme Court recently determined that the 2nd Amendment, like the first, is a liberty granted the people themselves.  One reason for keeping a firearm is the protection of self and others.  While anti-firearms activists badly interpret data to imply there is no value in keeping a firearm for protection, about a million people and perhaps more do use a firearm every year to prevent harm to themselves or others.  The Supreme Court decision mentioned below affirms a basic right.

The City of San Francisco has attempted to compel residents to keep all firearms locked up, and to prevent the sale of some kinds of bullets.  Advocates for the 2nd Amendment have filed suits against the city to regain discretion over how firearms are kept, and to increase the range of ammunition available.  Below is a excerpt from one of the briefs filed in those cases.

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court recognized that the Second Amendment protected an individual right to keep and bear arms. The Second Amendment did not invent a new right. As the Court recognized, it protects the pre-existing right to armed self-defense from “infringement.”

This right is a fundamental human right and as such may not be infringedabsent a compelling state interest.

This idea of a right to bear arms for self-defense was not a new idea of the Founders. History is replete with examples, from which the Framers took their lessons about human governance, that reveal the fundamental nature of the individual right to keep and bear arms.

For example, Aristotle tells the story of how the tyrant Pisistratus took over Athens in the sixth century B.C. by disarming the people through trickery.  Indeed, Aristotle stated that “arms bearing” was an essential aspect of each citizen’s proper role.

Similar events took place in Seventeenth Century England. The Supreme Court noted that “[b]etween the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents.” Heller, 554 U.S. at 592-93. The Court also discussed the 1671 Game Act wherein “the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies.” Id.

Those thinkers who most influenced the Framers understood that the right to keep and bear arms is essential for the preservation of liberty. John Locke noted the “fundamental, sacred, and unalterable law of self-preservation.”  Locke argued that the right to use force in self-defense is a necessity.

This right to armed self-defense is also evident in the writings of Thomas Hobbes: [a] covenant not to defend my selfe from force, by force, is always voyd.”  Earlier works by Grotius and Cicero also note this basic human right.  (“When our lives are threatened with immediate danger, it is lawful to kill the aggressor”; “[Natural law lays] down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right”).

There is no doubt that the Founders also believed in a natural right to armed self-defense. The failure to recognize a right to keep and bear arms in the original Constitution was a point of contention at a number of state ratifying conventions. Samuel Adams proposed an amendment to the Massachusetts resolution to ratify the convention that included a command that “Congress should not infringe the … right of peaceable citizens to bear arms.”

A number of advocates for the Constitution argued that Congress would have no power to interfere with the “rights of bearing arms for defense

Notwithstanding these assurances, there were a number of proposals for amending the proposed Constitution to include an express recognition of the right to bear arms for defense. E.g., Convention Debates, reprinted in 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, Pennsylvania, supra at 597-98; The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents, reprinted in 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, Pennsylvania, supra at 623-24; Convention Debates, reprinted in 10 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, Virginia No. 3, supra at 1553; North Carolina Convention Amendments, reprinted in 18 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, Commentaries on the Constitution No. 6, supra at 316; Declaration of Rights and Form of Ratification Poughkeepsie Country Journal, reprinted in 18 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, Commentaries on the Constitution No. 6, supra at 298.

This general unease with how the new federal government would exercise power led to the adoption of the Bill of Rights, including the right to keep and bear arms. This history demonstrates that the Second Amendment enshrines a fundamental interest. Like other fundamental interests protected by the Constitution, regulations that seek to restrict the protected right are tested by strict scrutiny.

As the Court in Heller noted, “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”

More of the brief, and other related papers, can be found at:

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