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The Second Amendment a second class right?

By Charles Bloomer
web posted January 21, 2008

The Solicitor General has issued a truly bizarre amicus brief to the Supreme Court in the case of Heller vs. District of Columbia, the case that is challenging the District's ban on handguns.

The Solicitor General's Office represents the administration in cases before the Supreme Court and, as in this case, presents the administration's position.  Needless to say, the Solicitor General's Office has considerable influence before the court.

The brief presented by the Solicitor General makes some valid points upon which Second Amendment supporters can agree.  The brief states the administration's opinion that the right to keep and bear arms is an individual right, and that laws restricting that right should be subject to "strict scrutiny" – meaning that legislators must weigh the proposed benefit of the law carefully before infringing on a Constitutionally guaranteed right.  Additionally, the brief expresses the opinion that the District of Columbia's strict gun ban should be overturned.  So far, so good.

The Solicitor General's brief also takes a bizarre turn.  While the Solicitor General calls for "strict scrutiny" for gun laws in general, he calls on the Supreme Court to apply only "intermediate scrutiny" as it determines Heller vs. DC.  The Solicitor General also argues that the Second Amendment is not a "fundamental" right.

So what the Solicitor General seems to be saying is that, well, sure, the Second Amendment calls for individual rights, and those rights should be afforded "strict scrutiny" most of the time, but the administration does not believe that gun rights are "fundamental" rights, and so, therefore, Your Honor, you don't need to be too strict in your decision-making process in this case.  In fact, we don't think you should really decide this case, but you should send it back down to the Circuit Court for more study, and while they are at it, tell them they only need to use "intermediate scrutiny".

In essence, the Solicitor General is saying that our Second Amendment rights are second-class rights that don't rise to the level of "fundamental" rights as do really important rights such as the First Amendment, or the Fourth and Fifth Amendments.  Truly bizarre.

One needn't be a lawyer to recognize the esoteric nonsense in the Solicitor General's argument.  Let me provide some esoteric sense.

First, the argument that the Second Amendment is not a "fundamental" right is blatantly false.  As I have written before, our gun rights are inherent in our inalienable rights to life, liberty and the pursuit of happiness-- rights endowed by our Creator.  Gun ownership gives us the tools for self-defense so that we can exercise those rights.  The concept of inalienable rights is enshrined in the Declaration of Independence, a foundational document.  The Declaration gives us the big picture, philosophical ideas that serve as the foundation of our nation.  The Bill of Rights is a more specific declaration of those rights – rights to be guaranteed, not granted, by the government.  The Bill of Rights is a restriction on government, not citizens.  The tone of that restriction is embodied in the First Amendment – "Congress shall pass no law…." – and repeated in the Second Amendment – "shall not be infringed".

Further, the idea that the Second Amendment rights are not "fundamental" is not consistent with earlier Supreme Court rulings.  For instance, in U.S. vs. Cruikshank (1876) the Court ruled "the right [to keep and bear arms] was not created by the [second] amendment, neither was its continuance guaranteed, except as against congressional interference."  This means that the right to keep and bear arms was not created by the Second Amendment, the right pre-existed the Second Amendment, and that right would continue to exist even without the Second Amendment.  The right to keep and bear arms is, indeed, a fundamental right.

The argument the Solicitor General makes that Heller vs. DC should only be afforded "intermediate scrutiny" is pure governmental arrogance.  Anytime any law is considered that potentially restricts any of our Constitutionally guaranteed rights, whether in the legislative process or in judicial review, the principle of "strict scrutiny" should apply.  Legislators need to be absolutely sure that whatever benefit they propose is worth the cost of restricting our inalienable rights.  The same cost-benefit analysis must be applied when judges review contested laws.

The Solicitor General appears to be playing a bit of CYA here.  The Solicitor General is a government functionary whose job is to protect the government, especially in a case where a perceived erosion of government power and authority may occur.  The government, and this is the case no matter which party is in charge, wants to maintain its grip on authority.  (I realize this sounds cynical, but how many cases can you think of where any government voluntarily gave up power?  I can only think of two cases – the collapse of East Germany, and the voluntary split of the Czech Republic and Slovakia.)  The current government, represented by the Solicitor General, is afraid the Supreme Court's decision, if based on strict scrutiny, will nullify a great majority of the current gun laws in affect – federal and state, not just in Washington, D.C. – and result in a tremendous loss of government power.

The Bush administration needs to withdraw the Solicitor General's amicus brief for further review, research, and study.  The Solicitor General's advisors and staff need to hit the books and review a significant concept that they have previously missed – The Constitution, and especially the Bill of Rights, are specific limits on government, limits adopted by the consent of the governed. 

And in the process of re-educating themselves, they need to look up the definition of "shall not be infringed." ESR

Charles Bloomer is a Contributing Editor for Enter Stage Right.  His website is Liberty Call U.S. © 2008 by Charles Bloomer

 

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