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"The People" narrowly prevail, 5-4

By Mark Alexander
web posted June 30, 2008

"A well regulated militia, being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed." —Second Amendment to the United States Constitution

Last week, in a narrow 5-4 vote (Scalia, Alito, Roberts, Thomas and Kennedy), the Supreme Court reaffirmed, in District of Columbia v. Heller, that the people's inherent right to keep and bear arms is plainly enumerated in our Constitution. The Court ruled that the Second Amendment ensures an individual right, that DC could not ban handguns, and that operable guns may be maintained in the homes of law-abiding DC residents.

However, the ruling still leaves open the question of whether the Bill of Rights has legal precedence over state and municipal firearm restrictions.

As UCLA Law School professor and constitutional scholar Eugene Volokh points out, "The Heller decision only involved the Second Amendment's effects on federal laws (including laws of federal enclaves, such as DC). Whether the Constitution limits state and local gun bans—which is to say, whether the Second Amendment is ‘incorporated' against states and their subdivisions by the Fourteenth Amendment—will have to be decided in a future case."

Thus, 15 minutes after the Heller decision was announced, the Illinois State Rifle Association announced its suit against the city of Chicago, which has gun restrictions similar to those overruled in the District of Columbia, in order to establish that precedent. Similar suits will no doubt follow in other states.

In a masterful feat of doubletalk, Barack Hussein Obama, who erroneously asserts, "The notion that somehow local jurisdictions can't initiate gun laws isn't borne out by our Constitution," claims the Supreme Court agreed with his interpretation.

Mind you, this is the same Barack Obama who recently said, "I have never favored an all-out ban on handguns," even while denying the plain truth that his signature appears on a questionnaire indicating that he does favor such a ban; the same Barack Obama who recently said during a 16 April debate when asked by Charlie Gibson whether the DC gun ban is consistent with the Constitution, "Well, Charlie, I confess I obviously haven't listened to the briefs and looked at all the evidence."

Would Obama make the same argument about local jurisdictions regulating issues like segregation? Does he suggest, by extension then, that our national Constitution can be amended by judicial dictates and local ordinances?

I can't help but ponder how future 2A cases would fare if the Obama/Clinton ticket wins in November and then stacks the courts with judicial activists who subscribe to their adulterated view of a "Living Constitution."

There is no more important constitutional issue regarding the liberty of our Republic than that of defending the plain language and original intent of our Second Amendment.

As James Madison, our Constitution's principal author, wrote in the Federalist Papers (No. 46), "The ultimate authority... resides in the people alone... The advantage of being armed, which the Americans possess over the people of almost every other nation... forms a barrier against the enterprises of ambition."

More to the point, Justice Joseph Story, appointed to the Supreme Court by Madison, wrote in his Commentaries on the Constitution of the United States (1833), "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

The "Living Constitution" Leftists, however, have been whittling away at the people's powers for more than a century.

In Federalist No. 81 Alexander Hamilton writes, "[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution..."

But, Thomas Jefferson feared, "The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

Jefferson clearly understood human nature, and though our Founders never intended the courts to amend our Constitution by judicial diktat, he foresaw what British historian Lord John Acton affirmed in 1887, a hundred years after the adoption of our Constitution: "Power tends to corrupt, and absolute power corrupts absolutely."

Fortunately, the Supreme Court can still occasionally produce a simple majority of constitutional constructionists who rule on the basis of that venerable document's original intent.

That certainly describes Justice Antonin Scalia, for whom the Constitution has long been an unerring compass.

Justice Scalia, who wrote the majority opinion in District of Columbia v. Heller, aptly noted in 2005: "As long as judges tinker with the Constitution to ‘do what the people want,' instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically."

In the Heller case, Justice Scalia wrote, "Nowhere else in the Constitution does a "right" attributed to "the people" refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention "the people," the term unambiguously refers to all members of the political community, not an unspecified subset... The Second Amendment extends, prima facie, to all instruments that constitute bearable arms... The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed'."

Justice Scalia continued in defense of original intent: "We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing' approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. 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... Undoubtedly some think that the Second Amendment is outmoded. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

Indeed, the Second Amendment is "the palladium of the liberties of the republic," and those who fail to support it as such do so at great peril to the liberty of future generations of Americans. However, when the rights of man, as enumerated in our Declaration of Independence and its subordinate exposition, our Constitution, hang in the balance, Patriots do not rely on a court of men for interpretation. ESR

Mark Alexander is the executive editor of the Patriot Post.


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