The Daily Gazette - Schenectady, NY
Daily Gazette

The big gun decision
Friday, June 27, 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

You might call it judicial activism, this latest decision from the Supreme Court declaring that the Second Amendment guarantees an individual right to own a gun apart from membership in a militia, but what an embarrassment that would be.

Conservatives are supposed to be against judicial activism, and the judges who made the decision are conservatives. Also, the people who applauded them for it are conservatives.

So what’s going on?

In my opinion the five-member majority on the court reached a compromise between ideology and practicality.

Ideology required the declaration of an individual right of gun ownership, never before recognized by any court. Practicality required all kinds of infringements on that right, having no basis in the Constitution or anywhere else.

So under this new decision most of us can keep and bear arms, but felons and the mentally ill cannot.

We cannot keep and bear “dangerous and unusual” weapons, whatever those might be.

We cannot bear arms into “sensitive places,” like schools and government buildings.

The legal basis for these infringements is a mystery, since the Second Amendment clearly says the right shall not be infringed.

So that’s what the decision is: half ideology, half practicality. All of it manufactured in the most judicially active way imaginable.

For a fuller and more entertaining discussion, please see my column in the print edition of the Sunday Gazette, available at your local convenience store.




comments

June 27, 2008
9:02 p.m.

[ Suggest removal ]
ehgauss ( no real name given ) says...

I welcome the clarification provided by the Supreme Court. Now that the right to keep and bear arms has been confirmed, within some not too unreasonable limitations, perhaps our legislatures will get past the idea of controlling guns by imposing limits on ownership or possession by law-abiding, responsible citizens, and begin to enact some reasonable gun laws that apply to the lawless and irresponsible. For starters, how about a law that imposes penalties for possessing a gun while committing a personal crime, e.g., robbery, assault, rape, attempted murder, etc., that are the same as actually having used the gun to commit murder. After all, possessing a gun while committing such acts is close to prima facie evidence of the willingness to commit murder. In the cases where the crime does not result in murder, it's clear that there is willingness to commit murder if necessary. The true crime is willingness to commit murder, whether murder results or not, and should incur the comparable penalties.

June 29, 2008
9:12 a.m.

[ Suggest removal ]
ts ( no real name given ) says...

In your print article, you mention that the idea of a militia is out of date. That may seem so today with our full-time professional army. Even though the probability is small for the foreseeable future, this country could fall under a tyrannical federal government. The states have been reduced to having very little political, economic, and military power, so the populace (some of which are armed) is about the only counterbalance.

Even if we did not have a second amendment, where else in the constitution does it allow the federal government to regulate arms? During ratification, the most prominent argument against the bill of rights was that it would be interpreted as a laundry list of rights -- the federal government could regulate anything but those items specifically restricted by the bill of rights. Unfortunately, that's virtually the case now.

For someone like you who is so picky about words, I'm surprised that you read the first part of the second amendment as some sort of restriction on the right, rather than an explanatory clause.

June 29, 2008
2:32 p.m.

[ Suggest removal ]
myshortpencil ( no real name given ) says...

Mr. Strock, I commend your indignity to Scalia's dicta that essentially supports the notion of a living constitution which can be amended on the fly by judicial fiat. As examples, you cite nods to the constitutionality of restricting gun ownership to sensible, law-abiding citizens and prohibiting the bearing of weapons in schools and government buildings. Whenever justices perceive that an unamended, strict interpretation of an ancient provision of the constitution would create something analogous to a suicide pact in the context of modern society, they uniformly and nearly unanimously vote to doctor the language to avoid undesirable consequences rather than hold fast to the document and insist that modifications come through the amendment processes provided in the constitution. This too-frequent practice is often justified by urgent needs, which sometimes exist but more often are dreamed up by justices with big egos desiring to be esteemed as indispensable saviors of the nation.

But your indignity of the core holding that the right to keep and bear arms is an individual right independent of membership in a militia is folly. Imagine what pioneers or frontiersmen would have said in 1800 if you, Mr. Strock, had told them as the governor of a state or territory that unless they (men only) had active membership in a militia that trained monthly they (men only) could keep and bear firearms only with state permission and only if they stored the firearms so they could not be used instantaneously for self-defense. Why, Mr. Strock, you'd be ridiculed and labeled as one of those feeble-minded sorts dispossessed of their right to bear arms today. The laws didn't state the right to bear arms was an individual right any more than they stated that marriage was only between a man and a woman. Both were so deeply entrenched in the culture that no one could imagine that anything different could possibly exist in the future. It's kind of like the right of columnists to make moronic comments destructive to a sound understanding of liberty. The right isn't explicitly stated anywhere because its daily repetitions are so much a part of society that no one can imagine anything different. I commend your continuing endeavors to preserve this implicit right for generations to come.

I am, your greatest friend,
myshortpencil

June 29, 2008
5:09 p.m.

[ Suggest removal ]
myshortpencil ( no real name given ) says...

In today's world, with massive governmental powers of taxation and a military that has everything imaginable for its success and protection, it's very difficult to conceive of a time when the colonial and federal governments had relatively little power to collect revenues and even less ability to collect the taxes they did levy. The only practical way the states or the feds could quickly organize armed militias was if those being organized owned firearms in the first place. The very concept of a militia presumed a previously armed citizenry--one that was armed for self-protection, survival and hunting, not for the protection of a nation that didn't yet exist! If there were no individual right to keep arms, there could be no militias, or at least there would have been smaller and less well-armed versions of them. The governments simply didn't have the resources to fully arm the militias, and in fact, did a terrible job of keeping them fed and clothed, let alone armed.

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