Thursday, June 26, 2008

The Scalia Ruling

The Supreme Court has ruled 5-4 (with Antonin Scalia writing the majority opinion) that the US Constitution guarantees the rights of individuals to own weapons, effectively overturning a law in Washington, DC banning the ownership of handguns. In Scalia's opinion, he wrote:

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.
This is a reasonable argument. I have never believed gun ownership could be totally banned under the terms of the Constitution. Given the historical context under which the Bill of Rights was written, the argument is that the original framers never intended for people not to be able to bear arms. Today, in fact, I went back and read the Bill of Rights for some non-legal (as I am no scholar) way to sort this out. I may still get it wrong in someone's eyes, but my analysis is that the Bill of Rights is all about the rights of individuals, while a ban on handguns is about the right of the state to regulate the rights of individuals.

Read the Bill of Rights here. If you read the text you'll see that each amendment specifically refers to individual rights (except the 10th amendment, which I'll discuss later):

1 -- "Congress shall make no law.... the right of the people"
2 -- "...the right of the people..."
3 -- "...without the consent of the owner..."
4 -- "The right of the people..."
5 -- "No person shall be held...nor shall any person...nor shall private
property be taken for public use..."
6 -- "... the accused shall enjoy the right..."
7 -- "... the right of a trial by jury shall be preserved..."
8 -- About excessive bail or cruel and unusual punishment, which doesn't refer to the "right" of the government
9 -- "...retained by the people."
10 -- "...are the people."

The 10th amendment does refer to the "powers" of states to reserve powers "not delegated to the United States by the Constitution, nor prohibited by it to the States." In a way, I see that as a way for individual states or local governments to challenge the Constitution, which I guess some could argue could serve to balance out the rights of individuals with government powers. (As an aside -- people talk about "states' rights" all the time, but it's a complete misnomer. States don't have rights -- they have "powers," according to the Constitution. The choice of the word "powers" implies that states and governments exercise control over the citizenry, while individuals are given "rights" under the Constititution that protect them against government powers.) However, by adding "or to the people" at the end, the framers of this amendment pass on the right to challenge the Constitution to individuals as well.

Therefore, my argument is that it makes no sense to me that a government can use the Second Amendment to ban the ownership or use of weapons used for an individual's self-defense without infringing on the rights of individuals that run common to every one of the Bill of Rights.

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