Tuesday, February 05, 2008

Look At Second Amendment in Light of Other Bill of Rights Amendments

Well, not really news, so much aslitigation commentary. The Post's Robert Barnes writes:
"However else [the District] might regulate the possession and use of arms, their complete ban on the home possession of all functional firearms, and their prohibition against home possession and movement of handguns, are unconstitutional," wrote Alan Gura, one of three lawyers representing those who challenged the District's 1976 ban.

District of Columbia v. Heller, to be argued before the justices March 18, promises a historic examination of the Second Amendment, which holds that "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."

It has been 70 years since the court's last substantive review of the Second Amendment, and supporters and opponents of gun control remain adamantly divided on whether it protects an individual's right to possess guns or only provides a "collective" right of citizens related to military service.

The U.S. Court of Appeals for the District of Columbia Circuit last spring became the first appeals court to use the individual-rights interpretation of the amendment to strike a gun-control law. Most of the courts that have examined the issue have ruled that it protects only the collective right.

But Heller's brief said the amendment's preamble referring to the militia gives one, but not the only, reason the framers considered the amendment necessary.

"No doubt or ambiguities arise from the words 'the right of the people to keep and bear arms shall not be infringed,' " the brief contends. "The words cannot be rendered meaningless by resort to their preamble."
The DC gun case has become a battle between the individual rights interpretation and the collective rights interpretation of the Second Amendment.

I will admit, I used to fall into the collective rights camp, but the more I think about and study the time of the Founding of our nation, the more I have come to believe that the Framers intended for an individual rights interpretation. If one is to look at all the other Amendments in the bill of rights, they are individual rights. Free Speech, Free Exercise of religion, double jeoardy, ban on cruel and unsual punishment, Fourth Amendment Search and seizure rights. Based on that context alone, it would seem extraordinarily unusual for the framers and the First Congress to create a litany of protections for individual rights, particularly in the First Amendment, and then in the very next Amendment say, "Well, this isn't really an individual right but a community right." Then, after expressing a "community right," the Framers the return to individual rights? It seems too much of a stretch.

What is amusing to me is that I have seen very little commentary that looks at the Second Amendment in light of the other Amendmetns in the Bill of Rights. Granted, the Bill of Rights was written as protections of the people from Federal Government action, but their application through in the Incorporation Doctrine has made most of the protection applicable to state government as well.

The times when a collective right should trump an individual right must be discrete, defined and limited. If collective rights is to win in this case, what is next? I know a slippery slope is a bad argument, but the minute we as a nation, founded on the principle of individual freedom and individual autonomy allow for the collective rights to take precedence whenever the legislature says so, that is the time when our nation will no longer function as a democratic republic and will begin to function as a socialist state.

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