Second Amendment Used to Dump Gun Law

 by Larry Pratt  

| View comments |  Print This Post

Judge Laurence H. Silberman has written a landmark legal decision using the Second Amendment to overturn the D.C. gun ban.

Judge Laurence H. Silberman has written a landmark legal decision using the Second Amendment to overturn the D.C. gun ban.  No court has ever used the Second Amendment to overthrow a gun law.  The case is known as Parker v. District of Columbia.

With the overturn of the DC gun ban, the very restrictive law on the books before the 1976 ban is once again the law in D.C.  But, people can at least once again buy a handgun and keep it in their house.

Judge Silberman's decision provides a platform for the next challenge to other anti-gun laws in the District.  No doubt that is what especially troubles the socialist politicians of the District.  The thought of citizens empowered to protect themselves and not having to rely on the ineffective protection offered by the government terrorizes them. 

Think about it – if people can protect themselves, they might start thinking for themselves.  Isn't that what is "wrong" with flyover country?

These are some of the highlights of the decision:

[t]he Second Amendment protects an individual right to keep and bear arms.

* * *

The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty.

* * *

Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

* * *

With 'a free State,' we understand the framers to have been referring to republican government generally.

* * *

[t]he bar on carrying a pistol within the home [and the requirement to keep it disassembled] amounts to a complete prohibition on the lawful use of handguns for self-defense.  As such, we hold it unconstitutional.

Let me go back and expand on a couple of points in the list above.  Silberman showed that the militia was compulsory, requiring men to enroll much as the Selective Service had men register for the draft.  Fines were assessed on those who did NOT have their own militia guns, ammunition for them, and keep them in good repair.  House to house searches were even conducted to ensure that individuals were keeping, and thus able to bear, arms.

The word "state" in the Second Amendment is found this way: "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."  "State" was the word seized upon by anti-gunners to develop a novel theory (in the latter part of the 20th Century) that militias, and thus gun ownership, were strictly a matter of state privilege.  Silberman showed that the founders' use of the term "free State" was a reference to preserving limited, constitutional government – otherwise known as a republican form of government. 

In other words, individual gun ownership was seen as essential to preserving individual liberty.  Government is not, and was not, the source of those liberties because they predated the creation of the United States by its Constitution. 

Justice Silberman is owed a debt of thanks from all Americans, because his opinion has gone a long way to clearing away the confusion around gun ownership and placing it in the proper context: no guns, no freedom.

It should be pointed out that all Silberman's decision could do was throw out the DC gun ban of 1976.  That was all the plaintiffs were able to challenge in court.  However, all the prior registration and licensing laws are now fair game for challenge on the grounds that they also violate – "infringe," to use the Second Amendment word – the individual right to keep and bear arms.

Congress has – and has had all along – the constitutional responsibility for legislation in DC.  They can delegate that to the D.C. City Council, but they cannot remove themselves from the constitutional requirement that they be the final authority for legislation governing the federal enclave.

The elitists in DC are hardly likely to want to clean up the rest of their anti-gun, anti-self defense mess that is still on the books following the Parker decision.  Their priorities can be clearly seen by contrasting their reaction to two events. 

D.C. officials are outraged by the Parker decision.  They are accusing the justices of judicial activism.  The way to understand their double speak is this: A (rare) decision based on upholding a constitutional principle is viewed by the socialists as activism.  A liberal decision that assumes that judges can amend a "living" constitution is "settled law."

Those same DC officials were totally unconcerned, however, when plaintiff Shelly Parker was being attacked in her home.  She wanted to sue the District to get rid of the handgun ban because drug dealers in her neighborhood had tried to break into her home.  When they did, one of them shouted: "I will kill you!  And I live on this block, too." Perhaps D.C. officials are afraid that the thug might have been shot if Ms. Parker had a gun? 

It seems more than our elite rulers can understand.  They have 24/7 police protection – armed police protection. They experience no crime problem.  So, why should the rest of us need a gun?

Since the D.C. officials are not likely to "get it" regarding the problem the rest of us have with crime, Congress needs to step up to the plate and exercise its constitutional responsibility.  Congress should get rid of the pre-ban gun control laws in D.C. and legislate a concealed carry law similar to the one in neighboring Virginia.  I would like to see there be no permit required at all, as is the case now in Vermont and Alaska, but at least a fairly workable law such as Virginia's would be a big step forward.

If D.C. residents could legally carry concealed firearms (the way crooks are already doing illegally), watch for crime to plummet.  The only people who would really suffer from getting rid of the rest of D.C.'s gun laws would be the crooks. 

Well, there would be some gnashing of teeth heard from City Hall, too.

* * *

[Editor's note, 11/19/07.  John Montenigro helpfully supplied the following link to the Justice Department's research and position on the 2nd Amendment.

http://www.usdoj.gov/olc/secondamendment2.pdf

Mr. Montenigro writes: I strongly encourage EVERYONE with a passion for our Constitution, the 2nd Amendment, and for our history as a nation to take the time to read all 120 or so pages. I think it should become a standard basis for RKBA discussions.]

Second Amendment

Read more articles by Larry Pratt