Laziness, pure laziness.

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“The right of the People to keep and bear Arms” is about the only remaining ‘right’ that has any semblance of ‘substantive’ content. To whittle it down with a ‘reasonableness test’ would reduce it to the level of our other ‘rights’ – a ‘procedural expectation’.

But I must admit that it would take a really ‘creative interpretation’ of the Constitution to get round “shall not be infringed” – but the one thing we have come to expect from SCOTUS is ‘creativity’.

But, yet again, even the fact that the Bush People could submit such a Brief illustrates to me that these things we call ‘rights’ are a joke. Of course, the Brief could simply have argued that the ‘right’ to bear arms is realized through the elected representatives of the People ‘arming’ law enforcement authorities. That would neatly get round the “shall not be infringed” provision. The Brief could thus have argued that the peoples’ ‘right’ is exercised sort of by ‘proxy’. The rationale would be that the ‘right’ is ‘defined’ and ‘limited’ by the provision “being necessary to the security of a free state”.

If the argument were put that way, the ‘right’ as we know it would simply disappear. The Court would have to ask itself how the ‘right’ to bear arms could most effectively be implemented in order to achieve the ‘objective’ of preserving the “security of a free state”.

From there it would a simple matter to assert that the “security of a free state” requires, even demands, that arms be kept out of the hands of ordinary citizens (because unrestricted possession of arms could be ‘threat’ to the “security of a free state”), and that the ‘right’ be reserved to law enforcement who would “keep and bear Arms” on behalf of the People in the interests of preserving “the security of a free state.”

Of course, I would strongly disagree with such an interpretation, but we should make no mistake about it, it is coming.

The European Court of Human Rights (ECHR) in the case of Konrad and Others v Germany applied precisely such an argument when upholding Germany’s prohibition of Homeschooling. The ECHR said this: “any interference [with rights to family life, education, freedom of thought, etc] would …be justified as being provided by law and necessary in a democratic society and in the public interest of securing the education of the child.” [I refer to this case in my book Freedom v A Tyranny of Rights]

Simply substitute the bearing of Arms into that reasoning, and the ‘right’ to “keep and bear Arms” is gone. It could go like this – ‘any interference with the “right of the people to keep and bear Arms” would be justified as “being necessary to the security of a free state”, and the ‘right’ would thus be exercised on behalf of the people through the arming of law enforcement officers appointed by the state for that purpose – the preservation of “the security of a free state”’

Joseph BH McMillan http://www.freedomvrights.com