On the DC gun ban ruling

I’ve just read the best commentary on the DC gun ban ruling I’ve seen (out of the very few places that have covered it) over at the Reason magazine web site. As the real root of the article, the author wonders why the federal appeals court ruling the gun ban unconstitutional is “interpreting the Second Amendment broadly,” as The New York Times reports. After all, as he points out, actually protecting free speech rights or unreasonable search and seizure rights would not be seen as overly broad interpretations of First or Fourth Amendments.

This oddly bifurcated view of an enumerated constitutional right helps explain why the gun control debate in this country is so acrimonious. When one side considers the Second Amendment a nullity and the other side thinks it counts for something, there is no safe middle ground.

. . .

The court did not say Americans have a right to own anti-aircraft missiles or nuclear warheads. It did not even say they have a right to carry guns publicly (although that does seem to be implied by the “bear” part). It said they have a right to keep guns in their own homes for self-protection.

The idea that the amendment’s prefatory clause, referring to the importance of a “well regulated Militia,” obliterates everything that follows is a relatively recent interpretive innovation. It was unknown to the Framers and to the leading legal scholars of the 19th century, all of whom saw the amendment as guaranteeing a pre-existing right to use arms for defense against criminals, invaders, and tyrants.

The part about the militia (which included all able-bodied white men of fighting age, each of whom was expected to bring his own weapons) was meant to acknowledge one important function of the right recognized by the Second Amendment, reassuring Antifederalists who worried that the new national government would abolish state militias. It was not meant to transform an individual right into a state prerogative.

Any intrusion on American’s rights by the government grates on me. That’s in large part why I’m so anti-George Bush. To me, protecting gun owners’ right matters as much as restricting illegal eavesdropping on Americans without court authorization. The appeals court got this right, and seeing a newspaper, which absolutely depends on First Amendment protections, questioning that ruling is baffling.

[tags]Reason magazine on the DC gun ban, Protecting the Second Amendment[/tags]