POINT: Taking aim on gun decision
Court's ruling this week the minimum standard
By Ari Armstrong
Saturday, June 28, 2008
Istockphoto.com
Self-defense is a fundamental human right. Now the Supreme Court has affirmed what most Coloradans have long held and what our state's constitution also strongly protects: the individual's right to own a gun.
The June 26 ruling on District of Columbia v. Heller overturns Washington, D.C.'s handgun ban and requirement that guns be kept inoperable in the home. Gone is the fantasy that the Second Amendment protects only state militias.
The court's ruling comports with the historical interpretation. To take one of many examples, in the 1990 case United States v. Verdugo-Urquidez (cited both by Heller and the book Supreme Court Gun Cases) Chief Justice William Rehnquist compared "the people" of the Second Amendment with those of the preamble, Article I, and other amendments as "persons who are part of a national community."
The court finds in its 5-4 decision "that the Second Amendment right is exercised individually and belongs to all Americans." While the Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation," it, "like the First and Fourth Amendments, codified a pre-existing right" [court's emphasis].
Second Amendment protection does not mean that people may do whatever they want with a gun. The First Amendment does not protect slander, fraud, incitement to violence, or yelling "Fire!" in a crowded theater.
Similarly, the Second Amendment does not protect criminal misuse of a gun, such as threatening others or firing over a crowd. Defensive gun use properly is limited to a measured response in emergencies of serious danger.
The debate now turns to which restrictions are permitted under law.
After two shootings last weekend in Denver, one seriously injuring an 8-year-old victim, some find comfort in talk of more severe gun restrictions. Yet, while details of those shootings continue to emerge, it's clear that the perpetrators broke numerous existing laws. Diverting police resources to restrict the millions of responsible gun owners undermines their rights without addressing violent crime.
As UCLA law professor Eugene Volokh writes at Volokh.com, "Whether the [federal] Constitution limits state and local gun bans" remains open, as the District of Columbia is governed by federal law. However, Volokh notices, the court mentions the 14th Amendment, which does limit state abridgments of liberties.
The court reasonably allows restrictions for "felons and the mentally ill" and government buildings. Beyond that, the court permits overly broad exceptions to the phrase, "shall not be infringed."
The court's mention of "sensitive places" such as schools is too vague. While government schools may be subject to some government restrictions, private schools and facilities properly have the right to set their own policies.
Restrictions of the "commercial sale" of guns easily become arbitrary and corrosive of rights.
While some types of weapons are inherently unsuited for self-defense, the court's protection only of guns "in common use" is no more defensible than protecting only commonly read books.
Laws such as waiting periods, selective bans and rationing (as with one-gun-per-month restrictions), though perhaps permitted by the court, infringe the right to bear arms if they make it harder for peaceable people to defend themselves, especially if such laws also fail to curb crime.
The court leaves open the issue of licensing and registration, noting that nobody asked to overturn the District of Columbia's licensing requirement.
Coloradans have the legal right not only to defend themselves in their homes but to obtain concealed-carry permits, measures that stop and deter crime. Though the court allows prohibitions of concealed carry, Colorado did well to liberalize it.
We should view the Supreme Court's decision as the minimum standard of liberty. Our Founders wisely created governmental branches with checks upon each other, and the Supreme Court plays a crucial role in that process.
Ultimately, though, our liberties depend on us.
Ari Armstrong edits the Web site FreeColorado.com. He is a resident of Westminster.
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June 28, 2008
11:21 a.m.
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blacksho89 writes:
Tommy: SCOTUS was not ASKED to decide those issues. That's different from ignoring.
June 29, 2008
10:02 a.m.
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Attilla writes:
No government can create a "right"! Government can either deny it exists or confirm that it does. Fortunately in the current case government acknowledged that you have the "right" to defend yourself. Interestingly, in 2007, the United States Supreme Court ruled that government has no legal obligation to protect the individual. The only one with that obligation is you!
June 29, 2008
12:09 p.m.
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Davek80501 writes:
"Colorado municipalities such as Denver have blatantly ignored our states constitution regarding gun ownership"
Tommy,
Denver did not ignore it, they just went to a liberal judge who decided that Denver could do what ever they wanted to do to usurp our Constitution and make their own law. I believe that everyone of the people that had a hand in that should be brought up on charges.
June 29, 2008
5:34 p.m.
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gunnertwenty writes:
I always thought a city was a creation of the state. Yet Denver seems able to ignore the state constitution. I hope this new S.C. decision will allow Denver to be taken back to court and forced to adhere to state law. Because some people violate the law doesn't mean everyone should be penalized for it. Enforce the law on criminals but let honest citizens carry guns to defend themselves with. They are not the problem. The mayor seems to have armed security. Doesn't he feel the people of Denver deserve some protection too?
June 30, 2008
1:24 p.m.
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BO writes:
Davek-
Brought up on charges of what, pi$$ing you off? If you're going to bring lawyers and judges up on charges, there are other, more serious instances where that would be more appropriate than for passing an anti-gun law (like setting a child rapist free because of a technicality).
Localities do have right to pass their own laws and ordinances-happens all the time. Nebraska has a conceal-carry law. However, localities and private businesses and other public locations still have the option to set their own rules in accordance with the law (i.e. not allowing the conceal-carry law in a certain city, and businesses have the right to ban guns from their locations).
June 30, 2008
2:50 p.m.
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AngelontheSidelines writes:
Home rule charters can basically do whatever they wish, that is the way our state Constitution is written.
June 30, 2008
9:46 p.m.
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HopiMedicineMan writes:
Whether a local government entity decides whether to ban guns or not is academic versus reality. As a former Denver cab driver I can attest, every felon in Denver is armed. Guns are available on East Colfax after midnight most days. A .40 Glock can be obtained without a background check and for less money than from a licensed retailer.
Knock off Glocks are produced in Columbia, Pakistan and India. It is naive to believe banning guns would result in their absence from society. Guns are here to stay. I'd rather have an even-up chance against an armed felon than see a 61% increase in violent crime as in Britain since banning handguns.