Scalia on Target

The SCOTUS decision in Heller is important. Let me crib from Lexington Green:

The enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Justice Scalia, The District of Columbia v. Heller

Heller was not just an affirmation of the common sense and historical interpretation of the 2nd Amendment as an individual right -indeed, the idea that the people did not have the right to be armed except at the pleasure of and in service to the national or state governments would have struck the Founders as outrageous tyranny – the entire Bill of Rights was added to placate moderate antifederalists who were unmollified by Hamiltonian assurances regarding Federal power – but of the right of self-defense itself. Not everybody believes that right exists. Or more precisely, they seek to convince you against all history and common sense that you have no right to preserve your life when threatened.

That ancient underlying right emanating from Natural Law is the real target of gun grabbers and authoritarian bureaucrats.

13 comments on this post.
  1. Jeremy Young:

    Scalia has a point, but I’d strongly support a constitutional amendment repealing the Second Amendment.  The right to keep and bear arms was only necessary when standing armies were being quartered in our homes; the fourth amendment obviated the need for the second.  In my view, supporting world peace and advocating for the second amendment is as bad as supporting world peace and opposing nuclear disarmament or the land mines treaty.  People may kill people, as Wayne LaPierre would have it, but the weapons they purchase and use certainly help increase the death toll.

    That said, I’m grudgingly with Scalia that the DC gun ban went too far given the current Constitution.  Even gun-control advocates expected to lose this case on constitutional grounds.

  2. Charli Carpenter:

    I’m not sure that IANSA folks and others in the human rights community would argue the right of self-defense doesn’t exist (though I certainly agree with you that that’s the implication of their policy stance on guns). I’ve asked some human rights advocates this question point blank, and most would say, yes there is a right of self-defense (in the abstract) but no, it’s not part of their policy agenda, and they don’t link it to gun ownership. It will be really interesting to see where the gun lobby gets with framing gun ownership in terms of human rights.

  3. Smitten Eagle:

    Scalia was correct.  I am, quite frankly, scared that only four other justices agreed with Scalia, and four other justices opposed the practical application of the right to self defense in the Constitution.

    To those who do recognize a natural right to self defense, but oppose the 2nd Amendment, or oppose the Heller decision:  How would one practice that natural right without firearms?

    I would actually go farther:  I think gun safety should be taught in public schools.  Why should I have to join the military or go to a NRA-sponsored gun safety course to learn the four rules of weapon safety?!  If guns are really as dangerous as our big-city mayors suggest, and if such weapons are dangerously omnipresent as they claim, why would they oppose such safety programs?

  4. The Heller Decision « The Smitten Eagle:

    […] I agree with Zen, too. Posted by smitteneagle Filed in Constitution, Guns, SCOTUS Tags: 2nd Amendment, Constitution, Guns, Scalia, SCOTUS […]

  5. Allen:

    Well, Jeremy, good luck with that Amendment repeal.  If you folks on the east and west coasts want to disarm, have at it.  Those of us in the center of the country will be happy to watch the criminal elements move to your neighborhood from ours and prey on you and your disarmed ilk.

  6. Seerov:

    "I think gun safety should be taught in public schools." (-SE)
    .
    Anthropologist Kieth Otterbein in his book "How War Began" suggested that gun safety should be taught in the same class as sex education.[1]
    .
    "Well, Jeremy, good luck with that Amendment repeal.  If you folks on the east and west coasts want to disarm, have at it.  Those of us in the center of the country will be happy to watch the criminal elements move to your neighborhood from ours and prey on you and your disarmed ilk." (Allen).
    As a person who lives on one of the coasts’, you can sure that me and my ilk are well armed.  But you are correct that the gun grabbers do tend to be people who live in upper middle class communities which features little crime.  This same demographic are the people who support forced busing while sending their kids to private schools. Why they are blind to this hypocrisy is beyond the "scope" of this discussion.
    .
    [1] http://www.amazon.com/How-Began-Texas-University-Anthropology/dp/1585443301

  7. zen:

    Hi Dr. Charli,
    .
    I tend to look at policy docs from the perspective of downstream implications and where the next logical political steps may be. I think you summed up the position of such activist groups fairly and their stance isn’t one that gives me great confidence. Some rights, as a practical matter, have a disproprtionate weight compared to other liberties in terms of day to day life outcomes. Lacking access to firearms, successful self-defense becomes a right primarily exercised only by the young, male and strong who are not excessively outnumbered. I’m not sure that’s a great situation for decent people in some of our nation’s dicier neighborhoods.
    .
    I have to point out that Jeremy’s stance, though I disagree with the idea of repealing the 2d amendment, actually respects  and strengthens the integrity of the Constitutional process. If SCOTUS could, as Stevens, Ginsburg etc. would prefer, make the 2nd amendment a dead letter by fiat then logically what prevents a future court for doing so with  any of the rights in the 1st amendment ? Or the 5th ? Or parts of the Articles that may suddenly be unfashionable?
    .
    SCOTUS has more than enough (derivative, implicit) power of judicial review in covering statutes and executive policies – actually deleting parts of the Constitution itself is not within the scope of their authority.

  8. democratic core:

    Lost in this discussion of the history of the 2nd Amendment is the fact that when enacted, the 2nd Amendment, like the other provisions of the Bill of Rights, only limited the power of the Federal government and was not intended to restrict the powers of the states.  I have little doubt that a Federal law banning handgun ownership would violate the language and historical purposes of the 2nd Amendment.  However, most gun control legislation is enacted at the state and local level.  As such, the history of the 2nd Amendment would seem to have little relevance to the issue of current interest.  While you assert that the Founders would have considered it to be "outrageous tyranny" for governments to deny a right to gun ownership, I suspect that they would have considered it to be more "outrageous tyranny" for a Federal court to dictate to state legislatures what kinds of gun regulations they can or cannot enact.  Unfortunately, all of this was lost in this case because of the bizarre constitutional status of the District of Columbia, which from a constitutional standpoint, is merely an instrumentality of the Federal government.  The appropriate ultimate outcome of all of this would be, (1) recognition that this decision applies only to the Federal government, and (2) DC statehood.  State and local gun laws can then be evaluated under the 14th Amendment’s Due Process, "rational basis" test, as Breyer suggests.

  9. Jeremy Young:

    I hate to say it, but I’m more against states’-rights arguments than I am against handguns.  I’d rather Scalia strike down the DC ban on constitutional grounds than uphold it on federal ones.

  10. zen:

    Hi democratic core,

    I think Scalia anticipated and checkmated the "rational test" countermove ( I respect Breyer for cleverly trying to get another bite at the apple here but no sale) with the specific wording of his opinion. If "self-defense" isn’t a "fundamental right" – thus preventing the rational test standard from being employed – then nothing is.

  11. Fabius.Maximus.Cunctator:

    "hey seek to convince you against all history and common sense that you have no right to preserve your life when threatened. That ancient underlying right emanating from Natural Law is the real target of gun grabbers and authoritarian bureaucrats."

  12. Fabius.Maximus.Cunctator:

    Zen,

    Sorry hit the button too fast – quote is above.

    Very well put indeed.

    I wouldn t wish to comment on the specifically American aspects on gun ownership (you are better off than all those poor serfs in Europe where I sit) although the fact that I am an occasional reader of Guns and Ammo and a "legitimate" sports shooter  according to the laws in my jurisdiction will indicate my position.
    However, the self defence aspect transcends borders and is a good indication where a country, its government and legal system stand.
    In that respect Britain is probably the worst place to be – a homeowner defending his family with a wooden spoon against a burglar may well go to jail there.

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