Quite simply, it would make no sense to include a collective right of the government for gun ownership and use in this laundry list of individual rights retained by the people.  Supreme Ricochet

Coming from the highest court in the land, every decision of the Supreme Court of the United States has consequences — huge foreseen and unforeseen consequences — in the courts throughout America.  But the decision by the justices last week to hear the Second Amendment case in which a District of Columbia resident is challenging the City's strictest-in-the-nation gun restrictions will ricochet throughout the federal and state courts for a long time to come — regardless of what the nine ultimate arbiters of the "supreme Law of Land" finally decide.

Indeed, the justices, themselves, acknowledged the immense importance of the matter in the order informing the parties, as well as the public, that the case would be heard this term.  The High Court told the lawyers to limit their legal briefs to address whether D.C.'s gun restrictions "violate the Second Amendment right of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."  In other words, the justices signaled that they will decide whether the right "to keep and bear Arms" can be claimed by "We the People," or whether the Second Amendment's prefatory reference to a "well regulated Militia" means the protection amounts to nothing more than an anachronistic dead letter.

Of course, the debate over the meaning and protection of the Second Amendment is nothing new.  In full, the 27 words, three commas and one period of the Amendment reads: "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."  For all of the obvious reasons, the language has led to a long and deep constitutional divide between those who believe the Second Amendment protects an individual's right to possess and carry a gun, and those who believe the Amendment limits any such protection to a collective right for state-established and -regulated defense forces.

Despite the fact that the Second Amendment is now more than two centuries old, the highest court in the land has never definitively ruled whether individual citizens can claim the right "to keep and bear Arms" as their own.  Indeed, it has been nearly 70 years since the justices even have decided a case directly raising the Second Amendment.  And, when the High Court last did so in 1939, in the words of current Chief Justice John Roberts, the justices "sidestepped" the issue, leaving the question of whether individuals possess some sort of constitutional protection for their guns "very much still open."

Based on the High Court's decision to hear the case, as well as the clear question the justices put to the lawyers, it is now clear that any such ambiguity will be resolved by the end of this term in late June.  And, whichever way the High Court rules will bind every judge — not to mention every federal, state and local government — in this country whose duty it is to uphold the Constitution as interpreted by the Supreme Court of the United States.  Thus, the case of District of Columbia v. Heller, No. 07-290, will result in a monumental decision answering the question of whether "the people" have any constitutional right "to keep and bear Arms" at all.

There is plenty of ammunition on each side of the constitutional divide that the justices can and likely will use in reaching their ultimate decision.  Numerous lower courts decisions, law review articles and scholarly books have researched and analyzed the Second Amendment in its text, history and policy to determine what it really means.  But, in the end, on the truly foundational and fundamental question of whether the Amendment protects an individual right "to keep and bear Arms," all such evidence of its constitutional purpose pales in comparison to where the language resides — namely, the Bill of Rights.

As schoolchildren learn in their civics classes, the first ten amendments to the Constitution were added at the insistence of the Anti-Federalists who believed an enumeration of protected individual freedoms was necessary to ensure the government did not transgress on natural rights always retained by the people. 

In the Bill of Rights — right after the First Amendment lists the individual freedoms of speech, press, religion assembly and petition — lives the Second Amendment, continuing the individual rights list with "the right of the people to keep and bear Arms."  The list then goes on to protect individuals from the quartering of troops in their homes in the Third Amendment, from unreasonable searches and seizures in the Fourth Amendment, from self incrimination and double jeopardy in the Fifth Amendment, and on and on.

Quite simply, it would make no sense to include a collective right of the government for gun ownership and use in this laundry list of individual rights retained by the people.  Indeed, such an interpretation would be at odds with the very reason the Bill of Rights was necessary in the first place.

This powerful observation was made on the television series "The West Wing" by the fictional Republican attorney turned Democratic White House counsel Ainsley Hayes when she pointedly highlighted the hypocrisy of individual rights obsessed liberals who "love the Bill of Rights, all of them — except the second one."  Such is the reason that we believe, while the forthcoming Supreme Court decision on the Second Amendment will be a monumental one, it should not be a close one.  After all, though such a decision will no doubt cause a supreme ricochet throughout the country, for the justices to decide otherwise would be a monumental mistake.

November 30, 2007
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