A long way to go on Second Amendment rights

Even with favorable Supreme Court decisions, past mistakes put us in jeopardy

By Ben Robison
  • Thursday, March 11, 2010

In 2008, the Supreme Court struck down the Washington, D.C., gun ban, ruling that the right to keep and bear arms was an individual one (Heller v. Washington D.C.).  However, since Washington, D.C., is a federal district, the ruling did not apply to similar bans that exist on state or city levels. 

Nevertheless, the Heller case did lay the groundwork for what most likely will produce another landmark decision in McDonald v. Chicago. This case was argued last week, and while a decision will not be published until this summer, most believe that the Court will also strike down Chicago's gun ban.

McDonald's attorneys argued that the Second Amendment should be incorporated via the Due Process clause of the Fourteenth Amendment (they also argued to incorporate the Second Amendment using the Privileges and Immunities clause of the Fourteenth Amendment, but experts do not expect the justices to rule for that).  In constitutional terms, incorporation means that selected provisions of the Bill of Rights are made applicable to the states. If the court rules as expected, the Second Amendment would have to be honored by the states.

Thus with the Heller and McDonald decisions, the Supreme Court appears to be ready to give gun owners everything they have asked for thus far. While these decisions appear to be huge victories for gun-rights advocates, celebrating now would be premature.

The problem with the argument presented in McDonald is that it has necessarily been framed to integrate self-defense rights into a body of existing law that frequently sees rights as the gift of government. 

Remember that the Second Amendment acknowledges a right to arms for the purpose of self defense. The right of self defense is a natural right. It is not given to us by the government. All human beings inherently possess this right. The Second Amendment simply affirms that. Thus, arguing for the incorporation of the right of self defense under the Fourteenth Amendment tends to undermine the correct understanding of the Second Amendment, which begins to appear just another product of lawyer jiggery-pokery. 

Nevertheless, while incorporation of the Second Amendment should be unnecessary, today, because of a long train of past political mistakes, it is necessary. And while the argument to incorporate the Second Amendment was made from a position of weakness, that weakness can be remedied. 

Nevadans must decide to be heard on this issue, and this, because of these rulings, is an ideal time to act. State legislators need to be encouraged to repeal bad Nevada gun laws, including the unconstitutional concealed-carry permit system and state-level background checks.

On the federal level, Nevada gun advocates need to work with those in other states to rein in the federal government. While it is encouraging to see Chicago's onerous gun ban ruled unconstitutional, the ruling will be a double-edged sword, as it places a limit on states' rights. 

It is unlikely that the Supreme Court will define those limitations right now. Instead, this will become the next debate. Such a debate should center on what constitutes an "infringement" of the Second Amendment.

For example, while D.C. residents can now own handguns, they cannot carry them in public.  Since no reasonable concept of the right of self defense would limit that right to only the home, this law is an infringement.

Yet anti-gun groups will claim that restricting the right to carry outside of the home increases public safety. This claim is demonstrably false, as studies show that when citizens are free to carry guns in public, violent crime decreases.

Rather than allow anti-gun groups to lay claim to the cause of "public safety" as they have in the past, they need to be made to defend their position, which actually decreases public safety. If gun owners take the initiative by framing this debate, our chances of retaining the right of self-defense — and some measure of state sovereignty — will increase dramatically.

Should we fail to accomplish this, however, the ultimate cost is almost certain to be beyond calculation.

Ben Robison is a contributing writer to the Nevada Policy Research Institute.

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