A Second Amendment victory — but for how long?

The stability of the McDonald decision depends on gun owners’ resolve

By Ben Robison
  • Wednesday, June 30, 2010

On Monday, the Supreme Court issued a landmark decision in the case McDonald v. Chicago.  The Court ruled, 5 to 4, that the Second Amendment is incorporated — meaning that states, through the Fourteenth Amendment, must honor the individual right to keep and bear arms. 

A previous commentary gives the background for this and the related Heller case. But the opinions issued this week by the justices, revealing the mindset of the current Court, underscore how fragile our liberty really is.

"Self-defense is a basic right, recognized by many legal systems from ancient times to the present day," observed Justice Samuel Alito in the majority opinion. "In Heller," he noted, "we held that individual self-defense is ‘the central component' of the Second Amendment right."

"In sum," Alito concludes, "it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

With history painting so clear a picture, Americans should be concerned that four of the justices essentially voted for handgun bans. The McDonald decision should have been unanimous, yet had one of the majority justices voted the other way, states would have been anointed with the power to deny individuals the use of firearms for self defense.

While anti-gun groups will likely seek equivocation in Alito's statement, there is none: The Second Amendment is an individual right that is fundamental to our nation, and the states must honor it.

This ruling is a victory for freedom, yet we would be wise to remember Thomas Jefferson's counsel that, "Eternal vigilance is the price of liberty." If gun advocates choose to rest now, this decision could be used to actually restrict the natural right of self defense. This is because no formal definition of "infringement" yet exists. Necessarily, it will become the issue of the next debate.

Gun advocates need to use the momentum from the McDonald and Heller decisions to clearly define, in case law, "the right to keep and bear arms."

Nevada could lead in this area. 

Part of the genius of the Founding Fathers, embedded in the Constitution, is a system in which Americans can use the states as laboratories. The latitude that states have to experiment allows us to determine the best way to ensure freedom. As state citizens, we not only decide on the laws that we will live by, we also have the benefit of looking to the other 49 states — or laboratories — to see what laws they have passed, and how well or poorly they work. 

We can take laws that work — like Arizona's new concealed-carry law — and modify and incorporate them in a way that works for Nevada. Our state has always had a unique "live and let live" attitude, yet our intrusive gun laws have never matched that sentiment. 

State laws that encroach on the right to arms — concealed-weapons permits and the state-run background-check system, for example — should be placed in the dustbin of history. These laws need to be recognized as unconstitutional restrictions upon the Second Amendment and treated accordingly.

But while it is important to work at the state level, it now becomes even more important to hold the federal government accountable for its actions. When the anti-gun attitude that permeates D.C. politics is combined with politicians who have a knack for sneaking provisions into bills, you have a genuine recipe for abuse.

The Supreme Court has affirmed that the states cannot restrict our right to self defense. Yet that ruling alone will not ensure that right. To ensure our rights are acknowledged, we must hold our state legislators accountable to pass laws that honor our right to keep and bear arms — and repeal those that do not. The states are still our best tools to keep the federal government in check, and the federal government is our best tool for checking the state.

Some say that with this decision, the "gun debate" can finally be put to rest: Americans want access to firearms. Yet this "debate" is far from over. To continue to enjoy success, gun owners must still frame the debate regarding infringement.

Ben Robison is a contributing writer to the Nevada Policy Research Institute. For more visit http://npri.org/.

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