Senator Obama has released a statement in reaction to the Heller decision which overturned the Washington, DC ban on handguns along with requirements that all weapons be stored unloaded and with safety locks.
I'll provide the statement, and then I'd like to go into some Constitutional analysis. Frankly I've seen far too many people here inject policy arguments into Constitutional debates. I cannot stress enough how wrongheaded I consider this to be.
As for the statement itself, I could not agree with Senator Obama more than I already do. His position mirrors the one I've held for years, and reinforces my approval of his overall temperment.
Read more for the statement and my analysis....
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"I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view, and while it ruled that the D.C. gun ban went too far, Justice Scalia himself acknowledged that this right is not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe. Today's ruling, the first clear statement on this issue in 127 years, will provide much-needed guidance to local jurisdictions across the country.
"As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun show loophole and improving our background check system, so that guns do not fall into the hands of terrorists or criminals. Today's decision reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe."
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He's right. We can all probably agree that the wording of the 2nd Amendment is about as anachronistic (if not obtuse) as anything else in the Constitution. It 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."
Okay, let's try to break this into modern English. First up, the Framers specified a reason for the Amendment. They state that for the country to be secure and free there needs to be a well-regulated militia. At this point I don't know if we have, or could possibly have, an equivalent to the militias of the 1770's and 1780's. The fundamental relationship between citizen and government has changed.
The second portion states that the citizens have a right to keep and bear arms and that (by direct inference) the government shall not infringe upon that right. The whole debate here (regarding the DC handgun ban) is how the first portion of the Amendment relates to the second portion. Is it causal? Or is it background?
I'm not alone in concluding that the first provision is simply providing background, not an exclusive justification for the second provision. Back when this Constitution was drafted the citizens ran any number of risks that are either absent today or attenuated. The British might invade again from Canada. Indians might attack your farm. You might have someone try to rob you. There were a lot of dangers.
If the Framers had meant for the right to keep and bear arms to be circumscribed within the context of a well-regulated militia they would have worded the Amendment something like this:
The security and freedom of the state requires a well-regulated militia. To properly equip that militia the right to keep and bear arms shall not be infringed.
It doesn't read that way. The first provision really just seems to give some idea as to their frame of mind.
Now, infringing on one's rights means denying them, or substantially diminishing those rights. Regulating firearms, or how one procures them, or how one stores them, these are all debatable issues. All of your rights are circumscribed by regulations. The purpose of the courts is to see to it that the legislature does not cross the line between regulation and infringement.
Let me repeat that! The purpose of the courts (in this context) is to prevent the government from infringing on your rights. If the Supreme Court rules, as it did, that the Constitution provides an individual right to keep and bear arms then frankly the analysis becomes reasonably simple. Does the legislation infringe on this right? What's the purpose of the right? How does the restriction effect one's ability to enjoy that right?
If the right to keep and bear arms was limited to hunting and militias then frankly a handgun ban would make more sense. However, self-defense was as much an issue in the 1700's as it is now. This was a forseeable application written in an era where it wasn't unheard of for national politicians to duel.
As to the Supreme Court striking down the safety locks regulation? They decided that, within the confines of this 2nd Amendment right to keep and bear arms, it should be up to the citizen to decide if it makes sense to use them or not. Personally, I would think any parent of young children would be out of his or her skull not to use safety locks, but then again every individual has his or her own individual circumstances to deal with.
We have to be adults, I think, and respect the fact that other people may assess risk differently from how we do. That isn't really part of my Constitutional analysis, but I do want to get this out there.
I can see, however, where this portion of the opinion will be more controversial hereabouts.
I also want to point out that even Justice Scalia concedes in the opinion that regulations are not unConstitutional. The opinion does not provide a bright-line rule or obvious test to determine which ones are Constitutional, but even the majority concedes the point.
To bring it home, gang, let me say this. The purpose of the Constitution is not to make laws us liberals like. The purpose of the Constitution is to protect the liberty of the citizenry by limiting the powers of the government. With the exception of prohibition and its repeal, not one provision of the Constitution exists to tell us what we can and cannot do (fine, other than eligibility requirements to run for office, :)). The Constitution serves to provide limits on the powers of the government. If we do not like those limits, if we want a law that is outside of them to pass and enforce, then we should seek to amend the Constitution.
Really thinking a law would be just, or useful, or really neat does not make it Constitutional. That power must be allowed within the context of our greater laws, of our framework. Banning handguns may, or may not, save lives. That does not mean it's something that the Constitution permits. If we're going to debate this decision, and the other heady issues of the day, we need to remember exactly what it is we are debating.
If you want to agitate for bans of this sort, stop pinning your hopes on the judicial branch. If you think we need these bans, then blame the Founders for their lack of understanding as to how American society would grow and evolve over time. Build a consensus and amend the document.
Barack Obama was a professor of Constitutional law. He knows these arguments far better than I do. The right exists, like it or not. Regulations will likely vary from state to state because the needs and wants, the risks and rewards, they are not uniform.
Thank you all, and please be well.
[Update] Tip jar added, a little late.
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