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The Court Gets It Right on Guns


Advocates of freedom dodged a bullet last week when the U.S. Supreme Court ruled 5-4 that the right to keep and bear arms, the subject of the Second Amendment, is an individual, not a collective, right. Opponents of gun ownership have long maintained that the Amendment’s reference to the militia indicates that the right does not apply to private persons.

Thankfully, most of the justices saw this for the nonsense it is. Writing for the majority, Justice Antonin Scalia said the amendment’s preface — “A well regulated Militia, being necessary to the security of a free State” — “announces the purpose for which the right was codified: to prevent elimination of the militia.” It should not, Scalia went on, be seen as limiting the right specified in its main clause: “the right of the people to keep and bear Arms, shall not be infringed.”

Scalia’s opinion goes to the heart of the matter. The Second Amendment recognizes an inherent right that precedes government. It does not purport to create one.

In his dissent Justice John Paul Stevens said that since the explicit purpose of the Second Amendment does not include hunting and self-defense, those uses of firearms couldn’t have been intended by the Framers.

Those Framers clearly understood the principle of rights better than Stevens does. If one has a right, one may exercise it for any purpose consistent with the rights of others. Keeping and bearing arms for self-defense or hunting violates no one else’s right. So it is entirely consistent with the Amendment. Stevens’s conclusion implies that government creates rights and thus can create a right that could be exercised for one purpose (the militia) but not for others (self-defense). That would amount to a wholesale rejection of the Jeffersonian philosophy found in the Declaration of Independence and a repudiation of the American Revolution.

The misunderstanding of the nature of rights runs deep. After the decision, the Chicago Tribune called for repeal of the Second Amendment. But if rights are inherent in human nature, repeal would make no difference. A right would not disappear merely because a government document ceased to say it shall not be infringed. Do the Tribune editors seriously believe that had the Bill of Rights never been added to the Constitution, the people would have no right to keep and bear arms? That is ridiculous.

Scalia’s opinion is fine as far as it goes. The case resulted from a challenge to a District of Columbia law that bans handguns from private homes. The law also requires that shotguns and rifles be kept disassembled and trigger-locked. In Scalia’s words, “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.”

Unfortunately, the majority opinion allows for gun regulations that fall short of outright bans. Existing regulations will now be tested in court. In the end, the ruling may have little effect on most gun laws, but the declaration that guns rights are individual rights is important. Think what we would have witnessed had the case gone the other way.

In a second dissenting opinion, Justice Stephen Breyer said, “Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission.”

Well, excuse me, Justice Breyer, if protection of our freedoms imposes a formidable and potentially dangerous mission on the Court. Talk about the tail’s wagging the dog! It would be far more dangerous — to the people — if firearms were banned. Criminals would get them anyway. But the law-abiding among us would be left vulnerable.

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    Sheldon Richman is former vice president and editor at The Future of Freedom Foundation and editor of FFF's monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF's award-winning book Separating School & State: How to Liberate America's Families; Your Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling. Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: "I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank... . I also think that Mr. Richman is right to fear that state education undermines personal responsibility..." Sheldon's articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington Post, Wall Street Journal, American Scholar, Chicago Tribune, USA Today, Washington Times, The American Conservative, Insight, Cato Policy Report, Journal of Economic Development, The Freeman, The World & I, Reason, Washington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.