Wrapping up their 2008 session with a landmark ruling, the Supreme Court ended 200 years of silence on a fundamental constitutional issue by striking down the Washington DC handgun ban.
The blockbuster ruling affirmed an individual’s right to keep and bear arms regardless of whether he belongs to “a well-regulated militia,” the largely archaic clause that begins the second amendment to the Bill of Rights. If the founders meant to confer an individual right to bear arms, why did they begin by highlighting how important a citizen militia is to a free state, and conversely what a danger large standing armies (like we have today) pose to liberty?
The joy the NRA and other gun advocates took in the ruling is tempered by the sobering reality that even this conservative, partisan court backed the right of the government to pass reasonable gun control laws. Writing for the 5-4 majority, Justice Scalia explicitly affirmed that governments can keep guns out of the hands of felons and the mentally ill, regulate their sale and prohibit carrying them into places like schools and government buildings. He also said the government could prohibit the possession of unusual and dangerous weapons. If you were planning to go to Bombs R Us this July 4th weekend and buy a rocket-propelled grenade launcher or suitcase nuke, better rethink your plans.
There are two main reasons for wanting to own handguns (besides guys liking to blow up stuff): to protect yourself against crime, and to protect our freedoms against the tyrannical encroachment of government. How ironic, then, that the very week the Supreme Court was defending the second amendment, Congress was busy gutting the Fourth Amendment, with nary a peep from our well-armed vigilantes of freedom.
Since we have all been recently schooled in the wording of the second amendment, let’s review the fourth, shall we? Here’s the full text: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.In other words, warrantless wiretapping is unconstitutional, period, no matter whether a cowardly Congress passes a law allowing it. To get a warrant, you need probable cause of a crime being committed. You can’t just tap everybody’s email, phone calls and web searches.
I can hear you Bushies protesting already: “we live in a post-911 word, and we need new tools to protect us from the evildoers. Requiring approval, even from a secret, rubber-stamp court that will issue warrants after the facts, is a naïve, pre-911 view.”
Now just a doggone minute. You folks claim to oppose treating the constitution as an evolving document, and demand an originalist reading of the law. You can’t have it both ways, since the whole thing is a pre-911 document. Either it means what it says and has to be followed, or it doesn’t. If you find parts of it inconvenient, tough! Amend it, or follow it as is.
Just look at how this President has shredded the constitution. Undermining habeas corpus rights. Approving torture of prisoners of war, sometimes leading to their death. Establishing secret prisons. Preparing signing statements claiming the right to selectively enforce laws. Ignoring Congressional subpoenas. Recognizing no legislative or judicial check on his power. Undermining the First Amendment rights to free speech and free assembly. Starting a war on fraudulent grounds.
Our gun rights guardians are like an old watchdog snoring on the rug in the front hall, dreaming of scaring off intruders while the burglars step right over him and clean out the house.
Enjoy your victory, firearms lovers. If only you loved the other nine amendments as much as you love the second one, we’d all sleep better at night.
Eric Fried supports the right to keep and arm bears at eric@pvgreens.org
