Our rights do not originate with government, but they are to be "secured" by government.
Formerly: Libertarian Party of Citrus county

Tuesday, June 29, 2010

SCOTUS Rules Second Amendment is Fundamental Individual Right

Monday June 28, 2010 the Supreme Court of the United States (SCOTUS) ruled that Chicago’s blanket ban against owning handguns to be unconstitutional. Writing for the majority Justice Samuel Alito says, "The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner."

The case, McDonald v. Chicago, challenged a 7th Circuit court ruling that said the Second Amendment applies only to federal regulation of an individual's right to guns and not in cases of restrictions by states and municipalities. The SCOTUS overturned this ruling agreeing with the plaintiff’s argument that "the right of the people to keep and bear arms" in the Second Amendment is "incorporated" into the 14th Amendment and applies to both states and localities. This opinion confirms the historically liberal 9th U.S. Circuit Court of Appeals in California ruling that the 2nd Amendment right to keep and bear arms is "deeply rooted in this nation's history and tradition" and regarded as the "true palladium of liberty," so it therefore must be applied against state and local government weapon restrictions as well as federal gun limits.

The court’s 5-4 decision was split along its typical ideological lines: The conservative justices; John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, all voted to extend gun rights, the liberal Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor voted to allow continued restriction on the constitutionally protected right to keep and bear arms.

This decision is going to make people like Chicago Mayor Daly unhappy. He promised new laws and said, "As a city we must continue to stand up and fight . . . for a ban on assault weapons . . . as well as a crackdown on gun shops." I believe it will also profoundly consternate liberals in congress and the White House. The statists temporarily in charge, who think ordinary people shouldn't be allowed to make our own health care choices, or decide which schools their children attend, will be apoplectic that the SCOTUS has ruled that the people can make decisions about how to defend themselves.

Quotes from the majority opinion:

The Court is correct in describing the Second Amendment right as “fundamental” to the American scheme of ordered liberty, Duncan v. Louisiana , 391 U. S. 145 , and “deeply rooted in this Nation’s history and traditions,” Washington v. Glucksberg , 521 U. S. 702 .

"It is clear that the Framers [of the Constitution]. . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty,"

If, as petitioners believe, their safety and the safety of other law-abiding members of the community would be enhanced by the possession of handguns in the home for self-defense, then the Second Amendment right protects the rights of minorities and other residents of high-crime areas whose needs are not being met by elected public officials.

President Obama’s first appointment to the SCOTUS, Justice Sotomayor, proved herself to be contemptuous of the Senate and the people. She ruled exactly the opposite of the way she intimated she would rule during her confirmation hearings last year. When asked about gun control during those hearings she said, “One of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized. . . . I understand that how important the right to bear arms is to many, many Americans.” Obviously she understands how important it is to many Americans, but does not believe that it should be it is a right fundamental right for all Americans regardless of how "important" it is to the people. Justice Sotomayor formally agreed with the minority opinion criticizing the ruling, including this statement by Justice Breyer, “I can find nothing in the Second Amendment’s text, history or underlying rationale that could warrant characterizing it as ‘fundamental’ in so far as it seeks to protect the keeping and bearing of arms for private self-defense purposes.”

Of interest is the pro-Tenth Amendment arguments presented by Justice Breyer in his dissenting opinion. Justice Breyer says "I find any justification for interpreting the Constitution as transferring ultimate regulatory authority over the private uses of firearms from democratically elected legislatures to courts or from the States to the Federal Government." He also says, "Private gun regulation is the quintessential exercise of a State’s “police power”— i.e. , the power to “protec[t] … the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State,” by enacting “all kinds of restraints and burdens” on both “persons and property.” Slaughter-House Cases , 16 Wall. 36, 62 (1873). The Court has long recognized that the Constitution grants the States special authority to enact laws pursuant to this power."

Breyer’s strong Tenth Amendment words included, “In a nation whose constitution foresees democratic decision-making, is it so fundamental a matter as to require taking that power from the people?" Breyer wrote. "What is it here that the people did not know? What is it that a judge knows better?" Taken at his word you would think that Stephen Breyer, will side with Montana, Tennessee, and the 6 other states that have so far passed Firearm Freedom Acts, exempting from federal regulation the sale of firearms, firearm accessories, or ammunition manufactured and retained in the state. I’m sure that Justice Breyer will contradict himself and rule against his own opinion if any of the Firearms Freedom Act laws make it to the Supreme Court.

The right to keep and bear arms is the law of the land. The SCOTUS has ruled that “The right to keep and bear arms must be regarded as a substantive guarantee.” If the government or the people want to change that it will and should require a constitutional amendment. We are a nation of laws, with constitutional restrictions on what the federal authority can do. If the statists currently in the majority of elected federal positions want to change that, then they can and must amend the constitution. It is neither impossible nor difficult; it was amended 4 times in 8 years between 1913 and 1920. The situation has changed, to amend the constitution in the era of new media in which the powerful elite no longer control all the news and information, the will of politicians to further restrict liberty knowing it could lead to their loss in the next election, does not exist. The people, not the statists in charge, believe in the rule of law. Monday’s SCOTUS ruling just confirms the plain meaning of the Second Amendment to the Constitution of the United States of America, that the people have the right to Keep and Bear Arms.

SCOTUS DOCS http://www.law.cornell.edu/supct/html/08-1521.ZS.html

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