Grimace and Bear It

The Second Amendment to the Constitution of the United States

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.

With the horror of the massacre in Sandy Hook Elementary School still searing raw in the collective consciousness, there may actually be developing some consensus to do something about the carnage routinely occurring in the streets, schools and homes of America.  Maybe.  Between the extremes — both self-evidently untenable — there must be available some action (or actions) that we can take to reduce the shocking flow of gun-related homicides.  Indelicately stated, if there was something that we could have done that might have saved the life of even one of those precious children in Newtown, would we not have deemed it sufficient cause to act?

The gun lobbyists and “right to bear arms” absolutists love to argue that the Second Amendment was intended to protect the citizenry’s right to defend themselves against their own government.  Take a deep breath: They are absolutely correct.  Better still, the Second Amendment was also enacted to secure the ancient right of a free person to arm and protect themselves, their families and property.  These are not “negotiating points.”

But here’s the kicker, folks: Even the Supreme Court of the United States (“SCOTUS”), no friend to the “gun control” faction, has recognized that the rights granted by the Second Amendment are not “unlimited.”  Do I need to say that again?  Surely not.  Indeed,  from the pen of no less a personage than Justice Anton Scalia, writing for the majority in District of Columbia v. Heller554 U.S. 570 (2008), comes the following passage (worth repeating in its entirety despite its length) regarding the boundaries of the Second Amendment:

“Like most rights, the right secured by the Second Amendment is not unlimited.  From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. [citations omitted]  For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. [citations omitted].  Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms.  Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179.  We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [citations omitted].  It may be objected that if weapons that are most useful in military service —M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause.  But as we have said, the conception of the militia at the time of theSecond Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.  It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large.  Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks.  But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.” Id., at pp. 54-56.
Little mentioned, but there it is: According to the SCOTUS, there is a limitation of great significance besides those relating to “felons and the mentally ill,” and in addition to (the currently eroding) prohibition against the “carrying of firearms in sensitive places such as schools and government buildings. . ..”  The additional limitation?  The Second Amendment does not contemplate the right of the American people to drag around “dangerous and unusual weapons.”  Indeed, Scalia recognized that the right of citizens to rise up today and grab a musket in the fight against “Federal tyranny” would do little good in any confrontation involving the power of the State and its modern military muscle.  And to this inequity, remarkably enough, what of Scalia’s response?  Essentially, too damn bad.
Writes Scalia:
“But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right [to bear arms].”
Stop the presses, folks, the SCOTUS has spoken.  Thus, the “right to bear arms” may not be abridged, even though the exercise of that “right” may no longer be up to the historic task of overthrowing those heathen Feds.  And, unless I am missing something, isn’t that effectively the exact same thing that the “gun control” lobby is arguing?  Justice Scalia seems to have clearly recognized that the Second Amendment cannot be read as permitting an “arm’s race” between individual Americans and the Federal Government.  As Scalia points out, “no amount of small arms could be useful against modern-day bombers and tanks,” not to mention the White House’s access to subs, WMD and nuclear weapons.  So, unlikely as it may seem, the battle has been joined, and framed by a very conservative Supreme Court: We cannot ban all personal weapons but, by golly, we should try to ban a great many of those currently available.
That’s where the conversation begins, then, I think.  We cannot rid ourselves of all guns, so we must find a line and draw it firmly.  We can start by allowing those weapons powerful enough to take down Bambi, and then prohibit anything that would be of no real use against a tank. And no “slippery slope” arguments, please, they were already considered dumb before the end of first year law school.  You know the drill, “if they take away your 40 round drum ‘sweetsweeper,’ next thing you know they’ll be taking away your slingshots.”  If you hear someone make such a “slippery slope” argument, ignore them.  If you find yourself making one, stop, and call me for help.  They are the refuge of the intellectually impaired.  We CAN draw a line.  We MUST draw a line.  And if the life-blood of fewer babies spills onto the linoleum as a consequence, those were lines well worth drawing.  Let get our pencils out, and start, straight away.

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