Posted by
Tony Sacco on Sunday, June 29, 2008 8:50:28 PM
PINE BLUFFS – Thursday, June 26, 2008 was a very bad day for American liberals.
Ominously, the sun, which had risen as usual over the Nation’s capital that morning, quickly disappeared behind thick clouds, and the sultry heat that characterizes the area had settled in by 10:05 a.m. when the nine black-robed Justices filed into the courtroom to announce their eagerly-awaited decision in District of Columbia v. Heller (07-290),
For perhaps 217 years the Supreme Court had not visited the Second Amendment authoritatively. That changed in June 2008 when, in a 5-4 decision, it overturned the District’s 29-year old ban on ownership of firearms by individuals. Specifically, the Court found that the Second Amendment protects an individual’s right to own a gun, at least in the home.
As many had predicted, the Court split 5-4 on this issue. For sixteen minutes, Justice Antonin Scalia announced from the bench the majority’s reasoning. His scholarly in-depth historical analysis was loaded with detail. Scalia's opinion is classic originalism or, as some call it, strict constructionism. In 54 pages, he deployed an overwhelming argument and disposed in detail of the dissenters' "wrong headed" contentions. He was joined in the majority by Chief Justice John G. Roberts, Jr., Justices Samual Alito, and Clarence Thomas. And as has been the case often since the beginning of the Court’s 2006 term, Justice Anthony Kennedy supplied the “swing vote” to provide a slim majority. (See my article, Supreme Court’s Term Has Begun. What’s in Store for Pro-Lifers? October 2006; Special to saccoservices.com, where I said: “CENTRIST ANTHONY KENNEDY? Another fascinating aspect this term is the possible emergence of Justice Anthony Kennedy as a centrist power on the court. If this happens, he could provide the swing vote in key cases.”
When Justice Scalia finished, Justice John Paul Stevens, the oldest member of the Court, followed for seven minutes, summarizing the reasons for two dissenting opinions — his and one written by Clinton appointee Justice Stephen Gerald Breyer. The other dissenters were another Clinton appointee, Justices Ruth Bader Ginsburg and Bush One appointee, David Hackett Souter. It’s amazing to me that four Justices of the United States Supreme Court are prepared to rule that the Second Amendment to our Constitution is unconstitutional. If anyone doubts where this country would be headed if the Democrats win the White House in November 2008, let him take a long, hard look at this situation.
After Stevens concluded, the Court began its summer recess, to return on Monday, October 6, but not before Justice Scalia had said, for the majority, “it is not the role of this Court to pronounce the Second Amendment extinct.”
Examining the words of the Amendment, the Court concluded “we find they guarantee the individual right to possess and carry weapons in case of confrontation” — in other words, for self-defense. “The inherent right of self-defense has been central to the Second Amendment right,” it added.
The individual right interpretation, the Court said, “is strongly confirmed by the historical background of the Second Amendment,” going back to 17th Century England, as well as by gun rights laws in the states before and immediately after the Amendment was put into the U.S. Constitution. What Congress did in drafting the Amendment, the Court said, was “to codify a pre-existing right, rather than to fashion a new one.”
Justice Scalia’s opinion stressed that the Court was not casting doubt on long-standing bans on carrying concealed weapons or on gun possession by felons or the mentally retarded, on laws barring guns from schools or government buildings, and laws attaching conditions to gun sales.
And the Court took no position on whether the Second Amendment right restricts only federal government powers, or also curbs the power of states to regulate guns. In a footnote, Scalia said that the issue of “incorporating” the Second into the Fourteenth Amendment, thus applying it to the states, was “a question not presented by this case.” But the footnote said decisions in 1886 and 1894 had reaffirmed that the Amendment “applies only to the Federal Government.” Whether or not the Court will reopen that issue will depend upon future cases, which will develop further law on the issue.
Justice Scalia also demolished the most recent precedent on the Second Amendment — the ruling in U.S. v. Miller in 1939, relied upon heavily by advocates of gun control (and by the dissenting Justices on Thursday). The opinion tartly remarked: “It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.”
The Heller decision nullified two provisions of Washington’s strict 1976 gun control law: a flat ban on possessing a gun in one’s home, and a requirement that any gun — except one kept at a business — must be unloaded and disassembled or have a trigger lock in place. The Court said it was not passing on a part of the law requiring that guns be licensed. It said that issuing a license to a handgun owner, so the weapon can be used at home, would be a sufficient remedy for the Second Amendment violation of denying any access to a handgun.
While the declaration of the individual’s right to keep and bear arms was clear-cut, as was the decision’s nullification of key parts of the Washington, D.C. law, the Court did not lay down a standard for judging the constitutionality of any other federal laws — an omission that the dissenters attacked strongly. Even so, the opinion made it clear that, whatever ultimate test might emerge, it probably would be a tough one to meet, at least when self-defense is at issue. As Justice Scalia put it, whatever remains for “future evaluation” about the strength of the right, “it surely elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home.”
So upset were the liberal media over the outcome that they spun the decision to favor their own misguided agenda – recognizing the constitutional right to own guns by individuals and allowing them to possess handguns will result in more, not less crime. Yet keeping honest, law-abiding people unarmed and at the mercy of armed and violent criminals was never a good idea. Since 1976 only lawbreakers – the bad guys in our Nation’s capital – have possessed guns. Ordinary citizens, deprived of their legitimate right of self defense, were helpless in the face of this onslaught from the criminal element, as the District of Columbia’s murder rate increased annually, despite the strictest laws in the Nation against possession of guns. From 26.8 murders per every 100,000 inhabitants in 1976, it rose steadily to a peak in 1991, 15 years after the City Council banned guns, when 482 people were murdered and the murder rate stood at an astonishing 80.6 murders per every 100,000 D.C. residents. In 2006, Washington’s murder rate stood at 29 murders per every 100,000 people.
During the 24 hour period immediately following the Court’s ruling, the media’s tact was to focus only on Justice Breyer’s dissent. Had they publicized Scalia’s well-reasoned majority opinion, they might have successfully educated the American people on one of the individual rights contained in our Constitution. Not doing so certainly points to an American Press clearly failing in its duty to educate Americans. In Breyer’s separate dissent he said, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas." Justice Breyer does not live in crime-ridden urban areas such as Anacostia, for example.
D.C. Mayor Adrian Fenty responded quickly to the Court’s decision with a plan to require residents to register their handguns. "More handguns in the District of Columbia will only lead to more handgun violence," he announced.
But fears of this nature clearly ignore the experience of many states which, in the last 30 years, have enacted, for instance, concealed carry laws. Let’s examine that issue a bit, because it’s germane to what’s now being heard from liberal quarters, and will continue to be heard for some time:
Since 1986 the number of states making it legal to carry concealed weapons has grown from 9 to 31. Contrary to the claims of opponents of right-to-carry laws, liberalized concealed carry has not endangered public safety. Rather, right-to-carry laws have contributed to widely-reported declining crime.
Some opponents of concealed carry laws argue that there are no good reasons to carry a handgun. The reality is that criminals commit nearly 10 million violent crimes a year in the United States. Nationwide, with only than 75,000 to 80,000 police officers on duty at any one time, police are simply unable to prevent most of the crimes that occur. This means that citizens are ultimately responsible for their own defense. Fortunately, research shows that they are often up to the task. The media does not report that victims use firearms approximately 2.5 million times each year in self-defense, according to Florida State University criminologist Gary Kleck. That point has been made by D.C. residents over and over again since 1976, when the Council took away their right to keep firearms in their homes for self-defense.
Vermont is another case in point. That state has long had both the least restrictive firearms carry laws, allowing citizens to carry guns either openly or concealed without any permit. It has some of the lowest violent crime numbers in the country. For instance, in 1980, when murders and robberies in the U.S. had soared to 10 and 251 per 100,000 population respectively, Vermont's murder rate was 22 percent of the national murder rate and its robbery rate was 15 percent.
But back to the issue at hand. In his dissent summarized from the bench, Justice John Paul Stevens wrote that the majority "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons." That’s exactly what they did when they wrote the Second Amendment. Controlling governmental interference was deemed far more important than any compelling interest the state might have in eliminating the individual’s right to keep and bear arms.
In a concluding paragraph to his opinion, Justice Scalia said the justices in the majority "are aware of the problem of handgun violence in this country" and believe the Constitution "leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns."
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Anthony Joseph Sacco, Sr., a writer, licensed private investigator, author of two novels; The China Connection, and Little Sister Lost, and a biography, Echoes in the Wind, holds degrees from Loyola College of Maryland and the University of Maryland Law School. His articles have appeared in the Washington Times, Baltimore Sun, Voices for the Unborn, the Catholic Review, WREN Magazine and the Wyoming Catholic