If you care about constitutional law, and everybody should, the big news is that it looks as if the Supreme Court is going to hear a Second Amendment case some time next year. The event that sparked this legal fuse was a case brought by six D.C. residents who simply wanted functional firearms in their homes for self-defense. In response, the U.S. Court of Appeals for the D.C. Circuit struck down the District’s 31-year-old gun ban — one of the strictest in the nation.
Our individual right to keep and bear arms, as guaranteed by the Bill of Rights, may finally be confirmed by the high Court; but this means that we’re going to see increasing pressure on the Supreme Court from anti-gun rights activists who want the Constitution reinterpreted to fit their prejudices. The New York Times has already fired the first broadside.
A few days ago, the Gray Lady published a fascinating account of the case — fascinating but fundamentally flawed. In it, the central argument about the Second Amendment is pretty accurately described. Specifically, it is between those who see it as an individual right versus those who see it as a collective states’ right having more to do with the National Guard than the people.
Unfortunately, the article falsely portrays the individual-right argument as some new interpretation held only by a few fringe theorists. The truth is very different, as civil-rights attorney and gun-law expert Don Kates has pointed out recently.
From the enactment of the Bill of Rights in 1791 until the 20th century, no one seriously argued that the Second Amendment dealt with anything but an individual right — along with all other nine original amendments. Kates writes that not one court or commentator denied it was a right of individual gun owners until the last century. Judges and commentators in the 18th and 19th century routinely described the Second Amendment as a right of individuals. And they expressly compared it to the other rights such as speech, religion, and jury trial.
The Times has simply replayed theories invented by the 20th-century gun-control movement. Their painting of the individual-right interpretation as a minority view is equally fanciful.
Kates writes that, “Over 120 law review articles have addressed the Second Amendment since 1980. The overwhelming majority affirm that it guarantees a right of individual gun owners. That is why the individual right view is called the ‘standard model’ view by supporters and opponents alike. With virtually no exceptions, the few articles to the contrary have been written by gun control advocates, mostly by people in the pay of the anti-gun lobby.”
Kates goes further, writing that “a very substantial proportion” of the articles supporting individual gun rights are by scholars who would have been happy to find evidence that guns could be banned. When guns were outlawed in D.C., crime and murder rates skyrocketed. Still, the sentiment exists and must be countered with facts. All of this highlights why it is so important to appoint judges who understand that their job is to interpret the law, as enacted by will of the people, rather than make it up as they go along.
Listen to an audio version of this commentary here.