Politics & Policy

The Ancient Right

Heller affirms the Second Amendment.

The U.S. Supreme Court D.C. v. Heller decision now makes it clear to all — the Second Amendment affirms an individual right to own firearms for the purpose of self-defense. Even though the Court’s opinion leaves room for laws regulating guns in schools and government buildings, as well as restricting “dangerous and unusual weapons,” these exceptions should be considered just that — exceptions. The opinion devotes only three pages to them, toward the end of a lengthy discourse on the historical basis for the individual right interpretation.

Perhaps Heller’s deepest affirmation is that it invokes the natural right of self-defense in support of the constitutional right to have firearms. Writing for the majority, Justice Scalia cites the historical evidence that the founders intended protection of an individual, not a collective right. He quotes founding-era legal scholar St. George Tucker’s version of Blackstone’s Commentaries: “The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible.”

The rulers of big cities in 21st-century America, not to mention assorted despots around the world, have long sought to confine the right within the narrowest limits possible. Those limits have just been greatly relaxed, and it’s only a matter of time before they are pushed back to a level far more in keeping with the view of the Founders.

That’s not to say, as Chicago’s Mayor Daley seems to, that courts will tolerate the misuse of firearms. As Justice Scalia tells us, the judiciary and commentators have historically recognized that some could misinterpret the Second Amendment as allowing regular citizens to commit violent crimes with their guns. They have never allowed that misconception any legitimacy. From a political standpoint, it is folly to think the American public would adopt laws inviting regular citizens to commit violent crimes with their guns. From a criminological standpoint, it is well-known that good people don’t suddenly become violent criminals when they become firearm owners.

Liberals predictably are leveling charges of judicial activism at the Court. University of California-Irvine Law School dean Erwin Chemerinsky complains, “The majority followed prevailing conservative political philosophy and found that the 2nd Amendment bestows on individuals a right to have guns.” The Court is doubtless guilty as charged of following a conservative political philosophy. What Chemerinsky does not mention is that an individual right was the common understanding of courts, learned writers, and (pardon the expression) the people themselves for most of our nation’s history. Only now has the Supreme Court addressed the specific question of whether that understanding is the law of the land. Such delays in the resolution of important constitutional matters are not unusual, as Scalia points out on page 53 of the opinion.

So the prevailing conservative political philosophy decried by Chemerinsky is really the founding political philosophy, unearthed by the Roberts court from a premature Progressive-era grave and now enshrined as the law. And by the way, the court didn’t find that the Second Amendment bestows a right to have guns, as Chemerinsky writes. The Court found that this right was pre-existing, a right that had been there all along. The Second Amendment simply declares that it “shall not be infringed.”

Many questions remain. Does the Heller decision apply to the states and lower levels of government? Exactly what kinds of firearms are protected? (although the court guides us here with “the American people have considered the handgun to be the quintessential self-defense weapon.”) New legal challenges will now be fought at the local level, the rules of engagement drastically changed. The Illinois State Rifle Association and the National Rifle Association are already challenging Chicago’s D.C.-like handgun ban. And within a day of the decision, Chicago suburb Wilmette suspended enforcement of its handgun ban.

This historic decision for gun owners’ rights should also be considered in its broader political context. It can be seen as one element of a gathering political movement toward recognition of self-defense as a fundamental human right. A current Gallup poll shows 73 percent of the American public believes the Second Amendment guarantees the right of Americans to own guns. They have confirmed that belief over the last 21 years by passing state laws across the country allowing the right to carry firearms for personal protection. Now only two states remain without such laws.

The importance of the natural right of self-defense is confirmed by human experience reaching far back in history, centuries before the Founding of our republic. The Progressive ethic is once again on the rise. That world view has little patience with the constraints of the constitution. It is therefore refreshing now to see the Supreme Court’s clarity in affirming that right.

 – Timothy Wheeler, M.D., is director of Doctors for Responsible Gun Ownership, a project of the Claremont Institute.


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