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Monday, June 30, 2008

Moderation supreme in gun decision

By Dennis Byrne
Chicago Tribune

The U.S. Supreme Court's decision that gun ownership is an individual right turned Mayor Richard Daley into a fiery pillar, visible to the naked eye as far away as Rockford.

Daley declared the District of Columbia vs. Heller decision to be "frightening," "outrageous" and a "return to the days of the Wild West." You would have thought the court had ruled that free bazookas were to be handed out to gang members..

If this is the level of reflection with which he approached other major issues—such as the construction of the Chicago Children's Museum in Grant Park—then it is our turn to be frightened and outraged. Despite Daley's hysterics, Chicago, Wilmette, Morton Grove and other towns with handgun bans aren't being told they can no longer regulate the weapons. They just have to come up with regulations that make sense and pass constitutional scrutiny.

So, calm down and read the opinion, starting with the 2nd Amendment: "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." That means, gun-control proponents argue, that you have a "right" to have or carry guns only if you are a member of a militia. The court said, no, it also means that individuals have gun rights for other reasons, including the protection of yourself and your family in your home. The right of self-protection is the essence of the 2nd Amendment, and you've got to have a good reason for restricting that right. By the court's standards for judging what is and isn't constitutional, no such reason exists, the majority said. "Few laws in the history of our nation," the court said, "have come close to the severe restriction of the District's handgun ban."

Read the 157-page opinion, and you'll see that there are good arguments for and against the ban—if you can get through the jargon about "prefatory clauses" and "operative clauses." But the most important part of the decision is the majority's statement that the right to bear arms, while an individual right, is not an absolute right. It's a truth that absolutists on both sides of the issue seem to forget. It's worth quoting at length: "It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed-weapons prohibitions have been upheld under the [2nd] Amendment or state analogues. The court's opinion should not be taken to cast doubt on long-standing 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. [A previous court decision] that the sorts of weapons protected are those 'in common use at the time' finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons . . . Thus, we do not read the 2nd Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the 1st Amendment to protect the right of citizens to speak for any purpose."

In this, the court's decision is entirely moderate. You have a right to a handgun, but that right is limited. Just as the right to speak freely is limited. Just as every right listed in the 1st Amendment is limited. Thus, the late Supreme Court Justice Oliver Wendell Holmes' famous dictum against falsely shouting "fire" in a crowded theater.

If there is one thing I think that we should all be able to agree on it is that no right is unlimited. On second thought, there is a group of folks who still cling to the dangerous credo that rights—or at least one right—is unlimited: the absolutists who support the court decisions 35 years ago—Roe vs. Wade and Doe vs. Bolton—that proclaimed that the right to an abortion shall not be limited by anything.

Maybe D.C. vs. Heller will help open their eyes and minds to some degree of moderation. And perhaps Heller foreshadows the court acting to correct its earlier grievous error.

3 comments:

Anonymous said...

Moderation. Right. It sounds so reasonable that people should have guns in their homes for protection. But, of course, that is not what this case is about. this is the gun manufacturers and their lackeys at the NRA foisting their warped interpretation of the Constitution on the rest of us. A lie repeated often enough becomes true. So believe Scalia and the Whacky Originalists--the Originalists who don't really give a damn what our Founding Fathers thought.

Anonymous said...

thanks Rich

Ralph W. Conner said...

OpEd Sent to the Chicago Tribune for publishing on 7-3-08:
Right to Bear Arms Is Right to Cut Urban Violence
By Ralph Conner

On a recent Sunday, Chicago police officers killed two men on the South Side, including an ex-felon who allegedly brandished two handguns and pointed them at police responding to a “shots fired” call. In one April weekend this year, three dozen people were shot, with at least seven succumbing to handgun wounds inflicted by fellow Chicagoans.

Such violence is always a tragedy, but the question is, what is the best way to stop or at least limit it?

Chicago’s approach has been to make it extremely difficult for law-abiding citizens to have handguns. That may soon have to end, however. The recent U.S. Supreme Court decision protecting citizens’ constitutional right to bear arms, including handguns, overturned a Washington DC handgun ban by citing gun ownership as a basic, individual civil right instead of only for state militias.

Although the decision immediately applied only to the DC law, it is likely the Chicago ban will also be struck down. Naturally, Mayor Richard M. Daley quickly threatened to fight any attempt to shoot down the city’s restrictions at a time when he is calling on the state legislature to impose expanded gun-control measures.

Experts are increasingly coming to think Daley is wrong and law-abiding gun owners are right. Shortly after the April shootings, columnist Steve Chapman pointed out gun bans do not hamper or restrict the availability of handguns to violent felons, because there are already more than two million guns in private hands. As Florida State University criminologist Gary Kleck has noted, “most criminals arm themselves by stealing guns or buying guns stolen by someone else. So new restrictions don’t make much difference to them.”

During the recent decades of increasing gun ownership restrictions, big cities have staggered under the ever-greater burden of violent crime and suffered a steady decline in quality of life. Clearly, a new approach is called for.

In their new book, Armed: New Perspectives on Gun Control, Kleck and Don Kates document that as many as 2.5 million potential victims successfully use guns to defend themselves against crime each year. Handguns are used three times more often for self-defense than to commit crimes.

In reviewing the book, Deneen Borelli of the black conservative think tank Project 21 noted that in areas suffering from indiscriminate gang and drug violence, it is not only unconstitutional but indeed immoral to deny law-abiding citizens the right to possess handguns for their protection.

It is time we acknowledged and examined the positive effects of citizens’ handgun possession. Now fully protected by the Second Amendment, gun owners will soon be able to show they’re capable of stemming the rising onslaught of violence that has accompanied the decades-long erosion of their constitutional right to arm for self-protection.

Ralph W. Conner (rconner@heartland.org) is local legislation manager for The Heartland Institute and the former mayor of Maywood, Ill. .