Christine M. Flowers: NO LONGER A SECOND-CLASS AMENDMENT

Posted: June 27, 2008

THERE'S a new individual right in town, and it has nothing to do with ovaries or wire intercepts.

Yesterday, the Supreme Court ruled 5-4 that the Second Amendment protects the fundamental right to own a handgun.

In a majority decision written by Justice Scalia and joined by Justices Alito, Roberts, Kennedy and Thomas, the court held that "the most natural reading of 'keep arms' in the Second Amendment is to 'have weapons.' "

At issue in the case of District of Columbia v. Heller was a 1976 law that banned District residents from having guns in their homes and required that any guns, except those at a place of business, be unloaded or have a trigger lock.

The most controversial part of the law was the ban on homeowner possession. The ban was absolute, not a simple limit on the number of guns you could buy or the purpose for which they might have been acquired (including self-defense).

And while you can understand the motivation behind the law, especially in a city so violent it used to make Philadelphia look bucolic in comparison, the constitutional flaw for its critics was obvious: If the Second Amendment had any meaning whatsoever, there had to be, in the words of Justice Scalia, "a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."

Of course, not everyone feels that way. Many people, including most anti-gun activists, think that even though the text of the amendment is indisputable, the meaning is far from clear.

They argue that the Founding Fathers were really talking about militias, living as they had in a time when the citizen farmers of the colonies became the army of the revolution.

They knew that law-abiding homeowners needed to be able to grab the nearest musket and protect themselves from tyrannt and invasion. They also knew that an unarmed populace was vulnerable to all sorts of governmental mischief. It's all about context.

Interestingly, many of the same anti-gun liberals don't care very much about context when dealing with the Fourth Amendment, which protects against arbitrary searches and also had the Brits in mind.

In an amazing leap of logic, they used the Fourth to help develop a very squishy right to privacy, which then led to our even squishier right to "reproductive freedom."

But bring on that context when it comes to the Second.

Listen, the right-to-regulators argue. The founders could never have envisioned the carnage in modern streets, the fact that criminals would be roaming freely with automatic weapons, the skyrocketing murder rates. If they had, the reasoning goes, they probably would have been more than willing to limit access to those types of arms.

The thing is, the Heller decision doesn't focus on automatic weapons. It deals strictly with handguns, the modern-day musket. It deals with the citizen's right to protect himself, and perhaps the right to hunt (there weren't any Mini-Marts back then.)

As Justice Scalia wrote, "The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting."

So then, the right to bear arms is not simply the right to have a citizen army and prevent those nosy government fellows from bashing down our doors. It was also to recognize the inherent right citizens have to protect themselves from a foreign threat. A fundamental right, as it happens.

It will be interesting to see how the civil libertarians deal with this newest addition to the pantheon of rights. It's just a hunch, but I'm thinking that the ACLU is not breaking open the champagne at this moment.

While they usually find that anything that even remotely impinges on our right to watch porn videos or determine how our children will learn about sexuality is anathema to them, you get the idea that they weren't too keen on the Second Amendment getting equal billing with the First, Fourth, Fifth or Sixth (nobody remembers the other ones anyway).

IT'S IMPORTANT to remember that this case is limited to the federal government.

There's still a question as to whether it could be used to prevent states and municipalities from passing overly restrictive gun laws. (Stay tuned, Mayor Nutter.)

But the truly ironic aspect of Heller is not that it overturned a gun ban.

What matters is that the jurisprudence of individual rights has been implemented to give gun owners their day in court. *

Christine M. Flowers is a lawyer. See her on Channel 6's "Inside Story" Sunday at 11:30 a.m. E-mail cflowers1961@yahoo.com.

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