Bill of Rights Press

L. Neil Smith's
Number 462, March 30, 2008

"They still allow you to protest"

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Broken Records
by A.X. Perez

Attribute to The Libertarian Enterprise

"That's my story and I'm sticking to it."

Listening to the arguments made before the Supreme in the Heller case I was impressed by how much more articulate Plaintiff's counsel was compared to both the Defendant's Counsel and the Solicitor General's Counsel. Hopefully that will help get a favorable decision. However there are two points that he could have made just a little teeny tiny bit clearer:

A. Regardless of its relationship to the right of the various states to form militias or of their citizens to arm themselves to complete their militia duty, the Second Amendment guarantees citizens an individual right to arm themselves to protect their "unalienable rights" by force in an emergency.

B. The DC gun ban is an unreasonable restriction of the right to keep and bear arms. Without conceding that it is possible to reasonably restrict the RKBA, Washington DC's ban on private citizens' carrying handguns in public and maintaining functional long guns in their homes is definitely an example of unreasonable regulation of the right to keep and bear arms and a violation of the Second Amendment, which by the way directly binds the District since it is directly under Federal jurisdiction.

Mr Gura did an excellent job of sticking to the first point. However, he should have had a pat answer to questions referring to point B.

"I don't know if the Second Amendment allows ("reasonable regulation" of your choice short of DC ban), nor am I prepared to discuss that as it is outside the scope of this case. However the current law in effect in DC is an unreasonable restriction of the right to keep and bear arms and thus violates the Constitution." He should have been a broken record on this point.

It appears that the decision to come out between now and June will state that the Second Amendment guarantees an individual right to keep and bear arms over and above state militia duty (a point that most of the justices seemed ready to concede). It was interesting to note that it was the liberal Justice Ginsburg was one of the justices who stated that taken literally the Second did indeed seem to guarantee the right of private citizens to keep machine guns as that is the current weapon of the militia. (Think about it, Theoretically the states can require by law that all adult citizens keep a current issue military rifle, anti tank/aircraft rocket launcher and pistol, including fully automatic Glocks and SIGs. Will we have to worry about people suing over the right not to keep and bear arms? L. Neil Smith brought up this point {at least obliquely} in The American Zone and Roswell Texas.)

The meat of the decision is whether or not the Court rules that while the Second Amendment is subject to "reasonable regulation" the DC ban exceeds the reasonableness test, or if the Court rule that whether or not the 2nd allows the "reasonable regulation" the DC ban is definitely unreasonable and thus null and void. It is the difference in while or whether that interests me.

Will the next Second Amendment case be over whether or not the right to keep and bear arms is subject to "reasonable regulation?" Or will it be over whether or not a particular regulation is reasonable? We will find out between now and the end of June. Be assured that given the inclination of legislators and bureaucratic regulation makers to inflict their wills on the rest of us, there will be more Second Amendment Cases.

Hopefully the lawyers who pick up the cases are friends of mine who are paying for their kids braces and or education.


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