What good is an Individual Right if your State wont enforce it?
By Dave Kopel
Should state and local governments be allowed to ban handguns? Yes, says the U.S. Court of Appeals for the 7th Circuit, because it is important that governments be able to prohibit self-defense.
By Dave Kopel
Should state and local governments be allowed to ban handguns? Yes, says the U.S. Court of Appeals for the 7th Circuit, because it is important that governments be able to prohibit self-defense.
continued from page 1>>
Indeed, Posner penned an article last summer in The New Republic that castigated the Heller decision and expressed his own preference for a "thin Constitution." Actually, an "emaciated Constitution" would have been the more accurate term for Posner's view that if there is an ambiguity in a constitutional provision, the provision should be interpreted in favor of the government and against individual liberty.
At the November 2008 annual meeting of the Federalist Society in Washington, D.C., Posner announced that over the course of American history, the Supreme Court has found dozens of federal laws to be unconstitutional, but Posner would have upheld all but one of those laws.
The third judge, William Bauer, had written the 1982 decision upholding a local handgun ban in Quilici v. Morton Grove. More recently, he had repeatedly cast aside federal privacy laws in order to rule in favor of Chicago Mayor Richard Daley's efforts to obtain private data about firearm owners from the Bureau of Alcohol, Tobacco, Firearms and Explosives, to support Daley's abusive lawsuit against firearm companies. Daley finally lost when Congress passed legislation further strengthening the privacy laws.
It was an impressively lucky trifecta for gun-ban advocates to get such a three-judge panel, considering that panels are supposed to be randomly selected.
Judge Easterbrook's opinion did much more than adhere (ostensibly) to Supreme Court precedent. The opinion also argued that the current Supreme Court should reject Second Amendment incorporation. One reason was that "Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon."
That's nonsense. The case was about home possession, not carrying, and it was not about any "particular" arm, but about a comprehensive ban on all handguns.
More generally, federalism is an excellent political principle and, as an American tradition, it is as old as the Constitution and the Articles of Confederation. But the right to arms is far older, pre-dating any form of government. It is, as Heller stated, an "inherent" and "natural" right. As Cruikshank said in 1875, and Heller explicitly affirmed in 2008, the right to arms was already in existence before the Constitution was written. Indeed, Cruikshank observed that the right to arms "is found wherever civilization exists."
Judges Easterbrook, Posner and Bauer, however, warned that handgun prohibition must be allowed so that self-defense could be banned: "Suppose a state were to decide that people cornered in their homes must surrender rather than fight back—in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the Second Amendment protects only the interests of law-abiding citizens ... Our hypothetical is not as far-fetched as it sounds."
The day after the 7th Circuit ruled against the Second Amendment, NRA attorney Stephen Halbrook filed an appeal to the U.S. Supreme Court. The Supreme Court will decide this fall whether to hear NRA v. Chicago. While it is too early to predict the outcome, it is time that our nation's highest court address this issue involving one of our most fundamental rights.
