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I am a neolibertarian minded individual who feels that freedom and individual rights take precedence over the wants of government. I believe government exists to serve the people and not to protect us from ourselves. I am an advocate for private firearms ownership, smaller government, reduced taxes and freedom to live your life however you choose, providing you do not directly hurt others.

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A Feast For Crows
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Thursday, June 26, 2008

S.C.O.T.U.S. Affirms 2nd Amendment (sort of)

By now, nearly everyone has heard of the U.S. Supreme Court ruling that overturned the Washington D.C. ban on handguns. For the most part, it affirmed the 2nd Amendment, which is fantastic news for anyone who believes in the right to bear arms for self defense, checking government power, or both. It also affirmed that the 2nd Amendment bestows an individual right, and not merely a right for militias to bear arms.

For the most part, this ruling made me happy, but I'd like to caution firearms advocates not to celebrate too hard. There are several things that really should be considered about this ruling, lest complacency lead firearms owners to think that they can rest on their laurels.

Problem #1:
The fact that this issue was credible enough to make it all the way to the U.S. Supreme Court is a bad sign. The 2nd Amendment is very clear, and should not require a prolonged process of legal escalation for a gun ban to be thrown out. The very first judge who looked at this case should have thrown out the ban without much more than a few minutes consideration. What part of "shall not be infringed" did the lower courts not understand when this was first challenged?

Problem #2:
This was a 5 to 4 decision. That means that a single swing vote is all that stood between the highest legal authority in our nation declaring that the 2nd Amendment was null and void. It means that 4 justices, people that are considered the most experienced and powerful legal experts in the country, disagreed with the the decision to uphold the 2nd Amendment. Think about that for a moment. Our country is still dangerously close to invalidating a cornerstone of the U.S. constitution. What happens when this issue comes up again (it will), and on that day we have one additional anti-gun justice on the bench?

Problem #3:

This decision included enough wiggle room for other kinds of gun bans to successfully be passed. Here are some quotes from Justice Scalia:

"Nothing in our opinion should be taken to cast doubt on longstanding 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."

Note that the 2nd Amendment's "shall not be infringed" wording says nothing about conditional limitations on the right to bear arms. Scalia's comments undermine this simple clarity by saying that it is indeed possible to establish quite a few limitations on firearms ownership, and if enough of these limitation are passed into law, owning, selling and transporting firearms could become so onerous as to create a de facto ban of them.

Don't get me wrong; I think today's ruling came out about as well as we could have expected, and gun owners are entitled to a little celebration. Nevertheless, I think it is important to keep this ruling in perspective and continue to actively support pro-gun organizations and vote against any politician who expresses a desire to further restrict the private ownership of firearms.

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