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Second Amendment Rights not Assured Despite Court Victories

The Heller and McDonald cases may have established an individual right to bear arms but that doesn't mean there won't be efforts to subvert that right by gun control advocates.

by
Mike McDaniel

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May 15, 2011 - 12:00 am
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In any attempt to create the socialist/Marxist administrative state, what kind of “fundamental change” would be necessary?  The goal, of course, must be to greatly increase the power of the centralized state and simultaneously to greatly decrease the power — the rights — of the individual. Individuals capable of compelling the state to recognize their rights, to hinder or subvert the designs of the state in any way, cannot be tolerated. In any such attempt, paramount must be the reduction and eventual elimination of the Second Amendment. Near-ultimate or ultimate state power cannot be attained and held if the people can resist with force of arms. But how can this be accomplished in the face of Supreme Court decisions affirming and incorporating the Second Amendment as a fundamental right?

In the aftermath of the Heller decision, which established the Second Amendment as a fundamental individual right, and the McDonald decision, which incorporated that right, applying it to the states, some have felt that the debate over guns in American life is essentially over. Anti-gun groups such as the Brady Campaign have had no real successes in years, and with Heller and McDonald decided, they seem likely to be relegated to being a nuisance around the margins of a debate that no longer holds the limelight. Unfortunately, such thinking ignores the realities of the administrative state and of the imperial judiciary.

Despite the aforementioned decisions, state and local legislators and bureaucrats in cities such as Chicago and Washington, D.C., continue to ignore the clear intent of the Supreme Court decisions and impose regulations, such as licensing requirements, excessive fees, and zoning regulations, so restrictive as to effectively prevent the sale and possession of firearms for all but the politically connected and the very hardy and determined few.

Note that virtually all of these enclaves of anti-gun sentiment — such as New York and Chicago — are Democrat-controlled, some might say Democrat-ruled — and have been for decades. That crime rates in such areas are commonly far higher than in cities that respect the Second Amendment rights of their citizens is a well-established fact, but a fact which has no determinative effect on the bureaucratic mind.

Few of these politicians or bureaucrats will think or say “the Constitution doesn’t allow that,” or “the Supreme Court’s decisions have limited my power and actions.” They will simply do what they want, secure in the knowledge that it will take many years and many millions for their edicts to be overturned, and even then, they will suffer nothing for imposing them. They are quite likely to merely start over with the most minute of adjustments to policies they knew to be unconstitutional from the start.

As is its usual practice, the Supreme Court kept the parameters of each case quite narrow, deciding only the major question raised rather than delineating details. It is here that the administrative state has substantial room to make mischief and rules. For the moment, Heller and McDonald have affirmed essentially only that individual citizens not prohibited by law, such as through felony convictions or having been judged mentally impaired, have a right to keep and bear arms for any lawful purpose, including self-defense. However, that right is explicitly operative only within the home, leaving an enormous range of mischief making for anti-gun activists and power-hungry politicians and bureaucrats.

It is not absolutely clear, for example, if the right extends to the limits of one’s property. Theoretically, a gun-bearing citizen stepping onto his front porch might be liable for arrest in any jurisdiction that cares to enact such a restrictive law. The poor citizen might eventually have such a conviction overturned, but that’s thousands of dollars and many years (even many years in prison) later, surely a proposition beyond the means and determination of most people, even those willing to fight for principle.

The logical man would reason that a right as important as the right to keep and bear arms for self defense — and this portion of the right has been clearly delineated — must encompass not only the interior of the home, but at the very least the entirety of a homeowner’s property and their person. The defense of self and the defense of property are two entirely different matters. What good is a fundamental right that begins and ends at one’s front door or property line? A right to free speech, for example, limited to haranguing one’s family within the walls of one’s own home isn’t a right at all.

If one of the underlying purposes of the right is self-defense — and the Supreme Court has made this much clear — must it not necessarily apply to wherever the ”self” is at any given moment? If it does not, can it be said to actually be a right rather than a whimsically granted and rescinded privilege bestowed by government?

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