Posted by
BrianR on Friday, May 29, 2009 12:39:01 AM
An Examination of Where We Currently Stand On Gun Rights
Since Obama’s election, fears of Draconian infringements of gun rights have run rampant, up to and including hysteria about massive confiscation efforts. Prices of ammunition have soared as availability has plummeted, an inversely proportional relationship; people are stockpiling as military requirements have also increased, further shortening supply.
This hysteria has been fanned by hyperbolic pronouncements by the NRA as it exploits the current political climate to expand its membership rolls. I’ve heard everything from Obama somehow banning and confiscating guns, to UN treaties that will void the Second Amendment, to ammo rationing, to exorbitant taxes that will make the purchase of guns and ammo impossible, to legal requirements for incorporation of technology into finished products that will make them impossible to manufacture.
In my opinion these fears are ungrounded, and I’d like to address a couple of issues to explain why.
The first thing we have to look to is the recent Supreme Court (SCOTUS) decision in the Heller case. In his opinion for the majority – which is the operative and ruling aspect of the decision – Justice Antonin Scalia goes to great lengths to dissect every word of the Second Amendment and couch it in historical context, then applies that context and meaning to our modern world. Though the ruling itself is in response to a District of Columbia case, he also generalizes the ruling, stating many times that the issues involved and being resolved apply to ALL lesser jurisdictions and states. In other words, he incorporates the decision to the states. Heller is a very strong pro-gun ruling, confirming that gun ownership is, indeed, an individual – not collective – right, and that right is only subject to some moderate regulation.
The key element in this is that Heller incorporates the Second Amendment to the states. One of the scare-mongering approaches I’ve seen is that the ruling in Heller only applies to the District, and therefore the individual states can still be as rabidly anti-gun as they wish. Not so. As a matter of fact, in the recent decision in the Nordyke case, the Ninth Circuit Court of Appeals – the most liberal Circuit in the country – explicitly stated its acknowledgement that Heller incorporates its ruling to the states. Therefore, the strictures and guidelines in Heller do in fact apply to each individual state and lesser jurisdiction (cities, counties, etc.), and as the Heller ruling is advanced through further litigation efforts at those levels – already in progress – I predict we’ll actually see the situation for private gun ownership improve, in some cases dramatically.
Let’s take a quick look at efforts in the United Nations (UN) to promote treaties that would, in effect, ban private gun ownership on an international level to include this country. It’s absolutely true that there have been several efforts in the UN to get such a treaty passed – the latest effort being the “The UN Convention on the Rights of the Child”, one such “right” being that the child shall grow up in a “gun-free” home – but the United States has refused to endorse or even try to ratify such treaties.
Further, though it’s true that under our Constitution treaties have the same authority as the Constitution as being the "supreme Law of the Land" (Article VI), the Constitution ALSO makes all treaties subject to judicial review by SCOTUS (Article III, Section 2): “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;… and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”
Such a treaty, on first examination, seems to set up an instant conflict between two laws of equal stature as being “supreme”: the UN treaty and the part of the Constitution itself that is the Second Amendment, which would still be in force because an amendment can only be repealed by a further constitutional amendment. But a treaty doesn’t meet this standard, as the process involved in entering into a treaty does not meet the qualifications as a constitutional amendment as defined in the Constitution itself. This conflict would easily be resolved by SCOTUS under its delineated powers, and the resolution would be clear, even if you don’t factor Heller into the equation: the law that has precedence by reason of originality and seniority would prevail. That would be the Second Amendment itself. The treaty would be void and moot as long as the Second Amendment isn’t repealed first.
Now let’s turn our attention to political pragmatism. Neither the Congressional Democrats – other than a few zealous anti-gunners – nor Obama are at all eager to stir up the hornet’s nest of gun control. Frankly, I’m of the opinion they wish the whole issue would just evaporate. Every time they do kick that hive, they suffer dramatic losses at the ballot box, and they know it. Gore and Kerry lost presidential bids due to the gun debate more than any other single issue; even Bill Clinton acknowledged that. Remember the staged pictures of them in brand new cammies holding borrowed shotguns, grinning goofily into the camera?
Further, Blue Dog southern Democrats ran on their support for the Second Amendment, crippling House Democrat leadership in trying to get enough votes to pass such legislation. Add to the calculus the fact that neither Pelosi nor any other House Democrat leader wants their party to again have the “anti-gun” stigma attached, the only way they’d try to get anti-gun legislation passed is if they could do it as a bipartisan effort, dragging the GOP into the mess with them. For all its recent failings, credit the GOP with refusing to go along with that one.
Bottom line: I don’t see any concerted effort at gun legislation looming on the DC horizon in the foreseeable future.
A quick word about the NRA. They’re very exploitative, playing the panic game to try to pump up their membership numbers and dues income. There’s nothing I’ve written here that would be news to them, I’d have to assume. Granted, they occasionally use their power as a lobby to achieve some good.
But they ALSO tried to talk the Heller team out of taking the case to SCOTUS, claiming it “wasn’t the right case” for the issue, when in fact it was as close to being perfect as a case could get. This has been the constant modus operandi of the NRA; refusing to back legal efforts to bring Second Amendment cases to SCOTUS, which tactic failed in the Heller case because those Plaintiffs didn’t need NRA’s financial backing. Why would they do that? Because the constant assault on gun rights afforded them the opportunity to use the fear factor to pump up their membership numbers. If gun rights aren’t in jeopardy… who needs the NRA?
And all the constant crying of “wolf!” seriously undermines their credibility.
That, then, is my assessment of the current state of affairs regarding our Second Amendment right to private gun ownership. At least for now, there’s no reason for fear.