January 8, 2008
• Fred Thompson: Heller v. DC
Second Amendment: A Citizen’s Right
Here’s another reason why it’s important that we appoint judges who use the Constitution as more than a set of suggestions. On Nov. 21, 2007, the Supreme Court decided to hear the case of District of Columbia v. Heller. Six plaintiffs from Washington, D.C. challenged the provisions of the D.C. Code that prohibited them from owning or carrying a handgun. They argued that the rules were an unconstitutional abridgment of their Second Amendment rights. The Second Amendment, part of the Bill of Rights, provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The District argued, as many gun-control advocates do, that these words only guarantee a collective “right” to bear arms while serving the government. The United States Court of Appeals for the District of Columbia Circuit rejected this approach and instead adopted an “individual rights” view of the Second Amendment. The D.C. Circuit is far from alone. The Fifth Circuit and many leading legal scholars, including the self-acknowledged liberal Harvard law professor Laurence Tribe, have also come to adopt such an individual rights view.
I’ve always understood the Second Amendment to mean what it says — it guarantees a citizen the right to “keep and bear” firearms, and that’s why I’ve been supportive of the National Rifle Association’s efforts to have the DC law overturned.
In general, lawful gun ownership is a pretty simple matter. The Founders established gun-owner rights so that citizens would possess and be able to exercise the universal right of self-defense. Guns enable their owners to protect themselves from robbery and assault more successfully and more safely than they otherwise would be able to. The danger of laws like the D.C. handgun ban is that they limit the availability of legal guns to people who want to use them for legitimate reasons, such as self-defense (let alone hunting, sport shooting, collecting), while doing nothing to prevent criminals from acquiring guns.
The D.C. handgun ban, like all handgun bans is necessarily ineffectual. It takes the guns that would be used for self protection out of the hands of law-abiding citizens, while doing practically nothing to prevent criminals from obtaining guns to use to commit crimes. Even the federal judges in the D.C. case knew about the flourishing black market for guns in our nation’s capital that leaves the criminals armed and the law-abiding defenseless. This is unacceptable.
The Second Amendment does more than guarantee to all Americans an unalienable right to defend one’s self. William Blackstone, the 18th century English legal commentator whose works were well-read and relied on by the Framers of our Constitution, observed that the right to keep and bear firearms arises from “the natural right of resistance and self-preservation.” This view, reflected in the Second Amendment, promotes both self-defense and liberty. It is not surprising then that the generation that had thrown off the yoke of British tyranny less than a decade earlier included the Second Amendment in the Constitution and meant for it to enable the people to protect themselves and their liberties.
You can’t always predict what the Supreme Court will do, but in the case of Heller and Washington, DC’s gun ban, officials in the District of Columbia would have been better off expending their efforts and resources in pursuit of those who commit crimes against innocent people rather than in seeking to keep guns out of the hands of law-abiding citizens who would use them only to protect themselves and their families. And that is why appointing judges who apply the text of the Constitution and not their own policy preferences is so important.