We have the right to protect ourselves.
In Addition to the Moral and Practical Arguments against Gun Control, there’s also the Constitutional Argument
February 11, 2013 by Dan Mitchell
I mostly approach the gun control debate from a moral and practical perspective.
Morally, I think there is a presumption that free people should have the means to protect themselves. It doesn’t matter if they want to guard against crime, whether they’re worried about social breakdown (my concern, as I explain in this NRA-TV interview), or if they fear government tyranny (the most common answer in this poll).
But let’s not forget that there’s also a constitutional argument against gun control, as explained in today’s Wall Street Journal by David Rivkin and Andrew Grossman.
…the debate over guns, as is the case with many other contentious issues in American history, cannot be intelligently pursued without recognizing its constitutional dimensions. The Supreme Court’s 2008 decision in Heller v. District of Columbia confirmed that the Second Amendment means what it says: “the right of the people to keep and bear arms shall not be infringed.” After Heller and its follow-on case, McDonald v. Chicago, which applied the Second Amendment rights to the states, what government cannot do is deny the individual interest in self-defense. As a legal matter, that debate is settled.
The authors then look at some of the anti-gun laws being considered at the state level.
Several states…are considering gun-insurance mandates modeled after those for automobile insurance. There is no conceivable public-safety benefit: Insurance policies cover accidents, not intentional crimes, and criminals with illegal guns will just evade the requirement. The real purpose is to make guns less affordable for law-abiding citizens and thereby reduce private gun ownership. Identical constitutionally suspect logic explains proposals to tax the sale of bullets at excessive rates. The courts, however, are no more likely to allow government to undermine the Second Amendment than to undermine the First. A state cannot circumvent the right to a free press by requiring that an unfriendly newspaper carry millions in libel insurance or pay a thousand-dollar tax on barrels of ink—the real motive, in either case, would be transparent and the regulation struck down. How could the result be any different for the right to keep and bear arms?
Rivkin and Grossman also explain why the President’s plan is empty posturing.
The same constitutional infirmity plagues the president’s plan. Consider his proposal for a new “assault weapons” ban, targeting a class of weapons distinguished by their cosmetic features, such as a pistol grip or threaded barrel. These guns may look sinister, but they don’t differ from other common weapons in any relevant respect—firing mechanism, ammunition, magazine size—and so present no greater threat to public safety. Needless to say, the government has no legitimate interest in banning guns that gun-controllers simply do not like and would not, themselves, care to own.
That last sentence is worth emphasizing. There are many types of cars I find distasteful. And there are many clothing styles I would never wear. But those cars and clothes serve the same functions as my car and clothes.
That’s why the attacks against so-called assault rifles are nonsensical. Those weapons are identical to guns that don’t look “scary.” Indeed, they’re usually less powerful.
One final point, albeit a depressing one. Contrary to what Rivkin and Grossman wrote, the constitutional issue is not settled. The Supreme Court correctly decided both the Heller and McDonald cases, but only by 5-4 margins.
All it takes is one untimely death or retirement and Obama surely would appoint some ideologue who will disregard the Second Amendment (in the same way Justices routinely disregard Article I, Section VIII, and other sections of the Constitution).