Fairfield County Weekly (7/3/08) Link
In deciding that the Second Amendment means what it says, the Supreme Court relied on Connecticut's post-Revolutionary libertarian gun history. Bet you didn't know we were one of three states (the others being Mississippi and Alabama) that adopted what the Supreme Court called "even more individualistic phrasing" of Second Amendment analogues as state law.
That's right: While the wording of the constitutional right to bear arms took more than 200 years to resolve, Connecticut removed all doubt in the first years of America's existence by enshrining into our state constitution in 1818 the following words of common-sense wisdom: "Every citizen has a right to bear arms in defence of himself and the state." With only a modernized spelling change from "defence" to "defense," those exact words are still incorporated as Section 15 of Article 1 in our current constitution, adopted in 1965.
Are you surprised to learn that we used to be so "gun-ho," so libertarian, so supportive of individual rights? Today, Connecticut by and large tends to the liberal New England stereotype of trusting the government and disarming the citizenry. So what can a gun-hating, government-loving progressive do to eliminate his fellow Yankee's right to gun ownership?
The answer is nothing, in the long run.
In the short run, a progressive could vote to hold a state constitutional convention. We will all be facing just that issue this election. Under our constitution, every 20 years we must be asked if we want to modify our constitution, and if we vote that we do, then a new constitutional convention is formed, amendments are proposed and then voted on.
In principle, progressives could organize a mass vote in favor of changing the state constitution, then push through an anti-gun-ownership amendment.
In the short term, that might then allow more draconian gun control laws. But in the long term, the progressives would merely be prohibiting people from defending themselves. As we have seen in DC, such a defenseless state can persist for decades. But in the long run, self-defense is an unalienable right.
Two hundred and thirty-two years ago this July 4, we declared our independence by reference to our unalienable rights to life and liberty. You have the right to defend yourself, no matter what the documents say. The Second Amendment did not grant the people the right to bear arms; it merely noted that right in preventing the government from passing any law to infringe on that right. The U.S. constitution did not grant us the right to self-defense; it merely enshrined that common-sense understanding so that it could not be overturned by a perverted government that might try to take our liberties rather than protect them.
Even the wording in the Second Amendment is transparent. "Shall not be infringed" is not hard to understand.
Indeed, I predicted more than three months ago in this space that the Supreme Court will "almost surely say that the Second Amendment protects an individual's right to bear arms, militia or no militia."
Fortunately, I was right.
I also predicted that the justices would need to provide a mechanism for deciding what kinds of laws are legal and what kinds are not. I predicted they would say that laws must be "reasonable."
Fortunately, I was wrong.
The majority opinion in fact did not seem to lay out guidelines for deciding what kind of gun laws are allowed and what kind are not. In a commentary on the Supreme Court blog, Lyle Denniston pointed out that the ruling even seemed to suggest that the "reasonable" interpretation is not enough. It ruled out "rational basis," a very low bar, as the standard. It also ruled out a "balancing of interests," a higher standard, much like the "reasonableness" test that I feared. Indeed, the opinion makes it seem like the government must make an overwhelmingly clear and compelling case to pass any gun laws at all.
There are lots of gun laws, and now they will all be challenged. One other substantive matter the court did not address was whether the prohibition on government infringement of your right to defend yourself extended to the states. The opinion says this was not a matter for them to decide and so they did not. In other words, the court could still rule in a later decision that states can infringe on individual gun rights. (I personally think this is unlikely.)
Basically, the position we are in now is waiting for another Supreme Court case, one in which something that appears sensible on its face, like gun safety locks or licensing and permit requirements such as those in Connecticut, are challenged. Would the Supreme Court then still have the clearheadedness, and the majority of numbers, to again read "shall not be infringed" in its most obvious manner?
We Connecticut Yankees have one of the longest-running libertarian strains. Perhaps we could set an example for the country again by challenging the constitutionality of these seemingly small infringements on our unalienable, fundamental right to bear arms.
The logical extension of all
The logical extension of all this is a series of constitutional challenges. On what grounds do they restrict marijuana use in the home? Medicinal marijuana, in a hospital (no threat to others)? Unfortunately, certain justices are prone to vote along party lines and I fear any further progress will come at a torturous pace, if at all. I hate to be pessimistic, but the track record of Washington relinquishing power is similar to the record of communist regimes voluntarily stepping down.
Interstate commerce
I'm guessing marijuana and other prima facie unconstitutional federal laws squeeze into the interstate commerce clause, which has historically been overly broadly interpreted (basically so long as the activity has any effect on aggregate interstate commerce, it is allowed).
If there were no 2nd amendment, gun laws would probably have fallen into that unfortunate crack as well. But the 2nd amendment comes after the interstate commerce clause in the constitution, and so gun laws are explicitly prohibited even if they have an aggregate effect on interstate commerce.
Of course, getting the interstate commerce clause to also be read in its plain meaning would be a major coup, and would abolish the departments of education, energy, labor, the FDA, etc., and repeal laws of marijuana and other things, but it's just not likely to happen.
Dear Phil, That ruling
Dear Phil,
That ruling would be THE fulcrum for a return to constitutional government. Still, I recall that the feds couldn't actually change California's law. They just threaten to withhold certain funds. I think they also threatened doctors, but that didn't really fly. So, now they try to accuse people of all sorts of crap: money laundering, intent to distribute, "writing faulty recommendations," etc.
I have a friend with a license for MM in California. She is usually a little hungry, but pain free.
A Free State project might be the key. The legal grounds are there for a state to block most of these violations. Imagine if federal eminent domain were blocked and/or federal agencies were expelled.
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