District of Columbia vs. Heller

By Rich Seiling / Guest CommentaryFebruary 21, 2013 

The Supreme Court of the United States made a landmark decision in the 2008 District of Columbia vs. Heller case, where they affirmed the Second Amendment, and that the right to keep and bear arms is an individual right held by the people.

The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed." This is not a right granted by the Constitution.

Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed ..."

Columnist Alan Cheah asserts that the "gun lobby" is "promoting the false notion that a nation of gun owners can stop the government from overstepping its bounds," and that, "To give this idea credence is not only naive but discredits, disregards and disrespects the Founding Fathers." Yet the Supreme Court in Heller cites historical sources that oppose his view: "This may be considered as the true palladium of liberty ... The right to self-defense is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."

Not only does the Supreme Court "give this view credence," they are using it as supporting evidence, affirming that the purpose of the right is to protect against government overstepping its bounds.

Cheah claims that the "gun industry" is fueling the "myth" that the government is going to take our guns away, and again he disagrees with the Supreme Court: That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people's arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

In his arguments for gun control, Cheah has quoted the Heller decision where it says, "Like most rights, the right secured by the Second Amendment is not unlimited." But Cheah did not provide the follow-up text, where the Supreme Court explains exactly what they meant by that statement: nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Here in plain language, the Supreme Court explains the type of restrictions they see as reasonable. But what type of guns can be banned?

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time."

Here the Supreme Court explains that the type of weapons that are protected are those "in common use." Using this test, they ruled for Heller's right to have a handgun in the District of Columbia.

The handgun ban amounts to a prohibition of an entire class of "arms" that is overwhelmingly chosen by American society for that lawful purpose. However Heller did not rule on AR-15 rifles with 20 and 30 round magazines. That will take another case.Until that time, Cheah and I will continue to disagree on what reasonable restrictions are. But with millions of AR-15s owned by law abiding citizens, and tens of millions of 20 and 30 round magazines owned by the people, they are clearly "in common use."

As for Cheah's statements in his Jan. 31 column, it appears his true conflict is with the U.S. Constitution, the truth of historical precedence and the unabridged text of the Heller decision -- not with me.

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