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Heller, Eugene Robinson, and Dred Scott

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Thank Rand for the SCOTUS decision in Heller this week, in which for the first time in two centuries plus, the Supreme Court specifically recognized that the Second Amendment "right of the people to keep and bear arms" in fact recognizes keeping and bearing guns to be an individual right of the people. This is a pretty obvious point by, say, reading the Constitution, but very controversial.

Seems like the court never felt a need to rule on this issue for most of US history most likely because it was largely assumed to be self-evident. It's not like the words are really, legitimately confusing – nor the basic point of guaranteeing the right of individuals to have access to the means of their own defense, from whomever.

There's great sentiment against guns in many quarters of the modern world (some of it perfectly reasonable), and lots of folks ready to grab guns – for the good of the people, of course. Since the left-wing types who are the main advocates of gun control/banning tend to like spinning the text of the constitution as a "living document" anyway, many of them (including the government of the District of Columbia whose gun ban was just overturned) came up with the less than clever point of pretending that the "well regulated militia" clause at the beginning meant only a government army had the right to bear arms.

It seems pretty clear from the Constitution, however, that the point there would be exactly the opposite – that the people have to have a right to keep guns exactly in order to keep the military regulated. Justice Scalia didn't go into that aspect specifically in the decision, mostly speaking of the less radical sounding general idea of self-defense, but that's what the founders wrote.

Thus, I was particularly pleased with the reluctantly supportive reaction to this Heller decision from Washington Post columnist Eugene Robinson. He's a good liberal who believes that "The practical benefits of effective gun control are obvious: If there are fewer guns, there are fewer shootings and fewer funerals."

This leads him to this statement that speaks very well of his basic intellectual integrity, "This case, for me, is one of those uncomfortable situations in which my honest opinion is not the one I'd desperately like to be able to argue. As much as I abhor the possible real-word impact of the ruling, I fear that it's probably right."

Thank you, Brother Robinson. That kind of honesty is the most basic foundation for democratic debate and governance. He even argues for some idea of the constitution as a living document – while also recognizing that at some point the words do actually MEAN something. "But I also believe that if the Constitution says yes, you can't just blithely pretend it says no. Yesterday's decision appears to leave room for laws that place some restrictions on gun ownership but still observe the Second Amendment's guarantee. If not, then the way to fix the Constitution is to amend it — not ignore it." Exactly. Thank you.

The Heller decision overturned a gun ban in the District of Columbia, which is something like 90% black. Thus a gun ban there is largely an attempt at keeping black people from having guns – even if it's a law passed by black lawmakers elected largely by black voters. It's like they don't trust themselves with weapons.

On a tangential note then, these gun rights were part of the Supreme Court's argument in the infamous 1856 Dred Scott decision which specifically affirmed that Negroes were absolutely NOT included as people or citizens under the US Constitution. Per that SCOTUS decision, obviously black folks were not intended to be understood as "citizens" of the US. Otherwise,

it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

Of course, the scary Negroes and scary everybody else already have guns. Thankfully, we appear now to be moving towards guaranteeing equal rights to the law abiding and pro-social citizens of all colors.

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  • Al,

    Good article.

    However, I have one minor quibble. You say, the people have to have a right to keep guns exactly in order to keep the military regulated.

    How is that supposed to work? If you and I (or a whole bunch of us) don’t like what the militia (I assume that now means the National Guard, but of course I may be wrong), is doing, for example putting down a riot or routing traffic around some sort of natural disaster, can we go shoot them? It would be a pretty pitiful contest, with a reasonably well trained and organized National Guard on one side and a bunch of not very well organized or trained amateurs with guns opposing them with inferior weapons.

    Perhaps I missed something. Explanation, please?


  • Brother Dan – Excellent question. I don’t know that the founders had an exact idea of such armed resistance, but were simply trying to guarantee that citizens had guns with which to resist official tyranny.

    I would understand “militia” to be generally armed law enforcement, certainly anything military. Most likely that might be federal agencies rather than local National Guard out directing traffic during some weather disaster.

    Depending on how oppressive or unreasonable a particular situation or individual might be, there might reasonably be many possibilities. It might simply be that one or two particular individuals get took out, perhaps some rogue cop. Down in my ancestral home of Kentucky, it might be a couple of nosy revenuers come up missing. You’d really have to have something pretty systemically awful to try to come up with any likely modern scenario of mass resistance.

    Anyway, the main point of the Second Amendment is not the lesser point of hunting for food, but numbers among the cold, hard rational tools of establishing and maintaining a free country. The point is that the people must always reserve unto themselves the possibility of voting from the rooftops.

  • Brother Al,

    Thanks for the clarification. I’m not sure I agree, but it is well past my bedtime and I will think about it and attempt a response on the morrow.

    Sweet dreams,


  • Avery


    Ask the founders about that. A relatively rag-tag group of fighters took on the most powerful nation in the world – Great Britain – and won.

    I don’t think the founders intended anyone shooting gov’t agents over trivial matters, but they did intend that the people be capable of putting up an armed resistance should the gov’t become tyrannical.

    The gap between an military force armed with the latest and greatest technology and an armed bunch of misfits with their guns and determination is not as great as you seem to think. Look no further than our current war for evidence of that.

  • Clavos

    “It seems pretty clear from the Constitution, however…that the people have to have a right to keep guns exactly in order to keep the military regulated.”

    Hmm. An interesting (and certainly unique) interpretation. It doesn’t really seem that clear, however.

    In fact, it begs the question that if that had been the meaning of the authors, why they would have backed into it so ambiguously; especially when one considers the unambiguous clarity of the rest of their collective body of work, not only as set forth in the constitution, but in their other writings as well.

    The ambiguity of the second may well be a result of the lack of unanimity among the authors even as they attempted to write it. It’s content and purpose was hotly debated by them, and then debated just as hotly in both the Senate and the House before its ratification. The second is likely much more of a compromise than other amendment in the bill.

    The never ending debate over the amendment’s meaning is further complicated by its syntax, in that it is the only part of the bill of rights that contains both a prefatory clause and an operative clause.

    To top it off, there are extant two versions of the second, with different punctuation, and even capitalization, probably as a result of all the wrangling over its wording.

    I am pleased that the court reaffirmed the individual ownership of guns, and I think Mr. Justice Scalia was wise to express the majority opinion the way he did.

  • James

    “Thus, I was particularly pleased with the reluctantly supportive reaction to this Heller decision from Washington Post columnist Eugene Robinson. He’s a good liberal…”

    Perhaps you should re-read Robinson’s columns on the Duke Lacrosse scandal.

    “This leads him to this statement that speaks very well of his basic intellectual integrity…”

    Again, if being a good liberal and intellectual integrity consist of not letting facts get in the way of the narrative, showing unrestrained racial prejudice, and denying due process is how you define these qualities, Robinson is your man.

  • The closeness of the decision is a wakeup call
    for those who may have forgotten about the importance of appointing good S. Court judges.
    Whatever else G W Bush may have done or not done,
    he appointed Roberts and Alito without whom we would probably have lost our Second Amendment rights. Voters should remember this when they are tempted to write in the name of a presidential candidate who has no chance of winning.
    p.s. I like your blog site.