Post by Woody Williams on Mar 14, 2007 19:19:37 GMT -5
Wall Street Journal
online.wsj.com/article_email/SB117384168237936437-lMyQjAxMDE3NzEzNDgxNDQxWj.html
Second Amendment Showdown
By TED CRUZ March 14, 2007;
Page A14
Last week's decision, striking down the District of Columbia's ban on
guns as unconstitutional under the Second Amendment, flowed directly
from the text, history and original understanding of the Constitution.
The U.S. Court of Appeals for the D.C. Circuit's decision rejected the
Ninth Circuit's "collective rights" theory and embraced instead the
Fifth Circuit's holding that the Second Amendment protects individual
rights. In so doing, the D.C. Circuit took a major step forward in
protecting the rights of gun owners throughout the country.
In some ways, the decision should not be at all noteworthy or
surprising. After all, the text of the Second Amendment explicitly
protects "the right of the people to keep and bear Arms," and the D.C.
gun ban amounted to a complete and total prohibition on citizens owning
operational firearms in the District of Columbia. The challenged city
ordinances prohibit the private possession of all handguns and also
require that all long guns (i.e., rifles and shotguns) be disassembled
or have trigger locks in place at all times. This latter requirement has
no exceptions -- so that even if a violent crime is underway in your
home, removing the trigger lock in self-defense or in defense of your
family constitutes a crime.
No state in the union has a prohibition as draconian. Indeed, the
constitutions of 44 states, like the federal Constitution, explicitly
protect the individual right to keep and bear arms, and the legislatures
of all 50 states are united in their rejection of bans on private
handgun ownership. Forty-five states go even further, allowing private
citizens to carry concealed handguns for self-defense.
So how is it that the District of Columbia could be so out of step with
the rest of the nation and nonetheless arguably comply with the
requirements of the Second Amendment? The answer that the federal
district court seized upon -- like an earlier ruling from the Ninth
Circuit Court of Appeals in California -- is a theory popularized
recently by several law professors and gun-control advocates: Because
the Second Amendment refers to "a well regulated Militia," the
Constitution protects only the "collective right" of the militia and not
the individual right of any citizen.
This creative theory, useful for advancing the policy goals of its
advocates, runs contrary to the text of the Constitution, to the debates
and original understanding of the Framers, to Supreme Court precedent,
and to the widespread understanding of state courts and legislatures for
the first 150 years of our nation's history. At the time of the
founding, the "militia" was understood to consist of all able-bodied
males armed with their own weapons; indeed, the Militia Act of 1792 not
only permitted individual gun ownership, it required every man to
"provide himself with a good musket or firelock . . . or with a good rifle."
If the "collective rights" theory were to prevail, the result would be
that no individual in the U.S. could ever claim any right under the
Second Amendment, but rather that inchoate right would exist only
collectively and amorphously for state militias. Such an outcome
effectively reads out of the Constitution what respected law professor
Sanford Levinson famously described as, from the perspective of anti-gun
advocates, that "embarrassing Second Amendment."
Because the "collective rights" theory is unfaithful to the Constitution
and undermines the individual rights of all Americans, Texas took the
lead among the states in supporting the plaintiffs in the D.C. gun suit.
Texas Attorney General Greg Abbott assembled a collation of 13 states
(Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Michigan,
Minnesota, Nebraska, North Dakota, Ohio, Utah and Wyoming) who together
supported the Second Amendment, and the amici states presented oral
argument in the D.C. Circuit in the companion case to this one defending
the individual right to keep and bear arms.
Notably, every state, including Texas, believes that some regulations on
firearms are both permissible and advisable; for example, the states are
united in supporting restrictions on violent felons owning guns. But all
of the amici states are likewise united in the belief that the Second
Amendment means what it says, that the individual right to keep and bear
arms cannot be completely abrogated as under the D.C. gun ban.
The District of Columbia has pledged to appeal, and this case could well
find its way before the U.S. Supreme Court. If so, Texas and the rest of
the amici states stand ready once again to support the Second Amendment,
and we are confident that the Court will in turn faithfully uphold the
individual constitutional rights of all Americans.
Mr. Cruz is the solicitor general of Texas. He authored two briefs and
presented oral argument for the amici states supporting the Second
Amendment in the D.C. Circuit.
online.wsj.com/article_email/SB117384168237936437-lMyQjAxMDE3NzEzNDgxNDQxWj.html
Second Amendment Showdown
By TED CRUZ March 14, 2007;
Page A14
Last week's decision, striking down the District of Columbia's ban on
guns as unconstitutional under the Second Amendment, flowed directly
from the text, history and original understanding of the Constitution.
The U.S. Court of Appeals for the D.C. Circuit's decision rejected the
Ninth Circuit's "collective rights" theory and embraced instead the
Fifth Circuit's holding that the Second Amendment protects individual
rights. In so doing, the D.C. Circuit took a major step forward in
protecting the rights of gun owners throughout the country.
In some ways, the decision should not be at all noteworthy or
surprising. After all, the text of the Second Amendment explicitly
protects "the right of the people to keep and bear Arms," and the D.C.
gun ban amounted to a complete and total prohibition on citizens owning
operational firearms in the District of Columbia. The challenged city
ordinances prohibit the private possession of all handguns and also
require that all long guns (i.e., rifles and shotguns) be disassembled
or have trigger locks in place at all times. This latter requirement has
no exceptions -- so that even if a violent crime is underway in your
home, removing the trigger lock in self-defense or in defense of your
family constitutes a crime.
No state in the union has a prohibition as draconian. Indeed, the
constitutions of 44 states, like the federal Constitution, explicitly
protect the individual right to keep and bear arms, and the legislatures
of all 50 states are united in their rejection of bans on private
handgun ownership. Forty-five states go even further, allowing private
citizens to carry concealed handguns for self-defense.
So how is it that the District of Columbia could be so out of step with
the rest of the nation and nonetheless arguably comply with the
requirements of the Second Amendment? The answer that the federal
district court seized upon -- like an earlier ruling from the Ninth
Circuit Court of Appeals in California -- is a theory popularized
recently by several law professors and gun-control advocates: Because
the Second Amendment refers to "a well regulated Militia," the
Constitution protects only the "collective right" of the militia and not
the individual right of any citizen.
This creative theory, useful for advancing the policy goals of its
advocates, runs contrary to the text of the Constitution, to the debates
and original understanding of the Framers, to Supreme Court precedent,
and to the widespread understanding of state courts and legislatures for
the first 150 years of our nation's history. At the time of the
founding, the "militia" was understood to consist of all able-bodied
males armed with their own weapons; indeed, the Militia Act of 1792 not
only permitted individual gun ownership, it required every man to
"provide himself with a good musket or firelock . . . or with a good rifle."
If the "collective rights" theory were to prevail, the result would be
that no individual in the U.S. could ever claim any right under the
Second Amendment, but rather that inchoate right would exist only
collectively and amorphously for state militias. Such an outcome
effectively reads out of the Constitution what respected law professor
Sanford Levinson famously described as, from the perspective of anti-gun
advocates, that "embarrassing Second Amendment."
Because the "collective rights" theory is unfaithful to the Constitution
and undermines the individual rights of all Americans, Texas took the
lead among the states in supporting the plaintiffs in the D.C. gun suit.
Texas Attorney General Greg Abbott assembled a collation of 13 states
(Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Michigan,
Minnesota, Nebraska, North Dakota, Ohio, Utah and Wyoming) who together
supported the Second Amendment, and the amici states presented oral
argument in the D.C. Circuit in the companion case to this one defending
the individual right to keep and bear arms.
Notably, every state, including Texas, believes that some regulations on
firearms are both permissible and advisable; for example, the states are
united in supporting restrictions on violent felons owning guns. But all
of the amici states are likewise united in the belief that the Second
Amendment means what it says, that the individual right to keep and bear
arms cannot be completely abrogated as under the D.C. gun ban.
The District of Columbia has pledged to appeal, and this case could well
find its way before the U.S. Supreme Court. If so, Texas and the rest of
the amici states stand ready once again to support the Second Amendment,
and we are confident that the Court will in turn faithfully uphold the
individual constitutional rights of all Americans.
Mr. Cruz is the solicitor general of Texas. He authored two briefs and
presented oral argument for the amici states supporting the Second
Amendment in the D.C. Circuit.
