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Friday, July 1, 2016
Gun Ownership is a Civil RightPosted Wednesday, June 30, 2010, at 7:22 AM
The history of the Bill of Rights and the 14th Amendment is a complicated and fascinating one. A significant change, or clarification, occurred this week in the McDonald v. City of Chicago case regarding the effective ban on possession of handguns in Chicago.
When the "new" constitution was presented to the States for ratification, there was great concern. One side argued that the Constitution clearly states what powers are given to the national government and that all other powers are retained by the states and people. The other side feared that someday people may assume that the national government could do anything except what it was specifically prohibited from doing. To mollify those concerns, twelve amendments were sent to the States for ratification concurrently with the Constitution. Ten of those amendments were ratified and are now known as the Bill of Rights.
The Bill of Rights does not confer rights on the people. Rather, we are endowed by our creator with certain unalienable rights and the Bill of Rights specifically prohibits the national government from usurping those rights. However, the U.S. Constitution and the Bill of Rights only restrained the Federal government. The Bill of Rights did not affect the states. States had unlimited powers that were limited only by their individual State Constitutions.
Following the Civil War, the Fourteenth Amendment changed this. It states in part, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The Supreme Court interpreted this to mean that certain specific parts of the Bill of Rights had to be upheld by the States. The Second Amendment had never been included among those rights.
This week, that changed.
The Second Amendment and all of the Bill of Rights are incorporated as Constitutional restrictions on the powers of State and Municipal governments. The Supreme Court ruled that "the right of the People to keep and bear arms" shall not be infringed by either the national government nor the state governments, and that "the Second Amendment right to keep and bear arms [is] fully applicable to the states."
The right of individual citizens to keep and bear arms for self defense purposes is now officially a basic civil right.
The Court sited cases and laws, specifically the Civil Rights Act of 1866, where the right of freed former slaves to keep and bear arms was paramount for retaining their status as free and equal citizens. "The right . . . to have full and equal benefit of all laws . . . including the Constitutional right to bear arms shall be secured to and enjoyed by all citizens . . . without respect to race, color, or previous condition of slavery." The Court has effectively stated that gun bans are now the equivalent to "Jim Crow" laws.
The Supreme Court ruled that "Self defense is a basic right recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self defense is the central component of the Second Amendment Right." The Court further declared, "the need for the defense of self, family, and property is most acute in the home ( . . . and that . . . ) this right applies to handguns because they are the most preferred firearm in the nation to keep and use for the protection of one's home and family."
The Supreme Court even quoted Blackstone's declaration that "the right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable to people to resist and triumph over them."
The Supreme Court further held that the Chicago prohibition on the possession of handguns permits local peace officers, which are armed, to perpetrate discrimination against blacks and other minorities. Quoting from the debates in Congress on the 14th Amendment, "the right to keep and bear arms is (one of three) indispensable safeguards of liberty under our form of government."
In further support of its ruling, the Court also cited Congressional debates during the Southern Reconstruction era addressing marauding bands of militia terrorizing black citizens. Congress declined to pass a law disarming the Southern militias because it would have violated their right to keep and bear arms. The answer was to permit the former slaves to arm themselves.
The Court dismissed Chicago's arguments regarding public safety. The Court reaffirmed that constitutionally protected rights cannot be abridged even if there may be a threat to public safety. The court sited cases where people accused of serious crimes, including murder, were set free because they had not been provided a speedy trial or by the exclusion of essential evidence obtained in violations of Miranda and the 5th Amendment. The Court stated that while these Constitutional protections may limit a government's ability to devise solutions to social problems it by no means eliminates it.
The final conclusion of the ruling was that the opinion of the Court of Appeals was reversed and remanded for further proceedings consistent with the Supreme Court ruling. That means that the Appellate Court will have to issue a new ruling finding the firearm ban unconstitutional.
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