Monday, June 28, 2010

High Court Affirms 2nd Amendment Rights in 5-4 Split

"Ambiguous" opinion continues "Balkanized" approach to gun rights

"I'd rather be judged by 12 than carried by six." - popular
gun rights advocates' saying

Americans will have to take their chances if they choose to
pack a pistol in cities ruled by gun-toting criminals.

In a 5-4 decision a dissenting Justice termed "ambiguous,"
the nation's highest court affirmed the Second Amendment
right of citizens to keep and bear arms today.

There is a caveat, however.

The holding stopped short of declaring unconstitutional the
practice of certain political subdivisions such as
individual states and cities such as Chicago and Washington,
D.C., of imposing "reasonable" gun control measures.

However, McDonald v. Chicago struck down an outright ban on
all handguns within that city's limits - and presumably all
others such as San Francisco which totally outlaw the
possession of a handgun, even if it is kept in the home for
self protection.

The case stems from a complaint filed in federal court by
Otis McDonald, a south side community activist who was
frustrated in his need for legal possession of a handgun he
intended to use to protect himself from the threat of
violence of gangs.

In the Court's majority opinion, Justice Samuel Alito wrote,
"It cannot be doubted that the right to bear arms was
regarded as a substantive guarantee, not a prohibition that
could be ignored so long as states legislated in an
evenhanded manner."

In his dissenting opinion, Justice Stephen Breyer protested
the implications of the decision, saying "Incorporating the
right may change the law in many of the 50 states. Read in
the majority's favor, the historical evidence is at most

He refers to the types of gun control and registration
techniques put in place in Washington, D.C., in a similar
decision handed down two years ago. In that case, a federal
security guard was prohibited from having a handgun in his
home due to city law, even though he was licensed to carry a
handgun in his professional duties.

The Court extended the Second Amendment right to all
citizens of all jurisdictions, but, similarly, allowed
cities and states to continue to regulate the privilege
under local rules.

It settled once and for all the question of whether the
right to keep and bear arms was strictly a federal
guarantee, or did it extend to the jurisdiction of other
political subdivision of the U.S.

The polarized debate continued, with conflicting opinions
from activists who have argued for decades over the conflict
that either the right extends to the individual to have a
gun, or to society at large, allowing a prohibition of
individual rights to keep and bear arms in favor of a
"statist" or collective interpretation of the 27-word
amendment that bluntly states, in part, "...the right of the
people to keep and bear arms shall not be infringed."

"Today marks a great moment in American history," said Wayne
LaPierre of the National Rifle Association. "It is a
vindication for the great majority of American citizens who
have always believed the Second Amendment was an indivudual
right and freedom worth defending."

Bill Flores, a conservative Republican candidate for Congress-
ional District 17, applauded the Court's decision. He said,
"Today's ruling is good news for Americans who want to see their
Second Amendment rights protected, not infringed upon by act-
ivist states and local governments. Across the country in places
like New Jersey, Chicago, Washington, D.C., laws exist that dras-
tically limit the fundamental rights of Americans to legally pos-
sess firearms - in direct violation of the Second Amendment.

"The right to keep and bear arms is fundamental to our way of
life. If am elected to Congress I will continue to support the
the rights of gun owners."

Mr. Flores, a retired oil executive with much experience drilling
on offshore leases developed by his companies, is a member of the
National Rifle Association.

On the other end of the spectrum, Paul Helmke of the Brady
Campaign To Prevent Gun Violence, said, "There is nothing in
today's decision that should prevent any state or local
government from succesfully defending, maintaining, or
passing, sensible, strong gun laws."

The Court used the 14th Amendment as the basis for its
holding, citing the guarantee that no person shall be
deprived of "life, liberty or property without due process
of law."

That amendment was passed soon after the Civil War to
insure, in part, that freed Afro-American slaves were not
denied the right to keep and bear arms in self defense,
among other issues.

Numerous cases decided by appellate courts have held that
police are under no legal obligation to protect citizens
from the criminal actions of those who threaten or assalt
them, with or without a display of weapons of any type.

Readers might like to review a discussion of this body of
case law in "The Legendary" for 6/20/2010.

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