Kevin Jensen
State Researcher
imported post
http://www.sltrib.com/Opinion/ci_9710636
Second Amendment: U.S. Supreme Court should have left precedent alone
Tribune Editorial
Article Last Updated:
06/26/2008 06:31:31 PM MDT
The U.S. Supreme Court's holding Thursday that the Second Amendment enshrines in the Constitution an individual right to keep firearms in the home outside the context of a state militia was wrongly decided and turned decades of settled judicial precedent on its head. No fair reading of the plain language of the amendment or its history could have reached the conclusion the court announced.
That said, we believe, with most Americans, that a person should be able to keep a handgun or other firearm at home for self-defense. We agree that self-defense is a basic human right. We simply disagree with the 5-4 majority of the court that an individual right to possess a firearm unconnected with service in a militia can be found in the Second Amendment.
Justice John Paul Stevens got it right in his dissent. He wrote that the Second Amendment was adopted to protect the right of the people in the individual states to maintain a militia in response to concerns that the new Constitution gave Congress power to disarm the state militias and create a national standing army. That was viewed as an intolerable threat to the sovereignty of the states. But neither the text of the amendment nor the arguments of its proponents give any evidence that it was intended to limit any legislature's authority to regulate private civilian uses of firearms, Justice Stevens wrote. "Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution."
Nevertheless, through some tortured analysis, the court's majority, led by Justice Antonin Scalia, saw it differently. They struck down as unconstitutional a Washington, D.C., law that, in essence, banned handgun ownership, even at home.
However, Justice Scalia, perhaps as the price of winning over the deciding vote, wrote that the newly minted individual right is not unlimited. "It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose," he wrote. (Utah Legislature, please note.) Concealed carry can be prohibited, guns can be banned from schools and government buildings, and firearms sales can be regulated, Scalia opined.
Unfortunately, Thursday's decision declares open season on all kinds of other gun laws, and the courts now will become the range officers on a firing line of lawsuits. It would have been better to leave Second Amendment precedent alone and let legislatures and city councils determine the best gun policies for their communities.
http://www.sltrib.com/Opinion/ci_9710636
Second Amendment: U.S. Supreme Court should have left precedent alone
Tribune Editorial
Article Last Updated:
06/26/2008 06:31:31 PM MDT
The U.S. Supreme Court's holding Thursday that the Second Amendment enshrines in the Constitution an individual right to keep firearms in the home outside the context of a state militia was wrongly decided and turned decades of settled judicial precedent on its head. No fair reading of the plain language of the amendment or its history could have reached the conclusion the court announced.
That said, we believe, with most Americans, that a person should be able to keep a handgun or other firearm at home for self-defense. We agree that self-defense is a basic human right. We simply disagree with the 5-4 majority of the court that an individual right to possess a firearm unconnected with service in a militia can be found in the Second Amendment.
Justice John Paul Stevens got it right in his dissent. He wrote that the Second Amendment was adopted to protect the right of the people in the individual states to maintain a militia in response to concerns that the new Constitution gave Congress power to disarm the state militias and create a national standing army. That was viewed as an intolerable threat to the sovereignty of the states. But neither the text of the amendment nor the arguments of its proponents give any evidence that it was intended to limit any legislature's authority to regulate private civilian uses of firearms, Justice Stevens wrote. "Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution."
Nevertheless, through some tortured analysis, the court's majority, led by Justice Antonin Scalia, saw it differently. They struck down as unconstitutional a Washington, D.C., law that, in essence, banned handgun ownership, even at home.
However, Justice Scalia, perhaps as the price of winning over the deciding vote, wrote that the newly minted individual right is not unlimited. "It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose," he wrote. (Utah Legislature, please note.) Concealed carry can be prohibited, guns can be banned from schools and government buildings, and firearms sales can be regulated, Scalia opined.
Unfortunately, Thursday's decision declares open season on all kinds of other gun laws, and the courts now will become the range officers on a firing line of lawsuits. It would have been better to leave Second Amendment precedent alone and let legislatures and city councils determine the best gun policies for their communities.