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The real good news in the
recent 2nd Amendment decision

By John Silveira

Issue #113 • September/October, 2008

The June 26, 2008 Supreme Court decision, District of Columbia v. Heller, which shot down the District's Firearms Control Regulations Act of 1975 and affirmed the right of individuals to "keep and bear" arms, has both been hailed to be a victory for individual rights and damned as a curse on America's crime-ridden cities.

My first reaction on hearing the results was somewhat subdued. I felt the decision shouldn't have been so close—5-4. It was a no-brainer and should have been 9-0. Because of the narrow margin I was disappointed—and a little bit afraid of what future decisions may bring.

My second reaction was that the decision isn't broad enough. It leaves in place the power of government to continue regulating our rights. I never see that as a good thing.

My third reaction—and this is one that surprises people when I say it—is that it should not have been decided by the Court at all. Why? Because I don't like the idea that interpretation of the very document that is supposed to protect us from the tyranny of government is interpreted and adjudicated by any branch of that government. I should mention that nowhere in the Constitution is it mentioned that that august body we call the Supreme Court is to be the arbiter and arbitrator of our rights. And because of that, the 10th Amendment actually forbids it. It says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

I'm not saying it's not a good idea to have the Court intercede for us and hope for the best. I'm just saying it's not "constitutional."

What the Founders had intended was for us to guard our rights ourselves. That's why they're written in everyday language rather than the legalese we've come to expect from lawyers, lawmakers, bureaucrats, and the courts. Think of it this way: Had the Founders thought our rights should be determined by a branch of the government, by men who were appointed or confirmed to their judicial seats by the very people who would deprive us of our rights, then the Founders would have taken their case to an English court in 1776, heard the inevitable decision, and today we could still be subjects of the Crown.

So, was there anything in the decision I did like? Yes. I was stunned to discover that the majority decision ruling was based on the Natural right of self-defense.

Why is this important? Because I rarely hear anyone, in any branch of government, talk about our Natural or God-given rights. Even the mainstream media rarely uses either of these terms. But Natural or God-given rights are exactly what the Founders had in mind when they wrote the Declaration of Independence, the Constitution, and the Bill of Rights. But on June 26th, though the Natural right to self-defense is mentioned nowhere in the Constitution, at least five of the justices suddenly acknowledged its existence. That's good.

I've tried, again and again, to point out to people that the primary reason the Bill of Rights was included in the Constitution was to remind the citizenry and the government that we have rights under any government. But they never intended it to be an exhaustive or comprehensive list of our rights nor was it intended to be the source of our rights as many people, including lawyers and politicians, have come to believe. Hence the term we commonly use: constitutional rights.

But we don't have constitutional rights, folks. The English, Canadians, and even the Russians have constitutional rights. We have Natural or God-given rights. The Founders had intended us to be the first (and, so far, the only) country where the citizens have rights that are not gifts from politicians, bureaucrats, the courts, or even the Founders themselves.

John C. Eastman, Associate Dean of Chapman University's School of Law and director of the Claremont Institute's Center for Constitutional Jurisprudence commenting on the decision said, "...the Second Amendment, like its sister amendments, does not confer a right but rather recognizes a natural right inherent in our humanity." This kind of sentiment is rarely reported by the press, nor is it taught in our schools. Frankly, I don't think either the people who inform us nor the people who educate us are any longer aware of it.

Worse, I don't think many so-called legal experts are aware of it. Consider this: Justice Stephen Breyer's dissenting opinion was based on the fact that self-defense is not explicitly mentioned as a reason for the 2nd Amendment. Apparently, neither he nor the three justices who joined him understand where our rights come from. Presumably, they feel what rights we have are a gift from him and the rest of the government. That's dangerous.

If the American people will just sit up and listen to what the decision was based on, and realize where our rights really come from, maybe we can stop the erosion of our freedoms, and perhaps we can even get back the ones we've lost.

Finally, there's the question: "What would Washington, Adams, Jefferson, or any of the other Founders have done if confronted by the loss of rights we're experiencing today. Well, there's a little ditty making the rounds on the Internet that says the ultimate defense of our liberties is in three boxes:

  • the ballot box
  • the jury box
  • the ammo box.

When the first two failed them, the Founders had to reluctantly turn to the third. I hope we never have to resort to it again. But it is one of the reasons for the 2nd Amendment.




Read More by John Silveira

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