Fayetteville, AR –-(Ammoland.com)- I am told by gun control advocates that the Heller decision was a radical reinterpretation of the Second Amendment, a reading that is not to be found anywhere in legal thinking or rulings before 2008. While the case law is thin, in fact, there always have been two understandings of the text: protection of individual rights or collective powers of the state.
It is true to say that the 2008 ruling shifted the presumption away from the claim that ordinary Americans had to prove their need toward one that accepts ownership and carry of firearms as something that belongs to each of us.
Does that negate the force of the ruling?
To people who favor control, it does, though they should ask themselves how far they are willing to go with this line of thinking. The modern reading of several amendments seem apparent to many today, but this is not, in fact, the reality.
Take as an illustration of this the First Amendment. It’s protections of free speech, and a free press is foundational to a democratic society, but that is a measure of enlightenment that has taken us centuries to work out.
In the view of the English jurist, William Blackstone, free speech simply meant that no prior restraint could be imposed. You couldn’t be stopped from speaking your mind, but if what you said displeased those in power, you could be punished afterward. Think of Mel Gibson’s William Wallace shouting, “freedom!” before being relieved of his head.
Initially, the Bill of Rights did not apply to the states. The framers were under the impression, erroneous as it has proved to be, that the states were the more reliable guarantor of fundamental rights. The ratification of the Fourteenth Amendment was in part a response to the gap in the protection of rights, and over time, more and more of the first ten amendments have been incorporated under the due process clause of the Fourteenth against the states.
But even then, the old thinking about what free speech means remained until Oliver Wendell Holmes, the turn of the twentieth century’s Anthony Kennedy, went through an evolution of his understanding. As Thomas Healy discusses in his book, The Great Dissent, Holmes initially had no love for the idea of individual rights. It was his association with Harold Laski, at the time a democratic socialist, and others who convinced him that the promise of the progressive movement could only be fulfilled if each member of a society can offer points of view that are contrary to the settled beliefs of the majority.
All of this is to say that we have gone in a promising direction in our thinking about more than one right. And since each generation must come to terms with what the Constitution means, it’s good to see that we’re headed in the right direction.
The claim is often made that we have a living document as if that excuses any re-imagining that anyone desires, but the life of a free society will last only if the growth we go through preserves and expands the value of individual rights. That growth is to be celebrated, not opposed, and as with the First Amendment, so with the Second, we are going where we should.
About Greg Camp
Greg Camp has taught English composition and literature since 1998 and is the author of six books, including a western, The Willing Spirit, and Each One, Teach One, with Ranjit Singh on gun politics in America. His books can be found on Amazon. He tweets @gregcampnc.
I recommend reading “Lives of the Signers of the declaration of Independence, a reprinting of an 1848 original” Available from WallBuilders. http://www.wallbuilders.com
I have read, reread, and re read the constitution time and time again for clarification. Yet the scotus has warped it over and over, term after term. They do not want to show up fellow scotus. Scalia’s murder was an attempt to silence the right. The right being synonymous with the truth. It was an attempt to allow the Kenyan born by his own videod admission to stack more commies on the bench. The two main issues I have with the scotus’ position is 2af and Congress giving rights to legislate away. What I read goes along with justice Thomas’… Read more »
Joe, good post. However, when you write “….law by Congress, the Senate…” I believe you meant “….law by the House of Representatives, the Senate….” Since the “Congress” is made up of the House of Representatives and the Senate.
Just watching your six.
You are most correct, thank you.
Truth.
There are some people who believe that the Constitution is a living document and must change according to the time and the will of the majority. But, as Antonin Scalia opined correctly…” You would have to be an idiot to believe that.”
@Greg Camp, When you write, ” While the case law is thin, in fact, there always have been two understandings of the text: protection of individual rights or collective powers of the state.” are you say that this is what you were told by gun control advocates or are you really telling us that the case law is thin?
The Founder’s View of the Right to Bear Arms by Young is an excellent primer on not just the 2nd A but the whole Bill of Rights.
With liberal college professors and some high school teachers brainwashing their students with their slanted view of the constitution it won’t be long before those who come to power will try and change the founders work.
We have already seen radical laws passed in some states that are contrary to the constitution. IMO
Every Amendment has seen changes over time, some good and some bad, some that narrow the scope and some that expand it. Usually, the most drastic and dangerous IMO, were initiated by the so-called progressives. Read “Saving the Bill of Rights” by Frank Minter for a quick education in the history. I’m also Missouri born. LOL
You have to remember that the Republicans have been a “progressive” party since it began. The “War on Drugs” is a progressive policy. Every war since the Spanish American War has been a progressive war. Progressives infest both parties and have worked since the 1850’s to destroy this nation.