Keep your guns – but don’t take away my right to bear arms

In an American constitutional democracy, this case should at best have been settled years ago. But it isn’t. Gun rights advocates fear that the federal courts have legislated from the bench. Guns were among the 19th century guns they didn’t want anyone else to have. In this case, that fear’s been realized. But the far larger tragedy here is that gun rights advocates need to understand that it’s not true. They need to understand that firearms are protected under the Second Amendment, and that the right to bear arms remains something much more important than guns. The conclusion we all should arrive at is that this case underscores the broad ground on which gun rights advocates can proceed to secure those rights. Even if this opinion puts a seriously damaging damper on those freedoms, the irony of this case is that the guns that the Second Amendment guarantees are no different than those that protected liberty during the other two centuries. Guns may be part of liberty, but they’re not the cause of liberty.

G-E-L-P says these arguments are overblown. It correctly points out that the court considered, but concluded that the government could place certain limits on gun ownership. And it cites the “sea change” in the relationship between the government and the people, as well as the Constitution’s emphasis on the unique powers of the states, which leave gun rights exclusively within the federal government’s purview. The court thought about restrictions of gun ownership, it ruled in Stoneman Douglas High School v. Broward County, Inc., but did not address the question of the degree to which they might violate constitutional rights. Why wasn’t this a related case? Before it even ruled on the question of restrictions on gun ownership, G-E-L-P pointed out, the court had held that states could require people to get permits to carry firearms in public. Even after reaching that conclusion, the court pointed out, it explicitly barred applying the “Conduct Clause” to carrying a gun in a case involving an implied right to carry a gun under this case’s definitions of “consent” and “crime of violence.” Even after it explicitly reversed this ruling, it rejected claims from G-E-L-P and others that the decision was based on broader structural considerations, including “the scope of the right to bear arms.” How then did the court uphold the right to bear arms in this case? The answer is that it decided this case on a procedural issue that was irrelevant to the substance of the case. Just as justices traditionally decide disputes on an “antithesis” approach to case law, namely if the law is unprecedented or “unreasonably” overreaching, the court held that no one should be considered as having an unconstitutional right unless the state had taken that right away. In this case, it determined that the recent expansion of control on purchasing guns and local gun control ordinances hadn’t taken away a person’s right to bear arms.

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