A liberal's lament: The NRA might be right after all

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A liberal's lament: The NRA might be right after all
By Jonathan Turley
Law professor
George Washington University
USA Today
USATODAY.com
October 04, 2007
<http://blogs.usatoday.com/oped/2007/10/a-liberals-lame.html#more>

This term, the Supreme Court may finally take up the Voldemort
Amendment, the part of the Bill of Rights that shall not be named by
liberals. For more than 200 years, progressives and polite people have
avoided acknowledging that following the rights of free speech, free
exercise of religion and free assembly, there is "the right of the
people to keep and bear arms." Of course, the very idea of finding a new
individual right after more than two centuries is like discovering an
eighth continent in constitutional law, but it is hardly the cause of
celebration among civil liberties groups.

Like many academics, I was happy to blissfully ignore the Second
Amendment. It did not fit neatly into my socially liberal agenda. Yet,
two related cases could now force liberals into a crisis of conscience.
The Supreme Court is expected to accept review of District of Columbia
v. Heller and Parker v. District of Columbia, involving constitutional
challenges to the gun-control laws in Washington.

The D.C. law effectively bars the ownership of handguns for most
citizens and places restrictions on other firearms. The District's
decision to file these appeals after losing in the D.C. appellate court
was driven more by political than legal priorities. By taking the
appeal, D.C. politicians have put gun-control laws across the country at
risk with a court more likely to uphold the rulings than to reverse
them. It has also put the rest of us in the uncomfortable position of
giving the right to gun ownership the same fair reading as more favored
rights of free press or free speech.

The Framers' intent

Principle is a terrible thing, because it demands not what is convenient
but what is right. It is hard to read the Second Amendment and not
honestly conclude that the Framers intended gun ownership to be an
individual right. It is true that the amendment begins with a reference
to militias: "A well regulated militia, being necessary to the security
of a free state, the right of the people to keep and bear arms, shall
not be infringed." Accordingly, it is argued, this amendment protects
the right of the militia to bear arms, not the individual.

Yet, if true, the Second Amendment would be effectively declared a
defunct provision. The National Guard is not a true militia in the sense
of the Second Amendment and, since the District and others believe
governments can ban guns entirely, the Second Amendment would be read
out of existence.

Another individual right

More important, the mere reference to a purpose of the Second Amendment
does not alter the fact that an individual right is created. The right
of the people to keep and bear arms is stated in the same way as the
right to free speech or free press. The statement of a purpose was
intended to reaffirm the power of the states and the people against the
central government. At the time, many feared the federal government and
its national army. Gun ownership was viewed as a deterrent against abuse
by the government, which would be less likely to mess with a well-armed
populace.

Considering the Framers and their own traditions of hunting and
self-defense, it is clear that they would have viewed such ownership as
an individual right — consistent with the plain meaning of the amendment.

None of this is easy for someone raised to believe that the Second
Amendment was the dividing line between the enlightenment and the dark
ages of American culture. Yet, it is time to honestly reconsider this
amendment and admit that ... here's the really hard part ... the NRA may
have been right. This does not mean that Charlton Heston is the new Rosa
Parks or that no restrictions can be placed on gun ownership. But it
does appear that gun ownership was made a protected right by the Framers
and, while we might not celebrate it, it is time that we recognize it.



Jonathan Turley is the Shapiro Professor of Public Interest Law at
George Washington University and a member of USA TODAY's board of
contributors.