This column by ACRU Senior Legal Analyst Ken Klukowski was published January 20, 2011 on The Washington Examiner website.
Gun-control legislation is back after the Tucson tragedy. Congress must confront the reality that the courts have declared two reasons for the Second Amendment right to bear arms. One is self-defense, and the other — whether you like it or not — is enabling the American people to resist tyranny.
A depraved monster gunned down innocent people in Arizona. And predictably, several gun-control laws are being introduced.
Since the Constitution expressly guarantees the right to obtain and possess firearms, Congress must understand the Second Amendment and why it was written.
Here’s our national dilemma: We must find ways to prevent manifestly degenerate menaces from obtaining firearms prior to a felony conviction without depriving law-abiding, peaceable citizens of their Second Amendment rights. The constitutional challenge is to craft laws addressing the former, without abusing the latter.
Fortunately, Congress and the president have help missing from previous gun-control debates. The Constitution commits the ultimate power of interpreting the Constitution to federal courts.
At long last, the courts have tackled the Second Amendment, instructing us on how to make gun laws consistent with the Constitution’s promises.
It’s now settled law that the Second Amendment secures an individual right to own guns for private citizens who are law-abiding and peaceable. It’s a fundamental right, applicable against all levels of government, including state and local.
This right has two purposes. One is so Americans can defend themselves from criminals. Another — talked up by the Tea Party but ridiculed by the liberal elite — is that the Second Amendment protects citizens against our own government.
The Supreme Court declared in its landmark 2008 D.C. v. Heller decision — a decision praised by Rep. Gabrielle Giffords, D-Ariz. — that the Second Amendment was enshrined in the Constitution because when vast numbers of citizens have guns and know how to use them, “they are better able to resist tyranny.”
When serving on the California Supreme Court, now-D.C. Circuit Judge Janice Rogers Brown observed, “political writings of the [Founding Fathers] repeatedly expressed a dual concern: facilitating the natural right of self-defense and assuring an armed citizenry capable of repelling foreign invaders and quelling tyrannical leaders.”
Ninth Circuit Judge Diarmuid O’Scannlain explained the Second Amendment “right contains both a political component — it is a means to protect the public from tyranny — and a personal component — it is a means to protect the individual from threats to life or limb.”
The most sobering words come from Judge Alex Kozinski of the 9th Circuit, who wrote, “the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people.”
The son of Holocaust survivors, Kozinski continued, “The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies seem today, facing them unprepared is a mistake a free people get to make only once.”
Fortunately we don’t live in such times. Last November proved that democracy is working fine in America.
We use ballots, not bullets. The anti-tyranny rationale of the Second Amendment only applies if the government cancels elections and retains power after their terms in office have expired. It’s an intergenerational insurance policy for freedom.
The Second Amendment exists to perpetually guarantee freedom. We must never lose sight of that as we respond to tragedies, lest the ultimate tragedy someday befall our republic. Freedom, once lost, is seldom reclaimed.