Friday, June 27, 2008

"You can't take that away from me"

art.scotus.gun.gi Good news this morning as the Supreme Court of the United States confirms there are some times that the protection of the  US Constitution can't be taken away from American citizens: the SCOTUS has just ruled that the desire of Washington DC politicians and bureaucrats to legally disarm honest citizens has been squelched by the justices, and the right to bear arms in self-defence -- a right unambiguously protected by the constitution -- has been upheld. {Full decision here [pdf].]  Reports CNN:

     The U.S. Supreme Court ruled ... that Washington D.C.’s sweeping ban on handguns is unconstitutional. The justices voted 5-4 against the ban with Justice Antonin Scalia writing the opinion for the majority ...
    The case's lead plaintiff, Dick Heller, applauded the decision, saying, "I'm very happy that I am now able to defend myself and my household in my own home" ...
    At issue in District of Columbia v. Heller was whether the city’s ban violated the Second Amendment right to ‘keep and bear arms’ by preventing individuals — as opposed to state militias — from having guns in their homes. …
    The Second Amendment says, ‘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.’ The wording repeatedly has raised the question of whether gun ownership is an individual right, or a collective one pertaining to state militias and therefore subject to regulation. The Supreme Court has avoided the question since the Bill of Rights was ratified in 1791. The high court last examined the issue in 1939 but stayed away from the broad constitutional question. (06/26/08)

"Logic demands that there be a link between the stated purpose and the command," Justice Scalia wrote in the decision affirming the right. "We start therefore with  a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."

Good news, and a good demonstration to those of you befuddled by the question I put to you yesterday as to what the US is if it's not a democracy, which it isn't.

America is not a democracy -- let me say it again: America is not a democracy. The erudite Dr  McGrath got it right:

    As anyone who has studied the American system knows, the United States is a constitutional republic. Democracy offers no protection for individual rights; it doesn't prevent Big Government.

Let me say that again: the United States is  a Constitutional Republic, not a Democracy -- a republic in which the Government was chained up constitutionally to act as the guardian of its citizens' rights and liberties, rather than left unleashed to savage them.  That, at least, was what the Founding Fathers intended. 

It's a form of government that puts the things of importance beyond the vote; those things are each individual's rights to life, liberty and the pursuit of property and happiness, which the government is constituted to uphold.  These are the things that mustn't be taken away from you -- the intention of the constitution is to ensure that they can't be. The role of the Supreme Court is specifically to ensure that those rights can't be taken away by government.  This decision of the Supreme Court shows that despite the many indignities inflicted upon the constitution, the checks and balances it created do still sometimes work to do that.

The checks and balances of the United States Constitution was described by Ayn Rand as "the great American achievement."  Since so few people today understand those checks and balances, it's worth reading the the convenient summary provided by a course offered by the Ayn Rand Institute:

    A Constitution is "[t]he system or body of fundamental principles according to
which a nation, state, or body politic is constituted and governed."
   
Paraphrasing Ayn Rand, a proper government protects men from criminals and
foreign invaders and provides for the settlement of disputes according to objective laws. A government, therefore, does three things: it makes laws (the legislative function), enforces them (the executive function) and runs law courts (the judicial function).
   
The United States Constitution divides these functions into separate departments; this is the doctrine of separation of powers. It also divides governmental powers between the state and federal governments by enumerating the powers of the latter and by specific limitations on both. Thus, both the federal and the state governments have sufficient powers to secure rights, and are limited in their ability to violate them [and the Supreme Court has veto powers over both federal and state governments to strike down legislation when it does].

Simple but effective. Not democracy then but constitutional government - a constitution protecting essential liberties through a government constrained only to those protections. It's a model that failed states and would-be freedom fighters around the world would do well to understand and emulate.

Anyway, enough of that. To celebrate the SCOTUS decision here's Ella Fitzgerald and Louis Armstrong : "You Can't Take That Away From Me."

UPDATE: Eric Crampton suggests we not get too hasty in our celebrations.  He points out that Eugene Volokh, who was quoted three times in the decision itself, suggests "it was a very limited decision. Blanket bans like DC's are forbidden; regulations elsewhere are specifically not struck down."  Keep up with the commentary at Volokh's blog, the Volokh Conspiracy.

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5 Comments:

Blogger Julian said...

PC, This is absolutely great news. Guns not only provide Americans the right to self defence against common criminals but provides them the means to defend themselves against the government should it overstep its legitimate function.

I bet there are some people in Zimbabwe who would value the opportunity to have a gun around on their person so as to provide some degree of personal security.

Julian

6/27/2008 10:13:00 am  
Blogger PC said...

And I bet there are some people in South Auckland who feel the same way.

6/27/2008 10:23:00 am  
Blogger Crampton said...

The Volokh Conspiracy has some of the best blogging on the decision. Eugene Volokh, the lead blogger, was cited several times in the decision.

In short, it was a very limited decision. Blanket bans like DC's are forbidden; regulations elsewhere are specifically not struck down.

Note also that the NRA was very much opposed to this case going forward in the early days: they tried to sideline it several times. That's why I find it a lot of fun here in NZ to refer to the NRA as a bunch of gun-hating weenies: true patriots belong to the Gun Owners of America instead.

6/27/2008 12:06:00 pm  
Blogger Crampton said...

Again, from Volokh, it looks like SCOTUS affirmed the second amendment as an individual right rather than as a state or militia thing. And, the dissenters did not dissent on that point. So that's a victory.

6/27/2008 01:05:00 pm  
Anonymous richard mcgrath said...

Another hardline organisation dedicated to upholding the Second Amendment is the Jews for the Preservation of Firearms Ownership, at

http://www.jpfo.org

6/27/2008 07:00:00 pm  

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