Commentary: Dead Wrong
2010-07-14 · By Editor
By Craig R. Smith
The Supreme Court’s ruling on Chicago’s gun control law of June 28th severely restricts what states can do regarding gun control within their borders. True conservatives, like myself, are appalled. Not only does this narrow 5-4 decision infringe on states’ rights, or what’s left of them, it violates the conservative justices own claim that they read the constitution using the lens of the original intent of the Founders. The fact is the Second Amendment was added to the Constitution to strengthen the states’ right to form a militia by empowering their citizens to bear arms under special circumstances. It was not written to give citizens the right to own guns in all circumstances.
You don’t have to take my word for it. Placing the amendment in context, the Ninth Circuit Court of Appeals, that’s the one for California, ruled that the Second Amendment does NOT prohibit states or the federal government from restricting the possession of guns. In the UNANIMOUS ruling Judge Reinhardt relied on the conservative standards of “original intent” and “strict construction of the Constitution.” He concluded that “‘well-regulated’ confirms that ‘militia’ can only reasonably be construed as referring to a military force established and controlled by a government entity.”
We can trace the Amendment back through James Madison and the need for some states to protect themselves from disturbances within their borders. Shays rebellion in Western Massachusetts had threatened many states at that time. Hence the right to empower the states to create their own militias. Both the Pennsylvania frame and the Massachusetts constitution argued that the people have the right to keep and bear arms but only for “the common defense.” Thus, using the criteria established by conservatives for reading the Constitution, the Ninth Circuit concluded that the Second Amendment allows states, not individuals, to form militias and thereby confer on individuals of the state the right to bear arms.
But even if the Supreme Court’s majority did not want to be consistent on this issue, they know that amendments are not absolute when faced with a compelling government interest. For example, the First Amendment does not protect speech that is treasonous or defamatory. It is in the government’s interest to protect national security and to prevent libel and slander. The compelling government interest in the case of the Second Amendment is rampant death and crime by hand gun. Twelve thousand people a year in the United States are shot to death, that’s about 33 a day. About 240 a day are injured by gun fire. Both categories include much domestic violence and many children. Many of the children have found guns at home; and many of those take guns to school. With almost 500 handgun killings a year in Los Angeles alone, not to mention rapes that occur using a gun to the head, assaults and the like, one would think an effective gun control system would be in place. Perhaps that is why in the previous case before the Supreme Court in 2008, President Bush’s U.S. Solicitor General Paul D. Clement said guns are subject to “reasonable regulation” by the government and that all federal restrictions on guns should be upheld.
But the Supreme Court has terminated that possibility.
Our only hope is to realize that five to four rulings are weak and can be overturned when one judge changes his or her mind, or when a judge retires that voted on the prevailing side and is replaced by one favoring the other side. Hopefully, the Supreme Court will come to its collective senses soon and undo this terrible decision.
Dr. Craig R. Smith, Director
Center for First Amendment Studies
Cal State Long Beach
Craig R. Smith is a professor of communication studies at California State University, Long Beach. He is also the director of the Center for First Amendment Studies at CSULB and president of the Freedom of Expression Foundation, which was created in 1983 and dedicated to research on First Amendment issues. Dr. Smith has written several articles on gun issues. In fact, was one of the very first people to come up with the idea of ballistic registration of barrel markings of handguns to give law enforcement a new and efficient way of matching the bullet from a crime scene with the gun that was used in the crime.