Tuesday, April 01, 2008

The true meaning of rights in the Bill of Rights, including the right to carry a firearm

Two weeks ago (March 18), the Supreme Court heard oral arguments in the case District of Columbia v. Heller. Walter Dellinger argued for the District, Alan Gura argued for Heller, and U.S. Solicitor General Paul Clement argued for the federal government. You might say, "2 against 1; it's not fair!", but you are wrong. Make it 3 against 0; Gura didn't give the Court a too compelling argument.

Also, due to the controversial nature of the case, the Heller case filed 67 amicus curiae ("friend of the court") briefs (47 urging the court to affirm the case and 20 to oppose it). When the USA Today looked at all the briefs which had been submitted, the editors decided to use the brief written by attorneys Bill Olson and Herb Titus. Olson and Titus explained in a 300 word op-ed the primary reason for the Second Amendment. It is titled, "An unambiguous right", and I couldn't agree with it more. You can read it for yourself.

Let's look at the structure legally of the 2nd Amendment. There are two clauses in that amendment: the first starting with, "a well regulated militia...", and the second starting with "the right of the people...". Which clause is a complete sentence on its own? The second clause. That is why the D.C. Circuit's ruling labeled the first clause "prefatory" (i.e., preliminary introduction) and the second "operative" (i.e., producing an appropriate effect). In other words, the main clause in the 2nd Amendment is "the right of the people to keep and bear Arms, shall not be infringed."

Now, what is the meaning of the phrase "right of the people" (or the word "people") and the word "arms" in the 2nd Amendment? When you placed the 2nd Amendment beside the other amendments, you will see the word "people" in the first, fourth, and ninth amendments; your right to be secure, or your unenumerated rights (both of the people) are yours alone. And Webster's definition of "arms" is "a means of offense or defense, especially firearms". So when you put the two together, you have a right to carry firearms individually.

And what is the meaning of "rights" anyway? The Declaration of Independence states (in part), "[A]ll men (including women--including you, me, and anyone out there) are created equal, that they are endowed by their Creator with certain unalienable rights". The first 10 amendments (including the 2nd) are called the "Bill of Rights". Looking in Black's Law Dictionary, a "right" is defined as "something that is due to a person by just claim". In other words, you don't need a higher authority; you are it. In that aspect, a right is the opposite of a privilege (take a look at chapter 2 of Michael Badnarik's book, Good to be King [.pdf]). And thus, you don't need government's permission to exercise your rights (e.g., your "right to bear arms", you don't need a CCW license). And the last 4 words, it can add to the end to imply "reasonable nor unreasonable, with no regulation." Else, the 2nd Amendment wouldn't be a right at all.

Now, I know I am correct on this. But I am not a Supreme Court justice. I don't know whether or not the different justices may see things differently than I. I guess we have to wait until summer to see their ruling.


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