Kim DiScala’s letter titled “Government is taking away our constitutional rights” in the Dec. 19-20 edition of the Star is virtually devoid of facts.
She asserts that “It’s not a privilege to own a firearm, it is a right ... without restriction or stipulation, that is not to be infringed.” While throughout our country’s history, the Second Amendment has provoked much debate and controversy, there was virtually no clear resolution by the courts what rights exactly the amendment protects before our era.
For many, the association with the right to bear arms was connected to the states’ right to maintain “a well regulated Militia.” Such an armed militia was no doubt inspired by the Founders’ belief that a standing army was anathema to freedom and self-government. Until well into the 20th century, the amendment was essentially treated by the courts almost as a dead letter. Most of the recent debate about the nature and intent of the Second Amendment has arisen in response to the Heller case in 2008, which dealt with a challenge to a ban on handguns by the city of Washington, D.C. In that case, decided by a badly divided court, the “originalist” Justice Anton Scalia, in one of the great ironies in American history, severed the first clause of the Founders’ language to claim there is an individual right to bear arms without relation to the issue of maintaining a well regulated militia. Even then, however, Scalia acknowledged that the Second Amendment does not limit all restrictions on the use or possession of firearms and that there was a historical tradition of prohibiting the carrying of “dangerous and unusual weapons” without being more specific. Thus the idea of creating “sanctuaries” for firearms has little legal or constitutional basis.
Paul A. Hager