Assault on Second Amendment

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A useful illustration of how American freedom could fade away can be seen in a contrast between the city government of Newton, Mass., in 1775, and the city government of Washington, D.C., in 2007.

On Jan. 2, 1775, as historian David Hackett Fischer recounts in "Paul Revere's Ride," the good people of Newton held a town meeting. The issues they discussed were similar in a certain sort of way to the issues that might be discussed today by the D.C. Council. They included a proposed gun law and entitlement program.

In Newton, the gun law and entitlement program were one and the same. The Newtonians thought it so important for every man in town to own a gun that they were ready to give him one if he could not afford it. "Voted," say the town records, "that the Selectmen use their best discretion in providing firearms for the poor of the town who are unable to provide for themselves."

D.C. Mayor Adrian Fenty does not see guns the way our Founders did. In his view, they are not tools for defending individual liberty, they are instruments of criminality.

This week, Mr. Fenty announced the District would appeal to the Supreme Court a March U.S. Court of Appeals for the District of Columbia decision that ruled a District gun law unconstitutional. The law flatly bans possession of a handgun — even in one's own home — unless the gun was registered before 1976. "Wherever I go, the response from the residents is, 'Mayor Fenty, you've got to fight this all the way to the Supreme Court,"' said Mr. Fenty.

In fact, however, the D.C. handgun suit pits individual law-abiding D.C. residents against a Constitution-flouting D.C. government. These individuals claim the local government is violating their Second Amendment right to "keep and bear arms." The appeals court agreed.

The District argues there is no such thing as an individual right to keep and bear arms, and that the Framers did not intend to protect one. Pointing to the prefatory clause of the Second Amendment ("A well regulated Militia being necessary to the security of a free State"), it argued in court that the substantive clause ("the right of the people to keep and bear Arms shall not be infringed") was not really intended to protect a "right of the people," but a right of state governments to maintain militias.

"The District claims that the Second Amendment 'protects private possession of weapons only in connection with performance of civic duties as part of a well-regulated citizens militia organized for the security of a free state," Judge Laurence Silberman reported in his opinion for the appeals court. Because the District implicitly argued that Founding-era-type militias no longer exist, Judge Silberman said, the unavoidable conclusion, if the District's argument is accepted, is that the Second Amendment is meaningless.

"[I]n fact, at oral argument, appellees' counsel asserted that it would be constitutional for the District to ban all firearms outright," said Judge Silberman. "In short, we take the District's position to be that the Second Amendment is a dead letter."

The generation of Americans who ratified the Second Amendment would see such an outcome as a prelude to the extermination of all the other rights of the "people" recognized in the Constitution.

Gun ownership, in their view, was not merely an individual but a natural right. If individuals had a God-given right to life, liberty and property, it obviously followed they also had a right to individually possess the means to protect their life, liberty and property. That meant guns.

The 1689 Bill of Rights enacted by England's parliament reflected this view, as did William Blackstone's "Commentaries on the Laws of England," one of the most popular books in Colonial America. Even Founding era editorial writers understood gun ownership was a natural individual right.

A 2004 opinion from the Justice Department's Office of Legal Council explaining why the Second Amendment protects an individual right cited an April 13, 1769, editorial from the New York Journal Supplement. "It is a natural right which the people have reserved to themselves, confirmed by the [English] Bill of Rights, to keep arms for their own defense," said the editorial, "and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression."

Three months after the people of Newton resolved to provide firearms for the poor, English regulars marched on nearby Concord with the aim of disarming the American people.

Hopefully, a majority of the Supreme Court will stand as firmly today in defense of the right to keep and bear arms as Americans once did at Concord Bridge.

Terence P. Jeffrey is a nationally syndicated columnist.