View Full Version : Bob Barr on Supreme Court case

Bradley in DC
11-28-2007, 11:19 AM
Court must take very careful aim at Second Amendment
by Bob Barr
special to The Atlanta Journal-Constitution
Wednesday, November 28, 2007 at 11:00 AM

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.

Second Amendment to the Constitution of the United States

In announcing last week that the U.S. Supreme Court would decide whether a lower-court decision last spring invalidating the District of Columbia's 31-year-old handgun ban should stand, the high court teed up a modern-day "shot heard 'round the world" that may very well define whether freedom retains any life breath in this country.

Since its adoption as part of the Bill of Rights in 1791, the Second Amendment has generated controversy far beyond its short, 27-word length. Yet, surprisingly, in all those 216 years, the Supreme Court has never ruled definitely on the amendment's reach. Does it, as the District of Columbia and a number of federal courts have decided, simply codify a collective right of an organized "militia" to arm itself? Or, as other courts and judges have concluded including Senior Circuit Judge Laurence Silberman of the federal Court of Appeals for the D.C. Circuit, who wrote the decision in the case the Supreme Court will hear in its current term does the Second Amendment guarantee the right of an individual to possess firearms for self-defense?

While many modern-era opinions issued by federal courts, including the Supreme Court, are distressingly complex and convoluted, Silberman's published decision is not. His 58-page majority decision is remarkably lucid; legally sound and historically based. It is written for the layperson as well as the law school honors graduate; and, most important, it is written to appeal to the moderate among the Supreme Court's nine.

Clearly with an eye toward his superiors on the high court, Silberman did not in his decision claim the Second Amendment serves to ban any government restriction of the individual right to keep and bear arms. Drawing analogy to the First Amendment's language (the amendment most often cited by more liberal jurists as the embodiment of individual rights against the restrictive power of the government), Silberman noted that both amendments may be held subject to "reasonable restrictions." The First Amendment guarantees freedom of speech, but it does not shield the irresponsible shouting of "Fire!" in a crowded theater. Similarly, the Second Amendment's language guaranteeing the fundamental, pre-existing right to "keep and bear arms" for self-defense is subject to reasonable limitations by government.

As noted by Silberman, drawing also on the historical notion of the "militia" as a citizen-based not a government-based self-defense entity, the Second Amendment must be held to guarantee to the individual citizen the right to possess those sorts of "arms" commonly and reasonably employed by a "citizen army"; namely, rifles and pistols. Importantly, however, the judge recognized in his opinion that the same reasoning underlying the conclusion that the amendment in fact guarantees an individual right to possess firearms, may indeed should be read to allow government to prohibit possession or restrict use of weapons not commonly or reasonably employed for self-defense. Thus, weapons employed collectively, as by a government armed service, such as cannon or other weapons of mass destruction, might properly be restricted.

Likewise, and also cognizant of the desire by many Supreme Court justices to find solid middle ground, Silberman's opinion recognized that government may also limit the manner in which an individual might exercise his or her inherent right to possess a firearm. Thus, for example, the "state" (that is, the "government") might restrict concealed carry of a firearm, as many states and the District of Columbia have done. However, if the government entity places such onerous restrictions on the exercise of the right as to render it meaningless as the District of Columbia did with its draconian 1976 gun-control ordinance then it has impermissibly deprived the citizenry of a right guaranteed in the Bill of Rights.

Whether one owns firearms or not or ever intends to the Silberman opinion in the D.C. gun-ban case should be a must-read for anyone wishing to understand what the Bill of Rights was, is and was intended to be. All who support the fast-disappearing freedoms guaranteed within its four corners should hope fervently that the Supreme Court of the United States will, before it adjourns next summer, render a similarly sound and supportive opinion in the case Silberman has so masterfully served up.

Former congressman and U.S. Attorney Bob Barr practices law in Atlanta and is a board member of the National Rifle Association; www.bobbarr.org.