With the passing of Justice Antonin Scalia, Republicans argue naming a new Justice should be prolonged until next year by a new executive whereas President Obama and Democrats argue it’s the President’s right granted by the Constitution to appoint another Justice.
Some argue the Heller decision, one of Scalia’s most memorable opinions, is reason enough to disrupt the process given how delicate the High Court’s decision actually was — Heller was favored with a 5-4 decision.
Although Heller does not define the right to “keep and bear” arms in absolute terms, even Scalia said in his opinion and in interviews that the Second Amendment has limitations, it does reiterate that the amendment defines the right to own a firearm and own one for self-defense.
However, columnists with The New York Times argue that under the Heller decision firearms can be registered and gun owners licensed.
Writers Abner J. Mikva and Lawrence Roesenthal base their argument on the preamble, “A well regulated militia,” to the Second Amendment to describe the “militia” not as a formal military but everyone qualified to own a firearm.
The Second Amendment therefore means that all who exercise firearms rights should be “well regulated.” History confirms this: Comprehensive registration laws would not have alarmed those who wrote the Second Amendment. In the early republic, gun owners were frequently required to register their weapons with local authorities. A “well regulated militia,” of course, is subject to rules that ensure firearms are used safely and appropriately.
The Heller decision stressed that the Second Amendment is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The court described lawful self-defense as “the central component of the right itself.” It invalidated Washington’s ban on the possession of handguns only because it “makes it impossible for citizens to use arms for the core lawful purpose of self-defense.”
A comprehensive system of background checks and registration would not prevent law-abiding people from obtaining guns for purposes of lawful self-defense. It would be consistent with both the Heller decision and the Second Amendment’s acknowledgment that those who keep and bear arms should be “well regulated.”
An efficient system could instantly determine whether a proposed firearms purchase was legal, and then register the sale. It need not impose any meaningful burden on the right to keep and bear arms. This system would, however, put a serious crimp in gun theft, gun crime and gunrunning. There is nothing unconstitutional about that.
We doubt that there is any coherent defense for our current Swiss-cheese system of firearms regulation. But if opponents of gun control want to make serious arguments for maintaining the status quo, they should make them without hiding behind the Constitution.
Read the full article at The New York Times
