by Judge Andrew Napolitano, The Burning Platform:
“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 U.S. Constitution
In 2008, the Supreme Court laid to rest the once-simmering dispute over the meaning of the Second Amendment. In an opinion written by Justice Antonin Scalia, the court articulated the modern existence of the ancient personal right to keep and bear arms as a pre-political right.
A pre-political right is one that pre-exists the political order that was created to protect it. Thus, the court held, the origins of this right are the ancient and persistent traditions of free peoples and their natural inclinations to self-defense.
The court also characterized the right as fundamental. That puts it in the highest category of rights protected by the Bill of Rights. Though the origins of this right are from an era well before guns existed, the textual language in the amendment — “arms” — makes clear, the court ruled, the intention of the Framers that its continuing purpose should be to recognize the right of people to keep and use the same level of technologically available arms that might be used against them.
That, in a nutshell, is the history, theory and purpose of the amendment as the modern Supreme Court has found them to be. But as we have seen, the constitutional guarantees that were written to keep the government from interfering with our rights are only as viable as is the fidelity to the Constitution of those in whose hands we have reposed it for safekeeping.
In our system, principal among those are the hands of the president; and sadly, today we have a president seriously lacking in this fidelity. And that lack is salient when it comes to the Second Amendment.
Earlier this week, President Barack Obama announced that he will sign executive orders that expand the size and scope of federal monitoring of the acquisition and use of guns — traditionally a matter left to the states — and he will interpret the laws in novel ways, establish rules and impose obligations that Congress rejected, and prosecute those who defy his new system.
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