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David Keene: Gun-rights parameters in their infancy

By David Keene Philadelphia Inquirer

Editor’s note: The following essay is part of the Philadelphia Inquirer’s series celebrating the 225th anniversary of the Bill of Rights.

Georgetown law professor David Cole observes in his recently published “Engines of Liberty” that while the Second Amendment was adopted along with the rest of the Bill of Rights in 1791, “it remained a dead letter as a matter of formal constitutional law until 217 years later.” In 2008, the U.S. Supreme Court finally declared for the first time – while striking down a Washington, D.C., law that made it illegal to keep a handgun in one’s home for self-defense – that it protects an individual right. The case that breathed life into the Second Amendment was District of Columbia v. Heller.

I attended law school nearly 40 years ago and cannot remember any mention of the Second Amendment back then, though today it is among the most discussed, debated, supported and hated of the amendments. The Heller decision turned on the amendment’s history and meaning to its authors and their contemporaries rather than on the wishful thinking of those who have since tried to ignore both in the policy debates over firearms laws and rights.

A reading of the Second Amendment is important as it does not represent a government grant of anyone’s right to “keep and bear arms,” but instead prohibits the new government from “infringing” on that right. This is an implicit recognition that the right predated the formation of the new Republic and the drafting of the Second Amendment itself. It was instead the recognition of what the founders believed to be the natural right to defend oneself, one’s family, community and nation; a right recognized much earlier in the English Bill of Rights and by many of the American colonies long before the break with Great Britain.

Pennsylvania’s Declaration of Rights was adopted in 1776 and recognized that “the people have a right to bear arms for the defense of themselves and the state.” The language was not atypical of that adopted in other colonies and obviously related to an individual rather than what opponents of the Heller decision liked to characterize as a “collective” right. It had been their argument for years that all the Second Amendment protects is the right of the states to maintain their own militias and that there exists no individual right to own firearms in this country. But the history of the right and of the amendment, as well as the plain meaning of the words of its authors, prevailed even among legal scholars like Harvard’s Laurence Tribe, who supported more strict controls on firearms ownership.

The court in Heller recognized that even “fundamental rights” are subject to what the court termed “reasonable” restrictions and there are today dozens of cases making their way through the lower courts that will lead to a body of law defining what sorts of restrictions will be considered consistent with the individual “right to keep and bear arms.” In a sense, Second Amendment law today is where First Amendment law was nearly a century ago.

It was easy to observe that yelling fire in a crowded theater could be prohibited without violating anyone’s First Amendment rights as “reasonably” interpreted, but the legitimacy of laws restricting spending on speech, access to platforms, tax treatment of religious facilities and a myriad of other restrictions had to be determined over decades as litigants brought cases against federal, state and local restrictions they believed the courts would find unacceptable. In the process, a body of law pretty much defining what is and is not permissible given the guarantees of the First Amendment emerged. It will take just as long for a similar body of law to develop defining what is and is not permissible under the fundamental rights recognized in the Second Amendment.

Today millions of Americans engage in the shooting sports, take to the field to hunt or keep a gun in their home for self-protection. Some 14 million Americans hold what are called “concealed carry permits” that allow them to carry a firearm concealed for self-protection. Without the Second Amendment, these activities could be outlawed or severely restricted as a matter of policy by those who neither appreciate nor support the rights of others to own firearms or to defend themselves and their families. This has happened in other countries, but it cannot happen here so long as the Second Amendment remains a part of the Bill of Rights.

David Keene is a former president of the National Rifle Association, co-author of “Shall Not Be Infringed” and the opinion editor of the Washington Times.