Reading the SCOTUS Tilt on DC Gun Ban

After the Supreme Court heard oral arguments. The money this afternoon, the smart money seems to be where the smart analysis was all along, namely that the right to keep and bear arms is an individual right, not a collective one. The passage that threw so many off is that clause, "a well regulated militia," which many have taken to mean that individuals have no rights at all, but only ... the state?

Of course it flies in the face of the Bill of Rights to suggest that anything there protects the state. Against whom, one might ask? The entire thrust of the Bill of Rights is to protect the individual against the state. Clearly, that was the intent here.

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The idea of a collective right -- the state protecting its prerogatives against itself -- is almost as funny as the equally oxymoronic concept of "substantive due process.' Which, I'm sorry to say, has worked its way into the core of the American jurisprudence.

All that said, it also seems clear that the founders intended this right to be one with limits, as is the first amendment. Both the right of speech and the free exercise of religion have limits. The former finds its limits in obscenity, fraud, slander and incitement to riot.

But what the Bill of Rights does do is impose a very stern compelling state interest test on any abridgment. You can abridge, but you sure as hell better have a very clear and compelling purpose, and the abridgment must be narrowly tailored to accomplish this purpose.

Whether the DC gun ban will pass such a test now seems doubtful, especially since the ban seems quite ineffectual in its stated purpose.


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