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COURT REPORTER
Whose Right To Bear Arms? [James Kilpatrick] In a moment of uncharacteristic ebullience, William Gladstone described the American Constitution in 1878 as “the most wonderful work ever struck off at a given time by the brain and purpose of man.” Like many contemporary commentators, the prime minister had given too little thought to the Constitution’s Second Amendment.
If the Supreme Court agrees to hear a
mostly hooey. Our beloved Constitution is
nature, is a right only against the federal
pending appeal in a New York case, that
riddled with ambiguities, inchoate provisions,
government, not against the states.” He cited
neglect may soon be addressed. The
chameleon clauses. As a die-cut legal
confirming cases in four of the 12 federal
amendment reads, as every schoolboy
document, it is hardly wonderful at all.
circuits. The 5th and 9th circuits have gone
knows:
Constitutionally speaking, pray tell, what’s a
the other way. The 9th Circuit regards the old
privilege? What’s an immunity?
Presser opinion as “thoroughly discredited,”
“A well regulated Militia, being necessary to
but clearly it hangs on.
the security of a free State, the right of the
More to the point, what is this “right of the
people to keep and bear Arms, shall not be
people to keep and bear arms”? The phrase
Judge Wesley also ruled against Bach’s
infringed.”
dangles clumsily off the end of a poorly
argument that New York’s law violates the
punctuated platitude. Chief Justice Warren
Constitution’s privileges-and-immunities
A Virginia lawyer, David D. Bach of Virginia
Earl Burger once said that the amendment
clause. The law does indeed discriminate
Beach, has embarked upon a personal
must be read as if it began, “Because a
against out-of-staters in their right to travel,
quest to clarify the murky language of our
well-regulated militia is necessary,” and so
but the state’s ban supports a substantial
Founding Fathers. He brings impeccable
forth. Today’s jurists must struggle with the
interest in monitoring the licensing of guns.
credentials to a difficult task. He has served
relevance of the opening words.
In any event, the old Presser case remains
for 25 years as an officer in the Naval
controlling. Neither the Second Amendment
Reserve, including 12 years of active duty as
For starters, it is unclear whether the Second
nor the famous P&I clause can overcome
a Navy SEAL. He returned recently from a
Amendment applies only to federal authority
New York’s power to regulate the licensing of
tour of duty in Iraq. He’s now attached to the
and not to the separate states at all. Almost
firearms.
Navy’s Office of General Counsel.
all the other original amendments to the Bill of Rights have been incorporated into
My own sympathies lie with David Bach, a
Bach is a citizen of Virginia. He frequently
the familial concept of “due process,” but
solid citizen who poses no known risk to
drives with his wife and children to visit his
the Second has been an orphan at least
the people of New York. My love for “states’
parents in upstate New York. The long trip
since Presser v. Illinois in 1886. The case
rights” pulls me in the other direction. New
takes him through areas where brigands
involved an Illinois activist, Herman Presser,
York’s law may be unreasonably restrictive,
reasonably may be anticipated. He wants to
who organized his own militia company
but that is for New York to say.
be armed and prepared. Wholly apart from
of 400 armed men. When he put them on
his sense of potential peril is his conviction
parade one September in Chicago, the
(Letters to Mr. Kilpatrick should be sent by
that he has a constitutional right to bear
mayor ordered him arrested. He claimed
e-mail to kilpatjj@aol.com.)
arms. He long ago obtained a license to carry
rights under the Second Amendment, but a
a handgun in Virginia, but when he applied
unanimous Supreme Court upheld the city’s
COPYRIGHT 2005 UNIVERSAL PRESS
for a similar permit in New York, he hit a
ordinance.
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stone wall. His repeated applications were repeatedly denied. Nine months ago, a panel
Presser and his $10 fine are long forgotten,
distributed electronically, in print or
of the U.S. 2nd Circuit unanimously upheld
but the precedent lingers on. Judge Richard
otherwise without the written permission of
the state’s unfriendly law.
C. Wesley cited the case at some length in
uclick and Universal Press Syndicate.
ruling against Bach in the 2nd Circuit. The Bach’s appeal to the Supreme Court presents
1886 opinion, he said, continues to stand for
interesting questions of constitutional law.
the proposition “that the right of the people
Gladstone’s after-dinner encomium was
to keep and bear arms, whatever else its
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