George Will On The Parker Case

George Will has a good column up at on the Parker v. District of Columbia, where the D.C. Circuit Court of Appeals recently struck down the District of Columbia’s gun ban based on an individualist interpretation of the Constitution.

As Will points out there is an important similarity between those who would whittle down the right to keep and bear arms protected by the Second Amendment and the rights protected by the First Amendment:

When Madison and others fashioned the Bill of Rights, they did not merely constitutionalize — make fundamental — the right to bear arms. They made the Second Amendment second only to the First, which protects the freedoms of speech, press, assembly and worship. They did that because individual dignity and self-respect, which are essential to self-government, are related to a readiness for self-defense — the public’s involvement in public safety. Indeed, 150 years ago this month, in the Dred Scott decision, Chief Justice Roger Taney said that one proof that blacks could not be citizens was the fact that the Founders did not envision them having the same rights that whites have, including the right to “keep and carry arms.”

Increasingly, however, some constitutional scholars and judicial rulings argue that several restraints the Bill of Rights puts on government can be disregarded if the worthiness — as academics or judges assess that — of government’s purposes justifies ignoring those restraints. Erwin Chemerinsky, professor of law and political science at Duke University, argued in The Washington Post last week that even if the Second Amendment is correctly construed as creating an individual right to gun ownership, the D.C. law should still be constitutional because the city had a defensible intent (reducing violence) when it annihilated that right.

Sound familiar? Defenders of the McCain-Feingold law, which restricts the amount, timing and content of political campaign speech, say: Yes, yes, the First Amendment says there shall be “no law … abridging the freedom of speech.” But that proscription can be disregarded because the legislators’ (professed) intent — to prevent the “appearance” of corruption and to elevate political discourse — is admirable.

As Will points out, the Parker case is potentially one of the most important Constitutional cases to reach the Supreme Court in some time. If the Court sustains the Court of Appeals decision and restores the Second Amendment to the place that it belongs, it willĂ‚ have a profound impact on gun laws across the country. If, however, the Court accepts the political expediency arguments of the gun ban’s proponents, then it will have succeeded in denegrating the Second Amendment just as it’s decision upholding the McCain-Feingold law denegrated the First Amendment.

  • Rhymes With Right

    There is, of course, a small problem with Will’s “second only to the first” analysis. What we today call the First Amendment fell behind two other amendments that were not ratified. That would make the “Second Amendment” FOURTH in importance, behind not only what we call the “First Amendment” but also behind amendments on the ratio of constituents-to-representatives and the compensation of Congresscritters — the latter of which was finally ratified in 1992 as the Twenty-Seventh Amendment. When viewed in the context of the originally submitted set of twelve amendment, it is therefore wrong to take Will’s position.

    Which is not to say that he is not dead on correct in his overall analysis of the issue.

  • tkc

    The Supreme Court of late has given us an affirmation of McCain-Feingold, Kelo, and Raich.

    I don’t hold up much hope for them getting things right on Parker if it gets there. If the court does lay out a collectivist decision then it will be a green light for states like Maryland, where I live, to ban all guns much in the same manner DC has.

  • Doug Mataconis


    Yes I know. That is why there’s as much to fear from the Supreme Court taking this case as their is potential for a major blow for individual liberty.