What Fresh Hell Is This?

February 15, 2013

Again, They Get It Wrong

We've touched on this before but I guess we have to touch on it again.


Today, the Tribune-Review republished an essay previously published by the Christian Science Monitor by a "research fellow with The Independent Institute" named William J Watkins.

The title of the piece (in big bold letters, mind you) is:
Congress can not regulate guns at all
And before you ask, Watkins does not take the position that Congress is incapable of regulating guns in the sense that Congress can regulate guns but just isn't able to do it correctly.  No, he questions whether they're have the authority to do so.  Much in the same way that there's nothing legally prohibiting me from, say, doing calculus, I'm just not able to - or at least not able to do it well enough to be able to say I succeed at it.

No, Watkins posits that Congress lacks the authority to regulate guns.  He writes:
Does Congress even have the right to regulate or ban guns? Where does Congress derive the power to prohibit ownership or manufacture of certain weapons or magazines? The Second Amendment of the Constitution clearly states: “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.” And as James Madison wrote in Federalist Paper No. 45, “The powers delegated ... to the Federal Government are few and defined.” The Supreme Court has consistently upheld the individual's right to bear arms.

Of course, Congress has passed laws that ban guns, and many experts feel the courts have upheld the legality of some regulation and restriction of gun ownership. But the fact that the federal government has taken an action in the past does not itself answer the question about the authority for, or legitimacy of, the action.
The only problem with Watkins' column is how he justifies his skepticism that Congress has the authority to regulate:
In the landmark case District of Columbia v. Heller (2008), the Supreme Court recognized an individual right to bear arms, but also opined in dicta that certain “longstanding prohibitions” remained good law. The court specifically mentioned laws prohibiting felons or the mentally ill from carrying weapons.
Too bad for our friendly neighborhood Research Fellow at the Independent Institute but Heller gives an answer as to whether our 2nd Amendment rights are limited or unlimited - whether Congress can or can not regulate guns (even outside of the "longstanding prohibitions" Watkins notes).

Not unlimited:
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment ’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. [Emphasis added.]
So there are limits - what they are must be defined legislatively, I suppose.  But wait if that's the case, then CONGRESS CAN REGULATE GUNS, Mr Watkins.

Is this the best the Trib can do?

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