“Life, liberty and property” are rights that have a celebrated history in English common law and American constitutional law, but with the Second Amendment case concerning our right to keep and bear arms now before the U.S. Supreme Court, do those rights have a future?
Ten years before our war for independence, English judge Sir William Blackstone wrote in his “Commentaries on the Laws of England” that “the three great and primary rights” of “every Englishman” were “personal security, personal liberty and private property.” Moreover, to protect these rights, English subjects were entitled “to the right of having and using arms for self-preservation and defence.”
Little did Blackstone know that only a decade later the English colonists in America would rely on that principle of law to defend their lives, liberty and property against the tyranny of Great Britain. After our war for independence, our Founding Fathers secured those rights to life, liberty and property in the U.S. Constitution. Rather than protect those rights, however, the Supreme Court over the last half-century has been undermining each of them.
Since the Court’s decision in Roe v. Wade in 1973, nearly 50 million unborn children have been put to death without the least concern for their right to due process of law. By redefining when life begins and creating a “right” of the mother to kill her unborn child, the Court overturned the abortion laws of nearly every state in the union. Almost every effort since Roe to protect the lives of unborn children has been summarily rejected by federal courts that blindly follow the Supreme Court’s unconstitutional – and deadly – edict.
More recently, the Court’s ruling in Kelo v. New London, Conn. (2005) that a municipality has the right to condemn private property, in this case someone’s home, for private “economic development” and a higher tax base has had devastating consequences. City and state governments from coast to coast jumped at the open door to grab homes, businesses and land the Constitution was supposed to protect. Even retired Supreme Court Justice Sandra Day O’Connor, often quite liberal, complained that, after Kelo, “Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
O’Connor was right. According to the Institute for Justice’s Castle Coalition, within the one year following Kelo, cities issued almost 5,500 threatened condemnations of private land for private development, compared to only about 6,500 in five years from 1998-2002. Even the mere threat of condemnation backed by a Supreme Court opinion would be enough to cause most people to give up their homes without a fight. Just as the Court had altered the Constitution to allow the taking of unborn life, it reinterpreted the Constitution to allow the taking of private property for private use in Kelo.
Now the Supreme Court is considering the case of District of Columbia v. Heller, scheduled for oral argument on March 18, regarding our “right to keep and bear arms” under the Second Amendment, a case that will have serious implications for our liberty. The Court will decide whether D.C.’s anti-gun laws violate the Constitution and in so doing will finally address an individual’s right to own and keep firearms. For years liberals have tried to undermine that right by claiming that it is a “collective” right meant for state militias, which no longer exist in most states. An adverse ruling by the high court in the Heller case on our personal right to own firearms would be the same betrayal of our right to liberty that Roe and Kelo were of our rights to life and property. In an effort to encourage the Court to follow the plain wording of the Constitution, attorneys for the Foundation for Moral Law and I will file legal arguments in this case defending our right to keep and own guns.
As with all these cases, the problem is not with the Constitution but with the Supreme Court’s desire to make new “law” by redefining or completely inventing words and terms in the Constitution. The judicial disregard for the original intent of the Founders and for strict constitutional interpretation is not only wrong but extremely dangerous. As Blackstone explained, when judges try to legislate, “the life, liberty, and property, of the subject … [is] in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which … judges are bound to observe.”
In the Heller case, the Court would be well advised to heed George Washington’s address to Congress on Jan. 8, 1790: “A free people ought not only to be armed, but disciplined.” Having led the American army to victory in the war against Great Britain, Washington knew all too well that, to remain free, Americans must never give up their arms. He advised that the people should not only have guns, but that they should be “disciplined” in their use of them – neither of which is allowed under D.C.’s strict ban on guns.
The Capitol city that bears Washington’s name banned guns more than 30 years ago but in 2005 ranked 13th in the nation for murders, proving once again that taking guns from law-abiding citizens does not solve the crime problem. It is the criminal that will always “keep and bear” guns regardless of the laws. The real impact of the Court’s decision will be felt by the good people of our country that respect and obey the law. Considering the damage the Court has already inflicted on our right to life and property, we should be very concerned for our liberty now that our right to keep and bear arms is under fire.
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