Strict Judicial Scrutiny Needed for Second Amendment

By L. Dietle

There has been little Second Amendment jurisprudence. In this vacuum, myths were cooked up and circulated to dilute the Amendment's original meaning. In the March 18, 2008 D.C. vs. Heller oral argument at the Supreme Court, these myths were thoroughly debunked by the Supreme Court Justices themselves. If honest, they will overturn D.C.'s functional firearms ban. They should also apply the Second Amendment to the States (incorporation) and establish strict judicial scrutiny.

The Second Amendment was considered a fundamental individual right by those who wrote and ratified the Second and Fourteenth Amendments. A majority of Americans still considers it so today. It would take 3/4ths of the States to amend the Second Amendment out of the Constitution, but that many States filed an Amicus Brief to overturn the D.C. functional firearms ban. A majority of Congress did the same (to see all briefs, click here). The Second Amendment is here to stay.

Even if we could eliminate the Second Amendment, or ban firearms under the collective right myth, it would not significantly reduce violent crime. No matter what the government decrees, Americans would resist a ban. Even with an unlikely 80% compliance, there would still be roughly 40 to 60 million firearms left. Certainly enough to supply the miniscule percentage of the population that is so criminal that they use firearms in violent crime.

It is illogical to think that firearm eradication is possible in America. The most anyone ever attempted was a handgun ban. Even if declared "constitutional", a ban could not eliminate enough handguns to dry up the criminal black market. Black markets work; witness drug trafficking. Even if we could eradicate handguns, criminals would substitute substantially more lethal sawed-off high powered rifles and shotguns. Bans just won't work--not in America.

It is time we move on, and set the long-running gun control debate aside. A standard of strict judicial scrutiny, applicable to the States via the clear language of the Fourteenth Amendment, will help us do that. We cannot afford to tie up our finite government resources endlessly proposing and litigating impotent "reasonable" legislation. We must instead focus on policies that have some conceivable chance to reduce violent crime. Make our taxpayer money count for something. Keep violent criminals in jail instead of paroling them. After all, most murderers were already violent criminals. Instead of focusing on victimless paperwork errors, the BATF should focus on apprehending criminals unlawfully in possession of firearms. We should also look at the Virginia Tech & Columbine massacres versus the citizen interventions at the New Life Church and the Appalachian School of Law, and implement what worked best. The solution was not to wait for police, because immediate intervention was needed.

Violent crime has been decreasing (See DOJ graph). Our nation has become increasingly color blind and functionally homogeneous during this period. Violence decreased as the number of people and firearms increased, because we respect each other more. We should continually strive to improve our ability to treat all races like the equals they are. I mean this in all things and in multilateral directions--in our hiring practices, our public manners, and our private thoughts and conversations. Let us elevate each other to the ideal our forefathers imagined, even if they did not imagine it in color. This important policy is up to us, not the government.

Apart from crime, civilian firearms play a role in national defense. In every major war, we have been woefully unprepared. Facsimile firearms--pot metal and wood imitations--were used for training due to shortages. And there was seldom enough time to achieve anything except basic weapons familiarity. I hope my son never has to serve. If he does, at least he will have civilian firearms experience, and the confidence that goes with it. At least I can give him that.

In World War II, our firearms manufacturers could not meet demand, and we had to contract to companies as diverse as Rock-ola and Singer. We have since bled off a significant portion of our industrial might to foreign shores--even to potential enemies. If we eviscerate our Second Amendment, our small arms manufacturing capability and expertise will wither. How would we train and arm our young men in another major conflict?

These are serious matters involving a fundamental constitutionally protected liberty, and deserve serious thought. There are no easy answers, but some answers are better than others. Let us forget about an unobtainable weapon-free utopia. As D.C. has demonstrated so well with its misguided social experiment, banning guns is not an answer that the Supreme Court should support. It emboldens criminals by making victims easier marks, and if applied nationally would weaken our national defense. Our nation needs Second Amendment strict scrutiny, applicable to the States as was intended by the framers of the Fourteenth Amendment. This is the only way to end the current unproductive national gun control argument, so we can work on realistic crime solutions.

Mr. Dietle is a mechanical designer, and a life-long history enthusiast.