A friend recently wrote an article that rubbed many in the gun culture the wrong way. I have to include myself among them. The implication was that regulation of fundamental rights has always been constitutional and always will be. He further indicated that the phrase, “A well ‘regulated’ milita…” referred to the ability of lawmakers to regulate this fundamental right in particular.
I strongly disagree. In the US Supreme Court (SCOTUS) known as D.C. v. Heller, the justices made it clear that the phrase has nothing to do with the operative clause, “the right of the people to keep and bear arms shall not be infringed.” A study of the term “regulated” as referred to in that day and time referred to equipment that each person was to be able to bring if the militia was called out.
We must never forget that a fundamental right pre-exists the constitution and the founding of this country. Rights are “endowed by our Creator.” History has shown repeatedly that certain rights are more likely to be regulated/restricted/infringed than others. Those are the rights that governments fear the most. These include, right to self defense, free speech, free exercise of religion, free press, free assembly etc. The reason governments detest and fear the free exercise of these rights is because the People use these methods to rein in the governments that are out of control.
If the government can put a test on the exercise of these rights then the government can effectively eliminate and reserve these rights to itself. So what can the government regulate justifiably? We need to understand the purpose of laws that our founders set up. The purpose was to provide of frame work for justice. We need a method to determine injury. If I exercise my right to free speech by slandering my neighbor we can have a law with reasonable penalties assigned against the offender. We cannot have a law that says you cannot speak.