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.
Likewise with reference to the 2A, the government cannot have a justifiable law that says you must pass a test to “keep and to bear” an arm period. The government could simply make the test so hard or so expensive that no one can pass, subsequently only those approved by government could bear an arm. Illinois government primarily through the Chicago Machine, has in effect created a complete ban on the right to keep and to bear an arm with the FOID card and Unlawful Use of Weapons Act.
There can be no government legitimate test to publish a paper, speak your mind, or to carry an arm for lawful purposes. The recent People v. Aguilar case made very clear by unanimous opinion that the People have a fundamental right to Keep and to Bear a loaded and ready to use firearm for self defense. They did not say you must pass a test first. They said the right could be regulated in some ways especially when it came to “sensitive” areas. The part that is not regulated would the right to keep and to bear.
Government might make the argument that we can regulate how you can keep or how you can bear, but I maintain that there must be a way for the People to keep and bear without intervention. Since Illinois now has the Concealed Carry law then it has chosen to regulate the manner of bearing. It has chosen to force the citizen who wants to conceal and carry to pass a test. In my opinion it may be able to get away with this as long as it doesn’t attempt to regulate open carry.
I think all can agree that to force everyone to pass a government test completely circumvents the founder’s intent. Can you imagine any of the Founders, Samuel Adams and Thomas Jefferson and George Washington, asking permission of King George to keep and to bear?
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