Let me get this out of the way. Writing for The National Review, Andrew McCarthy offers a completely bone-headed argument for government infringement on Americans’ natural, civil and Constitutionally protected right to keep and bear arms.
The right [to keep and bear arms] is not without limitations. As we shall see, like “the freedom of speech” safeguarded by the First Amendment, the right to keep and bear arms had well-known limitations at the time it was adopted . . .
As the Supreme Court explained in Heller (op. at p. 54 & ff.), “the right to keep and bear arms” that pre-existed the Constitution had certain longstanding, well-known limitations on it. Those exceptions were understood to be incorporated in the right guaranteed by the Second Amendment.
Convicted felons and the mentally ill, to take the two clearest examples, may be denied the right to keep and bear arms. Nothing prevents Congress from codifying these longstanding limitations, and federal law has long done so. But again, these are limitations understood to be built into the Second Amendment, not additional, emergency-based restrictions that erode the Second Amendment.
Uh, no. If you accept that the prohibition against gun ownership by felons and the mentally ill is OK because they’re “long-standing, well-known limitations” you have to accept the idea that the right to keep and bear arms is a collective right. That was a “long-standing and well-known limitation” — before Heller and McDonald restored the Founder’s original intent and kicked-it to the curb.
That out of the way — and I really wish it was — McCarthy rips Senator Schemer a new one for suggesting that it’s OK to infringe on Americans’ gun rights because terrorist attacks constitute an emergency. Just as the government performs warrantless searches during exigent circumstances.
Schumer could not be more wrong. At its core, his argument misreads the Fourth Amendment safeguard, which protects citizens against unreasonable searches, not warrantless searches. The latter are permitted in many contexts because, in those contexts, it is not unreasonable to search without a warrant . . .
Pace Schumer, reasonable warrantless searches are not emergency-based exceptions to the Fourth Amendment. They are straightforward applications of the Fourth Amendment. Moreover, they could not be, as Schumer implies, post-constitutional restrictions on the Fourth Amendment imposed by statute or judicial decision. The Framers’ very point in enshrining certain rights in the Constitution is to prevent the government from restricting them.
McCarthy’s essay at least partially redeems itself with this bit:
Notice the pertinent language of the Second Amendment: “The right of the people to keep and bear Arms, shall not be infringed.” In stark contrast to the Fourth Amendment, the Second Amendment does not say gun rights “shall not be unreasonably infringed.”
Reasonableness has nothing to do with the matter, nor does crisis management. How could they? The Second Amendment aims to maintain the people’s power of self-defense, including against the government. Since that is the point of the right, nothing could be more unreasonable than to allow its restriction by the government.
Amen.