guest commentary
By Robert A. Levy
It's been 68 years since the U.S. Supreme Court
examined the right to keep and bear arms secured
by the 2nd Amendment. It's been 31 years since
the District of Columbia enacted its feckless ban on
all furictional firearms in the capital. It's been eight
months since the second most important court in the
country, the U.S. Court of Appeals for the District of
Columbia Circuit, declared the D.C. ban - among the
most restrictive in the nation - unconstitutional. The
obvious incongruity of those three events could be
resolved soon.
Later this month, the Supreme Court will decide
whether to review the circuit court's blockbuster opin-
ion in Parker vs. District of Columbia, the first federal
appellate opinion to overturn a gun control law on the
ground that the 2nd Amendment protects the rights of
individuals. If the high court takes the case, oral argu-
ments likely will be held this spring, with a decision
expected before June 30. (Full disclosure: I am co-
counsel for the plaintiffs and am one of the attorneys
who initiated the lawsuit.)
The stakes are immense. Very few legal questions
stir the passions like gun control. And this round of
the courtroom battle will be fought during the heat
of the 2008 election. Further, Washington is home
to the federal government, making it an appropriate
venue to challenge all federal gun laws, no matter
where an alleged 2nd Amendment violation might
have occurred. Thus, Parker could have an immediate
effect not only on D.C. gun regulations but on federal
regulations.
Equally important, if the Supreme Court affirms
the D.C. circuit's holding, state gun control laws
across the nation could be vulnerable to constitutional
attack. But before that happens, two other issues
would have to be litigated.
The first is the knotty question of whether the 2nd
Amendment can be invoked against state govemme'nts.
Until 1868, when the 14th Amendment was ratified,
the Bill of Rights applied only to the federal govern-
ment. But in the aftermath of the Civil War, much of
the Bill of Rights was considered "incorporated" by
the 14th Amendment to bind the states as well. Regret-
tably, the incorporation of the 2nd Amendment has not
yet been settled. And that issue did not arise in Parker
because the District of Columbia is a federal enclave,
not a state.
The second question is even more complicated:
What restrictions on gun possession and use would be
permissible? Almost no one argues that 2nd Amend-
ment rights are absolute. After all, under the 1st
Amtndment, the right to free speech does not protect
disturbing the peace; religious freedom does not shield
human sacrifice.
Similarly, gun regulations can'be imposed on
some weapons (e.g missiles), some people (e.g
preteens) and some uses (e.g murder). Indeed, the
appeals court acknowledged that Washington might be
able to justify such things as concealed-carry restric-
tions, registration requirements, and proficiency test-
ing.
But the Constitution does not permit an across-
the-board ban on all handguns, in all homes, for all
residents, as in the case of the Washington ban (with
the exception of current and retired police officers).
Somewhere in the middle, regulations will be deemed
constitutional even if the Supreme Court upholds the
lower court.
Meanwhile, the high court also will have to
reexamine its 1939 gun case, United States vs. Miller,
which generated more heat than light regarding the
2nd Amendment. The core holding of Miller, stripped
of confusing clutter, was that protected weapons must
be "in common use" and must bear "some reasonable
relationship to the preservation or efficiency of a well-
regulated militia."
Parker is entirely compatible with that holding.
Pistols, which ate banned in D.C are self-evidently
"in common use," and they have been carried into
battle by American troops in every conflict sin~e the
Revolutionary War. But a proper reading of the 2nd
Amendment should not attempt to link each and every
weapon to the militia - except to note that the grand
scheme of the amendment was to ensure that people
trained in the use of firearms would be ready for mili-
tia service.
Significantly, the 2nd Amendment refers explic-
itly to "the right of the people," "not the rights of states
or the militia. And the Bill of Rights is the section of
our Constitution that deals exclusively with individual
liberties.
That is why there has been an outpouring of legal
scholarship - some from prominent liberals - that rec-
ognizes the 2nd Amendment as securing the fight of
each individual to keep and bear arms.
Considering the text, purpose, structure and his-
tory of our Constitution, and the clear weight of legal
scholarship, it's time for the Supreme Court to revital-
ize the 2nd Amendment, which has lain dormant for
nearly sevendecades.
Robert A. Levy is senior fellow in constitutional studies at
the Cato Institute.
The Clarendon Enterprise November 22, 2007
erican li
Long before serving as one of this two years, and
nation's greatest Presidents, Ronald Americans
Reagan quipped that he has "always would endure
thought of America as a place in the another two
divine scheme of things that was set years of bloody
aside as a promised land." Truly, we strife. Yet Abra-
live in a nation of great prosperity. But ham Lincoln,t, up,L ,onni#oI
perhaps what is more important, we demonstrating
live in a nation where we may exercise principled lead- comnlent
free will, speak without censorship, and ership, called by sen. kay bailey hutch#on
worship in the way we choose. The on the nation
Thanksgiving holiday allows us to reflect to reflect on its blessings. He issued a
on these American liberties that have proclamation designating April 30, 1863
been defended with enormous sacrifice a national day of fasting, prayer, and
throughout our country's history, humility, in his charge to our divided
In 1621, the Pilgrims who had country, the President said, "We have
settled at Plymouth Colony in Mas- been the recipients of the choicest boun-
sachusetts set apart a day to celebrate ties of Heaven; we have been preserved,
their first successful harvest. These 'these many years, in peace and prosper-
early settlers had more to be thankful ity; we have grown in numbers, wealth,
for that day than just a bountiful crop. and power as no nation has ever grown?'
They rejoiced in the promise of living Though our modem-day Thanks-
outside of oppression and under the lib- giving holiday, marked by feasting and
erties God intended for all mankind. In celebration, seems in sharp contrast
1789, George Washington built on that to the fasting and humility President
first Plymouth feast and issued the first Lincoln urged so many years ago, the
national Thanksgiving proclamation, importance of recognizing our blessings
devoting a day for Americans to observe and prosperity remains. And if America,
their sincere and humble thanks for our under Lincoln's leadership, offered grati-
nation's prosperity, tude on a solemn day in a dark period,
Nearly eight decades later, the our thankfulness on a day of celebra-
United States was deeply embroiled in tion should be boundless. As we gather
its greatest internal conflict. The War around our tables this year and recount
Between the States had been raging for our blessings, I hope that each of us will
consider how much we have to be thank-
ful for.
On this Thanksgiving Day in
particular, as so many of our military
servicemen and women are separated
from their loved ones, we should recog-
nize how fortunate we are to be served
and protected by our nation's armed
forces. It is because of those who have
defended this nation - from the early
Revolutionary War to today's Global
War on Terror- that we have the liber-
ties that have allowed us to grow and
prosper. I encourage all Texans to reach
out to friends whose loved ones are serv-
ing overseas, and especially thank them
during this holiday.
The 21st century has brought a new
and unique set of challenges, in many
ways starkly different from the conflict
of Lincoln's day, but also bearing high
stakes. Today, the United States is fight-
ing a new kind of war against a foreign
adversary who fundamentally opposes
democracy and is determined to destroy
our way of life. In this struggle too, .free-
dom will prevail.
The liberties we so vigilantly pro-
tect have created a country where every
person can pursue opportunity and exer-
cise personal freedom as no other nation
allows. This realization alone gives us
much to be thankful for this Thanksgiv-
ing Day.
RATE
me
By US Sen. John Cornyn
For generations, in late November
Texans have joined in acknowledging
the blessings granted to those fortunate
enough to live in our great country and
in helping those in need.
Texas always makes unique con-
tributions to the American experience.
Recollections of the earliest Thanksgiv-
ing days in Texas contain slightly differ-
ent thoughts about origins of this harvest
holiday. And it's also not surprising that
some versions have Texas leading the
way.
A marker outside Canyon once
memorialized celebration of Thanks-
giving there during an expedition of
explorer Francisco V izquez de Coronado
in May of 1541. That's more than 80
years before Pilgrims sat down with the
Wampanoag in Plymouth, Mass.
A celebration in E1 Paso recog-
nizes the "First Thanksgiving" in April,
commemorating the day when Spanish
explorer Juan de dilate and his expedi-
tion stopped near San Elizario for an
observance of Thanksgiving in 1598.
Historians study and discuss these and
other accounts at great length.
The Texas Almanac quotes a San
Elizario expedition member: "We built
a great bonfire and roasted the meat and
fish, and then all sat down to a repast
the likes of which we had never enjoyed
before We were happy that our trials
were over; as happy as were the pas-
sengers in the Ark when they saw the
dove returning with the olive branch in
his beak, bringing tidings that the deluge
had subsided?'
Texans have paused to extend
thanks at different times, and only
recently in November. In 1841, in one of
his first acts as President of Texas, Sam
Houston recommended that Texans set
aside March 2, the anniversary of inde-
pendence, as a day of thanksgiving.
Eight years later, after Texas had
joined the Union, Gov. George Wood
proclaimed that Thanksgiving should
be celebrated on the first Thursday of
December.
In 1863, Abraham Lincoln declared
an annual day of thanksgiving. It wasn't
until 1941 that President Franklin D.
Roosevelt signed a law establishing
November's fourth Thursday as our offi-
cial Thanksgiving Day.
But there is a greater purpose to the
holiday. It is an opportunity to elevate
ourselves by caring for others.
President Ronald Reagan elo-
quently described the meaning of
Thanksgiving in a 1986 radio address
from Camp David: " just as Thanks-
giving Day has always been an occasion
for counting our blessings, so, too, it's
always been a time for making life better
among our fellow Americans.
"The spirit of voluntarism is deeply
ingrained in us as a nation. Maybe it
has something to do with our history
as a frontier land. Those early Ameri-
cans who gave us Thanksgiving Day
itself had to help each other in order to
survive-joining together to plant crops,
build houses, and raise barns. And
perhaps they discovered that in helping
others their own lives were enriched?'
Helping those less fortunate and
those in need is an important parallel to
the tradition of giving thanks for Texans
across the state. The benevolence of
Texans extends throughout the year, but
Thanksgiving marks the beginning of an
especially abundant period of helping
others.
Many Texans will be directly
involved: joining food and clothing
drives, serving holiday meals to the less
fortunate at food banks, visiting senior
citizens' homes, bringing cheer to those
in hospitals, or brightening the day of
our military men and women by remem-
bering our veterans and those serving in
the armed services.
Expressions of thanksgiving can
occur without limits-at home with family
and friends, in our houses of worship,
through our support of philanthropic
initiatives, or one-on-one with those in
our communities. For some, words of
thanksgiving and acts of kindness are
conveyed every day.
Thanksgiving can find expression
in many ways. It all begins with caring
hearts and helping hands. Texans are
generous, welcoming, and optimistic,
making this holiday of gratitude and ser-
vice particularly important in our state.
EiffeFfS -ise
130th Year, Series 3,Vol. xvIn, No. 49 E12.39
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