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November 22, 2007     The Clarendon Enterprise
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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 The Clarendon Enterprise (USPS 947040, ISSN 1088-9698) iS published each Thursday by Roger A. Estlack at 105 S. Kearney Street, Clarendon, Texas 79226-11~0. Periodicals postage paid at Clarendon, Texas 79226-1110. Copyright 2007. All rights reserved, This paper's first duty is to print all the news that is fit to print, honestly and fairly to all, unbiased by any consideration even its own editorial opinion. 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