The Second Amendment Reaffirmed

The 9th Circuit has given us a take-no-prisoners affirmation of the Second Amendment right to keep and bear arms. In an opinion by Reagan appointee Diarmuid O'Scannlain, the court flatly rejected the progressive "pretense" of using the regulatory state as a weapon against the Constitution, declaring that a right has not been regulated for the greater good but effectively "destroyed when exercise of the right is limited to a few people, in a few places, at a few times."

The San Diego County concealed carry law did just that. Not even a model citizen trained in the use of handguns could be granted a permit unless he was also be a "special case,"someone outside the "mainstream." In short, a member of a privileged elite. This regulatory scheme trashed the Second Amendment right to self-defense because, as O'Scannlain wryly observes, "a typical citizen fearing for his personal safety -- by definition -- cannot distinguish himself from the mainstream." (original emphasis)

Following the Supreme Court's lead in District of Columbia v. Heller, the 2008 decision overturning the Washington, D.C. gun ban, O'Scannlain does what the left hates and fears most: places the right guaranteed by the Second Amendment front and center; clarifies its meaning by a review of its history; and insists that it is the right itself that is paramount (original emphasis, internal references omitted, page reference in brackets):

Heller clarifies that the keeping and bearing of arms is, and has always been, an individual right. Second, the right is, and has always been, oriented to the end of self-defense. Any contrary interpretation of the right, whether propounded in 1791 or just last week, is error. [21]

[I]f self-defense outside the home is part of the core right to "bear arms" and the California regulatory scheme prohibits the exercise of that right, no amount ofinterest-balancing under a heightened form of means-ends scrutiny can justify San Diego County's policy. The very enumeration of the right takes out of the hands of government... the power to decide on a case-by-case basis whether the right is really worth insisting upon.[49]

[T]he question is not whether the California scheme . . . allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding "no."[53]

To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry. But the Second Amendment does require that the states permit some form of carry for self-defense outside the home. [61]

This is not, as the left will certainly scream, an "extremist" opinion. It simply rejects the John Paul Stevens defense of unconstitutional regulatory schemes: switch focus from the Constitution to the greater good and nitpick individual liberty to death.

Mr. Stewart is a freelance writer living in Austin, Texas. He is writing a book on the establishment clause and welcomes feedback at