Ken Blackwell: Late Betrayal on Gun Rights


ACRU Staff


January 17, 2008

This op-ed originally appeared on

by Kenneth Blackwell

January 17, 2008

Et tu, Brute? In the waning days of the Bush Administration, Justice Department lawyers have filed a curious amicus brief in the DC gun ban case before the US Supreme Court. The attorneys took a middle-of-the-road approach to Second Amendment freedoms. They argued that gun ownership is not a “fundamental” right. Instead, they say, it is a right deserving only an “intermediate” level of protection.

The brief is a disappointing about face for a Justice Department once lauded for its ardent defense of Second Amendment rights.

Attorney General Michael Mukasey owes gun owners an explanation for this late betrayal.

In a recent column, former National Rifle Association president Sandy Froman protested the Justice Department’s misguided action. She correctly explains the government’s position includes only halfhearted support for the Second Amendment. If the Supreme Court were to adopt the Department’s position, it would imperil our civil right to keep and bear arms.

It appears that the Justice Department is trying to say this is a right that should be protected, but the level of protection should be low enough to allow government to broadly restrict or maybe even eliminate your ability to exercise that right. They try to split the baby of having a right but letting government do almost whatever it wants to that right.

The problem with splitting a baby in half is that the baby usually dies. If our rights can be regulated to the point that we can’t exercise them in our own homes, then they’ve been regulated out of existence.

So much for civil rights.

The Left refers to racial equality and voting as “civil rights.” But, civil rights are broader than that. Our civil rights are all the rights guaranteed by the Constitution. The Declaration of Independence tells us that government exists to protect our God-given rights, and the Constitution created our court system where those rights are vindicated.

There are three civil rights for which any attempted regulation should be looked at with great suspicion. They are religious liberty, political free speech, and the right to keep and bear arms.

Our country was founded by pilgrims seeking the religious freedom to worship according to the dictates of their own conscience, free from government dictates. The highest promise of free speech is that we may openly discuss the public issues of the day free of censorship or threat, so that we can hold our elected leaders accountable and replace those whom we learn have failed to keep our trust.

And the right to keep and bear arms was put there so that we could defend ourselves and our loved ones, provide for ourselves, and have a last resort to defend freedom.

Laws curtailing any of those three rights should be looked at with the most skeptical and doubting eye, and we ought not to allow such laws to go further than necessary to achieve extremely important objectives. For example, as important as free speech is, it’s clear why the government must be able to stop television reporters from showing maps of troop locations and movements in overseas operations. Narrow rules are allowed where such life-and-death matters are at stake.

But our civil rights can only be regulated in that minimal fashion, and only when absolutely essential. We never sacrifice our liberty.

Yet in the face of all that, the city of DC has a gun ban that forbids having a handgun or any loaded rifle or shotgun anywhere in your home. If you do, you’ll do more than pay a fine. You’ll go to jail.

This law plainly violates the Second Amendment, and ought to be struck down. A federal appeals court did just that, and now the Supreme Court has taken the case.

My parents loved me too much to encourage me to go to law school, so I’m not a lawyer. But I have gotten solid information from some good lawyers at the American Civil Rights Union, in addition to legal perspective, from a couple of the best Supreme Court lawyers in the country.

They are gravely concerned about the Justice Department brief in the Heller case, saying that this could be a Trojan horse in the Second Amendment. They say that for various legal reasons if the Supreme Court were to adopt the position in this brief it would be toxic for gun rights in America. This lawsuit could go either way off the brief’s argument, but future challenges to firearm restrictions–no matter how severe–would likely fail.

This brief was a terrible mistake. Hopefully the lawyers in this case can persuade the Supreme Court to reject that argument, and give our Second Amendment civil rights the robust protection they deserve.



Join ACRU Patriot 1776 club