Judge Andrew Napolitano explains at LewRockwell.com that “the government cannot constitutionally interfere with gun ownership by executive order or even legislation.” He writes (abridged):
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
— Second Amendment to the U.S. Constitution.
President Joseph R. Biden Jr. recently announced his determination to use his powers as the chief executive of the federal government to infringe upon the right to keep and bear arms. This is a profound violation of his oath to uphold the Constitution.
It also perpetuates an attitude about the Second Amendment that was prevalent in state and federal officeholders in both major political parties from the FDR to the George W. Bush eras. That attitude was based on a misreading of the Second Amendment, which characterized the right to own a gun as a collective and not an individual, personal right. In 2008, the Supreme Court corrected that misreading.
Like all rights protected in the Bill of Rights, the Second Amendment offers a negative right. The amendment does not grant the right to keep and bear arms; rather, it negates the government from infringing upon this right that has existed in all adults — predating the government.
The law today is not what it was when Joe Biden came of age. Today, the right to keep and bear arms is recognized unambiguously as a personal, fundamental, pre-political, natural right.
This is not academic hairsplitting. If a right is personal or fundamental or pre-political or natural, then the government — state or federal — may not interfere with it absent due process. Stated differently, the government cannot constitutionally interfere with gun ownership by executive order or even legislation. It can only do so if the owner of the gun has used it to harm someone else, and then only after a fair jury trial.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written nine books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty.
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