Randy Barnett Makes an Excellent Point

Randy’s been guest-blogging for Glenn Reynolds at GlennReynolds.com over at MSNBC. I commented on an earlier post below. His most recent entry is about “reasonable regulation,” and it’s a good read. Some excerpts:

Several readers have offered comments on the issue of “reasonable regulation,” which I said no individual rights scholar claims to be any more objectionable than time, place, and manner regulations of speech. They only insist that, under the Second Amendment, such regulations would be subject to the same judicial scrutiny as regulations on speech and the press. No more, and no less.

That had been my position prior to what it is now: This far, no further until the right is recognized as individual and protected under the umbrella of the 14th Amendment against infringement by the states. Randy has something to say about that, too:

There is less gun regulation today precisely because the right to bear arms is not protected by courts. Because prohibition and confiscation are not off the table – constitutionally speaking – gun-rights advocates feel the need to resist politically almost every gun regulation being proposed as a stepping stone toward prohibition and confiscation.

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Here then is the irony: If those who truly believe in the necessity of some gun regulations would only concede that the Second Amendment does protect an individual right, and the courts would accept this position as well, gun owners would relax and many more regulations – even unreasonable ones – would pass. Those who sincerely believe in gun regulation should urge the courts to protect the right to arms. We will only reach a “middle ground” when the right to keep and bear arms is secure.

And he’s right – especially about “even unreasonable ones.” If our guard is down, (as it has been regarding the Fourth and Fifth amendments when it comes to “The War on (some) Drugs” and now “The War on Terror”) then we’ll let our legislatures pass laws that we otherwise would not. It is because the courts have not recognized the Second Amendment as protecting a fundamental, individual right that we are ever-vigilant against ever-increasing infringement of that right.

Perhaps the NRA’s maneuverings aren’t as self-serving as they often appear to be.

He has much more to say, especially about registration, but he ignores the sheer logistical idiocy of the task in favor of discussing the risk of future confiscation. (I prefer to cover all the bases, myself. I’ll cut him some slack because he did comment about the length of his post.)