A reader suggested a July 27 Haku Mo'olelo on gun rights and responsibilities fell short on its facts, in the process referring to a 2008 U.S. Supreme Court 5-4 decision overturning a Washington handgun ban, District of Columbia v. Heller:
"When the framers were writing the Constitution, they were acutely aware that the revolution was brought about by various militias throughout the 13 colonies, now states. They wanted the ability for the individual states to guard against a takeover or other infringement by the federal government, so they wrote the Second Amendment securing to the states the right to maintain militias for their own protection if needed.
"Thus, men not given to loquacity when writing the Constitution said plainly that a militia could be necessary to keep a state secure, so the federal government could not infringe on the right to keep and bear arms. That means it is a state's right and, if the state so chooses to delegate the authority, a community's right.
"The exact wording of the Second Amendment could be read to allow a state to require that individuals could own firearms as long as they are kept in an armory operated by the militia, which as you noted is today's National Guard. Gun owners could be allowed to use their firearms at the discretion of the militia, perhaps only for militia-based training, perhaps for limited hunting.
"Yes, there are many responsible gun owners. But any attempt to assess who is cooky enough to use them as in these seemingly endless cases of mass slaughters is a waste of time. Other countries look at us as crazy for allowing so many people to be armed, now with concealed weapons in many states, even the right pull one to 'stand your ground' in some of the yahoo states. Almost makes you afraid to go out in public any more.
"What we need is a massive public pushback against the NRA and directing our representatives at all levels to begin de-arming this nation and get this mess under control. The Constitution is waiting for us."
Writer HF argues that individual states retain authority to regulate the "right of the people to keep and bear arms." That could be read in the relationship of the Second and 10th Amendments:
Amendment 2: "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."
Amendment 10: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
In the Heller decision, however, the Supreme Court majority opinion by Justice Antonin Scalia denied a right of states to restrict gun ownership to military forces, saying the right to bear and keep arms includes personal defense.
"In numerous instances, 'bear arms' was unambiguously used to refer to the carrying of weapons outside of an organized militia. . . . Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to 'bear arms in defense of themselves and the state' or 'bear arms in defense of himself and the state,' " Scalia wrote.
At the same time, Scalia says the individual right is not unlimited, just as free speech rights can be subject to governmental restrictions.
"Of course the right was not unlimited, just as the First Amendment's right of free speech was not, see, e.g., United States v. Williams, 553 U. S. 285 (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose," the opinion says.
What limits still can be imposed are to be determined. Individual states have authority on standards for licensing and permitting, which allows Hawaii to impose more stringent laws on gun ownership, including severe restrictions on carrying loaded weapons in public. While Heller bars states from banning handguns, it acknowledges authority to prohibit sawed-off shotguns.
Each state may determine what laws it will impose - and deal with the costs of justifying them to the highest court.
(Heller decision: www.supremecourt.gov/opinions/07pdf/07-290.pdf)
(U.S. Constitution: constitutionus.com)
* Edwin Tanji is a former city editor of The Maui News. He can be reached at hakumoolelo@earthlink.net. "Haku Mo'olelo," "writing stories," is about stories that are being written or have been written. It appears every Friday.
