By Jon Dougherty
(NationalSentinel) As pundits, the media, and political leaders from President Donald Trump on down weigh new control measures in the wake of a pair of mass shootings in El Paso and Dayton, Ohio, last weekend, former judge and current Fox News contributor Andrew Napolitano noted in a Thursday column that a lot of what is being proposed likely would not pass constitutional muster.
That’s because he says the U.S. Supreme Court, twice in the past decade or so, has ruled that the Second Amendment’s guarantees of the right of individuals to keep and bear firearms is “an individual pre-political liberty” which “is the highest category of liberty recognized in the law.”
“Last weekend’s mass murders in El Paso, Texas, and Dayton, Ohio, have produced a flood of words about everything from gun control to mental illness to white nationalism. Most of those words have addressed the right to keep and bear arms as if it were a gift from the government. It isn’t,” he wrote.
“The Supreme Court has twice ruled in the past 11 years that the right to keep and bear arms is an individual pre-political liberty. That is the highest category of liberty recognized in the law. It is akin to the freedoms of thought, speech and personality,” Napolitano added.
President Trump said Friday he is considering expanding background checks after telling reporters he wants to ensure that “mentally unstable people” do not get access to firearms.
He has also expressed at least some willingness to discuss a so-called federal “red flag” law, which would encourage states to pass legislation empowering courts and police to confiscate firearms from persons deemed to be mentally ill or otherwise potentially dangerous.
Critics of those laws say they not only violate the Second Amendment, but also the Fourth and Fifth Amendments’ due process clauses.
Napolitano wrote that SCOTUS, in its recent gun-related rulings, “has recognized that the framers of the Constitution did not bestow this right upon us.
“Rather, they recognized its preexistence as an extension of our natural human right to self-defense and they forbade government – state and federal – from infringing upon it,” he added.
“It would be exquisitely unfair, profoundly unconstitutional and historically un-American for the rights of law-abiding folks – ‘surrender that rifle you own legally and use safely because some other folks have used that same type of weapon criminally’ – to be impaired in the name of public safety,” he wrote.
“It would also be irrational. A person willing to kill innocents and be killed by the police while doing so surely would have no qualms about violating a state or federal law that prohibited the general ownership of the weapon he was about to use,” he added.
Napolitano also opined that it, based on the Supreme Court’s rulings, it would be unconstitutional for Congress and the president to ban so-called “assault weapons.”
“We know this because in the first Supreme Court opinion upholding the individual right to keep and bear arms, the court addressed what kind of arms the Second Amendment protects,” the former New Jersey judge wrote.
“The court ruled that the Second Amendment protects individual ownership of weapons one can carry that are of the same degree of sophistication as the bad guys have – or the government has,” Napolitano continued.
“The government? Yes, the government. That’s so because the Second Amendment was not written to protect the right to shoot deer. It was written to protect the right to shoot at tyrants and their agents when they have stolen liberty or property from the people,” he said.
As for blaming mental health and using that as a lawmaking guide, Napolitano discounted that as well.
“Federal law prohibits records of mental health problems, unless they result in involuntary institutionalization, from entering the government’s databases that are consulted in background checks,” he wrote.
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