From the Right



Can the Government Cut Off Personal Liberty?

Judge Andrew P. Napolitano on

Last week, the Governor of New Mexico confronted what she claimed was a health crisis, and her solution was to deny law-abiding folks the right to bear arms. The health crisis she identified was an uptick in the murder rate in the city of Albuquerque. And her solution was to turn off the personal liberty of all persons there. She purported to do this by issuing an executive decree that prescribed the penalties for doing what was perfectly lawful the day before the decree -- openly carrying a registered handgun.

She did this notwithstanding the expressly guaranteed right in the U.S. Constitution to keep and bear arms, notwithstanding the Supreme Court's most recent interpretations of the constitutional guarantee, notwithstanding the natural right to self-defense and notwithstanding comparable guarantees in the New Mexico Constitution and laws.

Stated differently, the Governor took the law into her own hands and defied and perverted it. Can this possibly be legal? In a word: No.

Here is the backstory.

In 1939, the Supreme Court heard an appeal in U.S. v. Miller, a case in which the defendant had been convicted of carrying a rifle across state lines that was too short, according to federal statutes. The statutes were based on the power of Congress to regulate commerce between the states. Even though Miller was not engaged in commercial activity, and even though no lawyer appeared or presented an argument for him in the Supreme Court, the court upheld his conviction.

From and after that case, the feds and the states began aggressively regulating the possession, sale and movement of weapons. The big-government types in both political parties regularly either enacted laws or gave the power to bureaucrats to promulgate and enforce regulations that severely impaired the right to keep and bear arms. Their view was that their governments would keep them safe, so why does anyone need arms?


This attitude prevailed until 2008, when a retired District of Columbia police officer applied for a permit to own and possess a handgun in his own home, and his application was denied.

The Supreme Court reversed that denial, and an opinion called District of Columbia v. Heller, authored by the late Justice Antonin Scalia, held that the right to keep and bear arms is personal and pre-political; meaning, it is possessed by individual persons and it does not derive from the government. It is the modern mechanical extension of the natural right to self-defense.

Justice Scalia reasoned that the Second Amendment does not grant the right to keep and bear arms; rather, it restrains the government from interfering with it.

As if to defy the Supreme Court, liberal states, begrudgingly recognizing the right to own a gun, made it nearly impossible to carry or use a gun, since Heller only addressed ownership and use in one's home.


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Tom Stiglich Steve Breen Michael Ramirez Gary Varvel Mike Luckovich Darrin Bell