I've been asked to comment on the recent U.S. Supreme Court ruling on the Second Amendment, the right to bear arms. For the first time, the high court definitively clarified its Constitutional understanding of the Amendment, albeit in a narrow 5-4 decision split right down the middle of its customary conservative-liberal ideological divide. The short synopsis of the ruling is that individuals have an inalienable right to possess firearms, though reasonable regulations can be imposed on that right. Washington D.C.'s ban on gun ownership was ruled unconstitutional.
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.
The crux of interpreting these 27 words has always hinged on the militia reference. Gun control proponents have stressed "a well regulated militia" in their arguments, holding that the right is a collective one pertaining to a state militia. Gun ownership proponents have minimized the militia reference and concentrated on "the right of the people to keep and bear arms" as definitive in itself in establishing an individual right.
The majority opinion written by Justice Antonin Scalia last month comes down on the side of the latter, that individuals can own guns whether or not as part of a militia. Scalia wrote, "The Second Amendment protects an individual right to possess a firearm unconnected with a militia..." He qualified this some by continuing, "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapons whatsoever in any manner whatsoever and for whatever purpose." There can still be bans on automatic weapons and sawed-off shotguns, and on carrying firearms into schools or government buildings. But his opinion did also overturn the D.C. requirements that guns at home must be disassembled and/or equipped with a trigger lock. (Some guns in the District were still legal, having been grandparented in when the ban was originally passed.)
Justice Stephen Breyer, in his dissent, said, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas." The two views are characteristic of the long-running debate. By 5-4, Scalia's view is now the law of the land.
Some research into the intentions of the founders reveals a difference of opinion about the motives for the Amendment between Eighteenth Century Republicans and Federalists. Those of a Republican bent agreed with Thomas Jefferson's "Democratic-Republicans" that national government power should be kept weak so as not to become a threat to the people's liberties. To this end, James Madison, Noah Webster and Patrick Henry wrote and spoke in favor of the Second Amendment as a means to keep state militias well-armed against the possible encroachments of a national army and potential federal government tyranny.
On the other hand, Federalists, who favored a powerful national government and feared that democracy might degenerate into "mob rule," wanted a strong, well-armed militia handy to put down possible insurrections. Prominent Federalists such as Alexander Hamilton and John Adams wrote and spoke for the Amendment for these reasons. What we therefore see is a convergence of interests between two viewpoints that happened to favor the same remedy for essentially opposite purposes, both connected to the "militia" concept. In popular usage and understanding, however, the Second Amendment has generally meant the right to personal gun ownership for personal reasons to the majority of Americans, and it is this view the Court has ratified.
4 comments:
Thanks for the historical perspective. Here in the 21st century I have no everyday context for the word "militia", much less a "well-regulated militia." Even though Scalia and his majority gave historical backing for their interpretation, it still didn't convince me because if it is so clear, then why the "militia" reference at all? But in any case it's clear that the public has grown to expect gun ownership as an individual right, no matter the amendment's specific language. In much the same way, the public has grown to expect access to abortion based on our ideas of privacy, even though the word "privacy" never appears in the constitution.
Agreed. Your point on the concept of privacy presents a good parallel. I too feel the 1st Amendment protections of speech, religion and assembly, and the 3rd and 4th Amendment proscriptions on quartering troops and unwarranted search do establish a strongly implied right to privacy.
The interesting thing about this ruling is it essentially makes it a moot issue for the upcoming campaign. The Obama campaign is smart, they can say that the Supreme Court has issued its ruling and leave it at that, while the McCain campaign would be pressed to make much of an issue, because of the same ruling.
Indeed, Webfoot. Nice take. There are a whole host of interest groups that thrive and support themselves on righteous indignation about some issue or other. They love to keep the pot boiling rather than see the issue resolved because that keeps the contributions flowing in. It's their reason for being. Should Obama heed your advice, and his first response indicates he will, I agree the result ought to be a small boost for him by taking a McCain issue off the campaign docket.
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