If you haven’t heard, the Supreme Court will be reviewing the constitutionality of Washington D.C.’s ban on handguns. Unless you’ve been living under a rock, I bet most of you are pretty sure where on this issue I fall.
Some of you are probably asking why a ruling on this particular instance matters. Simply put, there is almost no precedent in the entire legal history of our country that establishes the framework under which the Second Amendment operates. The Supreme Court has a rare opportunity to interpret what the Founding Fathers actually meant when they wrote the Bill of Rights.
If you’ve brought your “A” game to this discussion, this probably makes you a little uncomfortable. Any time the Bill of Rights is interpreted by our Judicial system, they are in effect, legislating, which is a power reserved for our House of Representatives and our Senate. This has happened before in two of the most pivotal cases in American history–Brown vs. Board of Education of Topeka and Roe vs. Wade. Say what you want about either of these cases, but few educated Americans fail to realize the significance of such decisions. The decision on Heller v. District of Columbia will be of similar proportions.
The Second Amendment:
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.
If I understand the legal theory properly, this ruling will determine whether the rights of the individual supercede the rights of the body. The key is whether or not the Supreme Court determines that membership in a well-regulated militia is a prerequisite for the bearing of arms. Another interpretation could be that in order to form a well regulated militia in times of trouble, each citizen must have the ability and means to bear arms. Personally, I think that this is more historically accurate, especially given the historical context of raids by aboriginal tribes on the early American settlers in the frontier.
I’d also like to examine the clause “being necessary to the security of a free state” for a moment. This, in my opinion, is the most important reason why the right to bear arms was included in the constitution. The Founding Fathers, above all else, feared tyranny. They feared a backslide into the autocratic regimes practiced in Europe. Men who had already wagered their lives and fortunes to be free would be extremely sensitive to the notion that revolution might be necessary again to remain free. What is necessary to the security of a free state? Is it a well-regulated militia, or the right of the people to keep and bear arms? The structure of the sentence raises these questions in earnest as this case goes to trial.
Historically, the Supreme Court holds the view that Congress cannot infringe these rights, and therefore, by the 10th Amendment (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.) it is a right of the states (to decide the degree of infringement). As Washington D.C. is a federal district and not a state, this poses some interesting problems. By the 10th amendment, and since DC is not a state, the right to infringe arms falls to the people of DC. At the same time, however, DC exists to serve the federal government, and is regulated by it. It could be possible, depending upon the ruling of the Supreme Court, to see two outcomes for DC… becoming the most restrictive region concerning arms or the most liberal. This will be an interesting case to follow.
A historical note, the founding fathers remembered what the British occupying forces attempted to do in the opening days of the American Revolution. On April 19, 1775 the Brits, strategically wise, attempted to capture the arms and powder stores of the Massachusetts colonists that were stored at Concord… barely 19 miles away from occupied Boston. Forewarned, the colonists thwarted the Brits, removed the arms and powder, and ambushed the force sent to retrieve said arms. Had the Redcoats succeeded, Massachusetts would have been effectively disarmed and completely vulnerable. The Revolution would have ended before it really began, and long before there was any open cry for our nation’s independence. I think this lesson was chief in the minds of the writers of the Bill of Rights… its importance (the 2nd amendment) is also reflected by its sequence in the bill. Rights that one is unable to practically defend (and protect) are moot.
Militias were also an important part of British colonial life in America, for defense against Native Americans, the French, and the Spanish. Remember that the Seven Years War (or French and Indian War) ended in 1763, a little more than a dozen years prior to the Declaration of Independence. And the British did not go away, having firm control of Canada, Bermuda, and other colonies in the Caribbean and Gulf of Mexico. Their designs on retaking the colonies were seen by the War of 1812 as well as their scheming to influence Texas as a buffer and staging ground (after independence in 1836 and prior to annexation in 1845).
Because of these conditions, it is my opinion that an originalist interpretation of the 2nd amendment will serve to uphold more liberal (meaning more free/less restrictive) gun control legislation. In the other extreme, legislating from the bench, may do quite the opposite. The practice (legislating from the bench) robs the American people of their voice by subverting or usurping their elected representatives (Congress) whose job it is to legislate. The role of the court is to interpret law, not to legislate or to enforce (execute) the law. It’s also my opinion that no matter how the Court decides, many will be unhappy. Whether or not the Court will make a ruling making community militia membership a criterion for the ownership of arms may never come up in this case. I think that the case will focus on whether or not DC has a right to infringe the rights of gun ownership.
I’m not well versed in the 2nd amendment, but that doesn’t stop me from having an opinion.
“well regulated militia” = state militias not governed by the fed that can be used to overthrow a tyranical regime in time of need.
“right of the people to keep and bear arms” I believe is indipendent of a well regulated militia. I believe that this is you, me and anyone else with citizenship and good legal standing in the US. I believe that this is the interpretation clearly stated as it is a FACT that those living during the time the 2nd amendment was written clearly and those who wrote it did just that. How many politicians got into duels?
I’m torn. I believe that people should be allowed to carry concealed or unconcealed weapons anywhere they want in public. I however also believe that the vast majority of people in the US are not capable of responsibly wielding a firearm.
I’d rather be uncivilized and safe than civilized and a victim.
Mandatory military service ftw. It solves the issue of responsibility with sidearms. Put a bunch of civilians in a uniform in close proximity and you will quickly discover who should and who shouldn’t have a firearm on their person.
Update:
Here is a good summary of the court decision.
It appears that Second Amendments rights are on track for a win!