In District of Columbia v. Heller, the U.S. Supreme Court will decide, in the words of the petition for certiorari:
Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.
Here, just in case it becomes relevant, is the actual text of the Second Amendment, from ePublius!:
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.
As the Wall Street Journal points out, it is only the first four words that admit to any measure of ambiguity. Gun-Control advocates, like the New York Times, have argued that the Second Amendment creates no right whatsoever that is not directly connected to membership in an organized state militia or the national guard.
A lot has changed since the nation’s founding, when people kept muskets to be ready for militia service. What has not changed is the actual language of the Constitution. To get past the first limiting clauses of the Second Amendment to find an unalienable individual right to bear arms seems to require creative editing.
Beyond grappling with fairly esoteric arguments about the Second Amendment, the justices need to responsibly confront modern-day reality. A decision that upends needed gun controls currently in place around the country would imperil the lives of Americans.
The dishonesty in those two paragraphs is breathtaking. The Times is firmly in favor of "creatively editing" the Constitution when and where ever it may be necessary in order to write its own political opinions into the text. Besides, as the second paragraph suggests, what is really important is not the "fairly esoteric argument" about the meaning of the constitutional text, it is "modern-day reality" as the Times sees it. It is clear that the Times would have the Court uphold the gun ban regardless of what the Constitution says or what anyone intended it to say.
In fact, the first thirteen words of the Second Amendment are not limiting in any logical sense. They explain why the right to bear arms is a good idea and how it is related to security and liberty. But they put no conditions upon the right that follows.
Consider an analogy. If you found a clause in a will that read: "my nephew Charlie, being a good egg, is to inherit my entire estate." The part about Charlie being a "good egg" explains his uncle's motive; it has no effect either way on the fact that Charlie gets all the money. It would not help to argue that, since his uncle died, Charlie has revealed himself to be a lout.
Likewise, these words-"the right of the people to keep and bear arms shall not be infringed"-are less than mysterious. If you find them opaque, here is a clue: they mean that the right of the people to keep and bear arms shall not be infringed. Any limitations on the gun rights must be based on these words alone. Now, "bear," here, means to carry. It might plausibly be argued that it means to bear arms for military purpose. That would be convenient, as it would allow government to prohibit arms in many or most places: schools, airplanes, etc.
By contrast, the right to "keep" arms clearly and unambiguously protects the ownership and possession of firearms. The only question here is how broadly to interpret the term "arms." Presumably, there is no constitutional right to possess nerve gas or weapons grade anthrax. But to have any meaning at all, it has to apply to something.
When there is a question about the meaning of such terms, the most sensible and honest way to resolve it is to look at the way that the terms have been used in the Constitutional tradition. For example: does Congress have the power of subpoena? The Constitution doesn't say so. But the colonial legislatures, the state legislatures, and Congress itself from the very beginning all exercised that power. It is reasonable to assume that it is implicit in the Constitution.
Eugene Volokh has collected a considerable number of articles from state constitutions respecting the right to bear arms. You can find them in his Texas Review of Law and Politics article. Many of these regulations go back to the founding era. Here is my favorite:
Connecticut 1818: “Every citizen has a right to bear arms in defense of himself and the state.”
This regulation, written when Madison and Jefferson were still alive, makes it clear that the right to bear arms was a right possessed by individuals, and that it is active for self-defense as well as for service in a militia. Kentucky has a similar provision from 1799:
That the rights of the citizens to bear arms in defence of themselves and the State shall not be questioned.
On the other hand, many of the state regulations allowed for the "regulation" of the right to bear arms. A good example is this from the Constitution of Missouri (1875):
That the right of no citizen to keep and bear arms in defence of his home, person and property, or in aid of the civil power, when thereto legally summoned, shall be called into question; but nothing herein contained is intended to justify the practice of wearing concealed weapons.
Now I suppose that this provides a reasonable template for interpreting the Second Amendment according to long-standing legal and legislative tradition. First: here is clearly a constitutional right, belonging to individual citizens, to possess firearms. That right applies to such weapons as might be used in self-defense, or for hunting and sporting purposes. Under such a reading, it is not permissible for the Federal Government (and this includes D.C.) to ban private ownership of handguns. It would be an unusual departure from recent constitutional jurisprudence to allow the states to do so.
Secondly, the various governments should be allowed to enact time, place and manner restrictions on the right to keep and bear arms, just as they are with regard to public expressions of free speech. You can shout your opinions in a public park on Saturday afternoon, but not in a public hospital at midnight. Only those who want an outright ban on handguns or all guns would chafe at this reading of the Founding Document. But constitutional government means that you can't always do what you really want to do.
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