I had the pleasure, this week, of carefully reading the Supreme Court's opinions in District of Columbia v. Heller for my course in Constitutional Law. In that decision, the High Court declared for the first time that the Second Amendment to the Constitution protects the right of citizens to possess firearms, including handguns, and to have them ready at least for the defense of their own homes.
Antonin Scalia's opinion is characteristically thorough, brilliant, and devastating. He examines the historical record and the logical meaning of each part of the Amendment. Here is the 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.
Scalia properly distinguishes the Prefatory Clause (A well regulated Militia, being necessary to the security of a free State) from the Operative Clause (the right of the people to keep and bear Arms, shall not be infringed). The first explains the reasons for the amendment, but does not change the operation of the second clause. If I say in my will: "Jon is a handsome man, so I leave him my fortune," Jon gets the fortune. If you object that Jon is butt ugly, you might have a point. But he still gets the money.
Scalia lays out the question:
The two sides in this case have set out very different interpretations of the Amendment.
Petitioners and today's dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service.
Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
One side wants to interpret the 2nd Amendment in such a way as to completely negate any effect. They want it to go away. The five judge majority interprets it to mean something enforceable in court. Here is some of the meat of Scalia's opinion:
The first salient feature of the operative clause is that it codifies a "right of the people." The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other times, in the First Amendment 's Assembly-and-Petition Clause and in the Fourth Amendment 's Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"). All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body. Nowhere else in the Constitution does a "right" attributed to "the people" refer to anything other than an individual right.
The Constitution does not recognize any "corporate rights," except those belonging to the American people as a whole and some belonging to the people of the various states. But when it says "the right of the people," it always means the right of individual persons, as in
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…
Scalia goes on to show that "the right to bear and keep arms" was understood by the framers as a pre-existing right belonging to individual persons. It was one of those rights that the founders preserved from the English political tradition. English kings who wished to become tyrants had tried to disarm Englishmen who were not loyal to them. Protecting the rights of every citizen to keep and bear arms was thus a bulwark against tyranny. Hence the prefatory clause. Scalia shows that this interpretation was well-grounded in the various state constitutions.
To see that Scalia was right, and the minority wrong, one has only to notice how weak and disturbingly stupid Steven's dissent is. Consider this:
The Court overlooks the significance of the way the Framers used the phrase "the people" in these constitutional provisions. In the First Amendment , no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of "the people." These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.
Stevens is arguing that the "right of the people peaceably to assemble," in the First Amendment, is a "collective right." He needs to, to establish the existence of collective rights under the Constitution. But this is so stupid an argument as to embarrass a moron. The right to peaceably assemble doesn't belong to the Sierra Club or the National Rifle Association. It belongs to any individual who wants to join one or the other. When you make this stupid an argument, you are either dumb as a post (Stevens is not), or you are trying to save a bad proposition.
But it gets worse. Stevens says:
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States.
Stevens is saying that the purpose of the 2nd Amendment was to protect the right of each state to arm itself against the Federal Government. Now I have relatives in Arkansas who would welcome that interpretation. They have confederate flag decals in the back windows of their pickup trucks. In order to save gun control, Stevens has joined Alexander Stevens and become a confederate!
Steven's dissent is self-refuting. The Second Amendment clearly protects the right of each citizen to keep and bear arms. It does so because the founders thought that this right was necessary to the security of a free people. It is careful to preserve the power of the states and Congress to regulate the militias. But if the Constitution means what it says, it means that individual citizens have a right to "cling" to their guns.
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