Judging the 2nd Amendment

By Alan Stewart Carl | Related entries in Guns and Ammo, Law, Supreme Court

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One of the most important Supreme Court cases in recent years will come before the court tomorrow as the 2nd Amendment is put on trial. This is one of the few shadowy corners of our Constitution, having received very little High Court interpretation. As such, the justices will have to determine the meaning of the 2nd Amendment without much precedent to hide behind.

First, the amendment in all its archaic English glory:

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.

But what does that mean? If it’s just a provision forbidding laws limiting individual gun ownership, why the “well regulated militia” line? But if it just has something to do with to the militia, why the whole “right of the people … shall not be infringed” line?

What if, as some have argued (PDF), “well regulated” means “properly operating” in 18th century English and not “tightly controlled by government” as it would likely mean in contemporary writings? Perhaps the “security of a free state” refers to private gun ownership as a check on the standing army. And does the militia refer to all conscript eligible citizens or does it refer to a standing militia/national guard? And does the amendment only apply to the federal government or must states obey it as well?

This is not a simple case and anyone who believes it is straight-forward is probably placing personal politics over judicial interpretation. I tend to think the 2nd Amendment does indeed grant us the right to gun ownership and that the District of Columbia law is unconstitutional. But I’ll be quite interested to see not just how the court rules but how the justices frame their arguments. I’ve read a lot of interpretations of this amendment, it’ll be nice to finally have the great minds of the High Court provide their opinion.


This entry was posted on Monday, March 17th, 2008 and is filed under Guns and Ammo, Law, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

6 Responses to “Judging the 2nd Amendment”

  1. TerenceC Says:

    You’re right, it’s not easy at all – but for some reason I just don’t see the majority in the Supreme Court looking at the whole picture on this issue.

    Put yourself in the “man of the times” frame of mind. In the 18th century by and large, if you weren’t in power you were tyranized by it. At the same time, our nations self defense consisted of local militia’s throughout the states. The great minds of the time realized that tyranny of the citizens was pretty much a rule throughout the world – but it would be different in the USA. So the feeling went that government would be less able to tyranize if it had a well regulated militia to contend with.

    Jefferson firmly believed that from time to time the country would have to undergo a revolution in order to properly sustain the balance of power and maintain “of the people, by the people, for the people”……..at least from my exalted position that’s what I believe.

    Regarding tomorrow…..I have become used to disappointment with the decisions of this Supreme Court – let’s just say I don’t expect any surprises.

  2. Seb Says:

    “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.”

    I have increasingly come to think that if you can read that, and convince yourself that it means that the right of the people to keep and bear arms can be constitutionally infringed, you’re probably not someone I want interpreting the constitution. Also, you almost certainly think you are more clever than you really are.

    Of course, if you are such a person, please feel free to interpret my first sentence as meaning I think you should be interpreting the constitution. The meaning’s in there if you look for it cleverly enough.

  3. Flick Says:

    That with rights come responsibilities is widely if not universally accepted. So what is the responsibility that comes with the right to keep and bear arms? It’s in the opening phrase of the Second Amendment. “Owning guns and complaining to your representatives being sufficient to the security of a free state,…” Right? Well that’s what most gun owners seem to think!

    For any who are interested in taking seriously the responsibility that comes with the right to keep and bear arms, I invite you to check out today’s militia at http://www.awrm.org. We might surprise you, especially if you still believe what the mainstream media and groups like the SPLC say about us.

    Peace.

  4. Tully Says:

    Until the last half-century or so there was no doubt at all about what the 2nd meant. It really is rather clear. What’s not so clear is to what extent government can regulate that individual right, and for what reasons.

  5. kritter Says:

    Personally, I’m strongly persuaded by the historical context…that the founders imagined government would need to be kept in check and periodically curbed. So I think the mention of militias relates to the periodic organization of folks into state-by-state armed curbing parties. As need be. Some folks think that our current policy of a huge standing army makes the idea of militias moot. But I have my doubts whether the founders would have thought a giant standing army was a very good idea. IOW, they wouldn’t have agreed at all with a next sentence that said “and if we establish a standing army, then it’ll be Ok to ban guns.”

    I’m also strongly persuaded by the location of the amendment in the bill of rights, which enumerates individual rights. I hope the court acknowledges these individual rights while preserving some room for the kind of regulation most folks think is just sensible, like licensing and keeping guns away from criminals and nuts, to name a few.

    I’d be shocked if the court came down with anything like a rubber stamp OK of the DC rules. But I wouldn’t that be surprised if they rule within as narrow a scope as possible, thereby extending much of the controversy and sort of passing the buck.

    What I’d prefer is that they forthrightly acknowledge the basic individual right, and identify some of the existing broad principles that any government entity needs to meet in order to undertake sensible regulations without unduly infringing on individual rights. I hope they say that blanket banning is right out, but that some regulation and restriction for the sake of public safety is OK. IOW, the right exists, and here are the established principles within the law for how to manage the obvious responsibilities that must come along with such a potentially dangerous right.

  6. Soda Bob Says:

    Yes, the “well regulated” portion meant “well trained,” not regulated in the standard modern sense of rules and regulations. Good writeup, interesting thoughts.

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