The Second Amendment Dodges a Bullet

Greetings from the Left Coast, where we here at LeftCoast Blues do the heavy thinking on behalf of those who just can't be bothered.

The big news of the day is that the Supreme Court decided that the Second Amendment to the Constitution actually says what it says. The even bigger news, in my opinion, is that four of the nine Supreme Court Justices believed that it didn't.

The issue in question was a 32-year-old ban on handgun ownership in Washington DC. This was, in a sense, an indirect ban: it's a crime in DC to carry an unregistered firearm, and the registration of handguns is prohibited. So there was no way to legally own one. Dick Heller, a DC special police officer, applied for a registration certificate for a handgun that he wanted to keep at home, and was turned down - so he sued.

The court struck down the ban, and also struck down the requirement that all firearms be equipped with trigger locks or kept disassembled.

Here's what the Second Amendment 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." Those who oppose private gun ownership do so by claiming that this language only protects the right to possess and carry a firearm in connection with militia service. Justice Scalia, writing for the majority, points out that "the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning." It "excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation."

In one of the clearest interpretations of the Second Amendment ever, Justice Scalia wrote: "The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, 'Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed'...other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose...a prefatory clause does not limit or expand the scope of the operative clause."

He goes on to observe that, "Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service."

Justice Scalia points out that nothing in this opinion should cast doubt on "longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings," and that the sorts of weapons protected by the Second Amendment are those "in common use," and that it is not unconstitutional to, for example, ban private ownership of fully automatic military weapons or bazookas.

However, "the inherent right of self-defense has been central to the Second Amendment right," and the DC law "amounts to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute."

And here's the part I really love: "The very enumeration of the right takes out of the hands of government - even the Third Branch of Government - the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad...We are aware of the problem of handgun violence in this country...The Constitution leaves the District of Columbia a variety of tools for combating that problem...But the enshrinemen of constitutional rights necessarily takes certain policy choices off the table...it is not the role of this Court to pronounce the Second Amendment extinct."

The majority opinion is really quite brilliantly written, and I would encourage everyone to read it in its entirety. You can download it from http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-2901.pdf.

What is truly frightening is that four of the nine justices apparently felt that they could, in Scalia's words, "pronounce the Second Amendment extinct." In a dissenting opinion, Justice Stevens wrote that the majority opinion "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons."

Note to Justice Stevens: Yes! That's exactly what they did! The entire Bill of Rights has the express purpose of limiting what elected officials, or any other branch of the government, can do! These people came from nations where the government could, at a whim, make decisions that would abridge their individual rights, and they had had enough of that. They were rightly concerned about what a central government could and would do if there were not very clear limitations on its power. The Constitution specifies a process by which it can be amended. Existing amendments can be reversed through this process, if the people decide it's the right thing to do - after all, prohibition was reversed through exactly that process. But you, Justice Stevens, do not have the right to circumvent that process because you don't like what an existing amendment says. And the people of the United States should be very concerned that you, and your three dissenting colleagues, apparently believe that you do!

And to my conservative friends, I will say this: if you don't think there's any difference between the Presidential candidates this year, think about the fact that the next President is probably going to get to name at least one, if not two, Supreme Court Justices, and think about the fact that the Second Amendment to the Constitution survived, on June 26, 2008, by a single vote, 5 to 4. If that doesn't get you off your backsides and out to the polls, then I don't know what will. Because after all the votes are counted, the American people pretty much end up with the government they deserve.

Thanks for listening.