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.
This poorly-written section of the Bill of Rights is one of the few amendments rarely ever touched by the US Supreme Court. In fact, the only time a decision was made about it was way back in 1939 in US v. Miller, when the Court ruled that the defendants were in the wrong when they violated a federal law by moving a sawed-off shotgun across state lines. This ruling remains ambiguous though: both sides of the gun-control debate says the decision was in their favor, and the Supreme Court remanded the case to the federal district court "for further proceedings" that never took place. Oops.
But things may change very soon...
Supreme Court could take guns case
By MARK SHERMAN, Associated Press Writer Sun Nov 11, 12:03 PM ET
Supreme Court justices have track records that make predicting their rulings on many topics more than a mere guess. Then there is the issue of the Second Amendment and guns, about which the court has said virtually nothing in nearly 70 years.
That could change in the next few months.
The justices are facing a decision about whether to hear an appeal from city officials in Washington, D.C., wanting to keep the capital's 31-year ban on handguns. A lower court struck down the ban as a violation of the Second Amendment rights of gun ownership.
The prospect that the high court might define gun rights under the Constitution is making people on both sides of the issue nervous.
"I wouldn't be confident on either side," said Mark Tushnet, a Harvard Law School professor and author of a new book on the battle over guns in the United States.
The court could announce as early as Tuesday whether it will hear the case.
The main issue before the justices is whether the Second Amendment protects an individual's right to own guns or instead spells out the collective right of states to maintain militias. The former interpretation would permit fewer restrictions on gun ownership.
[...]Chief Justice John Roberts has said the question has not been resolved by the Supreme Court. The 1939 decision "sidestepped" the issue of whether the Second Amendment right is individual or collective, Roberts said at his confirmation hearing in 2005.
"That's still very much an open issue," Roberts said.
Both the district government and Heller want the high court to take the case. The split among the appeals courts and the importance of the issue make it likely that the justices will do so, Tushnet said.
The case is District of Columbia v. Heller, 07-290.
First off, I'm convinced that either a word or some sort of punctuation was accidentally omitted from the Second, since there is no transition between its first and second clauses. It reads like a poorly constructed sentence. Is it listing the situations in which the federal government can't restrict gun usage, or is it saying that the right to bear arms can't be infringed solely because of the necessity to keep a militia? It's very unclear, and it's this question that the Court will have to tackle.
Judging by the conservatism of this Court, I'm going to say that they'll be strict constructionalists and rule that the Second was never meant to guarantee unlimited individual right to gun ownership. After all, the Framers were concerned with states being able to defend themselves, and militias were the way to do that at the time. But nowadays we have state troopers and police, so the need for the militia is gone, and if you ask me, so is that type of gun ownership. If the job of the Court is to apply the Constitution in the spirit in which it was written, that has to be the way to go.
Granted, some of you may disagree with that. I admit: that is a bold statement to make. The Court could take a less controversial way out by pulling a states' rights argument, e.g. the federal government can't infringe the right of the people to bear arms, but individual states can add restrictions as they see fit (so they can shape their "militia" so it's "well regulated.") And this is okay, since the Second amendment has yet to be incorporated to the states through the 14th amendment. Actually, this still goes hand-in-hand with my first prediction, since they'll definitely need an argument to support state regulation.
I actually find the Second incredibly outdated. It was clearly written by people from the 18th century attempting to protect 18th century needs. I hardly consider the "right" to own a gun as essential as being able to assemble or speak my mind freely. Besides, as stated by the Ninth and Tenth, just because it isn't listed doesn't mean it's not a right. The Constitution doesn't specifically say I can own a computer, but I know I can. Shouldn't guns be the same way? And for those of you who want to modernize the Second, let me ask you a question. If we update "militia" to mean "general people," why not expand "arms" to flamethrowers, grenades, and hell, nuclear warheads? What constitutes a valid armament? Making the argument that the Second was designed to be timeless creates a very slippery slope.
Get psyched for precedent-setting Court decisions!
