Our Supreme Court is about to tackle another Constitutional question, one that has been argued about for a very long time. The issue is the 2nd Amendment and our right to bear arms. The Court has not had a case involving this issue for over 70 years.
The case is a Washington, D.C. ban on owning handguns; the ban has been in place for 31 years and is now being challenged as unconstitutional since the 2nd Amendment guarantees our right to bear arms or not – that is the issue!
The wording of the 2nd Amendment: “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” (1787).
Here we have a problem with two words that are used in the sentence: militia and the right of the people; is it individual or collective.
To get closer to what the authors in 1787 had in mind we must look at the debate that produced the 2nd Amendment.
The debate was between the Federalists (for the Constitution) and the anti-Federalists (against the Constitution). One side believed in a strong federal government, the other side feared a strong central government based on the history they knew.
The history included the Revolutionary War and Britain’s attempt to control the colonists. The French Revolution was stirring with “the People” against the “Monarchy”; the principle being the right of the people to defend themselves against a tyrannical government.
In their minds, if the government wanted to impose its will on the people with the force of a standing army, the armed people of the state could gather as a “militia” to oppose the government and its standing army. Please imagine muskets against muskets and not tanks against hunting rifles.
Historically, a militia was a military organization composed of armed civilians and used, usually, in times of emergency / attack.
Congress played with the wording of the 2nd Amendment and the fact that they insisted on the words “well regulated” meant they did not want an armed mob running around or for that matter, armed individuals; they wanted a formal military organization composed of civilian citizens able to bear arms.
You can visualize the scenario when a call to arms horn sounds and men either reaching under their beds for their muskets or running to the local armory to get their muskets and assembling in the town square for further orders.
The intent of the Amendment seems to be clearly the collective right to bear arms for specifically the defense of the state and not for individual use.
In 1903 Congress passed the Militia Act which did away with the old militia and established a National Guard for each state. The National Guard obtained its weapons from the national government and did not own them individually.
In my mind the 2nd Amendment as written is basically an amendment without any application to our time since state militias have been replaced by the National Guard.
Our current Supreme Court has some Bush appointees who are very conservative but usually conservatives stick to a very tight interpretation of the Constitution meaning that they stick close to what the authors of the Constitution really meant. If they stick to their pattern they will have to find that the 2nd Amendment has nothing to do with individual rights to bear arms but refer only to states and their rights to have militias.
The bottom line is that the 2nd Amendment does NOT guarantee that individuals have the Constitutional right to bear arms.
The NRA (National Rifle Association) is very rich and therefore very powerful. They are also made up of conservative Republicans and conservative Democrats who believe it is their sacred right to bear arms and fight ANY actions intended to somehow abridge that right.
What it boils down to is the fact that our Constitution does not guarantee the right of individuals to own and use guns BUT it also does not prohibit the owning and use of guns. Our tradition is that IF the Constitution does not specifically prohibit something then the states take on the responsibility of either allowing or prohibiting and also of regulating that something.
Washington, D.C. is not a state but rather a city/state so I don’t know the laws governing that particular entity buy regular states like Michigan, I suppose, could either legislate gun control or put it up for a vote but I know that the supporters of a “Constitutional Right” to bear arms will not want to put their right at risk by putting it up for a vote of the people.
This should be quite interesting and I will follow this case quite closely. More as it develops…
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