Robyn E. Blumner

Supreme Court's logic on the arms we can bear

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." —The Second Amendment to the Constitution.

Now we finally know what this Amendment means. The Supreme Court's five conservative justices have just ruled that we all have a constitutional right to own a gun.

So there it is, all of the NRA's dreams come true in one mighty legal swoop. I can just imagine Charlton Heston's cold, dead hands raised in elated celebration.

And to make it even sweeter, the majority opinion was written by Justice Antonin Scalia, the very justice who offers himself up as a strict constructionist. His ruling would undoubtedly be grounded in originalism and of such logical purity that no one could suggest that it had sprung from a personal ideological or political bent.

Funny, though, how the court's four liberal justices vigorously dissented, reading history and precedent quite differently and finding that the Second Amendment proclaimed a collective right protecting state militias.

Of course, they lost and Scalia's opinion is now law. So it's worth a walk through Scalia's logic constraining federal gun-control efforts, to see if it holds.

In District of Columbia vs. Heller, the court reviewed a district law barring the possession of handguns, even in one's home, and directing that rifles be dismantled or sport trigger locks. The court struck this down as unconstitutional.

In his analysis, Scalia spent a great deal of time laying out the historical underpinnings of the Second Amendment. Beyond the right of self-defense, Scalia declared that the framers viewed the right to bear arms as a check against an overbearing federal authority. Having just come through their own need to toss off the oppressive government of King George III, the framers thought it essential to empower a citizens' militia. "(W)hen the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny," Scalia explained.

But if that's true, and the Second Amendment grants citizens the capacity to revolt against usurpations by government, then doesn't it follow that they have the right to the weapons needed to do so? Doesn't this logic lead us to an individual right to a nuclear device? How else to challenge an American government run amok? Or, if not so great a weapon of mass destruction then at least an assault rifle, the very basic outfit of any revolution.

No dice, Scalia says, in full punt mode. Scalia claims that the individual right to bear arms does not include "M-16 rifles and the like" because it covers only those weapons "in common use at the time" of the amendment's adoption in the 18th century and not "dangerous and unusual weapons."

First, all weapons are dangerous — it's sort of the point. Second, if citizens in a militia — or a person protecting his home from a robber — is to have any chance today they must be armed with something better than a flintlock musket.

Not to worry, says Scalia, because the Second Amendment includes all modern advances of "bearable arms" even if they "were not in existence at the time of the founding." But not military-type arms.

There is no cohesive logic here. The Second Amendment's prefatory clause must mean something, at least granting individuals the right to weapons that a modern militia would carry. Scalia accepts an updating of the Constitution relative to weapons needed for defending oneself against a home invasion but not against government tyranny. That's pretty result-oriented judging and not terribly strict to any original construction.

The Second Amendment has always put me in a quandary since the framers' purposes for it inevitably leads to an open floodgate of weapons ownership. But Scalia's opinion was not an honest attempt at sorting this out. It was a sophistical, political decision of just the type that he rails against.

Why am I not surprised?

Supreme Court's logic on the arms we can bear 07/05/08 [Last modified: Wednesday, July 9, 2008 10:44pm]

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