Judges Give Ammo to Gun Owners

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.”

—Second Amendment to the U.S. Constitution

And look at what just climbed out of its coffin—the Second Amendment, the orphan child of the Bill of Rights. The U.S. Appeals Court for the District of Columbia threw out a law in the nation’s capital that made outlaws of those keeping a gun, even in their own homes.

Until this ruling, many had relegated the Second Amendment to a place next to the Third, a truly obsolete, Amendment: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

The Appeals Court ruled that the law violates the heretofore much-ignored Second Amendment, thereby causing whoops of joy over at the National Rifle Association headquarters and lamentations from the city’s mayor and gun-control liberals everywhere. This battle is not over, for the lawsuit is on its way to the Supreme Court and more controversy.

Yet again, the air will be filled with talk about strict constructionists, judge-made law and on and on, as people argue about accepting the Constitution at its face value or embroidering new meanings on it as times and circumstances may demand. You would think, given the long, ongoing argument between close and loose interpretation, that the distinctions between the two sides is as clear as night and day.

A re-read of the Second Amendment should disabuse us of that idea. Take another look and ask yourself: What the hell does it mean? The Constitution, revered document though it may be, is often maddeningly opaque, and never more so than with the Second Amendment. What, for example, is a militia? Is it the National Guard? What is it, and why, if we have it (whatever it is), must people have the right to bear arms?

One answer to that question comes from Sanford Levinson in the Yale Law Journal. He writes: “There is strong evidence that ‘militia’ refers to all of the people, or at least all of those treated as full citizens of the community.

“James Madison, for example, speaks in Federalist Number Forty-Six of ‘the advantage of being armed, which the Americans possess over the people of almost every other nation.’ The advantage in question was not merely the defense of American borders; a standing army might well accomplish that. Rather, an armed public was advantageous in protecting political liberty.” So it is possible that the word “militia” has nothing to do with a government-organized military formation.

It is worth recalling that, in the era when the Constitution was written, our modern idea that the state or the government should have a more or less complete monopoly of force and violence was unknown. If it had been propounded, it would have been repudiated. After all, the Constitution was written by a group of white men who were haunted by the threat of a central governmental authority using force against its own citizens.

No doubt about it: The political thinking in late-18th-century America held that an armed citizenry was a check against government tyranny. It is an argument put forth today—often vehemently so—by anti-gun-controllers, and one that is scoffed at by liberal gun suppressionists, who scorn it as paranoid, melodramatic and absurd in the age of the powerful, all-knowing democratic central state.

But how paranoid is it when the government in Washington is caught making a routine practice of illegal wiretaps, snoopings, searches and even, on a more limited basis, graver transgressions against older ideas of civil liberty, such as secret trials and the suspension of habeas corpus? Abroad, the American government’s standard operating procedure now seems to include kidnapping and other illegal acts, often with Orwellian names such as “extraordinary rendition” and “targeted killing.” Maybe the liberals, even with their ongoing concerns about civil liberty, are less attuned to the danger of government tyranny than the right-wingers purported to dominate the National Rifle Association.

But even assuming the possibility that the federal government might turn into an insupportable tyranny, most gun-controllers seem to doubt that a rifle in the closet will help, though Iraq should have taught us that a population with assault rifles in the house is by no means powerless when confronting a regime it detests.

Another argument for interpreting the Second Amendment to mean we have a right to own firearms is the defense of hearth and home. The amendment comes from a time long before there were police departments and when, as any reader of James Fenimore Cooper will tell you, a flintlock was indispensable. Does that prove that we do have a Constitutional right to bear arms, whatever that means? No, not for sure—but it might.

If the Supreme Court upholds this decision, there may be seriously bloody consequences. The decision left Adrian Fenty, Washington’s mayor, aghast. “I am personally deeply disappointed and frankly outraged by this decision,” he said. “It flies in the face of laws that have helped decrease gun violence in the District of Columbia.”

You can find plenty of people around Washington whose answer to that is to ask, “What decrease in gun violence?’” Regardless, if the Bill of Rights confers the right of gun ownership, should it be nullified by the courts because of the practical advantages outlawing firearms may bring? Mr. Levinson has something to say about that, too:

“If protecting freedom of speech, the rights of criminal defendants, or any other part of the Bill of Rights were always (or even most of the time) clearly costless to the society as a whole, it would truly be impossible to understand why they would be as controversial as they are. The very fact that there are often significant costs—criminals going free, oppressed groups having to hear viciously racist speech and so on—helps to account for the observed fact that those who view themselves as defenders of the Bill of Rights are generally antagonistic to prudential arguments.”

We don’t get to pick which part of the Bill of Rights we keep and which gets thrown away. It is often painful for some of us to observe others exercising their rights, but the only other choice is to mount a campaign to X out the Second Amendment by amending the Constitution. We could join up with the anti-flag-burners, who would like to do the same with the First Amendment. There’s a winning combo for you.