Bearing Arms

Now that the United States Supreme Court has agreed to resolve the question of whether the Second Amendment to the United States Constitution guarantees an individual citizen the right bear arms, there is little suspense in my mind as to the outcome of said decision. Rather, the question in my mind is what logic will be employed to arrive at the Court’s conclusion.

The 2nd Amendment to the United States Constitution, passed in 1791, provides as follows: “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.”

Gun Rights advocates maintain that the final two clauses of the Second Amendment should be deemed controlling in the debate. Such a finding would obviously require the elimination of gun-banning statutes, since those laws infringe on an individual’s ability to own firearms.

The flaw with that argument is that it calls on the Supreme Court to totally disregard the meaning of the first two clauses of the Second Amendment, clauses that provide the context for the people’s right to bear arms and, in 18th century grammar, were used as modifying clauses. If the Second Amendment is to be interpreted as an 18th century writer, using then proper grammar, intended it, then there is no other conclusion but that the right to own firearms only extends to those individuals who are members of the State’s militias.

A 21st century interpretation, using modern day grammar, would reach an opposite conclusion. A modernist interpretation would find the final two clauses of the Second Amendment controlling, noting in the process that while the justification for the Amendment – the ability to overthrow the government - might no longer be a relevant consideration, the crux of the constitutional protection is the individual's right to gun ownership.

The dilemma facing the Supreme Court at this juncture is choosing which line of reasoning to follow.

It is my belief that the United States Supreme Court will rule that the District of Columbia’s ban on handguns violates the Second Amendment, despite the fact that the District possesses no militia. Given the Court’s ultra-conservative make-up, there is little doubt in my mind that it will interpret the Second Amendment as conferring on all individuals the right to possess firearms. However, that conclusion will assuredly require individual justices to depart from their normal ideological positions.

The conservative wing of the Supreme Court, and their supporters around the country, have heretofore argued for a literal, strict-constructionists reading of the Constitution that requires strict adherence to 18th Century interpretations of the document, and have mocked in the process those who view interpreting the Constitution as a ‘living document’ that is capable of changing, modern-day interpretations. Ironically, those same conservatives represent the core constituency of gun rights advocates. To uphold an individual’s right to gun ownership, a cause they hold near and dear to their hearts, conservatives will be required to abandon the strict constructionist approach of constitutional interpretation in favor of a living, breathing constitution, a view many conservatives consider to be an anathema. A victory for gun rights advocates will require Supreme Court justices to engage in the very reasoning they and their conservative supporters have previously labeled a "fraud".

Therein lies the rub!