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.
– 2nd Amendment, US Constitution
As you may already know, the Supreme Court heard arguments today regarding the case of a Washington DC resident who wants to own a gun and keep it in her home for self defense purposes. The law in the District of Columbia prohibits her from owning having a handgun in her home… from even owning one. For background on the case, the SCOTUSBlog.com site (SCOTUS stands for Supreme Court Of The United States) has some good information. From their site:
Within seconds after the defender of the District law, Washington lawyer Walter Dellinger, laid out his general theory that the Amendment only guaranteed a “militia-related” right, the Chief Justice focused on the text of the Amendment and said “If it is limited to state militias, why would they say ‘the right of the people. In other words, why wouldn’t they say ‘state militias have the right to keep arms.'”
Kennedy soon joined in, saying the reference in the Amendment to the arms needs of the militia was simply a reaffirmation of the importance of having an organized militia (as guaranteed by other provisions in the Constitution), but then the Framers went further an added an entirely separate right, “a right to bear arms.” Scalia shortly got involved, saying “why isn’t it perfectly plausible, indeed reasonable, to assume that since the Framers knew that the way militias were destroyed by tyrants in the past…by taking away the people’s weapons…the two clauses go together beautifully: Since we need a militia, the right to keep and bear arms shall not be infringed.”
Arguments were apparently completed today. A ruling is probably a few months away. SCOTUSBlog.com provides an excellent resource for information on the case, various resources around the Internet, including CSpan coverage and other write-ups.
I did a little additional research tonight as well just to see what some others are thinking and specifically if I could quickly find some background from the Federalist Papers.
Steve Mount, webmaster of USConstitution.net, has provided a helpful resource of information regarding the 2nd Amendment to the Constitution. Included in his writeup of the amendment, Steve makes the assertion that the debate over the past 100 years regarding the amendment is mostly the result of unclear wording, and he suggests replacing the amendment with a new one that provides clarity to the self-defense purpose and removes the reference to the militia. I agree with the idea of replacing the amendment to provide clarity. I do not support eliminating the militia aspect. Steve’s contention is that the idea of a tyrannical leader coming to power in the US is unlikely enough to make the idea of a loosely formed militia unnecessary. I would contend that maintaining an independent militia helps avoid such a problem, and provides a legitimate last level of defense from foreign invasion. We should not remove any aspect of this basic freedom. We should ensure that the Constitutional aspect clearly represents the intent of our nation (not just our founders).
At GunCite.com, there is a nice analysis of commentary content from the period of the writing of the Constitution, including references to the Federalist Papers, that demonstrates with some clarity the thinking of the time on this topic. What I think we are missing in this debate is a better understanding that the purpose of the 2nd Amendment is to protect individuals and the people collectively from having a basic right abridged… the right to self-protection. It is interesting that we continue to be very focused on the guns instead of the slightly more abstract concept of self-protection/self-preservation. If practical non-projectile energy weapons were easily available to consumers, we should be able to assign the specifics of ownership and use within the construct of the the 2nd amendment (the D.C. lawyer stated as much today in his arguments)… the right isn’t to own any specific type of technological weapon, the right is to be able to keep and use appropriate weapons for defending ourselves from intruders in our homes, on our land (in concert with others, a militia) or in our government (also a militia would be useful).
If I protect my family from an intruder by shooting him in the leg, I will probably not face criminal charges, but I might face a lawsuit, and may very well lose. I think it’s fair to say that the 2nd Amendment can be used as a reasonable basis for acting and expecting not to be held accountable for injuries suffered by an assailant. It’s unfortunate that we face an overly litigious society, and I think the courts could do a better job in supporting the basic right of self-defense by limiting the ability of assailants to sue their victims. I’m sure there are legislative actions required in some states as well to ensure this protection.
GunCite concludes its analysis of intent of the framers with this:
The only model that comports with all of the evidence from the Founding period is the one interpreting the Second Amendment as protecting an individual right for a collective purpose. The militia clause and the right to keep and bear arms were intended to be complementary.
I think that covers it right there.
The statistics that are being referenced in the current debate seem to demonstrate that stricter gun controls tend to lead to increased crime. The assumed explanation for this hyperbole is that by taking guns away from law-abiding citizens, we are setting them up to be open targets to violent criminals. The fundamental question here is, if someone wants to try and attack and potentially kill me, do I or do I not have the right to take reasonable action to prevent that person from succeeding? If that person has a baseball bat, what am I able to do? If that person has a knife, which am I allowed to do. If that person threatens me and my family with a gun, what are my rights? There aren’t any timeouts in real life. I am not willing to just unceremoniously become a murder victim. That’s just foolishness.
Cases like D.C. v. Heller are going to need to continue to come to the table until this issue is resolved properly. According to SCOTUSBlog.com, there appears to be a strong potential that the Supreme Court will find in favor of Heller. It is my hope that the Supreme Court (SCOTUS) also takes up the question of whether the individual states are truly free to restrict the rights expressed in the 2nd Amendment. It seems to me that the states should have the right to legislate many of the details around how militias are built and managed, and to define locations where guns should be banned (courthouses, airports, law offices… you know, places where people are more likely to go to hurt others), but restrictions on types of weapons that are appropriate to own and/or carry should (in my opinion) be managed at a federal level.
Thankfully, living in Iowa means I have less constraint on owning firearms.
Hat Tip to Blue Crab Boulevard.
