Saturday, 28 June 2008
Second Amendment an Individual Right
As everyone surely knows by now, the Supreme Court ruled on Thursday that the second amendment is an individual right and does not require membership in a militia.
WASHINGTON (Reuters) - Individual Americans have a right to own guns, the Supreme Court ruled on Thursday for the first time in the country's history, striking down a strict gun control law in the U.S. capital.
The landmark 5-4 ruling marked the first time in nearly 70 years the high court has addressed the Second Amendment of the U.S. Constitution. It rejected the argument the right to keep and bear arms was tied to service in a state militia.
Justice Antonin Scalia said for the majority the Second Amendment protects an individual right to possess a firearm unconnected with militia service and to use it for traditional lawful purposes, such as self-defense in the home.
I believe this was a good ruling for two reasons. First the text of the second amendment itself supports this interpretation.
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.
This amendment breaks down into two clauses. The first clause "A well regulated militia being necessary to the security of a free State" is a prefatory clause. It provides the reason for the right to exist.
When the original Bill of Rights were debated, it was accepted that everyone owned firearms for self defense and hunting. It was also commonly assumed that the "militia" was every male physically capable of bearing arms. What the Anti-Federalists were afraid of at the time was that the federal government would expand its power and disarm the "militia" in order to install a military ruled government.
Thus the Anti-Federalists wanted an amendment that ensured that the individual would not be stripped of the right to bear arms. Ensuring that the citizen's militia could not be destroyed. All the prefatory statement does is outline why the amendment was important.
The second clause, "the right of the People to keep and bear arms shall not be infringed", is the operative clause in the amendment. It is pretty straight forward and needs no analysis.
Scalia comments on this within the majority opinion.
The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms.
The other reason I believe the second amendment is an individual right comes from my reading of it within the context of the entire Bill of Rights. The Bill of Rights were set forth to limit the federal government and ensure the rights of the people. What else do the Bill or Rights protect? Let's look at the intent of each one
- Freedom of speech, press, and religion
- Right to keep and bear arms
- Protection from quartering troops
- Protection from unreasonable search and seizures
- Due process and protection from self incrimination
- Right to a speedy public trial by jury and a right to counsel
- Right to a civil trial
- Prohibit cruel and unusual punishment
- Protection of rights not stated in the constitution
- All powers not in the constitution are reserved for the states or the people
When looking at the entire Bill of Rights, it is obvious that the first eight are all meant to be individual rights. The final two grant all powers not outlined in the Constitution to the states or the individual. Basically these are meant to be the rights of every citizen. Therefore I find it absurd to argue that the founders meant for the second amendment alone to be a collective right while the others are meant to be individual rights.
It is incredible to me that this wasn't a unanimous decision. But it doesn't surprise me. For years supreme court justices have found all kinds of things in the Constitution that are not there, therefore it doesn't come as a shock that they have trouble understanding what the Constitution actually does state.
It is scary to think that we were one vote short of having the second amendment nullified by the Supreme Court. It also belies the importance of presidential elections and the need for more justices who understand the plain language of the Constitution. We don't need any more judges who believe the Constitution is some living document that can be arbitrarily changed to fit their personal political doctrine.
The Heller decision reminds us which of the current justices fall into which camp. It also reminds us that McCain is more likely to appoint justices that fall into the former while Obama is most assuredly going to appoint justices of the latter.
