Symposium before oral argument in New York State Rifle & Pistol Association v. City of New York

Well worth the reading.

The Right to Keep Arms

The United States Supreme Court (SCOTUS) has accepted the first case that will directly address the long controversial issues surrounding the Second Amendment (2nd amnd) in living memory. It is expected to decide specifically if a near absolute ban on private ownership and possession of handguns in the District of Columbia violates an individual right to keep and bear arms which is widely claimed to exist in the 2nd amnd of the Constitution. SCOTUS has not ruled even vaguely on the matter since the late 1930's. At issue is whether the wording of the 2nd amnd creates an individual right held by all law abiding Americans or merely a collective right on the part of the states to maintain their own militias.

Revisionist and liberal historians have been bending over backwards for years in an effort to shore up the latter interpretation. However such simply does not square with the actual history surrounding the document and its interpretation by the Founders. I believe that while reasonable people can debate the wisdom of retaining a broad individual right for citizens to be armed in the early 21st century when so much has obviously changed from the late 18th century, one can not reasonably argue that the framers intended anything other than to guarantee an individual right to be armed.

Those who believe that society would benefit from broad restrictions on the private ownership and possession of firearms should press their case more honestly and seek to repeal the 2nd amnd. That would indeed be a debate worth having. However the question of the meaning of the 2nd amnd is simply too weighted by the clear historical record demonstrating the intent of the Founders for the revisionist interpretation to be a legitimate basis for debate . I refer the reader to this excellent editorial from today's Wall Street Journal.*

...The amendment reads: "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." If "the right of the people" to keep and bear arms was merely an incident of, or subordinate to, a governmental (i.e., a collective) purpose -- that of ensuring an efficient or "well regulated" militia -- it would be logical to conclude, as does the District of Columbia -- that government can outlaw the individual ownership of guns. But this collective interpretation is incorrect.

To analyze what "the right of the people" means, look elsewhere within the Bill of Rights for guidance. The First Amendment speaks of "the right of the people peaceably to assemble . . ." No one seriously argues that the right to assemble or associate with your fellow citizens is predicated on the number of citizens or the assent of a government. It is an individual right.

The Fourth Amendment says, "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . " The "people" here does not refer to a collectivity, either.

The rights guaranteed in the Bill of Right are individual. The Third and Fifth Amendments protect individual property owners; the Fourth, Fifth, Sixth and Eighth Amendments protect potential individual criminal defendants from unreasonable searches, involuntary incrimination, appearing in court without an attorney, excessive bail, and cruel and unusual punishments.

The Ninth Amendment protects individual rights not otherwise enumerated in the Bill of Rights. The 10th Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Here, "the people" are separate from "the states"; thus, the Second Amendment must be about more than simply a "state" militia when it uses the term "the people."

I strongly recommend the entire editorial which can be read here.

* The WSJ does not generally allow free access to its articles for more than seven days from publication except to subscribers. It should be available through Friday November 30th though.

Hat tip to Brian.