Constitutions are funny things. They stick around. The words are stable in that they can't shift unless amended by legal process. Throw in a Federal system that makes change difficult and you have 2010 eyes reading this 1791 sentence: "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." Which leads to this:
This began two years ago, when the Supreme Court disregarded the plain words of the Second Amendment and overturned the District of Columbia’s handgun ban, deciding that the amendment gave individuals in the district, not just militias, the right to bear arms. Proceeding from that flawed logic, the court has now said the amendment applies to all states and cities, rendering Chicago’s ban on handgun ownership unenforceable. Once again, the court’s conservative majority imposed its selective reading of American history, citing the country’s violent separation from Britain and the battles over slavery as proof that the authors of the Constitution and its later amendments considered gun ownership a fundamental right. The court’s members ignored the present-day reality of Chicago, where 258 public school students were shot last school year — 32 fatally.
But does it lead to that? I am not going to pretend to be able to read the sentence - except to say that "a right" shall "not be infringed." That has to mean something, right? But what? As soon as you try to figure it out, you get into twists like it took a living tree decision to create originalism out of nothing. It is all such a quagmire of personal opinion being couched as objective in the honest and earnest effort to take on the challenge of that 219 year old sentence. Twenty years in law and two law degrees? I see both sides.
Here is the ruling. Warning! It's in pdf so you will have to wait three seconds.
Comments
Hans - June 29, 2010 11:26 AM
"It is all such a quagmire of personal opinion being couched as objective...." This, to me, seems to be the major flaw of all judicial reasoning.
Alan - June 29, 2010 11:55 AM
Yet it is all we have. Construing of legislation and constitutional documents can only be undertaken by people.
Alan - June 29, 2010 1:30 PM
Alito's arguments using post-1791 incidents to illustrate meaning are strikingly un-originalist.
Ben (The Tiger) - June 29, 2010 7:36 PM
The decision reflects a nineteenth century conception of the right to bear arms -- won't pretend to know whether that was the eighteenth c. conception.
On the other hand, the spread of "shall issue" permit laws to forty states since the 1980s and the concurrent rise of "castle doctrine" laws in a similar number of states -- and the power of the NRA to flip congressional seats (they're smart -- given equally committed Republican and Democratic candidates, they endorse the Dem, even tho their hearts are with the GOP -- that's how a single issue lobby prospers) -- we can see which way the tree is growing, if we have a living tree constitution.
Mind you, a few liberal academics who started looking into the 2nd Amendment in the early 1990s were converted to the "individual right" side, and in Heller v. DC, it was 9-0 on that point. Everyone agrees on the SCOTUS that there is a right. And it is subject to reasonable regulations (no mentally I'll or convicted felons have the right to their own arsenal) -- now, it's just, "what's reasonable?"
Ben (The Tiger) - June 29, 2010 7:48 PM
(Sorry for the triple post! Wonky wifi.)
Alan - June 29, 2010 10:53 PM
Lay off the caffeine.
It did leave me asking myself how many 1700s rebels would have had access to a hand gun. Because, you know, what is the difference between a handgun and a long gun and a long gun and a bazooka? It's only a matter of scale.
Ben (The Tiger) - June 29, 2010 11:10 PM
Wouldn't a bazooka more properly fall under the category of field artillery?
The 1700s rebels had to steal that from Fort Ticonderoga, whose garrison was not told that there was a civil war on...
Ben (The Tiger) - June 29, 2010 11:23 PM
Oh, and a hand gun is a pistol. An officer's weapon. Gentlemen would have them, and duel with them.
Muskets, of course, correspond to rifles.
Alan - June 30, 2010 7:45 AM
But no rebels were gentlemen. So clearly they are unconstitutional.
ry - July 1, 2010 4:28 PM
But how many of those same rebels had access to healthcare, Al?
If it's a universal right it exists regardless of technology level, which is why I think some are engaging in a terrible line of reasoning. If we were a a Bronze age society we'd be talking about swords, spears, and shields. And we'd also be talking about universal access to leeches and priests skilled in blood letting.
But of course, any and all universal rights are merely opinion. There's no such thing, objectively.
(i'm gonna go disappear for six months again. Spater.)
Alan - July 1, 2010 8:05 PM
RY!!!
I think it is a very interesting decision, actually, and a great lesson in how US analysis works and differs from Canadian constitutional thought. Whereas we have tests pretty much established for the application of a principle, the SCOTUS members are each struggling to find the meaning in the words.