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A Well Regulated Militia: Did the Supreme Court Shoot Itself In the Foot?

Depending upon your interpretation of the Second Amendment the United States Supreme Court is about to make America a more dangerous, or a safer, place.

Before the court are twenty-nine words and three commas: “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.” How you diagram the sentence determines the amendment’s meaning. March 18, 2008, the nation’s highest bench explored what the amendment means during oral arguments in “District of Columbia v. Dick Anthony Heller,” a case testing the constitutionality of a handgun ban in the nation’s capital. The court’s conclusion may determine whether the right is individual or militia-collective.

To over-dramatize: gun-control proponents say a collective interpretation gives legislatures power to prevent Columbines and Virginia Techs by keeping guns away from the Dylan Klebolds, Eric Harrises, and Seung-Hui Chos. Gun-rights advocates say an individual interpretation gives erstwhile victims power to shoot it out with mass murderers.

If you would be uncomfortable behind a desk in a classroom where classmates and the teacher are packing heat, you aren’t sitting on the Supreme Court. From the construction and tone of the questions a majority of the justices asked from the bench, it is a good bet that gun bans will be overturned, or that the case will be sent back to the Circuit Court from whence in came for refinement.

The appellants said the amendment should be read: “Because a well regulated Militia, is necessary . . .” The appellees said “the right of the people …” clause must be read in isolation. A majority of the nine-member court sounded as if it agreed with the appellees. It looks as if the court will rule the right to keep and bear as fundamental as free speech. But neither gun-rights advocates nor gun-control proponents are likely to be pleased.

The court can only find that a newly discovered right to a personal armamentarium is not absolute but limited, as are all Bill of Rights guarantees. Which is to say, that it remains to be decided whether gun control laws are strict-scrutiny presumed to be unconstitutional, or whether firearms are subject to reasonable regulation.

It may be that the court is unprepared to find in a fundamental right to bear arms a right to unlicensed possession of machineguns, bazookas, mortars, howitzers, and such. It is more likely, that the justices will conclude that though there is an individual right to weapons, it is subject to reasonable regulation.

Which brings us back to where we started: gun ownership is permissible, but may be reasonably restricted—reasonableness depending on the time, place and circumstances. It is not too far to see that, in some cases, absolute bans may be reasonable.

Supposing that is so, what use was it for the court to meddle in the issue to begin with? Whatever the justices decide, neither gun-control nor gun-rights advocates are likely to be pleased. Like “Scott,” “Korematsu,” “Roe,” and the rest, “District of Columbia v. Dick Anthony Heller” may prove to be another of the court’s self-inflicted wounds.

Read Standring’s blog The Second Amendment Goes to Heller