Over at the Blog From Another Dimension (well, Japan, anyway) Luis discusses the fact that the Supreme Court has taken a case which might change the current interpretation of the Second Amendment.

Luis doesn’t think that the Second gives an individual a right to keep and bear arms (although he does believe that the Ninth Amendment covers that right). I think he’s wrong. Here’s the argument I made back to him in a comment on his post:

Well, I guess we’ll have to agree to disagree on some of your post. You’re right in how scary it is if the four righties were to get their way on everything; it’s as good an argument as any for electing a Democrat (and a *reasonable* one) as President.

However, while I agree with your reading of the Ninth Amendment (and despair at how the courts have neutered the obvious intent of the text over the years) I think you’re wrong about the Second. It clearly gives the people the right to keep and bear arms.

The Bill of Rights uses the specific phrase “the right of the people” three times:

in the First Amendment “Congress shall make no law respecting … the right of the people peaceably to assemble, and petition the Government for a redress of grievances.”

in the Second Amendment “…the right of the people to keep and bear Arms, shall not be infringed.”

in the Fourth Amendment “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

Now, nearly nobody (including you, I suspect, Luis) argues that the First and Fourth Amendments apply to the State governments somehow. Yet when it comes to the Second, they do. Why? Because of the way that the Amendment reads. Its entire text:

“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. “

So it’s that first bit- which, to me, is clearly an explanatory phrase- that we get the trouble from. If that section before the first comma isn’t there, the Second Amendment is 100% intended to give the individual citizens the right to keep and bear arms.

How, then, does that phrase somehow LIMIT the people’s right? How does it get twisted into meaning that the States (and local municipalities) can somehow pass their own gun control rules and laws?

Well, in my opinion, it doesn’t. When we look at what “the militia” was back then, it’s pretty plain- it was everyone. Well, everyone who counted as a full-fledged citizen in that era, anyway. (Gotta remember that women couldn’t vote and non-whites were essentially non-citizens at the time.)

The second Militia Act of 1792 defined the militia:

That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia…

Now, you can make an argument that the intent of this law was to make the militia “well-regulated”, as suggested by the first phrase in the Second Amendment. It’d be a pretty compelling argument, too. But it would miss the point.

The point is that to Congress of that era, “the militia” was EVERYONE. That’s obvious; every free, able-bodied white male citizen 18 to 45 pretty much everyone to them.

Take that into consideration, and the evidence that the Second Amendment was intended to ensure an individual’s right to arms becomes MUCH more compelling. In fact, I believe it becomes even more obvious.

What’s more, the Second Amendment doesn’t put any restriction on the people. It doesn’t say that they have to become a member of the militia.

That first phrase isn’t intended to make the following text somehow limited. It’s there to explain WHY it’s there. The reason that the right of the people to keep and bear arms is that a well-regulated militia (in other words, one that’s ready and able to fight) is necessary to the security of a free State.

We must remember that prior to this, the tendency was for governments to limit which citizens were allowed to have guns. By doing so, they could control their people- and hence, they wouldn’t be a “free State”. The Second Amendment is intended to lay out WHY people have the right to keep and bear arms, and then says that they DO have that right.

It’s not “only if they’re in the State’s well-regulated militia”; it’s all people. The intent is plain; the Founders wanted the government to be by, of, and for the people as a whole. One of the easiest ways to ensure that the government wouldn’t get out of hand was to ensure that the people, as a whole, were allowed to have enough guns to provide a check and balance (if you will) against repressive governments.

Now, you can argue that the need for the Amendment is gone. (I know some would disagree, but that’s neither here nor there.) But the fact is that it’s still there, and it hasn’t been changed by futher Amendment.

I think that when we read the actual text of the Second Amendment, it’s clear that it DOES have a clear right for the individual to own a weapon if they want. And I’d further say that the “well-regulated” militia bit doesn’t give the State the right to regulate those weapons, or have gun control, or whatever.

Do we need the Second Amendment? Is it wise for anyone that wants to own an assault weapon capable of firing hundreds of rounds a minute, to own 50-bullet magazines, and so forth? That, to me, is an entirely different discussion- and one that the gun control advocates might have a lot more luck with.

But the argument before the Supreme Court now is, to me, a mystifying one. I think it’s incredible that we’re even having it. The Second Amendment is, to me, obviously enshrining the individual’s right to own a gun, period, and I for one believe it’s high time that the Supreme Court struck down the set of laws that says otherwise.

So personally I’m hoping that Kennedy comes down on the side of “sure, DC’s laws are unConstitutional, and what’s more, the Second Amendment gives individuals the right to have guns”. It’s more rights to the people, which is a Good Thing, especially considering this age of the Government expanding its power and infringing on the Peoples’ rights.