Monday, April 07, 2008

A Quick and Superficial Thought on the Second Amendment

A good friend of mine, who is a lawyer, and who is thoroughly familiar with "Con-law", has made it clear to me that the one thing that words in a statute CANNOT mean is "nothing". That is to say, if the words find their way into law, those words must, necessarily, contribute to the meaning and interpretation of that law (said friend illustrates this point with an amusing anecdote about how a trivial, one-word, and almost certainly inadvertent difference in a state law compared to its federal equivalent resulted in all sorts of activist judicial shenanigans -- wish I could remember the full story).

Well, this point of legal interpretation seems to be very important, considering the potential of the upcoming ruling in the D.C. vs. Heller case. Hinging on the SCOTUS' interpretation of the 2nd Amendment, it is widely thought that this ruling will settle, somewhat finally, whether the 2nd Amendment grants a collective (boo!) or individual (yay!) right to bear arms. One of the points that the arm-chair gun-grabbers (that is to say, the non-professionals) like to think they make is the first few words of the amendment, which reads in whole:
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.
(yes, I removed the superfluous commas), is that those pesky first few words, since they must mean something, mean that the right to bear arms only applies insofar as it applies to a "well-regulated militia", which is then taken to be the modern-day National Guard. I'm not going to get into a debate about the soundness, or lack thereof, of that argument.

However, since it looks like the SCOTUS might very well come down 5-4 in favor of the individual right, the notion that those words give the amendment its collectivist meaning is blown right out of the water (presumably with a Constitutionally-sanctioned firearm, no less). Based on my premise above, however, those words cannot be meaningless. So what, then, do they mean?

Well, let's (rightly) assume that the 2nd Amendment does indeed confer an individual right to keep and bear arms. The opening nominative absolute clause points out that the reason we have that right is that a well-regulated militia is necessary. And what arms, pray tell, are required such that members of a militia might be considered "well-regulated"? I can't imagine a legion of well-equipped, well-trained, well-regulated militiamen with a bunch of .22 plinkers, short-range handguns, and a variety of mismatched hunting rifles of varying calibers. Far from being well-regulated, that would be a chaotic mess from a logistics and supply point-of-view!

No, you see, if the Second Amendment confers an individual right to keep and bear arms, then the opening clause tells us nothing less than this: we have a Constitutional right to keep and bear nothing less than professional U.S. Military-grade weaponry!

This, of course, dovetails nicely with my own pet theory that if we all owned and were trained to competency on military-grade assault rifles, this country would be a lot safer and crime-free. Now there's an entitlement program I'd vote for!



Anonymous Chris said...

I think the militia clause simply gives one reason (justifies) why this right shall not be infringed. But it is not the only reason to own firearms.

It would be similar to this wording:

"A well-educated populace, being necessary for the advancement of a free state, the right of the people to possess books shall not be infringed"

This doesn't say you have to own books. Or that in order to own them, you need to be a full-time student. Or that you can't own them for other purposes, such as entertainment. It just says it's a right, and gives one of the major reasons why it's important.

I agree that it looks like SCOTUS will rule in favor of an individual right. That'll shut those collective right people up for once and for all. The big question is what the Justices will say about the level of scrutiny required to limit that right. If DC can point to some poorly designed study that says their handgun laws have lessened crime, is that enough?

Unfortunately, this battle will continue for decades.

4:31 PM  
Blogger Benjamin said...

Based on my anecdote at the beginning, though, the law itself can't contain merely "justifying" statements -- the law as written is its own justification, subject to the context of the greater law as a whole. Remember, these are lawyers we're talking about, who consider themselves the high priests of the secular world. So while in a strictly literary world phrases can contribute nothing to meaning itself, but rather only contribute to context and justification, in the legal world, it is apparently not so.

10:59 AM  
Anonymous Marty said...

Right there, Ben. And if what Chris said were true, it would perhaps be the only place in the Constitution, except the Preamble, where such justification is given. And liberals and advocates of the "living constitution" love to argue about anachronisms. The would argue that if the clause was included as the most prominent justification, haven't we, in this day and age when we don't need such militias, kicked the legs out from under the whole amendment?

9:40 AM  
Blogger Benjamin said...

...and the Preamble, by its very nature, begins BEFORE the written law starts, and is thus not enforceable (although it could certainly provide guidance for judges ruling on Constitutional issues, just like previous rulings and other extralegal sources, like the Federalist papers). Everything after the Preamble must be taken as a binding legal statement.

10:00 AM  

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