Saturday, March 29, 2008

You Can Have My Flintlock...
“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.”

To my reading, the Second Amendment clearly states that the right of people to bear arms is linked to service in a Militia. Since “well regulated Militia”, as they existed in 1789 when the Second Amendment was written, no longer exist, the un-infringed right to bear arms no longer exists. Militias are archaic and references to them in the Constitution should be removed. The US Constitution is a magnificent document, but references to slavery had to be removed. The Second Amendment applied to an historical situation that no longer exists and it should be repealed.

But what I believe is unimportant, the Supreme Court is in the process of determining how the Second Amendment applies to a Washington, DC, ban on handguns. The high level arguments generally revolve around whether the amendment grants a collective right related to service in a Militia or an individual right.

The questions posed by the Justices in open court seem to indicate they believe the Second Amendment grants an individual right. I hope their decision does not upset the status quo which has allowed reasonable legislative restrictions on firearms. I don’t believe there are currently many laws that seriously infringe gun ownership for hunting, sport or self-defense.

If the strict constructionist justices on the Court rule that the Second Amendment grants an individual right, they will unleash a domestic arms race. “Infringe” is a strong verb, the kind strict constructionist judges like and all judges will find hard to circumvent. If residents of DC are “infringed” by a restriction that they cannot own handguns, although they can own long guns, certainly laws that allow ownership of semi-automatic weapons, but do not allow ownership of fully automatic weapons, “infringe” gun owners rights. How many other current laws will be challenged as infringing? If I can own a fully automatic assault rifle, why not a heavy machine gun?

If the Court rules the Second Amendment grants an individual right, will they try to allow for restrictions to the right? How will they do that? There are restrictions on the right to free speech, but given the clause that links arms to Militias, any weapon appropriate for a Militia would seem to be appropriate for an individual. Given the link to Militias, is a law against ownership of an RPG an infringement?

I guess a strict constructionist judge could rule that an individual has an un-infringed right to any firearm available to a citizen of 1789.*

* Maybe Charlton Heston had it perfectly right when in 2000 as president of the NRA he held a flintlock rifle over his head and said you could only take it from his “cold dead hands”.

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