The Supreme Court and the Second Amendment: a Look at Language

On Tuesday, the Supreme Court of the US heard arguments on individual gun-ownership rights in Washington, D.C.  District of Columbia v. Heller is the first case before the Supreme Court to test this issue nationally, though it perhaps shouldn’t have been.  There are actually several lower-court cases in which this issue was incorrectly decided; but the timing is fortuitious in this case, as a majority of the justices seem inclined to accurately read the language of the Second Amendment.

The amendment, for those uncertain, reads, “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.”  And it is this language which causes the controversy (though a clear reading of the rest of the document shows that it needn’t be controversial). 

The anti-gun lobby reads the language to mean gun ownership is allowed only insofar as is necessary to serve in the military.  However, when you apply basic textual criticism, in reading the second part of the amendment, you see that the right, as such, to keep and bear arms, exists quite independently of the government.  Indeed, this the theme of most of  this nation’s founding documents: individual rights aren’t granted — only limited. 

This intent is clear in the language of the Second Amendment as well.  “The right to keep and bear arms shall not be infringed.”  Not, “the people shall be granted the right to bear arms.”  The Signers were well aware of the difference in intent here.  The right to bear arms is a right we have, says the Constitution, and the government shall not infringe on that right.  Put another way, the Amendment basically says, “The government will not limit the right of the citizenry to keep and bear arms, and one reason for this is the need for a prepared militia.”

The language is key.  The Constitution, along with the Bill of Rights, do not grant a single right.  Liberty, as has been pointed out at this site before, and as has clearly been recognized by the drafters of the Constitution — especially if one takes the time to examine the other founding documents — is the natural state.  We are born free.  Governments don’t grant rights; only limit them. 

And the second amendment, regardless of reasoning, is clear in its mandate: the right to bear arms must not be infringed.

-Streu-

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