The Occasional Observer

4 comments:

Fredo said...

I have been watching the development of this case with great interest. Wayne LaPierre from the NRA was on CSpan this morning reiterating that Jefferson, Madison, Adams, and Justice Story are all on record as identifying the right to keep and bear arms as an individual right.

I would point out though, that the Court has not "upheld the individual's right to bear arms". At this point, the Court has only heard oral arguments over the case. Spectators and court watchers have inferred from line of questioning that Justices pursued, that a majority of them believe the 2nd amendment confers an indiviudal right. Remember though that Justices can, and often do, change their minds after oral argument and even after conferencing with the other Justices. Until the Court rules, anything can happen.

Keep in mind, the Court could also maintain that the 2nd Amendment is an individual right and still rule for the District by saying that the handgun ban is a "reasonable" restriction that does not undermine the constitutional right to keep and bear arms. It's not only a question of how they interpret the amendment, but where they set the threshold at which a municpality would be seen as abrogating that contitutional right.

3/19/2008 11:03 AM

SheaHeyKid said...

Really it's the last point that is the key question. I think it's highly unlikely they will rule that the right to bear arms is not an individual right. I therefore continue to find this to be the most interesting question: what is the definition of an 'arm'?

I found an excellent (although lengthy!) commentary here. He reviews contextual statements and writings from the 1700s to see what the founders considered an 'arm'. I am of the opinion (as is he) that the founders meant arms to be all military weaponry, not simply firearms. This makes the most sense, not just from their usage of the phrase 'arms' at the time, but from the point that when forming a militia for defense it would be incumbent on the people in many cases to supply the necessary armaments. Therefore, the individual people would necessarily have to own and provide a full range of weaponry to form an effective militia.

The problem comes in applying this interpretation today. As someone pointed out on another site, the weapons owned by individuals in the 1700s were similar in functionality to military pieces. Therefore, it is reasonable that the founders would provide individuals with the same rights as the military. Clearly, though, the situation today is dramatically different. The amount of damage that can be inflicted by any number of military weapons is astronomical. It seems unreasonable that individuals should have rights to all this weaponry.

And yet, if the intent of the 2nd Amendment is to allow individuals to form effective militias to defend themselves from government oppression, and the gov't has access to those weapons, it stands to reason that the populace would also need such access to provide an effective defense or fair fight. On the other hand, one could also argue that if the founders were writing the Constitution today, given the advancement in weaponry, they might have made the 2nd amendment more restrictive. Perhaps they would have focused on sufficient small/light weaponry as to allow an individual to defend himself from a small crowd of equally-lightly armed individuals, as opposed to providing sufficient defense to take on the military's advanced systems.

3/19/2008 12:58 PM

SheaHeyKid said...

I've summarized some key conclusions from his commentary here:

In our situation, we must ask "what did 'arms' mean when the Second Amendment was written and ratified, in that society, and in that context?

So where does all this historical research bring us? It seems fairly clear that the Founders and their informed contemporaries understood the term "arms" to be synonymous with what we call "weapons." They did not use that overarching meaning at all times, ... But the Founders' generation were certainly willing to apply the term to more powerful and traditionally "military-only" weapons.

If we take a textualist approach to interpreting the Constitution, we find that all military weapons are considered "arms" for the purposes of the Second Amendment.

In the late 1700s, individual access to military weaponry was a good thing. The citizenry could effectively employ any and all military weapons against enemies, without fear of much collateral damage. Now, though, the technology of war has far outstripped even the wildest dreams of our forebears, and our textualist exercise presents serious problems if applied in isolation.

We can wipe out cities under a nuclear mushroom cloud with the press of a button. We can unleash invisible chemicals that have no scent and no taste, yet can strike crowds of people dead in moments if the smallest amount comes in contact with unprotected skin. We possess germs and viruses that need only be dispersed in small quantities to be effective, that have no known cure, that kill eight of every ten humans infected, and that can circle the globe in hours thanks to international air travel. Our cannons fire farther, faster, and more accurately than was thought possible in the eighteenth century. But worst of all, human nature has not improved since then.

Read honestly, the individual right to keep and bear arms in defense of self and country protects every kind of weapon one could want and afford. However, I am certain that the right can survive in a post-Emerson textualist nation while still protecting us from nuts with nukes, if we impose reasonable limits on the exercise of that right.

I simply think we will have to look outside the Second Amendment to find the authority to do it.

3/19/2008 1:09 PM

SheaHeyKid said...

I think his last point is key: if you want to be true constructionist, I don't think you can use the 2nd Amendment to provide any limit on the definition of arms. I think you need to find another vehicle (new law) to do so.

3/19/2008 1:10 PM