One of the most important decisions I will ever see was handed down by the Supreme Court today. The Supreme Court today definitively (if by only a narrow margin) resolved the question of whether the Second Amendment confers an individual or collective right to keep and bear arms. The author of the majority opinion will tell you what the outcome was: Atonin Scalia.
The 5-4 majority opinion, finding an individual right to own firearms, is actually fairly modest in its scope – it does not purport to set forth the contours of the right, nor the applicable standards for jurisprudence concerning the right, nor does it muse on the question of what kinds of regulations on the exercise of the right are Constitutionally permissible.
All we know is that a law that is, in effect, a flat ban on owning handguns violates that right. The rest, according to the majority, will be left to future cases. That is the basic holding of District of Columbia v. Heller.
John McCain has a good issue to run on now, one that will sound a little bit familiar to others interested in the interplay of law and politics: “My fellow citizens, you are one vote away from losing your individual right to have a gun. How do you think a Justice appointed by President Obama would vote if this issue came before the Court again?” An interesting political tonic to the invocation of Roe v. Wade as the holy grail of Constitutional law, I should think.
More importantly, Scalia is right on this one. If the right to own weapons is one that resides in groups – specifically the military and more specifically the National Guard – then the concept of a “militia” is eviscerated and the Second Amendment is rendered ultimately a nullity. The National Guard is already an organ of the state. The state is an entity which, by definition, has the legitimate right to use force to achieve its goals.
There was never any doubt (at least to me) that the National Guard or other military organs of the state could use guns. If the Second Amendment did not exist, there would still be a military (other sections of the Constitution authorize the creation and maintenance of an Army and Navy). So the Second Amendment must be aimed at something more individualized than the military.
That means it is an individual right. What’s more, the Bill of Rights was created to protect individual rights, and it is entirely consistent with history to note that several states enacted portions of their Constitutions to state rights they believed already existed. So to say that the right was there all along and the Second Amendment just explicated it seems to me to be a perfectly valid insight into the way the Framers were thinking back in the 1780’s and 1790’s.
I don’t own a gun myself. No real desire or interest. But I’m very glad that I have the right to if that desire should change.
