Who’s a strict constructionist?

I am no constitutional scholar. I also confess to being a supporter of gun control, which would not make me popular with the neighbors if my opinions were known. Still, if I was one of these people passionate about appointing only strict constructionists to the bench, I would be alarmed by today’s ruling on the Second Amendment by the Supreme Court. Sorry, this ruling passed by judges who claim to be strict constructionists is so expansive that it would make members of the Berger Court shudder.

In their decision today, the Supreme Court struck down a long-standing District of Columbia gun control law, which prohibited its citizens from privately possessing and storing guns within D.C. The court’s interpretation of the Second Amendment, which remarkably is the first time it has seriously interpreted its constitutionality, is also at great variance with established precedence, which hitherto has generally been a strict constructionist interpretation.

Granted, trying to interpret the amendment as it is written is hard because it can be interpreted in so many ways. In case you have not read it, here it is in its entirety:

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.

With today’s Supreme Court ruling from our new supposedly “strict constructionist” court, the amendment can be shortened to simply:

The right of the people to keep and bear Arms, shall not be infringed.

Despite centuries of precedence by lower courts that have suggested localities have certain rights to regulate possession of guns, the court has said that all Americans have the constitutional right to possess firearms and keep to them in their homes. It acknowledged that subsequent rulings may refine this right, but right now, it looks open ended.

I hope that the right does not extend to bazookas and automatic weapons, but right now that is not entirely clear.  Someone will doubtless press the issue in court. After all, why should a law-abiding American not have the right to possess a shoulder-fired cruise if he wants to? It is nothing more than a very big gun and the court has now said that you have the right to possess guns. The argument may sound silly to most Americans. Yet there are plenty of people that will passionately argue that you should have this right. After all, there is nothing in the amendment that defines constitutes an “arm” is. Some dictionaries interpret “arms” to be armaments, which are not limited to firearms. A crossbow was construed as an armament for hundreds of years. Why not a shoulder-fired cruise missile?

I guess what I was really hoping for from the Supreme Court was an answer to the question that should draw a strict constructionist to it like a duck to water: in the event that a government does not choose to have organized militias, can it then infringe its citizens’ right to bear arms? Most of us have no idea what the heck a militia even is because we have never seen one. In Colonial times, a militia was a temporary entity consisting of local men that responded to threats of invasion or insurrection. As people back then were widely scattered, it was a practical solution to a general problem. If it wasn’t the French or the British out to kill us, it was the American Indian.

If militias were permanent entities, they would not be militias; they would be armies. During the Revolutionary War, there was a Continental Army. They could not be everywhere, however, which is why they were frequently supplemented by local militias. Some battles of the Revolutionary War were fought entirely by militias. The “well-regulated” portion of the amendment came from the Continental Congress, which required all militias be constituted by the government. With people very spread out and with the need to constitute armed militias quickly, it was entirely reasonable to ensure that the constitution did not infringe on the people’s right to bear arms. Failing to do so might jeopardize national security. Arms were also necessary by the populace for basic protection and for food. Unless you lived in a city or town with a good police force, not owning a gun was foolish.

That of course was then and here we are more than two hundred years and 300 million more people later. The amendment is still there but the militias are long gone. Perhaps some state still requires able-bodied men to register with their local militia. I am not aware of any of them. An argument could be made that members of the National Guard are part of a militia. Except for some annual training or when called into dubious wars like in Iraq, they stay home and live otherwise ordinary lives. In modern times though, the National Guard has never been called out to suppress invasion or insurrection. Moreover, those armories that you see in most major cities are there not just to host special events. They were built to serve the needs of the National Guard. Firearms can and often were stored in these armories. In times of trouble, they serve as a convenient location for local members of the National Guard to assemble. If there is no local armory, it might make sense for National Guard members to store arms in their home. It would save time in an emergency.

A militia as it was understood when the Second Amendment was written though is obsolete. It is possible, though unlikely, that in the future we will need militias again, maybe to repel a future Santa Anna and his army. Thus far, illegal immigrants crossing are border have been considered a matter of local law enforcement, with occasional help rendered by the local National Guard. It would be stretching credulity to say that the National Guard was assisting in order to repel invasion.

It strikes me that a normal Supreme Court should look at this history and context, look at the precedence in the lower courts, then look at how modern society is organized, and rule that until such time as militias are needed again, the state does have the right to restrict the possession of arms by citizens. That appears to be in part the logic used by the District of Columbia government. After all, it is only 68 square miles. Its danger of invasion or insurrection is nil at this point. Moreover, if the danger existed, the D.C. has an armory near RFK Stadium. (The Beatles performed there.) One can certainly argue that D.C.’s gun ban has proven ineffectual, given the number of homicides that occur annually within the city. One can also argue that because no militia is needed to protect the city from invasion and insurrection, and given the problem of gun violence in the city, that the public safety requires limiting firearms to law enforcement individuals only.

The Supreme Court obviously did not buy this interpretation, although D.C.’s ordinance is but a more liberal interpretation of ordinances that exist or have existed in many states and cities. Justice Antonin Scalia says that the historical context of early America supports the majority opinion that he joined. Maybe so, but this is a strange argument from a strict constructionist, who is supposed to apply the text of the law as written, and no further.

Warren Burger and Thurgood Marshall though would have understood where these supposedly strict constructionists were coming from. They would also agree that these justices are being hypocritical to the judicial philosophy they claim to follow.

One response to “Who’s a strict constructionist?”

  1. You should take the time to read the actual decision. Obviously from your comments you have not. I was surprised to find how much explanation of historical context was given.


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