Aaah The Good Old Second Amendment

June 30, 2008 | NeW Staff

Thanks to everyone who came to the NeW conference on Friday! It was great to see you!

In all the excitement preparing for the conference, my attention was slightly diverted from an issue that would usually have held my unwavering focus. On June 26 the Supreme Court announced it would uphold the previous decision of a lower court to strike down the ban in D.C. on hand guns.

In one dissenting opinion, Justice Stevens called attention to the historical context of the Second Amendment, highlighting the connection to the Militia:

“The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”


In the decision delivered by Justice Scalia, the focus is on the language of the Amendment itself:
“The Second Amendment provides: “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.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, ….Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation. 

    The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service…. Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home….

    The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose…..Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose…..     Logic demands that there be a link between the stated purpose and the command.”

     The decision goes on to break up the phrasing of the Amendment word by word and stresses the historical importance of the right of the individual to defend himself.

      Obviously, I am missing many main points, and butchering the points to which I call attention. However, reading the opinions I was struck by two things. First of all is how blessed we are to live in a nation where the discenrnment of justice is so meticulous. The effort that goes into searching for the true meaning of the Constitution and applying it  to present questions amazes me. Some may say there is too much stress put on the power of the courts and others may doubt the motives of the Justices. One thing that is impressive to me, though, is how one little document is analyzed so thoroughly, and is used so effectively to support two quite opposite views. 
       This leads me to my other observation concerning the perceived latitude in the interpretation of the Constitution. This one document written so long ago is used to decide current legal issues, the understanding and implementation seems to become more difficult. Some would perhaps argue that the Framers could never have known what our nation would become, and because the Constitution does not address certain topics it should not be the only factor in administering justice. I guess I wonder what else we have. The Constitution is what made united this country and what gives it any sort of basic  framework: a starting point (and ending point) for the Federal Government. Thoughts?

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