Not since the conservative commentariat bought into the notion of a permanent Republican majority have the professional analysts of the right been more off-base about a political event than they have in the post-mortem of the Supreme Court’s recent ruling in the case of the Washington, D.C., gun ban. The court’s acknowledgement of an individual right to gun ownership is being trumpeted as a major victory, and while it is certainly a good thing, the careful observer will note that seeds of strategic defeat have been sown even as the tactical victory is harvested.
It is true that Heller is not, in itself, a defeat for freedom-loving forces who do not wish to see law-abiding citizens forcibly disarmed by the state. Had the decision gone the other way – and it is deeply troubling that four justices saw fit to invent a fictitious collective rights interpretation – then Heller would have been a terrible defeat for those who still believe the U.S. Constitution is more than just another piece of paper. Upholding the D.C. gun ban would have been tantamount to a confession by the court that there is no written law anymore, that American law is nothing more than the dynamic product of fevered legal imaginations belonging to an unelected legal priesthood.
But it is important to distinguish between non-defeat and victory. Given that most conservatives and historically literate liberals understand that the Second Amendment was written to prevent the government from disarming the citizenry in an attempt to obtain a military advantage over them, a victory would have underlined this fact and called into constitutional disrepute the complex system of licenses, registrations and other obstacles that are intended to keep the American people less well-armed than their military. Since the scope of Heller did not encompass most of these issues, it’s not surprising that it did not serve as a vehicle for the re-enshrinement of the Second Amendment as it was originally intended. Even so, certain aspects of Scalia’s opinion are quite problematic when one considers them in light of the inevitable future interpretive wrangling:
… [T]he most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”
The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.
Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.
It is obvious that the second sentence is historically absurd. As the etymology of the term indicates, a “militia” is a fundamentally military term, and as even a brief review of the facts will demonstrate, the weapons possessed by revolutionary militias were specifically designed for military use and were employed in a military capacity. While it is true that muskets had other, non-military uses in the late 18th century, it would be interesting to hear Justice Scalia attempt to explain just what the non-military purpose of the bayonets required of the New Jersey militia might have been.
Like many a Supreme Court justice before him, Scalia is playing word games, in this case with the word “specifically.” He is most likely doing so to avoid the logical consequence of the most rational and historically accurate perspective on the amendment, which is that an American citizen has the same right to possess a fully automatic .50 caliber machine gun, an M1 Abrams tank or a nuclear-armed cruise missile that the U.S. military forces do. The 18th century in which the Constitution was written was a rare time of relative equality between the highest and the lowest; unfortunately, the technological curve presently finds us in a time where the expense of the most lethal weaponry is far beyond the reach of the average peasant.
It should come as no surprise that the king’s courtiers wish to defend his privileges, ancient texts to the contrary be damned. While Heller is not the defeat of individual rights that it could have been, my concern is that it could prove to have lain the groundwork toward a legal path to effectively disarming the American public over time. The king has graciously allowed the peasants to retain their pitchforks; the question of whether their right to own a horse, a suit of armor and a steel-tipped lance still remains unanswered.
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