A Solid Interpretation

The Supreme Court and the Second Amendment

Editor's Note: Thomas's commentary is in blue and Marcie's is in purple.

"Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"

Your esteemed Honors. Before us this day is a question that has seemingly plagued scholars of the law for about one hundred years, and that is the question of whether the Constitution grants us the right to keep and bear arms, as it is enumerated under the Second Amendment. While the majority of states have abided by that which is written, the residents of the nation's capital have been denied this right since 1975 when the Firearms Control Regulations Act was enacted supposedly to combat a serious crime problem. It is now time to reexamine that move by the city fathers of Washington, DC. We believe, your Honors, that the law is unconstitutional, and that the Second Amendment is not a collective right, but rather is an individual right; protecting the citizen's right to own a firearm for their personal protection.

Exhibit A -- It means what it says

Much hay has been made over the Second Amendment with one side proclaiming it only a collective right, and further claiming that this right exists only for a non-existent militia. Others state that it is an individual right and that was the original intent of the Framers. Indeed, we can go back to the congressional record in December of 1791, after the ratification of the Bill of Rights, to see that the latter belief is closer to the original intent of the Framers. Then, the Second Amendment was written as thus:

"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."

This was how the amendment was taught to the people up through the 19th Century. From that point forward the amendment was "revised" with two additional commas -- one between "Militia" and "being," and one between "Arms" and "shall" -- breaking up the structure of the amendment. This not only made it grammatically incorrect, but also raised doubt as to what the intents of the Framers actually were. But if we are to examine it, as it was originally written, we see there is no ambiguity to what was meant.

Exhibit B -- The overall intent

Had this minor revision not been made, and had it been maintained to reflect what was originally approved, then there would be no conflict today. For it specifically states in the amendment that "the right of the people to keep and bear arms shall not be infringed." It doesn't say the right of the militia. If it said the latter, then there would be no argument regarding collective versus individual rights; in such a case it would be a collective right, applied to the states and the federal government. But that's not how the amendment reads. It precisely cites the people, in general, and meaning the citizenry of the United States to be protected from government encroachment in this realm. "Shall not be infringed" means that their rights shall not be taken away or impugned without due process of law as enumerated under the Fifth and Fourteenth Amendments. The residents of the District of Columbia weren't given any sort of due process to resist the ban, nor were they given a reason, aside from the usual prattle about protecting the citizenry from rampant crime. The city fathers did what they thought would help despite the fact that statistics show that when a populace is disarmed they become victims of crime, not safer from it.

Exhibit C -- The facts of the matter

In 1975, Washington, DC, was suffering from a severe uptick in crime. Violent crime had increased by over 20%, and gun-related violence had soared. In an effort to curb this, the Firearms Control Regulations Act was enacted. People, prior to 1976, could still own and retain their firearms provided they were registered. Post-1976, no one, save a law enforcement officer, was allowed to own a firearm. Instead of curbing the violence in the nation's capital, the ban seemed to encourage it's growth until it reached a peak in the 1990s as Washington, DC was known as the "murder capital of the United States," with more murders per capita than Detroit, or New Orleans, or even New York City. The act was a dismal failure, and many people have sought to have it overturned. Before, no court was willing to take on the subject until this year when the DC Circuit court of Appeals agreed the ban was wholly unconstitutional. The DC court claimed, and rightly so, that the Second Amendment was an individual right and the District of Columbia's law against owning a firearm infringed the citizen's right to possess one.

Exhibit D -- Why we have it

The Second Amendment served two purposes when it was ratified. First, it calmed the worries of the Anti-Federalists at the time who were concerned with a standing federal army; an army they believed could be used in the name of tyranny against the populace. By not only giving the people the right to defend themselves via state militias, but also being allowed to own the singular thing that made them free men -- a weapon. No other nation on the face of the earth ever let it's citizenry be armed out of fear that those people may one day turn those arms against a despot ruling over them. James Madison in Federalist #46 observed this very point, and made it a point that this nation could trust its citizens to be armed, not only for their protection, but the protection of the nation as well. This is what made us inherently different from any other nation, and it also guaranteed that we would be protected against any enemies, be they foreign or domestic. The Framers knew then that liberty was far safer in our hands than it was in the hands of a centralized federal government. While the government existed to protect the nation and provide for it's general welfare, the Framers understood that the government couldn't be everywhere to absolutely ensure safety. So, the issue of individual safety and security lay in the purview of the armed citizen; able to protect his home and his family from whatever threatened it.

In closing it should be noted that while we have adhered to a literal and original interpretation of the amendment, it changes little meaning. The militia's right was not the one protected, but rather the right of the people was. As with all aspects of the Bill of Rights, the Second Amendment dealt specifically with individual rights and liberties. The individual right in the Second Amendment is no different from those enumerated under the First Amendment, with regard to speech, religion, and assembly. Nor is it any different from those listed under the Fifth Amendment with regard to the process of trying a citizen, and the rights they, as an individual, possess. So, why would the Framers deviate from the individual rights of a citizen on one amendment? Even the Tenth Amendment, which refers to "States" collectively digresses to name the people -- the body politic -- as the ultimate target of who is, in essence, in charge. The answer, your honors, is that they did not mean the amendment to be collective. They meant that the people's right to own a firearm would be protected from usurpation by the government, specifically the federal government. Nothing says that the government cannot regulate firearms, deeming what is and is not an acceptable one to own, but it does state that their right to own one shall not be infringed. We take that to mean that the government may not ban their ownership completely. This is what the city fathers of Washington, DC, did, and it is unconstitutional. Your honors, we rest our case.

He is a scholar of history, especially American history, and the United States Constitution. She has finished her undergrad studies, graduating with a BA in English and history and will move onto law school this fall where she will specialize in Constitutional Law. Together, Thomas and Marcie form the vanguard of conservative opinion at Hamilton, Madison, and Jay -- a blogging site devoted to advancing the conservative cause by challenging the liberal lies and deceit spread by the media, and espoused by the Left in general. Both are expert debaters, and have beaten many liberals into submission with their collective wit, and unmatched knowledge. The pair is married, and resides in Arizona

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