Heller skelter

July 1, 2008

A little bit of 2nd Amendment disingenuousness from the Chicago Tribune, which, once upon a time, had a conservative editorial page. I’m not sure what it is now:

Repeal the wnd Amendment.

No, we don’t suppose that’s going to happen any time soon. But it should.

The 2nd Amendment to the U.S. Constitution is evidence that, while the founding fathers were brilliant men, they could have used an editor.

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.

If the founders had limited themselves to the final 14 words, the amendment would have been an unambiguous declaration of the right to possess firearms. But they didn’t, and it isn’t. The amendment was intended to protect the authority of the states to organize militias. The inartful wording has left the amendment open to public debate for more than 200 years.

[. . .]

On Tuesday, five members of the court edited the 2nd Amendment. In essence, they said: Scratch the preamble, only 14 words count.

Anyone who bothered to read the court’s decision — Tribune editors obviously did not — would realize that all nine justices adopted the individual-rights view of the amendment. Yes, all nine – including the four dissenters — rejected the collective-right view the Tribune editors and so many others still bitterly cling to. I hate to throw one of the liberals’ favorite phrases at them, but that debate is over, folks.

And that is a victory for gun-rights advocates in the ruling, but perhaps the only one. Other than that, I’m beginning to think it’s a little premature to consider Heller a major reason to celebrate. About the only thing the ruling affirmed as a certainty is the right to have a firearm for self-defense in the home. Anything else is up for grabs, including concealed-carry laws. There’s going to be a lot more litigation before the dust settles on this one.

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One Response to “Heller skelter”

  1. Steve T. Says:

    The Tribune’s selective thinking won’t permit them to see the obvious logic problem — that treating the preamble’s mention of state militia as the entire right and ignoring the complete sentence which comes next makes even less sense, in fact nonsense, of Article II.

    As I’ve said before, the best reading of the intent, given all the history highlighted in the Scalia opinion, is this – because the states have need of militias, the American people’s natural right to arms in their own defense must not be touched. In short, the armed militia is named as one pressing reason why individuals must always continue to have their full counterbalance.

    That reading is why, in the 1939 Miller case, the court’s test for any gun legal for civilian ownership was whether the military used the arm. If so, the right to it was protected under Article II. (Scalia confirms this.)

    If the military had been shown in 1939 to have utilized the sawed-off shotgun, the court would have, by its own stipulation, found for Miller. The new SC finding brings that military-use test back into historical focus in terms of considering what arms are protected under the 2nd Amendment.

    The Scalia opinion does suggest, by the by, that concealed carry regulations need not be struck down by this decision, but also says that open carry laws in some jurisdictions are constitutional. There is no finding that the right to bear arms should be infringed per se.

    Actually, re Miller, the sawed-off shotgun (trench broom) had been used in war, but Miller’s counsel failed to present evidence; in fact, Miller’s attorney didn’t even show up for court at a climactic point and the decision was concluded in his absence. This wouldn’t be more than a historical factoid were it not for the fact that liberals have long and disingenuously leaned on Miller to prove the constitutional opposite — that military arms were to be off-limits to civilians.

    Scalia’s scholarly analysis marvels at the way the common-military-use test demonstrated in Miller has been turned on its head since.


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