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One of the most difficult amendments in the Bill of Rights is the 2nd Amendment. It reads: “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 the commas in the Amendment, does it focus on the right to bear arms or on the right of the states to maintain a militia? This has been debated for decades and there is simply no consensus on its meaning.
The US Supreme Court has agreed to hear a case arising out of the District of Columbia on this Amendment. Washington, D.C. has the strictest gun control law in the country and it is being challenged. It not only bars the private possession of hand guns, but also requires rifles and shotguns to be kept in a disassembled state or under a trigger lock. That the Court has agreed to hear the case is unusual, because there has not been a major challenge to the meaning of the 2nd Amendment in years. Exactly what the 2nd Amendment was intended to do is at the heart of the dispute. Incredibly, there have been 69 briefs filed with the Court! The oral arguments of the case were heard last week and the sentiment of the court seems clear: There is a constitutional right for citizens to keep and bear arms. In fact, most agree that the Court will now affirm the individual citizen’s right to keep and bear arms. The far more difficult question is what kind of restrictions the government could constitutionally place, in the name of public safety, on this right. Like most rights in the Bill of Rights, there are limits to the right. For example, freedom of speech is not an absolute. Slander and libel, for example, are limits. So, what are the limits to the right to keep and bear arms? How far should we go in thinking about this right when it comes to self defense? Is a machine gun protected? Hence, if the Court rules that there is an individual right to keep and bear arms, this will hardly end the debate. Linda Greenhouse writes correctly: “For every constitutional right, the court chooses a standard of review, essentially a determination of how high a bar the government has to clear in order to justify regulation impinging on the right.”
In the debate and discussion so far, there are several points that are rather clear:
- Both sides of the debate are appealing to an “originalist” position. So, no matter how the Court rules, Heller v. District of Columbia (the official name of the case) will be an “originalist” decision. Point: The original meaning of the US Constitution is still very relevant.
- There is little doubt that the Court will recognize the individual right of citizens to keep and bear arms, not simply recognizing the collective right, as in a militia. This will be a significant step in settling this decades-old debate.
- The Court will recognize reasonable time, place and manner regulations, as it has done with all other individual rights. What those regulations might be are difficult to imagine right now.
- What the Court is also likely to clarify is whether this right in the 2nd Amendment is also protected by the 14th Amendment, which limits state powers. It is doubtful that the Court will not recognize that the right to keep and bear arms is among the “privileges or immunities of citizens” to which the 14th Amendment refers.
Conclusion: The Supreme Court will recognize the individual citizen’s right to keep and bear arms and will no doubt see it protected in the 14th Amendment as well. It will not clarify in any significant manner what types of reasonable restrictions the state (or individual states) can place on this right.
See Randy E. Barnett, Wall Street Journal (18 March 2008); Linda Greenhouse, New York Times (17 March 2008 and 19 March 2008).
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