That pesky Second Amendment

The Baltimore Sun

Back in 2008 I put up a short post on the grammar of the Second Amendment, pointing out that the introductory absolute puts the right of bearing arms in the context of the establishment of a militia.

It would have been interesting to expand on that in discussion, but, as you can see from the comments, the immediate response was vilification, under the assumption that I was one of those gutless liberals trying to take away all the guns.*

All I was saying is that the amendment as the Founders composed it put the right in the context of the militia, and I think that that is indisputable to anyone who can comprehend straightforward English.

But I am not an Originalist. The Constitution develops over time as circumstances change and it is reinterpreted in the light of those circumstances. Mr. Justice Douglas found in the penumbra of the document a right to privacy, and I agree that that doctrine is implicit in the text. Similarly, the Second Amendment has been interpreted over the years, leading to the current settled understanding that Americans have a constitutional right to the private ownership of firearms, a right as established as the right to privacy.

Any attempt to ban private ownership of firearms would require a constitutional amendment, and I don't see much likelihood of that, no matter how many schoolchildren die.

The question to consider is the degree to which the rights of the Second Amendment can be limited, because the Bill of Rights is not absolute. Libel law, for example, limits free speech, and I doubt that if Aztecs were still among us they could persuade the courts that human sacrifice was permissible as free exercise of religious belief.

You cannot legally take a car onto the road without demonstrating to the state that you are proficient to operate it without presenting a hazard to others. If we were in a sane polity, we would be able to discuss what reasonable limitations might be imposed on ownership of semiautomatic weapons, assault rifles, and other ordnance.

But, you may have observed, we have not behaved much like a sane polity in recent years.



*I am, in fact, one of those liberals who would not mind if every handgun and assault weapon in the United States not in custody of the military and police were melted down into slag and dropped in the Mariana Trench, but that was not the point I was making then, or now. Please attend to the above before commenting in Red Dawn-inspired hysteria that I am conspiring with Barack the Antichrist to disarm you.


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