Gun Control Decision Highly Confusing to a Layman

Written by: myles s on Jul 3, 2008 12:08 PM EDT

Gun control decision

is highly confusing to a layman

Well, constitutional law experts having been vetting the recent Supreme Court ruling striking down D.C.’s hand gun ban, with varying opinions. But to a layman, the ruling makes no sense whatsoever, and the majority opinion written by Justice Scalia is even more non-sensical and highly confusing.

Further, the opinion written by Scalia (who claims to be an “originalist" strictly interpreting the Constitution) again shows him, and others on the majority, to be quite the opposite and he seems to have based his opinion on politics, pure and simple.

The Second Amendment right to bear arms is quite specific and clear. It states:

“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.”

So why am I confused? Or is it Scalia who is confused?  Well, in his opinion he states:

“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever and for whatever purpose”.  Well Mr. Strict Constructionist, that is not what the Amendment says at all!

To begin with, it states “the right of the people to keep and bear Arms”. It does not define what kind of “Arms” (in caps). It places no qualifiers or restrictions on the type of arms. There is no “interpretation” or restrictions contained in this clause – you have just made a new law, which I have always believed is the province of the Congress.

Further, the Amendment refers the right to keep Arms as an adjunct to being necessary to a “well regulated Militia”.  Although the court did expand that need to include defense of ones home, the original need was maintaining a “militia”. A “militia” is an Army. And Army needs...uses...acquires...maintains a variety of weapons to perform its mission.  Thus, a strict interpretation of the Amendment would allow “the people” to own and keep such weapons as machine guns, assault weapons, bazookas, even cannons if they are to fulfill the need to have a well regulated Militia. As an aside, using the court’s expanded need to own handguns to “defend ones home” such powerful weapons might prove useful (especially against a handgun).

Many pro gun advocates – even the NRA – have backed away from this possibility.  Why? Because they know the American people would be adverse to such a situation. They know that having such weapons in the hands of ordinary people is absurd. Precisely! Absurd! But having said that, what is the difference of people being killed by a handgun or a machine gun? Are you any less “dead”?  If the court, and Scalia, want to prevent ownership of machine guns because they are dangerous to the security of a community then they have to recognize that handguns are no less dangerous, and indeed, almost certainly more dangerous because of their price, availability, concealment and criminal history.  The entire logic of the court’s decision makes no sense – at least not to a layman.

Probably not to a jurist either. While Saclia’s majority opinion has been widely published, Justice Breyer’s minority opinion reflects the same inconsistency of the decision that I, as a layman, see. The Breyer dissent notes:

"According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun."

So what is to be done now that this decision is rendered? Well, as a strong gun control advocate, my best suggestion would be to introduce in Congress a bill which would give the right of individuals to own “any kind of weapon a person desires to own in accordance with the right conveyed in the Second Amendment of the Constitution of the United States”.  Let’s see how pro-gun advocates would vote on such a bill.  They are the ones consistently defending those rights given in the Second Amendment, there should be no hypocrisy here.  If they equivocate, then it acknowledges that the Amendment must be interpreted in the context of a civilized society living in the 21st Century; not the needs of a “well regulated militia” as were needed in 1776.  Then let (as Breyer suggests) the court render a decision on that new law.  And should Scalia and the majority again decide on a politically-based decision which restores and expands the wild wild West to our cities’ streets – then we all better hope “In God We Trust”.

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Location: minnetonka, MN 55345