Sunday, January 10, 2016

On the right to Bear Arms

let's review the 2nd Amendment:

* The text is studiedly ambiguous; clearly the first clause points toward collective rights - bearing arms within the context of a "well-regulated militia" - and the "right to bear arms" is contemplated as a right of "the People", not of individual citizens.

* The Supreme Court has ruled otherwise (rather recently) but the ruling is controversial and dubious. Where else does the Constitution use the term "the People" to refer to citizens as individuals?

* Such an interpretation is hardly an "originalist" position. Clearly what the framers meant was the right of local communities to train, store and take up arms in defense of their communities against invaders or marauders. The means of defense were not to be the monopoly of a standing army, which the framers feared.

* The notion that the 2nd Amendment right to bear arms extends to license-free purchase or sale of any armament is debatable (to put it mildly) even under the present interpretation - which for now is the law of the land. But one may disagree with this current interpretation without betraying constitutional principles - just as we ultimately disagreed with Plessy v. Ferguson's racist "separate but equal" ruling on segregated schools.

We will have to wait for a new Congress and one or two more new justices to revisit this issue. We may have both sooner than we think, given the self-destruction of the Republican Party, and the surprising popularity of Bernie Sanders.

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