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Judging the 2nd Amendment



One of the most important Supreme Court cases in recent years will come before the court tomorrow as the 2nd Amendment is put on trial. This is one of the few shadowy corners of our Constitution, having received very little High Court interpretation. As such, the justices will have to determine the meaning of the 2nd Amendment without much precedent to hide behind.

First, the amendment in all its archaic English glory:

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.

But what does that mean? If it’s just a provision forbidding laws limiting individual gun ownership, why the “well regulated militia” line? But if it just has something to do with to the militia, why the whole “right of the people … shall not be infringed” line?

What if, as some have argued (PDF), “well regulated” means “properly operating” in 18th century English and not “tightly controlled by government” as it would likely mean in contemporary writings? Perhaps the “security of a free state” refers to private gun ownership as a check on the standing army. And does the militia refer to all conscript eligible citizens or does it refer to a standing militia/national guard? And does the amendment only apply to the federal government or must states obey it as well?

This is not a simple case and anyone who believes it is straight-forward is probably placing personal politics over judicial interpretation. I tend to think the 2nd Amendment does indeed grant us the right to gun ownership and that the District of Columbia law is unconstitutional. But I’ll be quite interested to see not just how the court rules but how the justices frame their arguments. I’ve read a lot of interpretations of this amendment, it’ll be nice to finally have the great minds of the High Court provide their opinion.