From the Kennebec Journal & Morning Sentinel
A federal appeals court last week held that the Second Amendment to the U.S. Constitution protects an individual's right to own firearms and that the District of Columbia's restrictive gun control laws violate that right.
When the Supreme Court takes up this issue, it should recognize that the appeals court got it right -- not because it judged correctly whether gun control laws are, or are not, desirable in modern cities, but because it correctly discerned, and remained faithful to, the original meaning of the Constitution.
The text of the Second Amendment, though brief, has provoked intense debate.
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." The debate is about whether the amendment protects the states from having their citizen-militias absorbed into a national army or whether it protects the rights of individuals to own guns.
Those who hold the first interpretation base their reading on the explanatory first part of the amendment. In their view, that preface explains why the amendment was included in the Bill of Rights, and the civic purpose there expressed limits the protection afforded by the second, operative part of the text.
On this reading, "the people" who have "the right to keep and bear arms" is to be understood collectively, as meaning all the citizens of each state, who have the right that their legislature be free to organize and maintain a militia to protect the freedom of their state without interference from the national government. If this account is correct, the Second Amendment has no contemporary relevance, because the states long ago stopped organizing their citizens into militias, which have been replaced by the National Guard.
The appeals court rejected this interpretation, for two principal reasons. First, because it relies upon a strained reading of the text of the Second Amendment and, second, because it is inconsistent with the laws enacted the same time when the amendment was adopted.
Consider the text of the First Amendment, which protects "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." And that of the Fourth Amendment, which provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."
The rights of "the people" in the First and Fourth Amendments have always been understood to protect the rights of individuals against infringement by the government. Consistency demands that the right of "the people" in the Second Amendment be read the same way -- as an individual, not collective, right. Moreover, the use of the definite article in the phrase, "the right to keep and bear arms," suggests that the drafters of the amendment were referring to an individual right, like "the freedom of speech" or "the right to trial by jury," that was already recognized and enjoyed prior to the adoption of the Constitution.
Although it may be possible to read the right to "bear arms" as the right to serve in an organized militia, the right "to keep" arms cannot be so limited, and naturally supports the view that the Second Amendment protects the right of private individuals to own weapons. Early legislation indicates that, during the founding era, the militia included not only those forces actually organized by the state governments, but also embraced the vast bulk of the male citizens, who were required by law to provide their own arms and to notify the state of their ability to serve -- regardless of whether they were assigned to specific military units by the state.
This early legislation indicates that the prefatory part of the Second Amendment does not simply reference the state-organized militias, but rather expresses the founders" belief that freedom was best preserved in a state where every citizen possessed his own arms, which explains the reason why they included the individual right to keep and bear arms in the Bill of Rights.
Many people no longer believe that an armed citizenry is the best way to protect freedom; I do not believe it myself. But if we are to regard the Constitution as the supreme law of the land, as it claims to be, we must demand that our judges enforce the law as it is, not transform it by interpretation into the law we -- or they -- might wish it to be.
Joseph R. Reisert is associate professor of American Constitutional Law and chairman of the Department of Government at Colby College in Waterville.