Re” RownHall.com – 3/6/2008 – “Judging Gun Rights: Are They Inalienable?” – Ken Blackwell

Blackwell and Froman greatly oversimplify the legal issues involved here. The Supreme Court has many options including:

(1) Completely ignore the “A well regulated militia, being necessary to the security of a free state” prefix to the 2^nd Amendment, the specific provisions of control of the militia in the Constitution itself, the discussions in the Federalist Papers on the militia, and the noticeable scarcity of constitutional-era writing relating the 2^nd amendment to issues other than the militia and conclude that the 2^nd Amendment was a fundamental (rather than derived) individual right reserved to the people individually and that any regulation of arms violates the 2^nd Amendment. Under such an interpretation, the statement “The government has the power to regulate X”, where X is a weapon, is false, even if X = “atomic bomb”.

(2) Hold that firearms are beyond regulation but that ammunition is not, and that requiring guns to be kept and carried unloaded was not unconstitutional --- even strict constructionalist justices could (but probably would not) claim that if the Founding Fathers wanted ammo to be a protected right, they would have said “the right of the people to keep and bear arms and ammunition” or “the right of the people to keep and bear loaded arms” instead.

(3) Hold that the 2^nd Amendment refers to the rights of individuals but that reasonable regulation on firearms (and imposition of sale and property taxes on firearms) need not be construed as infringing on the “right of the people to keep and bear arms”.

(4) Hold that the Founding Fathers used “A well regulated militia, being necessary to the security of a free state” prefix to the 2^nd Amendment because they saw the right to keep and bear arms as a derived right (as opposed to such fundamental rights as religion, speech, press, association, and petition), and that in a conflict between firearm regulation and other more fundamental individual rights or government responsibilities under the Constitution, those other rights and/or responsibilities, being more fundamental, should take precedence. Only lacking such a conflict would the 2^nd Amendment holds absolutely.

The Supreme Court, based 2^nd Amendment interpretations #2, #3, or #4 presented above could conclude that the D.C. law as unreasonable regulation (which is what it sounds like to me) and is unconstitutional under the 2^nd Amendment on that ground.

The Blackwell and Froman understanding of strict vs living constructionalism is oversimplified as well. The words of the Constitution are not completely unambiguous. As one example, Article II Section 2 #1 makes the President “commander in chief of the army and navy” while Article I Section 8 #12-14 gives Congress the power to raise, support, provide, maintain, and regulate the army/land and naval forces. Notice that these two constitute two of our armed services; noticeably missing are the marines and the air force, not to mention the coast guard. Strictly constructed, the Constitution might justify the marines (surely we could fit it in somewhere as a land force) and the coast guard (as a naval force). To justify the air force, however, strict constructionalists must argue that the army and navy (or land and naval) forces were meant be taken together to mean the armed forces and not the army/land or naval forces separately, and thus the Founding Fathers actually intended to include all future armed forces beyond land and sea including air, outer space, cyberspace, etc. Another good example of constitutional ambiguity is the 2^nd Amendment. To me, it looks like a sentence in the form “X is true, therefore Y is true” where X = “A well regulated militia, being necessary to the security of a free state” and Y = “the right of the people to keep and bear arms, shall not be infringed”. I find it hard to imagine what other purpose the “A well regulated militia, being necessary to the security of a free state” serves in the 2^nd Amendment, and I must conclude on linguistic grounds that strict 2^nd Amendment supporters have no viable alternate explanation. And in logic, X→Y says absolutely nothing about Y when X is NOT true.

From a practical (but not a legal) stance, I see the right of keeping and bearing of arms subject to reasonable regulation dependent on context --- that is, arms for protecting home from forcible invasion, livestock from predators, crops from grazers, and arms for hunt in areas so designated, etc, should be much less regulated than bearing arms on city streets, in schools, national parks closed to hunting, etc.

I am a firm believer where ever and no matter what regulation, keepers and bearers of arms be subject to the strictest liability for any harm arising our of their keeping or bearing arms, regardless if the harm came from accident or design --- the act of bearing arms implies the bearers understand and assume all risk for their choice of bearing arms.