The following article originally appeared in Grand Junction’s July 7 Free Press.
Supreme Court issues spirited gun ruling
by Linn and Ari Armstrong
The Supreme Court’s June 26 Heller decision affirmed the individual right to own a gun just in time for the celebration of our nation’s Declaration of Independence.
Unfortunately, some of the negative commentary we’ve seen fails to do what the majority decision by Antonin Scalia does: take seriously and answer opposing arguments. Instead, some critics dredge up the same tired arguments to claim the Second Amendment means something different that what it clearly states.
Obviously, we cannot review the entire decision here, yet we’ll highlight some of the more spirited debates. For the entire decision see SupremeCourtUS.gov. See also FreeColorado.com (June 28), Volokh.com, and DaveKopel.org. (We congratulate Kopel, who works out of Golden’s Independence Institute, for his contribution to the victory.) For extensive documentation, see DCGunCase.com.
Incidentally, we were pleasantly surprised to see listed with this last source, joining the National Rifle Association, a supportive brief from the American Civil Liberties Union, which argues “that the Second Amendment does protect an individual right to keep and bear arms…” Lest the matter be considered only a conservative issue, Pink Pistols and Gays and Lesbians for Individual Liberty also filed a supportive brief.
On to the debate! The Second Amendment states, “A well regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Does the first part limit the second?
Scalia argues that “the former [clause] does not limit the latter grammatically, but rather announces a purpose.” Referring to other historical cases, Scalia notes that “a prefatory clause does not limit or expand the scope of the operative clause.” In answer to Stevens’s claim that such a reading ignores the force of the first clause, Scalia replies that “operative provisions should be given effect as operative provisions, and prologues as prologues.”
The “right of the people” obviously refers to an individual right, not only in the Second but in the First and Fourth Amendments. Scalia argues, “Stevens is of course correct… that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined ‘assembly’… And Justice Stevens is dead wrong to think that the right to petition is ‘primarily collective in nature’,” according to historical sources.
Does “bear arms” mean only to carry weapons as a soldier? No. In pretending otherwise, notes Scalia, Stevens and others “manufacture a… definition, whereby ‘bear arms’ connotes the actual carrying of arms… but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been appraised of no source that indicates that it carried that meaning at the time of the founding.”
Restricting the phrase “would cause the protected right to consist of the right to be a soldier or to wage war — an absurdity that no commentator has ever endorsed,” Scalia adds. Moreover, if “bear arms” means only to serve as a soldier, then what does “keep and bear arms” mean? Scalia writes, “It would be rather like saying ‘He filled and kicked the bucket’ to mean ‘He filled the bucket and died.’ Grotesque.”
Stevens relies on a Linguists’ Brief to support the notion that “bear arms” means only to serve as a soldier, Scalia notes. That brief dismisses other non-military uses, such as “bear arms… for the purpose of killing game,” as “expressly qualified,” Scalia quotes. In other words, “bear arms” supposedly only has non-military meaning if used in a sentence that clearly states some other purpose.
Scalia replies, “That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics).” While “a modifier can limit the purpose” of bearing arms such as to killing game, that hardly suggests the unqualified right “to keep and bear arms” refers only to the military. The fact that bearing arms can be qualified — for military use, for killing game, for self-defense — shows that alone it carries no military implications.
We’ll stop there. We bet you didn’t know that Supreme Court decisions could be not only refreshingly sensible but funny. What’s better than making fun of pedantic linguists? (We imagine they’re still trying to figure out the bit about kicking the bucket.)
With his Heller decision, Scalia has done more than protect a Constitutionally enshrined right. He has assured the people that at least some in government won’t distort the clear meaning of our founding documents to allow limitless state power. While we dispute some of the exceptions Scalia allows, we’re gratified to learn that, here in America, individual rights still matter.
Thanks to Scalia’s well-reasoned analysis of the meaning of the Second Amendment, the pretense that it protects only state militias has not merely stubbed its toe on the bucket but kicked it completely.
Linn is a local political activist and firearms instructor with the Grand Valley Training Club. His son Ari edits FreeColorado.com from the Denver area.