Individual Liberty — Individual Responsibility 

The right of the people

I was watching for this one. As far as I am concerned it is the single most important case that the Supreme Court has handled this year (although there have been a couple of abominable decisions that come close… Boumediene comes to mind). I still don't think that it should have been necessary, after all the plain wording of the second amendment to the Constitution is there for all to see.

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.

A plain and simple reading of this should make it clear. "The right of the people to keep and bear Arms, shall not be infringed." Nothing there says anything about hunting or personal defense. Nothing there says anything about "assault weapons". Further, nothing there says anything about the kind of weapons at all.

People have argued that the bit that says "A well regulated Militia, being necessary to the security of a free State" implies that the right of the people isn't an individual right. I interpret it differently. I believe that that part of the second amendment actually has implications for the kind of weapons the people have a right to posses. You see, that section does imply that the people are to be able to use their weapons in the defense of the state. And that implies that the people ought to posses the very best.

Naturally politicians disagree with this. And sadly, so too did the court in 1939 and Justice Stevens today. In 1939, the court held that the kind of arms we may posses can be restricted (shall be infringed). Today Justice Stevens still asserts that reading the plain meaning of the words "the right of the people" are secondary to the prefatory clause and that the court's opinion is based on "a strained and unpersuasive reading of the amendment's text".

Predictably, the court was split on the issue of whether the plain wording of the second amendment protects an individual's right to keep and bear arms. It was a 5–4 decision. Even without reading the ruling it ought to be plain which justices were in the majority and which were dissenting. If you're into keeping score, Justice Scalia, Justice Thomas, Justice Alito, and Chief Justice Roberts all were of the opinion that the second amendment protects an individual right. Justice Stevens, Justice Souter, Justice Ginsberg, and Justice Breyer all held that the framers didn't mean what they said when they wrote "The right of the people to keep and bear Arms, shall not be infringed." That leaves the ever wishy-washy Justice Kennedy — the man that can't seem to make up his mind whether to trust in the founders' wisdom or substitute his own policy preferences for the plain meaning of the Constitution — to provide "the swing vote" once again.

Think about it folks. Elections matter. This ruling came down to the vote of one man. One man decided that I can keep my guns. One man struck down Washington D.C.'s gun ban. This time he sided with the plain meaning of the words of the Constitution, and with the founders. He doesn't always do so. He may have done so this time because the majority opinion still left the door open for infringement of the people's right. The New York Times put it this way — "The court concluded that the amendment protects an individual right to bear arms, but it also said that the right is not absolute, opening the door for more fights in the future."

Elections matter. This single decision may swing my vote this November. After all, I'm pretty certain what sort of people Sen. Obama would choose to nominate for the Court. I believe that Sen. McCain would choose originalists, but then again he's disappointed me before. One things for sure, the four years starting on January 20, 2009 are certainly going to be interesting ones — no matter who we choose.

I applaud this ruling. I deplore its necessity. And I deplore once again the fact that we live under a judicial oligarchy.

Update: Carl has a link to the actual opinion. Read what Justice Alito had to say for yourself, and Justice Steven's arguments too. I find it amazing that, as remarked upon earlier today by Sean Hannity, the four dissenters in this case fail to understand that the Constitution exists to place limits upon the power of government. Their world view seems to be that the framers could not possibly have wanted to limit the power of government, so they couldn't have meant what they actually said.

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