Second Amendment: The Court Unguided

The Second Amendment to the Constitution 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.

Clause One (the prefatory clause):

A well regulated Militia, being necessary to the security of a free State,

Clause Two (the operative clause):

The right of the people to keep and bear Arms, shall not be infringed.

On June 26, the Supreme Court held, in District of Columbia v. Heller, that the District of Columbia's ban on handgun possession in the home, and its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense, violated the Second Amendment. The Court held that:

• The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
  
• The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.

My naive reading of the Second Amendment is that Clause One could be read as a condition or as a rationale.

Were the Framers asserting that a well regulated militia is (now and always?) necessary to the security of a free State, as a rationale in support of a permanent individual right to bear arms, or were they conditionally asserting the right to bear arms, for as long as a militia is necessary for security?

The syntax is analogous to: "Tobacco being a critically important crop to our economy, cigarettes for export shall not be taxed," which could be read as saying, "As long as tobacco is critical to the economy, exports shall not be taxed;" or as "Since tobacco is permanently important to the economy, exports shall never be taxed."

If the right to bear arms is asserted conditionally, and if the condition no longer exists, then the right in Clause Two is no longer asserted. The right is not denied (Clause One not being an "If and Only If" condition), but it is no longer asserted.

If read as a rationale (which I gather has been the usual reading) then the right is still asserted, but is no longer supported by the Amendment's rationale if a volunteer, self-armed militia is no longer necessary to the security of a free state.

District of Columbia v. Heller explicitly construed the Amendment to read: "Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." By not reading the prefatory clause as a limiting condition, the Court read the right as still asserted, even if unsupported by its original rationale.

The framers could have asserted the right without any rationale or condition. The fact that they framed a rationale/condition is significant. If that rationale is no longer operative, it affects the reading of the right. Given an absent condition / inoperative rationale, I think the Court was on its own. It was not forbidden from upholding the right to bear arms, but it was not compelled by the Second Amendment to do so.

Not everyone takes it as a given that the condition is absent or that the rationale is inoperative. Where I live in the hills east of Parkersburg, West Virginia, most or all of my neighbors are armed, and have told me that I should be armed. Their implied rationale seems to be that the law-abiding citizens of a community should be ready as an informal militia so that the community is ready to deal with lawlessness. They do feel an armed volunteer militia is necessary to the security of the community.

In Philadelphia and New York, a volunteer militia called the Guardian Angels patrols the subways and some neighborhoods. They are uniformed, at least to the extent of wearing a distinctive T-shirt and beret, but they are not armed. Some people would prefer that they were armed.

(Ironically, my local community here seems unlikely to be in any danger which would require an armed volunteer militia, while neighborhoods of Philadelphia and New York are in real danger which might seem to call out for a permanent, armed, volunteer militia of law-abiding citizens.)

Of course, these local volunteer militias are not the "well regulated" militias referred to by the Second Amendment, whose weapons were supplied by citizen volunteers, but which were sanctioned by and relied on for security by the early states. It seems unlikely that the Court will, in the foreseeable future, see local, non-state-sanctioned militias as fulfilling the condition/rationale the Constitution attaches to the right to bear arms.

The Court found its own rationale. It said that "the inherent right of self-defense has been central to the Second Amendment right."

The citing of "inherent" rights is regarded with suspicion by many people across the political spectrum, including me. If some rights are "inherent" and some rights are not, who identifies the "inherent" ones?

On the other hand, calling rights "inherent" can be read as a nod to the position that all rights and liberties are inherent until or unless the government can show a legitimate need to abridge those rights for the public good. This is my point of view, and I choose to accept the Court's assertion of an "inherent right" to bear arms as a way of saying that the District of Columbia has shown no legitimate need to deny that right.

Scalia's reliance on a "pre-existing" and "inherent" right of self defense means that he is not relying on the Constitution for legal authority: He affirms that the Constitution does not confer but only secures the right to self defense. He is essentially not relying on legal authority at all, but on a right that is prior to and independent of the law.