Shall Not Be Infringed . . .

There are times when a victory can be nearly as disheartening as a defeat. I felt this way in May when the United Methodist Church’s General Conference voted to uphold the status quo—with which I generally agree—in regard to the church’s stance on homosexuality. My ‘side’, if you can call it that, won. But it concerned me greatly (and still does) that, on an issue about which the Biblical teaching is crystal clear, 45 percent of the delegates at the conference voted to change the text to something ambiguous that made no moral statement whatsoever.

I feel very similarly about the recent U.S. Supreme Court ruling in District of Columbia v. Heller upholding the right to keep and bear arms. While I don’t think the ruling went quite far enough and it leaves many forms of gun control I consider unconstitutional intact, I generally agree with the sentiments of the decision and think it is a definite, concrete step in the right direction. What concerns me is not the actual outcome, but rather—like the UMC decision on homosexuality—how close we came to losing. Only five of the nine justices (about 56 percent) interpreted the words “the right of the people to keep and bear Arms, shall not be infringed” to mean . . . well . . . ”the right of the people to keep and bear Arms, shall not be infringed.”

The primary theses of the four dissenting justices (about 44 percent of the court) seem to be predicated on two points. First, that the first bit of the Second Amendment, reading “A well regulated Militia, being necessary to the security of a free State,” limits the right to bear arms to participants in a militia. Second, even more worrisome, that Washington, DC’s blanket handgun ban was a ‘reasonable’ limitation of the right to bear arms, akin to reasonable limitations on the First Amendment freedom of speech (e.g., you can’t yell ‘fire’ in a crowded theater unless the theater is on fire).

With regard to the first argument, I have to blame the founders for this one. The Amendment, while its meaning is clear when taken in a historic context, is poorly worded and utilizes commas in some of the most peculiar places I’ve ever seen. This is the full text of the Second Amendment, as written:

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.

I will concede to the gun control activists that, when taken on its own as a sentence, the Second Amendment does not make a lot of sense—especially to modern readers who see the word ‘militia’ and think of Timothy McVeigh and camps of crazy people out in the woods plotting to overthrow the government. But if you’ve studied the American Revolution—and in theory all Americans who have finished elementary school have, which makes me wonder if the four dissenting justices have an elementary school education—you’d know that the militia wasn’t some regimented standing Army, nor was it even akin to our National Guard or Reserve units. The militia was, essentially, an ad-hoc assembly of armed citizens willing to defend their country from tyranny.

That’s right, when the founders wrote the Second Amendment they meant all men of-age who cared about their freedom—whether or not they were in the Army or any kind of organized military unit—should be well armed and capable of protecting themselves and their country if necessary.

  • George Mason, the author of the Virginia Declaration of Rights that was a major influence on the Bill of Rights, said, “To disarm the people is the best and most effectual way to enslave them.” He also said, “I ask, sir, what is the militia? It is the whole people, except for a few public officials.”
  • Thomas Jefferson said, “The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.” He also said, “No Free man shall ever be debarred the use of arms.”
  • Samuel Adams said, “That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms.”

With regard to the second argument, I think it’s pretty far-fetched to believe that a blanket prohibition on most kinds of guns—and severe limitations on ownership/use of the few legal guns remaining—is a ‘reasonable’ limitation of a civil liberty the founders ranked so important that it appeared immediately following the freedoms of religion, speech, press, and assembly. If this passes for ‘reasonable’ these days, then the word means something completely different from what the dictionary says. Even if you avoid the easy argument (that the Second Amendment doesn’t have a provision for ‘reasonable’ limits on gun rights any more than it provides for ‘unreasonable’ limits), it’s hard to justify the gun ban as ‘reasonable’ when it has not had the intended effect of reducing gun violence in Washington, DC. More people were killed in Washington, DC, by gun violence in 2007 (143) than were killed in 1976, the year before the gun ban took effect (135). I guess I shouldn’t let the facts get in the way of a good argument, right?

In the face of all this documented history, in the face of all evidence to the contrary, the dissenting justices discuss at-length in their opinions how the Second Amendment does not necessarily permit the individual ownership of arms and how the gun ban is not an unreasonable limit on gun rights. They even go as far as to accuse the court’s majority of legislating new meanings into the Amendment from the bench—a laughable accusation from these particular justices indeed.

Justices John Paul Stevens (Gerald Ford [R] nominee), David Souter (George H.W. Bush [R] nominee), Ruth Bader Ginsberg (Bill Clinton [D] nominee), and Stephen Breyer (Bill Clinton [D] nominee) are the same four who—joined by swing-voter Anthony Kennedy (Ronald Reagan [R] nominee)—were in the majority in the Kelo v. City of New London ruling. This ludicrous ruling permitted the City of New London to steal individual property for private gain and created, out of thin air, a new, unprecedented power that state and local governments had never had before. The ruling also directly contravened the text of the Fifth Amendment with regard to property rights, which again makes you wonder if these folks have ever actually read the Constitution that they are charged with interpreting. Note that ‘interpreting’ does not equate to ‘rewriting to match your own individual views’.

Stevens, Souter, Ginsberg, and Breyer—again joined by Kennedy—were also in the majority in the Boumediene v. Bush case. In this ruling, the court found that foreign terrorists—fighting against United States armed forces on foreign soil in a time of war—are entitled to the same Constitutional legal protection as U.S. citizens. Again, an unprecedented right was created by the court out of thin air. Constitutional protections were not given to British captives in the War of 1812, nor to captives from Central Powers in World War I, nor to captives from Axis Powers in World War II, nor to Korean captives in the Korean War, nor to Vietnamese captives in the Vietnam War, nor to Iraqi captives in the Persian Gulf War, nor has any nation in the history of the world been expected or required to guarantee those rights granted to their citizens to enemy fighters captured in war (even if captured on that country’s home soil!).

We don’t even demand this treatment from enemies that capture our soldiers, we simply demand our POWs be treated in accord with the Geneva Conventions. We are likewise required to follow the Geneva Conventions with regard to foreign captives, and we do. Most foreign captives we have today are not entitled to much, if anything, under the terms of that treaty. The Third Geneva Convention includes very specific rules about who qualifies as a protected prisoner of war, including that they wear “a fixed distinctive sign recognizable at a distance”, carry arms openly, and that they “[conduct] their operations in accordance with the laws and customs of war”. A plain-clothed Al-Qaeda fighter setting off a bomb in a crowd does not qualify on any of those counts.

All-in-all, the pattern is clear . . . and frightening. 44 percent or more of our Supreme Court has never read the Constitution, never took history classes in school, and never appropriately researched the issues surrounding the cases upon which they issue rulings. Either that, or they have read these things and understand the historical context but choose to rule in opposition anyway. I don’t know whether we’re watching a spectacle of unfathomable incompetence, selfish and unprofessional judicial hubris, or both.

The same 44 percent of the court—among those who have contributed more to the erosion of Constitutional clarity in this county over the last two or three decades than any other single person, group, or entity—has the incredible audacity to accuse the remainder of judicial activism in upholding a common-sense, historical, and accurate read of the Second Amendment. I stand in awe.

Scott Bradford is a writer and technologist who has been putting his opinions online since 1995. He believes in three inviolable human rights: life, liberty, and property. He is a Catholic Christian who worships the trinitarian God described in the Nicene Creed. Scott is a husband, nerd, pet lover, and AMC/Jeep enthusiast with a B.S. degree in public administration from George Mason University.