Monday, March 17, 2008

The Second Amendment

One of the longest running debates in the U.S. regarding guns and violence is the meaning of the Second Amendment to the Constitution which 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."

Interestingly, the Supreme Court has never addressed the actual meaning of the amendment as it relates to gun control laws (and hasn't taken up a 2nd amendment case directly since 1939, when it sidestepped the actual meaning in today's context). That all changes tomorrow, when the court hears argument in District of Columbia v. Heller (2008).

Despite mountains of scholarly research, enough books to fill a library shelf and decades of political battles about gun control, the Supreme Court will have an opportunity this week that is almost unique for a modern court when it examines whether the District's handgun ban violates the Second Amendment.

The nine justices, none of whom has ever ruled directly on the amendment's meaning, will consider a part of the Bill of Rights that has existed without a definitive interpretation for more than 200 years.

"This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting the meaning of an important provision of the Constitution unencumbered by precedent,'' said Randy E. Barnett, a constitutional scholar at the Georgetown University Law Center. "And that's why there's so much discussion on the original meaning of the Second Amendment.''

The outcome could roil the 2008 political campaigns, send a national message about what kinds of gun control are constitutional and finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.

What's fascinating is how the decision will play out in the public context and, as mentioned, in the 2008 presidential election. I would doubt the conservative-leaning court would do anything out of the ordinary in this particular case (striking down portions of the ban but recognizing, as with "yelling fire in a crowded theater" and the 1st amendment, rights come with some restrictions and responsibilities).

But you never know. Tossing the ban outright would be huge and would recognize an unfettered right to own and bear arms. However, cobbling together five justices who feel the 2nd amendment doesn't pertain to private gun ownership (only to militia service) would be even more cataclysmic.

Either way, tune in tomorrow for a glimpse as to how the justices might rule.

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