Yes, this is a rant about the current interpretations of the 2d Amendment to the US Constitution
Gun control is a volatile political issue in the US these days. No wonder, given the steady stream of gun related deaths. Most agree that restricting access to guns by persons who would use them unlawfully would be a good idea. So why is this a problem?
Well, those opposed to such restrictions point to the second amendment to the US Constitution. It says
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
Those resisting gun control, point to the phrase “… the right of the people to keep and bear arms shall not be infringed.” No limits, right? Well, law rarely if ever endorses an unlimited right. And in this case, the first part of the sentence provides that limit and the governing rationale for the right to keep and bear arms in the first place - because “a well regulated militia is necessary to the security of a free state.”
BTW, in D.C. v. Heller, Justice Scalia set forth the view that while the initial part of the text sets forth the “purpose” of the right, stating the purpose does not limit the right.
… apart from (its) clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.
In other words, the right (in the operative clause) exists to fit the purpose and then beyond it. Put another way, the law need make no sense whatsoever in our time.
But let’s set that idea aside for a moment and ask a more basic question. Is militia really necessary for state defense? These days, most would say “no”. The security of the state is the job of the armed forces. So there is a problem here and it is a rather obvious one. Why did the founders think militia had such an important role to play? There is a very simple reason. At that time, the US had no standing army. The continental army was disbanded immediately after the revolution and no plans to create a new national defense force were politically feasible. Militia played that role - especially important in the southern states where fear of slave insurrection was, shall we say … ongoing. So, it was logical back then that the constitution would protect the underlying principle that made militia possible - armed citizenry. Without armed citizenry, the nation would have been defenseless. This quote is instructive
Any subsequent reinterpretations of (the 2d amendment) must start with the fact that our leaders, fresh from their experiences in the Revolutionary War, relied on the militia as the centerpiece of our national military establishment. The concept of the militia and the right to bear arms are inextricably joined.
But things changed. For example, in the war of 1812, militia performed poorly against English regulars and as a result, US dreams of invading and conquering Canada were repeatedly thwarted. There was a realization that militia could not hold the field against professional soldiers. Eventually, this led to reliance on professionally trained soldiers rather than volunteer militia and a standing army. Think for a second. When the southern states seceded, did Lincoln rely on militia? Did we rely on militia in the first war? In the second? In Korea? In Vietnam? In Iraq? Do we rely on militia in the so called “war against terrorism”? Militia played and plays no significant role in combating the threats to the security of the free state in these conflicts.
So, going back to the 2d amendment, if militia were no longer central to the national defense in the 19th century and is not now, how much importance should we give to its functional requisite - the right to bear arms - in the 21st century?
I think the most reasonable answer is “not much”, especially in light of the real world effects of unrestricted sale and distribution of these weapons. Or … would you prefer more real deaths to support a symbolic function?
So, if we agree, what would one say to Justice Scalia, et al? Simply this - their choice of interpretative method is their choice, and nothing more. It is not the sole method that legal theory would allow. To the contrary, interpretation of legal text in light of the stated purposes to be achieved also is legitimate and in this case appropriate. When the stated purpose is less relevant than it was when the text was created, there is a reasonable basis to restrict the operative effect of the subsidiary clause. Otherwise, the tail wags the dog. Got it?