November 27, 2007

The Second Amendment to the Constitution is very simple: "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." Very simple, except that it isn't, of course.

The argument through the years has been over the relationship between the militia clause and the "right of the people" clause. A scholar named Tench Coxe wrote in 1788 while the states were considering ratification of the Constitution, "the people are confirmed by the...article in their right to keep and bear their private arms." So we know where he stood. Alexander Hamilton: "Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped," though he also wanted them to prove this by being assembled once or twice a year--like a militia. But he also wrote that if the government usurps power, "the citizens must rush tumultuously to arms, without concert, without system," which doesn't sound much like a militia.

The Supreme court wrote in 1876 that the second amendment indicated the right to bear arms "shall not be infringed, but this...means no more than that it shall not be infringed by Congress." So the states could presumably do whatever they wanted. But the Court wrote is 1939 (U.S. v. Miller), "In the absence of evidence tending to show that... a shotgun having a barrel of less than 18 inches in length...has some reasonable relationship to the preservation or efficiency of a well-regulated militia, it cannot be said the Second Amendment....guarantees the right to keep and bear such an instrument...." So, gun control. But sensible scholars like Justice Hugo said later that the amendment's "prohibition is absolute."

Are you confused yet?

And now another Supreme Court, this one, is going to take another look at the amendment.

It's a terrific case--you can argue what the men who wrote the Constitution meant, back when militia men probably did show up toting their own weapons. You can argue about what a militia is today, about what the Founders would have made of our society (now there's a reverie), and about all sorts of related issues.

I have no idea how they'll rule, but there is one sure bet--we'll still be arguing the issue even after the rulng has come down.