This is the 2nd Amendment case that SCOTUS has agreed to hear. For background, see my previous post.
For an excellent discussion of the Constitutional issues in this case, read this paper by Nelson Lund, professor at George Mason University.
Below is the gist of his argument:
- The precedent established in Miller will have to be overturned because it is basically obtuse. The Miller test says that weapons that could be used in a militia cannot be banned. Lund makes that point that this test would allow Stingers to be stored in private homes. Therefore, he sees a forthcoming rejection of this test.
- The grammatical structure of the 2nd Amendment
- the "prefatory phrase" (a well-regulated militia) is an absolute construction, which means that it is giving information surrounding the circumstances of the main clause. The "operative clause"(right of the people to keep and bear arms shall not be infringed) is a command. Nothing in this command is qualified by the prefatory phrase, i.e. the phrase "well-regulated militia" has no effect on the meaning of the operative clause.
- There are other examples throughout the Constitution (Patent & Copyright Clause, Preamble) that demonstrate a grammatical structure that intentionally limits certain rights. These devices were decidedly not used in the 2nd Amendment.
- "Instead, the Second Amendment protects the right of the people to keep and bear arms, grammatically unqualified by any militia limitation."
- As citizens, women's rights to keep and bear arms has always been force, even though they were not allowed to serve in the militia.
- Even if you speciously limit Constitutional rights only to men (since women couldn't vote), what about those over the age of 45 who were not able to serve in the militia? Were they deprived of the right to keep and bear arms? Obviously not.
- So what's the point in mentioning the militia?
- Article I, Section 8, Clause 16 gave Congress virtually unlimited authority to regulate the militia. This clause prevents Congress from disarming the people, even if it decides to eliminate the militia.
- Political Considerations
- Lund understands the mention of militias as a recognition of the then-current fear of standing armies. For those who say that the founders wouldn't put something like that into the Constitution, he presents the 10th Amendment -- the sole purpose of which was to ease state fears of a national government.
- "The purpose of the Second Amendment emerges readily from the Constitution’s founding principles."
- "In liberal theory, the most fundamental of all rights is the right of self-defense."
- "The exchange of rights that constitutes the social contract does not diminish the central importance of the right to self defense."
- "The foregoing analysis demonstrates the unsoundness of a constitutional rule that a right to possess rifles and shotguns—kept in a condition suitable for militia purposes but not for immediate self defense—is sufficient to satisfy the Second Amendment. The grammatical structure of the provision dictates that its preamble not be read to qualify its operative language. The operative language, in turn, protects a right that belongs to many citizens other than those who are eligible for militia duties. Furthermore, there is strong evidence, in the principles on which the Constitution is based and in the public records of the founding period, that the right of our citizens to keep and bear arms is protected for the sake of self-defense generally, not merely to facilitate militia activities."