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Checks and balances

By Alan Nathan
December 19, 2007

When are Supreme Court justices interpreting the Constitution, and when are they simply amending it? The judicial-restraint crowd prefers a more denotative analysis relying on the actual words employed by the framers. Those opting for the living-document philosophy, or judicial activism, want the court to interpret our founding document in a way that accommodates their positions on laws that might not otherwise pass literal muster. Since their advocates cannot meet the written standard, they want the standard to meet them.

On Nov. 20, the Supreme Court granted the D.C. government's request to examine the constitutionality of its handgun ban, which was struck down by the U.S. Court of Appeals for the District of Columbia on the grounds that the law had violated citizens' Second Amendment rights.

The case, now called D.C. v. Heller, originally pitted six Washingtonians against city officials over the residents' right to own a handgun for personal protection and keep rifles loaded without the obligatory trigger-locks. It's scheduled to be heard in March.

At issue are two dueling perspectives: the collective right to own firearms, which is contingent upon the existence of a militia; and the individual right, which is reliant only upon the citizens' independent preference.

The highest court explained that it would assess whether the D.C. gun ban "violates the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."

Let us look at the Second Amendment: "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."

Inarguably, a militia is an on-call citizens-army, and, if needed, becomes a recruitment of the already-armed. Given that dynamic, you must first have an ongoing right of the people to keep and bear arms in order to quickly form the militia upon which that free state's security is predicated. In short, the reference to a regulated militia is a parenthetical rationale — not a contingency.

Understanding that the free state in question might have a population needing to protect itself from a potentially rogue local government, its affirmed free-state entitlement would be endangered were the collective vs. individual right to gun ownership prevail as the standard. Unambiguously, it would subordinate citizens to the very threat against which they might theoretically have to fight in order to keep their freedom inviolate.

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