An old argument
The WSJ rehashes an old argument of our times:
The dispute arises from the first four words of the Second Amendment, the full text of 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.” If the first two clauses were omitted, there would be no room for ambiguity. But part of the legal controversy has centered around what a “well regulated militia” means.
Judge Silberman’s opinion argued, with convincing historical evidence, that the “militia” the Framers had in mind was not the National Guard of the present, but referred to all able-bodied male citizens who might be called upon to defend their country. The notion that the average American urbanite might today go to his gun locker, grab his rifle and sidearm and rush, Minuteman-like, to his nation’s defense might seem quaint. But at stake is whether the “militia” of the Second Amendment is some small, discreet group of people acting under government control, or all of us.
The phrase “the right of the people” or some variation of it appears repeatedly in the Bill of Rights, and nowhere does it actually mean “the right of the government.” When the Bill of Rights was written and adopted, the rights that mattered politically were of one sort–an individual’s, or a minority’s, right to be free from interference from the state. Today, rights are most often thought of as an entitlement to receive something from the state, as opposed to a freedom from interference by the state. The Second Amendment is, in our view, clearly a right of the latter sort…
It would seriously harm the Court’s credibility if Justice Kennedy and the Court’s liberal wing now turned around and declared the right “to keep and bear arms” a dead letter because it didn’t comport with their current policy views on gun control. This potential contradiction may explain why no less a liberal legal theorist than Harvard’s Laurence Tribe has come around to an “individual rights” understanding of the Second Amendment.
There are still a few Americans living today who can remember when a great many people were armed. It’s not so difficult to imagine a future in which that might also be true.