The First Amendment affirmed too?
Friday, June 27th, 2008To a layman, a key element in any definitive explication of the right to bear arms is perhaps this: what to make of the preamble about the well-regulated militia? The majority opinion in the ruling of the Supreme Court today by Justice Scalia got to the point at page 4.
Antonin Scalia cited Copeman v. Gallant, an English case from 1716, which stated that “the preamble could not be used to restrict the effect of the words of the purview.” In other words, as Justice Scalia said: “operative provisions should be given effect as operative provisions, and prologues as prologues.” Here’s the conclusion of the opinion which unequivocally affirmed the right of law abiding citizens, as individuals, to possess firearms:
we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns…But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.
Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
There would appear to be a reason that this matter of the reach of the Second Amendment didn’t need substantial judicial parsing since 1791, namely, there wasn’t much of a controversy about what the plain words of the “operative provisions” meant until recent days. But now that matter has been settled, at least for some significant time.
One of the interesting elements of the Scalia opinion refers to the “whereas” provisions of laws and contracts, and how they do not limit the body of the agreement. In this case the preamble was the rather limited explanation “whereas there is a need for a state militia, etc….” It might be interesting to speculate what other “whereas” provisions were left out of the second amendment in the interest of politeness or reserve (eg, pp. 19-22). As many have said, one of the guaranties of the continued existence of the First Amendment is the threat of armed opposition implied in the Second.






