Shooting blanks at the Heller decision

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.

The slip opinion in District of Columbia v. Heller is 157 pages long.

All of these pages were necessary, apparently, for the Supreme Court to affirm by a 5-4 margin that the Second Amendment (quoted above) prevents Washington D.C. from imposing a total ban on the ownership and use of guns.

By my count, the Second Amendment clocks in at 27 words... so that comes to about 5.8 pages per word. There are two dissents. Justice Stevens' dissent starts at p. 68 of 157. The second dissent, by Justice Breyer, starts at p. 114.

Almost all the mischief in interpreting the Second Amendment comes from the prefatory clause -- the bit about a well-regulated Militia being necessary to the security of a free people.

At one point in our history, the Militia was every able-bodied male above a certain age. We might be called upon to grab our rifles or muskets or even a pike, if that was all we had, to go and repel invaders. You know: Indian attacks. The Redcoats are coming -- that sort of thing.

Later, "militia" began to be associated more with the National Guard. Back when I was a lad, the National Guard was something that a young man could enlist in and thereby avoid the draft -- and overseas service. There was that police action in Vietnam, for example, that boosted National Guard enlistments dramatically. Although the National Guard might be "federalized" for specific purposes -- Eisenhower made threats along these lines to force state compliance with school desegregation orders, for example -- it was a rare thing. But even a generation ago, a state National Guard unit was identifiably part of the state from which it was drawn.

Today, though, National Guard service guarantees long stints overseas in Afghanistan or Iraq or anywhere else the military is assigned. Guardsmen are under federal orders almost constantly -- they face all the dangers that our soldiers and sailors and marines in regular service face... only, all too often, without the same training... or armor.

Our nation was born in revolution. In our founding mythology, our sturdy yeoman forefathers grabbed their guns and formed up on the village green and fought off the greatest army in the world. (It's mythology only because it was too often untrue: Neighbor A might have taken up arms alright... but only to shoot at Tory Neighbor B, who was serving with the British. And short-term enlistees -- the sturdy yeomen who grabbed muskets for a summer campaign -- would too often turn around and go home when the fighting got too fierce or they had enough of suffering and dying. Read any biography of George Washington's -- other than, I suppose, Parson Weems', and you'll see what I mean.)

But embedded deep in our national psyche is a fear that, without guns in our homes, a government could become oppressive and tyrannical, trampling on our liberties. We the people are the ultimate guarantors of our liberties. We do not trust that government will always be on our side in our quest to remain free, and on some level we believe that the threat of a well-armed popular uprising helps keep government in its place. An outright ban on the possession of firearms, as in Washington, D.C., or here in Chicago (our ordinance is about as onerous as the District's) obviously triggers that deep-seated fear.

That said, I'm ambivalent about today's decision -- which, of course, I can't have had time to study yet in any great detail.

Justice Stevens may have the better side of the argument -- that the Second Amendment refers to a collective right to a Militia, not to an individual right to keep guns at home -- at least in terms of the precedents of the Supreme Court -- if you could call today's National Guard anything other than an adjunct of the federal military.

Still, even before today's opinion, I have wondered why gun ownership has to be dependent on the reading of the Second Amendment arrived at by today's majority. The Ninth Amendment provides, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Wouldn't the right to keep arms -- surely recognized from Colonial times -- be a "retained" right -- even if the Second Amendment were deemed to apply only to "militias"? I make no pronouncements here, even tentative ones; I merely ask the question.

The other aspect of the gun ban that bothers me is why the District of Columbia fought so hard to keep it in place.

It obviously doesn't work: Criminals have guns. Lots of guns. Here in Chicago, with a similar law in place, gang-bangers shoot guns at and kill each other with distressing regularity, occasionally taking down innocent bystanders either by accident or because of mistaken identity. It turns out that criminals may not care that much what the law says. Therefore, the only people who don't have guns are law-abiding saps.

Still, this is not a constitutional objection: Stupid laws may be constitutional, too, you know. Nor am I entirely clear on how arming the law-abiding saps would help keep gang-bangers from shooting up the streets.

On the whole, whether it's just a manifestation of my deep-seated American psyche or not, I think an out-and-out ban on the possession of firearms in any locality is bad... I just don't know, yet, that today's decision is particularly good.