Handguns and the Supreme Court

In a recent case, Heller v. DC, the Court struck down the DC ban on handguns in the District. For all of the furor over the case, there is remarkably little case law on the 2nd amendment, and the Amendment itself is only a few phrases long: 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.

Of course, there is some odd phrasing. It starts by discussing a well regulated militia, but ends with the statement that the right shall not be infringed. In the end, the question was: does the 2nd Amendment speak of a literal militia, or is it more abstract?

Not suprisingly, the Court ruled that the right to bear arms was a personal right, one that exists apart from any regulation and/or milita. I say it's not surprising, because the court has consitently expanded and personalized the rights enumerated in the Bill of Rights. Symbolic clothing is covered by the 1st Amendment, executing minors is cruel and unusual, and Miranda Warnings exist to assure that people aren't compelled to testify against themselves. Whether the original text only covered weapons that could overthrow the government or protect the homeland, or if instead it included hunting and self defense weapons seems a bit of an unnecessary discussion. Any weapon that can protect a home could help protect the nation, and historically and currently, the term militia includes both organized militias (the national guard) and "unorganized militias" (every able bodied male). There's a viable originalist argument (that the term militia meant the people who could fight), and it's an expansion of individual rights. It's win/win, right?

Unfortunatly, a law I thought would be struck down 9-0 was split on predictable lines, with the liberal wing voting to uphold the law. This isn't entirely hypocritical, for nearly a century the liberal wing has tended to uphold state action.... unless it conflicted with a constitutional right. Here, I think the liberals let a chance to solidify an increasingly shaky legal groundwork for the progressive movement (of which I'm a member, BTW). By voting to uphold this law, the liberal wing would show that it was not beholden to politcal agendas beyond the law and could add this to a list of personal rights that it's fought for over the last 50 some years. It's a lost opportunity.

This decision is particularly disheartening to myself because it's a reminder of the years and effort wasted by liberals and progressives in the gun debate. Somehow people that gleefully pointed out the failures of banning alchohol or illegal drugs thought that simply banning guns would end any problems. It was a mistake, and it made a lot of enemies out of people that should have been supportive of a progressive agenda.

Don't get me wrong, I'm equally upset at the conservative wing for cherry picking history in it's definition of militia. State and local militias actively drilled, even if informally. Nearly every man could fire a weapon (as could nearly every woman), and the threats facing the states and nation were much more immediate then they were now. Essentially, an informal if organized militia the time was useful when the threat were minor, whereas now the "militia" is utterly unorganized at a time when the nation faces massive and severe threats. On the other hand, perhaps the court simply thinks that registering each weapon is enough.

If I were in charge, I'd require at least a modicum of the "well regulated militia." Handguns are legal with a permit and a training class (AKA registering and drilling). It's a simple compromise that I think increases safety, allows personal rights, and conforms to the original meaning of the text.