Friday, May 31, 2002
WELL, THAT WAS A SHORT SECOND AMENDMENT HONEYMOON... Reporters Neely Tucker and Arthur Santana say U.S. attorneys are backing DC's handgun ban despite Attorney General Ashcroft's statements backing the individual right to bear arms and recent arguments disguised as legal-brief footnotes making the same point. They're citing local precedent, but I've got to admit I don't get it. On the other hand, the Post, despite patient and cheerful instruction from PostWatch, still doesn't get the legal history quite right.
The controversy stems from a complex argument about the precise meaning and intent of 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." The U.S. Supreme Court ruled in 1939 that the possession of a sawed-off shotgun did not apply to the maintenance of such a state militia. That ruling, the last time the court addressed the issue, has been consistently interpreted by lower courts as not conferring to individuals a constitutional right to bear arms.
Never mind Supreme Court decisions, it is soooooooooo hard to overturn accepted wisdom, although it does shift from yesterday's characterization:
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" -- was interpreted by the U.S. Supreme Court in 1939 to apply only to militias and not to individuals.
I buy the Reynolds/Volokh/Founding Fathers proposition that individuals are the militia, and that the 1939 court meant no such thing. Maybe the fact that it's a "complex argument" today means the reporters are doing a little research, but it still looks to me as if, in their account, militia=state=Jane Brady.