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.
~~Constitution of the United States,
Bill of Rights, 2nd Amendment

New York Times Supreme Court reporter, Linda Greenhouse, wrote on Wednesday:

"A majority of the Supreme Court appeared ready on Tuesday to embrace, for the first time in the country’s history, an interpretation of the Second Amendment that protects the right to own a gun for personal use."

On at least one level, this is an astonishing turn of events.

The High Court has avoided this issue for the last sixty-nine years.

On the other hand, this new cohort of intellectually fierce and robustly intrepid conservatives could hardly rule otherwise.

Granted, the sentence structure of the Second Amendment is curious; notwithstanding, based on the syntax and the historical evidence, it is extremely difficult to argue that the "right to bear arms" applied only as a collective, militia-bound freedom.

As Chief Justice Roberts suggested in the oral arguments, if the language regarding "keeping and bearing arms" was merely subordinate to the "well-regulated militia," mentioning "the people" seems completely superfluous.

This is problematic. The Constitution itself, and the ten amendments that follow, are spare in style, not indiscriminately garrulous.

Are "the people" and a "well-regulated militia" synonymous? Unlikely.

Are "keep" and "bear" merely rhetorical flourishes that mean the same thing? Couplets added to make the document more poetic? Doubtful.

Justice Antonin Scalia pondered the connection between a "well-regulated militia" and "the security of the state." For what purpose was the militia "necessary" to the security of the people? Primarily, to protect liberty from tyranny. For the framers, an armed citizenry equaled an important safeguard against the accumulation of too much power in the hands of tyrants.

Justices Anthony Kennedy and Samuel Alito also raised the notion of self defense within the context of original intent and the frontier culture of the eighteenth century.

For a conservative, the plain meaning and intent of the amendment is clear enough: the Second Amendment offers a fundamental protection to citizens who wish to possess and use firearms, preventing Congress (or any other branch of the government of the United States) from infringing on this right.

Slam dunk.

The Catch? The Irony?

In District of Columbia versus Dick Anthony Heller , the actions of the federal government are not at issue; rather, the Question is "whether the Second Amendment forbids the District from banning private possession of handguns...."

Heller asks the federal government to interpose itself between local authority (Washington, DC), derived legitimately through the will of the local electorate, and an American citizen, Dick Heller, who petitions the Court to protect his individual right under the Constitution to own a gun.

So what? Isn't this the way it is supposed to work?

Yes and No.

It is the way things have worked since the early-to-mid twentieth century.

However, the Bill of Rights, initially, only protected citizens and states from the federal government.

Some Examples:

From the beginning, the federal (or national) government could not establish a national religion, but the individual states could--and did (the last state to disestablish, Massachusetts, sanctioned a state-supported church for more than four decades after the ratification of the First Amendment).

The national government could not abridge free speech or freedom of the press--but the states could; there was no absolute or practical right to advocate abolition in the ante bellum South. That is, the feds were not empowered to protect individual speech rights in any given state.

Constitutional protections and protocol involving trials, evidence, and prosecutions applied to federal courts--but state courts were free to enact their own procedures.

These were days of true federalism, dual sovereignty, or shared authority, between the state and federal governments.

What happened?

And the war came. And the Fourteenth Amendment followed, which guaranteed all citizens "equal protection" under the law. That is, the federal government assumed (or, more accurately, eventually came to assume) a new role as ultimate defender of the very same individual rights enumerated originally as strictly proscriptions against federal abuse. This expansion of the federal mission, extending the Bill of Rights to the states, and empowering the national government as the agency of enforcement, is commonly called incorporation.

What happened then?

The rights revolution ensued: think Brown, Miranda, Gideon, etc.

Conservatives, often reluctantly and usually not without complaint, generally, have acceded to incorporation as the new reality, accepting the good with the bad.

The Good (for example): the success of the Civil Rights Movement, unthinkable without an activist judiciary.

The Bad (for example): Roe v. Wade and Griswold, which went so far as to incorporate an unenumerated right found in a "penumbra, formed by an emanation."

While a few ultra conservatives have called for an amendment to restore the Constitution to its pre-incorporation form, this view usually falls outside of the mainstream of judicial conservatism. For example, none of the conservatives on the current Supreme Court (not even the self-styled "originalists") advocate "restoration," and it is extremely doubtful that a nominee of that particular philosophical persuasion could ever be confirmed by the Senate today.

Having said that, incorporation is a bone in the throat of conservatism--as it seems an integral component of the increasingly boundless activist court and the antithesis of judicial modesty.

Significantly, one of the issues in Heller is incorporation. If the Court finds gun ownership to be a fundamental individual right guaranteed by the Bill of Rights, what then? The justices will have the authority (under the precedent of incorporation) to defy the will of the majority in Washington, DC, expressed through their elected representatives, and institute a new set of rules by judicial fiat.

Is that a conservative decision?

Was the original intent of the framers to allow a federal court to overrule the clearly expressed will of a local entity?

It is an interesting conundrum. Conceivably, the high court might very well vindicate a basic and obvious right important to modern conservatives, while simultaneously wielding its awesome power in a way completely unbecoming to fundamentally conservative jurisprudence.

Then there is also the practical question.

What the Court might do logically is restore the right to keep and bear arms, but demur from "incorporating" the Second Amendment. Conceivably, the Court could affirm the fundamental freedom but respect the local authority to the DC City Council to make law in accord with the democratic process.

However, at that juncture, someone might well ask how far the federal government may go in regulating individual gun ownership in view of the newly rejuvenated right to keep and bear arms.

In re the federal government, the original intent is clear:

"...the right of the people to keep and bear arms, shall not be infringed."

Of course, this question takes us back to our 1939 point of demarcation for this long legal odyssey. When faced with their contemporary exigencies, the Supreme Court felt obligated to bend its interpretation of history and intent in order to allow the federal government the right to regulate manifestly dangerous and problematic weapons.

The practical questions remain.

This is why Solicitor General Paul Clement showed up on Tuesday to argue simultaneously that the right to keep and bear arms exists--but not without some limits.

Where are the limits?

Weapons for hunting and self defense are allowed--but not assault rifles and machine guns?

On the other hand, taken to the extreme, if the purpose of the Second Amendment is to protect liberty from the accumulation of power, should not the citizenry have the right to keep and bear weapons comparable to the entity that poses the greatest threat to liberty? Which, from an eighteenth-century point of view, is clearly the government?

Tough questions. This cohort of conservatives promise to be stalwart, sincere, and profoundly gifted--but, on this case, they find themselves between a rock and a hard place. I will await this decision with guarded optimism and a heightened sense of anticipation.


The Fourteenth Amendment, as written, applies only to the states. The Heller case involves the District of Columbia, which is most definitely not a state. Thus, this case does not involve incorporation, but (if the 14th Amendment is even implicated) would involve the doctrine of reverse incorporation. See Bolling v. Sharpe, etc. But I'm not sure the 14th Amendment is implicated at all in the D.C. case of Heller.

Also, for all legal and constitutional purposes, the Distict of Columbia IS the federal government. And the fact that, like a state, the laws were enacted by duly elected officials here is no different with the federal government, whose laws are also enacted by duly elected officials.


Thank you, Tocqueville, for articulating this vital element of the case (and a perhaps fatal flaw in my reasoning). The fact that this is a DC petition definitely adds another wrinkle to the complexity of this question--and possibly offers a welcomed "out" to the majority. But is it not the expectation that the Court may well offer a much broader ruling, which would apply to the states as well? Does that not explain General Clement's concern?

If this only concerns DC, why do we care?


My prediction is that the Court will recognize a full-bodied individual right to gun ownership under the 2nd Amendment (This is why we care. The Court will be deciding what the 2nd Amendment means, and the 2nd Amendment means the same thing in and out of D.C.). But I predict that the Court will strike down the D.C. statute as unconstitutional on very narrow grounds. In short, I expect the Court to find that an outright ban on gun ownership is patently unconstitutional. But the Court will leave plenty of room for the regulation and control of gun ownership for health and safety reasons. And this right to regulate may likely be broader for the states than it is for the federal government.