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A Matter Before the Court
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A Matter Before the Court


Article II of the Bill of Rights

A well regulated Militia, being necessary for the security of a free state, the right of the people to keep and bear Arms, shall not be the infringed. “


The recent Supreme Court case, involving the right of the city of Washington D. C. to outlaw the ownership of handguns by citizens, will apparently be decided along a 5-4 vote against such a prohibition. The reason suggested at by some of the judges is that the section I have bolded above is the operative one – not the conditioning phrase that preceded it. To me this is simply choosing the portion of the Article that suits one’s desire -- not the clear intent of the whole Article. If one reads the main body of the Constitution, they find in Article I the following references to the Militia as they relate to what Congress shall have the power to do:


[The power to:]


…provide for calling forth the Militia to execute the laws of the Union, suppress insurrections and repel invasions


…provide for organizing, arming and disciplining the Militia…


There can be little doubt as to the meaning of “militia,” in the context of the Constitution. 

The Militia was a body of citizens, regulated by rules established by Congress, called forth in time of need for military action. 

It is therefore logically understood that such men would require arms to fulfill their military duties. Further, since the Militia was necessarily composed of citizens [there then being no standing Army, as today] it was reasonable to allow citizens, who might be a part of any Militia, to own firearms. The second phrase, “the right of the people to bear Arms, shall not be infringed” was a reasonable inclusion at that time, since any locally established proscription against the ownership of arms would impede the formation and effectiveness of the Militia. 

Today, with the existence of the National Guard and Reserve not to mention the standing armed forces, such militias no longer exist [nor can they], therefore the need for such a prescription of citizen ownership of arms is equally outdated.


The ownership of guns has been for a very long time been viewed as a sacrosanct right and the Second Amendment  [Article II] is always referenced as its legal justification.  The moral, or sociological  justification is usually one related to the assumed right to have the ability to defend one’s self. 

An often heard retort to those who eschew universal legal ownership or strict regulation of guns is: If guns are outlawed, only outlaws will have guns. 

While this is true, there remains the matter of the right of cities, counties and states, to make laws concerning regulation of gun ownership. I have argued above that the Second Amendment is moot since its original raison d’etre related to the maintenance of Militias, which no longer exist. If this is the case, then there is no infringement of a right that, de facto, does not exist.


If the reasoning of the Supreme Court justices is based on “…the right of the people to bear arms,” ignoring the conditioning preceding phrase, the basis for such reasoning must be that that the right of gun ownership has an inherent standing of necessity, even though no such standing is referenced anywhere in the Constitution.  


Consider what might happen were the Second Amendment to be repealed; nothing.  That is, nothing until some community, city or state makes some law dealing with gun ownership. [Indeed, some communities have laws dealing with the purchase of alcohol – a far less serious matter than weaponry.]  In a democratic community, such a law would be voted on and passed or not.  The will of the community in a democratic society is supposedly more sacrosanct than some specific right that is not self evidently transcendent.  

The five Supreme Court justices who probably will side against the prohibition in Washington D. C. apparently believe that gun ownership is such a self evidently transcendent right. The rights presented in the Bill of Rights, are secular statutory rights and are not self evidently transcendent ones; there are no such rights in our Constitution. If the Supreme Court rules based their interpretation of the Second Amendment as providing the right of people to bear arms independent of any other factors or justifications, they are clearly supporting the belief in the right as one that is assumed to be self evident – or transcendent. Surely this kind of jurisprudence is not acceptable.


Had the Second Amendment read:


A well regulated Militia, being necessary for the security of a free state, the right of the members of the well regulated Militia to keep and bear Arms, shall not be the infringed.


a great deal of fuss, agony and murders could possibly have been avoided.


Richard Sansom