The U. S. Constitution is not perfect, but it's a lot better than what we have now.
-- Durk Pearson
Today the Supreme Court, in the historic decision in D. C. et al v. Heller, explicitly held that the Second Amendment grants the right to own a gun to individual human beings.
Of particular interest: The District of Columbia ordinance was struck down because it a) made it virtually impossible to own a gun and b) because it required that the few guns that were allowed have trigger locks or be disassembled. The Court specifically said that this is wrong because it renders the guns useless for purposes of self-defense. In other words, you have a constitutional right to self-defense. The D. C. ordinance disarmed its citizens against violent attack, and was meant to do so. This they may not do.
The Amendment reads (in the copies originally circulated to the states for ratification):
"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."
For many years those of us who thought that this language does grant an individual right felt as if we were required, in defending our interpretation, to prove that water really does run downhill, and that black is not white. How could anyone seriously think that "You have right R because it serves purpose P" means "You have a right to serve purpose P"? How could they have thought that "This right is important because militias are important" means "This right belongs to you as a member of a militia?"
That, as you probably know, is the interpretation used in anti-gun jurisprudence. I have been reading Scalia's majority decision in this case and the attack he launches against this interpretation seems devastating to me. (Of course, I am on his side on this one, so you can take that with a grain of salt I suppose. )* I don't always agree with Scalia, God knows, but when this guy is good, he's great.
Among the arguments Scalia gives that I had not thought of: "Virtually all interpreters of the Second Amendment during the century after its enactment interpreted the amendment as we do" (p. 32). The collective right interpretation took root long after the document was written.
Here's another historical argument. It's one I've never seen presented in quite this way, but it has always made sense to me.
I have always thought that the fact that the amendment mentions the militias is actually evidence for the individual rights interpretation. What after all were the militias? They were not government bureaus, like a modern police force. They were private citizens, banded together for common defense and the maintenance of order. Daniel Boorstin, in The Americans: The Colonial Experience [(New York: Vintage, 1958), pp. 352-72], tells the interesting tale of this -- to us -- curious institution. The most curious thing about it, on Boorstin's telling, was how popular the idea of a militia was to the founders: they even mention it in the constitution. The thing is that militias were never very effective. They were poorly disciplined and difficult to coordinate, and desertion rates were astronomical. A modern police force or the regular army makes much more sense in military or administrative terms.
So why did the founders like them so much? The answer, Boorstin says, can be found, not in the realm practical military considerations, but in that of ethical and political ideals. To the people who founded this country, the idea that security and order should be a gift of the state, that the individual should be the passive recipient of state-provided protection, was a very troubling one. They favored the inefficient and impractical militia system because they wanted private citizens to possess lethal force and be ready to use it against their fellow human beings. They wanted the individual to have real power.
The collective right interpretation of the second amendment assumes that individual gun ownership was a mere means and the militias were the end. In fact, virtually the reverse is true: the militias were a means, and individual possession of lethal force was the end. More exactly, individual gun ownership was an end in relation to the militias. And it was an end because it served the deeper end of the dignity, power, and independence of the individual citizen.
According to the collective right view, the second amendment is a sort of legal ghost town: since the militias no longer exist, there is no possible point to a right to have a gun. I say that, when we see the real point, it is one that is applicable today, just as it was then, though in a different institutional environment.
To put it another way: even if the founders had only meant to guarantee us a right to belong to a militia then, given that the militias no longer exist, the right ought to "evolve" as part of "the living Constitution," into an individual right. That would be far more in the spirit of what the document meant than to allow the disarming of the citizenry.
* I realized several days after writing this that I am probably one of the signers of one of the amicus briefs in this case, the one submitted by Academics for the Second Amendment. I should have mentioned that.