The Supreme Court’s Lapse in Logic: How the Abortion Decision Conflicts with their Ruling on Guns.
In regard to abortion, the Court views text as paramount. However, in reading the 2nd Amendment, the Court is blind to language indicating that gun rights is contingent on military service
By
David Gottfried
Most people have the idea that the Second Amendment gives them the right to bear firearms. Of course, most people never read the Second Amendment. Read it:
“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 Second Amendment
Before the second amendment says anything about an alleged right to carry firearms, it discusses the importance of a militia, and it says that a militia is necessary to the security of a free state. The plain reading of the Second Amendment strongly supports the conclusion that the right to bear arms is necessary insofar as you are involved in the defense of the nation.
The United States Supreme Court, in the District of Columbia v. Heller, in 2008, clearly showed its right-wing gumption and bluster when it cleverly and disingenuously argued that the right to bear firearms was incontestable and had nothing to do with militias. The conservative court stated that the amendment used the word militia simply to give an example of how and why a person might carry a gun. Of course, the 1st amendment, in granting us free speech, does not give us examples of free speech, the right against searches and seizures does not give us examples of stuff the cops can’t rummage through and the ban on cruel and unusual punishment does not begin to discuss what sorts of punishments are cruel and unusual. The constitution is a very short document. All of the rights enumerated in the constitution will fit in less than a third of a page. Because of its brevity, the constitution did not provide examples of when and how a right could be exercised, and the 2nd amendment discusses a militia because association with, or membership in, a militia was a prerequisite to owning guns.
Indeed, the Dissent in District of Columbia v Heller adamantly stated that the right to bear arm was inextricably tied to civil defense:
“The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”
Dissent by Justice Stevens, in which Justices SOUTER, GINSBURG, and BREYER, JJ., joined.
In addition, the second amendment prefaces the word militia with the compound word “well- regulated.” Clearly, this evinces a preference for gun use is an organized, regulated fashion. This is inconsistent with granting an individual the right to possess firearms simply because he, on his own, absent any organized, regulated enterprise, would like to get a gun.
Nevertheless, the majority, in District of Columbia v Heller, knew what their Republican sponsors wanted, and they wiggled their way out of the constitution like very vermicular worms.
However, in Alito’s abortion decision they deemed the Constitution – a document that says that a black person counts as three fifths of a white person – as divine as the tablets Moses brought down from Mount Sinai and rigidly applied the constitution to vanquish a woman’s right to choose.
An orthodox Jewish girl, who was a fellow student of mine in NYU law School, said that judicial decision-making was like shopping for shoes. One puts on whatever shoe fits. If you want to arrive at conclusion A, and conclusion A is supported by faithful adherence to the text, you pretend to believe in slavish obedience to the text. If arriving at conclusion A is facilitated by ignoring the text, you profess to believe in the infinite malleability of language, changing customs and other escape routes to take you to the answer that is most in sync with your ideology and prejudices.