Keep and Bear

At least some measure of blame for the mass shootings in Las Vegas yesterday must be assigned to five right-wing justices of the Supreme Court of the United States. With four justices dissenting, the court majority made a decision a few years ago that guaranteed this killer’s personal right to carry firearms. The judges were not bound by any law or doctrine to sanctify that guarantee, but, rather, were persuaded by the arguments of a powerful cabal of weapons manufacturers. If that decision had gone the other way, the Vegas shooter might not have found it so easy to open up with long-range, automatic, military-grade weaponry on a crowd of concert-goers a quarter mile away. 

The high court decision involved a Washington, DC, statute that would have effectively disarmed DC firearms owners. In overturning this law, the court majority had to ignore the language of the Constitution. Unique among the ten amendments known as the Bill of Rights, the second amendment has a condition attached. It doesn’t say, simply, “The right of the people to keep and bear arms shall not be infringed.” Rather, that language follows the acknowledgment of a condition under which the founders lived, namely, that a “well-regulated militia” was in those times “necessary to the security of a free state.”

In our jurisprudence, words are considered to have meaning, and this condition wouldn’t have been inserted into the amendment without some purpose. It marks a recognition among the founders that a time would come when the security of our free state would be maintained not by a militia but by a standing army and navy, as it is today, and a federal guarantee of the right to keep and bear arms would no longer be necessary.

The five justices decided otherwise. The guarantee is personal and entitles individual Americans to carry guns “for self-defense.” The clause referring to a well-regulated militia is as quaint and anachronistic as it sounds and in no way diminishes the right guaranteed by the main clause.

The practical effect of this counter-logical decision is that the record toll achieved by the Vegas killer will be surpassed sooner or later unless we repeal the second amendment. The high court’s decision gives us no alternative. Not that repeal would bring any radical changes. Repeal would not place a ban on firearms, but it would make regulation possible. We might expect some states to enact laws like the draconian statute that the court invalidated, while others, maybe Nevada, might allow residents to carry assault weapons on the street. But if Nevadans suddenly wanted to follow a more prudent course, they could. Repeal of the second amendment is an idea whose time arrived yesterday.