With Friends Like This

Cheers to George Will for his pro-gun rights column, A Shot In The Arm For the GOP, but unfortunately it includes this:

The court ruled 2 to 1 that the D.C. law, which allows only current and retired police officers to have handguns in their homes, violates the Constitution's Second Amendment: "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."

This ruling probably will be reviewed by the Supreme Court, which 68 years ago seemed to hold that the amendment's first 13 words circumscribe the force of the rest. That is, there is a constitutionally protected right to "keep and bear" guns only insofar as the keeping and bearing are pertinent to service in state-run militias.

But as noted by law professor Eugene Volokh and others, the case--U.S. v. Miller--defines the militia thus:

Incidentally, if the question is whether "militia" in the Second Amendment means just something like the National Guard, that's one thing that the Supreme Court has resolved: "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." (Today, after the Court's sex equality cases under the Fourteenth Amendment, it would likely include women, too.) The Militia Act of 1792 took a similar view, as does the currently effective Militia Act.

There are other important historical arguments supporting the individual right to bear arms, and if everyone agreed on the meaning of US v Miller then we wouldn't have had numerous federal appellate court cases since 1939 failing to recognize that right. But every completely informed reference to "militia" has to keep that Supreme Court definition in mind.

Related: This Week in Guns
             In Which The Post Affirms It Does Not Get 'Militia'

            

Comments

[Michael]

Well, this is progress from the 1980s vintage Fwill, who supported gun control. He also had the intellectual honesty to say "the second amendment means what it says, and it should be abolished", or words to that effect.

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