Go Get Your Gun

I'll be driving up Connecticut Avenue in the good old District of Columbia tonight -- that is, if I can make it through the barrage of gunfire.

Yes, the Highest Court in the Land has decreed that D.C.'s ban on gun ownership is unconstitutional. The 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"), the Court determined, protects an individual right to gun ownership and is not limited to protecting participation in state militias against federal interference, notwithstanding the hint in the amendment's preamble.

As I've mentioned a couple of times, I don't really have a dog in this fight. It seems to me there are good arguments on both sides. As today's majority observes, it's possible to view a preamble as stating a purpose but as not limiting the force of a text's operative provision. There are eighteenth-century indications that the "militia" was all able-bodied males, who were expected to keep their own arms and to report for duty with them when called. There is much writing that hints at an individual right to keep arms for purposes of self-defense, as well as for the defense of the state.

On the other hand, as the dissent observes, that preamble has to mean something. There are indications that "to keep and bear arms" was a specialized term of art meaning to posses arms and use them for military purposes. Some history suggests a particular focus on the possibility that the federal government would interfere with state militias. And in the one prior case that most closely examines the Second Amendment, the Court said that it has the "obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces" and that "It must be interpreted and applied with that end in view."

So I really think this case could have gone either way. That's why it is just so drearily predictable that the case would end up 5-4 with the conservatives on one side and the liberals on the other, and Kennedy, the swing Justice, casting the deciding vote. Couldn't just one of the liberals have decided that, even though liberals like gun control, the Constitution provides an individual right that must be respected? Or couldn't even one of the conservatives have applied the constitutional text with more sensitivity to the intergovernmental purpose suggested by the preamble? It would be nice to think that something other than the Justices' ideological predilictions has at least something to do with determining the outcome. But, I guess not.

Thank goodness, at least, that those conservatives are protecting us from judicial activism!