Finally Some Thoughts on the The DC Gun Case

[countalpicola]

Originally published at The Mouse's Tale. You can comment here or there.

Well, it took me long enough, but I think I finally made up my mind about DC v. Heller. Despite everyone on both sides of the issue being absolutely convinced of the correctness of their positions, I actually found this case to be pretty hard. Much to my pleasant surprise,

Comments

[countalpicola]

it is part and parcel of the right to Life

The what? I hope you're not referring to "No person shall be ... compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law" in the Fifth Amendment for that one.

The reason I point this out is to bring up another rule of textual interpretation which guides my thinking about the Second Amendment. The rule is the often cited admonition that laws are to be read as a whole. The thinking which keeps us from reading Dick and Jane as kiddie porn is the same reasoning we use to keep us from turning the words of a legal text entirely upside-down. In the case of the Fifth Amendment, reading it as a whole clearly shows that it is talking about rights afforded related to criminal prosecution by the government, not two random guys walking down the street.

The same, I feel, is true of the prefatory clause to the Second Amendment. As you say, "How many other clauses in the Constitution explain exactly why they are enforced?" Even if the specific words of the prefatory clause aren't all that important, the founders clearly meant to set the operative clause in context. In a Constituion with so few explanations of intent, and an amendment where the context of history was seen as so important to both sides of the issue in this case, it strikes me as remarkable that we're so quick to jettison as irrelevant the unique gem given to us within the text itself.

I will point out that the only grounds the government could have as far as regulating which guns can be used and which cannot be are which ones are suitible for militia service

This actually misreads Miller. The military application of guns is only one prong of the test used to determine if a weapon can be banned. The other prong is to determine if the weapon is in common civilian use at the time of the ruling. It's this second prong which excludes, for example, the machine gun from Second Amendment protection despite its obvious military usage. Now, I happen to disagree with Miller for a number of reasons and I do believe it should be overturned, but the law, as it exists, is a lot more restrictive, even under Heller, than you seem to be indicating.

[izuko]

I think Demetrious was specifically discussing the constitution, not Supreme Court rulings, which may or may not have anything to do with said constitution.