Clint Bolick

Deconstructing the Second Amendment

Posted on November 29, 2007 | Author: Clint Bolick
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Though it is well over two centuries old, the Second Amendment right to keep and bear arms never has been definitively interpreted by the U.S. Supreme Court-much less enforced.

The amendment's orphan status among the Bill of Rights may soon change because the Supreme Court has agreed to review a ruling by a federal appeals court striking down the District of Columbia's sweeping restrictions on handgun ownership.

The amendment is oddly worded: "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." University of Chicago legal scholar Cass Sunstein calls it "the Constitution's most mysterious provision."

Many courts have interpreted the amendment's language to create a "collective" rather than individual right, pertaining only to the use of firearms in state militias. Indeed, the courts have not even universally ruled that the Second Amendment-unlike other parts of the Bill of Rights-applies to states at all.

But the distinguished Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit parsed the amendment's language, context, and history in determining that it does protect fundamental individual rights. Apart from their interest in state militias, the Constitution's framers recognized a right of individual self-defense; hence "the right to keep and bear arms was not created by government, but rather preserved by it."

Silberman's decision is part of a welcome trend of judicial activism in which judges restore the intended meaning to constitutional provisions. The Supreme Court's ruling will be a defining moment for an institution entrusted with the protection of our freedoms.

Congratulations and good luck to the Cato Institute's Bob Levy, the intellectual catalyst behind the lawsuit. We look forward to welcoming Bob to the Goldwater Institute next spring to give us a preview of this important Supreme Court battle.

Clint Bolick is the director of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute.

Learn More

U.S. Court of Appeals for the D.C. Circuit: Parker v. District of Columbia

Clint Bolick: David's Hammer

Cato Institute: Bob Levy

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