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I’m no constitutional scholar, but something just doesn’t quite add up to me about this whole Second Amendment discussion. In the District of Columbia v. Heller case two years ago, the Supreme Court ruled that the right to keep and bear arms was an individual right. I thought that notion was a no-brainer: I was at a loss to know what else it could refer to if it wasn’t an individual right, arguments about a constitutional militia being the National Guard and so forth notwithstanding. But as the court is in the midst of hearing another case (McDonald v. Chicago) that would determine whether that right is protected against states and not just the federal government, I’m more confused than ever.

Since the adoption of the Fourteenth Amendment, the Supreme Court has ruled consistently that the Bill Of Rights trumps legislation of the states. If it’s true that the states are obliged to make no law in violation of the Bill Of Rights, how could the Second Amendment be understood any other way than that it extends protection to individuals within states? Or is the situation really that the Bill Of Rights only applies to individuals within states as the Supreme Court says so on a case by case basis?

Another question comes to mind as well: If the Second Amendment is an individual right as the Supreme Court ruled in Heller, and if that right is only federal, what good is it?

Unless you live in the District of Columbia, it can’t be applied.

I rather suspect Justice Robert’s court will rule on this case to my satisfaction with respect to my views on guns. But how we as a nation are getting there still remains a puzzle to me.

Note: Shane Vander Hart has some related thoughts in his earlier post Does the Second Amendment Apply to States & Municipalities?

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2 comments
  1. It seems to me that if the “People” have been given the implied duty to participate in the militia, and “the right of the People to keep and bear arms shall not be infringed”, then they, the “People”, as individuals, have a protected right to possess the arms that are needed to participate in the militia. Otherwise the Framers simply would have said that the militia would keep and bear the arms.

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