The American Spectator

The Public Policy

(Page 2 of 2)

He shows that this is not an issue. In those cases where the court has considered the Second Amendment, it has done so under the assumption that it protects an individual right.

p>Most important, Scalia makes official what is obviously the correct interpretation of 1939's U.S. v. Miller . Gun controllers have claimed this decision found the Second Amendment to confer only a collective right. Here is the ruling's most debated passage: br> /p>

In the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

br> It's clear the issue is what kind of gun the individuals had, not what kind of people the individuals were. If the problem was that men were bootleggers and not militia members, the court would have said that instead of debating whether a sawed-off shotgun is "ordinary military equipment."

What's interesting here is that many appellate courts have upheld gun-control laws based on a profound misreading of Miller. With Scalia's interpretation in a Supreme Court majority opinion, these decisions will be particularly vulnerable to new legal challenges.

In the future, the Court will have to decide where the Amendment's practical limits are. Scalia by no means solves the issue in toto, but he does much to alleviate concerns about everyday folks running through the streets with machine guns.

The opinion continues the "common use" standard set forth in Miller -- the Second Amendment will not protect unusual or particularly dangerous weapons (sorry, guys). Likewise, the justice explicitly directs courts not to construe Heller as striking down restrictions on felons and the mentally ill owning guns, and notes that historically, American courts have often upheld bans on concealed carry.

With such an evenly divided court, conservatives and liberals each win their fair share of victories. But rarely is an opinion on such a controversial topic so incisive, and joined by a majority without a muddle of confusing concurrences.

topics:
Constitution, Law, Supreme Court, Military