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Another Perspective

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That is a clear example of words being "dubious" in a given context.

The Second Amendment's meaning is only "dubious" if one takes the preamble ("A well regulated Militia, being necessary to the security of a free State") to limit, rather than simply explain and clarify, the rest of the amendment (again, the rather unambiguous statement that "the right of the people to keep and bear Arms, shall not be infringed").

In the majority opinion, Scalia provides quotes from historical documents demonstrating that traditionally, preambles have not been taken to limit enacting clauses. Posner simply states that, in this case, they do.

BUT LET'S PUT ASIDE that original meaning, rather than original intent, is the best method for interpreting law.

Let's disregard the lack of evidence that the Framers wanted future generations to consider "the spirit and reason of the law" even when the words were perfectly clear. Let's forget the custom that preambles don't limit enacting clauses. Let's just give in and look at the Framers' intent.

It is true that primarily, the Second Amendment was meant to preserve the militia. The Framers distrusted standing armies, and preferred that when needed, citizens report to duty with guns they kept and maintained at home. It is further true that this system of military defense is obsolete.

But is it true that the Framers meant only to preserve the militia? As Lindgren writes, "there is evidence against this proposition and no evidence in favor of it."

Basically, some historical figures expressed the belief that the Second Amendment protects an individual right to own and use guns. While many sources emphasized the importance of the militia, none explicitly took the amendment to protect a right limited to the militia.

Going back to the English traditions on which much American law rested, Scalia unironically cited Blackstone, who described the right to arms as "the natural right of resistance and self-preservation" and "the right of having and using arms for self-preservation and defence."

MOVING ON TO AMERICAN sources, Federalist Tench Coxe claimed that the Second Amendment was meant to keep the people armed, not only so that they could fight, but also to provide a check against government power.

In finalizing the Second Amendment, the Founders defeated a motion to add the words "for the common defence" after "bear arms."

Lindgren points out that St. George Tucker, "the first major commentator on the Second Amendment," saw it as something that would prevent a travesty like England's game laws, which had effectively disarmed the population -- the majority of which was not enrolled in the militia.

In thoughtful people (and also in John McCain) there is always the maverick temptation, the notion that going against one's ideological compatriots shows individuality and intelligence. When there's a powerful argument to be made for the other side's position, this can indeed be the case.

But if the anti-gun lobby's take on the Second Amendment's meaning has such an argument in its favor, Judge Posner does not make it.

topics:
John McCain, Books, Law, Supreme Court, Military