Grammar and History in the Second Amendment
How Did the Supreme Court Get Both of Them So Wrong?
I’ve written elsewhere about the 1787 political context that rendered the Second Amendment vacuous at its birth, and I know it gets a bit queasy to think about the Constitution that way. Once you’ve taken a cold-eyed look at the mess that is the Second, all of the first ten amendments that we like to call the Bill of Rights can start to waver. As can the whole document.
But it can be liberating, too, to look at the Constitution as a result of, how should I put this, politics. And the Second really is unique among the amendments, unique in the Constitution in the ways I’ve already discussed. Looking at the Second in context doesn’t mean you have to start knocking down the whole Constitution as a set of bad political compromises.
I also know that many gun-control advocates will remain sure, no matter what I say, that if the amendment were only read properly, with the protected right located solely in the collective action of militia, as referred to in the opening, then gun control would prevail.
The Supreme Court of the United States also disagrees with me on this matter, as of 2008, anyway, in District of Columbia v. Heller, for reasons pretty much the opposite of those espoused by gun-control people. According to the Court, and contra me, the amendment is fully meaningful; read properly, the Court says, the protected right is clearly an individual one that while not absolute—no right is—is unlimited by any militia requirement.
What’s fascinating, in a horrible way, is what happens in the Heller opinion, as written by the late Justice Antonin Scalia, which is what so often happens in the upper reaches of constitutional law. The opinion relies not on abstruse legal reasoning, beyond my and most of our scope, but on authoritative pronouncements about founding-era American history and also, in this case, about English grammar. Those fields can get a bit abstruse too, but unlike the law, I have a decent grasp on both of them, which suggests to me that neither can be all that hard to understand, at least for our purposes here.
Scalia, however, evidently taking himself for a born authority in both fields—maybe because he wears a robe?—must not have bothered to study up, or have his clerks study up. In Heller he gets both the grammar and the history relevant to the Second Amendment unambiguously wrong.