The Supreme Court became a political football…again… with its 5 to 4 decision stating that an individual’s right to bear arms is constitutional. Even though Democratic presidential candidate Barack Obama generally accepted the court’s decision, there will be plenty of advocates in his party who will argue that one Supreme Court appointee of a President Obama could reverse this decision in the near future.
Of course, on the other hand, this issue is one that may bring uncertain conservatives to finally embrace the McCain campaign using the same logic that one vote could change the result.
Thus, the Supreme Court’s right to bear arms decision will join the abortion issue as partisans try to use potential Supreme Court appointments as a persuasive debating point in trying to sway voters.
I believe the Supreme Court made the correct decision. Justice Scalia made an extraordinary effort to interpret the seemingly inconsistent clauses in this 27-word amendment: "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."
Scalia argued that the opening clause dealing with a "well regulated militia" – what he called the prefatory clause – is a logical explanation for what he sites as the operative clause: that the people have a right to bear arms.
Scalia argues that the prefatory clause is not a limitation on the operative clause but rather it announces the purpose of the right to bear arms. As way of illustration, Scalia says if one word were added and another changed in the amendment it would be clear that the first clause is the stated purpose for the second clause.
BECAUSE a well regulated Militia IS necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
To have a needed well regulated militia, the people must have an individual right to bear arms.
Ironically, UCLA law professor Eugene Volokh, whose work is cited in the majority opinion by Scalia, states in his blog that he believes more conservative justices who sat on the court thirty years ago would have not accepted the individual rights view. Volokh argues that Chief Justice Burger was a supporter of the states’ right view of the Second Amendment and that most federal circuit court judges would have dismissed the individual rights view.
Now that the courts have spoken the issue will be handed back to the politicians and political activists.
Read the full decision here.