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.
The conclusion reached by the Supreme Court majority yesterday was probably inevitable, given the phrase "shall not be infringed", but the majority opinion is one of the worst written I have seen, and is contradictory.
On the one hand, Scalia indicates that the prefatory clause - the first two phrases which provide context - has no bearing on the for the concluding operative clause, rendering 13 words in the constitution completely irrelevant. However, he then goes on to inject a new context to support the right to bear arms, for self-defense in the home, which although reasonable is not mentioned anywhere in the bill of rights.
Scalia correctly points out that in "all six other provisions of the Constitution that mention 'the people,' the term unambiguously refers to all members of teh political community, not an unspecified subset." However, he thin goes on identify specific subsets of teh community that have a right to bear arms (law-abiding citizens defending their homes) and those who whould not (criminals, mentally-ill). Although this too sounds reasonable, the contradictions render the opinion debatable.
The majority then relies on a 'strict interpretation' to emphasize that the right "shall not be infringed." He then goes on to list the infringements that he beleives are still appropriate, including who gets this right, where it applies, and commercial transactions neccesary to exercise this right.
These inconsistencies suggest that this is not the best thought out opinion the Court has compiled. The air of personal opinion instead of logic is reinforced by other illogical arguments more appropriate to arguing the case than deciding it, such, "what is not debatable is that it is not the role of this Court to pronounce the Second Ammendment extinct." Although the modern context of DC law was part of the argument, the court was not asked to rule the ammendment 'extinct'. This is an extreme and argumentative position that does little to clarify messy middle that lower courts will need to sort out.
In the Washington Post article "Justices Reject D.C. Ban on Handgun Ownership", Robert Barnes correctly points out that "Stevens and especially Scalia made their points in caustic and dismissive language. Throughout his opinion, Scalia used terms such as 'frivilous' and 'absurdity' to describe his opponents legal reasoning." The 'opinions' of the Supreme Court ought to provide us with clear, impassionate, and logical guidance.
Both opinions discussed the historical contect of the ammendment, which sheds light on its meaning, but can never be relied upon to reach an absolute conclusion. Professor Mark Tushnelt of harvard correctly observes that both Scalia and Stevens wrote that "there's only one way to view what happened in 1791."
The legal crux of the conclusion, however, is consistent with most Supreme Court opinions, that the absolute prohibition of hand guns went too far. In many other cases the Court has ruled that the state cannot category deny one right to all people in order to protect another right, or people in general.
Ultimately, the opinion addressed only one part of the ammendment, and left room for infinitely more debate about the regulation of arms.
