Despite the First Amendment explicitly stating "Congress shall make no law", we accept restrictions on speech every day, however, mention restricting the ownership of guns and some suggest we cross a rubicon of government intrustion on the individual. It is a confusion which abounds, shockingly has never been addressed by our highest court and ultimate clarity rests on the strange construction of our most discussed federal law.
The Second Amendment may be the most tortuous clause in an aged document laced with dated verbage and 18th century mannerisms. Filled with commas and awkward phrases, it seems to simultaneously grant the government the ability to regulate arms for the purpose of defense yet absolutely states the right of the people shall not be infringed.
With the ever escalating heat of the gun debate, most on both sides ignore this critical nuance. With backs arched, the absolutists either claim all regulation is unconstitutional or claim regulation all the way to prohibition is perfectly reasonable.
Both are wrong and despite the political spin you will hear over the next few days, Justice Antonin Scalia writing for the majority in Heller brilliantly explains why.
...the most natural reading of ‘keep Arms’ in the Second Amendment is to “have weapons...The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity...Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation...Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.
The majority ultimately decides that indeed government regulation is allowed in order to maintain security (the underlying purpose of the first portion) but cannot result in an absolute prohibition of individual ownership of firearms (the underlying principle of the second portion).
The District of Columbia with its absolute prohibition of handguns, as Justice Scalia referencing Miller states, weapons "in common use at the time", obviously uses the first clause of the amendment to attempt the utter destruction of the second clause.
Guns will continue to be regulated. However, regulation cannot overwhelm the ultimate right to bear arms. In the majority's view, even though it strongly avers the individual right, both must live in harmony.
It is in those harmonic moments where we discover the brilliance of the founders - radicals all but absolutists none. Whether "strict constructionist" or advocate of a "living document, all must understand the underlying principle of our greatest document is idealism tempered by reason.
Through this philosophical filter, Justice Scalia shows the Second is not so discordant after all. In fact, it sings.
