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logo    The Supreme Court, Strict Construction, the NRA, and Gun Control


Recently, while sitting in a waiting room, a came across a copy of the National Rifle Association's official magazine which contains an article about the second amendment and the Supreme Court's  decisions concerning it. The argument is straight forward and has an aura of plausibility.

The gist of the argument is that the Court has held that the Second Amendment right applies to individuals, not groups or organizations. The amendment states that ". . . the right of the people to keep and bear arms, shall not be infringed. The amendment does not say that the right of the militia to keep and bear arms shall not be infringed." The NRA then argues that the government's sole responsibility is to enforce the laws regarding guns and their use already in effect.

There does seem to be some prima facie truth to the notion that rights belong to individuals, although the Constitution certainly is not absolutely clear about it. The first amendment, for instance, forbids the prohibition of the freedom of the press. Of course, the word press is an ambiguous term in current usage; it can mean a reporter or an institution such as a newspaper. Although a reporter is an individual, a newspaper is not; yet newspapers seem to have this right. And whether or not the cases cited by the NRA gives the right to keep and bear arms to individuals is difficult to determine, because Supreme Court decisions are not always lucid documents. They consist of a mixture of two types of argumentauthority and presentations of fact.

The method of authority, most famously used by St. Thomas Aquinas, consists of a claim and a citation of an authority such as a Church Father or the Bible as its justification. The Court's use of this method consists of a claim and a citation from a previous decision. But there is a vast difference between the two. Authorities cited by Aquinas are, in principle, not questionable. However, previous decisions of the Court are based on argument very much like the argument in any case in question and also contain both claims and citations. Since this chain of citations can be, and often is, extensive, it is almost impossible to expose the complete argument so its validity can be evaluated. It's as though the Court believes that once a decision has been handed down, the argument that justifies it becomes irrelevant, and it then follows that no amount of logical criticism, no matter how valid, can refute it. Although the Court may use argument to come to its conclusion, once the conclusion is reach, the Court speaks ex cathedra. But such a method of deciding cases could never be acceptable to those who believe a decision is wrong-headed.

The Second Amendment, because of the way in which it is written, is ambiguous at best. Any decision concerning it must, therefore, be based on an interpretation. And if that's true, then the doctrine of strict construction makes no sense. Nobody can base an argument strictly on the text of a document if the text itself requires an interpretation.

Attempts to overcome this difficulty involve trying to determine the framer's intent. But how does one go about determining the intentions of people who lived more that two centuries ago?

Well, perhaps they stated their intentions in other writings. But what if they haven't? What can a so called strict constructionist turn to then?

One can look at possible purposes. What could the purpose of the second amendment be?

1.        To provide people with the absolute right to keep and bear arms.

2.        To ensure that the nation always has a means of defending itself from invasion by ensuring that state militias not be abolished.

How does one decide from among these, and can such a decision be made by means of strict construction?

In today's world, the second purpose is completely unnecessary, since this nation now has a standing army, distinct from state control. So if the amendment makes any sense in today's world, the only possible purpose it can have is the first. But what if that conflicts with the interests of society as a whole?

Society's purpose in proposing various gun-control measures is to protect people from death and injury by means of firearms. So we have to ask which purpose is most desirable? Of course, opinions will differ. So where does that leave the doctrine of strict construction and the NRA's argument?

There are only a small number of conclusions that can be drawn.

If the NRA's reading of the Constitution and the Court's decisions is accepted, the right to keep and bear arms supersedes the public's right to protection. The NRA's argument for this reading is that the laws already in effect are sufficient to protect the public.

But that can't be right, because law enforcement comes into play only after the offense has been committed, and the public's interest is to prevent the offense, not punish the perpetrator. Existing law cannot prevent these offenses from being committed, so existing law cannot satisfy this public interest.

If we Americans accept the second amendment as conferring an absolute right upon individuals to keep and bear arms, then we must also accept the consequent death and injury that will result. But if we accept the notion that human life is more precious that an individual's right to keep and bear arms, then the second amendment must be interpreted as applying to militias and not individuals. The controversy comes down to deciding between these alternatives. (11/14/2005)