The Common Sense Second Amendment

Second, if another tenet of textualism is to read Constitutional text narrowly, then the scope of the “right to bear arms” should be read narrowly to have the most limited meaning.  For example, even if the second part of the sentence guarantees an individual right to bear arms rather than a right associated with militias, the text does not suggest an unlimited individual right.  A narrow reading of the text might well permit assault weapon prohibitions or regulations on some forms of gun ownership.  After all, the right to bear arms does not necessarily imply the right to bear all arms.  Some or even a few arms might satisfy a narrow reading of the text.

The Supreme Court enjoys the ultimate authority to interpret the Constitution.   In two recent decisions, the Court has read the parts of the Amendment separately, concluding that the first part of the sentence is prefatory (which I think is hypocritical for an avowed textualist to conclude).  The Court also concluded that the right to bear arms is an individual right.  It has not yet addressed the full contours of that right, although Justice Scalia’s opinion in Heller asserts that the right is “not unlimited” and suggested, in dicta, that “weapons that are most useful in military service—M-16 rifles and the like—may be banned.”  It remains to be seen whether the Court will in fact uphold such a ban, and whether future iterations of the Court will interpret the Amendment differently.  But what is clear is that progressive jurists have a strong textual Constitutional argument for reasonable gun-control measures.

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