Can the case of Right of the people to keep and bear Arms as per Constitution's Second Amendment be left alone?

Sometimes, as Beadle Bumble said in "Oliver Twist," the law is indeed "a ass, a idiot." Heller and other plaintiffs challenged the district's ordinance. They lost in U.S. District Court but won a notable victory last March on appeal to the D.C. Circuit. Now, regrettably, Mayor Adrian Fenty has appealed Judge Laurence H. Silberman's opinion to the Supreme Court. We will know in a few weeks if the high court will hear the city's argument.

Heaven knows the district could use a ton of effective gun control, but in seeking an appeal in this case the mayor serves no useful purpose. He risks an opinion that could wake up a nationwide kennel where sleeping dogs lie. We now have a status that is better left quo.


As many years of litigation have made clear, our nation is inhabited by 300 million constitutional lawyers, half of whom belong to the National Rifle Association. All of them are experts at interpreting the Constitution's Second Amendment, which reads in its muddy entirety:

"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."

When the Founding Fathers agreed on that language, they were having a very bad hair day. The first 13 words constitute a hanging or "dependent" clause, but the clause hangs invisibly on nothing and its interpretation depends upon what you had for breakfast. Reduced to its essentials, the Amendment reads, "The right shall not be infringed." What right is this? It is the right "to keep and bear arms." Whose right is this? It is a right "of the people."

All the rest is surplusage — 18th-century surplusage at that. As Judge Silberman explained in the pending case, the language dates from Colonial days. Militiamen were required to outfit themselves with a good musket or firelock, a sufficient bayonet and belt, and two spare flints. Commissioned officers also were armed with "a sword or hanger and espontoon." Dragoons had to ride to muster on a serviceable horse, "with a mailpillion and valise."

None of that is relevant to Dick Heller's case, and the mayor does not help his cause by relying even in part upon the militia clause. Judge Silberman generously described the city's position as "strained."

A better interpretation of the amendment focuses upon the right of individuals to possess arms for private use. Like every other "right" protected by the Constitution, this right "of the people" is not unlimited. Gun ownership may be regulated just as free speech, jury trial and criminal punishment may be regulated. In the case at hand, the District of Columbia makes no objection to Heller's keeping a shotgun at home. Under the ordinance, only handguns are prohibited.

In construing the constitutional issue, Judge Silberman focused sharply on the relevant verbs. The protected right is a right of the people not only "to bear" arms but also "to keep" them. Counsel for the district had argued that "to keep" means the government's collective right "to keep up a militia." That construction, said the court, "mocks usage, syntax and common sense."

Judge Silberman summarized the court's 55-page exposition:

"We conclude that the Second Amendment protects an individual right to keep and bear arms. ... But that is not to suggest that the government is absolutely barred from regulating the use and ownership of pistols. The protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for example, the First Amendment."

Quoting case law, the judge suggested that it would be reasonable for the city to ban the carrying of pistols to a church or polling place. The city could forbid the carrying of concealed weapons. Such reasonable regulations "would promote the government's interest in public safety consistent with our common law tradition." In the case at hand, all Dick Heller seeks is a right to possess a loaded pistol in his own home. The case has nothing to do with "whether the city can ban the carrying of handguns in public or in automobiles."

Thus construed, Silberman's opinion makes constitutional sense. Let it stand.

(Letters to Mr. Kilpatrick should be sent in care of this newspaper, or by e-mail to kilpatjj@aol.com.)

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