The Supreme Court and Amendment II of the Constitution of the United States of America

Ipemndoh dan Iyan

The principal Characteristic of the Supreme Court of the United States of America (SCOTUS), like any other Supreme Court, is that it is a 'collective-Institution'© The major Element of an Institution, collective or singular, is that it is organic only in the Existence of its Human Members. As an inorganic Entity, the Institution does not condition the behaviour of its Members. Rather the Institution is defined by the Preferences of its Members. 

In all Cases, the Attitude of the Institution is steered by its most powerful Members whose Power derives either from being in attitudinal majority or able to deploy persuasive (hard or soft) Resources, severally and/or collectively. The Existence an Institution has, is the Lifeline such powerful Members give it.1 It is sensible to note, however, that occasionally the Behaviour of the Institution is characterised by the Practice of some Rogue Elements in seeming Contradiction to the Attitude of the Institution. Such Behaviour does not necessarily identify with the Attitude of the Institution unless it is prevalent, and the Institution does not condemn and punish it. An Example that comes easily to Mind are Police Transgressions. 

It is also an inevitable Characteristic of the Institution that its Membership changes. The Institution’s Identity will continually reflect these Changes. With this Understanding of the Institution, we can appreciate that Decisions made by Institutions are transient, eventually. Such is the Ruling of the Supreme Court entrenching the Right of Citizens of the United States of America (US/USA) to carry Arms. It was the Opinion of a particular Thinking of the Majority Members of that Court at a specific Time in the History of the US. It is feasible that the Court might again have a Majority Membership which will discard the 2008 Opinion that decided preferentially that the Constitution bequeaths the ‘American’ Individual the Privilege to carry Arms. 

In 2008, the Supreme Court in District of Columbia, et al. v. Dick Anthony Heller, 554 U.S. 570 in a 5-4 Majority Decision defied the Intention – Letter and Spirit – of the Second Amendment which had been maintained for 217 Years until then (2008). Subsequent to the bizarre 2008 Interpretation of Amendment II, Commentators have come out to justify this Diversion from Expectations in interesting Ways. Some have simply written Arguments espousing the 2008 Decision. Some, like James C. Phillips and Josh Blackman, have conducted Studies to justify that Opinion. 

In ‘The Mysterious Meaning of the Second Amendment',2 James C. Phillips and Josh Blackman stated as follows:  

What does the Second Amendment mean [by] “the right of the people to keep and bear Arms, shall not be infringed”[?] ... Based on our findings, an average citizen of the founding era would likely have understood the phrase keep arms to refer to possessing arms for both military and personal uses. ... an “ordinary citizen” at the time of the founding likely would have understood that the phrase arms, in the context of rights, referred to both militia-based and individual rights. (Emphasis mine)

‘The Mysterious Meaning of the Second Amendment' is a Summary of their Study relying on ‘Corpus Linguistics' to investigate the Frequency of Use of the Words of Amendment II to determine the Expectations of that Amendment by its Drafters. Their Conclusion that Amendment II permits the individual Possession of Firearms is solid. That is, if you accept their Frame of Reference that the Drafters wrote the Amendment in the Context of the day-to-day English Language Grasp of the "average" 'American' at the Time. I do not. My Contention relies on the simple Fact, a priori, that the Drafters did not expect that "average citizen" at the Time of enacting the Second Amendment to read the Amendment let alone understand it. At any rate, the “average citizen” of the US at the Time was neither that inclined nor educated enough. 

Even today, how many ‘Americans’ have had a look at their Constitution? How many would understand it if they did? How many would not be suggestible to Interpretations provided by others? We witnessed in the Aftermath of the 2020 Presidential Election – from the Loss of that Competition by Donald J. Trump Sr to the Insurrection of 6 January 2021 he incited – how much ‘Americans’ including Legislators, and Lawyers, are uneducated about their Constitution. Yet, Legislators, and Lawyers presumably have College/University Degrees/Qualifications. You, see? The “average citizen” of 'America' is still neither inclined to consult the US Constitution personally nor educated enough to comprehend it if s/he did. 

Of course, the "average" ‘American’ is not the only Citizen without intimate Knowledge or any Knowledge, at all, of the Constitution of the Country of which s/he is Citizen. Most Populations of the World are in the similar Condition of self-imposed Dearth of Comprehension of the Rules which instruct how their Lives should be governed by those they have elected to organize their Societies.  Thus, I do not buy into the Premise Phillips and Blackburn worked on. They focused on a false Benchmark. What I will do here is look at what the Framers might had been reflecting upon at the Time they contemplated that Amendment. What were the Conditions at the Time? I will not discuss these Conditions specifically, but imply them integrally with my Arguments in this Essay. 

The Reality of the 2008 Decision was the Compact of five Minds who imposed their Preferences on Amendment II. It is arguable that the Decision was partisan. Republican Party - aka GOP - partisan. The 5 in the Majority were all Republican nominated Justices. Samuel Alito, Anthony Kennedy, Chief Justice John Roberts, Antonin Scalia who “delivered the Opinion,” and Clarence Thomas. That Decision was certainly not GOP Philosophy. The Minority of four comprised Democrat nominated Stephen Breyer, and Ruth Ginsburg accompanied by Republican nominated David Souter, and John Stevens. 

What is undoubtedly clear is that the Judgment was found not on intellectual reasoning cognate to the Intention of Amendment II, but predicated on extreme conservative Priorities. The Conditions attached to the 2008 Judgment simply confirmed that the Supreme Court made up its own Law under Camouflage of interpreting the Second Amendment. The Amendment itself did not create or cause the Confusion elicited in that Judgement. The Amendment was straightforward albeit its Manner of Presentation was not. Nevertheless, Amendment II chose its wording carefully to avoid what the 2008 Judgment contrapped. 

 

Before this disastrous 2008 Opinion, the Supreme Court in United States v. Cruikshank et al, 18753 opined that

The right ... of ‘bearing arms for a lawful purpose ... is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constitution of the United States.

This 1875 Opinion is not Support for the 2008 Decision in any Manner of interpreting it, but inadvertently agrees with me. In stating that “The right ... of ‘bearing arms for a lawful purpose ... is not ... granted by the Constitution [or] in any manner dependent upon [it] for its existence,” the 1875 Opinion unwittingly - only because it did not spell it out - claimed that the Right to “bears Arms” is intrinsic to Human Liberty, that this Right is fundamental, some kind of Inalienability. To appreciate the Right to “bear Arms” as inevitable Human Right is (1) An Understanding of the Human Circumstances in the ‘State of Nature’, and (2) a closer, and the more apposite Realization of Amendment II when fully ratified in 1791. 

Let me untangle my Propositions at (1), and (2) above. One; in the ‘State of Nature’ it was necessary for the Person or a Group to arm themselves for Protection against Attack from Hostiles, Human or non-Human. It was a Necessity for Survival. However, the Reality is that there is no Need in Modern Society for private Citizens to own and “bear” Arms for Self or Group Protection. The Possession of Arms, and the Harm it causes are self-perpetuating. The Killings of Bystanders, and Innocents by Shooters with Grudges – justified or unjustified – against Individuals with whom they are connected or not, brings this Reality home. Two; the Imperative of the Continuity of the Group is, a priori, the Underpin of the Qualification of “well regulated Militia” in the Second Amendment, and the Explanation for the various Negotiations over the Amendment before the final Ratification. Group Protection at the Level of governing Bodies is the Essence of Modern Society. 

Now, let us familiarize ourselves with the Text of Amendment II on what the Constitution says about the Right to carry Firearms:

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

This Second Amendment is quite specific in its Language on the Possession of Firearms. It contains certain Keywords which emphasize the Intentions of its Framers and why it passed Approval. It chose to use the Word “bear” rather than ‘carry’ Arms. There is Distinction in Meaning. ‘Bear’ has with it the Implication of requesting Tolerance, and Understanding of a necessary Burden whereas the Word ‘carry’ is independent of any Imposition of Duty on the Person. Note also that Amendment II does not use the Word ‘Individual’ or ‘Person’. It deployed the Expression ‘the People’ in Relation to “a well regulated Militia [for] the security of a free state.” Amendment II did not, and does not, intend “the security” of the United States of America as a single Entity, but “the security” of individual States against a hostile Neighbor with which they comprise(d) the United States of America. In simple Interpretation, Amendment II says:  

we impose on you the Burden of holding Arms at your Disposal under Direction, strict Instruction and Guidance to guarantee the Safety of your State and its People against your Neighbor that elects to be hostile© Ipemndoh dan Iyan© 2021

This Second Amendment is an incredibly simple Text. There is no Fanfare to it. It leaves no Doubt it is talking of Firearms in the Hands of “a well regulated Militia.” ‘Militia’, ipso facto, is not the solitary Person, but a Consignment of Persons. Then you have the term “regulated” that itself signifies ‘Unity of Command’. This Structure is emphasized by the Condition of “well.” You cannot have Unity of Command with the solitary Person with own Gun. Unity of Command is obtainable only within a Group. In direct Language or by Implication or even by Inference, Amendment II is crystal clear in Intention. The Right to bear Arms is exclusive to a Detachment under the Rules of ‘Command and Control’. Articles I and II of the Constitution confirm the Military Force Nature of the Militia. In 1791, the ‘Militia’ was the Army for each State. Today, this ‘Militia’ is the combination of ‘State Defense Force’ and the ‘National Guard’ incorporated in the ‘Militia Act of 1903’ the National Security Act of 1947, and 10 U.S.C § 246. 

Sixty-nine (69) Years before the misdirected Judgment of 2008, the Supreme Court in United States v. Miller et al, 307 U S. 174 (1939) confirmed the Intention and attendant Expectation of the Second Amendment II in what was closer to unanimous Ruling than the majority Decision it is cited as. The Citation is factual but my unanimous Qualification recognizes the philosophical Conditions of the Judgment. The Justices understood that Amendment II enshrines the Right to ‘bears’ Arms for the “common defense” not for individual Protection. There was no Dissent. The ninth Justice took no part either in examining the Case or in resolving it.  

It will be a Matter of Time that the Supreme Court of the United States will again have Justices who are not interpreting the Constitution of the Country to suit their Preferences for the social Order (Social Organization) they desire. More often than not, the personal Inclinations of US Supreme Court Justices reflect the Majority Rulings of that Court. 

Endnote

1For a fuller Understanding of the Institution, see see dan Iyan, I. P., The New World Order 1986 to 1999: The Behaviour of the United States Within United Nations Security Council Responses to Global Conflicts, Aberdeen: University of Aberdeen, Google Books, 2002.

2'The Mysterious Meaning of the Second Amendment', Atlantic, February 28, 2020. https://www.theatlantic.com/ideas/archive/2020/02/big-data-second-amendment/607186/ 

3See 92 U.S. 542, 2 Otto 542, 1875 WL 17550 (U.S.La., October Term).

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