Parker and Principles

My local paper recommended a reading of Parker v. District of Columbia to get an understanding of this controversial decision that will likely head to the Supreme Court. Of course, I took their advice.

I have argued previously in an extended editorial to the same paper that American morality is not derived from religious sources but is driven by the interplay of largely secular notions of principles and laws. The former are partly indescribable and governed by changing semantics over time: freedom, liberty, fairness. All of these are mostly unrelated to religious convictions except in very strained cherry picking of religious texts. The Abrahamic religions are notorious in their historically xenophobic tribalism, for instance, though Confucianism provides a more direct effort to provide a philosophical construction of government and governance. So exegisis, omission and liberal readings become the critical analytical tools to forming justifications for morality when using ancient religious texts as a basis.

But language is imperfect and something seemingly as simple as determining the meaning of Article II of the US Bill of Rights takes on some of the same character, though with a remarkably analytical focus. Parker v. DC is one of those cases. Here's the text of Article II:

"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."

In Parker v. DC, the meaning of Militia, State, and Arms are all debated, invoking common parlance and historical context. DC even claims (and is supported by the dissent) that DC is not a "State" under the terms of the Constitution and that the rights and liberties guaranteed therein don't really apply to territories or special federal districts. Another aspect of the analysis of both positions is whether the prefatory clause "A well regulated Militia" constrains the remaining language. I'm amused by both sides on this, most especially because I once argued (derived from Justice Stevens, I think), that in the 1st Amendment, the establishment clause takes precedence over the free exercise clause because it arrives earlier in the sentence.

Minutiae is minutiae no matter which side you come down on, but it is sad that the Bill of Rights is hostage to the embalmed critical analysis of highly ambiguous language in short pithy statements. I tend to support readings of the Constitution that provide for the freedom principle first and foremost, but that then supports the fairness principle in that there are no additional rights extended by implication. So I agree with the majority opinion that the individual's right to own firearms was intended (or ought to have been intended in any case) by the Framers. But that right can be regulated under some circumstances, with the decision criteria built on a fairness principle (does the regulation provide for the fair access to said firearms for the historically-motivated purposes of self-defense, hunting and providing a militia?) This is identical to my position on 1st Amendment religion tests: freedom of exercise is not encroached by legislation that fairly (was not formulated to restrict a religious group from their practice) serves a criminal legal function (protecting the right of Laotians to club dogs to death for good luck does not override our right to legislate against animal cruelty). This latter position actually flies in the face of recent 1st Supreme Court decisions, but they were, in that case, operating not just on the issue of the 1st, but on additional legislation that modified the interpretation of the 1st to, in my opinion, distort the fairness principle.

But the broader question for me is whether it is possible to reduce the interpretive conundrums that have resulted in these snarled roots? Certainly it would have better served our present purposes to have had the 2nd written like:

"An individual has the right to keep and use light firearms like rifles and pistols, for hunting and to protect themselves, their homes and property from violation and tyranny. Congress and the States shall have the power to create and regulate militias, to regulate hunting, and shall have the power to limit access to, possession of and use of other dangerous weapons and devices that constitute a threat to the common good."

We can't anticipate how a reading of this will change in another 200 years, but we could be better suited by it for the next bit--say, 50 years. Anyone up for an Amendment?