In a moment of uncharacteristic ebullience, William Gladstone described the American Constitution in 1878 as "the most wonderful work ever struck off at a given time by the brain and purpose of man." Like many contemporary commentators, the prime minister had given too little thought to the Constitution's Second Amendment.
If the Supreme Court agrees to hear a pending appeal in a New York case, that neglect may soon be addressed. The amendment reads, as every schoolboy knows:
"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."
A Virginia lawyer, David D. Bach of Virginia Beach, has embarked upon a personal quest to clarify the murky language of our Founding Fathers. He brings impeccable credentials to a difficult task. He has served for 25 years as an officer in the Naval Reserve, including 12 years of active duty as a Navy SEAL. He returned recently from a tour of duty in Iraq. He's now attached to the Navy's Office of General Counsel.
Bach is a citizen of Virginia. He frequently drives with his wife and children to visit his parents in upstate New York. The long trip takes him through areas where brigands reasonably may be anticipated. He wants to be armed and prepared. Wholly apart from his sense of potential peril is his conviction that he has a constitutional right to bear arms. He long ago obtained a license to carry a handgun in Virginia, but when he applied for a similar permit in New York, he hit a stone wall. His repeated applications were repeatedly denied. Nine months ago, a panel of the U.S. 2nd Circuit unanimously upheld the state's unfriendly law.
Bach's appeal to the Supreme Court presents interesting questions of constitutional law. Gladstone's after-dinner encomium was mostly hooey. Our beloved Constitution is riddled with ambiguities, inchoate provisions, chameleon clauses. As a die-cut legal document, it is hardly wonderful at all. Constitutionally speaking, pray tell, what's a privilege? What's an immunity?
More to the point, what is this "right of the people to keep and bear arms"? The phrase dangles clumsily off the end of a poorly punctuated platitude. Chief Justice Warren Earl Burger once said that the amendment must be read as if it began, "Because a well-regulated militia is necessary," and so forth. Today's jurists must struggle with the relevance of the opening words.