No conditions on Second Amendment
Surratt is retired and lives in Salem.
The May 15 opinion piece "Gun rights should apply to the general good," by Lawrence Reid Bechtel, prompts me to respectfully disagree with his views on the meaning of the Second Amendment and his proposed future course for gun rights.
Specifically, his interpretation that the right to keep and bear arms applies only as an adjunct to the need for a well-regulated militia does not comport with an objective reading of the language.
As he quotes it, the Second Amendment provides: "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." Given the overall context of this amendment and the unconditional nature of our Constitution generally, the introductory phrase referring to the need for a well-regulated militia more convincingly appears to have been merely an expressed premise, not a precondition, for the substantive right to keep and bear arms.
Thus, the Second Amendment conveys essentially an unconditional "right of the people" that "shall not be infringed" regardless of any changing circumstances or convenient excuse. No exceptions to this right were tacked onto it.
Moreover, while there may currently be no need for a militia, as such, and may very well never again be, that is not a certainty. Also, it would seem that the issue of whether there is a need for a militia would always be a political, rather than a legal, question, the answer to which courts could not decide or assume as a given.
It is arguable that the Second Amendment necessarily presupposes or presumes an ongoing potential need for a militia -- even if not always an immediate one -- as its wording expressly proclaims.
Regardless, the operative language in the amendment is its positive command, which stands timeless and permanent, that is, "the right of the people to keep and bear arms, shall not be infringed." This imperative is a clause, not an interdependent phrase, as Bechtel characterizes it. No part of the Bill of Rights is temporary, comes and goes with circumstantial fluctuations, or expires with shifting sands.
Contrary to Bechtel's suggestion, there is no need to contrive some new, current societal utility in the right to keep and bear arms to justify honoring and upholding it.
Our Constitution is a foundational document that is inviolable unless changed according to its own terms, terms that opponents of gun rights grudgingly cannot meet.
Though constitutions and statutes are necessarily somewhat abstract and therefore sometimes in need of judicial interpretation and practical application, they cannot legitimately be interpreted or applied in such a way as to negate or defeat their essential thrust and purpose.
To make the right to keep and bear arms contingent upon an ever continuous need for a militia would, for all practical purposes, render this cherished part of our Constitution temporary and superfluous.