The Right to Bear Arms and the Mind of an Honest Judge


The Supreme Court decision yesterday to strike down the Chicago ban on handguns was based on a 2007 decision by the U.S. Court of Appeals for the District of Columbia. That 2007 decision, the first important jurisprudence on the right to bear arms in some seven decades, was written by Judge Laurence Silberman.

On Uncommon Knowledge not long ago, Judge Silberman explained himself.

Five minutes that will tell you what you need to know about the Second Amendment, the right to bear arms, and the correct and honest way to read the Constitution.

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  1. Profile Photo Member

    Peter — That offers a quite lucid explanation. But as a city dweller, I still can’t get past the issue raised by most police departments: When you are dealing with well-financed drug gangs, how does this reading allow law enforcement to prevent anyone that wants to from owning a semi-automatic or other military grade weapon that could be used against the police. If anything, Judge Silberman’s notion of “original meaning” would only support this notion. The examples of “reasonableness” offered in yesterday’s opinion were so narrow as to invite all kinds of challenges, including the simple restriction of registration. How can you divorce the context of the 18th century from the meaning? If the musket was the weapon of choice for militia in 1776, surely grenade launchers would be the equivalent today. Local legislators elected by the people are having their decisions overturned from the bench. Isn’t this what conservatives call judicial activism?

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  2. Profile Photo Contributor

    I don’t own a gun I’ve fired one only once in my life. Yet I’m firmly pro-2nd Amendment. I support the rights of my fellow citizens to own guns. This is in contrast to liberals, who frequently own guns themselves but don’t want others to be able to own guns.

    The best political assessment on guns was Grover Norquist. He says liberals talk about gun control so they don’t have to talk about crime.

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  3. Profile Photo Inactive

    The right to bear arms is an individual right, used most effectively in collective fashion, especially in the early years of this country. A better example today, would be signing a petition. I have to right to petition government (or a private entity) as an individual, but it’s a lot more effective if I can add my name to a list of a thousand, or 100,000 others who share my concern.

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  4. Profile Photo Member


    I believe that a literal interpretation of the 2nd Amendment can be justified without appealing to the method of originalism. According to Dr. Tara Smith, originalism holds “that the meaning of the Constitution should be settled by reference to the original understanding of those who enacted its provisions.” Instead, I think that Constitutional statements should be interpreted only in ways that commit the government to protecting negative rights, e.g. rights to liberty and private property. Why? For one thing, economic theory and history both demonstrate that prolonged increases in productive capacity and standards of living require environments where liberty and private property are recognized and protected.

    With regard to guns, it can be demonstrated that gun controls (measures that reduce economic freedom) cause social mal-effects. It appears that gun controls prevent only law-abiding citizens from acquiring guns (indeed, by definition). However, economic history illustrates that citizens willing to commit crimes and breach gun control laws can easily acquire guns. Those who attempt to acquire guns despite the existence of gun control laws tend to be criminals willing to commit violent offenses. Thus gun controls disarm law-abiding citizens in the face of armed criminals.

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  5. Profile Photo Inactive

    Evil exists. Without threat of force, property and freedom are fleeting.

    Governments exist only as long as they can protect their boundaries and enforce their laws, which is why every national government originates with a military. Likewise, individuals have freedom only so long as that freedom can be guarded. And nothing is so American as self-reliance.

    Without an individual right to bear arms, all other rights are dependent upon the good will of bureacrats. Public employment does not exclude human nature. Threats to freedom will always come both from within and without government.

    The role of police is to punish and deter crime. They can never be everywhere at once, so they cannot be relied on as our sole threat of force. Here in the South, we have a saying: “When seconds count, the police are just minutes away.”

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  6. Profile Photo Member

    Michael/Aaron — I appreciate you guys coming back to me on this. I guess the notion of protecting negative rights makes more sense to me than Judge Silberman’s notion that we should all be prepared to be called up to the militia. As a practical matter though, you’re hard pressed to persuade me that I’m safer now that any random stranger could be packing. But the proof will be in the pudding. If gun violence is flat or, to your premise, actually declines, then we’ll have another reason to credit the founders’ brilliance.

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  7. Profile Photo Coolidge

    Perhaps the solution is to enforce existing laws? Call me old-fashioned.

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  8. Profile Photo Inactive

    I agree that Silberman’s notion struck me as strange and dangerously limited. Government exists for its citizens. We do not have rights for the sake of government.

    Incidentally, my “threat of force” argument isn’t only about weapons. Much of the reason it can be hard to find a quiet movie theater these days is because government has so monopolized the use of force that a rambunctious teen can’t be escorted out by the scruff of his neck anymore.

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