The 9th circuit weighs in on the 2nd Amendment. Both the LA Times and the Washington Post have articles on the 9th Circuit's opinion upholding a lower court's ruling in favor of California's assault weapons ban and the court's repudiation of the Bush administration's stance on the meaning of the 2nd Amendment. The briefer WP article focuses on Ashcroft's view, while the LA Times article goes into more detail concerning the background of the law and thrust of the opinion itself.

For a critical review of the opinion, go to Eugene Volokh's post on his blog, The Volokh Conspiracy. Volokh's argument is one that he has developed in print before: stated simply and without the historical nuance, state bills of rights and acknowledged legal authorities from eighteenth century (onwards) claimed that the right to own firearms was an individual right. The word "militia" in the 2nd Amendment has led the 9th Circuit astray, according to Volokh; the word originally referred to the body of citizenry and is thus more inclusive than today's national guard. It's also worth nothing [oops! meant, "noting"; sorry! -BEM] that the 9th Circuit cites Volokh in a list of scholarly supporters of the "individual rights view" of the 2nd Amendment. You can read the opinion itself by following the helpful links in Volokh's commentary.

What fascinates me about this particular issue is not the question of the original intent of the 2nd Amendment. The translation of original intent into contemporary political and legal idioms requires critical judgement that will always be subject to contestation. What interests me is the character of the contestation itself. Go to the NRA website and see the kind of world that is created there. I just searched their site for the phrase "9th Circuit" and found "no results." Hmm. A search for "California" brings up this page, which has no mention of an assaults weapons ban. Instead, we're treated first to a "Gun Collectors Program" article and a "Youth Wildlife Art Contest" article. This is not just a ranking issue: the story isn't there yet. Double-hmm.

I noticed this same phenomenon a few months ago: when the DC sniper shooter was plastered on headlines and TV screens all across the country, the NRA basically ignored it, but reacted strongly to the resulting ballistic fingerprinting proposals by Kathleen Kennedy Townsend, who was in a tough election battle for Maryland governor, which she ultimately lost to Republican Bob Ehrlich. Now I was sick of the sniper coverage, too. But I also don't structure my world around the absence of certain kinds of news stories. Consciously, at least.

Just as the NRA presents a partial view of the world, so, too, does it present a partial constitutional argument. Partial views of the world are necessary given the fact that we must rank information in importance in order to process it. Partial views of constitutional provisions do not spring from such pragmatic adjustments to our limited rationality; rather, they spring from the facts of advocacy and the dynamics of mobilization. The NRA is no different from any other pressure group here, such as the ACLU (partial view on speech) or NARAL (partial view on abortion).

The NRA needs an individual rights view of the 2nd Amendment because it needs a strong, nay, unambiguous hook on which to hang their claims. But it needs the hook less for the courts and more for its own mobilization efforts. In this context, it's not surprising that the main NRA website omits the first half of the 2nd Amendment (the "militia" part) and has, as its slogan, the second half of the 2nd Amendment, "the right of the people to keep and bear arms shall not be infringed."

For the NRA, the 2nd Amendment is actually the second half of the 2nd Amendment.