The Thing About
the Scales of Justice

In 1803, the great jurist St. George Tucker laid out clearly what the American public should expect to do if Congress "were to pass a law prohibiting any person from bearing arms." In such a circumstance, Tucker explained, "the judicial courts, under the construction of the words necessary and proper, here contended for, would be able to pronounce decidedly upon the constitutionality of these means."

To modern Americans, this, perhaps, seems obvious. When the government denies us the unalienable rights that are protected in our Constitution, we take that government to court and, as the great legal scholar, William Rawle put it, we appeal to the U.S. Bill of Rights "as a restraint." That, ultimately, is what judges are for. Governments are full of flawed men, and when those flawed men inevitably err and usurp and cheat, we demand that the judiciary step in to keep them in check. Simple.

At least, it's simple in theory. In practice, it's a little more complicated than that. Back in 1789, when James Madison introduced the Second Amendment, he listed it among a series of rights against which "no serious objection has been made by any class of our constituents." But that, alas, is no longer unequivocally true. Among Americans, the right to keep and bear arms remains extremely popular. But among judges? That depends. .....