Based on the discussion at Monday’s arguments, five or more Justices of the U.S. Supreme Court may believe that the government must overcome its highest burden for justifying its attempt to restrict a citizen’s right to keep and bear arms.

I’ll leave further discussion of that issue to Cam’s expertise while I turn to another question: What are the implications of their views on other individual liberties that are specifically named in the Constitution? For example, the freedoms of speech, press and religion that are outlined in the First Amendment.

It seems to me that, if anything, the rights protected in the First Amendment are just as clear — if not more so — than the second. Consider the language:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

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.

For more than two hundreds years, the debate about the Second Amendment has hung on the Framers’ collective decision to explain themselves with a bunch of language about necessity and security and their relationship to having a militia. Imagine if it read this way: “The right of the people to keep and bear arms, shall not be infringed.” Not much grey area there, huh? And there would be no need to debate the definition of “militia,” because the term doesn’t appear. Constructed this way, the amendment is absolute, and absolutely clear.

Now, go back and read the First Amendment again. “Congress shall make no law…” The language is so simple, and utterly clear. There is no grey area. No explanation. No modifying language. Nothing.

Focus on the speech provision. “Congress shall make no law…abridging the freedom of speech.”

Laying aside the long-standing legal debate over the definitions of “abridging” and “speech,” consider the legal standards at play. In the McConnell case, the Supreme Court invented a messy legal standard that not even experts can decipher effectively. As applied in that case, the standard was low enough to allow the government to effectively regulate almost anything it wants. Applying the same “compelling interest” standard in McConnell that it is considering in the D.C. gun law case would, in my view, have rendered an entirely different result — one that would have found BCRA and other laws banning certain varieties of speech unconstitutional.

And that seems only logical. The language is so clear. So obvious to anyone who just, you know, reads it. So why must the court get wrapped around its axle? The answer, of course, is precedent.

It will be interesting to see how cases involving the Second Amendment evolve the Court’s reasoning in light of its decision. Here’s hoping the Court’s language in the D.C. gun case clear enough to avoid misunderstanding. I’m not holding my breath.