The Court Selectively Reviewed History
Justice Scalia devoted the greater part of the opinion in D.C. v. Heller to a selective historical analysis concerning the meaning of the text of the Second Amendment. The Court framed the principal issue raised by the case as whether the right secured by the Second Amendment arises only in the context of a person’s service in the militia, or whether it encompasses a right to possess firearms for private purposes. The Court answered that question by dissecting the Amendment and analyzing its two major provisions separately.
Essentially, the Court concluded that the second clause of the Amendment (“the right of the people to keep and bear Arms, shall not be infringed”) refers to a pre-existing right of individuals “to possess and carry weapons in case of confrontation,” which cannot be limited by the first clause (“A well regulated Militia, being necessary to the security of a free State”). Heller, slip op. at 19. The Court stated that this right “was not unlimited” and that the Amendment does not protect “the right of citizens to carry arms for any sort of confrontation.” Id. at 22 (emphasis in original).
Justice Stevens notes in his dissent that “The evidence plainly refutes the claim that the [Second] Amendment was motivated by the Framers’ fears that Congress might act to regulate any civilian uses of weapons.” Heller, slip op. at 27 (Stevens, J., dissenting).
Indeed, the majority’s view that the Second Amendment guarantees a private “right to bear arms” unrelated to militia service is completely at odds with history. At the time the Bill of Rights was adopted, the phrase “keep and bear arms” had a strictly military connotation. All recorded remarks from the congressional debate on the Second Amendment relate to military service; none discuss the private use of weapons.
The military nature of the amendment is reinforced further by the fact that a conscientious-objector clause was included in James Madison’s original draft of the Second Amendment. Although that clause (“no person religiously scrupulous of bearing arms, shall be compelled to render military service”) was later removed, it demonstrates that private gun ownership was not contemplated by the drafters.
History also makes clear that the underlying purpose of the Second Amendment was to create a balance of power between the states and the newly formed federal government. Under the Articles of Confederation, the states had been required to maintain their own “well-regulated and disciplined militia.” Militia service and training were generally mandated for able-bodied men, and militia members were required to provide their own arms.
The new Constitution, however, provided for a national standing army and gave Congress authority to organize, arm and discipline state militias. The Second Amendment grew out of concerns that the federal government could exercise this authority to disarm the militias, preventing those citizen military groups from protecting their communities when called upon to do so.
In ruling that the Second Amendment confers an individual right to possess firearms unrelated to service in a well-regulated state militia, the Supreme Court ignored the abundant historical evidence proving otherwise.
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Back when the founders wrote the second amendment , every American household that could afford firearms had them. Therefore, the idea that the founders meant to empower the federal government to take these firearms away by writing a loophole into the second amendment is risible, particularly when the second amendment is part of a bill of rights limiting the federal government's authority to do such things.
In the 200+ years since the second amendment's enactment, law abiding American citizens have continued to keep firearms according to their cultural and legal understanding of their constitutional right to do so. Can one who argues according to the orginalist tradition ignore this history without inviting ridicule? Moreover, no court in the land could take this right away without inciting a severe political backlash, would would evince the idiocies inhering in positive law theory.
The king doesn’t make the law , the law makes the king. Therefore, the federal authorities will have change the culture before they can take away the guns .
Judge Scalia gets it wrong even on his own terms on this one. He, being and originalist and a history buff, should realize that the facts and logic used above to support th malitia-service, or community right, is clearly correct. The concern was a "Federalist" one of a balancing of power between the national and state governments. The preexisting condition of an individual right to own a firearm (and the obligation, on some level, to do so) was controlled by the state authority. And, using that originalist school of thought, those that ratified the Constitution would have fully expected the state to maintain the power to regulate weapons for personal use. That is logically where the power should be. That way the difference in a person's need to carry and possess a gun in Wyoming from the needs and concerns of someone living in Killadelphia can be respected and accomodated. That is a better form of liberty.