Let's move on to his argument against 2A applying only to State militias.
> a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939) , we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. See, e.g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades … and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“[T]he militia of the State, that is to say, of every man in it able to bear arms”).
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> We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.
Scalia asserts that the operative clause can't work if the prefatory clause doesn't include everyone. His evidence for this is that the Founders understood the history of tyrants taking away the people's arms, and that without an individual right to bear them, 2A fails at its purpose. He argues the Founders would not have done that, and maybe that we should assume they didn't mean to if they inadvertently did.
But this ignores the Whiskey Rebellion. The Pennsylvania militia was commandeered by Congress and then-President Washington to suppress political opponents.
He also ignores the Federalist papers. In his Federalist 46 citation, Scalia conveniently omits all of Madison's references to States, including his assertion that State organization of militia would be the key ingredient in repelling Federal tyranny. To quote Madison there (emphasis mine) [4]:
> The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition.
> That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both...
> that the governments and the people of the States should silently and patiently behold the gathering storm...
> Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.
> To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.
> Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.
> Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
First, Madison repeatedly emphasizes local and State governments as a key component of repelling tyranny. But he also exclusively conceives of such resistance solely through the local and State militias. That final quote says straightforwardly that "it is not certain, that with [arms] alone they would not be able to shake off their yokes". Madison writes "the additional advantages of local governments chosen by themselves" they could overturn the throne of every tyranny in Europe. This completely devastates Scalia's case, which again is that the Founders knew an individual right to bear arms completely outside a militia was the only way to secure a free State. It's no wonder he left it out.
And if that's not enough for you, he also ignores the Constitution itself. Article I, §8 reads "The Congress shall have power to... provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions." And "insurrection" means (a violent uprising against an authority or government). That is exactly "suppress[ing] political opponents".
That's his whole argument against 2A applying only to State militias: a bunch of cherry-picking and some circular logic (2A establishes an individual right to bear arms, because without such a right 2A can't work).
Another way of reading 2A is that States have the power to regulate the ability of the People to bear arms for the purpose of maintaining a militia. The nice thing about this reading is that it's consistent with the rest of the Constitution, the Federalist papers (all of them), and the acts of the Founders themselves, and it doesn't mean 2A is self-defeating. The downside is that it doesn't really show there's an individual right to bear arms. Scalia forewent that reading (and incidentally decades of precedent), clearly to establish an entirely new individual right to bear arms.
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This is sophistry. Omitting key facts. Relying only on definitions that serve your position. Americans deserve better than to have our heritage rewritten by Justices with an agenda. It's time we stop holding Scalia up as any kind of hero. He is at the very least complicit in a wave of mass murder and suicide brought on by the wide availability of firearms, not only because of his deceit here, but also because of his focus on the past (remember, Heller was about DC trying to control gun violence in their city). He (and the other conservative Justices) had an opportunity to reinvigorate shared sovereignty and redeem states rights as fundamental policymaking tools (where they once were thinly veiled advocacy for slavery and later segregation). They failed us.
Oh I almost forgot:
> If you don't like the Constitution, it has a mechanism to change it. Try it if you feel it's necessary, but don't make up stories about how it doesn't mean what it means.
2A is super far down on the list of things I would change. Reversing Citizens United with an Amendment is up there, revoking corporate personhood is up there, publicly financed elections, ERA with orientation/identification clauses added, proscribing religious-based discrimination (e.g. you can't refuse to serve someone because your religion says you shouldn't... or at least you think your religion says you shouldn't), fundamental right to a clean environment, child/felon/universal suffrage, proscribing the death penalty (thought we got this with 8A but noooo). We can fix an activist judge with another activist judge; no need to waste an Amendment.
And just imagine how much better our society would be with those Amendments. Are we better for the post-Heller reading of 2A? Obviously not. What a truly terrible mistake.
[1]: http://abolition.nypl.org/print/us_constitution/ (careful, asks you to print the page)
[2]: https://en.wikipedia.org/wiki/Three-Fifths_Compromise#Impact...
[3]: https://www.britannica.com/topic/The-Founding-Fathers-and-Sl...
[4]: http://www2.law.ucla.edu/volokh/beararms/FEDERALI.HTM
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