> Imagine if the US suddenly had a dictator
This is why we have the second amendment. And the constitution as the thing to which office-holders swear allegiance to rather than to "the party" or "the president".
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This is why we have the second amendment. And the constitution as the thing to which office-holders swear allegiance to rather than to "the party" or "the president".
It's not why we have the 2nd Amendment. 2A applies only to militias, and the Constitution explicitly gives Congress power over State militias to suppress insurrections:
"The Congress shall have Power To... provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" [1]
Further, the Militia Act of 1792 allows the president to commandeer them as well, and this was famously used by George Washington himself to quell the Whiskey Rebellion.
2A is just a relic from a time when the US had neither the resources nor the political will to create and maintain a standing army. It's been co-opted very recently by the Right to rile people up and drive them to the polls (while incidentally enriching themselves), but it's completely outdated. The only reason anyone thinks otherwise is that Scalia legislated from the bench in Heller to resurrect it.
[1]: https://www.archives.gov/founding-docs/constitution-transcri...
This is untrue, and the Supreme Court has ruled several times on it. The states, which mostly modeled their Constitutions on the Federal ones, have a significant majority of them giving the people explicit individual right to bear arms.
Or read the Federalist Papers, or look at common law leading up to the constitution, or realize that the Bill of Rights was added at the states request to protect individual rights, not collective govt sanctioned rights.
This is a pretty weak appeal to authority. My rejoinders are Dred Scott and Korematsu (or anything about the idiotic "right to contract"). The Court isn't always right.
> or realize that the Bill of Rights was added at the states request to protect individual rights, not collective govt sanctioned rights
Well, 9A protects individual rights not enumerated, but 10A protects State rights not enumerated. States were entirely consumed with their own rights; that's why we've had to apply the Bill of Rights to States via incorporation & 14A.
> Or read the Federalist Papers
Madison does talk about the right to bear arms in the Federalist Papers [1]. But he was talking explicitly about States vs. the Federal government. He also later saw how bad militias were at being an army (a point Washington argued over and over again) in the War of 1812 and changed his position in favor of a strong, standing, Federal army. Let's pull some quotes here (emphasis added):
> 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.
2A is absolutely not about individual rights. No Founder ever talked about it in this way. It's about militias.
> 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.
How do you explain "Militia" and "State"? How does 2A not refer explicitly to State militias?
> “Security of a Free State.” The phrase “security of a free state” meant “security of a free polity,” not security of each of the several States as the dissent below argued, see 478 F. 3d, at 405, and n. 10. Joseph Story wrote in his treatise on the Constitution that “the word ‘state’ is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community.” 1 Story §208; see also 3 id., §1890 (in reference to the Second Amendment ’s prefatory clause: “The militia is the natural defence of a free country”). It is true that the term “State” elsewhere in the Constitution refers to individual States, but the phrase “security of a free state” and close variations seem to have been terms of art in 18th-century political discourse, meaning a “ ‘free country’ ” or free polity.
TL;DR: I don't like the "State" thing, so I'm just gonna ignore it. He does the same thing for militias too, albeit in many more paragraphs so I won't quote it here. All in all it's classic Scalia: using weird old newspapers and irrelevant centuries old laws that incidentally agree with him in order to reinterpret the constitution in a way that aligns--coincidentally--with his political beliefs. The kind of thing you'd only find convincing if you don't need convincing in the first place.
And for what it's worth, the dissenters agree with me:
> The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself.
But importantly, this is nothing new. Justices uphold weird stuff all the time (if you want to read something particularly heinous, read Buck v. Bell, good god). And people will cite them as appeals to authority. But as someone super wise once said:
> the Court is and always has been a political institution. No Justice since John Marshall has ever known what the Founders thought, because they weren't them. Anyone who says otherwise is trying to get one over on you.
Scalia's opinion is the law of the land, and the reasoning is sound. Unless you're a SCOTUS justice, your opinion on the matter isn't really relevant.
I concede I'm not likely to convince you. But I implore you not to be taken in by one of the most hollow Justices in the post WWII era. Originalism/Textualism is itself an appeal to authority to the Founders, and its sole purpose is to mask a reactionary conservative agenda by mythologizing a group of people whose overarching concern was how to write a founding document that both enshrined human rights and the will of the people as the source of the American government's legitimacy, while also granting assurances to the South that they would be able to own other humans in perpetuity. It is at best misguided and ignorant to try and present this era as unusually enlightened, but when you consider how women, indigenous people, abducted and enslaved people, and immigrants of most nations were butchered, raped, subjugated, denigrated, bought and sold (yes, by Founders), it's full on repugnant. I urge you to look past Scalia's admittedly charming sophistry, which I promise you conceals a richer, more optimistic and inspired world exorcised of centuries-old ghosts in powdered wigs.
First, the founding fathers did not ensure that slavery would be allowed in perpetuity. In fact, the slave trade had already been outlawed (and later the US Navy even sent ships to Africa to interdict slavers leaving the continent -- I wrote a paper years ago on the USS Constellation's involvement there), and the seeds of the civil war were sown in the 3/5ths compromise, which ensured that the south would never be able to muster the power to keep slavery legal.
No one holds up pre colonial times as bastions of freedom and enlightenment. We fought a war then, and there is no question that many things that were not good happened then.
But it's also not sophistry to analyze the intent of the framers of our country's original documents in ensuring that we follow the law. The Constitution is the law of the land, and it means exactly what it says -- which is that the right to keep and bear arms is a natural and individual right. It does not say that having a militia is a right, it does not say that owning handguns is for self defense. It says that the right of the people to keep and bear arms shall not be infringed. There is only one statement stronger in the Bill of Rights, and that is "Congress shall make no law" in the first. The militia clause isn't dependent on the right. The militia clause gives a reason for this right (and keep in mind that 10 USC 246 is still in effect to this day), but the right is not dependent on it.
Scalia clearly lays this out, gives the proper English lesson, and explains why the amendment means precisely what it says. That's not sophistry. Oddly enough, your argument above actually is the exact definition of sophistry.
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.
> 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”).
...
> 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...
The amendment's English is crystal clear. The first clause assumes that the people have an individual right to keep and bear arms, and that right is not to be infringed. The rest of what you have written is pure sophistry.
Your true agenda has finally come through with your argument that guns cause crime. Firearms have been available in the US -- almost utterly without restriction -- you could buy them by mail order -- up to 1968. We even had semi automatic firearms in the revolutionary war. We didn't have mass shootings and "waves of suicide" (also sophistry) until very recently. If guns caused crime, the west should have been a blood soaked orgy of it -- and yet it wasn't, except by Hollywood's reckoning. Japan bans guns almost completely, someone murdered a bunch of people with a sword (also banned) just recently, and in another incident someone burned down a venue and murdered a bunch of people that way. No guns required.
Also, without the 3/5 compromise, the slave states would have counted their slaves completely, and that would have given them significant additional numbers in Congress, which would have enabled them to keep the slave trade legal. I don't give a flying rat's ass what Wikipedia has to say about it.
I also love your final words, where your political agenda becomes clear. Nothing you wrote cares about the actual law, your entire argument is trying to cram a political argument into a quasi-historical misunderstanding to attempt to abrogate the Constitution's words.
Scalia was the exact antithesis of an activist judge, anyone who has read anything he wrote with an unprejudiced eye knows this. His general position on everything he ever ruled on was that the Constitution meant exactly what it said. He was widely reviled by the left for his refusal to go beyond the words of the Constitution.
"If you somehow adopt a philosophy that the Constitution itself is not static, but rather, it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you've eliminated the whole purpose of a constitution. And that's essentially what the 'living constitution' leaves you with"
Your argument does not respect the rule of law, does not respect the Constitution, and does not respect the country you live in as you want to change it illegally with activist judges. That's unfortunate.
Heller didn't change anything for 80% of the US where the Constitution was already respected as the rule of law. It simply forced those who did not to accept a badly watered down reading of the document (as Justice Kennedy's vote was required, and that was as far as he was willing to go). It really didn't even change anything in DC in practice, frankly -- DC's gun ban has always been perfectly ineffectual, the only people who follow it are Virginians like me who carefully follow the law and don't commit crimes. The criminals in DC do whatever they want, pre and post Heller.
https://thefederalist.com/2018/11/29/second-amendment-always... https://www.npr.org/templates/story/story.php?storyId=900115...