Scalia’s Error On The Second Amendment

BY Herschel Smith
3 years, 1 month ago

David Codrea.

Gun owners can thank supposed “originalist” Justice Antonin Scalia for perpetuating and solidifying the “confusion,” although it’s fair to suspect his motives were more deliberate than speculative.

[ … ]

“Like most rights, the Second Amendment right is not unlimited,” Scalia volunteered, seemingly desperate to apologize for the majority ruling and to make a concession the gun-grabbers could use to later advantage.

I think Scalia was appealing to the beltway elitists for forgiveness.  As we’ve observed elsewhere:

Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.

Rather than being a great victory for the second amendment, I believe the Heller decision was one root of our interpretational problems with it.

Codrea does offer the remedy.

“For someone represented by the establishment as an “originalist,” Scalia’s views were anything but. In A View of the Constitution, which colleague Brian Puckett writes “was the standard constitutional law text at Harvard until 1845 and at Dartmouth until 1860,” William Rawle, “a contemporary of the Founders and the man to whom George Washington offered an appointment as the first U.S. Attorney General,” offered a vastly different opinion.

“No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people,” Rawle declared. “Such a flagitious (think “shameful,” “wicked,” “criminal,” “villainous”) attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”

Speaking of shameful, wicked, and criminal villains, fast-forward to the present. There is a Democrat eye-rolling feeding frenzy to strip Americans of what Continental Congress Delegate Tench Coxe called “the birthright of an American,” which he specifically identified as “every other terrible implement of the soldier.”

“[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people,” Coxe continued.”


Comments

  1. On March 4, 2021 at 8:24 am, Bill Buppert said:

    “But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”

    Lysander Spooner

    The 1934 NFA, 1938 FFA, 1939 US v. Miller, 1967 Mulford Act (CA), 1968 OCC & SSA and GCA, 1986 FOPA, Undetectable Firearms Act of 1988, Gun-Free School Zones Act (1990), Brady Act (1993), AWB (1994), Lautenberg Gun Ban (1997), on and on and on.

    All approved by robed government employees appointed by the Uniparty at the Federal level.

    No parchment keeps evil men from doing evil things.

  2. On March 4, 2021 at 10:23 am, Gary M Steffen said:

    No matter how enlightened, balanced, or perfect a form of government is, it must be operated by men with a fallen sin nature, as such it is doomed to eventually fail.

  3. On March 4, 2021 at 12:17 pm, Frank Clarke said:

    Those who think Scalia misstepped give his reputation as an originalist too much credence. Scalia knew EXACTLY what he was doing with the opinion in Heller.

    https://dispatchesfromheck.blogspot.com/2010/04/how-to-write-decision-in-mcdonald-v.html

  4. On March 4, 2021 at 2:51 pm, Scott in Phx said:

    Well I’m sorry, but Scalia’s view of the 2A is closer to reality than the anti-Federalist view.

    The anti-Federalist’s lost their battle to prevent the adoption of the Constitution, or to get the standing army raising ability of the Congress removed and/or to depend on the militia for defense of the state.

    All they got was Madison’s “consolation prize” of the statement that a “well-regulated militia, being necessary to the security of a free state”.

    The 2A doesn’t make the Congress depend on the militia (instead of a standing army) and doesn’t even mandate the Congress keep up the militia (which they have obviously not).

    And Rawles’ commentary doesn’t contradict any of that.

    Yes, the 2A declares the desirability of the militia (but it doesn’t guarantee it). All it does is recognize the people the right to be “armed” (keep and “bear” arms).

    And whether that makes the existence of the militia possible is irrelevant to the only operative clause of the 2A that stipulates “the right of the people to keep and bear arms shall not be infringed”.

    You need to have an armed people to have a militia but the people don’t need a militia in order to be armed or to have the right to be armed.

    The militia clause of the 2A is a nullity. It has no effect.

    It certainly doesn’t transform “arms” in the operative clause into cannons or warships or “every terrible implement of the soldier”.

    The 2A speaks about an individual right to arms (just like the rest of the Bill of Rights refers to individual rights).

    It does not declare that the people have the right to form militia’s on their own and have cannon and warships (to “bear” them on) and to bring them with them “when called for service” for example.

    The 2A is about the individual right to arms and nothing more.

    The Federalist’s bought off the anti-Federalist opposition to the new powerful central gov’t.

    All we got for their opposition was the Bill of Rights including the individual right to arms. And the Congress retains their power to have a standing army and their (near) total control over the militia (including the power to neglect it)

    Now, that doesn’t mean that one doesn’t have the right to cannons and/or warships.

    You may.

    But you’ll have to look for the protection of that right somewhere other than the 2A.

    Maybe the 9A or the fact that the Constitution doesn’t (expressly) prohibit the Congress from prohibiting such.

    But, given the clear language of the 2A one can’t look for the protection of “the sword and every terrible implement of the soldier” in it.

  5. On March 4, 2021 at 3:49 pm, Herschel Smith said:

    @Scott in Phx,

    I don’t think we’re reading the same 2A.

    But whatever. Think however you’d like about it.

  6. On March 4, 2021 at 6:27 pm, Bill Buppert said:

    Again:

    “A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.”

    https://www.buckeyefirearms.org/right-people-keep-and-read-books-shall-not-be-infringed

    The grammatical construction for clarity should have reversed clauses but it is rather clear if you don’t have a law degree.

    And, if it weren’t for the Anti-Federalists insisting on a Bill of Rights, the Federalists would have not endorsed their inclusion.

  7. On March 5, 2021 at 5:46 pm, Fred said:

    Scott is wrong. If one can have an arm of any type, he can have any arm of any other type. There is no limiter in the 2A in any way at all.

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