American Civility

This Independence Day, we should be grateful that our Constitution and the Bill of Rights still finds devotion across the land and in the highest Court. 

The Supreme Court's decision on 26 June 2008 written by Justice Antonin Scalia¹ to uphold the Second Amendment² is valuable because it re-affirms the original intent of the Constitution and the Bill of Rights and serves as a foundation for “originalism” or strict construction interpretation of that founding document.

With prodigious examples from the Federalist Papers and other historical precedents from individual States during the original Constitutional debate and even with reference to English law, Scalia establishes that the prefatory clause, “A well regulated militia …” is only introductory, not limiting, to the operative clause, “… the right of the people to keep and bear arms …”  He observes that “militia” means a subset of the population of “men able to bear arms” from which subset Congress or a State may form a standing army.  But the indiviudal right to arms is paramount.

The purpose of the Second Amendment dates to “… Stuart Kings Charles II and James II … using select militias loyal to them to suppress political dissidents, in part by disarming their opponents …”

There are limitations however. “Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”

“Like most rights, the right secured by the Second Amendment is not unlimited.”  Here he gives his support for prohibiting the mentally ill from bearing arms or carrying arms in a school, for example, and affords to the state other remedies to regulate arms, but not the one embedded in the D.C. law that was struck down, that specifically required the locking mechanism to be engaged while the gun was in the home.

What about the right to bear any weapon?  Scalia recognizes, “The term [‘arms’] was applied, then [at the time of the founding of our country] as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.”  That is, it applies to arms for self-defense and hunting.  “We also recognize another important limitation on the right to keep and carry arms. Miller [the 1939 Supreme Court decision] said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ … We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ ”

I believe Goldwater was reputed to have said, “Anyone who needs an automatic weapon to kill deer is neither a sportsman nor a hunter.”

Scalia concludes by leaving open that the debate on handgun violence does not permit the Court to change the Constitution:

I am not an owner of a gun, and believe that the occasion to actually use a gun in self-defense before cops arrive is improbable. In spite of my personal feeling, the Second Amendment serves philosophical and historical purposes which is appealing, that the rights of the people supersede those of government.