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[infopri]

Yes, I agree with ideagirl that this is how Scalia is reading the Second Amendment.  Many people (including me) have read the Second Amendment the way TRB did, that the (only) purpose for keeping the populace armed was to have a ready militia, but it doesn't matter what we think; it's what Scalia (and the rest of the majority) thinks that will govern gun ownership for the forseeable future.

[ideagirl]

I agree with ideagirl that this is how Scalia is reading the Second Amendment.  Many people (including me) have read the Second Amendment the way TRB did, that the (only) purpose for keeping the populace armed was to have a ready militia, but it doesn't matter what we think; it's what Scalia (and the rest of the majority) thinks that will govern gun ownership for the forseeable future.

Yep.

Aside from the fact that the Supreme Court has made further argument pointless, though, I do think the majority (Scalia et al) make an undebatable point with the first part of their analysis: the Second Amendment refers to "the right of the people to keep and bear arms," and every other part of the Bill of Rights that uses that phrase has, since time immemorial, been interpreted as referring to an individual right held by all citizens, as opposed to some sort of state power or "right" held by the state and its institutions (e.g. its militia). It would require major verbal gymnastics to interpret a "right of the people" as anything other than an individual right vested in every member of "the people."

[t_r_b]

Infopri and others have gotten into the state vs. feds issue, so I'm just going to respond to the first part--your statement that the first clause of the 2nd Amendment shows what its "explicit intent" was and thus limits the scope of the second clause to arms used by militia members while in militia service.

I did not say that the militia clause "limits the scope of the second clause." Here is my argument, broken down into bite-size bits:

1. everyone, including Scalia, agrees that the right does not extend to all forms of weaponry: that bans on the ownership of some weapons are constitutional.

2. the question for the court was therefore not only whether an individual right exists, but whether handguns fall into the category of weapons that can be constitutionally prohibited.

3. in order to answer that question, there need to be certain criteria for distinguishing between weapons that are constitutionally protected, and those that are not.

4. in defining those criteria, it would seem logical to refer to the "prefatory clause" that specifies the purpose for which the right is protected.

I'm not saying that the militia clause outlines the right's only legitimate purpose. But, given that we face the problem of how to distinguish between constitutional and unconstitutional prohibitions, shouldn't the potential usefulness of prohibited weapons for militia purposes be a primary (though not necessarily exclusive) concern?

So here, for example, the reference to militias is correctly read as clarifying what "arms" means: the prefatory clause's militia reference clarifies that when they said "arms," they meant working weapons equivalent to what militia members would normally carry, and used for the same purpose militia use them (i.e. defensive killing of people).

Actually, you're wrong: as Scalia pointed out in his opinion, the "prefatory clause" clarified the primary purpose of the amendment: to ensure the viability of the militia as a fighting force. Now, that doesn't necessarily mean that the right to bear arms was not meant to be an individual one: the amendment's backers may well have believed that the effectiveness of the militia was best served by individual gun ownership. And as I said above, the fact that the right has this particular purpose does not necessarily make that its only purpose. But for determining whether ownership of a particular kind of weapon is protected by the amendment, shouldn't an explicitly stated purpose carry at least as much weight as an implicit one?

the Supreme Court has made further argument pointless

No more so than argument over the existence of a right to privacy.

It would require major verbal gymnastics to interpret a "right of the people" as anything other than an individual right vested in every member of "the people."

As I have repeated countless times now, even if we accept the premise that the right is an individual one, it is far from clear why that right should extend to handguns, except for the fact that today, five justices happen to think that it should. That's hardly a solid constitutional argument: if in ten years five justices disagree, they will have little difficulty explaining why they reverse Scalia's ruling.

[ideagirl]

I did not say that the militia clause "limits the scope of the second clause." Here is my argument...
1. everyone, including Scalia, agrees that the right does not extend to all forms of weaponry...
2. the question for the court was... therefore... whether handguns fall into the category of weapons that can be constitutionally prohibited.
3. in order to answer that question, there need to be certain criteria for distinguishing between weapons ...
4. in defining those criteria, it would seem logical to refer to the "prefatory clause" that specifies the purpose for which the right is protected.

In other words, it would seem logical to you to refer to the prefatory (militia) clause in order to determine what the LIMITS of the operative (bear arms) clause might be. If the prefatory clause could, hypothetically, be used to determine that the operative clause doesn't apply to handguns, that would be using it to limit the operative clause (limiting it to certain types of arms and not others).

Actually, you're wrong: as Scalia pointed out in his opinion, the "prefatory clause" clarified the primary purpose of the amendment: to ensure the viability of the militia as a fighting force.

That isn't what Scalia's opinion says. I don't see anywhere in the opinion that he says anything to the effect that ensuring the viability of the militia was "the primary purpose of the amendment." To the contrary, he goes on and on (and on and on) about how analysis of all relevant texts of the period suggests that individual self defense was equally important, in the the minds of the founding fathers, when they drafted this Amendment.

for determining whether ownership of a particular kind of weapon is protected by the amendment, shouldn't an explicitly stated purpose carry at least as much weight as an implicit one?

I'm not really seeing your point here, but before I get to that issue, I just want to point out that the Amendment explicitly, not implicitly, states that the right in question is to keep (i.e. have, own, possess) and bear (i.e. carry and use--see Scalia's opinion for an intensive mining of the meanings of that word) arms (i.e. weapons and armor--a word whose meaning included, according to 18th-century sources, "all firearms"). Regardless of the purpose--with or without a prefatory phrase--that is the explicitly stated nature of the right.

As for not really seeing your point, what I'm not getting is how you could use any argument about the militia to support a contention that handguns aren't included as part of the right. Soldiers in the army are issued handguns. National Guardsmen and woman are issued handguns. Police are issued handguns. The handgun is a military and police weapon; how could you possibly argue that a militia wouldn't use handguns? (Please let's put aside the completely silly argument about the amendment supposedly only applying to muskets and other 18th-century weaponry.)

[infopri]

the Second Amendment refers to "the right of the people to keep and bear arms," and every other part of the Bill of Rights that uses that phrase has, since time immemorial, been interpreted as referring to an individual right held by all citizens, as opposed to some sort of state power or "right" held by the state and its institutions (e.g. its militia). It would require major verbal gymnastics to interpret a "right of the people" as anything other than an individual right vested in every member of "the people."

the amendment's backers may well have believed that the effectiveness of the militia was best served by individual gun ownership.

I think this is correct (both of you).  The eighteenth-century militias were not standing armies, but ad hoc fighting forces made up of farmers and others who had weapons and were willing to fight.  Thus, to have a viable militia, it was necessary for individuals to own weapons.

3. in order to answer that question, there need to be certain criteria for distinguishing between weapons that are constitutionally protected, and those that are not.

4. in defining those criteria, it would seem logical to refer to the "prefatory clause" that specifies the purpose for which the right is protected.

And as I said above, the fact that the right has this particular purpose does not necessarily make that its only purpose. But for determining whether ownership of a particular kind of weapon is protected by the amendment, shouldn't an explicitly stated purpose carry at least as much weight as an implicit one?

I think you're hoisted by your own petard, here.  When he was in the military, my husband was issued a handgun, a .45.

the Supreme Court has made further argument pointless

No more so than argument over the existence of a right to privacy.

Exactly.  Many people argue that the Supreme Court created a right to privacy out of whole cloth (they do not accept the "penumbra" analysis).  We can argue all we want, but the right currently exists and will continue to do so until the Supreme Court says it doesn't.  (In the meantime, its scope may shrink and expand with each new decision.)

At the same time, such argument is important, which is why we have a First Amendment.  Our job, as citizens, is to each try to make the best argument we can for our views, in hopes that the most sound arguments will eventually prevail.  The Supreme Court, while often hard of hearing, is not entirely deaf to the sensibilities of the public.

As I have repeated countless times now, even if we accept the premise that the right is an individual one, it is far from clear why that right should extend to handguns, except for the fact that today, five justices happen to think that it should. That's hardly a solid constitutional argument: if in ten years five justices disagree, they will have little difficulty explaining why they reverse Scalia's ruling.

Yes, that possibility is integral to the notion of the Constitution as a living document that reflects the needs of the times.  The Court has the power to say it was mistaken.  That's how Plessy v. Ferguson (the "separate but equal" ruling upholding segregation) was overturned by Brown v. Board of Education, and Bowers v. Hardwick was overturned 17 years later by Lawrence v. Texas (which ruled that sodomy laws were unconstitutional).


P.S.  I can't help it; I'm an academic married to a lawyer (double whammy) and thus feel compelled to provide citations:

Plessy v. Ferguson, 163 U.S. 537 (1896)
Brown v. Board of Education, 347 U.S. 483 (1954)
Bowers v. Hardwick, 478 U.S. 186 (1986)
Lawrence v. Texas, 539 U.S. 558 (2003)