Antonin Scalia has died since I drafted this post. There were 3 separate mass shootings before I published this post. And since I published this there have been many more mass murders using fire-arms that have no business being on the street. I hope the NRA paid him well, because I'm sure he is burning in hell. To come up with Scalia's corrupt claim that the second amendment conveys a unilateral individual right to bear arms, Scalia had to corrupt the English language, parse the plain text of the first half of the second amendment and invent an interpretation that hearkens more to 80 years of NRA propaganda but not to the "originalist founders" he claimed to get his inspiration from.
The fact is that the second amendment is not and should not be a barrier to regulating arms, yet the Supreme Court in their extreme combination of recklessness and fecklessness overturned 200 years of understanding of the Second Amendment. I explained why in this post:
Why DC vs Heller was badly decided
But if you want to truly understand the Second Amendment you have to turn elsewhere from the Corrupt Supreme Court. A good place to start, indeed the smart place to start was with Patrick J Charles' book:
"Armed in America, A history of Gunrights"
While I drafted this before Scalia died. I've been researching the subject since long before the Heller decision. But I needed to do a deep dive. The Heller decision was so awful that it made me do that deep dive on the subject. Anyone wanting to understand the subject deeply should read that book. Maybe others too. It's a big subject.
The Context of the Second Amendment is entirely about the right of people to bear Arms in militia service.
Meaning of Militia
The Term Militia meaning in 1790 pretty much all emergency response, peace keeping and war-fighting forces belonging to communities or the State. "Security of the State" reinforces that context. The right to bear arms is in the context of the security of "the State", that means that it's purpose is to reinforce safety, protect property and person, and defend home, community, local area and country in the aggregate. It was never meant to be conveyance of an individual right. Indeed the founding fathers looked down on local militia and private militia unless they could be well regulated.
Right to Defend One's Country
Thus the reason one has "the right to bear arms" is constrained by the prefatory text is context. That right does not apply to criminals. It does not apply to those whose behavior threatens "the security of a free state." Of course, the license for right wing paranoia is in the expression "free state." The militia was intended as a check on Standing Armies at least as a sales point. Of course in the early days of the Government operations of "the state" meant the several states and when George Washington put down Shay's rebellion or the Whiskey Rebellion, he depended on the cooperation of the State Government. His operations involved stopping and disarming the rebels; sometimes temporarily and sometimes permanently. The right to bear arms has never been an unrestricted right. And it has always been associated with the Necessity for an effective militia.
Scalia's Argument Based on the "Right of the People"
Despite conceding these matters of fact, sentence and basic logic; Scalia held that:
"The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.Pp. 2–53." [Heller]
Scalia used textual criticism to inductively link the "right of the people" to an individual right.
“Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” ">[Heller]
He starts by using textual criticism referring to other rights:
"The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). ">[Heller]
He then claims:
"All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body" ">[Heller]
This of course falls apart when one realizes that the "right" mentioned is the right to serve in the militia armed forces and defend the country. It's not the right to carry arms anywhere. It's the right to "bear arms" when called on to defend our country in the course of war. It was always interpreted that way til Scalia invented this.
An Right in Context
Also all three of those examples express a contextual right. Our right to free speech is in the context of our right to participate in society, our government and to express complaints and opinion. It's not an absolute right. It is in certain contexts. The textbook example in law is nobody has the right to shout "fire" in a crowded theater, unless there is a fire. No one has the right to bear arms unless they are defending their country in an obvious emergency. The Second Amendment doesn't say no one has the right to possess a gun, but it doesn't say that they have a right to possess a weapon anywhere they please.
An Individual Right to join the Militia
Once one understands that "bear arms" means to participate in the defense of one's country during wartime, in a military or militia context, then the individual right enumerated is the right to join (or be drafted into) the militia and bear arms in defense of our country. It's not a right out of context. If someone has bone spurs they can be turned down. If a person is crazy, they should not be bearing arms anywhere.
His textual criticism is strange. The mentions of "the people" are in the preamble of the constitution;
Scalia was Stretching
- "We the People of the United States", and is unambiguously a collective statement.
- The election of representatives of "the people" in Article 1, section 2.
And it gets richer. His reference to the first amendment is a statement about collective action:
- "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Yes the Fourth Amendment is unambiguously referring to an individual right in: "The right of the people to be secure in their persons." But all of these refer to rights that are those of the people in their collective capacity including the above. For example when the 9th amendment states something most conservatives loathe when considered in the context of the 10th amendment:
- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
- "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The reference to "the people" in the 10th amendment is stating that the people have the collective power as "a people" to push for or assert rights not automatically stated within the text.
Thus all these expressions are referring to Collective behavior and not just individual rights. Scalia was lying through his teeth! Indeed he tries to dismiss the above. He claims that references to the people
“the people acting collectively...deal with the exercise or reservation of powers, not rights.” [Heller]
Thus Scalia was making a point that can easily be shown to be false. Since in each amendment he refers to powers that are expressed as rights. He further claims that the term "the people" unambiguously refers to "all members of the political community." This despite the fact that the term "the people" in the sections pertaining to elections is referring to the consensus choosing via majority rule and not "all the people." As a term of art it refers to collective action. Majoritarian elections are "the people" even if not everyone votes for the winner. "The people" in the constitution refers to those legally within the militia. It may be an individual right for those who are legally eligible to bear arms if they join the militia. But it most assuredly is tied to a "reservation of powers" to the militia. So what Scalia says here doesn't mean what he seems to think it means.
I have a lot more to say, but looking at Scalia's "textual analysis" shows that linguistically he turned the second amendment into something it was never intended to say. "Bear arms" had a specific meaning when the country was founded. It still does. It's a shame he ignored it. Telling the district that they cannot ban trigger locks or handguns was a poor reading. His arguments were sophism.
Sources and Further Reading
Related Posts in this series
- What the Founders Meant by Militia
- The Palladium of Liberty
- The Right to Bear Arms According to Sam Adams
- First Published 2/24/2018, updated several times since, drafted before Scalia died.
- http://files.libertyfund.org/pll/quotes/192.html
- Related Posts:
- National Emergency Service and The Militia
- https://holtesthoughts.blogspot.com/2018/04/the-second-amendment-is-auxiliary-and.html
- How the Militia of the Whole Failed in the 19th Century
- What Founders Meant by Militia
- DC versus Heller wrongly decided
- Militia Second Amendmen & Democracy
- Select Militia, National Guard and 2nd Amendment
- Thoughts on Defending Democracy and Second Amendment
- The Palladium of Liberty
- The Case for Expanding the National Guard
- The Right of the Individual to himself
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