Monday, June 30, 2008

Neither Militia nor Criminal

I could not be happier to see that the Supreme Court found that the 2nd Ammendment indeed applies to an individual right to keep and bear arms for traditionaly lawful purposes (e.g., sport, hunting, and self-defense).

Considering the statements that have either been written or spoken by virtually every contributor to the Declaration of Independence and the Constitution, particularly Thomas Jefferson (the supposed founder of the Democratic Party), who thought that hunting was a superior sport to all others, and thought that one ought to use a rifle as a walking stick when hiking in the woods, I have no doubt in my mind that the contributors intended the 2nd Ammendment to preserve the right of the individual to keep and bear arms.

The 2nd Ammendment is as follows:

"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."

The argument against the individual right to keep and bear arms is more or less as follows:

1) The purpose of the 2nd Ammendment was to preserve the rights of state militia's to keep and bear arms to preserve the security and authority of the individual states.
2) Since militia's are no longer used, and have been replaced by standing armies.
3) The 2nd Ammendment no longer restrains local, state, or Federal legislators.

Scalia argued that while the 2nd Ammendment states A purpose, it does not restrain gun ownership to that singular purpose. Basically, the argument is that just because the writers of the constitution sited militia's as an important reason not to infringe on the people's (i.e. the individuals) right to keep and bear arms, this does not mean that arms were protected solely for the use of militias and for no other purpose. If Scalia's argument is not followed, the only alternative is to essentially remove the 2nd Ammendment entirely. If arms are only protected in militias, and there are no militias, then the 2nd Ammendment is essentially null and void and offers no restraints on Congress and offers no protections to the American people.

I think if you look at the other side of the coin you can see more plainly what's being argued. I freely admit that this is a strawman, but I think it's a good illustration nonetheless. Let's say you have a law that states the following:
"Since murders are usually committed using firearms, the sale and possession of firearms shall be prohibited."
If you follow Justice Stephen's line of reasoning, it could be argued that the sale or possession of a firearm is only illegal if the firearm is used to commit murder.
If you follow Justice Scalia's line of reasoning, you would conclude that just because the purpose of the law was to prevent murder, doesn't mean that the law does not apply to those that aren't intending to commit murder.

So... to Justic Stephens' argument that the purpose of the 2nd Ammendment was to preserve the state militia, then my response would be this, "When such a time arises that my state calls me into service, my weapon will be well-maintained, and I will be well-practiced."

1 comment:

The General said...

Activism

I came to the conclusion that, in a way, both the opinion and the dissent were somewhat activist.

Perhaps a REAL originalist ruling would have determined that all free people are soldiers of freedom in the people's militia, and as such have a right to keep and bear arms to provide for the common defense and to defend against tyranny.

Scalia, took a scissors to that idea, stating that militias are not necessarily protected, but keeping and bearing arms is.

Breyer, took a scissors to the entire 2nd Ammendment, stating, essentially, that keeping and bearing arms was reserved solely for members of a militia, and that we have replaced (somehow) this outdated concept of a free militia with standing armies like the National Guard, so only members of a standing army have the right to keep and bear arms when directed to do so. So, Breyer connected keeping and bearing arms with Militia's, then removed the concept of a free militia from the constitution, effectively removing the 2nd ammendment from the constitution in it's entirety.

So, ultimately, we've got a bit of activism on both sides, but at least Scalia took some measures to preserve some meaning in the 2nd Ammendment. Whereas Breyer attempted to change the number of Ammendments in the Bill of Rights from 10 to 9.