The textualist in me comes out for this
And I'm not really a true textualist but it's hard not to be for the second amendment. If only Justice Scalia had stuck to his supposed textualist principals instead of going all-in on the living constitution model so he could reach his desired result, Heller would've gone 5-4 the other way.
Here's the complete, one-sentence text:
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.
Trying to put myself in the shoes of a US citizen at the time of ratification of the constitution, I read this as saying that (because they didn't contemplate a standing army) a people's militia is essential to defend the country in time of need and therefore people must be allowed to own weapons. Now you can go all grammarian and try to parse out what's dependent on what in the clauses and the placement of the commas and such but not a lot of grammarians were among the late 18th century citizenry. And, again, it's a single sentence, everything in it relates to everything else - no jumping between sentences and paragraphs, no separate sections for the militia and the right to keep and bear arms, it's a single interconnected thing, not two related but independent rights. There's nothing about the right to defend hearth, home, person and family, nothing about silencers, open carry, concealed carry, unforseeable technological firearm advances, bumpstocks, handguns, school shootings, mental health, burglars, muggers, or thieves.
I take the phrase 'well regulated' to mean that anything having to do with one's absolute right to keep and bear arms in this country is still subject to government regulations. I could go further and say that it only applies to long guns since the vast majority of citizens at the time didn't own a handgun and saw no need for one but that's another argument - and besides, Scalia twisted and turned and managed to forget his principals for a moment in deciding that issue already.
What's your interpretation of the phrase?
|
(
In response to this post by Hokie5150)
Posted: 02/17/2018 at 1:47PM