27 June 2008

Why repeal the Second Amendment?

People who say this seem to have neglected that not only was the first part of the Second Amendment trashed (A well regulated Militia, being necessary to the security of a free State), Justice Scalia also chopped off the last clause (shall not be infringed) with the same axe. Why, because he says that the decision is not meant “to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

So, what is left is a wholly, new right created whole cloth by the justices: the right of the people to keep and bear Arms.

Justice Scalia has created a bastard right, and like any illegitimate child has refused to give it the proper tools to go forth into the world. This right can be reasonably infringed. But Justice Scalia didn't give his bastard child any guidance. The right is no longer with heritage since it has been abandoned by the document that gave it birth. It will go forth into the world to cause havoc in the judicial system since lower courts will refuse to invalidate many other gun laws, citing the court’s caveat regarding not doubting longstanding laws.

So, it is a phrase that has no meaning since the meaning it has had no longer exists.

Don't mourn the passing of the collective right interpretation as it will make a comeback as courts have to grasp the meaning of this bastard right. An originalist interpretation, at a minimum, must give respect to the meaning of every word of the Second Amendment, including its preamble. Second, the interpretation must situate the Second Amendment intra-textually within the context of the entire Constitution: meaning relate it the Congress's power to regulate the
militia in article I, Section 8. Third, an originalist interpretation must be honest about the possibility of obsolescence -- namely, that something is in the Constitution which may have no modern analog. Fourth, to the extent it is consistent with the original understanding, precedent must be respected.

What do these principles suggest is the meaning of the Second Amendment? Just this:

The Second Amendment reflects the concerns of the founders that the federal government might exercise its Article I militia power to subjugate the people by disarming local militias in the several states. The Second Amendment was drafted to combat this particular fear, and therefore, the Second Amendment is no limitation whatsoever upon the authority of the people within the several states, by the power reserved to them under the 10th amendment, either to broadly protect individual rights of gun ownership or the opposite. So, when it comes to the States, they must argue vociferously that the Collective right interpretation is the correct interpretation and that DC. V Heller does not apply to the States since DC is a federal entity!

The local jurisdictions must not make the mistakes made by Walter Dellinger in his oral argument. Precedent is that the Second Amendment is to prevent the Federal Government from exercising it's article I, Section 8 powers over the states. The arguments made by Justices Stevens and Breyers in their dissents, buttressed by the majority's admonition to not overrule longstanding laws must be what the local jurisdictions use in their battles to preserve their gun laws. Anyone arguing must point out that this had the force of precedent and must remain precedent.

The only real meaning of DC v. Heller is that guns will never be banned for lawful uses.