27 July 2009

How will your militia be armed? (or still more Heller critique)

Like a magician, or other illusionist, Scalia diverts your attention from the real focus of the Second Amendment.

JUSTICE STEVENS relies on the drafting history of the
Second Amendment—the various proposals in the state
conventions and the debates in Congress. It is dubious to
rely on such history to interpret a text that was widely
understood to codify a pre-existing right, rather than to
fashion a new one. But even assuming that this legislative
history is relevant, JUSTICE STEVENS flatly misreads
the historical record.

Heller at p. 30

The problem is that all the quotes from the drafting history of the Second Amendment show that the concern was not a "pre-existing right" of self-defence by individuals (states yes, individuals NO). In fact, since the right is the created by the Second Amendment, that is the right which needs to be discussed. We are discussing the US constitution and the bill of rights in LEGAL sense, not popular misconceptions of that right. Also, Blackstone totally contradicts the pre-existing right of armed self-defence argument (see linked post).

Scalia spent all of Heller trying to diminsh the focus of the Second Amendment from the Militia. The problem was that the Second Amendment was specifically drafted to ensure that the Militia would be armed and that institution remain vibrant. Hence Patrick Henry's comment that was frequently used by the "RKBA" crowd.

that every man be armed

The text of the Constitutional debates surrounding the Second Amendment can be found here and here.

Self-defence was not at issue during these debates. In fact, Patrick Henry is discussing Article I, Section 8 in the record and the fact that the Federal government might not arm the militia. In fact, the full Henry quote reiterates the Article I, Section 8 language in the complete quote (see highlighted text).

May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed.

More of this quote is as follows.

The Debates in the Several State Conventions on the Adoption of the Federal
Constitution (3 Elliot's Debates 384-7)
Virginia, Saturday, June 14, 1788.

Mr. HENRY. Mr. Chairman, in my judgment the friends of the opposition have to act cautiously. We must make a firm stand before we decide. I was heard to say, a few days ago, that the sword and purse were the two great instruments of government; and I professed great repugnance at parting with the purse, without any control, to the proposed system of government. And now, when we proceed in this formidable compact, and come to the national defence, the sword, I am persuaded we ought to be still more cautious and circumspect; for I feel still more reluctance to surrender this most valuable of rights.
As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.
May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by aconcurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.
The argument of my honorable friend was, that rulers might tyrannize. The answer he received was, that they will not. In saying that they would not, he admitted they might. In this great, this essential part of the Constitution, if you are safe, it is not from the Constitution, but from the virtues of the men in government. If gentlemen are willing to trust themselves and posterity to so slender and improbable a chance, they have greater strength of nerves than I have.

Like the Second Amendment and the Constitution, there is no mention of the concept of self-defence. The debates are published and anyone who cares to review than can do so. I really don't have the time or inclination to do so here.

Scalia gives short shrift to the actual ratification debates of the States and relies on quotes which are not contemporaneous with the adoption of the bill of rights because he doesn't want fact to ruin the fiction he has created with his new right. This right did not exist in connection to the Second Amendment until he put it on paper last year.

If anything, the quotes that Scalia uses show that his argument is without merit as the concept of self-defence may have been considered, but was not worthy of being mentioned in the Second Amendment. As I say, where are the words "self-defence" in the Constitution?

On the other hand, it is ridiculous to say that the Second Amendment enshrines a pre-existing right of armed self-defence. This right has never existed in common law, or in US Constitutional law prior to Scalia's pronouncement.

Immediate interpretation was by the Militia Act of Militia Act of 1792 providing for the authority of the President to call out the Militia which was passed 2 May 1792 by the Second Congress (Session I. Chapter XXVIII).

Scalia gives a lovely illusion, but it doesn't stand close scrutiny like any other illusion.

Or to quote the man:

“What distinguishes the rule of law from the dictatorship
of a shifting Supreme Court majority is the absolutely
indispensable requirement that judicial opinions be
grounded in consistently applied principle. That is what
prevents judges from ruling now this way, now that—
thumbs up or thumbs down—as their personal preferences
dictate. Today’s opinion forthrightly (or actually,
somewhat less than forthrightly) admits that it does not
rest upon consistently applied principle.”

I hate to end this with a question, but what exactly is Scalia's judicial philosophy?