> Scalia clearly lays this out, gives the proper English lesson, and explains why the amendment means precisely what it says.
I will reluctantly get into Scalia's "proper English lesson", but it's just ultra boring, big chunks of quoted text, and ends with him being wrong. But here we go anyway.
Scalia tries to show that 2A was meant to apply to all individual persons, not groups of people, not subsets of people, and certainly not just militias:
> What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in _United States v. Verdugo-Urquidez_: “ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment , and by the First and Second Amendment s, and to whom rights and powers are reserved in the Ninth and Tenth Amendment s, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”
> This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
This is wrong. Constitutional rights didn't apply to women, children, immigrants, people of color, or Native Americans. If you disagree, consider that women largely weren't allowed to own property or attend school beyond a young age. When the Founders wrote "[pP]eople", they were not referring to all the people, so Scalia's argument that using "the militia" would inappropriately create a subset is wrong. "People" was already a subset, and the Founders were clearly aware.
That's his whole argument for 2A as an individual right.
(Sorry, gotta break this up into parts)
> First, the founding fathers did not ensure that slavery would be allowed in perpetuity. In fact, the slave trade had already been outlawed (and later the US Navy even sent ships to Africa to interdict slavers leaving the continent
The slave trade was outlawed because Virginia wanted it outlawed. It was a net exporter of slaves, and they feared both rebellion and economic ruin if the trade continued. The morality of it was just a smokescreen. [1]
> ...the seeds of the civil war were sown in the 3/5ths compromise, which ensured that the south would never be able to muster the power to keep slavery legal.
The exact opposite is true [2]. The South wielded outsized power precisely because of the 3/5ths compromise, which actually led to Missouri entering the Union as a slave State. It also extended slavery to territories stolen from Mexico. Not only did they keep slavery legal, they expanded its reach.
> But it's also not sophistry to analyze the intent of the framers of our country's original documents in ensuring that we follow the law.
I agree, which is why I think Textualism is idiotic at best, and a smokescreen concealing a reactionary agenda at worst. I also think we should consider that many of the Founders were downright evil when divining their intent--3/5ths compromise is probably the best example, but my definition of evil encompasses "enslaved others", and that's over a dozen depending on how you count [3].
> The Constitution ... says ... that the right to keep and bear arms is a natural and individual right
It's ironic for you to use the words "it means exactly what it says" and then use a phrase that exists neither in the Constitution nor the Bill of Rights. Let's quote 2A again here:
> 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.
Let's also quote the 1st draft of 2A:
> A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.
This one is even more focused on militias and military service. 2A was always--from its inception--about militias.
Let's move on to his argument against 2A applying only to State militias.
> a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939) , we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. See, e.g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades … and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“[T]he militia of the State, that is to say, of every man in it able to bear arms”).
...
> We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.
Scalia asserts that the operative clause can't work if the prefatory clause doesn't include everyone. His evidence for this is that the Founders understood the history of tyrants taking away the people's arms, and that without an individual right to bear them, 2A fails at its purpose. He argues the Founders would not have done that, and maybe that we should assume they didn't mean to if they inadvertently did.
But this ignores the Whiskey Rebellion. The Pennsylvania militia was commandeered by Congress and then-President Washington to suppress political opponents.
He also ignores the Federalist papers. In his Federalist 46 citation, Scalia conveniently omits all of Madison's references to States, including his assertion that State organization of militia would be the key ingredient in repelling Federal tyranny. To quote Madison there (emphasis mine) [4]:
> The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition.
> That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both...
> that the governments and the people of the States should silently and patiently behold the gathering storm...
> Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.
> To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.
> Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.
> Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
First, Madison repeatedly emphasizes local and State governments as a key component of repelling tyranny. But he also exclusively conceives of such resistance solely through the local and State militias. That final quote says straightforwardly that "it is not certain, that with [arms] alone they would not be able to shake off their yokes". Madison writes "the additional advantages of local governments chosen by themselves" they could overturn the throne of every tyranny in Europe. This completely devastates Scalia's case, which again is that the Founders knew an individual right to bear arms completely outside a militia was the only way to secure a free State. It's no wonder he left it out.
And if that's not enough for you, he also ignores the Constitution itself. Article I, §8 reads "The Congress shall have power to... provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions." And "insurrection" means (a violent uprising against an authority or government). That is exactly "suppress[ing] political opponents".
That's his whole argument against 2A applying only to State militias: a bunch of cherry-picking and some circular logic (2A establishes an individual right to bear arms, because without such a right 2A can't work).
Another way of reading 2A is that States have the power to regulate the ability of the People to bear arms for the purpose of maintaining a militia. The nice thing about this reading is that it's consistent with the rest of the Constitution, the Federalist papers (all of them), and the acts of the Founders themselves, and it doesn't mean 2A is self-defeating. The downside is that it doesn't really show there's an individual right to bear arms. Scalia forewent that reading (and incidentally decades of precedent), clearly to establish an entirely new individual right to bear arms.
---
This is sophistry. Omitting key facts. Relying only on definitions that serve your position. Americans deserve better than to have our heritage rewritten by Justices with an agenda. It's time we stop holding Scalia up as any kind of hero. He is at the very least complicit in a wave of mass murder and suicide brought on by the wide availability of firearms, not only because of his deceit here, but also because of his focus on the past (remember, Heller was about DC trying to control gun violence in their city). He (and the other conservative Justices) had an opportunity to reinvigorate shared sovereignty and redeem states rights as fundamental policymaking tools (where they once were thinly veiled advocacy for slavery and later segregation). They failed us.
Oh I almost forgot:
> If you don't like the Constitution, it has a mechanism to change it. Try it if you feel it's necessary, but don't make up stories about how it doesn't mean what it means.
2A is super far down on the list of things I would change. Reversing Citizens United with an Amendment is up there, revoking corporate personhood is up there, publicly financed elections, ERA with orientation/identification clauses added, proscribing religious-based discrimination (e.g. you can't refuse to serve someone because your religion says you shouldn't... or at least you think your religion says you shouldn't), fundamental right to a clean environment, child/felon/universal suffrage, proscribing the death penalty (thought we got this with 8A but noooo). We can fix an activist judge with another activist judge; no need to waste an Amendment.
And just imagine how much better our society would be with those Amendments. Are we better for the post-Heller reading of 2A? Obviously not. What a truly terrible mistake.
[1]: http://abolition.nypl.org/print/us_constitution/ http://abolition.nypl.org/print/us_constitution/ (careful, asks you to print the page)
[2]: https://en.wikipedia.org/wiki/Three-Fifths_Compromise#Impact_before_the_Civil_War https://en.wikipedia.org/wiki/Three-Fifths_Compromise#Impact...
[3]: https://www.britannica.com/topic/The-Founding-Fathers-and-Slavery-1269536 https://www.britannica.com/topic/The-Founding-Fathers-and-Sl...
[4]: http://www2.law.ucla.edu/volokh/beararms/FEDERALI.HTM http://www2.law.ucla.edu/volokh/beararms/FEDERALI.HTM