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> 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 Scali
by camgunz 7y ago
> 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.