Jul 5, 2008

Bang Bang! Part 2

Continuing with the observations on the Heller decision... Scalia wrote (pp 19-20):
These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” (...) This right has long been understood to be the predecessor to our Second Amendment. (...) It was clearly an individual right, having nothing whatever to do with service in a militia.

(Emphasize added.) That is a wrong conclusion. All the historical facts Scalia quoted were about one social group (religious in this case) trying to dominate the other and the other being armed to defend itself. While I would agree that all rights are individual, this is about as collective as the exercise of rights can be. In Scalia's context, arms would be of no use to an individual Protestant, but only to a Protestant militia resisting a Catholic domination. Scalia is not helping his cause with this example.

Another instance where Scalia's historical facts don't help his interpretation is found on p. 25:

During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. (...) John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.”

If anthing, this points to my preferred interpretation of the Second Amendment, which is that it codifies a right to serve in the armed forces (be part of the militia), a right that would be violated by a formation of a restricted military class of citizens, something that would have been reasonably perceived as a real risk in the late 18th century. But that is far from a right to own or carry weapons as a private citizen, unrelated to military or paramilitary service.

Scalia is on the verge of agreeing, but he doesn't like the result, so, after all this analysis, he declares the prefatory clause academic:

It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.

This logic would be palatable if Scalia were known as a supporter of unenumerated rights, but, that not being the case, he is strangely out of character. He gives all the importance to the right that, according to him, most Americans perceived to have at the time (a typical foundation for an unenumerated right), and none at all to the reasons this right was codified in the Constitution. He seems to argue that the operative clause of the Second Amendment is redundant, while the prefatory clause is irrelevant.

Scalia's interpretation of the analogous provisions in state constitutions adopted around the same time is extremely strained. While PA and VT clearly did guarantee private citizens a right to bear arms for self-defense, Scalia's ascribing the same meaning to the provisions in NC ("for the defence of the State"), GA (“for the security and defence of this province from internal dangers and insurrections”) and MA ("for the common defence") constitutions is arbitrary, to put it mildly. And again, the very nature of the argument is so un-Scalia, who would never find the right to privacy in various state constitutions relevant for the U. S. Constitution, nor would consider the significant minority of states that have abolished the death penalty to be a relevant factor in Eight Amendment cases.

Next time: Scalia vs. Miller and so on.

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