This blog is a response to The Billy Blog's response to my own blog. Go check it out and leave a comment if you are so moved. My response was quote heavy and too long so I had to move it here. Since it was a response I didn't hyperlink my sources like I normally do so you can fact check easily.
My blog was a historical debate on the context of the 2nd Amendment. I would say your whole argument about the 2nd Amendment's new viewing is an excellent primer on the recent recreation of the amendment, and I would recommend it to anyone wanting the new scoop on 2nd Amendment poop.
I would submit you don't even really understand just how much the "self defense" argument in Scalia's decision was made to weigh into future decisions. Justice Alito, in the McDonald decision, even starts off his own decision by stating "this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home." Moreover the handgun ban was not passed by the US Congress, it was passed by the DC Council, which does have rules put on it by the US Congress as the recently arrested Mayor Gray will attest, but this law was in keeping with ordinances that were passed in towns in federally administrated areas of the west throughout the 1800's. Justice Scalia's majority decision hinged on DC's "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense". This ruling is more in keeping with a "natural right" to self defense (which goes back to English Common Law) than in keeping with the actual wording of the 2nd Amendment as a whole, even with the due process clause of the 14th. Essentially if you apply the 14th to the 2nd then you have a choice to make. You can disregard the 14th Amendment's due process clause to the second clause of the 2nd Amendment, as was done because of the wording of the first clause in Presser v Illinois and Miller v Texas, less than 20 and 30 years after the 14th Amendment was ratified. This is done because the first part of the amendment shows that the states have a clear right and duty to regulate their militias. Clearly, this was the favored method historically which is all my blog says. I will state that a key part of any "well regulated" military group is a uniformity in their weapons. I doubt many founders would take issue with your state handing out weapons and drilling you once in a while, as was the case in early America. With a standing Army and National Guard we don't really have a need for it though outside of a Red Dawn situation.
I'll probably write a longer critique of your argument. Mine still stands as correct though as it has been a recent movement of the right to get the first clause to stand alone, while historically this was clearly NOT the case as you can see from the court decisions above. It has been understood since the ratification of the 14th Amendment in 1868 that the 2nd Amendment limits the power of the federal government as the decision in United States v Cruikshank stated "The Second Amendment...has no other effect than to restrict the powers of the national government." The last major gun case before Emerson was United States v Miller in which the unanimous decision stated "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." Clearly the first clause impacted the second in 1939, unlike 2011.
Scalia even wrote in 1997's Printz v United States that the new tougher Brady Bill was unConstitutional because "We have thus far discussed the effect that federal control of state officers would have upon the first element of the "double security" alluded to by Madison: the division of power between State and Federal Governments." He made the argument that the federal law forced the states to enforce the law. Why would he argue such a thing instead of just stating the people have a right to bear the restricted arms? In 1997 the court did not have far right wing Justices Roberts and Alito who live to reinterpret the 2nd Amendment.
I guess in the end the most convincing piece of evidence for Scalia's own understanding of the Second Amendment is Scalia. "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security and where gun violence is a serious problem," Scalia wrote. "That is perhaps debatable, but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct." What the right wing has done instead is to declare one half of it extinct.
My blog attempted to show an early understanding of the 2nd amendment and the context with which it would be viewed as historical narrative. Your own closing argument couldn't have been more prescient. Much like your ACLU argument, I'm pointing out that the right wing is attempting to get back to the founders on everything BUT the 2nd Amendment. Is it revisionist history? I'm not sure because our founders were not monolithic, so I'm sure there was a movement to allow for sub-state insurgencies by more than one founder. Is it a conspiracy? I don't think anyone who has read a newspaper or the court decisions of the last 100 years would say it is. To be a conspiracy you have to be quiet and small with a lot of power. It's a pretty large movement based on the number of NRA stickers I see daily. There are entire colleges being started just for this and other right wing causes. I'm glad it got you thinking though, and I don't begrudge your very current reading and understanding of the amendment. As the DC and Chicago bans were 5-4 votes, whereas the earlier cases were generally much larger decisions, I think the issue is very much alive today.
No comments:
Post a Comment