One of the most intriguing aspects of Justice Scalia's opinion in District of Columbia v. Heller, the landmark Second Amendment decision handed down Thursday, is its use of living constitutionalism to justify the decision to invalidate D.C.'s handgun ban. On first look, the opinion appears to be an ode to originalism: the Court goes on for page after page detailing why and how the framers drafted the Second Amendment to protect an individual right to bear arms. But when it comes to deciding why the handgun ban is unconstitutional, Scalia, the most famous proponent of interpreting the Constitution strictly according to its original meaning, argues that handguns are the most popular weapons chosen by Americans for self-defense. But why should that matter? Since when does an originalist look to today's choices -- or the choices of recent generations -- to determine the scope of a constitutional right? If people had chosen machine guns as their weapon of choice, presumably they would be protected too. Sounds like the Constitution is evolving to fit current circumstances after all.
A true originalist approach might look to the weapons preferred by the Founding generation to determine what is protected. That's not what the Court did, perhaps fearing the logical consequence that a handgun ban might be permitted in light of the Founding generation's preference for the more reliable and accurate long gun.
So what is protected and what is not protected? That is where the Second Amendment rubber hits the road. The real meaning of the Second Amendment is in what the Court reads that Amendment to prohibit or allow. But here the opinion does not provide tremendous guidance, failing to articulate a standard of review to help the lower courts soon to face numerous Second Amendment suits. More importantly, the guidance it does give is not grounded in original meaning at all.
The Court says that it is not calling into question longstanding prohibitions on possession by felons and the mentally incompetent, bans on guns in sensitive places, and restrictions on sales and purchase. In another passage, the Court suggests that "dangerous and unusual" weapons and concealed weapons can be banned. Why doesn't the Second Amendment call those laws into question? The Court provides no answer other than that they are "longstanding." But this is not the same as "part of the original public meaning" of the Second Amendment. Indeed, many of these types of laws are modern inventions and - while reasonable and appropriate - had no analogy in the Founding era. The Founders didn't require background checks, require sellers to be licensed, or ban guns in schools. Mental incompetence was not even something recognized in the law until the 19th century. Meanwhile, the types of gun control laws the Framers did have would be unacceptable: requirements that all able-bodied men turn up for mandatory musters or that all gun owners take an oath of loyalty to the state.
Maybe a good originalist argument could be made to support the exceptions recognized in Justice Scalia's opinion. But Heller only stated the exceptions and cites no historical evidence whatsoever that the Founding generation understood the right to self-defense to be subject to these particular exceptions.
So what explains the reasonable regulations that Scalia's opinion recognizes? America's living tradition of the right to bear arms. Americans have enjoyed the right to bear arms in most states for most of American history and they have always accepted a wide array of reasonable gun control measures, including the very types of laws Scalia lists. In the end, the list is a product of that lived experience and development of the right to bear arms, not originalist interpretive method.
Are those that disagree with allowing handguns for home defense advocating rifles for that purpose? It seems the author is. As early American citizens could own large, powerful, fast loading military muskets I believe todays comparison would be the assault weapon. Should DC residents be allowed an Assault weapon with which to defend themselves instead of a handgun? Then there were the early rifles. They were accurate and extremely deadly for the time period. Today's comparison would be a sniper rifle or possible a scoped hunting rifle. Should a homeowner in DC have a 30-06 or even .50 cal sniper rifle to defend themselves and their homes? I think a pistol is a much more reasonable defensive weapon for a city dweller and Scalia's ruling makes more sense than the authors.
A shotgun however is much more intimidating than a handgun and has more stopping power. It is also more likely to be out of reach when needed. Then there is the fact that not everyone can handle a shotgun. Have you ever seen Bob Dole or McCain use their wounded arms? Many women and the elderly simple cannot handle a shotgun.
According to Edwin Marshal and James Sannow a .357 Magnum loaded with 125 gr JHP bullets has a 96-97% chance of stopping someonw with one shot to the torso. a .40 cal Semi Automatic loaded with 180 gr JHP has about the same stats. It's hard to see how a shotgun could do much better and still be as easily accessable as a pistol.
In the end you should use as much gun as you can safely and accurately handle. For some that's a 12 guage pump. For an elderly woman with arthritis it may be a .22 revolver.
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.
Clearly, the Second Amendment is about a militia being called to defend the state, not about your personal safety or your need to go hunting. The Second Amendment has always been interpreted this way because the text directly states that it is in reference to a militia.
Until now.
Hint: There is another Amendment that might indicate you have a right to a handgun for your personal protection or for hunting. Can you think of which Amendment it might be?
In order to survive, our country needs a living breathing constitution. It is simply impossible for a two hundred year old document can possibly anticipate modern life.
The so called originalist supremes are no different.
Strict constitutional interpretation is a fantasy, not any more or any less than staged Gettysburg battle is a real battle. Or as "authentic" instrument interpretation playing of a Vivaldi concert is authentic.
It's sham mascaraing as justice.
In the end each one of justices simply uses his prejudices and tendencies to justify the mangling of the Constitution.
The people on the left and right do the same thing.
This is not a problem, as long as one invokes his/her opinion as justification, not some abysmally "this is what Constitution really means" stance..
OTOH. let's suppose we ban ALL driving because some people driving are 'under the influence' of alcohol. So let's have 'car control' yes? No? Is there any difference ? Would you trust your cousin with a car but not a pistol?
Also, look, it seems obvious to me that if the Second Amendment reference to "arms" was intended to mean anything, it was to refer to military-type firearms. It's obvious because the Amendment explicitly links the right to the maintenance of a militia. But Scalia can't go that far, so he conveniently drops originalism when it leads to an inconvenient conclusion.
The Republican Party today is fundamentally malign, and conservatives who still, to this day, continue to carry its water, cannot be argued with.
First, you disarm the criminals. Then, you disarm the police. (In case you had not noticed, no-knock warrants, often served on some wrong address , often kill or wound innocent citizens.)
Then you disarm the military -- no 'friendly fire' accidents', or panic mistakes, etc.
Once the world is truly safe from other people's firearms, the rest of us can breathe easier, right?
Then you can start on the use of bladed weapons, like the crazy that killed seven people in Japan (which has extensive firearms bans) but killed those people with a knife.
What I find remarkable is that many of the same people who are rejoicing in the decision on the 2nd Amendment are the same folks (including Scalia) outraged that the Supreme Court upheld the right of Habeus Corpus.
While they won't admit it, the 2nd Amendment was so poorly written it doesn't make sense.
But the Constitutional language on Habeus Corpus is as simple and clear as can be.
To any "originalists" out there. How come you cannot understand the original intent of the Constitution on Habeus Corpus? That it not be suspended except in times of Invasion or Rebellion.
How is that open to interpretation or in any way unclear.
And you know of course: The right to Habeus Corpus has done far more to secure the liberties of Americans than any gun collection anywhere.
Reflect, for a moment, on whether those who started the American Revolution were reactionaries, conservatives, progressives or radicals.