The pseudonym "Philo Vaihinger" has been abandoned. All posts have been and are written by me, Joseph Auclair.

Sunday, April 14, 2019

Reading "We the People"

EC does advert to rulings concerning the 2nd Amendment.

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.

EC writes that before Heller no Supreme Court had ever stricken down any law for violating this amendment.

"The Court", he says, "always ruled that the Second Amendment was about a right to have guns for the purpose of militia service" (page 8).

Heller struck down a DC ordinance prohibiting private ownership or possession of handguns, 5 conservatives vs four liberals.

Two years later the same majority held the 2nd protects a fundamental right against state and local governments, too, in McDonald.
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Scalia went there, to incorporation of the 2nd.

Scalia articulates the position of the court that the part of the text before the comma is merely "prefatory" and only the part after it is "operative".

That part, read fairly, says without qualification that the right of the people to keep and bear arms shall not be infringed.

EC regards the claim that the first part is merely prefatory as arbitrary and in any event cites this case as part of his argument that conservatives only insist upon judicial restraint when it is liberals they want to restrain, and denounce judicial activism when it is liberal judicial activism.

(He says liberals do the opposite).

I mention all this to point out that the conditional view of the text as a legitimate originalist reading seems not to have been considered by anyone, though it fits quite nicely with liberal values as it makes the amendment entirely inoperative.

So to speak.

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