Scalia original intent of the 2nd amendment

The United State Supreme Court ruling in D.C. vs Heller was more about framers' original intent vs. living tree document. The majority opinion focused on what the framers meant by words embodied in the 2nd amendment. While the dissenting voices focused on the meaning of the 2nd amendment as to "..protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense..

The second amendment reads: 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.

The majority argued the meaning of words at the times implies that the framers gave limited rights to citizens to bear arms. While the dissenting voices argued that the 2nd amendment was a state right to create a militia to protect its citizens.

The Majority decision suggest that the D.C. law focused on specific class of weapons used for self defense in violation of the citizen rights to bear arms. The ban was essentially arbitrary and capricious in nature in picking on handguns used for self defense to protect property, home, self, and family. In additional the ban hindered those who legally owned other types of weapons that could be used for self defense with a requirement that imposed those weapons to be disassembled or maintained with a trigger lock if found in the home.


The majority argued that the right of the people as individuals to have such weapons for self defense is what the framers permits in the 2nd amendment. Those who argued against this individual right are confused by the preface wording, A well regulated Militia . The majority suggest to much is read into this phrase. The individual makes up the Militia , is just a disciplined and trained person,so it is an individual right rather than a collective right.

However, the majority in its need to preserve the 2nd amendment did not take the full amendment but selectively propped up their ruling with focus on certain wording. For example, when reading the whole amendment, the word "free state" could be substituted for the word "right of the people" The meaning of militia during the time period included soldier, and the only folks who could be a soldier was raced white males. Therefore, the 2nd amendment did not allow for all of its citizens to bear arms.

Matter of fact the majority argues that some states had to expel free blacks because the collective Militia of the federal government only wanted those who were able-bodies white male citizens. These were the folks who would be called to protect their country. So the restrictive 2nd amendment states who could hold a weapon, why they could hold a weapon and the responsibility imposed on those who were granted this limited right. It said nothing about a specific class of weapon.

The strict constructivist ignored the historical reading of the amendment to avoid the fact that weapons of yesteryear's used during war time were far less powerful than the type of utility that is on the mean streets of today. The majority uses a traditional method of interpretation not to much difference than the Taney case to maintain a doctrine for white privilege when the Court suggest that the 2nd amendment is an individual right to bear arms is "inherited from our English ancestors."

This time the Court pretends that handguns used for self-defense back during the framers are no more dangerous than handguns used for self-defense today. But that is not the argument, weapons used during the framers time was for self-preservation from other state intrusion whereas today weapons of mass destruction are used far too often to settle a score rather than for self-defense of property, home, self and family.

This is a win for the National Rifle Association and to restrain activist judges in the various states. June 30, 2008Update: from the BradyCampaign, Fort Wayne's very own Paul Helmke: