Scalia also writes (p. 8):
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. [b]We do not interpret constitutional rights that way[/b]. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
(emphasis added) I'm glad Scalia finally recognizes that the constitution is a "living" document.
Now, in asserting that originalism used to be orthodoxy, I do not mean to imply that judges did not distort the Constitution now and then, of course they did. We had willful judges then, and we will have willful judges until the end of time. But the difference is that prior to the last 50 years or so, prior to the advent of the "Living Constitution," judges did their distortions the good old fashioned way, the honest way - they lied about it. They said the Constitution means such and such, when it never meant such and such.
It's a big difference that you now no longer have to lie about it, because we are in the era of the evolving Constitution. And the judge can simply say, "Oh yes, the Constitution didn't used to mean that, but it does now." We are in the age in which not only judges, not only lawyers, but even school children have come to learn the Constitution changes. I have grammar school students come into the Court now and then, and they recite very proudly what they have been taught: "The Constitution is a living document." You know, it morphs.
No doubt this is going to lead a ton of litigation about what constitutes common weapon. What might be "common" if it wasn't already restricted?
Another interesting side note - The ruling doesn't preclude license requirement to "keep arms." That one should drive the NRA to fits. Licensing under this ruling doesn't lead to banning. It appears the court left the door open to rule on that later.
There's just one problem with this analysis: Miller upheld a federal law prohibiting the possession of sawed-off shotguns, yet such weapons (or their equivalents) were "in common use at the time" of the adoption of the second amendment.
It is interesting that as an "originalist", Scalia thinks Miller should have been decided based on what was common at the time of Miller instead of what was common at the time of the writing of the 2nd.
Of course, that means you have to define "people" Brandon.
People isn't restricted to "citizens" or the founders would have said as much, so that means that non citizens (terrorists) on US soil are constitutionally allowed to carry guns.
What about felons? Are they no longer "people" if they have been convicted of a felony? Wouldn't it violate the "cruel and unusual punishment" if a felony removed your personhood? I would love to see Scalia argue that point.
The "common use at the time" Scalia is referring to isn't at the time the 2nd Amendment was passed. Short-barreled shotguns weren't in common use at the time of the Miller ruling. He was referring to the statement from Miller where they specifically said "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."
Also, in my opinion, the 2nd clause of the amendment is crystal clear when it says that the right of the people to own and bear arms may not be limited. It seems to me that even if the amendment were phrased:
Owning guns is awful and so the right of the people to own and bear arms shall not be infringed
it would be an odd choice of conflicting ideas, but the statement that the government can't infringe on the peoples' the right to own guns would still be clear. I feel that the first phrase is there to give an example. Also, to state that a militia may arm itself would be an unnecessary redundancy, since the mere existence of a militia implies that it exists to provide armed protection.
I strongly suspect that the Founders thought that the existence of the inherent right to personal liberty implied an inherent right to self defense, including the right, should the occasion present itself, to defend oneself agains a tryannical government.
fishin wrote:The "common use at the time" Scalia is referring to isn't at the time the 2nd Amendment was passed. Short-barreled shotguns weren't in common use at the time of the Miller ruling. He was referring to the statement from Miller where they specifically said "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."
I don't read the opinion to be saying that at all. Here's what Scalia says starting at p. 52 (emphasis added and internal citations omitted):
We think that [i]Miller[/i]'s "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." [b]The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militia men and weapons used in defense of person and home were one and the same."[/b] Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read [i]Miller[/i] to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right. We conclude that nothing in our precedents forecloses our adoption of the [b]original understanding of the Second Amendment[/b].In Scalia's opinion, there are absolutely no references to the kinds of weapons commonly in use in the 1930s, but there are references to the "traditional militia" and the weapons commonly used "in the colonial and revolutionary war era." Furthermore, Scalia states (p. 55) that "the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty."
My reading of Heller, therefore, is that the second amendment protects the right to bear the kind of arms that were used by the people for self-defense and militia service at the time the second amendment was adopted. This reading accords with Scalia's later statement (pp. 55-56) that the right to bear arms is not altered by changes in technology:
It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.The only way to make sense of that statement, then, is to conclude that the amendment protects the right to bear the kind of arms that were commonly used at the time of the amendment's adoption.
Of course, if your interpretation is correct, then Scalia has a different problem. If the amendment protects the right to bear the kind of arms that are commonly owned today, then Scalia has to explain how that interpretation fits with his originalist take on the constitution.