Tuesday, March 18, 2008

Quote of the Day

in the spirit of Heller

I don't see how there's any, any contradiction between reading the second clause as a -- as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed. But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.

- Justice Scalia (Heller oral arguments)

Everyone should read the full transcript Scalia even goes so far as to discuss William Blackstone & Justice Story.

Scalia also points out one of the fallacies of using a collective rights interpretation, saying

"So long as it was up to the Federal Government to regulate the militia and to assure that they were armed, the Federal Government could disband the State militias."

Scalia is exactly right. If the 2nd Amendment protects only a collective right of state militias to keep and bear arms, but Congress has the power to arm (or choose not to arm) those militias, then the Federal government can render the militia useless by simple neglect. Why would this be the case when the founders wrote the Bill of Rights as a check on the power of the Federal government?

No comments: