Want A Gun Join A State Militia

Democrats are often viewed by Republicans as lacking in respect for the flag, weak on patriotism, and desiring to rewrite the constitution. I’ll cop to the first one as I’ve never been big on worshipping symbols, be it my high school football mascot or the stars and stripes. Patriotism is another matter as I believe patriots are those who recognize their nation’s failings and struggle to hold it accountable in order to make it better, count me in. Regarding rewriting the constitution, while it could use an amendment or two like equal rights for women and replacing the dangerous electoral college with the popular vote, I’m largely satisfied with simply enforcing it as is.

As an example the Second Amendment states: “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.” Many on the right and a significant fraction of those on the left interpret that as if the first two phrases don’t exist. The Supreme Court only recently started viewing it the same way. Prior to their 2008 decision in District of Columbia v. Heller the Supreme Court had not held that just anyone had the right to have any weapon they chose. In fact in a 1939 case the United States v. Miller, the Supreme Court ruled that the Second Amendment did not protect weapon types not having a "reasonable relationship to the preservation or efficiency of a well regulated militia."

In District of Columbia v. Heller (2008), the Supreme Court affirmed for the first time that the right belongs to individuals, for self-defense in the home, while also including that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding "the possession of firearms by felons and the mentally ill" or restrictions on "the carrying of dangerous and unusual weapons." State and local governments are limited to the same extent as the federal government from infringing upon this right. Justice Antonin Scalia wrote the majority opinion in the Heller case.

Supreme Court Justice Antonin Scalia claimed to be an originalist, meaning that you have to interpret the constitution with an eye toward what words and phrases meant at the time it was written and nothing else. That notion is at odds with the views of many scholars and judges who believe one must look at legislative intent, ordinarily a judge or scholar will review the debate over the legislation, including any amendments made during the process to interpret those meanings. In the case of the constitution there are the Federalist Papers many of which were written by the primary author of the constitution, James Madison, others by Alexander Hamilton.  Both wrote about militia’s and their purpose in the new country. Their intent was for them to be organized and regulated by the individual states and beholden to them unlike a national army under orders from the chief executive. It is clear that weapons owing citizens were expected to be members of such a militia and to be held accountable by the states.

While Scalia turned the Second Amendment on its head even he made it clear that states and the federal government had both the right and the duty to restrict "the carrying of dangerous and unusual weapons."

There is no question that an automatic weapon with a high capacity, interchangeable magazine is a very dangerous weapon so it would appear that even Antonio Scalia would support restricting private ownership of weapons like those used in El Paso, Odessa and Sutherland Springs.

Published in the Seguin Gazette - September 20, 2019