J Nagarya:
The NRA's Two Second Amendment Lies
The gun industry political front NRA tells two lies about the intent of the Second Amendment.
1. That the Second Amendment protects an "individual" "right" to possess guns.
Comparison with the several prior Supreme Court decisions, and the legislative history -- the Congress' Debates of the writing of the Amendment, which are LEGAL AUTHORITY -- shows that Scalia's "Heller" decision is an outlier. In "Heller" he falsely held that the Amendment protects an individual right -- for which he was excoriated by legal experts across the political spectrum for ignoring this adjudicatory standard:
When a conflict over the interpretation of a law cannot be resolved within the text of the law, one reverts to the legislative history of the law -- in this instance Congress' Debates of the writing of the Amendment.
The facts from those Debates:
The subject of the Amendment is well regulated Militia, and its purpose to establish a National Defense, relying on that Militia. The Militia is not an individual, and is a public institution, regulated under both Federal and state constitutions and laws; thus the Amendment is irrelevant to the issue of private, individual gun ownership:
James Madison is called "the father of the Constitution," and the gun industry/NRA claims that Madison wrote the Second Amendment. If both of those are facts, then the word "people" is consistent in meaning from beginning of the Constitution to the end of the first 10 Amendments. The first three words of the Constitution are "We the people," not, "We the individual".
This is the first draft of that which became the Second Amendment, which the gun industry/NRA calls the "Madison" Amendment -- but which it never quotes. [Here I clarify it for the logic-impaired]:
"The right of the people [PLURAL] to keep and bear arms [this phrase is the well-regulated Militia, and was drawn from four state constitution Militia Clauses] shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person [INDIVIDUAL] religiously scrupulous of [AGAINST] bearing arms [in well-regulated Militia] shall be compelled [INVOLUNTARY] to render military service [in well-regulated Militia] in person."
Source: Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore: Johns Hopkins University Press, Paperback, 1991), Edited by Helen E Veit, et al., at 12. (This volume is readily available from Amazon.)
Note the word "compelled": Militia service was a DUTY -- not a "right". And note the words "people" and "person": if a person -- individual -- claimed "religious" exemption from that DUTY, his case was scrutinized individually.
The only "individual" "right" Congress debated was that last clause -- "but no person religiously scrupulous of bearing arms shall be compelled to render military service" -- and it was obviously dropped from the proposed Amendment before it was ratified. Thus the Second Amendment obviously does not protect "individual" ANYTHING.
Only by ignoring the legislative history -- Congress' Debates of the writing of the Amendment, which are LEGAL AUTHORITY -- could Scalia falsely hold that the Amendment protects an "individual" "right".
2. That the purpose of the Amendment was to establish a "right" to "take up arms" against the gov't -- which is refuted by the Constitution itself:
Art. I., S. 8., C. 15. The Congress shall have Power To provide for calling forth the Militia to . . . SUPPRESS INSURRECTIONS.
The Founders themselves twice established the precedent on the point:
Under the Articles of Confederation, "Shays's" rebellion was suppressed by the state's legitimate well-regulated Militia, and the rebels charged with, tried for, and convicted of, TREASON, and sentenced to death.
And under the Constitution, AFTER the Second Amendment was ratified, the "Whiskey" rebellion was suppressed by Federalized Militia, lead by George Washington, and the rebels charged with, tried for, and convicted of, TREASON, and sentenced to death.
The Congress, as a co-equal branch of gov't, has the authority and power to overturn Supreme Court decisions.
Overturn "Heller".
PLEASE CIRCULATE INTACT.
Posted at 8:13 5/19/2022 - I pay for this publishing service monthly. Disqus where are you? It is now 8:47.
