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Thursday, January 20, 2011

Wordsmithing and Gunsmithing

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."

Antonin Scalia, penning the opinion of the Supreme Court in the 2008 case that struck down the District of Columbia ban on handguns, benignly launches into his analysis [i.e., transmogrification of the Constitution] by stating:  "In interpreting th[e] text of the Second Amendment, we are guided by the principle that 'th[e] Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning...Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation."  According to the leading constitutional originalist of our day, the words of the amendment, "[a] well regulated Militia being necessary to the security of a free State," reflect the trepidation of "able-bodied men" of the 1780's that a tyranical federal government could quash their "ideal of a citizen militia which might be necessary to oppose an oppressive military force if the constitutional order broke down."  "During the 1788 ratification debates," Scalia tells us, "the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric."

Presumably, the words of the clause, "[a] well regulated Militia being necessary to the security of a free State," are to be given their "normal meaning," not some "secret or technical meaning" unknown "to ordinary citizens of the founding generation."  But Scalia deigns to assign the first words of the Second Amendment no meaning whatsoever, as they are merely prefatory, serving no other function than to clarify the purpose for which  the otherwise self-evident right "to keep and bear Arms" was constitutionally codified.  To put a Scalialistically fine point on it, the clause, "[a] well regulated Militia being necessary to the security of a free State," is a mere linguistic appendage, and surely should not be considered in any way to limit the people's right to keep and bear Arms...and Glock 19's in particular.  

So to all of the Antifederalists out there:  Take up your Arms!  (Best not call yourself a Militia, though.)

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