What if the Supreme Court is Wrong About the Second Amendment?

August 14, 2014

Latest Thinking, Second Amendment

I haven’t blogged in over a week because I was caught up reading in detail the Supreme Court decision dealing with the second Amendment (DISTRICT OF COLUMBIA v. HELLER, 554 U. S. 570 (2008)). This got me thinking a lot about what if the Supreme Court is wrong about the second amendment and about the right to bear arms. What does it mean to say the Supreme Court is wrong? Can that be? And if so, what do we do about it?

Here is the wording of the Second Amendment again for easy reference so  you don’t have to go hunting for it (if you haven’t yet memorized it).

“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.”

There are several ways that the court can be wrong and it is worth differentiating them from each other:

  1. the court can be wrong about the Second Amendment’s meaning;
  2. the court could be wrong about whether the right to bear arms is a preexisting self-evident right
  3. the court can be wrong about which regulations compromise this right and
  4. the court can be wrong about the extent of its powers to regulate the right

These are all different but related issues. Let’s look here at these different ways the Court can be wrong and then in a subsequent blog we’ll consider what, if anything, a US public concerned about safety and the proliferation of guns and safety of the public can do with the present Supreme Court.

The First Way the Supreme Court Can Be Wrong

The first way the Court can be wrong, as I’ve said, is that it may have misinterpreted the meaning of the Second Amendment, historically or linguistically. In fact, the Court was split on the meaning of the Second Amendment with the majority opinion, written by Scalia, concluding that “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” (595). And “This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that ‘have some reasonable relationship to the preservation or efficiency of a well regulated militia’).” (622)

By contrast, one of the two minority opinions took the position that the second amendment was specifically a right that was intended to protect the States’ right to a militia and granted the right to bear arms in that limited context. The latter interpretation in fact was seemingly endorsed by an earlier Supreme Court ruling [United States v. Miller, 307 U. S. 174 (1939)] and was essentially overturned in Heller, although the court debates the earlier implications of Miller as well. [1] Heller is the first decision since the Supreme Court decided Miller in which a federal court overturned a state law regulating firearms based on the Second Amendment.

The debate over the Second Amendment’s meaning reads like a debate among historians and linguists. I should know. I have a PhD, was an academic for ten years at various universities and taught on subjects related to the history of religion and the interpretation of Scriptures. The debate over the meaning of the Constitution reminds one of the debates over the interpretation of biblical scriptures, as others before me have pointed out. [2] Scalia’s judicial philosophy is in fact “originalist,” meaning that he believes the right way to interpret the Constitution and the Amendments is by discerning what it meant to the average people in that time when it became law. As he puts it in Heller:

In interpreting this text, we are guided by the principle that “[t]he 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.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). 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.

As evident here, Scalia rejects interpretations that don’t try to locate the meaning in its historical time and place, or that are too technical and wouldn’t make sense to the ordinary persons in that period. He does not, however, try to get to the “authorial intent” of a specific author (such as Madison) and believes there is a historical meaning of words in context that is not necessarily the same as the author’s intent. Thus he rejects the relevance of Madison’s revisions of the Second Amendment during the approval process in Congress. [3]

In the case of the Second Amendment, the debate over meaning turns on a host of both linguistic and historical factors including but not limited to:

  • what the relationship is between the first (“prefatory”) clause about the “militia” and the second (“operative” ) clause which is talking about the right to bear arms
  • what the historical context was of the amendment’s adoption (i.e. post ratification)
  • whether Madison’s editorial changes during the amendment process are relevant and what they mean
  • what the various states said about the right to bear arms prior to the ratification of the Constitution and the Second Amendment’s adoption
  • whether the US amendment is similar to and modeled after the English law granting Protestants the right to bear arms in the English Bill of Rights of 1689

Each of these, and other points, has two sides, which is not surprising to anyone who knows anything about history and literary interpretation. There are few points of history or literary interpretation that are self-evident and unambiguous. The Constitution, like Scripture itself, is no different. There is almost always ambiguity and thus traditions of interpretation arise that take opposing views. The same is true of the Constitution. Ambiguity has to be resolved one way or the other and therefore a majority vote on the court ends up deciding the historical and linguistic meaning.

We are thus are in the ironic position of having a very critical issue of law and public policy decided by justices on a majority vote, when the underlying law may be ambiguous. Nothing is new in this fact, of course, since the Supreme Court has been interpreting competing views of the Constitution since almost the moment it was ratified. Indeed, one could argue that that is the Court’s ultimate job to resolve ambiguity in the Constitution so that we don’t go to arms over disagreements of interpretation, although in this case we are ironically avoiding violence over interpretation of our founding assumptions for the purposes of protecting the use of arms. How ironic is that!

Supreme Court justices like Scalia, of course, take the debatable position that they are ferreting out the objective real meaning of the Constitution and it is their duty to stay within the historical meaning of the document to the ordinary citizen. Whether there is such a thing as the real original meaning and whether there is an “ordinary” citizen whose understanding can be discerned is a debatable point and the Constitution itself does not tell us the preferred or authorized way in which it should be interpreted. Many historians and literary interpreters know that texts and history are often if not always ambiguous. The second amendment certainly is one good example where arguably the meaning is ambiguous and subject to multiple interpretations, as I discussed elsewhere, and as confirmed by the minority opinion in the case.

As Lois Schwoerer puts it in her discussion of the amendment, “Historians understand, as sometimes students and lay persons forget, that evidence does not always say the same thing to everyone; different people of good will may interpret it differently.” [4]

The Second Way the Court Can Be Wrong: Is the Right To Bear Arms a Pre-existing and Natural Right?

If the first way in which the Court can be wrong is in misinterpreting the amendment’s “original” meaning, the second way in which the Court can be wrong is in thinking the right to bear arms is a “preexisting right.” Scalia representing the majority position puts it this way:

We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed ….”

The court drawing on earlier precedents claims that the right to bear arms is pre-existing and not granted by the Constitution or the Bill of Rights. There are two ways of understanding what makes this right pre-existing. It can be pre-existing as a law in English common law or it can be preexisting as a natural self-evident right. The Court seems to assume it is preexisting in both senses, although it does not make this difference explicit.

Pre-existing as a Historical Right

First, the historical precedent. The majority opinion sees the Second Amendment as being similar to a right in the English Bill of Rights of 1689 that protected the right of Protestants to have arms. The English Bill of Rights states:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.

Historically, the court interprets this English right as a precursor to our Second Amendment and argues that the purpose of the right was similar to ours and arose out of the worry that the English government would disarm the Protestants under a Catholic ruler, a significant worry of the English population in the last third of the seventeenth century which led to the “Exclusion Crisis.” However, there is debate among historians of the English context, whether this law in the English Bill of Rights protects the individual right to bear arms. [5]

The Court also cites as a precedent Blackstone’s Commentaries of the Laws of England, the most important 18th-century treatise on the common law of England, published just shortly before the American Revolution in 1765–1769. The Supreme court cites the fact that Blackstone identifies the right to bear arms as part of the right of preservation and self-defense. (see Heller, 106) But the  Court fails to mention that Blackstone calls the right to bear arms an “auxillary” right which is regarded as a fence around a more primary “absolute” right. Whether an auxiliary right is more subject to regulation than an “absolute” right, is not something that the majority opinion of the Court talks about. Blackstone calls this right a “public allowance” one which the legislature has the right to deny. Here is Blackstone’s language:

5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law.Which is also declared by the same statute, 1 W. and M. st. 2, c. 2, and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. [6]

Even more surprising is to find Blackstone holding the view that the legislature does have the right to forbid the use of arms to Protestants, a point not mentioned by the majority decision of the Supreme Court.  Discussing the power of the King to make a binding proclamation, Blackstone has this to say:

A proclamation [by the king] for disarming papists is also binding, being only in execution of what the legislature has first ordained: but a proclamation for allowing arms to papists, or for disarming any protestant subjects, will not bind; because the first would be to assume a dispensing power [of the King], the latter a legislative one; to the vesting of either of which in any single person the laws of England are absolutely strangers. [7]

In this passage, Blackstone makes clear that the King’s powers are limited in trying to disarm any parts of the population without the legislature first ordaining it. By contrast, the legislature has the right to disarm papists [i.e. Catholics] and Protestants. Thus the analogy between the American and English right may in fact cut both ways and suggest that the legislature, which is the Supreme Power in English law, has the right to disarm parts of the population. One of the dissenting views in the Supreme Court decision (Justice Stevens) talks about the disanalogy between the English Bill of Rights and with Blackstone. All of this is to say that the analogy of the British and American contexts is not straightforward or unproblematic.

Is the Right To Bear Arms A Natural Right?

This brings us to the second question of whether the right to bear arms is a natural right, and not just a preexisting English right. The Supreme Court seems to presuppose, although it does not explicitly argue, that the right to bear arms is a self-evident and natural right and belongs to the right of self-defense and protection. This point emerges by and by in the discussion of the historical texts. For example, when citing Blackstone and some of the American sources the court notes that Blackstone calls it “ the natural right of resistance and self-preservation.” (see Heller, 665)

Now whether there is an inherent “natural” and “self-evident” right to own and bear arms is a very interesting question, which we explore below. Right now, however, it doesn’t matter since the Second Amendment declares the right to bear arms a right of American citizens anyway. As the Court notes:

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where welltrained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct. (Heller, 636)

Based on this comment, we know the Court doesn’t feel it is in its purview to extinguish the Second Amendment (as it understands it’s original meaning), even if that law were no longer relevant to today’s situation. This in part defines Scalia’s judicial philosophy. Even if the Second Amendment is a bad law, the Court’s job is to enforce and protect it based on what it meant at the time. At this moment, therefore, the Court doesn’t have to decide whether the right to bear arms should be protected, even if the Second Amendment did not exist. It does exist and the Court sees its role to ensure it is properly protected.

However, the question of whether this is a preexisting natural right would matter if Americans try to make an amendment to the Constitution and extinguish the Second Amendment or severely limit it. Article 5 of the Constitution does grant Americans the right to amend the Constitution, with three quarters of the states in agreement. In theory, this right to change the Constitution could theoretically apply to the Bill of Rights which are also part of the Constitution.

What is not clear, however, is what the court would do if Americans tried to eliminate the second amendment or replace it with an explicit prohibition on having firearms outside of a militia context. In that case, the Court would have to take a position whether this “preexisting” right is protected whether or not it is spelled out in the Constitution. In other words, would the Supreme Court have jurisdiction to protect individual rights not articulated in the Bill of Rights? And if it does what limits can it set on State regulation of that right.

Relevant to this question is whether the Bill of Rights represents the only set of rights that the Constitution and the Supreme Court are intended to protect. One could argue that the Court’s role is in fact to protect rights not necessarily mentioned in the Constitution. In fact one of the arguments made by Federalists, against codifying the Bill of Rights was the possibility that by enumerating rights it would imply that there was no protection for other rights not mentioned, which was not the case. [8 ] The Federalist argument implied and assumed there were rights that were to be protected that were not necessarily enumerated in the Bill of Rights.

The possible implication is that the Supreme Court does have a duty to protect and interpret which individual and natural rights are protected, even if they are not included in the amendments. The upshot is that if Americans were successful in removing the Second Amendment through a Constitutional process it could be the case that this Supreme Court would still argue there is a natural preexisting right to bear arms. What other future Supreme Courts would argue, of course, depends on their makeup and their reading of the law.

This brings us to the question whether the right to bear arms should be understood as a generic natural right, a historic right or just a civil right. In the philosophers of natural rights such as John Locke, who influenced Blackstone and the American founders, there was a distinction between rights that were thought to be natural and universal, on the one hand, and civil rights that were thought to be rights in particular societies, on the other. So is the right to bear arms a natural right or a historical civil right? In other words, does the right preexist historically in English common law only or is it one of the universal natural rights?

As noted above, in some of the precedents which the court cites, such as Blackstone, and some early American sources, the right to bear arms is thought to be an extension or part of the right to defend one’s life and one’s property. Similarly, natural rights philosophers who defined natural rights and shaped the views of the founders and the British legal tradition did say there was a right to protect one’s life. And natural rights philosophers such as John Locke, who influenced the founding generation, do mention that one may kill a thief (II ¶ 18-19), offering a view like the Court in Heller, that there is a natural right to defend oneself and one’s property. Jefferson’s formulation in his proposed constitution for the state of Virginia would also support this kind of view. Jefferson proposed the following formulation (the square brackets represent his additions in his second and third draft], which I have analyzed elsewhere.

No freeman shall be debarred the use of arms [within his own lands or tenements].

The foregoing suggests that the Court (at least this version of it) could argue that the right to bear arms would exist even if the Constitution were to be amended.

Arguing Against the Natural Right to Bear Arms

If the right to bear arms is a “natural right,” like the right to freedom of conscience and freedom of the press, it is obviously harder to deny or limit it. Nonetheless there are some ways to challenge this view by arguing:

  • that the right to defend one’s life and property was a  right that was transferred to society as a responsibility and is not left with the individual
  • that there is some evidence that in fact some of the States never thought of the right to bear arms as a natural right (i.e. the states don’t see it as a right to mention)
  • that a legislature can override this right
  • that the very same right to life and defense of everyone trumps an individual’s right to own a gun

Let’s take these up in turn.

The Right to Defend Oneself is Transferred To Society

As I said, the right to bear arms is presented as an extension (“auxillary” to use Blackstone’s words) of the natural right to defend oneself and one’s property, which are rights thought to be self-evident and natural. However, it arguable that a right which exists in nature fundamentally changes as one enters into a society and the implied social contract. This point about rights being modified as one enters society is often forgotten. The argument of Locke, for example, is that one relinquishes some of one’s rights that one has in nature when one enters society. This is why Locke differentiates freedom in nature from freedom in society, which is fundamentally different (II ¶ 22).

According to Locke, in nature, one has total liberty (under the law of God) but in society, one puts on the bonds of society and must live by the rule of the majority. One thus loses some of one’s rights by entering society. Locke is careful to say that the condition of one’s life must be better in society than in nature or one would not chose to enter into the social contract in the first place. But Locke points to two rights in particular that one completely loses when one enters society: the right to judge others and punish offenders (II ¶ 22). These rights which belong to individuals in nature are extinguished as one enters society. They are turned over to society to manage with the judicial system and the police force. Indeed, this is one of the reasons people prefer social life to life alone in nature. By entering into society, they come under a more impartial judicial system. This is why Locke refers to entering society as putting on the bonds, since one has less liberty but more security in society than in nature.

It is possible to make a similar argument with respect to the right to defend oneself. One can interpret the very nature of society, with its police force and powers, as taking over the duty to protect its citizens against other societies and against each other. One of the reasons to join society is to end the violence and feuds in nature, when justice is based on one’s own biases perspective.  Indeed, this is one of the justifications of the state’s police powers. That is to say, when one benefits from society one turns over to society the duty to protect oneself from other people. That is at heart what society is supposed to do. On this reading of Locke and the natural rights tradition, the right to protect oneself would have been handed over to the social system as its responsibility. It is now the duty of society to protect its individual members, not a right of individuals themselves.

The argument just made, of course,  would not deal with the other, second justification for the second amendment, namely, the right to resist a tyrannical national government, which is also a natural right and thought to be part of the justification of the Second Amendment. But that right could be dealt with through the protection of the militias and the State’s rights to have a well-regulated militia, which was one if not the sole purpose the Second Amendment originally. In other words, the justification of the Second Amendment to resist tyranny could be dealt with differently than the justification of protecting oneself. [9]

A second way of approaching this point, which is complementary to the first, is to argue that the right to be protected in one’s life extends to everyone and could counter the argument that individuals need their own guns. In other words, the right to life and defense should also extend to those who are threatened by those who use guns violently. Thus, it would be possible to argue that the right to life of the general population outweighs the right of defense of individuals who want to own guns.  Thus counter to the decision in Heller, one could argue that the right to own a gun does not include the right to keep it loaded at all times in one’s home or even that the right of an individual is extinguished because the right of other individuals to self-preservation trump that of the minority. This argument would have to be made based on an analysis of what is prompting violence with guns and whose right to life supersedes whose.

Third, we in fact have some substantive evidence that the American founders were much less worried about the individual right to bear arms than they were about the power of tyrannical national government. If one looks at the State Constitutions enacted before the ratification of the US Constitution, many didn’t worry about the right to bear arms at all and those that do mention the right do so primarily to defend the State’s right to conscript individuals into military service. Thus the State constitutions can be read to either support a right to bear arms or to dismiss the importance of such a right, a point I’ve discussed elsewhere.

There is a fourth argument to be made against the position that the Second Amendment is a preexisting right. That is the discovery that some of the founders’ thought that the legislature had the power to trump a natural right. I have not researched this question extensively but I do know of one surprising example where a right thought to be a natural was also a right that could be restricted or prohibited by the legislature. Let’s look at this instance.

The situation involves Thomas Jefferson’s draft of the Virginia Bill for Establishing Religious Freedom. This is the precursor to the First Amendment which protect religious conscience and thus analogous to the Second Amendment in being a primary right and one that entered the Bill of Rights.

Jefferson first wrote this bill in 1777 but the Virginia legislature (House of Delegates) voted it down in 1779. Later, James Madison saw an opportunity to re-propose the bill and it was approved by the Virginia Legislature in 1785, just a couple years before the ratification of the Constitution and the Bill of Rights. Madison drew on the Virginia Bill of Rights, among other state precedents, when formulating the first draft of the Bill of Rights, which he authored. What is interesting is that though Jefferson positions religious freedom as a natural right, he still makes it clear that the legislature has ultimate say in whether it is protected. Let’s look at the relevant language.

We the General Assembly of Virginia do enact that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.

And though we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding Assemblies, constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right. [emphasis mine]

What is extraordinary here to me is Jefferson and Madison’s view (and ultimately the Virginia Legislature’s view) that the governing legislature has the authority to overturn even a law that is defending a natural right. One could argue, I suppose, that this was just a pragmatic position intended by Jefferson and Madison to defuse any fear about adopting new bill, by claiming that it could be reversed and was not permanent. Incidentally, this same power of the legislature over the right to bear arms seems to be implied as well in Blackstone’s Commentaries, as discussed above.

I’m not a constitutional scholar. But I’m pretty sure this position would not fly today with the Supreme Court. Nor would I personally want to advocate that those rights which are “natural” and foundational should be overturned by the legislature, for example, the rights to life, liberty and property. I see the value of seeing our core natural rights as ones that the Court would protect against the whims of the legislature. But the question ultimately goes to where we, as a people, want to lodge supreme authority, in the legislature or the judicial system?

The Third Way the Court Can Be Wrong: The Right To Bear Arms Should Not Be Incorporated

It is clear that when the Second Amendment was initially written, and throughout the Court’s history, the Second Amendment was understood as a limitation on  the Federal government, and not a limitation on State Governments. This meant that the laws governing firearms were originally left up to the States.

For example, in United States v. Cruikshank, 92 U.S. 542, 553 (1875), the Court stated that the Second Amendment “has no other effect than to restrict the powers of the national government,” and in Presser v. Illinois, 116 U.S. 252, 265 (1886), the Court reiterated that the Second Amendment “is a limitation only upon the power of Congress and the National government, and not upon that of the States.” [10]

Like a number of the other amendments, the Second Amendment has now been “incorporated” into the Fourteenth Amendment, in the recent case of MCDONALD ET AL. v. CITY OF CHICAGO, ILLINOIS, ET AL (McDonald. 561 U. S.(2010)). What this means is that the Second Amendment like those other amendments is regarded as so fundamental that it is binding on states and the Supreme Court has the power to enforce state compliance. This clarifies an ambiguity that was left open in the earlier case of Heller.

Following the Civil War, there were good reasons that the Fourteenth Amendment made the protection of individual rights binding on states, given the Southern states’ attempt to limit the rights of blacks. It makes sense too that the Court gradually incorporated most of the other amendments into the Fourteenth Amendment as well, making sure that States did not deny basic human rights to their citizens.

It is worth pointing out the significant irony that the protection of gun rights at the state level has come about this way. While the Bill of Rights was originally drafted as a way to limit national powers, so that state and individual rights could be protected from powers of the national government, the incorporation of the Second Amendment into the Fourteenth Amendment now gives the Federal government power to police the states’ compliance on the Second Amendment. Gun rights are now being protected by the Fed’s power rather than protected by limiting the Fed’s power. How ironic is that!

Placing Limitations on a Natural Right

Another way to tackle the view that the right to bear arms is a natural right is by asking what limitations if any can a State can place on that right. To what extent can a State limit the right to bear arms? This goes back to my discussion in the previous section. I’ve outlined in that section the ways in which the Supreme Court could, if it wanted to, impose a limit on the right to bear arms without arguing that the right is not natural . Furthermore, the Court has already indicated it accepts some restriction on firearms and would consider more. Here is what the majority in the case has said:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19thcentury cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. (Heller, 626)

What limitations would the court accept? The court has indicated already, for example, that the term “bear arms” places a limitation on arms that cannot be carried. The court also wrote that:

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.  (ibid)

Those who want more restrictions would have to argue for ones that can be linked to those recognized in the amendment’s historical context. For example, the Court has noted:

We also recognize another important limitation on the right to keep and carry arms…that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

This last statement, it seems to me, opens up a possible argument over what kind of firearm is dangerous. Seems like there is an opportunity to argue that anything but a rifle or handgun could be construed as “dangerous and unusual.”


For those who wish to limit the right to bear arms, the prospects look daunting indeed. There are multiple approaches that are possible and all of them should be tried in parallel. With the current make-up of the Supreme Court, those seeking for more control over firearms should try all the approaches described above: 1) argue over the historical meaning of the amendment, 2) push to clarify the limitations that the court recognizes are appropriate, 3) challenge the notion that the right actually preexists by denying the analogy with the English law and by understanding the limitations that English law allowed, 4) argue that the right fundamentally changes when one enters society and that one relinquishes the right that one had in nature. Failing all of these, push for an amendment to the Constitution and to change the makeup of the Supreme Court. Any other ideas?



[1] Contrast Scalia 622, with Stevens, 637.

[2] See, for example, Leonard W. Levy, Original Intent and the Framers’ Constitution and other citations there.

[3] “It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.” Heller, 590.

[4] Lois G. Schwoerer . “To Hold and Bear Arms: The English Perspective.” Chicago-Kent Law Review. 76:1, 2000, 30.

[5] Ibid.

[6] William Blackstone, Commentaries on the Laws of England, vol. 1, chap. 1, 3, 5, 144.

[7] ibid., vol. 1, chap. 7: 3, 271.

[8] James Wilson made this argument in the Pennsylvania’s ratifying Convention and it was also the position taken by  Alexander Hamilton in the Federalist papers.

[9] Whether State militias could resist the power of the United States government if the latter were brought to bear in a tyrannical way is an interesting and relevant question too but beyond the scope here.

[10] For a summary, see http://www.loc.gov/law/help/second-amendment.php


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