The U.S. Supreme Court, against its own precedents and common sense, decided that the Second Amendment provides an individual right to own and use firearms, regardless of outcomes. The case was District of Columbia v. Heller. Writing for The Nation magazine, Dorothy Samuels declares the decision utterly wrong in nearly every respect, and, in particular, by rejecting the qualifying clause at the beginning of the amendment.
To grasp the audacity of what Scalia & Co. pulled off, turn to the Second Amendment’s text: “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.” To find in that wording an individual right to possess a firearm untethered to any militia purpose, the majority performed an epic feat of jurisprudential magic: It made the pesky initial clause about the necessity of a “well regulated Militia” disappear. Poof! Gone. Scalia treated the clause as merely “prefatory” and having no real operative effect—a view at odds with history, the fundamental rules of constitutional interpretation, and the settled legal consensus for many decades.
“The Second Amendment was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several states,” then-Justice John Paul Stevens correctly noted in his minority opinion, joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer. “Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.”
We should all appreciate that who accedes to the White House makes all the difference this November. Recall that Mr. Marmalade intoned that he would nominate another Scalia. Talk about blood on the hands.