Tuesday, August 16, 2011

Gun Rights And Justice Scalia's Brush With The Living Constitution

By Nicole Flatow, cross-posted from American Constitution Society

Justice Antonin Scalia may be the Supreme Court’s “ultimate originalist,” but when it comes to the Second Amendment, he has recently embraced a living Constitution, UCLA law professor Adam Winkler suggests in a column for The Atlantic adopted from his forthcoming book, Gunfight: The Battle Over the Right to Bear Arms in America.

In his article, Winkler traces the surprising and contradictory history of the U.S. right to bear arms, starting with the Founding Fathers’ own version of an “individual mandate” that required many citizens to purchase guns, while forbidding gun ownership for slaves, free blacks, and “law-abiding white men who refused to swear loyalty to the Revolution.”

The National Rifle Association, founded as an organization to improve American soldiers’ marksmanship, was “at the forefront of legislative efforts to enact gun control” in the 1920s and 1930s, and only shifted to become a “lobbying powerhouse committed to a more aggressive view of what the Second Amendment promises to citizens” in 1977, Winkler explains.

In light of this history, Scalia’s 2008 opinion in District of Columbia v. Heller, striking down a D.C. gun-control law, but explicitly leaving intact a host of other limitations on the right to possess firearms quite different than those contemplated by the founders, “is a fine reflection of the ironies and contradictions—and the selective use of the past—that run throughout America’s long history with guns,” Winkler concludes.


Aaron said...

Looks like another way to remove the right to defend yourself. I really wish that this silly arguing would just come down to repealing the second amendment and be honest.
The intention, according to letters of Jefferson, writings of Washington/Madison/Monroe, rulings throughout the 18th and 19th centuries, all show individual rights for defending yourself.
If the intention was to only arm the militia, then it follows that the removal of arms from those not in the militia would be required, ie, the housewives and elderly who cannot be part of the militia.
Winkler should look at the rulings from the following century and the intention of the founders.

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