As I See It: 2nd Amendment gives militia right to bear arms, not individuals
By John R. Ratzlaff, Special to The Kansas City Star
On Feb. 23, 2001, Supreme Court Justice Antonin Scalia gave a lecture at Princeton University as part of a conference: “A Constitution for The Ages: James Madison The Framer.”
Justice Scalia explained that he, like Madison, “interprets the Constitution according to the ‘common sense’ meaning and definition of the document’s words at the time they were written.” Scalia called his approach to constitutional interpretation an “originalist” view. Scalia said this view is flexible: “If it (a law) is stupid, pass a law!”
Last June, in the District of Columbia v. Heller, the Supreme Court struck down a Washington, D.C. gun ban. Justice Scalia, writing for the majority, said that the Second Amendment protects an individual right to possess a firearm for self-defense.
The words “individual” and “self-defense” do not appear in the amendment, nor are they found in the two principal documents upon which Madison based the Bill of Rights: the Virginia Declaration of Rights, and amendments suggested by his state’s ratifying convention.
Other relevant material about the bearing of arms appears in the Constitution or laws of some of the 11 states that ratified the Constitution prior to June 8, 1789, when James Madison proposed nine amendments.
New Jersey, Connecticut, Maryland and South Carolina had not yet adopted any provisions dealing with the bearing of arms.
New Hampshire laws (1783) stated that no person shall be compelled to bear arms.
The laws of Delaware (1776), Pennsylvania (1776), Georgia (1777), New York (1777), Virginia (1777) and Massachusetts (1780) are characterized by recurring common elements: The danger of a standing army; a well-regulated militia, and arms for the defense or security of the state.
None of these documents contain the words “individual” or “self-defense.”
Standing armies during peacetime (such as the presence of British troops in the colonies following the French and Indian War) were regarded as dangerous to liberty.
A well-regulated militia is, as expressed in the constitutions of Virginia and Delaware, “… the proper, natural and safe defense of a free state/government.”
Is there any doubt that the Third Amendment was a consequence of the forcible seizing of quarters in private dwellings during the French and Indian War and Parliament’s Quartering Act of 1765?
Likewise, the meaning of the Second Amendment at the time it was written seems explicit: The right to bear arms belongs to a militia for the purpose of defending the State.
If the Second Amendment (original meaning) is obsolete, irrelevant, or merely stupid, the remedy is evident: Pass a law!
Or, in this case, amend the Constitution.
That task belongs to the legislature, not the judiciary. But Justice Scalia, abetted by four other Supreme Court justices, abandoned the originalist principle, failed to heed his own advice for rectifying a “stupid” law, ignored judicial precedent and engaged in judicial activism.
John R. Ratzlaff is professor emeritus at Ft. Hays State University. He lives in Merriam.
