According to Scalia, the second amendment is broken up into two phrases. It has a perfatory clause and an operative clause. He tells us that the first phrase anounces a purpose, rather than limiting the second phrase. He also states that the second amendment could be re-written as "Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms should not be infringed. Scalia states that the way the second amendment is written is unique to the U.S. constitution, but there are other examples in state constitutions at the time that use the same kind of language when it come to individual rights.
He then breaks it down, starting with "The right of the people." The unamended constitution uses the phrase "the right of the people" two other times (in the first amendment and fourth amendment). These refer to individual rights, and not collective rights that are only granted when acting with others.
Three other times in the constitution are "the people" referred to when not talking about rights ("We the people...," the tenth amendment referring to that powers not granted to the federal government are given to the states or "the people," and Article I, which says that "the people" will elect members of the House). These all refer to "the people" collectively, but each time a right is outlined in the constitution, it refers to "the people" individually.
Scalia then says that "the people" refers to members of society, rather than a subset of that society, such as a militia.
He next breaks down "keep and bear arms." Scalia tells us that in Samual Johnson's 1773 dictionary, arms meant "weapons of offence, or armour of defence." Another dictionary described arms as "any thing a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." It was used in reference to weapons that were not necessarily used by the military. The example Scalia gives is from a legal dictionary saying, "servants and labourers shall use bows and arrows on Sundays, and not bear other arms."
Scalia then says that the argument that the constitution only refers to arms at the time the constitution was written is incorrect. He states that the constitution is not interpreted that way.
He then examines the phrases "keep arms" and "bear arms." According to dictionaries, "keep" means "to retain; not to lose" and "to have in custody." He states that the phrase "keep arms" was not often used during this time, but the examples they found referred to an individual right. An English writing at the time stated that Catholics who were convicted of not going to church were not allowed to "keep arms in their houses."
Scalia tells us that "bear arms" has a meaning of carrying firearms. He points to an opinion written by Justice Ginsburg which uses "bear" in the same context of wearing and carrying for "offensive or defensive action in case of conflict with another person." He also states that in the historical readings, "bear arms" had a meaning not connected with the military. State constitutions at the time held that people had the right to bear arms in defense of themselves.
Putting those two parts of the second amendment together, Scalia states that individuals have the right to own guns in case of confrontations. He then turns to "well-regulated militia." He states that according to US vs. Miller, a militia is made up of "all males physically capable of acting in concert for the common defense." Scalia tells us that anti's say that the militia refers to the state and national militaries. Scalia states that Congress is given the constitutional power to create armies and navies. However, Article I of the constitution assumes that the militia is already in existence, and it gives congress the power to "provide for calling forth the militia." If the militia were not already created, Scalia claims that the constitution would refer the "a" militia, rather than "the" militia. Thus this implies that the militia is already existing.
Scalia then defines "well-regulated." He states that this phrase means well-disciplined and trained. After this, he defines "security of a free state." He states that this refers to the community as a whole, rather than individual states.
Sorry this is long, but it the way this is broken down needs to be put out there. This ruling I think is still the most recent ruling with regards to the second amendment. The way that Scalia breaks down the wording and uses historical references to back up his argument is amazing in my opinion. This should be one of our main arguments. I hope I did a good enough job of explaining it.
