Countering the Heller dissent [View all]
In his dissent in Heller, Justice Stevens applied from Marbury v. Madison that "It cannot be presumed that any clause in the Constitution is intended to be without effect...". The argument expressed from this point names as the sole purpose for the 2A, the protection of a Militia purposed RKBA only. That, while the use of a gun in self-defense would certainly be legal, the 2A does not innately protect possession for that purpose.
The Heller case was about: "We must decide whether a District of Columbia law that prohibits the possession of handguns in the home violates the Second Amendment. The majority, relying upon its view that the Second Amendment seeks to protect a right of personal self-defense, holds that this law violates that Amendment."
In my view, there were several known, established, accepted and respected behaviors common among the citizens of our young nation. They were:
- the ownership of long guns for the purpose of hunting
- the carry of smaller firearms such as pistols for personal protection
- the use of guns in general for practice
- the use of a gun during service as a law enforcement officer
and, of course...
- possession for use relating to militia service.
I argue that the 2A was written with the militia clause to include in its protection, the specific possession of militia appropriate weapons. That if, weapons not solely purposed for the first four uses, above, would be restricted from the people, the militia would be impaired. That the possession of militia appropriate weapons would be protected. After all a militia armed with Olympic target pistols of .22 caliber or 18th century muskets is hardly well matched against another force armed with even 19th century lever action rifles.
Through history, certain upper classes have prohibited the possession of state of the art arms to those outside their own group. Take for example Japan's Samuri who forbid general ownership of the katana. Laws that would burden the people in same manner as the British attempted to burden the colonies concerning firearms were to be excluded from possibility. The 3A was in line with that same end. It was a standard procedure among the British to house their soldiers in the homes of colonists and burden the quartering family with their feeding and sheltering.
In reading Federalist #46 one can determine that Madison, the principal author of the Bill of Rights, intended to protect a militia of just about every free white adult male in the country. That the existence of arms in the hands of everyone rather than a select few (maybe 1% of the population) was entirely proper.
There have always been 1%ers that sought to be "above" the rest of us. It is that same special interest end that the 2A was enacted to protect against.
In the US we've enacted and, later, corrected laws that forbid certain types of folks from owning firearms. There were laws against selling or giving guns to Black folks and Native Americans, because it was said 'they aren't really people'.
I further contest inferring that the RKBA has no individual protection based upon the founders not expressing that aspect conflicts with the nature of the Bill of Rights. A fundamental principle of interpretation is...
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.
The effect of this principle is to apply the 2A in the way as the other rights in the Bill of Rights are applied. The 1A covers newspapers with hundreds of employees as well as an individual blogger. The 2A protects everyone's RKBA not just those who belong to a militia.
The 2A mainly expresses and protects a right, a common right of everyone, not an institution, not the militia. The very idea that a right exists but only for a certain few is insulting to the founders... and to us all.
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