Posted by Tina
As promised the following are excerpts from the opinion by Justice Scalia on the right to keep and bear arms:
DISTRICT OF COLUMBIA, ET AL., PETITIONERS v. DICK ANTHONY HELLER
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
JUSTICE SCALIA delivered the opinion of the Court.
We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.
The Second Amendment provides: 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.
In interpreting this text, we are guided by the principle that [t]he Constitution was written to be understood by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical meaning.
United States v. Sprague, 282 U. S. 716, 731
(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the
founding generation.
The two sides in this case have set out very different interpretations of the Amendment. Petitioners and todays dissenting Justices believe that it protects only the
right to possess and carry a firearm in connection with militia service.
See Brief for Petitioners 1112; post, at 1 (STEVENS, J., dissenting).
Respondent argues that it protects an individual right to possess a firearm unconnected
with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
See Brief for Respondent 24.
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased, Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.
See J. Tiffany, A
Treatise on Government and Constitutional Law 585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists Brief).
Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of
state constitutions, commonly included a prefatory statement of purpose.
See generally Volokh, The Commonplace Second Amendment, 73 N. Y. U. L. Rev. 793, 814821 4 DISTRICT OF COLUMBIA v. HELLER Opinion of the Court (1998).
Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, A well regulated Militia,
being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.
1. Operative Clause.
a. Right of the People. The first salient feature of the operative clause is that it codifies a right of the people. The unamended Constitution and the Bill of Rights
use the phrase right of the people two other times, in the First Amendments Assembly-and-Petition Clause and in the Fourth Amendments Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by
the people). All three of these instances unambiguously refer to individual rights, not collective rights, or rights that may be exercised only through participation in some
corporate body.5
Three provisions of the Constitution refer to the people in a context other than rightsthe famous preamble (We the people), 2 of Article I (providing that the people will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with the States or the
people). Those provisions arguably refer to the people acting collectivelybut they deal with the exercise or reservation of powers, not rights. Nowhere else in the
Constitution does a right attributed to the people refer to anything other than an individual right.6
What is more, in all six other provisions of the Constitution that mention the people, the term unambiguously refers to all members of the political community, not an
unspecified subset.
b. Keep and bear Arms. We move now from the holder of the rightthe peopleto the substance of the right: to keep and bear Arms.
Before addressing the verbs keep and bear, we interpret their object: Arms. The 18th-century meaning is no different from the meaning today. The 1773 edition of
Samuel Johnsons dictionary defined arms as weapons of offence, or armour of defence.
1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson).Timothy Cunninghams important 1771 legal dictionary defined arms as any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another. 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunninghams
legal dictionary gave as an example of usage: Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications,
e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27,
3536 (2001),
the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
We turn to the phrases keep arms and bear arms.
Johnson defined keep as, most relevantly, [t]o retain; not to lose, and [t]o have in custody. Johnson 1095.
Webster defined it as [t]o hold; to retain in ones power or possession. No party has apprised us of an idiomatic meaning of keep Arms. Thus, the most natural reading
of keep Arms in the Second Amendment is to have weapons.
The phrase keep arms was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing
the right to keep Arms as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to keep arms in their houses.
At the time of the founding, as now, to bear meant to carry.
See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford).
When used with arms, however, the term has a meaning that refers to carrying for a particular purposeconfrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of carries a firearm in a federal criminal statute, JUSTICE GINSBURG wrote that [s]urely a most familiar meaning is, as the Constitutions Second Amendment . . . indicate[s]: wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict with another person.
We think that JUSTICE GINSBURG accurately captured the natural meaning of bear arms. Although the phrase implies that the carrying of the weapon is for the purpose
of offensive or defensive action, it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude
that this natural meaning was also the meaning that bear arms had in the 18th century. In numerous instances, bear arms was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to bear arms in defense of themselves and the state or bear arms in defense of himself and the state. 8 It is clear from those formulations that bear arms did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitutions armsbearing right, for example, as a recognition of the natural right of defense of ones person or housewhat he called the law of self preservation.
The phrase bear Arms also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: to serve as a soldier, do military service, fight or to wage war.
See Linguists Brief 18; post, at 11 (STEVENS, J., dissenting).
But it unequivocally bore that idiomatic meaning only when followed by the preposition against, which was in turn followed by the target of the hostilities.
See 2 Oxford 21.
(That is how, for example, our Declaration of Independence 28, used the phrase: He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms
against their Country . . . .) Every example given by petitioners amici for the idiomatic meaning of bear arms
In any event, the meaning of bear arms that petitioners and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a
hybrid definition, whereby bear arms connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No
dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy
to see why petitioners and the dissent are driven to the hybrid definition. Giving bear Arms its idiomatic meaning would cause the protected right to consist of the right
to be a soldier or to wage waran absurdity that no commentator has ever endorsed.
See L. Levy, Origins of the Bill of Rights 135 (1999).
Worse still, the phrase keep and bear Arms would be incoherent. The word Arms would have two different meanings at once: weapons (as the object of keep) and (as the object of bear) one-half of an idiom. It would be rather like saying He filled and kicked the bucket to mean He filled the bucket and died. Grotesque
On that noteif you are still with me dear reader, I encourage you to search out the full 64 page briefwe have posted interesting excerpts onlyand only up to page 12.
I also reformated to make it easier to read.