Did the good judge write the 2nd amendment? I ask because I base my interpretation of the 2nd on the relevant writings and comments of those who did write and vote on it 200 plus years ago.
If everyone else including Scalia would do the same. There wouldn't be much to debate.
I think what you are getting at is actually the argument Scalia used to essentially cut the 2nd Amendment into two parts. The part before the comma and the part after the comma. He then went on to expound on his own perspective of 2nd Amendment history. He refers to the dichotomy in the interpretation of the need to raise a militia phrase, and went on to use arguments that were put forth at the time the Amendment was being debated.
I've read Scalia's entire Opinion, which was the majority opinion, but I have not read all, or hardly any actually, of the existing historical record. I imagine you have, and you probably have as accurate a view of what transpired as anyone in these forums. In the end, Scalia fell back on the belief of some in the original debate who believed that the need for a militia might arise out of the peoples need to resist a federal tyranny.
The ambiguity problem for the Amendment arises out of the phrase before the comma. Is that phrase referring to a States militia for defense against the federal government, or is that phrase referring to the raising of a federal militia, or is it both. In the end, my impression is that Scalia believed it wasn't one or the other, but both. Therefore -- and believe me his Opinion dragged on for many pages and it isn't easy to distill -- I believe he was falling back on original intent of at least some of the original correspondents who wanted the "militia" to be interpreted as a State's militia to defend against federal tyranny. The concern of that faction could be argued to be still valid today, and Scalia, allowed that argument to stand! Nevertheless practical considerations strain ones credulity; imagine citizens with semiautomatic rifles and pistols being able to effectively resist the power of federal troops.
Scalia's argument is essentially one that disregards a federal militia, since there is now no need to arm the populace for that purpose, but acknowledges the other meaning of "militia": the raising of a citizens or States' militia to defend against federal tyranny. To retain his membership in the "Strict Constructionist Club," Scalia did not have to say that a concern more than two hundred years ago was also a concern today, he merely inferred it. Thanks to Antonin Scalia we will keep our guns.
In my own, of course overly humble, opinion, what he really did, as the Court has done so often, is find a clever way to bring our obsolescent Constitution in line with modern reality, and vice versa; in so doing he brought the Amendment up-to-date while leaving it entirely intact, but perhaps a little bruised. True, the undemocratic, judicial process he used may have produced a flawed result, depending on who you talk to. But regardless, the efficiency of the Courts actions compared to the otherwise cumbersome, but democratic, amendment process is something to marvel at. It's as if Scalia had said, as he actually has in other matters, "There, it's done! Get over it!"
Have you read Scalia's opinion? If you have, I'd be interested in your view of it. If not, I think you, because of your knowledge of 2nd Amendment history, would find it very interesting.
You have thoroughly convinced me of the ineffectiveness of piecemeal gun control legislation. I remain convinced, however, that effective gun control legislation is possible without violating the second Amendment, but I am equally convinced it's not going to happen in our time.
I think, by the way, Scalia's opinion is defective in a way I haven't yet touched on in this post, but I did mention it in responding to Jem. I was expecting Jem to become "hyperbolically ad hominemistic", to coin a phrase, on reading my response, but I've heard nothing yet. (The defect I see, has to do with post revolutionary concerns about arms falling into the hands of slaves, indentured servants and indians and the then-in-place protections against this, imperfect as they were. Those fundamental protections in post revolutionary times stemmed from disenfranchisement of the dispossessed. But, of course, those protections no longer exist! If Scalia was determined to construct an historical foundation for his Opinion, then it behooved him, to include all of the relevant history. Had he done that, he should have had a more difficult time renovating our 2nd Amendment in light of current realities. Today's near equivalent of the post revolutionary dispossessed population is armed to the teeth!
