IN heller v district of Columbia, Justice Scalia goes into the matter of the Amendments introductory clause at great length and with great arm waving and wordsmanship. He concludes that the introductory clause is not restricting nor definitive (I don't agree but it is not for me to decide). He uses his 'originalism' defense -- which he only uses when convenient -- to separate the Amendment at its comma and take the the part after the comma as the definitive part. A little reflection reveals that if the second amendment is to be interpreted as strict constructionists might, then one has no choice but to conclude the Amendment is hopelessly obsolete and can not apply to the U.S. today. So avid hunter Scalia, a confirmed gun rights advocate, must somehow dispense with the introductory clause. He jettisons the introductory clause, though his reasons consisting mainly of arm waving and questionable use of the English language left me quite unconvinced, as it did some of his colleagues. His arguments for dispensing with the introductory clause are the weakest part of his majority opinion.
Having got entirely rid of the pesky introductory clause, Scalia falls back on 'originalism' to make two strong arguments in favor of gun rights, either of which would, if accepted, preclude any consideration of the introductory clause. Argument one is that in the original debate there was considerable opinion that State militias may be needed to protect against excessive intrusion on States' rights by the Federal Government. And by extension, individuals should be armed against undue Federal intrusion (To satisfy different points of view, the word "militia" in the amendment was apparently and intentionally left vague as to whether it was referring to State militias or a Federal militia made up of States' militias. Now State militias no longer apply, as that role is superseded by the National Guard. But originalist Scalia, having already jettisoned the non-definitive, in his view,introductory clause, used the armed citizen against the 'federalies' argument to bolster his support for the right to bear arms. (This surely made the NRA folks exceedingly Joyous, as they have been stockpiling for years against the time when the Federal Government comes knocking.)
The second argument, and the one that carries the most weight in my mind and an argument most skillfully made by Justice Scalia, is the inalienable right argument. What makes this argument so powerful is that, if accepted, it makes the Second Amendment superfluous regardless of its wording. If inalienable, then our right to bear arms is conferred at birth and cannot be taken away other than by due process. His argument was based on English law from which our own law descends. It shows Scalia at his finest and most brilliant!
It should be mentioned that Scalia brings up specifically the issue of whether our inalienable right extends to any type of firearm, and he concludes firmly that it does not! Restrictions on the types of firearms one may bear are not precluded by the Courts opinion!
Heller is now the law of the land. It is the landmark case brilliantly argued by the crafty, slippery, and sometime originalist, Justice Scalia. A masterpiece of legal argument in my opinion. It's long and it's convoluted. It must have driven his clerks nearly mad and exhausted them. I recommend that anyone interested in the current status of our right to bear arms look it up and read it through. I maintain his weakest argument is the one he used to jettison the introductory clause, but in any case his inalienable right argument is so strong as to make that issue entirely moot.
