Sunday, June 29, 2008

Heller case

This passage from Justice Stevens' dissent in the Second Amendment case struck my eye:
The Amendment’s use of the term “keep” in no way contradicts the military meaning conveyed by the phrase “bear arms” and the Amendment’s preamble. To the contrary, a number of state militia laws in effect at the time of the Second Amendment’s drafting used the term “keep” to describe the requirement that militia members store their arms at their homes, ready to be used for service when necessary. The Virginia military law, for example, ordered that “every one of the said officers, noncommissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer.” Act for Regulating and Disciplining the Militia, 1785 Va. Acts ch. 1, §3, p. 2 (emphasis added). “[K]eep and bear arms” thus perfectly describes the responsibilities of a framing-era militia member.
Two points:

1. This passage is illogical. Stevens had been arguing that the phrase "bear arms" was somehow peculiar to the militia, thus suggesting that the Second Amendment right to "bear arms" must be connected to militia service. Problem: The Second Amendment speaks of the right to "KEEP and bear arms." This is why Justice Stevens shows a couple of places where the work "keep" was used in connection with the militia. But that's illogical: What Justice Stevens needs to support his argumen) is not anecdotal evidence that the word "keep" was occasionally used in the militia context, but evidence that the word "keep" was rarely or never used with any other meaning.

That, Justice Stevens doesn't have. Justice Scalia pointed to numerous occasions where the term "keep arms" was used outside of the militia context. As Scalia puts it, when Stevens gives significance to militia statutes that happened to use the word "keep" somewhere:
This is rather like saying that, since there are many statutes that authorize aggrieved employees to “file complaints” with federal agencies, the phrase “file complaints” has an employment-related connotation. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.

2. From a footnote, here is one of Justice Stevens' examples of colonial-era laws:
An Act for establishing a Militia, 1785 Del. Laws §7, p. 59 (And be it enacted, That every person between the ages of eighteen and fifty . . . shall at his own expense, provide himself . . . with a musket or firelock, with a bayonet, a cartouch box to contain twenty three cartridges, a priming wire, a brush and six flints, all in good order, on or before the first day of April next, under the penalty of forty shillings, and shall keep the same by him at all times, ready and fit for service, under the penalty of two shillings and six pence for each neglect or default thereof on every muster day.
Justice Stevens italicizes the word "keep," finding it significant that any militia member is described as having kept arms at home. But Justice Stevens passes by the fact that here the state government was requiring literally every person between the ages of eighteen and fifty to provide himself with a gun, ammunition, and a bayonet, on pain of what seems a substantial fine. It strikes me as surprising that anyone would quote such a law as evidence that the government is allowed to do the precise opposite, i.e., ban everyone from owning a usable firearm.


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