« Not news to those who have been there | Main | Makes me glad Trump fired his arse... »
Tenth anniversary of Heller!
June 26, 2008! I was there for the oral argument. Everyone was betting that the Justices were split 4-4, and whoever got Kennedy's swing vote would win. I knew we'd won when I heard the following:
JUSTICE KENNEDY: "...it seems to me that there is an interpretation of the Second Amendment differing from that of the district court and in Miller and not advanced particularly in the red [Heller's] brief, but that conforms the two clauses and in effect delinks them. The first clause I submit can be read consistently with the purpose I've indicated of simply reaffirming the existence and the importance of the militia clause. ... And so in effect the amendment says we reaffirm the right to have militia, we've established it, but in addition, there is a right to bear arms. Can you comment on that?
MR. DELLINGER: Yes.
JUSTICE KENNEDY: And this makes, it does -- I think you're quite right in the brief to say that the preface shouldn't be extraneous. This means it's not extraneous."
He'd made the step in logic that makes our argument beyond refutation. If the militia clause and the right to arms clause are separate things, one does not limit the other, then "is the 2A militia oriented or individual right oriented" becomes pointless, because it is both. The other side could only argue that some of the Framers valued and spoke of the militia. OK, they got the first half of the amendment. Can you find ONE framer who said anything like "oh, and the 2A does not concern an individual right"? No, because there were none.
I don't think Dellinger, arguing for DC, got it at the moment. His face fell, I'm told, about thirty seconds later when Kennedy asked
MR. DELLINGER: -- the second clause, the phrase "keep and bear arms," when "bear arms" is referred to -- is referred to in a military context,that is so that even if you left aside -
JUSTICE KENNEDY: It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws,wolves and bears and grizzlies and things like that?
4 Comments | Leave a comment
The militia clause was a consolation prize to the anti-Federalists who didn't want the Congress to be able to keep up a standing army.
They lost every step in the battle to do that.
All they got was a nod from Madison about the necessity of the militia.
Otherwise the first clause of the 2A has absolutely zero effect on the Constitution.
David, your own "historiography" helps to illustrate that.
How do people continue finding such exotic ways to violate the basic rules of the English language? Solely for rhetorical purposes. The Independent Clause of a sentence, any sentence no matter where, is just that, independent, and contains a complete meaning, subject and predicate, and will stand alone. I heard an English professor claim, in a TV interview, that the dependent clause changed the meaning of the independent clause of the 2nd Amend. Try it. It's not just impossible, the resulting sentence sounds ridiculous -- and is: "The independent clause contains words that have independent meaning, except when the dependent clause changes those." See?
Eldon Dickens: you're talking about bourgeois truth. All these people care about is revolutionary truth, which is defined as whatever advances the revolution.
I've never understood how anyone who'd read the Pennsylvania Dissent could argue that RKBA was used in an exclusively military context.