In a late Saturday morning column, wannabe constitutional scholars Ed Asner and Ed. Weinberger (yes, there's a period after his first name) weighed in on the Founders' intent relating to citizens' right to bear arms.
Asner and Weinberger, an actor and a comedy joke and script writer, respectively, in real life, deigned to tell us that the Second Amendment was really a gun control measure designed to keep guns out of the hands of anyone who wasn't a member of a militia.
I'll get to the pair's pathetic attempt to prove their point shortly (HT Twitchy), but first I have to let readers know what these distinguished gentlemen think of the late Supreme Court Justice Antonin Scalia's opinion the court's Heller ruling, which established that gun ownership is an individual right (bolds are mine throughout this post):
... let’s consider the case made by the NRA, its Congressional hired hands, the majority of the Supreme Court, and various right wing pundits who claim the Second Amendment is not simply about state militias but guarantees the unfettered right of everyone to own, carry, trade and eventually shoot someone with a gun.
First, here’s that elusive Second Amendment as it now appears in the Bill of Rights: “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.”
Arguably not the clearest amendment in the Constitution. And that’s the problem with it: While stating the need for a “well-regulated Militia,” does it at the same time also guarantee the individual citizen the personal right to “keep and bear arms?” In 2008, Justice Antonin Scalia, ruling for the Majority, said that it was. Ignoring over 200 years of precedent, historical context, the Framers’ Intent and the D.C. laws of its elected officials, Scalia relied solely on the text, arbitrarily dividing the Amendment into two parts. The first – “a well-regulated militia, being necessary to the security of a free State” — he called the prefatory clause. The second part – “the right of the people to keep and bear Arms, shall not be infringed” — he called the operative clause. Claiming that second part was all that really mattered; Scalia discarded as irrelevant that inconvenient reference to a “state militia.”
For the record, the Second Amendment does not guarantee "the unfettered right to ... eventually shoot someone with a gun." By that logic, anyone shooting up a store in the process of robbing it would be exercising his or her constitutional rights. As Scalia noted in the Heller ruling:
The Second Amendment protects an individual right to possess a firearm ... and to use that arm for traditionally lawful purposes, such as self-defense within the home.
Scalia didn't "discard as irrelevant" the reference to state militias. As seen in the opinion, he declared that "The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part."
Understanding that clear interpretation of the Founders' plain English is important, because, as we'll see, what Asner and Weinberger failed to realize is that their attempt at an argument backfired (pun intended):
Here is Madison’s first draft of the Second Amendment:“The right of the people to keep and bear arms shall not be infringed, a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
Madison’s intent could not be more obvious: his Second Amendment refers only to state militias. If not, why include that exemption for what we now call “conscientious objectors?”
When Madison’s amendment was rewritten by a joint committee from the House and Senate in 1791, the “religious” exemption was lopped off as too cumbersome in language and too complex to enforce. Thus, the Amendment as it now stands.
Uh, no, guys. Asner and Weinberger are right that "Madison’s intent could not be more obvious," but they obviously got that intent wrong.
The fact that the "shall not infringe" clause appears first in Madison's draft communicates his clear intent that the people had a right to bear arms, whether or not they were members of militias. The exemption for the "religiously scrupulous," the equivalent of today's conscientious objectors, would only be relevant to citizens who were in the age group, generally 18 to 45, required to join militias. It's clear that Madison, in originally opening with the "shall not infringe" clause, intended that all adults who wished to arm themselves should be able to do so.
If Madison's and the Founders' intentions weren't as I have just described, we would expect American history to be littered with examples of mandatory confiscations of thousands upon thousands of personal firearms once citizens became too old to remain in militias, and strict laws against anyone under 18 owning or being allowed to possess guns. Of course, there is no record of either.
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Give Asner and Weinberger credit for passing on a form of holiday-season cheer, as I suspect many readers here will laugh uproariously at the pair's arguments.
Speaking of laughs, Salon's editors should have laughed very hard at the pair's incredibly ridiculous attempt at revisionist history, and kept it from appearing on its site.
Cross-posted at BizzyBlog.com.