Humans are not perfect, and I think all judges can delude themselves with motivated reasoning at times, and all judges have some bad opinions, but having read many SCOTUS opinions, Scalia always struck me as one of the more logical and thoughtful members of the court.
The relation between the operative clause and the prefatory clause is that, historically, kings had effectively destroyed the militia by forbidding the keeping or bearing of arms. Justice Scalia's opinion in Heller cites a great deal of evidence that the original public meaning of the phrase "the right to keep and bear arms" included keeping and bearing arms for individual self-defense.
Conservative judges, including Scalia, generally don't claim that all arms regulation is unconstitutional, they don't claim everyone has a right to own RPGs. I don't like where they draw the lines and don't think they have good reasoning for where they draw them.
If the first amendment said, "A well read electorate, being necessary to a free state, the right the people to free speech, shall not be infringed," would you say it only covered political speech?
Practically, I don't see how it makes any difference. Handguns are used by every single armed forces in the world. Any militia would need them anyway. If I can't own a handgun, how could I serve in a militia?
I would say the intent is much narrower than the actual text so while "a well read electorate" would call for more than just political speech, such a First Amendment would be allow more laws to restrict speech without being unconstitutional.
People in the armed forces don't own the weapons they use now. Today, the National Guard is basically the "Militia." Even if you think militia needs to include organizations not directed by governors, weapons can be owned by smaller political entities (towns, counties, etc.) or NGOs. In any case, weapons for a militia can be stored in an armory, not in every member's home or on their person all the time.
Yet again, even if some of the weapons were stored in the home, there's nothing unconstitutional about laws requiring trigger locks or other safety measures for their storage.
Justice Scalia rejected the notion of giving much importance to the intent of drafters. His objective was to interpret the text according to its original public meaning.
As Scalia noted in Heller, the Second Amendment "codified a pre-existing right"; it didn't grant a new right. And although "self-defense had little to do with the right’s codification", "it was the central component of the right itself".
>People in the armed forces don't own the weapons they use now.
That's exactly the system that the framers wanted to avoid. The citizen militia (with their own privately owned arms) was envisioned as an alternative to a standing army in times of peace.
>Today, the National Guard is basically the "Militia."
The National Guard is the organized part of the militia. The unorganized militia has much broader membership. https://www.law.cornell.edu/uscode/text/10/246
>there's nothing unconstitutional about laws requiring trigger locks or other safety measures for their storage.
The trigger-lock requirement wasn't limited to storage. It didn't have an exception to allow removing the trigger lock to use to the gun in self-defense or for carrying holstered on one's person. That's why it was ruled unconstitutional.
The founders were obviously concerned with the need for a military to "maintain a free state", but I'd doubt that a centralized military would have been palatable at the time.
There was a mistrust of the Federal government at the time, and it was believed that state militias could act as a check against a Federal standing army which goes rogue.
We have bigger issues than gun control at a federal level.
There is plenty of 2nd Amd. scholarship that goes over all of this. Not saying you need to agree with the scholarship, but a lot of people have thought about his stuff and researched it deeply.
Gotchas statements re: "...well regulated...", cars are registered why not guns, restrict people to owning muskets, etc., are unhelpful.
In the view of the theory underlying the second amendment, it is an existential threat to the latter which makes assuring that the State can meet it's internal and external security needs solely through small permanent cadres plus mobilization of the citizen militia of paramount importance.
> Standing armies were the part of the motivation for the 2nd Amd.
Preventing standing armies was, which is presumably why the statement was that having one (and also standing paramilitary forces for internal security, which was actually the abuse that was the biggest fear motivating fear of standing armies) rendered the second amendment irrelevant.
This is inaccurate?
https://en.m.wikisource.org/wiki/The_Federalist_(Dawson)/45
James Madison argues from the assumption of having an standing army, and why an armed populace makes a Federal tyranny unlikely.
There are many (most) things I don’t like about Republicans, but making THIS an issue is something I just don’t understand about Democrats.
Pick your battles.
Do you seriously think Scalia cared about protecting people's rights to bear arms beyond the text of the 2nd amendment? Again, what constitutes a true liberal originalist? These justices are not pursuing power but trying to interpret law - and they get accused of undermining democracy...
Whatever rights to bear arms there are, they come from the 2nd Amendment. It is absurd to stretch an Amendment about "well regulated Militia" to mean D.C. can't require people to store a handgun with a trigger lock because it would impinge on their ability to use it for personal protection. Yet that's what Scalia in the majority decided.
> what constitutes a true liberal originalist?
You keep missing my point; if anyone was actually an originalist, some of their decisions would seem conservative, some would seem liberal, because they would just obediently be following what the text says. No judge actually does that and that alone, I'm only aware of conservative judges that claim they do. The term "originalist" was invented by conservatives so that's not surprising.
I am not saying all conservative judges make wrong decisions and liberal judges make right ones. I'm saying conservatives attack outcomes they don't like as not being "originalist" instead of being honest that it's an outcome they don't like. They're hypocrites.
But this is not really relevant to the original claim of the Federalist Society undermining democracy; I think it would go to far to say to be conservative is to be anti-democratic. If the Federalist Society is anti-democratic, it's more in their means than in their ends.
Originalism is a modern invention. It was not even a philosophy of jurisprudence until approximately the 1970s.
Via ye olde wikipedia: 'In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding "at the time it was adopted".'
This is the start of a very short road to bandying around conflicting subjective interpretations of what the original founders believed, rather than what's in the text of the constitution or the law. You can have rule of law without second-guessing the founders; if you get unintended consequences, update the law and/or constitution accordingly. It's meant to be a living document, right? In the meantime, protections for gay and transgender people based on equal rights laws is a feature, not a bug.
[on edit: To put an even finer point on it, Alito's arguing originalism because he doesn't like the text. That is fundamentally against the rule of law.]
The constitution was not originally intended to be a 'living' document; that theory came about in the progressive era as a way to change the meaning of the constitution without amending it.[1]
And do not tell me those contracts were considered illegal at the time they were written.
How is it "originalist" to take the 2nd Amendment, which refers to "well regulated Militia," and using it to say there's a Constitutional right to owning a handgun for personal protection (without safety requirements like a trigger lock or safe)? It's not, yet that's what conservatives decided, specifically Scalia in his majority opinion in District of Columbia v. Heller.