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Response to discntnt_irny_srcsm (Reply #40)

Mon Apr 30, 2018, 04:42 PM

41. Scalia cited Ben Oliver in heller

dscntn: If you want to argue for some collective rights intention for the 2A, please site an authority contemporary to the Founders sharing, in explicit terms, that exact position

How about Antonin Scalia? the author of the heller decision? will that do?

Benjamin Oliver, from Right of an American Citizen, 1832 (+emph): "The {2ndA} declares ‘the right of the people to keep and bear arms shall not be infringed.’ The reason is, ‘because a well regulated militia is necessary to the security of a free state.’
. . . The provision of the Constitution declaring the right to keep and bear arms was probably intended to apply to the right to bear arms for such {militia related} purposes only, and not to prevent Congress or legislatures from enacting laws to prevent citizens from going armed. A different construction however has been given to it.” (1832)


Saul Cornell: The problems with Scalia’s plain-meaning originalism are evident in his glib dismissal of the influential nineteenth-century legal commentator Benjamin Oliver:

Scalia, 2008 heller decision: We have found only one early 19th-century commentator who clearly conditioned the right to keep and bear arms upon service in the militia—and he recognized that the prevailing view was to the contrary. “The provision of the constitution, declaring the right of the people to keep and bear arms, &c. was probably intended to apply to the right of the people to bear arms for such [militia-related] purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens

Sure, by 1832 when Oliver wrote my above top, a militia/individual dichotomy was in full bloom, which was the 'different construction'.

Cornell cont'd: ..it is hard to believe that the Court would cast aside the most influential popular legal writer of the antebellum era. Oliver was a protégé of Justice Story. He not only studied with the influential jurist, but Oliver actually coauthored an important popular legal reference work with Story. More to the point, Oliver’s interpretation of the original meaning of the {2ndA} is almost identical to Story’s discussion.
In his analysis of the meaning of Article I, Section 8, Story noted that: "It was nevertheless made a topic of serious alarm and powerful objection. It was suggested, that it was indispensable to the states, that they should possess the control and discipline of the militia. Congress might, under pretence of organizing and disciplining them, inflict severe and ignominious punishments on them. The power might be construed to be exclusive in congress. Suppose, then, that Congress should refuse to provide for arming or organizing them, the result would be, that the states would be utterly without the means of defence, and prostrate at the feet of the national government. The militia might be put under martial law, when not under duty in the public service.
http://moritzlaw.osu.edu/students/groups/oslj/files/2012/04/69.4.cornell.pdf

Cornell: Scalia’s basic assertion is demonstrably false. Oliver was not alone in his views, but shared them with Joseph Story. The notion that there was a general consensus on the meaning of the {2ndA} that supports an individual right with no connection to the militia is simply gun rights propaganda passing as scholarship.

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LineLineLineLineReply Scalia cited Ben Oliver in heller
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