“A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent of others for essential, particularly military, supplies.” - President George Washington

I still to this point do not feel it appropriate to follow along with the rest of the media in their obsession over this new presidency. I as a Conservative, believe that before trend, there must be an intrinsic focus on education, which is why as one who is aspiring to enter the legal profession, education should be a primary focus.

I decided for this analysis to focus on one of the most debated cases in Supreme Court history: District of Columbia v. Heller. This case would set precedent for how the judiciary would handle cases involving the Second Amendment. As an originalist, I don't think it is important that I go into detail about my stance on this issue. However, I thought it best that we hear instead from the positions of the two icons of originalism and living constitution theory: Associate Justices of the Supreme Court Antonin Scalia and Stephen Breyer.

There is no question that one of the severest debates that continue to dominate academic, professional, legal and philosophical controversies within the United States centers around our Constitution and ultimately the method by which such an extraordinary product of American liberty should be interpreted. If there is one aspect of this ambiguous document that was agreed upon by both the federalists and anti-federalists that comprised our Framers, was that the ultimate intent of the Supreme Law of the Land was to protect individual liberty against the threat of government tyranny. However, as the years began to pass, and the actual intent of the Framers began to recede into the annals of history, fierce conflict within the legal sphere of our representative government developed into how the judiciary should in fact interpret the law.

In District of Columbia v. Heller, the question of law centered around an individual’s right to keep and bear arms in accordance with the Second Amendment. In this case, according to the Harvard Law Review “Dick Heller, a special police officer in the District, was licensed to carry a handgun during his shifts at the Federal Judicial Center.However, when Heller sought to register a handgun for possession in his home, his application was denied. Following this denial, Heller filed suit in federal district court. He challenged D.C.’s gun control laws on Second Amendment grounds and sought to have them enjoined as unconstitutional” ( Harvard Law Review, 140). Antonin Scalia, in his opinion for the bare majority, argued from the originalist interpretation of the 2^nd Amendment. Specifically, he first conferred that the clause based on the founders’ interpretation of the operative clause implies that a citizen does have an individual right to keep and bear arms and that preexisting restrictions in the District of Columbia violated Officer Keller’s Constitutional right to do so. Further into the decision, according to the Harvard Law Review, “‘Next, Justice Scalia turned to the prefatory clause of the amendment, which reads: “‘A well regulated Militia, being necessary to the security of a free State . . .’ Upon conducting a similar originalist analysis of this clause, he concluded that the two clauses ‘fit perfectly’ in that the protection of a right to bear arms individually was a means of protecting the people’s collective ability to form a militia”(Harvard Law Review, 141).

Justice Antonin Scalia utilized texts from state constitutions within the Founding era as well as legal commentary from the 19^th century in order to support his opinion that the 2^nd Amendment was not (in contrast to Living Constitution theorists) limited for the formulation of a well-regulated militia, asserting that such militias can’t exist without the individual right to bear arms to create them. In essence, the operative clause and prefatory clause within the amendment are not independent of one another as the dissenting opinion and petitioners asserted. For Justice Scalia, who wrote the opinion for the majority, the purpose of the Second Amendment was to provide the constituency the right to protect themselves against the threat of tyranny within their own government and asserted that the dissenting opinion even within its logic, did not provide assurances that their interpretation of the clause “well-regulated militia” would not be further interpreted to be solely within a military context and not civilian militias. According to his opinion for the Supreme Court, “ Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.’ That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.’ The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause” (Scalia, 2008).

This opinion perfectly outlines the routine pattern of logic used by the doctrine of original intent. There is a complete commitment to the textual interpretation of the law as it is written, negating any attempt to interpret it outside its original intent. Justice Scalia castigated the dissenting opinion (specifically Justice Breyer) in his proposition of “interest-balance inquiry”, which inquires whether a statute burdens a protected interest in a way or to an extent that is out of proportion to that statute’s salutary effects upon other important governmental interests (Scalia, 2008). Specifically, according to Justice Scalia, constitutional rights which are enumerated are immediately stripped from the discretion of government, including the judiciary to be able to debate on a case-by-case occurrence whether these rights are indeed infallible and above legal question. According to Justice Scalia, “ We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach…. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad” (Scalia, 2008).

The importance of upholding this liberty to bear arms was tantamount to the majority’s decision, and any legislation that curtails such a liberty provides dangerous precedent for future litigation on the matter. In opposition to Justice Breyer, Justice Scalia said that reasonable preventative measures as cited by Justice Breyer in other statutes and litigation do not support an outright ban on an individual’s right to possess a handgun. Further, Justice Scalia further argued that the dissenting opinion and petitioner’s definition of “militia” is flawed on the premise that they assert that the militias are state and congressional regulated military forces highlighted within the Militia Clauses. In contrast to this assertion, Justice Scalia analyzed that the “militia” described within Article I of the Constitution was already assumed to be in existence, based on the article’s mandate that Congress “organize” as opposed to “create” a militia. From this perspective, Justice Scalia that the “militia” would then be comprised of individual citizens with preexisting rights to bear arms.

According to Justice Scalia, “The debate with respect to the right to keep and bear arms,as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric…Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people” (Scalia, 2008). It is suggested from this passage that the kind of logic utilized by the dissent in classifying the “well-regulated militia” as being implicative of the state or congressional sanctioned military is the exact point of logic the Framers’ drafted the Second Amendment to protect the constituency against. If there is any kind of “interest-balance”, this was achieved by the will of the people in ratifying the Second Amendment and should not be subjected to the continuous threat of judicial jurisprudence. In conjunction to this, Justice Scalia’s opinion for the Court cited Nunn v. Georgia in which the Georgia Supreme Court struck down a state ban on carrying pistols openly, positing a “natural right to self-defense”. The opinion of the court in that case, perfectly outlined the direct relationship between the operative and prefatory clause of the Second Amendment. According to the opinion of the Georgia Supreme Court,

“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State” (Cornell Law Review, 2008).

Because the Second Amendment by definition according to Justice Scalia prohibits such infringement, the District of Columbia’s legislation barring possession of handguns was therefore deemed unconstitutional.

Justice Stephen Breyer, pulling logic from the living constitution theory in contradiction to Scalia’s originalist interpretation, concurred with the minority decision on the case argued from a living constitution theory that the 2^nd Amendment only applies to militia service, and does not necessarily juxtapose an individual right for citizens’ to own or possess firearms. Further, if there is an “individual” implication within the text of the 2^nd Amendment, in concordance with Justice John Paul Stevens who wrote for the dissenting opinion, Justice Breyer asserted that such an implication should be interpreted in the context of maintain such rights to keep and bear firearms only exist within one’s service within a militia. According to the Cornell Law Review’s summarization of Breyer’s dissenting opinion, “This historical evidence demonstrates that a self-defense assumption is the beginning, rather than the end, of any constitutional inquiry. That the District law impacts self-defense merely raises questions about the law’s constitutionality. But to answer the questions that are raised (that is, to see whether the statute is unconstitutional) requires us to focus on practicalities, the statute’s rationale, the problems that called it into being, its relation to those objectives—in a word, the details. There are no purely logical or conceptual answers to such questions. All of which to say that to raise a self-defense question is not to answer it” ( Breyer, 2008). In essence, Justice Breyer asserted that although the right to self-defense is the cardinal ethic, reasonable restrictions should be placed on its scope while still respecting the right itself through his proposition of “interest-balance inquiry”.This inquiry, should eliminate any question into the constitutionality of such matters of gun regulation by the Court, since both sides of the constitutional argument hold important interests. Rather, emphasis should be placed if whether certain provisions are out of proportion to certain regulations’ salutary effects.

Justice Breyer furthered his disagreement by asserting that the Second Amendment provision of the right to keep and bear arms is not at all absolute and should (depending on the circumstances) be subject to reasonable regulation. From this point of logic he posited that the District of Columbia’s restrictions do not in fact infringe upon one’s constitutional rights in as much as it provides rationalized policies focused on providing reasonable security as reasoned by the local legislature. According to Justice Breyer via the Cornell Law Review, “In fact, deference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions. See Los Angeles v. Alameda Books, Inc., 535 U. S. 425, 440 (2002) (plurality opinion) (‘[W]e must acknowledge that the Los Angeles City Council is in a better position than the Judiciary to gather an evaluate data on local problems’); cf. DC Rep., at 67 (statement of Rep. Gude) (describing District’s law as ‘a decision made on the local level after extensive debate and deliberations’). Different localities may seek to solve similar problems in different ways, and a ‘city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.’ Renton v. Playtime Theatres, Inc., 475 U. S. 41, 52 (1986)” (Breyer, 2008). For this purpose, Justice Breyer determined that the rationality behind the local legislature’s statute supersedes the philosophical question surrounding whether the right to keep and bear arms is absolute. Further, he cited from the “rational basis” standard in his dissent arguing that the Court upholds regulation when it indeed bears at least some form of rational relationship to a governmental purpose. The District of Columbia’s statute on certain gun restrictions, in this respect, perfectly applies this relationship.

The majority’s opinion, in Justice Breyer’s perspective, wrongfully placed too much emphasis on the litigation as a constitutional matter and made zealous assumptions about the absolute nature of the Second Amendment as a “codified right”.

The controversy surrounding the Second Amendment and its provisions perfectly identify the continuous struggle between originalism and living constitution theory in the interpretive decisions passed from within our court system. As I've mentioned above, there is no need for me to go into detail about what I believe on this matter, only that I as a citizen identify as an originalist in the mold of Antonin Scalia. The moment that we begin to take the interpretation of the Constitution and transfer it primarily to the discretion of activist judges in accordance with the times, we have effectively ceased to become a nation governed by liberty. Personally, I find living constitution theory to be absurd but thats an article for another day. Justice Antonin Scalia and Justice Stephen Breyer are iconic to their legal professions in the hundreds of legal analysts that they have influenced over their long careers. With the Second Amendment still being debated along these lines today, it will be interesting to see how future litigation will arise regarding the future of the "right to keep and bear arms", especially now with Judge Neil Gorsuch, a textualist, being set for confirmation to our nation's highest court.

But if there's one code of warning it is this: if the government is at all given the right to disarm the public, be afraid, for then there exists no legal provision to protect the public from the government that was established (ideally) to protect it.