Heller question

[Franklin, David]

Larry,

Yes, thanks, that certainly seems to be what Scalia is arguing.  But I
continue to doubt -- and this is really what motivated my question to
the list -- whether it's a particularly good argument.  

Although he earlier acknowledges that the prefatory clause is best read
as a purposive, "because" clause (slip op. at 3), Scalia in the passage
I cited seems to interpret the clause as giving merely a reason for
*codification*, rather than as setting forth the central motivating
purpose of the right.

It doesn't seem unfair to characterize Scalia's gloss on the Second
Amendment as something like the following: "Because a well regulated
Militia is necessary to the security of a free State, we hereby choose
to *codify* a right to keep and bear Arms -- a right whose content has
as much or more to do with self-defense and hunting as with preserving
the militia."  

This seems to me a strained interpretation, and I'm wondering what
others think.

David

-----Original Message-----
From: Lawrence Solum [mailto:lsolum at gmail.com] 
Sent: Thursday, June 26, 2008 11:00 AM
To: Franklin, David
Cc: Conlawprof at lists.ucla.edu
Subject: Re: Heller question

David,

Scalia's point is that the "right to keep and bear arms" includes the
right to use weapons in self-defense.  The purpose for which the right
was codified in the Second Amendment was militia related, but the
content of the preexisting right that was codified in the operative
position is not limited to the motivating purpose of codification.

Larry

On 6/26/08, Franklin, David <DFRANKL2 at depaul.edu> wrote:
>
>
> The following paragraph (slip op. at 26) seems central to the dispute
> between majority and dissent in Heller.  I am not sure I understand
it.  The
> idea seems to be that the prefatory clause sets forth the purpose for
which
> the Amendment was codified, but leaves out the central component of
the
> right itself.  Why should that be?  Is it because the self-defense
purpose
> went without saying?  Insight from list members would be appreciated.
>
>
>
> It is therefore entirely sensible that the Second Amendment's
prefatory
> clause announces the purpose for which the right was codified: to
prevent
> elimination of the militia. The prefatory clause does not suggest that
> preserving the militia was the only reason Americans valued the
ancient
> right; most undoubtedly thought it even more important for
self-defense and
> hunting. But the threat that the new Federal Government would destroy
the
> citizens' militia by taking away their arms was the reason that
right-unlike
> some other English rights-was codified in a written Constitution.
JUSTICE
> BREYER's assertion that individual self-defense is merely a
"subsidiary
> interest" of the right to keep and bear arms, see post, at 36, is
profoundly
> mistaken. He bases that assertion solely upon the prologue-but that
can only
> show that self-defense had little to do with the right's codification;
it
> was the central component of the right itself.
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