Our friend Dr. Merc invited us to address his piece on the Heller gun control case, titled The Roots of Fear. He believes that the purpose of the 2nd was to balance federal power with state power, including the states' power to raise armies of their own - and that the NRA has instilled unnecessary fear in gun users for their own institutional purposes.
As a humble farmer and no lawyer, my take on the history of the 2nd is that it is a mere reaffirmation of ancient English common law which enshrined the right to self defence to all combined with an affirmation of the military power of each state. Since the Bill of Rights is all about being clear about the rights of the individual and the limits of the power of the Federal government, it makes no sense to me that the authors would have slipped anything in there with a different purpose.
We recall that the Bill of Rights was a bit of an afterthought. Many thought it was unnecessary, and that such rights of the people were assumed. In the end, NY and others refused to sign without those basic rights being made explicit.
At that time in America, no-one would have even considered taking away anybody's private weapons.
In any event, I think that the plantiff Mr. Heller made his case when he observed that he can carry a weapon on his job, to protect VIPs and politicians - but not to protect himself and his family. That makes him a second-class citizen in Washington, because I doubt that Mr. Heller could afford his own bodyguard.
Viking, who listened to the arguments on C-Span, says:
...my favorite moment was when Justice Scalia revealed his knowledge of firearms: "You mean you can't have more arms than you would need to take with you to the militia? You can't have...a turkey gun and a duck gun and a 30.06 and a 270..."
Lithwick at Slate reviews the oral arguments here, which makes Dellinger's position clear:
Dellinger asks the court to avoid turning every phrase of the Second Amendment into a "libertarian right." A well-regulated militia isn't about everyone owning a gun willy-nilly. The Constitution does not create some kind of sacred, fundamental right to guns. If there's a right here at all, he says, it's at the "penumbra of the periphery" of the Constitution: in a shack behind the river where the other unenumerated rights huddle.
Perhaps Liberty is not high on his agenda? Dellinger is walking proof for the necessity of the Bill of Rights, because that "penumbra" is where most of our rights exist (including the rights to privacy, abortion, etc etc). It seems to me that he comes from the position that, if an individual right isn't made crystal clear and specific, then it doesn't exist. He wants to always tip the balance towards government power, and I think that impulse is un-American and ignores Amendment Nine - which I think says it all:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The outcome will be interesting, but not as interesting as the case would be if some restaurateur would take NYC's trans-fat ban to the Supreme Court. That would be really fun.
