The current battle on gun regulation and the 2nd Amendment is hamstrung due to a cramped reading of the 2nd Amendment.
⁃ The word Militia appears in the Constitution and Bill of Rights a total of 6 times. Many words are used to describe the organizing and discipling of the Militia. The 2d Amendment recommends that the Militia be ‘well regulated’.
Federalist 29; Concerning the Militia, by Alexander Hamilton is quite instructive as to:
organizing, arming and discipling the Militia.
My question concerns Justice Scalia and originalism and texturalism and why Militia would be used so often and then disregarded in the 2nd Amendment? Justice Scalia is a proponent of using the Federalist Papers to get at the true meaning. He even said as much in an interview with Piers Morgan of CNN:
⁃ MORGAN: I mean on that point, on the legislative history point, again, critics would say to you, well, hang on a second, because you’re such a constitutionalist and always go back to the way they framed the Constitution and so on. They debated all that. I mean that is, in its way, legislative history, isn’t it?
⁃ SCALIA: What is? What is? What is?
⁃ MORGAN: The framing of the Constitution.
⁃ SCALIA: The Federalist Papers.
⁃ MORGAN: The framing of amendments and so on. What’s the difference, really?
⁃ SCALIA: No I — I don’t — I don’t use the — Madison’s notes as authoritative on the meaning of the Constitution. I — I don’t use that. I — I use the Federalist Papers, but not because they were the — the writers of the Federalist Papers were present. One of them wasn’t. John Jay was not present at the framing.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;
The Federalist No. 29
Concerning the Militia
Independent Journal Wednesday, January 9, 1788 [Alexander Hamilton]
……”This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.”