I agree to disagree. I would argue from a different view. The question in Heller turns on whether the Founders
intended to acknowledge a rigth to bear arms to individuals. Because the entire Bill of Rights gives these rights to
the States OR to the People, as mentioned in the Ninth and Tenth, then the Second must also give the rights to the States
in the milita and to the individuals who make up the militia. Once Scalia establishes a right for individuals to bear
arms, it all follows. Stevens is left with arguing for militia only, a difficult task which does not answer the
evidence that the right also goes to the individuals. Collective rights cannot separate from individual rights
in the First, Fourth, Ninth, and Tenth. At the time of the Consititution, the common-law was prevalent on the frontier.
Surely the Founders did not mean for the federal government to infringe on those who could not serve in the militia.
My guess is that they wanted to balance individual and state rights against the federal government. Had the Founders
meant to limit the right to bear arms to the militia, they would have placed the right in the body of the Constitution, rather
than in the Bill of Rights.
My notes:
The district bans handguns, except for one-year licenses, which requires residents to keep firearms unarmed.
Scalia+Thomas, Kennedy, Roberts, and Alito
The Second protects an individual right to possess a firearm unconnected with service in a militia, and to use that
arm for traditionally lawful purposes, such a self-defense within the home.
The prefatory clause announces a purpose, but does not limit or expand the scope of the operative clause.
The clause denies Congress power to abridge the right of individuals to keep and bear arms, so that the ideal of a citizens'
militia would be preserved. This interpretation shows in state constitutions at the time.
Drafting history, later interpretations, and former cases follow the right to bear arms.
The Second right is not unlimited. Heller does not challenge the licensing requirement.
Stevens+Souter, Ginsburg, & Breyer, dissent
That the Second protects an individual right does not tell us anything about the scope of the right.
US vs Miller (1939): no indication that the Framers intended to enshrine the common-law right of self-defense in the
Constitution.
The "people" in the First, Fourth, & Ninth are collective, not individual rights; therefore, the Second
is also.
The Fourth describes a right against governmental interference to protect a purely individual interest.
To keep and bear arms
Court does not read the right to posess arms for "lawful, private purposes" Parker vs District of Columbia (2007)
Court limits protection to the right "to posess and carry weapons in case of confrontation".
McDonald vs Chicago 2010
The Second Amendment as defined in Heller applies against the states as well, and the incorporation
is complete.
Alito+Scalia, Kennedy, Thomas, and Roberts
Alito uses the very same evolving standards as other incorporations, and activist gesture. Somehow the militia
evolved into self-defense! The Court ignores the right of state militias, which cannot be placed against the states
themselves! It also ignores federalism in which local authorites know which laws work best in their district.
Could it be had Sandra Day O Connor stayed on the Court, there would have been a lack of a vote for this activism?
Alito uses the Seventh Circuit's following of the Slaughterhouse Cases (1873) and the privileges and immunities clause
of the Fourteenth as faulty. The Court uses the due process clause. Thomas does not, and he wants to overrule
the Slaughterhouse cases, perhaps to revise all the incorporation cases!
Alito tests self-defense as part of ordered liberty and deeply rooted (an old test from the last century over incorporation
of rights against the states). The Fourteenth goes beyond antidiscrimination in its effect and intent.
Scalia allows incorporation as the best method of passing through the due process clause of the Fourteenth. Like
Felix Frankfurter, Scalia tries to cloak his personal bias behind rhetoric.
Thomas actually agrees with the dissent that this case is substantive due process, so he finds self-defense as a right
essential to the preservation of liberty, apart from the Slaughterhouse cases, and as a privilege and immunity.
Stevens dissents and tries to narrow incorporation to the due process clause as part of due process (such as the rights
of defendants in criminal cases). For him, all due processes have substantive interests. Furthermore, the states
have the right to regulate arms as part of their police powers. Colonial governments also regulated arms.
Breyer+Ginsburg and Sotomayor
Incorporation of self-defense does not further any other objectives. Unlike the other rights, it is not a necessary
part of the democratic process, does not portect individuals from majorities, not protect from unfair seizure of property.
My take: Having an arm in the home should be under the right of privacy! Therefore, states would have to show a
greater interest in regulating arms in the home, versus in public.
