There aren't many places where I view people's misinterpreting the law as deliberate. I try to avoid doing it -- both because it's not usually helpful to accuse people of dishonesty (whether or not it's true), and because most people try to act generally honestly, they're heroes in their own minds even when they're mistaken.
There aren't many places where I view people's misinterpreting the law as deliberate. I try to avoid doing it -- both because it's not usually helpful to accuse people of dishonesty (whether or not it's true), and because most people try to act generally honestly, they're heroes in their own minds even when they're mistaken.
But the understanding of the prefatory clause in the Second Amendment comes about as close as it is possible to come. And given enough people who claim the position, I'm certain there are some where it is a decided, deliberate misinterpretation to push a desired policy aim -- even if most are merely honestly blinded by their own biases.
The prefatory clause, as Scalia describes, gives an *explanation*. It does not cabin the right, it does not define the right, it does not delimit the right. It says *because* a well-regulated militia is necessary for freedom...and then describes the actual operation of the amendment. Because a well-regulated militia is necessary, people have a right to keep and bear arms. Explanatory clauses like this were not uncommon in the constitutions of the time. The Constitution itself contains one, with regard to the Patent Clause. You can copyright creative works that are utterly frivolous -- not merely ones someone might describe as "useful Arts".
It is not an optional choice to treat the prefatory clause as merely explanatory. It follows directly from the grammar and meaning of the words. The prefatory clause cannot be supercharged with meaning to limit the right -- the tail wagging the dog. If the Constitution contained an amendment that said, "A well-educated voting populace being necessary to a free state, the right of the people to read books shall not be infringed.", the right recognized would be *for people to read books* -- not only books related to political matters, not limited only to actual or potential voters.
(And, no, "well regulated" does not mean regulation in the typical modern sense. It means "regulated" in the sense of a mechanical regulator, keeping something in functional order. A well regulated clock, in the parlance of the time, is a clock in proper working order. A well regulated militia, is one in proper working order -- including, with people who are practiced in the use of firearms, a level of practice that cannot be satisfied if they do not own them and cannot recreationally shoot them when they choose to. There are other aspects to a well regulated militia -- such as working together well -- that the right to keep and bear arms does not inherently provide. And that's why states also maintain organized militias, in addition to the militia made up of the people in general. But the explanation in the Second Amendment merely requires that the right recognized, *contribute* to the explanation. It does not require that the right supply every aspect of the explanation.)
There aren't many places where I view people's misinterpreting the law as deliberate. I try to avoid doing it -- both because it's not usually helpful to accuse people of dishonesty (whether or not it's true), and because most people try to act generally honestly, they're heroes in their own minds even when they're mistaken.
But the understanding of the prefatory clause in the Second Amendment comes about as close as it is possible to come. And given enough people who claim the position, I'm certain there are some where it is a decided, deliberate misinterpretation to push a desired policy aim -- even if most are merely honestly blinded by their own biases.
The prefatory clause, as Scalia describes, gives an *explanation*. It does not cabin the right, it does not define the right, it does not delimit the right. It says *because* a well-regulated militia is necessary for freedom...and then describes the actual operation of the amendment. Because a well-regulated militia is necessary, people have a right to keep and bear arms. Explanatory clauses like this were not uncommon in the constitutions of the time. The Constitution itself contains one, with regard to the Patent Clause. You can copyright creative works that are utterly frivolous -- not merely ones someone might describe as "useful Arts".
It is not an optional choice to treat the prefatory clause as merely explanatory. It follows directly from the grammar and meaning of the words. The prefatory clause cannot be supercharged with meaning to limit the right -- the tail wagging the dog. If the Constitution contained an amendment that said, "A well-educated voting populace being necessary to a free state, the right of the people to read books shall not be infringed.", the right recognized would be *for people to read books* -- not only books related to political matters, not limited only to actual or potential voters.
(And, no, "well regulated" does not mean regulation in the typical modern sense. It means "regulated" in the sense of a mechanical regulator, keeping something in functional order. A well regulated clock, in the parlance of the time, is a clock in proper working order. A well regulated militia, is one in proper working order -- including, with people who are practiced in the use of firearms, a level of practice that cannot be satisfied if they do not own them and cannot recreationally shoot them when they choose to. There are other aspects to a well regulated militia -- such as working together well -- that the right to keep and bear arms does not inherently provide. And that's why states also maintain organized militias, in addition to the militia made up of the people in general. But the explanation in the Second Amendment merely requires that the right recognized, *contribute* to the explanation. It does not require that the right supply every aspect of the explanation.)
Scalia got the history wrong. Here is the Historian's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_historians.pdf). Here is the NAACP Legal Defense Fund's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_naacp_ldf.pdf). Disclosure: I helped proofread (but did not write any part of) the NAACP LDF brief.