by David T. Hardy
Posted Oct. 4 on Of Arms and Law
“In the wake of the fierce, nationwide debate over gun rights and gun control, Justice Ginsburg also explained the historical basis for her view on the Second Amendment.
“The Second Amendment has a preamble about the need for a militia …
Historically, the new government had no money to pay for an army, so they relied on the state militias,” she said.
“The states required men to have certain weapons and they specified in the law what weapons these people had to keep in their home so that when they were called to do service as militiamen, they would have them.
That was the entire purpose of the Second Amendment.” Ginsburg said the disappearance of that purpose eliminates the function of the Second Amendment.
“It’s function is to enable the young nation to have people who will fight for it to have weapons that those soldiers will own,” she said. “I view the Second Amendment as rooted in the time totally allied to the need to support a militia. So … the Second Amendment is outdated in the sense that its function has become obsolete.” As for the Heller case, decided by the court in 2008, Ginsburg says the court erred in its decision.
“If the court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new,” she said. “It gave a qualified right to keep and bear arms, but it was for one purpose only—and that was the purpose of having militiamen who were able to fight to preserve the nation.” I won’t go into the historical angle (the shortfall of money was one reason for a militia, but it was one almost never mentioned at the time—the big argument for the militia was that it could be as powerful as desired without any risk of it taking over the government, unlike a standing army), but into the reasoning.
One of the many problems with the collective rights view is that its proponents never want to consider their theory’s results—which would be that any State could revive its militia system and presumably arm it as the State pleased. M-4s, SAWs (M-249’s), F- 16s. The Justice deals with that by saying that the Second Amendment has become “obsolete” and presumably inoperative in *any* way.
I don’t see any precedent (legal or historical) for the Court to simply declare a provision in the “Supreme law of the land” obsolete, i.e., not fitting in with their world-view. There are plenty of constitutional provisions which some might think obsolete. A government which deploys the NSA certainly seems to think the Fourth Amendment obsolete in an age of terror. The $20 threshold on civil right to jury is certainly obsolete, but still followed. How about the right to petition? In early Congresses, each petition was read aloud—now, I suspect they are given the circular file.
