Oedel wrong about Scalia's intent in gun decision by Randolph Eick

David Oedel is incorrect in his assertion (“A right to armed revolt?”, 1/27) that Justice Scalia’s opinion in D.C. vs. Heller limits the right to keep and bear arms to weapons “in common use at the time” the Second Amendment was ratified. In fact, in his decision Justice Scalia  characterizes such arguments as “bordering on the frivolous.”

In recognizing the power of government to limit the right to keep and bear arms, Justice Scalia cites the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” It is important to note that the context here relates to the bearing of arms, not the keeping of arms. It is also important to note that the standard established is both dangerous and unusual. Firearms are inherently “dangerous,” so the operative word in this clause is “unusual.” It would be hard to argue that the types of weapons that the Democrats and the Obama administration are seeking to ban are that unusual considering their wide ownership.

Oedel goes on to argue that since the Second Amendment begins with the phrase “A well regulated Militia, being necessary to the security of a free state,” that there’s reason to believe the right to keep and bear arms was meant to be exercised in connection with a government-sponsored militia. To the contrary, in the Heller decision, the majority found the clause to be merely “prefatory.” For those of us who do not teach constitutional law, prefatory means of, relating to, or constituting a preface (or more simply put, located in front). Further, the court found the clause does nothing to limit the scope of the “operative clause” of the amendment, namely, the right to keep and bear arms.

Ironically, the court used this “detachment” to affirm the right of the government to ban from private hands certain sophisticated weaponry that might be useful in military service but that are unusual in society at large. Oedel is wrong to conclude, however, that this grants the government broad power to ban guns in common use because someone has given them a menacing name.

Written by Randolph Eick

Randolph Eick is a retired computer analyst residing in Greene County, Georgia. He has never fired, owned, nor possessed a firearm. This article was originally published on February 5, 2013 as a "Special to the Telegraph" in the Macon Telegraph at macon.com.

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Comments on this post

Very commendable!

Mr. Eick, I posted an online response to Professor David Oedel's article, quoting Justice Scalia with verbatim and more general comments but less specific verbiage. You have correctly closed the gaps I might have left in my rebuttal! Prof. Oedel has very charmingly extricated himself out from his predicament arising from his own incorrect amplification of the Court's internal inconsistencies in the ruling. 

You are also correct about the prefatory clause. It should also be added that "well regulated" militia at the time meant "well trained or disciplined." I agree with the professor remarks about the pleasure of discussing the topic reminiscent of the time of the Federalist papers, and the need to exercise the right by the citizenry.

As I stated previously, Prof. Oedel was correct though, in that gun owners cannot expect the U.S. Supreme Court to continue to protect their rights influenced as they are, it seems, by the present milieu of fickle majoritarian rule and misplaced compassion, instead of original intent and strict construction. After the victories of Heller (2008) and McDonald (2010), as the subsequent ObamaCare ruling (June 2012) amply testified, the U.S. House of Representatives, the legislature closest to the people at the federal level, and the State legislatures may be the representative bodies now left for lawful gun owners to protect their rights.

I think the Senate may do its duty in defeating the UN Small Arms Treaty (scheduled for discussion in March 2013), a treaty that attempts to circumvent the Second Amendment, but I am not so sure, nor am I convinced that the U.S. Senate would be the body to stop the domestic gun control agenda and legislation coming down the pipe.