gov paper 2_Essay - Government 111 Prof. Lowi The case of...

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Government 111 Prof. Lowi
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The case of the District of Columbia v. Dick Heller questions whether a full-blown handgun ban in DC is constitutional given the 2 nd Amendment. The Amendment itself is brief and states: “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;” however, depending on which judicial philosophy one possesses, the applicability of the text to the case is quite diverse. This essay will examine two philosophies clearly exhibited in the DC case, namely orginialism and evolutionism. The strengths and weakness of the philosophies, as well as how closely they fit the founder’s intentions will be scrutinized. Associate Justice Antonin Scalia writes for the majority, wishing to overturn the ban, while placing strict scrutiny upon the District by representing the strict constructionist viewpoint. Since Scalia wants to find the original meaning of the text, he breaks up the perfunctory and operative clauses and examines their history. The central question that Scalia attempts to answer is whether the right to bear arms is contingent upon militia service. In the operative clause, the term bear arms is not an art that is used solely in militia service, but can be used in other contexts: “’servants and labourers shall use bows and arrows on Sundays and not bear other arms’” (Scalia 26 Jun 2008 15). The perfunctory clause, although itself expressly mentioning militia can also have a broader meaning, because during the founding time the entire population formed the militia that could be called up for service in war time (Scalia 26 Jun 2008 23). As the Amendment implies, a citizenry knowledgeable of firearms, can help form a well-regulated militia. Some, like Justice Beryer, would criticize Scalia for ignoring the founders’ intent by trivializing the importance of the perfunctory clause. However, as Scalia has said himself, “what I look for in the Constitution…is the original meaning of the text, not what the draftsmen 2
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intended” (Scalia 307). So while militia service may have been what the founders intended by putting the right to bear arms in the Bill of Rights, when one examines the history of the right, it is clear that the text allows for more uses. Because the Bill of Rights were those possessed by the citizens at the time of the Constitution, and intended to be preserved by it, it is important to examine the reason why the colonists carried arms in the first place. The privilege was first enumerated in the Declaration of Right after James II had tried to disarm the Protestants through gaming laws, and the Protestants were granted it for defense from the government (Scalia 26 Jun 2008 19). Because of this declaration, when George III tried to disarm the colonists in the 1760’s and 1770’s the Americans invoked the right to bear arms and said, “’it is a natural right…to keep arms for [our] own defence” (Scalia 26 Jun 2008 21). Because of the fact that Heller wants his
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This essay was uploaded on 02/20/2009 for the course GOVT 111 taught by Professor Lowi during the Fall '08 term at Cornell University (Engineering School).

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gov paper 2_Essay - Government 111 Prof. Lowi The case of...

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