No. of Recommendations: 5
I had not heard of this argument before. If it's valid, then it seems to me that the debate on the 2nd amendment would be ended once and for all.
So, is the argument valid?That argument was raised in
Heller, and rejected by the Court. From the majority opinion:
"Although the phrase implies that the carrying of the weapon is for the purpose of 'offensive or defensive action,' it in no way connotes
participation in a structured military organization.
From our review of founding-era sources, we conclude that this natural meaning was also the meaning that 'bear arms' had in the 18th century. In numerous instances, 'bear arms' was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to 'bear arms in defense of themselves and the state' or 'bear arms in defense of himself and the state.' 8 It is clear from those formulations that 'bear arms' did not refer only to carrying a weapon in an organized military unit."
https://www.law.cornell.edu/supct/pdf/07-290P.ZOActually, the discussion of Waldman's argument goes on for several pages in the majority opinion - the above quote starts on page 11, but the argument continues through page 18. In the above excerpt, Scalia argued that "bear arms"
couldn't be a term of art that was equivalent to "carrying weapons while serving in a military unit" - because otherwise you wouldn't have a bunch of state constitutional provisions that protected citizens' right to "bear arms" in defense of themselves. He continues on to point out numerous other examples of "keep and bear arms" being used as a phrase in other contexts where it would be nonsensical to read it as a term of art only referring to the wielding of a weapon in military service. A huge chunk of the majority opinion is engaging with and rejecting the Waldman interpretation (which forms the basis of much of Stevens' dissent).
I mean, you're correct that if the Court had accepted the construction that Waldman is arguing for,
Heller would have gone a different way and the Court would have ruled that there was no individual right to firearm ownership. But the
Heller Court disagreed.
