Democratic Arizona Secretary of State candidate Adrian Fontes wrongly argued this week that the Second Amendment does not guarantee the individual right to keep and bear arms.
In fact, the late U.S. Supreme Court Justice Antonin Scalia argued convincingly in his majority opinion in the landmark 2008 case District of Columbia v. Heller that it does just that.
Fontes — whose claim to fame is overseeing the controversial 2020 general election as county recorder in Maricopa County — offered in a video posted this week the same argument that the court rejected in Heller.
He pointed to the text of the amendment, which reads, “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.”
Fontes stated the first clause, “A well regulated militia, being necessary to the security of a free state” sets the parameters for the right.
He noted that the Constitution also grants Congress the right to raise a militia to defend the nation, and the Second Amendment should be understood in that context.
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“Congress provides the rules for the militia. Congress provides the arms for the militia. Congress calls up the militia,” Fontes said.
So this fact taken together together with the opening language of the Second Amendment means the federal government possesses the overriding authority to determine who can own a gun. Right?
Scalia made a clear distinction between the “prefatory clause” of the Second Amendment — the first part — and the operative clause: “the right of the people to keep and bear arms, shall not be infringed.”
“The first salient feature of the operative clause is that it codifies a ‘right of the people,'” he highlighted in Heller.
Scalia pointed out that the Bill of Rights uses that same language two other times: the First Amendment’s right to peaceably assemble to petition their government for redress and the Fourth Amendment’s prohibition against searches and seizures by the government without a warrant.
“All three of these instances unambiguously refer to individual rights, not ‘collective’ rights, or rights that may be exercised only through participation in some corporate body,” Scalia explained.
The term “militia” in the prefatory clause is actually a subset of “the people.”
“Reading the Second Amendment as protecting only the right to ‘keep and bear Arms’ in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as ‘the people,'” Scalia wrote.
He further expounded that the language “to keep and bear Arms” shows up in state constitutions of the era as a recognition of the natural right to self-defense.
“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,'” Scalia chronicled.
In fact the right to bear arms for the purpose of self-defense dates back to the English common law.
Truthfully, the right to self-defense dates back to biblical times.
Scalia’s also dismantled Fontes’ argument that the federal Congress had the sole power to raise a militia.
Again the prefatory clause says: “A well regulated militia, being necessary to the security of a free state…”
Scalia wrote, “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right — unlike some other English rights — was codified in a written Constitution.”
So Fontes was pretty much wrong across the board.
The Supreme Court has made it clear: the Second Amendment protects the people’s individual right to bear arms, and it has nothing to do with whether they are serving in a militia.
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