AEI’s Norman Ornstein is peddling a conspiracy theory:
In Heller, faux originalists like Scalia were disingenuous, writing out of the Constitution the militia clause. Now NRA lickspittles are lying again, while trying to make this about mental illness. Untreated mental@illness is a societal failure, bit this is about guns. Period.
— Norman Ornstein (@NormOrnstein) May 25, 2022
This is preposterous, illiterate nonsense. I’ve addressed why it’s preposterous, illiterate nonsense before at some length, but to that submission I’ll simply add that, in order to believe what Ornstein is selling, you have to believe that Justice Scalia was a time traveler.
45 of our 50 states have their own right to keep and bear arms, and the first among them — Pennsylvania — added its provision eleven years before the federal Constitution was even written. If the idea that American individuals have an inherent right to bear arms was invented by the Supreme Court in 2008, it seems somewhat unlikely that Pennsylvania would have declared that “the people have a right to bear arms for the defence of themselves and the state” in 1776.
Likewise (to pick a few at random), it seems unlikely that Connecticut would have declared that “every citizen has a right to bear arms in defense of himself and the state” in 1818; or that Colorado would have declared that “the right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question” in 1876 (or done so in a different section than the one that deals with its militia); or that, when granted statehood in 1959, Alaska would have copied the Second Amendment verbatim into its state constitution. (Perhaps we are supposed to believe that it thought that, as the newest star on the flag, it would be put in charge of the National Guard?)
From America’s earliest days, the assumption has been that the people would be armed, and that, if it came to it, they would be called to help the government out in a crisis. If this idea confuses you, I’d recommend reading Sanford Levinson’s terrific summary, The Embarrassing Second Amendment, which explains perfectly the “blending of individualist and collective accounts of the right to bear arms.” As Levinson correctly contends, a correct understanding of 18th century
republicanism might push us in unexpected, even embarrassing, directions; just as ordinary citizens should participate actively in governmental decision-making, through offering their own deliberative insights, rather than be confined to casting ballots once every two or four years for those very few individuals who will actually make the decisions, so should ordinary citizens participate in the process of law enforcement and defense of liberty rather than rely on professionalized peacekeepers, whether we call them standing armies or police.
One could just about imagine some red states electing to add their own Second Amendment equivalents after Scalia’s supposed contrivance. But 232 years before, and in 90 percent of cases thereafter? I rather think not.