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.