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this is kinda interesting.
scalia seems to be caught in a strange little loop: does the right to form a militia presuppose another, unspoken right to have guns around? presumably, it would, yes? but since there's nothing stated, and since we read scalia assembling a (quite curious) historical case, it would follow that what is really at issue is custom as it obtained around the 1789--and i would imagine that you'd have found exactly the same rural/urban split that you have now at the level of custom--if you are living in a city, you probably aren't doing a whole lot of hunting, so you probably dont have a gun.
what i don't really see is the inferential jump from what is not stated to some assumptions about 1789 context as if it were a single thing. i think that has more to do with stuff like one of the most irritating rhetorical quirks in american history writing, the tendency to use the phrase "americans think..." or "americans reacted to x..." as if there is this Unified Subjectivity called "americans"...which exists only in the phantasmagoria of nationalist ideology.
but it's a problem, yes, moving from a sequence of statements concerning negative rights (pre-existing rights that the state cannot infringe---upon [do you have to use "infringe upon" or can you just say "infringe"?]) to a negative negative right, which is one that is not stated at all but which you may or may not be able to infer is presupposed by what is stated.
this seems to me a problem with the notion of "original understanding"---which is also a problem for "strict construction" as an interpretive posture---when you get down to it, this is a speculative game, bounded by evidence in the way that "authentic" re-enactments of 17th century daily life are bounded by clothing.
stevens opinion seems more strict in the sense that it does not make the move scalia does in disconnecting the clauses and trying to infer some set of assumptions that inform the operative clause.
i guess what makes this interesting is its uncertainty, its ricketiness as argument, despite its status as ruling.
btw: on the issue at hand, i favor local control over guns. there is no reason why a city cannot exercise a different and far more stringent type of control than would a rural area. chicago is not a big hunting area. neither is boston or nyc. and i don't really buy the self-defense arguments in an urban context--at least not as powerful enough to justify abrogating the right of communities to determine what does and does not happen within their boundaries. and i dont see scalia's decision as saying anything that runs against that--what i see it as basically saying is that a city cannot enact a wholesale ban on all guns. but i think they can, nonetheless, make it as difficult as possible to own one. and i think it is the right of the citizenry as a whole to enact such law.
like it or not, even libertarians live in a society.
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a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear
it make you sick.
-kamau brathwaite
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