American Dialogue: The Founders and Us

by Joseph J. Ellis

Scalia began his opinion in Heller by distinguishing between what he called the “prefatory clause” and the “operative clause” of the Second Amendment. He then declared that “the former does not limit the latter grammatically but rather announces a purpose.” It soon became clear that this distinction was a verbal version of judo with more than acrobatic implications, for it redefined the syntax of the Second Amendment. The words “A well regulated Militia, being necessary to the security of a free state” were transformed into a merely rhetorical overture. In Scalia’s parsing of the text, the militia requirement imposed no limitations on “the right of the people to keep and bear arms.” The fact that announcing a purpose explicitly imposed limiting conditions was lost in translation. The Scalia version of the Second Amendment, much like the plaque at NRA headquarters, lopped off the militia requirement as an irrelevant prologue, leaving only the individual right to bear arms as the full and true meaning of the amendment. The game is essentially over at the very start in Heller, for with this singular act of editorial magic, the stated rationale for bearing arms disappears.