The prefatory words of the Second Amendment state, "A well regulated Militia, being necessary to the security of a free State, ***"
In the Heller case -- the landmark individual right-to-bear-arms case -- Scalia concluded that these prefatory words were essentially superfluous. As he put it,
"The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause."
In order to reach this conclusion Scalia opined that what our Founders said in the opening clause of the Second Amendment was of dubious importance and, therefore, could be ignored in interpreting its "operative clause." But his reasoning went against a primary tenet of statutory/constitutional interpretation: that every word of a law should be given effect if possible. As a consequence, the Heller holding and its implications are overly broad.
In essence, Scalia unhitched the cart -- the prefatory clause -- from the horse -- the operative clause -- and ever since the latter has run wild. Our Founders and the authors of the Constitution were not superfluous. Maybe they knew better than Scalia and the rest of the Court's Majority in the Heller decision and that's why the authors of the Constitution hitched the cart to that horse in the first place . . . .
The holding in Heller can and should be challenged to narrow its scope. It is time to rein in that wild horse.
Maurice F. Baggiano,
Member of the Bar of the United States Supreme Court