1986 Gun ban

[Tennessee Gentleman]

Note that Scalia did not say that 2A right was detached from the prefatory clause.

But here he says:

But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right

which indicates to me that

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

the right is detached from the militia purpose. Therefore you cannot claim a right to own an unregistered FA apart from the militia (or within it for that matter since it is dead)

What are the sophisticated arms he is talking about here? Certainly, FA, which has been around for a very long time is not even slightly sophisticated compared to tanks, and fighter jets.

Tanks have been around almost 100 years. Jets about 65 years. So how long they have been around means nothing. Scalia is setting up the test of "in common use for law abiding purposes" pertaining to civilian self defense and he is ruling out the private ownership without regulation of military weapons not in common use by civilians. Many have speculated that had he allowed a way to overturn the NFA, he would have lost Kennedy. Stevens in his dissent takes issue with the "in common use" argument but not to our benefit and he lost.

But the Hughs amendment which closes the registration on an item that is required to be registered, most of us would agree, is a de-facto ban.

Might work. I have asked before has this amendment been taken before a court. Do you know?

Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

I think if you take another look at Hamilton and Federalist 29:

an argument that Alexander Hamilton made in favor of federal control over the militia.

Hamilton is referring to the state militia since that is all that existed then and which is the only militia the COTUS speaks to. It was the state militias that were to provide the bulwark against tyranny not the lone individual apart from that militia. So, as I said before, you may store your FA in the "militia" armories of the National Guard

 

[langenc]

There will be no major gun law changes. As noted we cant even agree.

Look at the above posters personal info. How many belong to a RKBA group?? Paltry few..costs too much, too much mail, blah blah blah

PS looks like public info dont ask who supports/who dont. Im sure less than 1/3.

 

[Frank Ettin]

...Look at the above posters personal info. How many belong to a RKBA group?? Paltry few..costs too much, too much mail, blah blah blah...

How do you know? Just because someone doesn't list it in his profile doesn't mean anything. Most folks put precious little in their profiles. I just looked at yours, and you don't list membership in a RKBA organization (and we'll see if you edit your profile now to add something).

 

[maestro pistolero]

the right is detached from the militia purpose.

Only in the sense that it exists simultaneously. Last time I checked, the first clause still precedes the second. NOT unconnected. NO. Co-exists. Not even the Supreme Court gets to rewrite the constitution. There is a means to do that if you dare. As long as the second amendment has a first clause, it is the law of the land.

Therefore you cannot claim a right to own an unregistered FA apart from the militia (or within it for that matter since it is dead).

That's a very tenuous connection. Whether registration is required or not, a ban is a ban. Your opinion is well known that the militia is dead, and so is mine that it is merely dormant. The first time our professional forces are unable to respond due to widespread catastrophic circumstances that require defense of our communities, it will indeed be raised again. Anyone who thinks that scenario is impossible ignores world history at the future's peril.

Scalia is setting up the test of "in common use for law abiding purposes" pertaining to civilian self defense and he is ruling out the private ownership without regulation of military weapons not in common use by civilians.

Regulation isn't the question, that's settled. But a ban is still a ban.

Tanks have been around almost 100 years. Jets about 65 years. So how long they have been around means nothing.

Ok, agreed, But the passage about arms that are unusual in society at large is referring to SOPHISTICATED arms. No reading of that paragraph can conclude he is referring to small arms.

How people miss the forest for the trees on this point eludes me: It is the ABILITY AND MEANS TO RAISE A MILITIA, NOT necessarily the militia itself that is preserved in the amendment. If it isn't raised for 300 more years, it is still the best, last recourse against future tyranny. It is a credit to the health of our republic that it will likely never be needed, unless it is thrown out, which seems to be what T.G. is suggesting.

 

[Tennessee Gentleman]

Last time I checked, the first clause still precedes the second. NOT unconnected. NO.

I can only refer you back to the case and the holding that said they were unconnected. Scalia is clear on that I believe.

No reading of that paragraph can conclude he is referring to small arms.

I think he is talking about ALL modern weapon developments. Small arms includes a lot of stuff, not just M-16s. Further, I think Scalia makes it clear that in 1789 the weapons mostly used by the military were the same as those used by private citizens. That is not the case today for the most part.

How people miss the forest for the trees on this point eludes me: It is the ABILITY AND MEANS TO RAISE A MILITIA, NOT necessarily the militia itself that is preserved in the amendment.

Because we read history and see what the militia was. I don't think you do. You look at some commentary from the time and conclude that the individual in some libertarian sense apart from any government or law is the militia. That is not what it was and not what the founders intended it to be. It is the ability of the STATE to raise and arm the militia that the founders protected NOT the "Right" of individuals on their own to form armed militias as they saw fit. That is what the modern militia movement believes and they are wrong. In fact the states that prohibit such "militias" in law and those laws withstand court scrutiny show that to be true.

If you try to argue in court that you need access to all types of military weapons to be able to overthrow a "perceived tryanncial" government as part of some self designated "miltia" then I think that argument would and should fail miserably.

The STATE miltia was the bulwark against tyranny and the STATES did away with them because they were no longer needed. You say dormant and I say dead in either case it is not around and since the unorganized militia gives the individual no rights, duties or responsibilities then I can see it as a dead letter unless and until a state calls it up which they will not so it is dead right NOW. Since the NG has fulfilled the need the militia as it was in 1789 is no more and will never be again IMO.

Anyone who thinks that scenario is impossible ignores world history at the future's peril.

TEOTWAWKI! It isn't going to happen Maestro and if it does the COTUS won't mean anything anyway.

BTW I just read Patriots by some guy named James Rawles since so many on here believe in the END. What a kooky book! I really liked the cannibal gangs that were also communists! Oh my goodness this guy was FUNNY. How some can read that bilge and believe it is scary. Those are the miltia folks. Also, if we keep talking about militias it may be time to post my famous pic of the modern miltia!

 

[Tennessee Gentleman]

Oh what the heck!

Your modern miltia!

 

[ADB]

For civilians, full auto is all about recreational shooting!

Precisely. And it's going to be hard to sell the public as a whole on "legalizing machine guns" (as it would be described by a media too lazy for nuance) for as simple and non-vital a reason as fun.

I would say that if there's any chance of undoing the 1986 closure of the NFA registry, it would be via the courts and the holding of the registry closure as a de facto ban illegal under Heller, with the precedent existing of the 1934 NFA showing that full auto is considered to be a legal form of weapon for civilian ownership.

 

[maestro pistolero]

Because we read history and see what the militia was. I don't think you do.

Not true, TG. Not only have I read it, my family was in it, with my direct ancestors in this country dating back to about 1730, two years before Washington was born. Many of them fought in the Militias, and then the Continental Army, in Berk's county, PA.

Now, while that doesn't make me any more American than last week's immigrant, nor does it make me a militia expert, I do have an interest and identification with this issue beyond the average citizen. And I have read more than enough from our founders to form a view that's probably very clear as to their intent.

You misread my view completely here:

You look at some commentary from the time and conclude that the individual in some libertarian sense apart from any government or law is the militia. That is not what it was and not what the founders intended it to be. It is the ability of the STATE to raise and arm the militia that the founders protected NOT the "Right" of individuals on their own to form armed militias as they saw fit.

Since you are confused about what I have actually said, you will be surprised to know that I agree with that statement. But the MEANS to arm the militia is spelled out in 2A as private ownership of arms, not state-issued arms as you have repeatedly insisted. And those arms need to be up to the task for the amendment to keep it's teeth, for ALL the purposes for which it was written.

 

[Al Norris]

The OP's question has been answered -- At least as well as it can be, at this point in time.

I see we've started down the path of the militia, yet again. Tell ya what, Open a Thread on that subject and that subject alone, and we'll leave it open for all to discuss.

But not as a side topic in other threads (I'm waving the ban stick, guys!).

Closed.