California "Assault Weapon" ban struck down - for now

[Spats McGee]

And here's the predictable pushback to the ruling:

The LA Times calling it a "Nutty Ruling"---
https://www.msn.com/en-us/news/opin...n-makes-us-less-safe/ar-AAKKdjf?ocid=msedgdhp . . . . .

In case any of you missed it, this isn't really "the LA Times" calling it "Nutty." It's Erwin Chemerinsky. While I (obviously) don't agree with his position on this issue, it would be a mistake to underestimate his knowledge of US Constitutional law. He wrote the hornbook I used in law school, and is truly what I would call a scholar of Constitutional law.

 

[Metal god]

Spats , I'm a little surprised you jumped on board Erwin Chemerinsky's band wagon so soon using "that" article as his credentials and his understanding of the 2nd amendment .

He starts out IMHO showing his ignorance of the topic at large with this statement

Would anyone really compare an AR-15 assault rifle, which has been used in so many recent mass killings, to a Swiss Army knife?

Um yes maybe 90% of gun owners know exactly what the judge meant in that statement and how it applies . Again IMHO it shows his complete lack of understanding of the pro gun stance . It's also like so many articles today starts out framing the argument/debate in one direction by asking a simple question that if you disagree with it , has an negative insinuation towards you ( Would anyone really compare an AR-15 assault rifle, which has been used in so many recent mass killings, to a Swiss Army knife? )

An example of my point here would be a pole taken in 2016 after the election of news reporters . ( sorry can't find it right now but will look more fore it ) . Something like 90% of reporters said they did not know anyone that would have voted for Trump . I don't even think that needs expanding on .

This is the most extreme gun rights ruling yet from a federal court. Every other court in the country has upheld bans on assault weapons. .

I like to know more on how he comes to the word extreme in this context and the fact he keeps using the political buzz word "assault" weapon shows his bias in the analyses .

This ruling is wrong as a matter of constitutional law and of common sense. Unfortunately, though, a majority of the current Supreme Court justices are very likely inclined to expand gun rights.

"Expand" gun rights ???? Giving something back that should have never been taken is not an expansion . Again framing the debate to fit a narrative .

But I hope they will not go so far as to declare that the Constitution protects a right to have an assault weapon

This shows he has personal interest in the outcome rather then this this being an academic analysis .

This is the most extreme gun rights ruling yet from a federal court. Every other court in the country has upheld bans on assault weapons. This ruling is wrong as a matter of constitutional law and of common sense. Unfortunately, though, a majority of the current Supreme Court justices are very likely inclined to expand gun rights. But I hope they will not go so far as to declare that the Constitution protects a right to have an assault weapon.

The 2nd Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” From 1791, when it was ratified, until 2008, not one law — local, state, or federal — was struck down as violating the 2nd Amendment.

When dealing with 2nd Amendment cases, the Supreme Court has repeatedly said that the provision meant what it said: It was solely a right to have guns for the purpose of militia service.

In June 2008, the court, in a 5-4 decision in District of Columbia vs. Heller, took a very different approach and said that the 2nd Amendment protected a right of people to have guns in their homes for the sake of security.

Justice Antonin Scalia wrote the opinion for the court and declared unconstitutional a 1976 ordinance in Washington that prohibited private ownership or possession of handguns. But the court was clear that this right is not absolute and the government can regulate who has guns, where they have them and what type of weapons are allowed.

In fact, Justice Scalia’s opinion stated that the right to possess arms was limited to weapons that “were in common use at the time” the 2nd Amendment was ratified.

This IMHO is his biggest tell on how political he is and really unqualified to analyze any ruling . Can someone show me a quote where the Heller decision states " in common use at the time of the 2nd amendment's ratification" ? He is "QUOTING" the opinion , If you're going to lie , there should be no place for you in the debate .

The 2nd Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” From 1791, when it was ratified, until 2008, not one law — local, state, or federal — was struck down as violating the 2nd Amendment.

When dealing with 2nd Amendment cases, the Supreme Court has repeatedly said that the provision meant what it said: It was solely a right to have guns for the purpose of militia service.

OK again lets use Mr Chemerinsky's theory that we are only talking about what they meant at ratification and what a militia was at that time . Was a militia regulated by the government ? Did you need a permit or ask to even be in a militia in 1779 or when ever . It's my understanding that any group of men who practiced together could call them selves a militia .

Remember we are using what things meant at ratification . If you're going to use that argument IMHO you must stick with it . You don't get to use it in one part of your argument then use 21 century language in the next argument to suite you narrative . As far as I can see as long as I start up MG ( metal god ) militia "I" not only can have all the modern weapons of war so can all the members of my/our militia ? to be clear I DO mean ANY weapon produced today . Reason being is at ratification the militias were using the most modern weapons the world had ever seen to that point . So keeping with only what was OK at ratification theory the most modern weapons today should be allowed to the militias of today ???

I like it when smart people don't think through there own arguments like the the drivers Lic argument . The government can force you to have a drivers Lic to drive why can't they require a Lic to own a gun I absolutely love it when someone brings this theory up .

I like to say , Ok what would you say if every pro gun person in the US agreed to treat gun ownership "exactly" like driving a car , would you be OK with that . 99.9% of the time they say yes because they can't see past there own arrogance . I then go on to point out there are no federal laws prohibiting car ownership to include any car or type . So right off the bat I establish they are OK with any type of small arm being owned like cars are not planes or tanks like small arms are not RPG's , missiles etc .

Then I move onto you don't need a Lic if you never go on public roads so we now have established that you can own any of those small arms with out restrictions as long as you don't carry them in public with out a lic. Then the last but not least even convicted criminals can have a drivers Lic . So yeah lets make owning firearms exactly like driving a car lol .

I fear the conservative majority on the Supreme Court will soon go much further in expanding gun rights.

I think he means give back which was never yours to take .

 

[Aguila Blanca]

Spats , I'm a little surprised you jumped on board Erwin Chemerinsky's band wagon so soon using "that" article as his credentials and his understanding of the 2nd amendment .

He starts out IMHO showing his ignorance of the topic at large with this statement

I don't think Mr. McGee "jumped on board Erwin Chemerinsky's band wagon" at all. Spats didn't defend the guy's opinion, all he did was point out that Chemerinsky is not a hack journalist, he is a bona fide constitutional scholar. And Spats didn't cite the article as Chererinsky's credentials -- he cited the fact that Chemerinsky is the author of at leat one book that is used in law schools.

So Chemerinsky has creds. That doesn't prevent him from also having biases and prejudices, and the fact that he's knowledgeable about constitutional law doesn't make him knowledgeable about firearms.

Chemerinsky still supports the militia connection as essential to the 2A right. He is not alone in that. Hilary Clinton (who is or was a lawyer) said the Supreme Court was wrong with the Heller decision. More importantly, the decision was 5-4, it was not unanimous.

 

[44 AMP]

While I (obviously) don't agree with his position on this issue, it would be a mistake to underestimate his knowledge of US Constitutional law. He wrote the hornbook I used in law school, and is truly what I would call a scholar of Constitutional law.

So, how does a scholar of Constitutional law get things so barking WRONG right from the get go??

First point, neither the 2nd Amendment, nor any other in the Bill of Rights grants any citizen ANY rights. None. Nada. Nichts. Zip. Zero. ALL the articles are the same in that they are a list of things the Government SHALL NOT DO concerning certain enumerated rights that we naturally possess.

The Second is very clear, we have the right to possess arms for militia service, and the Govt shall not infringe on that.

It does NOT say that is the ONLY right we have when it comes to possessing arms. Take a look, its not in there.

Why would I consider him a constitutional scholar when all his statement is, is nothing more than a rehashing and restatement of the already discredited anti-gun talking points???

But the court was clear that this right is not absolute and the government can regulate who has guns, where they have them and what type of weapons are allowed.

the "scholar" needs to reread Heller. Perhaps have it explained to him, using small words so he understands....

The Court did NOT say the govt may regulate guns. It also did not say that the govt cannot. What they said was that they are not looking at that issue in this ruling, and until we do look at that specific issue, we will presume the regulation to be legal.

This is NOT the same as the court affirming govt lawful authority. This is a non ruling, literally ducking the issue, and properly so, since it was not the issue in the Heller case.

I would think any constitutional scholar worthy of the name would understand that.

 

[Metal god]

Thank you 44 that was my point not that spats agreed . It’s that he said anything at all about this guy being somebody to consider there opinion on this subject . Especially if based on reading that article , that was what I consider a hack hit piece .

As far as supporting the militia aspect of the second . I have never heard one anti-gun politician support the militia part of the 2nd and not conclude that that is the national guard . So although on paper it sounds like they support it they really do not as intended by our founders “ at ratification “ lol

 

[Spats McGee]

I already pointed out that I disagree with him. What he wrote is an op-ed piece, so it's an opinion-editorial piece. What I was trying to get across, as AB pointed out, is that he's not a hack journalist who doesn't understand the law. And there's a whole lot more to the Constitution than the 2A. We can always disagree with our ideological opponents, but it would be foolhardy to underestimate them.

ETA: One real problem with someone like Chemerinsky writing op-eds like this is that his word will be taken as gospel by large segments of the legal community. It ain't right, but it is what it is.

 

[Aguila Blanca]

As far as supporting the militia aspect of the second . I have never heard one anti-gun politician support the militia part of the 2nd and not conclude that that is the national guard . So although on paper it sounds like they support it they really do not as intended by our founders “ at ratification “

Most anti-gunners do, indeed, claim that the 2A only protects guns in the National Guard. That only demonstrates their ignorance. First, there was no National Guard for more than a century after the Bill of Rights was adopted, so the 2A obviously wasn't talking about the National Guard. Second, the Militia as it exists under current federal law is not limited to the National Guard. The NG is the "organized" militia -- there is also a body of the populace that comprises the "unorganized" militia -- and many anti-gunners might be shocked to learn that they ARE "the Militia." BY FEDERAL LAW.

 

[KyJim]

About Cherminsky's comment: I have to believe his political views have so influenced him that he cannot even come close to viewing the district court decision impartially. IMO, he has deliberately misrepresented the judge's swiss knife metaphor as a literal comparison of a gun to a knife in order to undercut the decision's credibility. That may get him ink in a toady newspaper, but no reasonable jurist would so interpret the district judge's comment. Reasonable jurists might disagree with it, but they would at least understand the judge's comment as a metaphor.

The district judge put a lot of work in trying to touch all the bases and make extensive factual findings based on evidence at trial. Factual findings are reviewed on appeal in federal court only for clear error. That's not to say the opinion will stand because Cherminsky got at least one thing right---no federal court of appeals has found a ban on "assault weapons" unconstitutional.

Turning to an earlier comment:

even heard the argument from the anti's that because of the 21st amendment you can't ban alcohol I MEAN Well I guess irony has lost all meaning lol

Can't ban it nationally, but you can certainly ban it locally under the 21st Amendment. Or you could start a drive to amend the Constitution again and ban it nationally. I doubt many of the vocal gun grabbers would want to ban alcohol locally, say at the county level. And fewer still would want to revisit the failed experiment called Prohibition.

 

[Aguila Blanca]

even heard the argument from the anti's that because of the 21st amendment you can't ban alcohol I MEAN Well I guess irony has lost all meaning lol

Can't ban it nationally, but you can certainly ban it locally under the 21st Amendment. Or you could start a drive to amend the Constitution again and ban it nationally. I doubt many of the vocal gun grabbers would want to ban alcohol locally, say at the county level. And fewer still would want to revisit the failed experiment called Prohibition.

I thought about commenting on this before, got sidetracked, and didn't. Now I will.

Anyone who thinks alcohol "can't" be banned because of the 21st amendment doesn't understand how laws and constitutional amendments work. Alcoholic beverages were banned, by the 18th amendment -- prohibition. As KyJim described it, it was a failed experiment. The 18th Amendment said:

Amendment 18 - Liquor Abolished

1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

It was ratified, it went into effect, and a few years later there was a determined effort mounted to repeal it. That effort resulted in the 21st amendment, which said:

Amendment 21 - 18th Amendment Repealed

1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

3. The article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

The 21st amendment does not in any way prohibit the possibility of a repeat of the 18th amendment, or the enactment of a national ban on alcoholic beverages by the Congress. The 21st amendment specifically provides that "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." Obviously, then, this means that the states and their political subdivisions are allowed to have or to enact laws prohibiting "intoxicating liquors."

When some people read a law (or anything else, for that matter), they see in it only what they want to see, not what it says.

 

[44 AMP]

Cherminsky got at least one thing right---no federal court of appeals has found a ban on "assault weapons" unconstitutional.

Did he??

get that right, I mean??

Or has he just taken the lack of evidence as proof???

One of his points is the amount of time during which "no court" ruled gun control law(s) unconstitutional. The whole "from 1789 to 2008,," is a red herring (aka intentionally misleading).

He IMPLIES that in ALL THAT TIME, no court found gun control unconstitutional, because it isn't unconstitutional, and that compared to the bulk of time our "modern" view (2008, Heller, etc.) must be an aberation.

Reality is that, in all that time, there have been very, very few gun control laws taken to court, and considering the first national (Federal) gun control law was the 1934 NFA, its pretty obvious why there were no rulings on guncontrol between 1789 and 1934, there simply were no laws to be challenged.

Another point to consider is "ban". Most of the assault weapon laws are restrictions, not total bans on a complete class of firearm.
Even the 1934 NFA is not a ban. It is severe regulation and restriction, but it is not a complete and total ban on ownership of the covered items.

The DC law struck down in Heller WAS a total ban of an entire class of arms (handguns), and that still took several decades to finally be ruled on.

Cherminsky may be a noted constitutional scholar, but if what he writes is the same drivel churned out by hack writers, then he's just a well educated hack writer...

 

[zukiphile]

Cherminsky may be a noted constitutional scholar, but if what he writes is the same drivel churned out by hack writers, then he's just a well educated hack writer...

Law, economics and art all have the quality that a person may be very well versed in them, yet have an agenda that should keep them well away from any practical applications of that agenda. Paul Krugman wrote an economics textbook, yet he is a public figure for some seriously shabby policy advocacy. Marx wrote on economics, but made his name for other reasons. Picasso may be a big deal in the art world, but I'm not attracted by the images for which he is best known.

Lawrence Tribe is a very smart fellow and undeniably a legal scholar; he is also wrong on most issues on which he publicly opines. It's the nature of the field that makes being well read and being right different things.

I wonder about the perspicacity of someone who would write post Heller:

When dealing with 2nd Amendment cases, the Supreme Court has repeatedly said that the provision meant what it said: It was solely a right to have guns for the purpose of militia service.

Everyone in this thread is aware that the 2d Am. doesn't say that at all, so it's hard to see how a very well read person would assert that in the absence of an agenda at odds with the text.

 

[44 AMP]

Originally Posted by Chemerinsky
When dealing with 2nd Amendment cases, the Supreme Court has repeatedly said that the provision meant what it said:

This part is certainly true.

It was solely a right to have guns for the purpose of militia service.

This part is NOT true.

The 2nd Amendment clearly states the right of the people to keep and bear arms is necessary (because of militia use), and that is why it restricts the Govt from "infringing" on that right.

NOWHERE in the 2nd Amendment or anywhere is the Founders other writings is there ANY mention that the right to arms for militia use is the ONLY right to arms that exists.

THAT is a concept only in certain people's minds, not in the Constitution.

In point of fact, the 9th Amendment specifically states that not all our rights are enumerated, and the 10th states that rights not enumerated in the Constitution are the province of the states, or THE PEOPLE.

SO, yes, technically, the Second Amendment only covers govt regulation of the right to militia class arms. This does not mean we have NO right to anything else, as some people seem to think.

Our right to arms for purposes other than militia use exists and always has.

People telling you otherwise are lying. They may not think they are, but, they are.

 

[Aguila Blanca]

SO, yes, technically, the Second Amendment only covers govt regulation of the right to militia class arms. This does not mean we have NO right to anything else, as some people seem to think.

No, it doesn't say that, either. The prefatory clause (which Heller dissected grammatically and concluded does NOT alter or affect the meaning of the primary clause) just says that a well regulated militia is essential to the security of a free state. It doesn't say the [federal] government has a right to regulate militia class arms.

The main [operative] clause of the Second Amendment says that the right to keep and bear arms shall not be infringed.

Period. Full stop. It doesn't say "shall not be unreasonably infringed." It says "SHALL ... NOT ... BE ... INFRINGED." Taken as it was intended (and assumed to be obvious) by the Framers, that means the right to keep and bear arms is simply NOT SUBJECT TO REGULATION -- reasonable or otherwise.

 

[mehavey]

A civil populace well-versed in weapons suitable for defense of their lawful state* shall not have their possession of those weapons compromised....

(or something like that)




* in every sense of the term and/or turn of phrase
[think about it]

 

[Aguila Blanca]

It can be instructive to consider what the influential people at the time the Constitution was written thought about the right to keep and bear arms:


Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms.
-- James Madison, The Federalist Papers

"The best we can hope for concerning the people at large is that they be properly armed."
-- Alexander Hamilton, The Federalist Papers at 184-188

"One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offense to keep arms."
-- Constitutional scholar and Supreme Court Justice Joseph Story, 1840

Men trained in arms from their infancy, and animated by the love of liberty, will afford neither a cheap or easy conquest.
-- From the Declaration of the Continental Congress, July 1775.

"As to the species of exercise, I advise the gun. While this gives [only] moderate exercise to the body, it gives boldness, enterprise, and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun, therefore, be the constant companion to your walks."
-- Thomas Jefferson, writing to his teenaged nephew.

The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."
-- Supreme Court Justice Joseph Story of the John Marshall Court

Militias, when properly formed, are in fact the people themselves and include all men capable of bearing arms. [...] To preserve liberty it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them.
-- Senator Richard Henry Lee, 1788, on "militia" in the 2nd Amendment

No kingdom can be secured otherwise than by arming the people. The possession of arms is the distinction between a freeman and a slave.
-- "Political Disquisitions", a British republican tract of 1774-1775

Are we at last brought to such a humiliating and debasing degradation, that we cannot be trusted with arms for our own defence? Where is the difference between having our arms in our own possession and under our own direction, and having them under the management of Congress? If our defence be the *real* object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?
-- Patrick Henry, speech of June 9 1788

"To disarm the people... was the best and most effectual way to enslave them."
-- George Mason, speech of June 14, 1788

"The great object is, that every man be armed. [...] Every one who is able may have a gun."
-- Patrick Henry, speech of June 14 1788

Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.
-- "M.T. Cicero", in a newspaper letter of 1788 touching the "militia" referred to in the Second Amendment to the Constitution.

That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United states who are peaceable citizens from keeping their own arms...
-- Samuel Adams, in "Phila. Independent Gazetteer", August 20, 1789

The danger (where there is any) from armed citizens, is only to the "government*, not to *society*; and as long as they have nothing to revenge in the government (which they cannot have while it is in their own hands) there are many advantages in their being accustomed to the use of arms, and no possible disadvantage.
-- Joel Barlow, "Advice to the Privileged Orders", 1792-93

[The disarming of citizens] has a double effect, it palsies the hand and brutalizes the mind: a habitual disuse of physical forces totally destroys the moral [force]; and men lose at once the power of protecting themselves, and of discerning the cause of their oppression.
-- Joel Barlow, "Advice to the Privileged Orders", 1792-93

The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.
-- Albert Gallatin, Oct 7 1789

Before a standing army can rule, the people must be disarmed, as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword, because the people are armed, and constitute a force superior to any band of regular troops.
-- Noah Webster

The right of self-defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and when the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."
-- Henry St. George Tucker (in Blackstone's Commentaries)

"Rightful liberty is unobstructed action, according to our will, within limits drawn around us by the equal rights of others."
-- Thomas Jefferson

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
-- Benjamin Franklin, Historical Review of Pennsylvania, 1759.

 

[DaleA]

I remember you were working on a list of quotes and I'm happy to see you've got one now. Nice work. It's a list that is hard to argue with! Again, well done.

 

[zukiphile]

Period. Full stop. It doesn't say "shall not be unreasonably infringed." It says "SHALL ... NOT ... BE ... INFRINGED." Taken as it was intended (and assumed to be obvious) by the Framers, that means the right to keep and bear arms is simply NOT SUBJECT TO REGULATION -- reasonable or otherwise.

I am sympathetic to that reading, but let's recognize that "shall not be infringed" leaves room for argument and that the position you state and I like isn't current law. It's whether the explanation of our position coheres that should give the position weight rather than the credentials of the the people advancing it. Both we and Chemerinsky are entitled to our critiques and should have those critiques evaluated on their merits.

The point at which Chemerinsky's position fails to cohere is his its disconnect from text. It's an example of Bork's explanation of the Olympian project of "smarter" people telling us which policy choices are better, as opposed to the Court settling disputes between parties according to the text of the documents involved.

The point at which our leaning on those four words risks over-extension comes to interpreting the last word. Is a right infringed if its use is regulated in any way at all? I wouldn't consider a law against using a firearm in a robbery to be an infringement even though that is a regulation of use. Does the right remain uninfringed if the government has seven common traits it prohibits and and you need to pat your head and rub your stomach to reload it? Some will say that the right is uninfringed because you still get to have a gun, as if the word infringed is equivalent to "obliterated". I would protest that impairing the utility of the item infringes the right, limiting the right itself in a material way. A law that prohibits flash hiders and normal grips no more leave my 2d Am. right intact than would be an election law that prohibits some speech within 60 days of an election leave my 1st Am rights intact.

My reading of "infringed" is nearly synonymous with "limited"; it strikes me as sensible and coherent even as I acknowledge that it isn't the current state of the law.

 

[USAFNoDak]

Then I move onto you don't need a Lic if you never go on public roads

In addition to that point, if you are licensed in any state to drive a car, you can drive a car into any state you darn well please to. I seriously doubt that people who argue for gun licensing because we license cars and drivers, would agree to allow unfettered carrying of guns into all 50 states by anyone who has a license to carry a gun.

 

[44 AMP]

Originally Posted by 44 AMP
SO, yes, technically, the Second Amendment only covers govt regulation of the right to militia class arms. This does not mean we have NO right to anything else, as some people seem to think.

No, it doesn't say that, either. The prefatory clause (which Heller dissected grammatically and concluded does NOT alter or affect the meaning of the primary clause) just says that a well regulated militia is essential to the security of a free state. It doesn't say the [federal] government has a right to regulate militia class arms.

I feel I'm being misunderstood here. I never said the Fed has a right to regulate militia class arms, (or any others) and I didn't say the 2nd says it does, either.

I'll try to be "More clearer"....

The opening clause states that a militia is necessary. This is an explanation of why the main clause states the right to keep and bear arms shall not be infringed.

The overall subject is why the govt should not infringe on people's right to arms, because doing so would adversely affect the militia, which were/are people who show up with their own personal arms and equipment.

NOT govt issued guns or gear, but their own personally owned stuff. Stuff which was suitable for militia service. This included clothing, camp gear (cooking and eating) and your bedroll gear, as well as your arm and ammo.

IF the Govt was allowed to infringe on the right to arms, this would reduce or even eliminate the pool of armed citizens who are the ones called to militia service. SO the 2nd amendment specifically prohibits that.

It tells the Fed govt to keep its hands off our guns, and why the Fed needs to do that. That's all it does. It doesn't address anything else, and it doesn't need to.

The Heller ruling made a clear distinction, that our right to arms for personal use and protection exists APART from militia use or service.

This right was something known and accepted since day one, something never questioned or even considered needed to be spelled out specifically in law, for most of the first couple hundred years of our republic.

Until a certain political faction seized on the idea that the only "valid" reason for gun ownership was militia service (a false premise). We spent decades arguing back and forth, because the Constitution's 2nd Amendment does not specifically state anything beyond "the right to keep and bear arms shall not be infringed" and lacking that, the "guns for militia use only" crowd felt they were justified and could do damn near anything they wanted regarding regulation and even banning arms from private hands.

I think Heller settled that argument, but many people on their side sill cling to that concept, despite it being refuted by the Supreme Court's ruling.

 

[zukiphile]

I think Heller settled that argument, but many people on their side sill cling to that concept, despite it being refuted by the Supreme Court's ruling.

You accurately describe the Heller ruling. Heller was a 5-4 decision. 5-4 decisions aren't going to hold a lot of precedential weight in future Sup Ct cases unless the majority in those cases want it to.

Any future majority can reverse Heller. It was better to win than to lose, but it was metaphorically written in erasable marker, not chiseled into stone. Presidents, senators and Sup Ct nominees matter.