Could this mean that a semi auto ban would be overturned?

[gb_in_ga]

The problem I see is that as long as we have a highly politicized administration appointing politicized justices, sound logic such as Justice Scalia brings become moot. It matters not how well reasoned the argument is when a political agenda is being crammed down our throats. While we may have a leg to stand on at this time due to the current makeup of the SC, that situation eventually will deteriorate as long as leftists remain in power in the legislative and executive branches.

It is all relative. It all depends on political whims. Unfortunately, we can't rely on our government remaining true to the founding documents and founding principles, we haven't been able to do so for most of our lifetimes.

 

[BillCA]

I would tend to agree, but even the cannons of the revolution were crew-served.

I'm not sure, that under the theory that this passage illuminates what is protected, that the a SAW (as in M249) wouldn't be protected.

This is precisely why I wanted to avoid the topic as it gets iffy as to where you draw the line. Certainly cannon were used in the Revolutionary War and some folks owned armed ships. But these are topics that distract from the real issue of "small arms" ownership.

I think he is saying that the militia as a primary protector of the state ... is no more and just the militia today is a dead letter.

I don't read it that way. What he said...

It may well be true today that a militia, to be as
effective as militias in the 18th century, *would require
sophisticated arms that are highly unusual in society at
large.

It might be that today's militia would not be as effective in battle as one in the 18th century, but that's not a reason to nullify or reject the guaranteed right.

Today we are protected by a modern standing Army and professional police forces.

Only in the crudest sense. Police & military forces act to guard government interests. Police are to solve crimes in the civilian circles and help apprehend and prosecute offenders. As government agents, they can be (and have been) told to ignore certain types of crime to focus on others. Or they could be told to only protect a subset of society - businesses and government facilities. The military's function is to fight against national enemies abroad or to repel any attempted invasion.

Neither is required to actually protect the citizens at large or any individual.

I think he is saying that times have changed and the fit between the well-regulated militia and the right to keep and bear arms isn't there anymore but that still doesn't mean we don't have a right to own firearms in common use for our personal self defense.

Again, I disagree. That is NOT what he said.

He said the "fit" between today's militia and it's obstensive mission (including retaking a tyrannical gov't) could be argued because a self-armed militia could not compete with a modern army using armor, heilos and modern c3 systems.

Opinion: In the OP's first paragraph it seems that Scalia is saying "some folks might say that if you can ban M-16's, then the right could be limited to single-shot .22 short rifles." and then he adds (paraphrased) But as we have said, the concept of the militia was citizens would bring the sorts of lawful weapons that they possessed at home to militia duty.

What Scalia appears to be saying is that the court recognizes the initial "parity" the original milita forces had and that's no longer the case. But still, the concept was that citizens brought their own arms of whatever type they owned that were common at that time.

I wouldn't be ardent in interpreting "in common use" to instead mean "in common use amongst civilians".

This is an excellent point. The court did not specify common civilian use. Nice catch zukiphile!

Which is nothing more than a pool of people that the Organized Militia draws its members from and has no rights, duties or responsibilities. The Unorganized Militia (from the Militia Act of 1903) is NOT the Well-Regulated Militia defined in the 2A

.

Again, I must disagree with your interpretations TG. "The Militia" is, in fact, every civilian capable of bearing arms. I'll let others speak on this subject:

"I think the truth must now be obvious that our people are too happy at home to enter into regular service, and that we cannot be defended but by making every citizen a soldier, as the Greeks and Romans who had no standing armies; and that in doing this all must be marshaled, classed by their ages, and every service ascribed to its competent class."
--Thomas Jefferson to John Wayles Eppes, 1814.

"The great object is, that every man be armed."
-- Patrick Henry

"That the people have a Right to mass and to bear arms; that a well regulated militia composed of the Body of the people, trained to arms, is the proper natural and safe defense of a free State..."
-- George Mason

"... who are the militia, if they be not the people of this country...? I ask, who are the militia? They consist of now of the whole people, except a few public officers."
-- George Mason Elliot, Debates at 425-426

Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ... the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people. "
-- Tench Coxe Pennsylvania Gazette, February 20, 1788

Every citizen a solider
That every man be armed
Composed of the body of the people
They consist of now of the whole people
Are they not ourselves?

It doesn't get any better than that.

 

[Tennessee Gentleman]

It might be that today's militia would not be as effective in battle as one in the 18th century, but that's not a reason to nullify or reject the guaranteed right.

I think he is saying what I believe in that the militia is no more because if they were they would have all the modern military weapons available to them which they do not today. The guaranteed right he is talking about is the Right to Keep and Bear Arms apart being in a militia.

Only in the crudest sense. Police & military forces act to guard government interests. Police are to solve crimes in the civilian circles and help apprehend and prosecute offenders. ...The military's function is to fight against national enemies abroad or to repel any attempted invasion.
Neither is required to actually protect the citizens at large or any individual.

Precisely what the militia did the army and police forces do today. The militia that existed in 1789 is no more and it's lineal descendant is the National Guard. What is still true however, is the right to personal self defense.

Again, I disagree. That is NOT what he said.
He said the "fit" between today's militia and it's obstensive mission (including retaking a tyrannical gov't) could be argued because a self-armed militia could not compete with a modern army using armor, heilos and modern c3 systems.

I think when Scalia says:

degree of fit between the prefatory clause and the protected right

he is talking about the first clause of the 2A fitting with the operative clause "keep and bear arms" He is saying they don't fit together today as they did in 1789. Since there was no large standing army or professional police force in place the militia filled those needs and they don't today.

I'll let others speak on this subject:

So will I:

D. The Decline of the General Militia in America

The inclusion of the militia provisions in what became the Second and Fifth amendments proved insufficient to prevent the original ideal of the American militia from ultimately going the way of its English counterpart.

Pre-1789 American political thought had emphasized the need to enroll all citizens--or at least freeholders--for militia duty, and had rejected the idea of a "select militia," in which only a portion of the population was enrolled. Provisions that authorized the new Congress to provide for the arming and organizing of the national militia were seen as allowing it to require that all citizens possess arms of uniform caliber and conform to a standard of drill. In practice, while various administrations prepared detailed plans along those lines, Congress refused to enact them.
In 1792, Congress enacted the first (and until 1903, the last) national Militia Act. While this Act required all white males of military age to possess a rifle or musket--or, if enrolled in cavalry or artillery units, pistols and a sword--it did nothing to guarantee uniformity of calibers, fixed no standards of national drill, and failed even to provide a penalty for noncompliance. The subsequent presidential calls for detailed organization of a national citizen army went unheeded. By 1805, even Jefferson was reduced to asking for a select militia, which had been anathema even to conservatives a few years before. In a message to Congress Jefferson stated, "I can not, then, but earnestly recommend to your early consideration the expediency of so modifying our militia system as, by a separation of the more active part from that which is less so, we may draw from it when necessary an efficient corps fit for real and active service, and to be called to it in regular rotation."

Within two decades of the ratification of the Constitution, American political leaders had abandoned the original concept of the militia, and in the words of one historian, "The ideological assumptions of revolutionary republicanism would no longer play an important role in the debate over the republic's military requirements." [160]THE MILITIA AND THE CONSTITUTION: A LEGAL HISTORY by William S. Fields & David T. Hardy Military LAw Review 1992

Here is the dirty little secret about the militia and why it is no more. Except for a very few gun sub-culture folks, the American People don't want one, have no interest in one and haven't since the 1800s. That is why we pay others today to fight in our place either cops or soldiers. No judgements from me as to the civic nobility of that attitude but it is fact. We got rid of the militia and it exists no more.

"The Militia" is, in fact, every civilian capable of bearing arms.

Bill, with all due respect and no offense, but that statement today is a fiction and has been for over 100 years.

 

[maestro pistolero]

This is precisely why I wanted to avoid the topic as it gets iffy as to where you draw the line.

It's because it's where the line must be drawn that it's worthy of discussion, in my opinion. Why would that be a reason to shrink away from a topic?

 

[zukiphile]

One of Scalia's virtues as a jurist is clarity. If he wanted to write that the militia doesn't exist, it would be within his ability to write that.

We got rid of the militia and it exists no more.

This is incorrect, and has been demonstrated incorrect to this specific writer many times. One can only guess at the motivation for continuing to misstate the fact of the issue.

The militia that existed in 1789 is no more and it's lineal descendant is the National Guard.

That is incorrect. The National Guard are analogous to the organised militia, not the militia.

...the militia is no more because if they were they would have all the modern military weapons available to them which they do not today.

This incorrectly assumes that the population of the militia are defined by the arms they carry. This has never been so, and assuming that Scalia would indulge in such a poorly constructed rationale is hardly complimentary.

 

[44 AMP]

Arguments for consideration

Which is nothing more than a pool of people that the Organized Militia draws its members from and has no rights, duties or responsibilities. The Unorganized Militia (from the Militia Act of 1903) is NOT the Well-Regulated Militia defined in the 2A

I submit that while the unorganised militia is "nothing more than a pool", the individuals making up that pool do have rights, and while the duties and responsibilities are seldom taken up by individuals in this day and age, they still do exist.

The Second Amendment does not define a well regulated militia (or any other kind), it simply states that the existance of one is necessary for the security of a free state, and that is why government should not infringe on the right (of the individual, or the state) to keep and bear arms.

The unorganised militia does still exist, and even though not utilised in the manner envisioned by the Founders, it is still there.

As to the argument that private citizens with their own arms could never defeat a military armed with tanks, jets, artillery, bombers, etc, it seems valid on the surface, but when thinking about this nation, I think one needs to look deeper. The difficulty and expense our military has had overseas, facing a tiny fraction of the population, in nations without a cultural history of individual freedom, without a cultural history of legal private arms ownership, without many of the things common to our nation, has been enormous.

I think that kind of situation, in this nation, should it ever come to pass, would face the military with even larger problems, including a significant segment of the population at least tacitly supporting "insurgents", and including friends, sons and daughters of "insurgents/rebels" inside the military and in government, which would make it even more difficult for a military victory. Certainly our militia would not be likely to defeat our regular military on the field of open battle, but not all wars are won on the battlefield.

As said many times before, the mere fact that we, as individual citizens retain our right to arms, and the (at least theoretical) ability to resist a tyrannical government means that we will never need to actually to do so.

Future generations may not see things this way, and great "change" might well occur. But for now, thats the way I see it.

 

[Tennessee Gentleman]

the individuals making up that pool do have rights, and while the duties and responsibilities are seldom taken up by individuals in this day and age, they still do exist.

What rights do the members of the "unorganized militia" have. What responsibilities do they have that are defined by law (not the whims of gun owners) and why aren't they meeting them? The militia of 1789 was not optional but mandatory (except for religious reasons for a few) as was training and arms that the member was required to keep. Is this true today?

The Second Amendment does not define a well regulated militia

No, but statutes have and the first two in 1792 did and they weren't a mob with guns. Can any reasonable person think the unorganized militia spoken of in the Militia Act of 1903 is the "well-regulated militia" of 1789? If so they are poor students of history and their thoughts are nothing more than nostalgia.

A good analogy to this type of thought would be to call a random group of people who didn't know each other and who lived scattered throughout the community a football team.

A well regulated unorganized militia is a square circle and doesn't exist outside of fantasy.

Here are some unorganized militia that I have posted before:

 

[44 AMP]

well regulated seems to be the key

The unorganised militia is indeed the pool from which the material of the organised well regulated militia can be drawn. To expect "the whole body of the people, less certain officials" to be well regulated is confusing the organised with the unorganised.

Yes, the militia of 1789 no longer exists. But the same basic precursor does, the citizens of our nation. True, we would make a poor showing comparing skill and discipline against our forefathers, but the fact that is probably true doesn't invalidate the concept.

A group of individuals who don't know each other, and live scattered through out the city may not be a football team as such, but when they all show up on the field to play, then they are one. Not a good one, compared to professionals, but a team, none the less.

 

[TheManHimself]

Here's what the "militia vs. government military = unwinnable" argument misses: it doesn't matter if we can win or not. It is our right to have the ability to fight.

Unarmed, the government can force us to do whatever they want, whenever they want.

Armed, at least we can go out on our own terms.

 

[Tennessee Gentleman]

A group of individuals who don't know each other, and live scattered through out the city may not be a football team as such, but when they all show up on the field to play, then they are one. Not a good one, compared to professionals, but a team, none the less.

AMP I respect your opinion on this and I see where you are coming from but I have to be honest and say I unless we're talking TEOTWAWKI I would not want to be on that team.

Unarmed, the government can force us to do whatever they want, whenever they want.

Not if we stay involved in our government, vote and participate in the process. If we don't and the government goes another way due to our indifference all the guns in the world won't save us.

 

[maestro pistolero]

Not if we stay involved in our government, vote and participate in the process.

Of course, that is how a democracy works. We work it, and work it until, and unless it doesn't work anymore. And for 230 some years it's done pretty darn well.

One key aspect of the second amendment that's emblematic of who is actually in charge. It's a vivid reminder to the elected servants that government is by the people. We're the boss. The servants don't tell the bosses what to do, it's the other way around.

What ever the form, or non-form of the present day militia, looking at the reasoning and principles behind 2A, I can not help but see the wisdom of keeping the balance of power in the hands of citizens.

Our entire system of government rests on the balance of power. Perhaps even more important than balancing the branches of government, is balancing the power of the government with the power of the citizens. Simplistic as it may sound, those with the guns rule.

That's why I cringe a little when Tennessee Gentlemen, whom I hold in high regard, pronounces the militia, in it's entirety, deceased, or 'no more' as he put it. I certainly hope not. Even as a dormant, largely theoretical body of citizens, it's balancing effect cannot be overestimated.

 

[Tennessee Gentleman]

One key aspect of the second amendment that's emblematic of who is actually in charge. It's a vivid reminder to the elected servants that government is by the people. We're the boss. The servants don't tell the bosses what to do, it's the other way around.

Shoot the whole COTUS does that. I am not sure I see as much of that in the 2A as I do in our vote or in the separations of powers.

Simplistic as it may sound, those with the guns rule.

In our system those who vote rule.

That why I cringe a little when Tennessee Gentlemen pronounces the militia, in it's entirety, deceased, or 'no more' as he put it.

I think you need to cringe more at voter apathy and lack of citizen participation in government. That is a greater danger than the lack of a militia.

I certainly hope not. Even as a dormant, largely theoretical body of citizens, it's balancing effect cannot be overestimated.

As I told BillCA earlier, the militia today is a fiction residing in the imagination of the gun culture and nowhere else.

 

[maestro pistolero]

As I told BillCA earlier, the militia today is a fiction residing in the imagination of the gun culture and nowhere else.

Well, it resides in the constitution, TG. You can say all day long it doesn't exist, but there it is in the second amendment. And you can bet your bottom if it were truly needed, as in the case of a cataclysmic disaster, the states would raise it from the dead in a New York minute. So let's not erase it from the bill of rights just yet, shall we?

I do agree with you about the more pressing, present danger of voter apathy, and would add ignorance, misinformation to the mix.

 

[Tennessee Gentleman]

Well, it resides in the constitution, TG. You can say all day long it doesn't exist, but there it is in the Second Amendment.

But it doesn't exist in the United States anymore just like Letters of Marque.

but they didn't consider armies to be necessary to the security of a free state.

But today we do consider them essential to our freedom and thus they replaced the militias 100 years ago.

 

[Nnobby45]

We could get into another argument over exactly what kind of "arms" are protected by the 2nd Amendment here. Hopefully we can limit this discussion to "portable firearms" and not crew-served weaponry or artillery/RPG type weapons.

I'm for that, Bill.

On Pax's old site (Armed Citizen), now gone forever, we discussed, with regularity, whether the intent of the 2A was to put restrictions on anything at all.

Discussions involving tactical nuclear weapons that could be stored under our beds was a regular feature with heated opinions on both sides of the argument. Hey, for the record, I was opposed to the individual nuclear weapons interpretation, and drew the line at having my own M1 Abrahms.

 

[JohnKSa]

Heller is more of a theoretical win than a practical one. As nearly as I can tell it prevents a ban of an entire very GENERAL class of firearms but offers no protection against a ban of firearms within that general class having specific characteristics.

The classes could be as general as "handgun" and "long gun", probably as specific as "handgun", "rifle", "shotgun" and maybe even as specific as "handgun", "repeating handgun", "rifle", "repeating rifle", "shotgun", "repeating shotgun" but certainly not more specific than that.

A "repeating" firearm is a single barreled firearm that can be fired more than once without reloading. I could see a very open interpretation of Heller protecting the right to own a repeating firearm in any of the general categories, but I can't see it getting specific enough to protect different types of repeaters (pump, lever, semi-auto) or even preventing "reasonable" restrictions on ammo capacity .

Anything more than that will require another case and another ruling. Frankly, I'm not particularly interested in seeing a case along those lines put before the SCOTUS because I'm not at all sure how the court would rule on protecting more specific types of firearms...

 

[BillCA]

Tennessee,

This is one area where we have disagreed before and I can see that neither of us is going to be persuaded to change their mind.

I'm sure a lot of you were taught in school that the U.S. Constitution is remarkable because it has a "balance of powers" amongst three branches of government. This is true to a point, however it is actually a balancing act against four branches of government. We The People are the fourth branch as we have an active, participatory role in our government. We have the right to vote, speak out on issues, go to Congress with petitions, to freely assemble to discuss or listen to others speak out and, lastly, we have a right to use force of our own should the government refuse to uphold the laws or the constitution. This has often been referred to as the 3-box rule: The soap box, the ballot box and the ammo box.

TG, while many ascribe to the notion that "the militia" is a dead letter for various reasons, it is still the one thing that puts fear into politicians and military commanders alike. The 1903 federalization of the select or organized state militias into the National Guard had zero impact on "the militia" which remains the body of the people. Subsequent acts have blurred the role of the select militia until it is nearly the same as the regular army. But the people are still "the militia".

The founders recognized the potential of every citizen to be a solider when needed, but that would require training. Jefferson proposed that military instruction be a part of every school ciriculum and started as early as possible. Unfortunately the people were busy enough hacking out a living, in a bare wilderness in some cases, and the added burden of even one day of monthly drills appealed not.

Scalia is right in the sense that the right to keep and bear arms is not dependent upon militia exercise. However, the existence of a militia does depend upon an armed citizenry. And even if a few men armed with hunting rifles cannot stop a tank, they can certainly slow the progress of its supporting troops and make occupation an expensive proposition.

Militia at home during WW-II
During WW-II I know of two left-coast "actions" in which the un-organized militia turned out. One was around Half-Moon Bay California. A coastal resident spotted a long "tapered cylinder" shape in the water just before dark and telephoned police. It was spotted and believed to be a submarine. Over 200 people came out with hunting rifles of all types. A former WW-I army captain placed men every 200 yards and dispersed some others around the entrance to the bay. By midnight a pair of boats went out and could not find it using searchlights and by 3am the boats retired. The tide came in just before dawn and people began to see an immense shape on the water in the distance. By this time, a Coast Guard cutter from San Francisco was cautiously coming down the coast and boats sent out to guide it. By 7am it was identified as a dead whale. So much for glorious action.

Second was near Santa Barbara. I think it was early '42 in the early evening, a half-hour after dark, and explosion rocked the shore near a then existing oil refinery. Minutes later another explosion damaged an oil derrick. Several volunteer coastwatchers spotted the muzzle flash of a Japanese submarine about a mile offshore. Phones rang and within 30 minutes hundreds of armed volunteers lined the shore area. The Japanese submarine I-17, under the command of Commander Nishino Kozo, had fired 16 shots and many fell short into the surf before the submarine departed and submerged. In April of '42 the IJN submarine I-25 fired on Fort Stevens, Oregon at the mouth of the Columbia river. These incidents, along with the sinking of freighters of the west coast, increased fears of an impending invasion[1]. The result was that the governors of all three west coast states called forth the militia (not the National Guard) to act as coast-watchers, guard bridges and waterways as well as to secure vital infrastructure like power plants. And many of these volunteers brought their own rifles along.

The U.S. went into Iraq, a country with only about 5,000 square miles more territory than California and a population of 5 million less (28M vs. 33M). This conflict has engaged a quarter million troops for six years. Plus 3 divisions from the U.K. and 35 other countries. An estimated 24,000 "insurgents" have been killed and an unknown number still exist, but their numbers have been seriously reduced.

By comparison, the American Revolution was fought by barely ten percent of the population by several accounts. If just 1% of Californians fought an invasion or tyrannical government that would be 338,000 people. Just 3% would be over 1 million and 5% would be close to 1.7 million. Out of such pools come former soldiers, police officers and others with organizational and command experience. The U.S. military's total active and reserves total just about 2.9 million (not all combat qualified).

The military does not have sufficient force to put down a seriously angered U.S. population. It is debatable if they could manage against one or two of the larger states.

The sleeping giant of the fourth branch of government is The People who, as long as they have any spirit of liberty and good arms, will keep the power hungry from taking over.


[1] After the war, one high ranking IJN officer, when asked about invasion plans, said his country was well aware that there was a high density of armed citizenry in America, even state championships for private citizens in the use of military rifles. But the Japanese were not fools enough to set foot in such quicksand.

 

[zukiphile]

Yes, the militia of 1789 no longer exists.

The press and state sanctioned churches of that period have passed, but this doesn't mean that COTUS rights have an expiration date.

The trope that revolutionary militias no longer exist ignores both the law and the meaning of the word.

More importantly, the idea that we do not benefit from the liberty of the 2d Am. simply because we have other liberties as well ignores the frailty of written constitutions. Unless the affection for freedom is the genuine constitution of a people, the written form of their constitution will not matter. The purpose of this civil liberty is understood best by people who've been deprived of it, like those who wrote the 2d Am.

How we burned in the prison camps later thinking: What would things have been like if every police operative, when he went out at night to make an arrest, had been uncertain whether he would return alive? If during periods of mass arrests people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever was at hand? The organs would very quickly have suffered a shortage of officers and, notwithstanding all of Stalin's thirst, the cursed machine would have ground to a halt.

Or, as Mao more pithily wrote:

Political power grows out of the barrel of a gun.

No student of history can regard the state as purely benign. Our system recognises this, and provides many ways to oppose the power of the state, including the vote, the press and access to courts. While calling for insurrection here and now is strictly the province of what nearly all of us would regard as kooks, the impulse to divest people of any of the BOR should be recognised as illiberal.

 

[maestro pistolero]

These incidents, along with the sinking of freighters of the west coast, increased fears of an impending invasion[1]. The result was that the governors of all three west coast states called forth the militia (not the National Guard) to act as coast-watchers, guard bridges and waterways as well as to secure vital infrastructure like power plants. And many of these volunteers brought their own rifles along.

And these were hardly cataclysmic events, as I discussed earlier.

Great posts Bill; Zukiphile. I can't understand TG's narrow view on this subject. He has contributed so much good stuff here. I still regard his viewpoint highly.

Short of any constitutional convention, My gut tells me me are on solid constitutional ground with our semi-automatics, and that it is only a matter of time before it is codified in the courts.

I am not naive enough to think that congress won't try or maybe even succeed with another ban, but that unhappy occurrence would provide the rope with which they hang themselves, politically, and legally. The DC ban took 34 years to undo. But in the end, it was the extreme nature of the law which made it a softer target.

 

[gc70]

As I told BillCA earlier, the militia today is a fiction residing in the imagination of the gun culture and nowhere else.

TG declares the demise of the militia because its current form does not fit his expectations. The militia certainly does not exist today as it did in 1789, nor should it. The militia is nothing more than people willing to protect and defend their community. Today, the militia is silent and unorganized, but it exists, whether formally acknowledged and blessed by government or not.

The post-Katrina picture that TG derisively posted proves the existence of the militia. There were numerous news reports after Katrina about neighbors who banded together and defended their neighborhoods against the predations of looters. Although they lacked a pre-defined chain of command and the formalizations of which military organizations are so fond, those citizens organized themselves and protected their communities.