Bartholomew Roberts
Moderator
http://www.ca7.uscourts.gov/tmp/O01FG6VB.pdf
"One function of the Second Amendment is to prevent the national government from interfering with state militias. It does this be creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The 14th Amendment was ratified in 1868 making that rather than 1793 the important year for deciding what rules must be applied to states.)"
I think that one paragraph pretty much sums up the best argument the antis will be able to make regarding incorporation of the Second Amendment. They first adopt the dissenting view that the individual right is subordinate to the militia, they then argue that states should be granted special deference on this basis (and there are some lovely paragraphs on the glories of federalism in the opinion - it is my fervent hope that they still have the same bite in them when it isn't guns being discussed). Finally when they look at the historical context for interpretation, they will try to use 1868 (Southern states writing restrictive gun laws to disarm newly freed blacks) instead of 1793.
All in all, I don't think it is a winning argument; but you are witnessing the retooling of the old collective rights argument for the antis "There is an individual right but it is only there to allow a state militia so the states can do whatever they want."
Additional insightful commentary from the Volokh Conspiracy here:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243963229
"One function of the Second Amendment is to prevent the national government from interfering with state militias. It does this be creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The 14th Amendment was ratified in 1868 making that rather than 1793 the important year for deciding what rules must be applied to states.)"
I think that one paragraph pretty much sums up the best argument the antis will be able to make regarding incorporation of the Second Amendment. They first adopt the dissenting view that the individual right is subordinate to the militia, they then argue that states should be granted special deference on this basis (and there are some lovely paragraphs on the glories of federalism in the opinion - it is my fervent hope that they still have the same bite in them when it isn't guns being discussed). Finally when they look at the historical context for interpretation, they will try to use 1868 (Southern states writing restrictive gun laws to disarm newly freed blacks) instead of 1793.
All in all, I don't think it is a winning argument; but you are witnessing the retooling of the old collective rights argument for the antis "There is an individual right but it is only there to allow a state militia so the states can do whatever they want."
Additional insightful commentary from the Volokh Conspiracy here:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243963229
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