Well Regulated

BTMJ, your argument is spot-on. Your books amendment does not protect Dr. Seuss or 50 Shades of Gray while allowing the ban of all political books not approved by the government.

The militia clause of the 2nd Amendment strengthens the amendment by including weapons of war, not just sporting rifles. But there is no requirement that you be identified as a member of the militia to own the guns. One might not actively join the militia until called. When called, they need to have the weapons of war.
 
Ask an anti if they know what a regulator clock is. "Regulated" in well-regulated militia and a regulated clock has the same meaning. AFAIK Congress hasn't ever enacted a law banning regulator clocks.
 
SCOTUS was wrong in Heller in that you can't separate the militia from the 2nd Amendment.
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I am not comfortable making a statement that the court was wrong. I am not a lawyer. I have found that many lawyers are quite comfortable making assertions and speculations as if they are facts, and using language which conveys great confidence. This is one of the reasons that scientists and engineers often have such a hard time understanding lawyers.

I understand you opinion however, and I can sympathize with it. But then you make the statement

Heller wasn't a victory; it was a distraction.
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I disagree with that. True, it was not a complete absolute victory, but such victories are rare.

I remember being a gun owner in the 80's and 90's. If you would have told me in 1988 that within my lifetime there would be shall-issue CCW laws in almost every state, I would dismissed it as a fantasy. If you would have told me that the Supreme Court would someday rule that the 2nd amendment recognized an individual right to keep and bear arms, I would have been very skeptical. The wind was blowing in a very different direction back then. We have come very far indeed. Let's not snatch defeat from the jaws of victory with self-defeating pessimism.
 
I partially agree with Levant. And that means I also disagree with Justice Scalia. In Heller Mr. Scalia wrote that the RKBA is subject to "reasonable" regulation. I disagree with this, and the basis is the Bill of Rights itself. There is nothing in the 2nd Amendment to suggest, even in the most indirect fashion, that the RKBA might be subject to even the most reasonable of regulations. Regulation = infringement, and the operative clause of the 2A is an absolute, complete, total prohibition against infringement (i.e. regulation) of the RKBA.

Conversely, in the 4th Amendment, the Founders demonstrated that they could use the 'R' word when they chose, by protecting us against "unreasonable" searches and seizures. Once the law was written that way, it befell the courts to determine what is and what is not "reasonable" vis-vis searches and seizures. So they were familiar with the word, and the concept.

But the Founders did not write that the RKBA shall not be "unreasonably" infringed. They wrote that it SHALL NOT BE infringed ... period.

I also disagree with the notion that the 2A doesn't protect my right to own my very own, personal F-16 equipped with nuclear-armed missiles, but since I can't afford the price of admission even by saving my lunch money for a year, I'm less worried about that one.
 
I partially agree with Levant. And that means I also disagree with Justice Scalia. In Heller Mr. Scalia wrote that the RKBA is subject to "reasonable" regulation. I disagree with this, and the basis is the Bill of Rights itself. There is nothing in the 2nd Amendment to suggest, even in the most indirect fashion, that the RKBA might be subject to even the most reasonable of regulations. Regulation = infringement, and the operative clause of the 2A is an absolute, complete, total prohibition against infringement (i.e. regulation) of the RKBA.
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USSC has already addressed that at least somewhat in the 1936 Miller decision -- military weapons are the MOST protected and subject to the least restrictions, not the most restriction. That is what the prefatory clause is all about.
 
Keep in mind that nearly everything the Founders said and wrote suggests (if not explicitly states) that the right to bear arms was a safeguard against tyrannical government. I doubt they wanted the right to bear arms to be subjected to strict regulations from the very entity it was designed to protect us from.
 
zxcvbob said:
USSC has already addressed that at least somewhat in the 1936 Miller decision -- military weapons are the MOST protected and subject to the least restrictions, not the most restriction. That is what the prefatory clause is all about.
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But if you read the full majority decision for Heller (both the actual holding and the dicta), you'll see that Justice Scalia argues right around a right to keep and bear "military" weapons and turns it into a right to keep and bear those "civilian" (non-military) weapons in common use. And he specifically states that this (in his opinion) is not contrary to Miller.
 
I had some time to look up the Heller decision.

First, as to the relationship between the militia clause and the main body of the amendment:

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
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[Emphasis added]

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.
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[Emphasis added]
 
Samnavy:
Be careful who you use that argument with. There are actually a significant number of folks who would have no problem with your examples and we already have watered down versions of them. Consider the mileage mandates and "smart growth" just as two examples.

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AB: It sounds like the basic reasoning is that the types of weapons that one would expect the militia to bring with them when called out were roughly the same as what they might already have for hunting, home defense etc and therefore those were the kinds of weapons being protected. What sorts of weapons would the modern militia leaders expect people to show up with if they were needed today? Obviously AR-15 type weapons with normal capacity magazines would be very welcome as would be scoped hunting/sniper rifles. In short, it sounds like Scalia was trying to head off the "so everyone now has the right to a nuclear weapon" argument.

Unlike some, I don't think the question is entirely academic. Anyone who has been paying attention to our budget problems can see that we won't be able to maintain anything like our current military forever.

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United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.
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I would agree with this statement IF Gura's qualifying clause of (essentially) "in common use or WOULD BE in common use had they not been banned."

There are very, very few weapons that would not meet the "Common Use" criteria under "Gura's Clause". Certainly all "small arms" of every type would be in common use, were they legal... they were until 1986.
 
BMTJ, CCWs are just a form of gun registration. In fact, in many states you have to register exactly what guns you own and add them to your right-to-bear-arms license.

Every time the government gives us a token of our rights and we accept it, then we accept and confirm that our rights are gifts from Washington.
 
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