The 2nd Amendment.

[Havelock]

No, My opinion is in the legal majority. You can pass laws relative to guns all you like. Inevitably, some of those laws will be found unconstitutional in the courts, and others will not. Abatis has accurately laid out the legal history of arms in the U.S. elsewhere in this thread. American society cannot survive if it ignores its own Constitution.

I think it's accurate to say that your opinion would likely align with the majority of the Supreme Court given such precedent as we have -- which isn't all that much. But of course that can change. As I said in my most recent reply to him, Abatis' history is accurate in most respects, but after all it represents only one of a number of readings.

I know it complicates the debate somethin' fierce to acknowledge this, but disagreeing with your and Abatis' interpretations doesn't necessarily constitute ignoring the Constitution.

Cheers.

 

[trapdoor]

I think it's accurate to say that your opinion would likely align with the majority of the Supreme Court given such precedent as we have -- which isn't all that much. But of course that can change. As I said in my most recent reply to him, Abatis' history is accurate in most respects, but after all it represents only one of a number of readings.

I know it complicates the debate somethin' fierce to acknowledge this, but disagreeing with your and Abatis' interpretations doesn't necessarily constitute ignoring the Constitution.

Cheers.

We have the same amount of precedent supporting my view on the 2nd Amendment as we have supporting the liberal view for the social safety net. Both are held up via 5-4 decisions of the Supreme Court, the sole difference between the two being the passage of time.

 

[Abatis]

You know Abatis, I've read maybe two dozen of your posts so far on these boards. Maybe my memory is faulty, but I can't think of a single one that didn't have to do with guns and the second amendment.

It is just my favorite topic to debate; been enjoying it on-line since 1993, started in talk.politics.guns on USENET

You seem to have a fairly extensive – although I would say tendentiously interpreted – knowledge of our legal tradition as it relates to gun rights. I give you credit for that; at least you're got some studied and well-constructed foundation for your arguments. That's rare enough.

Reasoned debate was much easier to find in the 90's and first half of the 2000's. Back then the pro-individual right side was the losing side, all the case law (lower federal court, ignoring SCOTUS) was on the "militia right" and "state's right" and general "collective right" camps. My arguments have remained consistent as academia and the courts have caught up.

I have heard it all from the anti-gun side and actually lament that good legal debate can't be found or maintained for too long. The anti-gun side has become a mere shell of itself and become more strident and angry as the flesh has been stripped off their positions.

So... what? What is it you hope to accomplish with your energetic advocacy?

Just to provide a alternate argument to the gruel put out by the anti-gunners. I have no hope of swaying the particular poster I am rebutting but I post for the minds of the interested lurkers / undecideds.

Do you have any ideas about constitutional law that don't relate to guns?

Of course, it's just that gun rights is the ultimate indicator of one's allegiance to Constitutional principles. Anytime someone goes on about a 'granted' right, it is obvious that the person's entire foundational understanding is corrupted and suspect.

Do you have a vision for the proper role of government in areas not related to the 2nd amendment?

Sure but i enjoy this topic. I uphold the tenet of conferred powers and retained rights to all operations of government and can discuss all areas of government and the Constitution but anymore my time is so limited for this diversion, I need to be selective and I chose to discuss what I like . . . It amazes me the post counts that some people amass.

Anyway, let's get back to the specific topic and let's start from a basic premise. You've said that the government derives it's power from the consent of the governed and that as we the people never surrendered any right to bear arms, the 2nd amendment is essentially meaningless as it relates to permissible restrictions on guns, at least on guns that are not “weapons of war.” Yes?

It was less important back then but in modern times, post 14th Amendment, post Slaughterhouse, post examining everything through the lens of "due process", the object of the 2nd Amendment has become a benchmark of the protection sphere of the right to arms. The protection sphere of the Amendment has been established according to what types of arms would be useful to a militia of the present day and able to be used effectively for the common defense in the engagements that a militia would be expected to face (See US v Miller, DC v Heller).

Well, that first bit about government power flowing from the consent of the governed is inarguably true on some level. Of course the arguments over how to interpret that as a practical matter have been going on since before the Constitution was ratified.

I have understood the issue (as "interpreting" the Constitution goes) to be set-out by SCOTUS (see Marbury v Madison).

Obviously not everyone agrees with what I take to be your position, i.e. that the federal government's powers are sharply limited to precisely what is literally spelled out in the Constitution.

Well, the "living constitution" is a favorite of the left because they recognize that much of their communitarian, second and thrid generation rights agenda is not supported by the Constitution and is actually thwarted by it (as Obama recognized in that [in]famous public radio interview).

But perhaps I misspeak, because I suspect that you're not that acutely concerned with limiting governmental power in connection with the preponderance of the federal government's business. For example, and please correct me if I'm wrong, I doubt that you're overly concerned about the fact that the feds limit my 1st amendment rights by not allowing me to set up my own radio station and broadcast at whatever strength and frequency I feel is appropriate.

You would be surprised but I do believe there is a federal interest in regualting broadcast though.

Fact is, the government limits rights and, more to the point, the means of effecting those rights all the time. Just about everyone sees that as a legitimate role of government and necessary to balance competing liberties, competing functions of government, and the public good. Well, they see it most of the time, anyway.

But when the subject is fundamental liberty interests the actions of government are held to a higher standard that is not subject to subjective whims of the majority at a particular moment in time.

Let's not forget that “insure domestic tranquility” and “promote the general welfare” are right up there with “secure the blessings of liberty” in the preamble.

If the Preamble were the primary directive and anything comprehended that could facilitate promoting the general welfare is allowed, why then enumerate powers and define duties? The act of ordaining and establishing the Constitution would be pointless surplusage. The Preamble is a directive only to the extent that the powers conferred allow; the express enumeration is what secures the blessings of liberty.

You make decent arguments and your interpretations are plausible. But they're hardly uncontested. They're not gospel and bluster doesn't make them so. Fact is, the Supreme Court really didn't have all that much to say about the 2nd Amendment prior to Heller and McDonald.

Well, my arguments are uncontested by SCOTUS. SCOTUS has been boringly consistent for going on 140 years that the right to arms is an original, pre-existing right that is not granted, given, created or established by the 2nd Amendment, thus the existence of the right is not in any manner dependent upon the Constitution.

Supreme Court, 1876: "The right . . . of "bearing arms for a lawful purpose" [that of self-defense from the KKK by ex-slaves in Louisiana] . . . is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . ."

Supreme Court, 1886: "the right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . . "

Supreme Court, 2008: "it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in . . . 1876 , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”
​

It is those who are arguing an "interpretation" of the 2nd that makes the existence / exercise / protection of the right to arms be conditioned or qualified by the declaratory "militia" clause who are ignoring, dismissing and yes, "contesting" SCOTUS.

It's accurate enough to say that the Court has never explicitly disallowed any of the legal arguments you're making. However, to imply that the Court has never wavered in support of your interpretations is to overstate the breadth and depth of existing case law. In short, you claim too much.

And I just did it again and I keep doing it and I'm never proven wrong.

And frankly some of your positions are, well, let's just say they're not universally held to be settled law. Your argument that “weapons of war” are properly denied to citizens who aren't members of the military because the Constitution explicitly gives the federal government and only the federal government the right to wage war is clever, but there's really nothing “originalist” about it.

The supremacy clause is certainly "originalist" and I would enjoy reading any argument you would present that the federal government doesn't possess field preemption on the weapons of wide / indiscriminate / open warfare.

For example, contrary to your suggestion, Letters of Marque and Reprisal issued by the federal government did not authorize ship owners to arm their vessels with cannon, they merely authorized armed vessels to take enemy prizes and dispense with the captured ships, cargo, and crew according to certain rules. In truth, in the late 18th and early 19th century there were no legal strictures stopping any U.S. ship owner from outfitting his vessel with whatever arms he wished.

The actual action of the reservation of power was not my point. My point was that in modern times, "the same principle allowing government to place restrictions on . . . those weapons of war can be applied to restrictions over citizens owning weapons of modern open / indiscriminate warfare."

How does your argument fit into your 2nd Amendment argument? Are you arguing against my point just to be contrarian or do you really believe citizens could outfit an armed ship with cannon and sail it up and down the Potomac or Delaware but he couldn't own a gun unless he was in the militia?

The founders simply didn't make this distinction between “weapons of war” and “arms” that you want to make.

Well, the Supreme Court certainly has and that again, was my point. That even though the framers couldn't envision the modern weaponry in both the government and civilian hands, the principles that certain conferred powers rest on, can be extended legitimately to govern modern circumstances (and remain true to "original intent").

As for Madison's calculations regarding the proper ratio of armed citizens to regular soldiers, they're interesting no doubt. But the passage of time and advances in weapons technology has rendered them moot, at least.

Perhaps but that doesn't alter the original general milita principle. An armed citizenry is an inseperable component of the republic the framers established.

The Catch-22 that folks who want to argue for a well-armed populace's ability to resist tyranny find themselves in is that a sufficiently-popular uprising will invariably secure the arms necessary to resist a central authority and an unpopular uprising can't possibly sustain itself with a handful of folks even if they're extravagantly armed with civilian weapons. Our experience in Iraq illustrates this point as well as any other uprising in modern history.

And that's fine. I would rather not be around for the nation "post uprising" . . . It's funny that leftists who admonish "insurrectionist model" gun rights people, that they would be Tomahawked, strafed, droned and nuked and whatever remains gets bulldozed into mass graves, never seem to recognize that an administration who would prosecute a war against the citizens willing to fight them and die, isn't going to hold regular elections the following November, to measure the "approving" citizen's consent and abide by the results . . . Why the hell would it bother? So you be sure to enjoy that, OK? LOL . . .

Well, I suppose we could argue legal arcana till the cows come home.

I suspect that like all the rest, you will resist and evade discussing the legal arcana at all costs and instead want to discuss . . .

But as I suggested to trapdoor in a curiously-neglected reply elsewhere in this thread, this is ultimately a political issue. The Court always follows public opinion to one degree or another, after all.

I am under no delusion that your side will win someday, that a Court will be seated that will upend the rights theory that the Court has operated under for over 200 years and legitimize the forced disarmament of the citizenry. The constitutional ignorance is being cultivated and a Pavlov aversion to guns is being instilled in the children. . . It will be successful and you should be congratulated for your efforts.

You may believe passionately in the righteousness of your cause, I don't know. But you should understand that your “inviolable” rights don't mean squat unless there's a popular consensus that your particular rights are worthy of being recognized and protected. Impeccable logic and legal reasoning – assuming that you can in fact demonstrate them – won't win the day. Be as bombastic and intransigent as you like, it won't matter one bit if and when you lose the battle for popular recognition and approval. On that day, if it comes, all of your passion and cleverness will count for nothing. You'll simply be cast aside and society will move on without you. You'll conform or you'll be marginalized one way or another. That's just the way it is and always has been.

Sorry.

Well, with the political failures of the gun control crowd I think I will just keep on keeping on. The rabid anti-gun left wasted whatever political capital it cultivated from the Sandy Hook massacre . . . What the general population wanted (and what was actually achievable) was abandoned so anti's could poke gun owners and the NRA in the eye with a stick. If anyone is failing at the political game it is your side who just can't keep your hate-filled divisive, authoritarian and anti-constitutional character, hidden.

You don't owe me an apology, those Democrats that shut reasonable voices out of the legislative process, owe you an apology.

 

[freyasman]

It is just my favorite topic to debate; been enjoying it on-line since 1993, started in talk.politics.guns on USENET



Reasoned debate was much easier to find in the 90's and first half of the 2000's. Back then the pro-individual right side was the losing side, all the case law (lower federal court, ignoring SCOTUS) was on the "militia right" and "state's right" and general "collective right" camps. My arguments have remained consistent as academia and the courts have caught up.

I have heard it all from the anti-gun side and actually lament that good legal debate can't be found or maintained for too long. The anti-gun side has become a mere shell of itself and become more strident and angry as the flesh has been stripped off their positions.



Just to provide a alternate argument to the gruel put out by the anti-gunners. I have no hope of swaying the particular poster I am rebutting but I post for the minds of the interested lurkers / undecideds.



Of course, it's just that gun rights is the ultimate indicator of one's allegiance to Constitutional principles. Anytime someone goes on about a 'granted' right, it is obvious that the person's entire foundational understanding is corrupted and suspect.



Sure but i enjoy this topic. I uphold the tenet of conferred powers and retained rights to all operations of government and can discuss all areas of government and the Constitution but anymore my time is so limited for this diversion, I need to be selective and I chose to discuss what I like . . . It amazes me the post counts that some people amass.



It was less important back then but in modern times, post 14th Amendment, post Slaughterhouse, post examining everything through the lens of "due process", the object of the 2nd Amendment has become a benchmark of the protection sphere of the right to arms. The protection sphere of the Amendment has been established according to what types of arms would be useful to a militia of the present day and able to be used effectively for the common defense in the engagements that a militia would be expected to face (See US v Miller, DC v Heller).



I have understood the issue (as "interpreting" the Constitution goes) to be set-out by SCOTUS (see Marbury v Madison).



Well, the "living constitution" is a favorite of the left because they recognize that much of their communitarian, second and thrid generation rights agenda is not supported by the Constitution and is actually thwarted by it (as Obama recognized in that [in]famous public radio interview).



You would be surprised but I do believe there is a federal interest in regualting broadcast though.



But when the subject is fundamental liberty interests the actions of government are held to a higher standard that is not subject to subjective whims of the majority at a particular moment in time.



If the Preamble were the primary directive and anything comprehended that could facilitate promoting the general welfare is allowed, why then enumerate powers and define duties? The act of ordaining and establishing the Constitution would be pointless surplusage. The Preamble is a directive only to the extent that the powers conferred allow; the express enumeration is what secures the blessings of liberty.



Well, my arguments are uncontested by SCOTUS. SCOTUS has been boringly consistent for going on 140 years that the right to arms is an original, pre-existing right that is not granted, given, created or established by the 2nd Amendment, thus the existence of the right is not in any manner dependent upon the Constitution.

Supreme Court, 1876: "The right . . . of "bearing arms for a lawful purpose" [that of self-defense from the KKK by ex-slaves in Louisiana] . . . is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . ."

Supreme Court, 1886: "the right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . . "

Supreme Court, 2008: "it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in . . . 1876 , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”
​

It is those who are arguing an "interpretation" of the 2nd that makes the existence / exercise / protection of the right to arms be conditioned or qualified by the declaratory "militia" clause who are ignoring, dismissing and yes, "contesting" SCOTUS.



And I just did it again and I keep doing it and I'm never proven wrong.



The supremacy clause is certainly "originalist" and I would enjoy reading any argument you would present that the federal government doesn't possess field preemption on the weapons of wide / indiscriminate / open warfare.



The actual action of the reservation of power was not my point. My point was that in modern times, "the same principle allowing government to place restrictions on . . . those weapons of war can be applied to restrictions over citizens owning weapons of modern open / indiscriminate warfare."

How does your argument fit into your 2nd Amendment argument? Are you arguing against my point just to be contrarian or do you really believe citizens could outfit an armed ship with cannon and sail it up and down the Potomac or Delaware but he couldn't own a gun unless he was in the militia?



Well, the Supreme Court certainly has and that again, was my point. That even though the framers couldn't envision the modern weaponry in both the government and civilian hands, the principles that certain conferred powers rest on, can be extended legitimately to govern modern circumstances (and remain true to "original intent").



Perhaps but that doesn't alter the original general milita principle. An armed citizenry is an inseperable component of the republic the framers established.



And that's fine. I would rather not be around for the nation "post uprising" . . . It's funny that leftists who admonish "insurrectionist model" gun rights people, that they would be Tomahawked, strafed, droned and nuked and whatever remains gets bulldozed into mass graves, never seem to recognize that an administration who would prosecute a war against the citizens willing to fight them and die, isn't going to hold regular elections the following November, to measure the "approving" citizen's consent and abide by the results . . . Why the hell would it bother? So you be sure to enjoy that, OK? LOL . . .



I suspect that like all the rest, you will resist and evade discussing the legal arcana at all costs and instead want to discuss . . .



I am under no delusion that your side will win someday, that a Court will be seated that will upend the rights theory that the Court has operated under for over 200 years and legitimize the forced disarmament of the citizenry. The constitutional ignorance is being cultivated and a Pavlov aversion to guns is being instilled in the children. . . It will be successful and you should be congratulated for your efforts.



Well, with the political failures of the gun control crowd I think I will just keep on keeping on. The rabid anti-gun left wasted whatever political capital it cultivated from the Sandy Hook massacre . . . What the general population wanted (and what was actually achievable) was abandoned so anti's could poke gun owners and the NRA in the eye with a stick. If anyone is failing at the political game it is your side who just can't keep your hate-filled divisive, authoritarian and anti-constitutional character, hidden.

You don't owe me an apology, those Democrats that shut reasonable voices out of the legislative process, owe you an apology.

Damn good post!!!

 

[Woolleybugger]

One of the more interesting posts on this topic that I have ever read. I too agree that the founders took arms as a given, something that was so universally accepted that it did not need much thought or care in the constitution. The 2nd then is clearly only about the militias and the fear that the federal government will interfere with states arming their own militias. Since that appears to be your conclusion given your statement that gun rights pre-date the constitution and that the 2nd does not clearly state anything but the right to arm militias, how can you then create a legal mandate for this right outside of the wording of the 2nd? In order to do this, you have to dig deep like Scalia did in Heller and make up law. He made up an amendment that never existed because they just decided it was too damn obvious to include in the BOR. I think this is very consistent with originalism but it breaks a cardinal rule of the originalists by definition does it not? The only way you could defend it is in the 9th amendment but then, that amendment is so broad it could include any right whatsoever can it not?

 

[Woolleybugger]

Using case law from times past in regards to new advances in technology is going to be a huge mistake for us if this continues either in the gun debate or in other areas of life. In 1942, the state of arms was pretty much devoted to fighting in land wars, hunting, self-defense and the technology was still pretty static. We are now in an era when you can make a gun out of plastic using a printer. Now imagine when someone comes up with an entirely new weapon that has enormous power and it becomes available far in front of legislation to restrict it. Heller and other cases will seem like anchors upon us. I believe they are already keeping us from stopping violence and death in our nation. But this is the system we have, the constitution is becoming more and more obsolete every day IMHO.

 

[EatTheRich]

__________________

" . . . if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,-- almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-- is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, . . ."

Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942)
​

__________________
​

Clearly in this case the court is not arguing based on the text of the constitution, but rather based on the policy outcomes of various interpretations. I.e., this given interpretation is wrong because it would prevent Congress from banning anti-tank weapons. I imagine the only reason this is acceptable to you is that you agree with the policy outcome ... which undermines your position as a beleaguered defender of absolute fidelity to the constitution.

And that's fine. I would rather not be around for the nation "post uprising" . . . It's funny that leftists who admonish "insurrectionist model" gun rights people, that they would be Tomahawked, strafed, droned and nuked and whatever remains gets bulldozed into mass graves, never seem to recognize that an administration who would prosecute a war against the citizens willing to fight them and die, isn't going to hold regular elections the following November, to measure the "approving" citizen's consent and abide by the results . . . Why the hell would it bother? So you be sure to enjoy that, OK? LOL . . .

You could say that the government waged a "war" against the Branch Davidians ... what you don't seem to recognize is the difference between a generalized rebellion by the bulk of the populace, and a putsch attempt by a disgruntled handful on the fringe ... which is exactly the distinction made in the comment you were replying to.

 

[fairsheet]

This is a fascinating thread. I'm not here to opine as to the Constitutional questions. I continue to believe that our Constitution is what we make of it, in any particular time. Therefore, a lot of this legalistic ti t-for-tattism is but wheel spinning. And on that note, no matter what we might think about this Court, the 2nd-Amendment, and Scalia..the fact remains that at the time of Heller v. D.C. the majority of Americans preferred the "individual right" angle over the "collective right angle". I imagine that's true, even today.


So anyway...I prefer looking at this one from my political-economy perspective. It seems to be popular wisdom that American Man of yore, was heavily armed. But, that's really not the case - not in colonial times and especially in the pre-Civil War 19th-century. Guns were expensive, no one who had one, had any more than he felt he absolutely needed.

Smith and Wesson, Colt, etc. made fortunes supplying weapons for the Civil War. Once that one ended, they were faced with seeing their market dry up, SO they created out of whole cloth, the "personal protection" meme.

As with most all things, follow the money.

 

[trapdoor]

This is a fascinating thread. I'm not here to opine as to the Constitutional questions. I continue to believe that our Constitution is what we make of it, in any particular time.

That is the most dangerous belief plaguing the United States today.

So anyway...I prefer looking at this one from my political-economy perspective. It seems to be popular wisdom that American Man of yore, was heavily armed. But, that's really not the case - not in colonial times and especially in the pre-Civil War 19th-century. Guns were expensive, no one who had one, had any more than he felt he absolutely needed.

Oh bull. Most homes had guns, and multiple guns if they had multiple gun users. This argument is the same argument fallaciouosly made in Michael Bellesiles "Arming America," an argument that was debunked so thoroughly by three different peer reveiws that Bellesiles lost his teaching post and was forced to give up an award he received for writing the books.[/quote]

 

[Abatis]

I too agree that the founders took arms as a given, something that was so universally accepted that it did not need much thought or care in the constitution.

Wonderful, but your subsequent statements prove you don't understand what that truth means.

The 2nd then is clearly only about the militias and the fear that the federal government will interfere with states arming their own militias.

Your "state's right" theory was introduced into the federal court system in 1942:

"It is abundantly clear . . . that this [2nd] amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power."

U.S. v. Tot, 131 F.2d 261 (3 rd Cir. 1942) LINK (51.5kb pdf)​

Heller slapped the lower federal courts back into line and invalidated this mutation (along with the "militia right" interpretation, created the same year by the decision I quoted from earlier, Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942)).

Since that appears to be your conclusion given your statement that gun rights pre-date the constitution and that the 2nd does not clearly state anything but the right to arm militias, how can you then create a legal mandate for this right outside of the wording of the 2nd?

LOL. You are folding your incorrect position into a mutation you have formed of what I wrote.

Look, there is no "right" to arm militias because there is no "right" for anyone to form a militia.

What you apparently do not know is that there exists a completely separate line of SCOTUS decisions (stretching back 56 years earlier than the first right to arms / 2nd Amendment case) that focused on militia powers and decided conflicts between the states claiming militia powers against real federal interference . . . Problem for your position is that the federal government always won, state powers always yielded or were held to be subordinate to federal powers and never, not once, for going on 193 years, has any state ever cited the 2nd Amendment immunity you claim exists, to repel federal interference.

Again, there is no "state's right" to form a militia. . . . Militias can only be organized, trained and deployed under the authority granted to Congress in Art I, § 8, cl. 16.

Those powers were executed in the Militia Act of 1792 which SCOTUS said provided for:

"establishing an uniform militia in the United States. It declares who shall be subject to be enrolled in the militia and who shall be exempt; what arms and accoutrements the officers and privates shall provide themselves with; arranges them into divisions, brigades, regiments, battalions, and companies, in such manner as the state legislatures may direct; declares the rules of discipline by which the militia is to be governed, . . .

[These laws] amount to a full execution of the powers conferred upon Congress by the Constitution. They provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasion. They also provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States; leaving to the states respectively, the appointment of the officers, and the authority of training them according to the discipline prescribed by Congress."

Houston v. Moore - 18 U.S. 1 (1820)​

There was no state claim nor is there any mention by SCOTUS of the 2nd Amendment having any action of directing or controlling militia operation or powers, or assigning / protecting any division of militia powers.

In order to do this, you have to dig deep like Scalia did in Heller and make up law. He made up an amendment that never existed because they just decided it was too damn obvious to include in the BOR.

Heller does not alter or upset any previous SCOTUS statement / holding on the right to arms / 2nd Amendment nor does Scalia take an alternate or divergent path from previous SCOTUS statements / holdings on the right to arms / 2nd Amendment to arrive at the majority opinion.

I think this is very consistent with originalism but it breaks a cardinal rule of the originalists by definition does it not? The only way you could defend it is in the 9th amendment but then, that amendment is so broad it could include any right whatsoever can it not?

The 9th Amendment is not a substantive, claimable immunity. It is only a rule for constitutional interpretation. It's predecessor was crafted by Madison to enumerate Federalist argument as to the origin of rights when it became inevitable that Federalist opposition to adding a bill of rights would fail. Nobody disagreed with Federalist argument as to the origin of rights; the disagreement was about how best to protect rights.

It is quite evident that Federalist fears were correct and your positions are the embodiment of them.

 

[Abatis]

Using case law from times past in regards to new advances in technology is going to be a huge mistake for us if this continues either in the gun debate or in other areas of life.

The task is to apply the principles of the Constitution to the issues of the day. Those principles are not outdated or defunct.

In 1942, the state of arms was pretty much devoted to fighting in land wars, hunting, self-defense and the technology was still pretty static. We are now in an era when you can make a gun out of plastic using a printer.

The protection sphere of the 2nd Amendment has not changed since 1939.

Now imagine when someone comes up with an entirely new weapon that has enormous power and it becomes available far in front of legislation to restrict it. Heller and other cases will seem like anchors upon us.

Actually Heller recognizes that the Miller Court holding "in common use" as a protection criteria is "another important limitation on the right to keep and carry arms". In modern times that could be used to sustain NFA-34 restrictions on machine guns from challenge because machine guns are no longer "in common use".

Similarly, "in common use" could also be used to affirm restrictions on civilian possession and use of a printed gun or even a, "phased plasma rifle in a 40 watt range" because they have not yet become in common use.

I believe they are already keeping us from stopping violence and death in our nation. But this is the system we have, the constitution is becoming more and more obsolete every day IMHO.

What's become obsolete is civics instruction that teaches people what the Constitution is and is not.

 

[Abatis]

Clearly in this case the court is not arguing based on the text of the constitution, but rather based on the policy outcomes of various interpretations. I.e., this given interpretation is wrong because it would prevent Congress from banning anti-tank weapons.

That was a lower federal court speaking, explaining how it read the Supreme Court in US v Miller, decided 3-1/2 years earlier.

Miller is correctly interpreted in Cases v. U.S, but it is taken to the extreme and that hyperbole is used as justification for ignoring and dismissing the Supreme Court's determinations in Miller.

I imagine the only reason this is acceptable to you is that you agree with the policy outcome ... which undermines your position as a beleaguered defender of absolute fidelity to the constitution.

I don't agree with Cases v. U.S as it is the case in which the "militia right" is created.

The Cases' court recognizes the gun at issue is a protected arm under Miller but then changes the rules from having the type of arm and its usefulness in battle being the determining factor for 2nd Amendment protection, to requiring the person to be a member of a military organization or that his actual possession and use of the gun was focused, "in preparation for a military career":

"While the weapon may be capable of military use, or while at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber, still there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career."

Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942)​

And POOF! The "militia right" was created!

.