What if people were told the Supreme Court decision, and written by Justice Scalia in DC, et al, V Heller, was that the Second Amendment stated:
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations uponthe individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.
They went on from there to discuss the other portions of the Second Amendment, such as Militias. But the 'right to bear arms' was not unlimited, meaning there is no protection for an unlimited amount or type of 'arm'; i.e., that can be limited by law.
You can read all 157 pages of the opinion here:
http://www.supremecourt.gov/opinions/07pdf/07-290.pdf
Hey Wahbooz,
Justice Breyer, amongst the dissenting minority (by a single justice) provided some of the best thoughts I have read and it seems only a matter of time before a case comes before the SCOTUS that will cause them to either reverse their thoughts on the "well regulated Militia"/common defense/"necessary to the security of a free state" connection or referse themselves on their thoughts that "shall not be infringed" means something other than "shall not be infringed" when it comes to the suggestion that one cannot infringe upon a personal right to self-defense (which not a single word is mentioned about in the 2nd Amendment or the Constitution), but somehow can infringe upon it at the same time by infringing upon the types of arms one keeps and bears for "personal self defense" (which is not the subject of the 2nd Amendment, "arms", a well-regulated Militia and that which is deemed "necessary to the security of a free state is)
Breyer suggests that something will arise that will cast the latest majority opinions to entrap themselves and end up in what he calls "circular reasoning" that was not the intent of the founders of this nation.
It is interesting to note that the NRA is actually fearful of court cases, especally ones that reach the SCOTUS.
Even if one interprets the 2nd Amendment as being attached to "Well regulated Militia" it being deemed what is "necessary to the security of a free state" and howver, in any one era, "Well regulated Militia" is defined by Congress, kept and selected by the individual states, both Heller and McDonald decisions make sense, but for the notion that the right to keep and bear arms is not directly related to "the common defense" and that which is necessary to it.
As long as there are American citizen soldiers in service to and engaged in the common defense of their individual states or the nation, a complete ban on arms, federally or by state, would defeat their very purpose and provide the potential for them to be rendered useless.
I believe most Americans would be happy to know that there are state's National Guard members in their midst and would not suggest allowing any avenue to ban their ability to keep and bear the arms they would need to best conduct and execute an effective common defense or "security to a free state". The notion that gun control is a lead in to a ban on all firearms is paranoia and even if it wasn't the argument that if guns were banned, only criminals would have them negates the reasoning that people would somehow be left without firearms were their government to suddenly become tyrannical.
Under such a circumstance, they need only look to the same black market they say all the criminals get their guns from, aside from those stolen from people who bought them with little restriction or the purchases made by "law abiding citizens" who are not criminals at the time of purchse, legitimately buy their weapons with few restrictions before they use them to commit a crime.
In addition, the suggestion of "common use" has to refer to what, if not a military or "common defense" sort of use as there is no "common use" arms defined for individual self-defense and even if there were, would assault weapons fit into a "common use" category for individual self-defense?
People don't seem to know the history of the "well-regulated Militia" in this nation. The law to make it the duty of all able bodied free white men between the ages of 18 and 45 and to furnish one's own firearms failed over time to gain honor to it. There was little collective interest in attending training and loosely formed Militia of citizens who didn't take their duty or training seriously caused the federal government to form what it was reluctant to rely on in discussions at its founding and that was a standing military. George Washington on looking back at the use of local miliita during the revolution pointed to their unreliability and that was with citizen soldiers who at least had some minimal formation and training in the use of firearms. Currently, the vast majority of Americans are not required to train as a fighting force that would be significantly effective on any level, even to the point of the militia used in the Revolutionary War.
The whole idea of a "common defense" and the use of militia, was to maintain some level of proficiency and effectiveness as a fighting force. People that have never met one another, much less trained with arms and one another to put up a common and effective defense for their state or their nation and people with no organized or "well regulated" structure, will be routed very quickly by forces who do have organization, chosen leaders and training to fight in concert with one another.
It only makes sense that the 2nd Amendment is tied to the common defense and what is deemed necessary to that, a well-regulated (as opposed to an unorganized miliitia or a rag tag bunch of citizens, even if they label themselves as "militia"). If a "well-regulated Militia is defined as those who have volunteered or as all U.S, citizens who are legally bound to duty, that organization and those defined by it, are the subject of whose "right to keep and bear arms, shall not be infringed. All others can have their right to keep any and all arms infringed, because not only are they not bound or connected in any way to the common defense, they are not thought of as any sort of effective or significant common defense without duty and training as members of a "well regulated Militia". As we know, an individual with a fiream, even if they are trained how to use it, are not necesarily an effective defense for themselves or anyone else or without risk of injury or death to themselves or those around them based on their keeping or bearing firearms. Individuals who simply purchase a firearm and stick it loaded in their bedsde drawer, the best way to ensure it is an effective means of defense (When under attack or imminent threat, rummaging for one's weapon or having to unlock it from a case or closet then find and load ammunition is perhaps not very effective in deterring one's attackers or threat) may be most effectively ready "in case", but they have also increased the risk of injury to themselves or someone in their household and with no training, are at increased risk of hurting themselves or someone else, either by accident or in the heat of anger or depression.
"Arms" ownership is not a right, unless one owns arms in the interest and in service and duty to "the common defense" and that which is "necessary to the security of a free state". For all others, it is as Anton Scalia explained, a granted "right" that can in fact be limited or infringed upon.
One might note that a number of the latter Amendments actually confer rights, something we have heard some people here claim cannot be done.
