Image Image

  Nostalgia ain't what it used to be

Tuesday, 25 September, 2018
Image

Hallelujah (Final part of two)

Date: 15 July, 2008 (Click here to read Part I)

By: Chief

Imageh, I'm glad you have returned. Continuing on we have (quoting Heller):

"Although we agree with petitioners' interpretive assumption that 'militia' means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create ('to raise . . . Armies'; 'to provide . . . a Navy', [ ], the militia is assumed by Article I already to be in existence. Congress is given the power to 'provide for calling forth the militia', [ ]; and the power not to create, but to 'organiz[e]' it--and not to organize 'a' militia, which is what one would expect if the militia were to be a federal creation, but to organize 'the' militia, connoting a body already in existence [ ]. This is fully consistent with the ordinary definition of the militia as all able-bodied men."

It would appear so to me, now that Scalia has explained it.

" 'Security of a Free State'. The phrase 'security of a free state' meant 'security of a free polity', not security of each of the several States as the dissent below argued [ ]. Joseph Story wrote in his treatise on the Constitution that 'the word 'state' is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community'. [ ] ([I]n reference to the Second Amendment's prefatory clause: 'The militia is the natural defence of a free country'). It is true that the term 'State' elsewhere in the Constitution refers to individual States, but the phrase 'security of a free state' and close variations seem to have been terms of art in 18th-century political discourse, meaning a ' 'free country' ' or free polity. [ ]. Moreover, the other instances of 'state' in the Constitution are typically accompanied by modifiers making clear that the reference is to the several States--'each state', 'several states', 'any state', 'that state', 'particular states', 'one state', 'no state'. And the presence of the term 'foreign state' in Article I and Article III shows that the word 'state' did not have a single meaning in the Constitution.

"There are many reasons why the militia was thought to be 'necessary to the security of a free state'. [ ]. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary--an argument that Alexander Hamilton made in favor of federal control over the militia. [ ]. Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny."

In other words — We the People, not We the Congress, not I the President and certainly not We the Bureaucrats — just We the People are in charge of our internal security. And in order to keep ourselves free of tyranny from government mischief, standing armies and for self defense, We the People must be armed and be able to take the necessary action, individually and collectively (a militia) if and when required.

"We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people's arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

"The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. [ ]. John Smilie, for example, worried not only that Congress's 'command of the militia' could be used to create a 'select militia', or to have 'no militia at all', but also, as a separate concern, that '[w]hen a select militia is formed; the people in general may be disarmed'. [ ]. Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never ppress the people. [ ]. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

"It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right--unlike some other English rights--was codified in a written Constitution. JUSTICE BREYER's assertion that individual self-defense is merely a 'subsidiary interest' of the right to keep and bear arms, [ ], is profoundly mistaken. He bases that assertion solely upon the prologue--but that can only show that self defense had little to do with the right's codification; it was the central component of the right itself."

To keep our freedom. A free state. "[T]o oppose an oppressive military force if the constitutional order broke down." Defense. Defense of self and, if needed, state. Keep that in mind.

"[ ... ]The most JUSTICE STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, [ ]. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons."

Okay, so some weapons do not enjoy Second Amendment protection. What kind of weapons might they be?

"We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase 'part of ordinary military equipment' could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's 'ordinary military equipment' language must be read in tandem with what comes after: '[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time'. [ ]. The traditional militia was formed from a pool of men bringing arms 'in common use at the time' for lawful purposes like self-defense. 'In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same'. [ ]. Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right,[ ].

"We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment's guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, [ ], and it was not until after World War II that we held a law invalid under the Establishment Clause, [ ], Champaign Cty., 333 U. S. 203 (1948). Even a question as basic as the scope of proscribable libel was not addressed by this Court until 1964, nearly two centuries after the founding."

So weapons that are "not typically possessed" by We the People more than likely do not enjoy Second Amendment protection. Weapons such as machine guns, grenade launchers, tanks and that sort of stuff will probably get you 15 - 20 years in a federal cross bars hotel.

"It may be objected that if weapons that are most useful in military service--M-16 rifles and the like--may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. 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. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right."

"But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right." Amen brother. A right is a right. Period. Just because times changes, without a Constitutional amendment, our rights do not.

Now for the clincher:

"In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

"* * *

"We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, [ ]. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

Four things come to my mind. First, is government can, to some degree, regulate weapons. Second Scalia is giving us all a warning about the dangers standing armies can pose to freedom ("standing arm[ies] to suppress political opponents"). Thirdly, as the good justice knows all too well no police force (note how he did not use the word "department") provides "personal security" to any member of We the People. Lastly, Scalia lashes out at those gun grabbers by stating the courts are not where the Constitution can be changed. If you do not like a provision or clause within our Constitution, you are free to try and change it — using the Constitutionally approved method — amendments.

After all, I would rather have a gun in my hand than a cop on the phone. And thanks to Heller and Scalia I can continue to do so.

(Return to the top)