NRA-ILA Petitions the U.S. Supreme Court to Hear Challenge to NFA Restrictions on Short-Barreled Rifles [More]
Pretty long on “common use” popularity and pretty short on core purpose except to address militia controls, as opposed to militia necessity.
Now all SCOTUS has to do is… nothing.
[Via Jess]
“Now all SCOTUS has to do is… nothing.”
And, credit where credit is due, they’re pretty damn good at it.
This just in from the “pot vs. kettle” department.
So are America’s gun owners.
Worse, what if SCOTUS takes it up and rules the wrong way?
Thx for the conversation David
Just so you know my first foray into this was in 1973 when as a junior in HS I won the district championship with my speech (oratory, 6-8 minute prepared speech) on the right to arms, and that was a politically incorrect position
So in my small way I’ve been fighting this battle for decades too
See? You predate me. In ’72 I voted, to my lasting shame, for McGovern. I didn’t get involved in 2A until the 90s.
Well it would be nice if the Congress had not neglected the militia
But, THE “core purpose” of the 2A is not the preservation of a robust militia, but the preservation of the INDIVIDUAL right to keep and bear (carry) arms, for as Scalia says in Heller, a “purpose” most notably self defense (the only important reason for the individual right)
Yes, the 2A admonishes that the militia is “necessary”, and if the people are armed (or can be armed) then a robust militia can be maintained
But that’s as far as it goes
Yes, we should restore the idea of the militia, indeed I could go for some Starship Troopers like society where militia service is a requirement for political participation
But the “militia necessary” words in the 2A were a “consolation prize” to the anti-Federalists who lost the battle over the Constitution and the ability of the Congress to create a standing army.
The militia clause of the 2A expresses a good sentiment but otherwise it is a toothless nullity
Yeah, most gun groups and their lawyers believe that and dismiss the core militia purpose rather than examine cited details that show where relying exclusively on “self defense” in legal arguments leads to vulnerabilities.
Again, unfortunately, the Federalists who wrote the 2A didn’t provide any language disrupting the power balance between the Congress and the States re the militia nor include any language suggesting the 2A affected the militia except insofar as the militia is “necessary” and making a militia possible by ensuring an armed people
Yes, the anti-Federalists wanted what you described
But they didn’t get it
We can re-fight that battle but I won’t pretend that we won it originally with the 2A
Yes, restore the ideal of the militia, but I won’t let the anti’s twist the meaning of the 2A, so I won’t do it from my side either
That doesn’t mean I think relying on the common use test is smart nor that we shouldn’t talk about the “necessary” militia
With all respect David to your stellar contributions to the fight to keep our right to arms against which my efforts don’t even rate a mention
No “twisting” Scott. Core purpose is what the framers and ratifiers envisioned. The anti-Federalists “wanted” what was promised. Stipulated, modern antis wanted everyone to think it was JUST a militia right and not individual– been fighting that battle for decades.
Per Edwin Vieira’s amicus brief:
I suggest you read “Thirteen Words.” If you want to post a rebuttal to that, I’ll be happy to give it a link.
Thirteen Words is out of stock at Amazon and Thrift books, but I’ll look for it and read it when I can find it
This whole this is dangerous. Remember the “ghost gun” ruling, which was a farce. Or their recent refusal to hear the “assault weapons” ban and magazine ban?
Given their recent history and the current make up of the court, I think bringing any case to SCOTUS now is too dangerous.
This should go through congress, or at least attempt to go through congress before any “gun group” thinks of SCOTUS.
But not “gun group” of rather “fudd group”, cares about the true intent of the Second Amendment, and the Militia.
David, I was unable to find “Thirteen Words” but I did find an hr long audio of Vieira making (I believe) his argument
I of course agree with a great deal of his argument. Indeed I’ve made a lot of it myself in various venues.
And I’ve been called all sorts of names for telling my fellow gun owners that AR15s are indeed “weapons of war” and pointing out how stupid they are to fall into the trap by saying “leave my AR alone because it is not a weapon of war”
Many of them can’t figure out that fire”arms” of “war” are expressly covered by the 2A and we need to make that argument. Indeed you are absolutely correct that we need to be arguing the militia aspect of the 2A (along with the individual right part)
Vieria is correct that Scalia in Heller tried to walk back/avoid/ignore the Presser/Miller analysis that would make the militia component of the 2A more obvious
Sadly I think Scalia was walking a fine line to get 5 votes and he only did because of the lousy “dicta” about “M16s and the like” and because as Gura said in oral arguments (unbidden if I remember correctly) that “we are not talking about machine guns here”.
Whether we can drag the militia component back into the argument remains to be seen but hopefully some orgs will try
But I cannot accept all of Vieira’s argument because the reason for the 2A was not ONLY for the preservation of the militia. That is clearly wrong. As the PA anti-Federalists proposal makes clear the right is for “…defense of themselves OR their state, OR the United States OR for killing game” the individual right to self defense is on par with the militia aspect
And, because he offered no analysis of how those 13 words modify any of Congress’s power to raise a standing army or force them into more reliance on the militia ideal. He spoke almost entirely about the VA right to arms amendment which does fit that argument but not about how the 2A does it
Maybe his book makes that clear and I’ll continue to look for it
But until then I’ll stay with my opinion that the 13 words are a toothless “consolation prize” to the anti-Federalists who lost the battle over the Constitution. Joyce Lee Malcolm makes this point in her book
But thank goodness we at least got the 2A for their efforts because without it we’d have totally lost the right to arms long ago.
As always, Best regards for your efforts in that fight