Bone
September 6, 2019, 7:47pm
239
Little_Nemo:
Okay, I’m confused as hell by what you’re saying.
To reiterate my position, I believe the militia clause is meaningless and the second amendment should be read as granting an individual right.
If I’m understanding your posts, you believe the militia clause has meaning and affects the right.
But then I posed a set of question which would have one answer if the militia clause has meaning and a different answer if it does not. And all your answers are in line with the no meaning interpretation.
I think part of the confusion is that you’re treating the militia clause as either/or. The militia clause can be meaningful without necessarily constraining or contradicting the individual right to bear arms. This distinction is discussed in Heller. I wrote about how I think this would lay out in an older post here :
Below is my take on it, though I grant it is merely my opinion and in this post I venture into speculative territory.
The scope of the 2nd hasn’t been fully litigated so I think it could go either way. The way I look at the framework is that there are two paths by which a weapon can fall under the umbrella of the 2nd amendment.
Path 1 : weapons that would be typical for a person in the militaryand unusual
Here is what Heller says about my path 1:
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.” 307 U. S., at 179. 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.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). 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, see Part III, infra.25
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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.
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This is consistent with Heller and all past SCOTUS rulings. Giving meaning to the militia clause is but one avenue to fall under the protection of the 2nd amendment. But it need not be the only one.