You’re missing the point. What is the rationale behind the distinction? As it is, you’re agurment is they’re distinct becuase they’ve been defined differently. This is circular.
And these caveats are based on a rationale often embodied in a test. For example, in the context of limitations on speech, there was the “clear and present danger” test put forth by Justice Holmes. This was later replaced by the “imminent lawless action” test. What is your test, your rationale behind the distinctions between the weapons categorized as Destructive Devices and a shotgun [if you say the statutory law draws the distinction, we might as well stop ]?
The remedy is judicial review. It knows no statute of limitation. If the court thinks a two hundred year old law is unconstitutional, and the question is properly before the court, the court should and would strike down the law. “Seperate but equal” was the law of the land for sixty years before it was overturned.
Not so. The Court specifically recognized the legality of a shotgun in Miller when they convicted Miller for violating the National Firearms Act by possessing a “short-barreled shotgun”. Therefore, the Court made the distinction between a shotgun and a weapon defined as a Destructive Device. Incidentally, they also said:
That is amusing balderdash from the Court in that short-barreled shotguns most assuredly were commonly used by the military at that time, both in the past and in the future, but that’s neither here nor there, just an interesting sidenote.
Again, see the Miller decision. Until Heller, the Supreme Court was all but silent on the topic, so that was all we had to go by. They made the distinction based on the law that made the distinction.
If the Court overturns the NFA as unconstitutional, they will be overturning all other gun control statutes (the GCA of 1968 and the FOPA of 1986) as those were mere modifications of the NFA. That would instantly destroy the system we have for background checks, it would destroy the limitations on importation of weapons, it would reintroduce the ability of manufacturers to produce automatic weapons for civilians… in this climate, do you think the SCOTUS would do that, even if they’d like to? They have already approved of restrictions. Scalia pointedly said so in the Heller opinion.
Anyway, I do not understand why you’re trying to pin me down on this “plain reading” point. The “plain reading” of several Amendments does not preclude restrictions on the rights they protect. According to the plain reading of the 2nd Amendment I can have anything I want. I mean, if that’s what you want to hear, there you go. But I, and almost all gun owners and gun-rights advocates save for a few that want something that never really existed to begin with, recognize that like all rights, these are not absolute.
Ok. I commend your candor, I to agree that 1) the 2nd Amendment does mean ordinary folk (i.e. you and me (or maybe not you, since it appears your are in the service)) have the right to gun ownership; and 2) this right to bear “arms” can and should be limitted. I just felt like someone raised an interesting piont and you sidestepped it.
I posted a link to the Heller decsion at FindLaw.com in your other thread, with select quotes explaining the difference between an introductory clause and and operative clause, and what constitutes the militia.
Did you even bother to read it? Or do you just see it as another evil plot of the evil gun lobby to confuse you with facts and technical jargon?