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[happyslug]

98. If you read Heller, the Second Amendment was basically ignored.

Scalia instead concentrated on then existing norms as the the "Rights of Englishmen". This was strange for Scalia, for that was the same rationale that made abortion a constitutional protected right, for abortion was LEGAL in 1792 when the Bill of Rights was adopted (and Scalia is on record REJECTING that rationale when it comes to abortion).

The reason Scalia did that is simple. If you read the history of the the French and Indian Wars, the Revolution and the Militia, the wording of the Second Amendment makes perfect sense. In papers written during the ratification process for the original constitution one of the attacks on the Constitution was it gave organization of the Militia to the Federal Government (Officers in the Militia were to be picked by the states, but the actual formation of the Militia was Federal only). The reason for the Federal Government having exclusive power over the militia was do to the experience of the American Revolution. When Von Stueben arrived at Valley Forge he not only trained the American Army in Prussian Army doctrine, he wrote a book, called the "Blue Book" about how US units were to be formed. At that time, such information was the key to making units capable of fighting together. Washington and Von Stuben then argued over its classification. In Prussia and other European Armies such books were classified as top secret, ranks below Colonel would know of the rules, but never see it is writing let it fall into enemy hands and be used against the side whose book it was. Washington so liked the book AND saw the need that the Militia be as interchangeable with the regular Army, that he ordered it published for anyone to buy. Think about it, a book so important that every other army would classify it as top secret, but in the American Army it was published.

Other aspects of supply the Army in the field was known to the members of the Constitutional Convention, including the need to standardized ammunition for ease of supply (This is seen in the Militia Act of 1792 which said all militia weapons will fire a .69 caliber round, the round the US had adopted during the Revolution for it was the Round of the French who were giving us Arms).

For the above reason the Convention gave exclusive control over the Militia to Congress. The problem was the experience of Pennsylvania in and prior to the French And Indian War, an experience still relatively fresh in the minds of many (it was only 30 years before, i.e. like Reagan is to us). Pennsylvania was the only Colony that refused to form a Militia prior to 1758. The Quakers opposes war and thus opposes Militia (while busy stealing lands from the Native Americans, and selling that land to people on the frontier, and when the Native Americans attacks those frontiersmen, the Quakers said, "Do not fight, but make sure you pay us for your land". In response to this Ben Franklin had told people in the Frontier to organize their own Militia, which they did (Ben Franklin actually did this for Philadelphia first, getting the Towns people to build a fort south of the City, so the City could delay any French Attack. we are talking 1740s and 1750s here, and thus give the townspeople time to vacant Philadelphia if the French decided to attack that city, given the French fleet sailed by the entire east coast of the US twice a year, once in June to get out of the Caribbean during Hurricane Season, and then back again in October, before the Waters of Quebec froze, a a perfectly possible attack).

Due to the memory of the threats during the French and Indian war, during the period of the ratification of the Constitution that Congress had exclusive control over the Militia became a hot issue. I.e. what would happen if Congress just decide NOT to organize the Militia? Would we be like Pennsylvania pre 1758, defenseless? The Constitutional Militia Provisions seems to forbid State Organizing the Militia AND seems to outlaw people during it themselves, as Ben Franklin told the Frontiersmen of Pennsylvania to do in the 1740s and 1750s.

The Second amendment was written to address the above concerns AND not interfere with the ability of Congress to organize the Militia. The Second made it clear that the States and the People have the RIGHT to organize themselves into Militia units (and to have the arms to do so) when the Federal Government fails to organize them into militia units.

Scalia and his fellow right wingers on the Supreme Court do NOT like that interpretation for it means Congress, the States and local government could pass gun control laws, as long as the people could still obtain weapons needed in a militia. i.e. it is possible to outlaw pistols and any other weapon, as long as the standard weapon of the US Army are kept legal for sale and possession of civilians (and that substitute standards that are popular and effective are also kept legal) such a law would NOT violate the Second Amendment.

Side note: What I mean by "Substitute weapons" are weapons popular with the Civilian market but still unable in military operations AND EASY TO SET UP SUPPLIES LINE FOR. Thus Congress could ban any firearm except those that fire, 7.62x51 NATO (Used by the US Army today), 7.62x62 (30'06, the most popular round in among Civilian shooters), 5.56x45 (used by the US Army today), 7.62x39 AK ammunition (Becoming more popular), 30-30 Winchester (still a very popular round for deer hunters) and the 12 gauge shotgun. if Congress, any State or local government would exempt the above rounds on the grounds they are the "Standard Rounds" for Militia weapons, Congress any State or local government could ban any other firearm. Please note, this is based on my reading of the Second Amendment, the Constitution and the history of 1745-1792. Scalia ignored this argument for it did not fit his world view of "Self Defense". The Dissent also ignored this view for it did not fit their view that the Militia is the National Guard, even through the federal law governing the National Guard says the National Guard is part of the Miltia but only part (Federal law says all males between the ages of 18 and 45 are members of the Militia, women in the National Guard are also members of the Militia).

Side note: Scalia had hinted he supports the ban on Civilian Ownership of automatic weapons, he is for the private ownership if pistols for "Self defense" but against private ownership of weapons actually useful to a militia. This is consistent with right wing dogma, pistols are NOT view as a threat in any revolution, but rifles and shotguns are and thus the later must be regulated to make sure NOT available for revolutionaries.

Just a comment that the Second was ignored by everyone in Heller, it was mentioned but the history used ignored what was going on on the battlefields and in the Militia, instead both sides cited court cases that had little to do with HOW the militia was being used and formed.