White House Readies Executive Action On Gun Control

[happyslug]

90. Have you read Heller??

http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

Scalia goes on and on how the Right mentioned in the Second Amendment was NOT a right created by the Second, but a preexisting Right about having weapons AND that Right had NOTHING to do with Militia service. He mentioned the Militia Clause, and then says the right was NOT tied in with Militia service. Scalia basically says the Militia clause had no legal meaning and can be ignored entirely. Scalia does not mention the Militia Act of 1792, passed by the same Congress that passed the Bill of Rights. The reason for that is simple, to mention it means to show HOW the Congress that passed the Bill of Rights viewed Militia and weapons. The Militia act is simple, the only weapons mentioned are those tied in with Military usage. Pistols are mentioned by only for Horse Soldiers. What the Infantryman was to arm himself was restricted to what was the standard issue of that time period.

After reading the Militia Act of 1792, it is clear the weapons of concern of that time period were the weapons of the infantry and thus it is those weapons that are protected by the Second. That would exclude pistols unless you can show you are in a position that normally carries a pistol (Such as someone assigned to a heavier weapon that prevents that person from carrying a rifle or other assignment that prevents you from carrying a pistol in combat). Thus, if you view the Second as being related to the Militia, pistols can be banned (With limited Exceptions), but rifles and even Machine guns can NOT be. I suspect Scalia has no problems with the poor having pistols, for he knowns pistols have poor military effectiveness, but he clearly left open a ban on Machine Guns, which have clear military effectiveness.

On the other hand you have Stevens dissent. In that dissent Stevens clearly connects the Right to Bear Arms with the Militia. Stevens mentions the Militia Act of 1792 and that is was ignored till repealed in 1903. Stevens states that the word "people" means the state governments NOT individuals (and then does not press that point). Stevens mentions Presser and that Presser's claim that it was a violation of his Second Amendment right to bear arms, for a state to BANNED Military training by a non member of the State Militia. The Court had REJECTED that claim on the grounds the Bill of Rights did not apply to the States and thus the States could strip anybody of weapons who lived in that state (this was a 19th century case and the Supreme Court did not start ruling the Bill of rights applied to the States till the early 20th century).

MY objection to Stevens is, while he does NOT quite say it, he implies that the State can define who is in the Militia and ban any weapon from anyone NOT in the Militia. Stevens ignored 10 USC § 311 which defines Militia as any and all males between age 18 and 45. Stevens also ignored MIller's ruling that the Militia was of all males over age 18. I suspect Stevens ignored it, for to address it means ruling that the States and Congress can ban any weapon EXCEPT those usable by the Militia. Like Scalia, Stevens wants to preserve the ban on Automatic weapons, he is willing to extend the ban on pistols, but he wants to make sure anyone NOT tied in with the US Military has access to Automatic Weapons AND Pistols. On the other hand, Steven's wording implies Steven's had problems justifying the ban on civilian ownership of automatic weapons, but problems Steven's wanted to avoid thus his writing.

Breyer writes a dissent, where he points out regulations on pistols were the norm in Colonial American and no one involved with the Bill of Rights saw the Second affecting those bans and as such a ban on pistols can survive a Second Amendment Attack. Not much of an argument, it is a way to avoid the issue of what the Second Amendment actually covers, but saying it clearly does not cover Pistols and preserving the issue of what the Second does cover to another day.