[TheForge] Criminal Background Check: way OT

[Andrew Vida]

Peter Hirst wrote:

> SCOTUS also did NOT accept the broad, organic view of what constitutes the 
> militia as its justification for the individual right:  in fact they 
> rejected any connection whatever between the milita and the right to keep 
> and bear arms,

	Do you have a cite for this?  I would be very interested in reading 
such a ruling.  I thought I read the entire opinion of Heller.  If you 
are referring to this case, perhaps I missed or misread something.

 > choosing instead to treat the first clause as pure precatory
> language.  The only such language in the entire constitution, BTW. You can 
> thank the NRA for that. 

	NRA?!  Um... NRA didn't exist in 1789 - they didn't come into existence 
until 1873.

 >  Conservatives should not take much heart in this.
> By reducing the that  first clause mere surplusage, Scalia reduced the scope 
> of the amendment to personal protection in the home, stripping it of any 
> meaning whatsoever with repect to securing the community or the state 
> against tyranny. 

	You have *clearly* misread the ruling, which holds:

	"1. The Second Amendment protects an *individual* right to possess a 
firearm *unconnected with service in a militia*, and to use that arm for
traditionally lawful purposes, such as self-defense within the home."

	This is NOT saying that the second amendment fails to guarantee RKBA 
for purposes of throwing off tyranny.  It is saying that the the militia 
clause does NOT limit the RKBA clause - that it very clearly in fact 
guarantees RKBA for ANY lawful purpose.

	US v. Miller ruled that people could keep weapons useful to militia 
purposes.  Heller expands on this saying that is also guarantees RKBA 
for other purposes not connected to militia duties.

	Further bolstering my interpretation, the ruling states:

	"(a) The Amendment’s prefatory clause announces a purpose, but
does not limit or expand the scope of the second part, the operative
clause. The operative clause’s text and history demonstrate that it
connotes an individual right to keep and bear arms."

	This language is abundantly clear and in diametric opposition to your 
stated interpretation, which is a *good* thing.  <phew>

	The ruling goes on to drive yet another nail in the coffin of the pro 
gun control position:

	"(b) The prefatory clause comports with the Court’s interpretation of 
the operative clause. The “militia” comprised all males physically 
capable of acting in concert for the common defense. The Antifederalists 
feared that the Federal Government would disarm the people in order to 
disable this citizens’ militia, enabling a politicized standing army or 
a select militia to rule. The response was to deny Congress power to 
abridge the ancient right of individuals to keep and bear arms, so that 
the ideal of a citizens’ militia would be preserved"

	Then there is this:

	"(c) The Court’s interpretation is confirmed by analogous arms-
bearing rights in state constitutions that preceded and immediately
followed the Second Amendment."

	And this:

	"(d) The Second Amendment’s drafting history, while of dubious
interpretive worth, reveals three state Second Amendment proposals
that unequivocally referred to an individual right to bear arms."

	Not to mention this:

	"(e) Interpretation of the Second Amendment by scholars, courts
and legislators, from immediately after its ratification through the
late 19th century also supports the Court’s conclusion."

	And in case the HCI assholes were tempted to claim the court had 
reversed itself from previous rulings, they added this wonderful bit:

	"(f) None of the Court’s precedents forecloses the Court’s 
interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, 
nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-
rights interpretation. United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes."

	Note that my recollection of US v Miller was dead on correct.

 > If you think this was a great conservative victory, you
> just watch what happens next time the Fibbies and BATF have some holdout 
> faction of  Posse  Comitatus cornered on a remote ridge in Idaho or a 
> barracks in Waco.  Go ahead, shoot a burglar in Anacostia, if you think 
> that's the grand concept  the framers of the federal government had in mind. 

	FBI is going to shoot the Posse Comitatus?  I suppose they could use 
copies as targets.  What is a "faction of  Posse  Comitatus"?

	I will point out that the Posse Comitatus is slowly being forgotten. 
It is, AFAIK, still law.

> Scalia has much bigger ideas than that.  He and his buddies couldn't wait to 
> get rid of the Militia clause. 

	You need to drink less coffee or something.  That is NOT what they did. 
  Very clearly not.

 > Neo conservatism is NOT about States rights.

	Huh?

> Its about preserving the illusion of individual rights while making sure 
> that the substance of those rights is completely manageable by the Federal 
> government and that the federal government is manageable by certain 
> interests. 

	Here we are in strong agreement.

 >  Sure DC now has to let you keep a 9 in your home, locked and
> loaded.  Big deal.  (Notice BTW that this case is not about the right to 
> bear arms -- only to keep them:  that boot has yet to drop. 

	Agreed.  If this ever makes it to a favorable decision, cities such as 
NY, LA, and Chicago will be in for quite a shake up.  For the better, I 
will add.

 > You want to be
> the one to sue for the right to carry on K Street?).   If the Feds -- or the 
> cops for that matter -- want to clean out an armory in Concord, however, 
> they won't have to pry that AR 15 out of your cold dead hands:  they'll just 
> crush you under an Abrams.

	Things do appear to be heading rapidly in that direction, unfortunately.