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Old November 20, 2008, 04:21 AM   #6
maestro pistolero
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Join Date: August 16, 2007
Posts: 2,153
Quote:
I think this sentence shows that the SCOTUS beleives that many military weapons might be prohibited or regulated by law as to civilian use and be constitutional. I think Scalia is decoupling the well regulated militia from the right to keep and bear arms in that Militia service is not the only reason for the right to keep and bear arms.
It would seem so. But, quoting US vs Miller, Scalia refers to the ability to prohibit dangerous and unusual weapons in one passage, then describes the type of weapons that Miller protects in another:

Quote:
2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, con-
cealed weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of fire-
arms in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.

Quote:
(f) None of the Court’s precedents forecloses the Court’s interpre-
tation. 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.
Pp. 47–54.
If I'm understanding correctly, he is saying on one hand, that according to Miller, for a weapon to be protected, it needs to have some reasonable relationship to militia (US attorneys argued military) use. On the other hand, he is saying that dangerous and unusual weapons may be prohibited. Long before Miller, as early as 1918 the Military was using weapons such as the Browning Automatic Rifle and Thompson submachine guns.

On the danger scale, at the lowest possible end of that scale of military weapons that Miller says are protected, are small arms in common use.

Category one today might include 9mm handguns (currently Beretta, Sig) with standard capacity, possibly .45 cal 1911 pistols (some are still in use), M16/M4 (w/30 round mags), M21 (M14 sniper rifle), Remington 700 sniper rifles (or whatever the military designation is), etc.

The next category on the scale of dangerous and unusual might be SAWs (M249 squad automatic weapons), grenades, 40 mm grenade launchers, shoulder fired RPG's, Mortars, and probably one or two other things I'm not thinking of.

My point is, if Miller says that it has to have a military purpose to be protected by 2A, and if there are no military arms less dangerous and unusual than the first category I devised, then how can military small arms NOT fall under 2A protection?

Last edited by maestro pistolero; November 20, 2008 at 05:36 AM.
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