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Old February 27, 2009, 02:00 AM   #1
maestro pistolero
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Could this mean that a semi auto ban would be overturned?

Isn't Justice Scalia saying here what the court meant by dangerous and unusual weapons, and doesn't this statement clearly draw a distinction between sophisticated military arms and small arms such as the M16?

Justice scalia. writing (in dicta) for the majority in Heller Vs DC

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause.
But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty.

It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks.
But the fact that modern developments have lim*
ited the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the
right.
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Old February 27, 2009, 07:45 AM   #2
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I'm not a lawyer. I don't play one on TV and I didn't stay at a holiday inn last night. My read on Heller is that you can place some additional restrictions on military weapons but an out right ban is out. I think that is how the big O and Nancy see it too. I think he is hoping to get to pick a Supreme Court judge or two before they go the ban route. The problem with that is George picked young judges.
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Old February 27, 2009, 12:39 PM   #3
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Quote:
I think he is hoping to get to pick a Supreme Court judge or two before they go the ban route
It would be hard to do worse than Stevens or Ginsburg, who agreed that it was an individual right, but thought the ban was constitutional anyway.
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Old February 27, 2009, 02:07 PM   #4
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We could get into another argument over exactly what kind of "arms" are protected by the 2nd Amendment here. Hopefully we can limit this discussion to "portable firearms" and not crew-served weaponry or artillery/RPG type weapons.

From my reading, Scalia is saying that to ban rifles like the M-16 would require detaching the right from the prefatory clause (A well regulated militia being necessary to the secuirty of a free state, ... and that this cannot be done for reasons articulated in the decision.

I think this leaves open the question of whether or not closure of the NFA registry and the ban on transferring new Class III firearms are permissible.

In the second paragraph, Scalia addresses the argument that pitting small arms against modern armor and aircraft makes the whole militia-vs-tyranny argument silly. But he says that while technology may create such an argument, it cannot change the validity of the right (as the court interprets it).

Further court decisions will be required to make sense out of which firearms are "in common use". Certainly, the AR-10/15 series, AK/SKS series, HK-G series semi-auto rifles are in common use, as are the Barrett .50 rifles. But are M1928 Thompsons? Uzi and Ingram SMGs? How about .30 and .50 caliber Browning MGs?

I would suggest these are "in common use" but also limited use due to current restrictions and the cost of the firearms and ammo. One could argue either way with the M-14 rifle since few were ever sold as surplus. But there is no doubt they would be in common use if they were made available as surplus rifles like the M1 Garand.
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Old February 27, 2009, 03:04 PM   #5
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But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
I think he is saying that the militia as a primary protector of the state (from enemies foreign and domestic NOT the government) is no more and just the militia today is a dead letter. However, the protected right which is the right to keep and bear arms, is still protected even though the fit between it and the militia is no more. I think he is speaking against those who posted here in this thread:http://www.thefiringline.com/forums/...d.php?t=338159 that the 2A gives ordinary citizens protected legal access to military arms.

I think it was important to decouple the militia, which is no more, from the right of all citizens to keep and bear arms. The Brady's wanted to couple them to render the individual right moot.
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Old February 27, 2009, 03:07 PM   #6
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We could get into another argument over exactly what kind of "arms" are protected by the 2nd Amendment here. Hopefully we can limit this discussion to "portable firearms" and not crew-served weaponry or artillery/RPG type weapons.
I would tend to agree, but even the cannons of the revolution were crew-served.

I'm not sure, that under the theory that this passage illuminates what is protected, that the a SAW (as in M249) wouldn't be protected.

I. for one, would rather see some special requirements on the public owning weapons such as an M249 (such as secure storage requirement, some level of training certification, etc.) than to see them prohibited outright.

I think when we get in to the category of mortars, grenages, shoulder fired rockets, etc, these are probably dangerous and unusual.
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Old February 27, 2009, 03:10 PM   #7
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I think it was important to decouple the militia, which is no more . . .
There are some active, state sanctioned militias who make take issue with that statement. And isn't the ability to raise a militia inherent in 2A?

Quote:
I think he is speaking against those who posted here in this thread
I'm having trouble reading it that way. He's saying IF M16s that are useful for military/militia use are prohibited, IT MAY BE OBJECTED that the first clause would be entirely separated from the first. Isn't he saying that would amount to passing a law which circumvents the amendment, otherwise what would the objection be?

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Old February 27, 2009, 03:15 PM   #8
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Quote:
Originally Posted by BillCA
Hopefully we can limit this discussion to "portable firearms" and not crew-served weaponry
The misunderstanding that many have about "crew-served" weapons is that the term is really a military one denoting that more than one person is assigned to the weapon.

It does not mean that it takes more than one to carry and operate it. Typically, the extra assigned body carries extra ammo and/or some other accessories.

One can operate and carry a M249 or M240 or M60 pretty much as easily as they could an M16.

That is why drawing a line there isn't really good IMO because the operation is the same and that is full auto. The same is true for other weapons systems such as the Stinger and AT-4, or LAW.
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Old February 27, 2009, 03:19 PM   #9
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Quote:
Originally Posted by maestro pistolero
There are some active, state sanctioned militias who make take issue with that statement. And isn't the ability to raise a militia inherent in 2A?
The ones I have had shown to me are nothing like the ones that were present in 1789 when the 2A was written. One I looked at wasn't even armed but simply would perform humantarian operations. That is not a ture militia. As to raising a militia, sure a state could and then after it was called up by competent authority issued all kinds of weapons. But I wouldn't hold my breath on that one. Today we are protected by a modern standing Army and professional police forces.
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Old February 27, 2009, 03:31 PM   #10
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Quote:
Originally Posted by maestro pistolero
Isn't he saying that would amount to passing a law which circumvents the amendment, otherwise what would the objection be?
I think he is saying that times have changed and the fit between the well-regulated militia and the right to keep and bear arms isn't there anymore but that still doesn't mean we don't have a right to own firearms in common use for our personal self defense. This is in contast to the Brady's who said the right to keep and bear arms was only related to service in the militia. What I have heard Walter Dellinger say in other interviews is that if a state wanted to raise a militia and arm it, Congress couldn't stop them from doing so and that was what the 2A protected. SCOTUS disagreed.
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Old February 27, 2009, 03:47 PM   #11
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A couple of small points.

While congress has the authority to call forth the militia, it does not create the militia, which already exists.

Quote:
Further court decisions will be required to make sense out of which firearms are "in common use". Certainly, the AR-10/15 series, AK/SKS series, HK-G series semi-auto rifles are in common use, as are the Barrett .50 rifles. But are M1928 Thompsons? Uzi and Ingram SMGs? How about .30 and .50 caliber Browning MGs?

I would suggest these are "in common use" but also limited use due to current restrictions and the cost of the firearms and ammo. One could argue either way with the M-14 rifle since few were ever sold as surplus. But there is no doubt they would be in common use if they were made available as surplus rifles like the M1 Garand.
I wouldn't be ardent in interpreting "in common use" to instead mean "in common use amongst civilians". Various iterations of select fire rifle have been in common use for decades. Is there a rifle more commonly used than the M16 in all its forms?
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Old February 27, 2009, 04:00 PM   #12
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dangerous and unusual.

A "trained" man eating tiger is dangerous.

If legal mortars and RPGs would almost certainly not be unusual. If I could pick up an RPG for $500 as can be done in some parts of the world I would probably do it. Then I would buy a junker GM product and introduce the two. In a reasonably controlled environment with practical safety taken.

Yes I know it is possible to own a mortar or RPG, but restrictions have made them illegal practicaly speaking.
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Old February 27, 2009, 04:19 PM   #13
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Originally Posted by johnwilliamson062
Then I would buy a junker GM product and introduce the two.
Sounds like fun. Send me an invite!
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Old February 27, 2009, 04:28 PM   #14
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Quote:
The misunderstanding that many have about "crew-served" weapons is that the term is really a military one denoting that more than one person is assigned to the weapon.

It does not mean that it takes more than one to carry and operate it. Typically, the extra assigned body carries extra ammo and/or some other accessories.
I think some people use the term "crew served" to denote weapons that take more than one person to transport or operate or are usually mounted on a vehicle. The 249, 240, and 60 are not "crew served" in this sense but the M2 would certainly be.
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Old February 27, 2009, 04:35 PM   #15
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Today we are protected by a modern standing Army and professional police forces.
Not the police force. The SCOTUS says they have no duty to protect. And not the military, presently at least, because they are scattered around the world.

Quote:
Congress couldn't stop them from doing so and that was what the 2A protected. SCOTUS disagreed.
That's interesting, which case was that?
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Old February 27, 2009, 05:13 PM   #16
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Quote:
Originally Posted by maestro pistolero
Not the police force. The SCOTUS says they have no duty to protect.
In individual situations perhaps and as protection against civil suits from individuals. They do protect society as a whole as serve in that way. They enforce the law rather than groups of vigilantes.

Quote:
Originally Posted by maestro pistolero
And not the military, presently at least, because they are scattered around the world.
Fighting our enemies and yes they are protecting us.

Quote:
Originally Posted by maestro pistolero
That's interesting, which case was that?
Heller. Walter Dellinger was the lead counsel for the District.
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Old February 27, 2009, 05:27 PM   #17
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Fighting our enemies and yes they are protecting us.
Of course you are correct.

Quote:
What I have heard Walter Dellinger say in other interviews is that if a state wanted to raise a militia and arm it, Congress couldn't stop them from doing so and that was what the 2A protected. SCOTUS disagreed.
I didn't realize you were referring to Heller. How did they disagree? I don't recall anything in the text of Heller about the rights a of states to raise militias.

Saying the right is not necessarily linked to militia service isn't the same thing as saying the right of a state to raise a militias no longer exists, or that the right of the people to keep arms suitable for militia use is no longer protected.
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Old February 27, 2009, 05:38 PM   #18
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Quote:
Originally Posted by maestro pistolero
How did they disagree? I don't recall anything in the text of Heller about the rights a of state's to raise militias.
This is what Walter Dellinger said would be todays practical application of the 2A. In other words the 2A (according to Dellinger) protected the states right to raise a militia and arm it if they saw fit. Of course, since there is no militia today it renders the right to keep and bear arms moot if you go along with Mr. Dellinger's reasoning. SCOTUS disagreed fortunately.

So, the antigun strategy was thus: The right to keep and bear arms is predicated on service in the militia. The militia isn't around anymore so there is no right for an individual to keep and bear arms and we may legislate whatever restriction or ban we wish on firearms in the interest of public safety. That is what IMO they disagreed on. Some may articulate it better than I but then I am not anti-gun
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Old February 27, 2009, 09:22 PM   #19
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"the militia isn't around anymore"

The organised milita isn't......

The unorganised militia (as defined in US law) still is.
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Old February 28, 2009, 01:53 AM   #20
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Originally Posted by 44 AMP
The unorganised militia (as defined in US law) still is.
Which is nothing more than a pool of people that the Organized Militia draws its members from and has no rights, duties or responsibilities. The Unorganized Militia (from the Militia Act of 1903) is NOT the Well-Regulated Militia defined in the 2A.
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Old February 28, 2009, 02:15 AM   #21
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The problem I see is that as long as we have a highly politicized administration appointing politicized justices, sound logic such as Justice Scalia brings become moot. It matters not how well reasoned the argument is when a political agenda is being crammed down our throats. While we may have a leg to stand on at this time due to the current makeup of the SC, that situation eventually will deteriorate as long as leftists remain in power in the legislative and executive branches.

It is all relative. It all depends on political whims. Unfortunately, we can't rely on our government remaining true to the founding documents and founding principles, we haven't been able to do so for most of our lifetimes.
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Old February 28, 2009, 11:25 AM   #22
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Quote:
I would tend to agree, but even the cannons of the revolution were crew-served.

I'm not sure, that under the theory that this passage illuminates what is protected, that the a SAW (as in M249) wouldn't be protected.
This is precisely why I wanted to avoid the topic as it gets iffy as to where you draw the line. Certainly cannon were used in the Revolutionary War and some folks owned armed ships. But these are topics that distract from the real issue of "small arms" ownership.

Quote:
I think he is saying that the militia as a primary protector of the state ... is no more and just the militia today is a dead letter.
I don't read it that way. What he said...
Quote:
It may well be true today that a militia, to be as
effective as militias in the 18th century, *would require
sophisticated arms that are highly unusual in society at
large.
It might be that today's militia would not be as effective in battle as one in the 18th century, but that's not a reason to nullify or reject the guaranteed right.

Quote:
Today we are protected by a modern standing Army and professional police forces.
Only in the crudest sense. Police & military forces act to guard government interests. Police are to solve crimes in the civilian circles and help apprehend and prosecute offenders. As government agents, they can be (and have been) told to ignore certain types of crime to focus on others. Or they could be told to only protect a subset of society - businesses and government facilities. The military's function is to fight against national enemies abroad or to repel any attempted invasion.

Neither is required to actually protect the citizens at large or any individual.

Quote:
I think he is saying that times have changed and the fit between the well-regulated militia and the right to keep and bear arms isn't there anymore but that still doesn't mean we don't have a right to own firearms in common use for our personal self defense.
Again, I disagree. That is NOT what he said.

He said the "fit" between today's militia and it's obstensive mission (including retaking a tyrannical gov't) could be argued because a self-armed militia could not compete with a modern army using armor, heilos and modern c3 systems.

Opinion: In the OP's first paragraph it seems that Scalia is saying "some folks might say that if you can ban M-16's, then the right could be limited to single-shot .22 short rifles." and then he adds (paraphrased) But as we have said, the concept of the militia was citizens would bring the sorts of lawful weapons that they possessed at home to militia duty.

What Scalia appears to be saying is that the court recognizes the initial "parity" the original milita forces had and that's no longer the case. But still, the concept was that citizens brought their own arms of whatever type they owned that were common at that time.

Quote:
I wouldn't be ardent in interpreting "in common use" to instead mean "in common use amongst civilians".
This is an excellent point. The court did not specify common civilian use. Nice catch zukiphile!

Quote:
Which is nothing more than a pool of people that the Organized Militia draws its members from and has no rights, duties or responsibilities. The Unorganized Militia (from the Militia Act of 1903) is NOT the Well-Regulated Militia defined in the 2A
.

Again, I must disagree with your interpretations TG. "The Militia" is, in fact, every civilian capable of bearing arms. I'll let others speak on this subject:
Quote:
"I think the truth must now be obvious that our people are too happy at home to enter into regular service, and that we cannot be defended but by making every citizen a soldier, as the Greeks and Romans who had no standing armies; and that in doing this all must be marshaled, classed by their ages, and every service ascribed to its competent class."
--Thomas Jefferson to John Wayles Eppes, 1814.
Quote:
"The great object is, that every man be armed."
-- Patrick Henry
Quote:
"That the people have a Right to mass and to bear arms; that a well regulated militia composed of the Body of the people, trained to arms, is the proper natural and safe defense of a free State..."
-- George Mason
Quote:
"... who are the militia, if they be not the people of this country...? I ask, who are the militia? They consist of now of the whole people, except a few public officers."
-- George Mason Elliot, Debates at 425-426
Quote:
Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ... the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people. "
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Are they not ourselves?

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Old February 28, 2009, 01:04 PM   #23
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Quote:
Originally Posted by BillCA
It might be that today's militia would not be as effective in battle as one in the 18th century, but that's not a reason to nullify or reject the guaranteed right.
I think he is saying what I believe in that the militia is no more because if they were they would have all the modern military weapons available to them which they do not today. The guaranteed right he is talking about is the Right to Keep and Bear Arms apart being in a militia.

Quote:
Originally Posted by BillCA
Only in the crudest sense. Police & military forces act to guard government interests. Police are to solve crimes in the civilian circles and help apprehend and prosecute offenders. ...The military's function is to fight against national enemies abroad or to repel any attempted invasion.
Neither is required to actually protect the citizens at large or any individual.
Precisely what the militia did the army and police forces do today. The militia that existed in 1789 is no more and it's lineal descendant is the National Guard. What is still true however, is the right to personal self defense.

Quote:
Originally Posted by BillCA
Again, I disagree. That is NOT what he said.
He said the "fit" between today's militia and it's obstensive mission (including retaking a tyrannical gov't) could be argued because a self-armed militia could not compete with a modern army using armor, heilos and modern c3 systems.
I think when Scalia says:
Quote:
degree of fit between the prefatory clause and the protected right
he is talking about the first clause of the 2A fitting with the operative clause "keep and bear arms" He is saying they don't fit together today as they did in 1789. Since there was no large standing army or professional police force in place the militia filled those needs and they don't today.

Quote:
Originally Posted by BillCA
I'll let others speak on this subject:
So will I:

Quote:
D. The Decline of the General Militia in America

The inclusion of the militia provisions in what became the Second and Fifth amendments proved insufficient to prevent the original ideal of the American militia from ultimately going the way of its English counterpart.

Pre-1789 American political thought had emphasized the need to enroll all citizens--or at least freeholders--for militia duty, and had rejected the idea of a "select militia," in which only a portion of the population was enrolled. Provisions that authorized the new Congress to provide for the arming and organizing of the national militia were seen as allowing it to require that all citizens possess arms of uniform caliber and conform to a standard of drill. In practice, while various administrations prepared detailed plans along those lines, Congress refused to enact them.
In 1792, Congress enacted the first (and until 1903, the last) national Militia Act. While this Act required all white males of military age to possess a rifle or musket--or, if enrolled in cavalry or artillery units, pistols and a sword--it did nothing to guarantee uniformity of calibers, fixed no standards of national drill, and failed even to provide a penalty for noncompliance. The subsequent presidential calls for detailed organization of a national citizen army went unheeded. By 1805, even Jefferson was reduced to asking for a select militia, which had been anathema even to conservatives a few years before. In a message to Congress Jefferson stated, "I can not, then, but earnestly recommend to your early consideration the expediency of so modifying our militia system as, by a separation of the more active part from that which is less so, we may draw from it when necessary an efficient corps fit for real and active service, and to be called to it in regular rotation."

Within two decades of the ratification of the Constitution, American political leaders had abandoned the original concept of the militia, and in the words of one historian, "The ideological assumptions of revolutionary republicanism would no longer play an important role in the debate over the republic's military requirements." [160]THE MILITIA AND THE CONSTITUTION: A LEGAL HISTORY by William S. Fields & David T. Hardy Military LAw Review 1992
Here is the dirty little secret about the militia and why it is no more. Except for a very few gun sub-culture folks, the American People don't want one, have no interest in one and haven't since the 1800s. That is why we pay others today to fight in our place either cops or soldiers. No judgements from me as to the civic nobility of that attitude but it is fact. We got rid of the militia and it exists no more.

Quote:
Originally Posted by BillCA
"The Militia" is, in fact, every civilian capable of bearing arms.
Bill, with all due respect and no offense, but that statement today is a fiction and has been for over 100 years.
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Old February 28, 2009, 02:08 PM   #24
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This is precisely why I wanted to avoid the topic as it gets iffy as to where you draw the line.
It's because it's where the line must be drawn that it's worthy of discussion, in my opinion. Why would that be a reason to shrink away from a topic?
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Old February 28, 2009, 03:27 PM   #25
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One of Scalia's virtues as a jurist is clarity. If he wanted to write that the militia doesn't exist, it would be within his ability to write that.

Quote:
Originally Posted by TennGent
We got rid of the militia and it exists no more.
This is incorrect, and has been demonstrated incorrect to this specific writer many times. One can only guess at the motivation for continuing to misstate the fact of the issue.

Quote:
Originally Posted by TennGent
The militia that existed in 1789 is no more and it's lineal descendant is the National Guard.
That is incorrect. The National Guard are analogous to the organised militia, not the militia.

Quote:
Originally Posted by TennGent
...the militia is no more because if they were they would have all the modern military weapons available to them which they do not today.
This incorrectly assumes that the population of the militia are defined by the arms they carry. This has never been so, and assuming that Scalia would indulge in such a poorly constructed rationale is hardly complimentary.
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