Thread: Well Regulated
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Old February 6, 2013, 06:23 PM   #20
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Join Date: July 5, 2008
Posts: 182
The need for a definition has been mooted by the SCOTUS decision in District of Columbia v. Heller. They held that the well regulated clause is prefatory, and not militia membership is not a requirement to bear arms. The RKBA is an individual right.
SCOTUS was wrong in Heller in that you can't separate the militia from the 2nd Amendment.

They are correct in that the second-half of the sentence doesn't say the right of the militia to keep and bear arms shall not be infringed. There is no militia membership required. But the relationship strengthens the amendment, making it clear that the people should have every "terrible implement of the soldier."

Originally Posted by Tench Coxe
The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY.

The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. 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 birthright of an American. What clause in the state or [federal] constitution hath given away that important right .... [T]he unlimited power of the sword is not in the hands of either the foederal or state governments, but where I trust in God it will ever remain, in the hands of the people.
Justice Scalia has made it clear that he supports gun control, reasonable restrictions, and any ban of any weapon that cannot be "borne" - even though the Constitution does not protect your rights to keep arms as long as you bear them in your arms. Since there is no requirement that your arms be borne, there is also no limit that can be inferred that says they must be able to be borne. It only says you can keep any arm you choose and, if you choose to, you can bear it. Otherwise, does the right apply differently to Lady Gaga than it does to Arnold Schwarzenegger? Who decides what can be borne?

Originally Posted by Supreme Court Justice Scalia
“Some [limitations] undoubtedly are because there were some that were acknowledged at the time,” he continued. “There was a tort called a “frighting” which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor. So yes there are some limitations that can be imposed, what they are will depend on what the society understood were reasonable limitations at the time.”
So Scalia says that scary guns can be banned even though that is clearly not the intent of the Founders. Heller lays the groundwork upon which SCOTUS can ban those ugly or scary guns. It is the militia clause of the 2nd Amendment that makes the case that they cannot ban those guns.

Heller wasn't a victory; it was a distraction.
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