Thread: 1986 Gun ban
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Old January 14, 2010, 06:21 PM   #40
maestro pistolero
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Join Date: August 16, 2007
Posts: 2,153
T.G:
Quote:
I am not sure Heller said that. Certainly not in any way you could have this right to assert against as an individual not in a militia.
Heller vs DC:
Quote:
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.
Note that Scalia did not say that 2A right was detached from the prefatory clause. Only that it may be objected that if there's a ban, then the clause is completely detached. But, if it was detached, then ONLY the individual right would remain to be asserted.

Quote:
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.
NFA weapons are not illegal under federal law, only regulated, and therefore are lawful weapons.
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.
What are the sophisticated arms he is talking about here? Certainly, FA, which has been around for a very long time is not even slightly sophisticated compared to tanks, and fighter jets.

Quote:
Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks.
That's lliterally true, but no war can be won with tanks and planes alone, unless annihilation is the means to victory. We've seen this in every war we've fought, especially from Vietnam forward. It always comes down to small arms in the end.

Then Scalia offers this:
Quote:
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.
So even though small arms no longer alter the balance of power to the same degree, they are still protected, and can not be banned. Regulated, yes. But most of us would agree that the Hughs amendment, which closes the registration on an item that is required to be registered, is a de-facto ban.

And finally from pages 24-25 of the decision:

Quote:
There are many reasons why the militia was thought to
be “necessary to the security of a free state.” See 3 Story
§1890. First, of course, it is useful in repelling invasions
and suppressing insurrections. Second, it renders large
standing armies unnecessary—an argument that Alexan*
der Hamilton made in favor of federal control over the
militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed.
1961) (A. Hamilton). Third, when the able-bodied men of
a nation are trained in arms and organized, they are better
able to resist tyranny.

Last edited by maestro pistolero; January 14, 2010 at 06:38 PM.
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