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Originally Posted by BR
And that’s probably because the whole naked “who cares what the Constitution says, let’s do what five of the nine of us thinks is best” tone of this piece is very off-putting to me and indicates we just don’t share a common basis in our philosophies.
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Succinct and on the nose.
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Originally Posted by 5whiskey
So taking the ruling in Miller at face value, as Former Justice Stevens does, the courts decided that the 2nd A does not grant rights not tied to a "well regulated militia." Well, I've often thought about "what is the militia." It is obvious that the "Militia" was never intended to be the formalized force that exists today as the National Guard, complete with pay and Tricare. No, surely the "Militia" is more than that, right? Well, I found the federal definition of "Militia"
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Indeed, "the Militia" is not the organized militia.
My recollection of Miller is that the court found against Miller on the basis that his shotgun was not related to militia service, not that it was not tied to a militia (well regulated or otherwise).
Under the logic of Miller, a side by side shotgun might not have enjoyed 2A protection, but a selective fire AR most certainly would have; that's exactly the kind of arm that would be most useful in militia service. Also useful might be ammunition with steel penetrator cores and standard capacity magazines. Under the logic of Miller, short barreled shotguns would likely also enjoy protection for the purpose of taking the hinges and/or lock off doors.
The Heller/Scalia analysis is superior to that set forth in Miller, but that doesn't mean that the Miller rationale leads inexorably to people not having 2A rights of some sort.
JPS's formula was displayed in his dissent in Citizen's United as well -- the tenor of his response to a constitutional limitation is "...but I
really think this is a big problem that the government must address". It's a naked policy argument.