Scalia and Machine Guns comments used by gun grabbers

[FromMyColdDeadHand]

From Scalia's decision in Heller:

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 limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

So the left uses the "M-16 rifles and the like—may be banned" and pivots that AR15s are very much like M16, so they can be banned. I've even seen gun people say that M16 can be banned because of the Heller text.

But if you read the whole paragraph, doesn't it say that the 2A phrase "A well regulated militia" implies that people have the right to effective small arms for combative encounters. And those include things like M16/Full-auto, right?

This is also in the dicta, not the main holding (is that the right terminology?)

[Hush]

Our rights are only as safe as we allow them to be, subject to who controls the levers of government. People have been bickering about it for hundreds of years, people will interpret things based on whatever political viewpoint they hold. It's pretty clear that the intent of the second amendment was to protect our citizenry from a tyrannical government. The side that wants to take guns away is letting you know exactly what they are. The types of guns, hunting and sporting, has absolutely nothing to do with the second amendment but we have allowed ourselves to be subjugated by a political class, on BOTH "sides", that does not represent our interests.

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[SteyrAUG]

The Federalist Papers make it clear who is the "militia" referred to in the Constitution.

The problem came with the Dick Act / Militia Act of 1903 which changed the definition of the militia into the "organized militia" which was declared to be the National Guard and the "unorganized militia" which was able bodied citizens.

The problem with the National Guard as the "constitutional" militia is it already existed and actually predates the constitution having been founded in 1636. The second problem is the National Guard is a government entity so it can in no way be the "militia" referred to by the US Constitution. But they went ahead and did it anyway.

The problem with the "unorganized militia" is it's never been strictly defined and certainly has never been called up, it was put there as a loophole to be able to say "we still have a citizen militia."

So if we really want the second amendment to truly mean what it says, the Dick Act is just one more piece of unconstitutional legislation that must be eliminated. And until it is, arguments about the "militia" will be meaningless because any judge will simply look it up and determine the "national guard is currently the legal militia."

[FromMyColdDeadHand]

I was looking more for insight into Scalia’s comments specifically.

I don’t think that the militia definition is that important, since it is in the pre-clause. The operative clause is “The right of the people to keep and bear arms shall not be infringed.” And the definition of ‘the people’ is the class in relation to ‘arms’.

What I was looking for was the actual meaning of what Scalia was writing- I don’t see a ‘no machine guns’ and since Miller said that guns for military service are protected, I don’t get the problem.

[SteyrAUG]

I was looking more for insight into Scalia’s comments specifically.

I don’t think that the militia definition is that important, since it is in the pre-clause. The operative clause is “The right of the people to keep and bear arms shall not be infringed.” And the definition of ‘the people’ is the class in relation to ‘arms’.

What I was looking for was the actual meaning of what Scalia was writing- I don’t see a ‘no machine guns’ and since Miller said that guns for military service are protected, I don’t get the problem.

Ultimately everything circles back to the second amendment and anyone who wants to limit it focuses on the word "militia."

[FromMyColdDeadHand]

Actually, it seems that the Militia argument is about as deprecated as the ‘hunting’ rationale for the 2A.

From Heller:
PRIMARY HOLDING
Private citizens have the right under the Second Amendment to possess an ordinary type of weapon and use it for lawful, historically established situations such as self-defense in a home, even when there is no relationship to a local militia.


So maybe we can leverage militia to get cooler stuff, but the militia was a key part of the collective right argument, which got trounced. “The people” is the key group, no the ‘militia’.


It seems the left is hanging their hats on:
All semiautos can be banned by association with full autos
Dangerous OR unusual, or the newest ‘dangersously unusual’ instead of “Dangerous AND unusual”
Magazines aren’t arms, so they can be regulated
And missapplying the “tech and society” changes verbiage

[ABNAK]

The Leftist POS will twist it to mean whatever they want it to.

[sndt1319]

Why doesn’t the Miller decision do more for us now? At the time no Army issued SBR’s or suppressors as standard issue. Now the Army standard issues SBR’s and the Marine Corps issues Suppressors. Why can’t we say that these can’t be regulated anymore because they are useful for military Arms and so protected by Miller?

[FromMyColdDeadHand]

Why doesn’t the Miller decision do more for us now? At the time no Army issued SBR’s or suppressors as standard issue. Now the Army standard issues SBR’s and the Marine Corps issues Suppressors. Why can’t we say that these can’t be regulated anymore because they are useful for military Arms and so protected by Miller?

Also Miller and the NFA is a TAX issue, not an actual ban, but effectively a ban. Machine guns, that are registered, are never used in crimes, even when they were ‘only’ $200. Registered NFA items in general have to be almost never used.