SOMERVILLE COMMENTARY ON THE HELLER OPINION
Reviewing the Heller Opinion by Justice
Scalia shows a much bigger victory for Militia Rights and Second Amendment
rights than might appear at first reading, and likely much more than our
secret Neocon Scalia intended.
I’ve read news articles that claim the collective vs. individual rights question was not answered. Reading the Holdings in the Opinion, paragraph 1(f):
"(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U.S. 542, 553, nor Presser v. Illinois, 116 U.S. 252, 264- 265, refutes the individual rights interpretation."
Individual rights were determined to be "the Court’s interpretation; and it is therein claimed that all the Supreme Court’s prior opinions have supported that interpretation. The Holdings read as if the Supreme Court has been of this opinion forever. In Opinion section II A.1.(a) "Right of the People., Scalia directly addresses the nonsense of reading "right of the people" to mean a collective right:
a. "Right of the People." The first salient feature of the operative clause is that it codifies a "right of the people." The unamended Constitution and the Rill of Rights use the phrase "right of the people" two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage. others retained by the people"). All three of these instances unambiguously refer to individual rights, not "collective" rights, or tights that may be exercised only through participation in some corporate body. ....
We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans …
Collective Rights Theory, now then, should be properly recorded in the Public School textbooks as a tyrannical anti-constitutional hoax and fraud perpetrated by the Federal Judiciary. It is now a lesson in history for all of We The People. Many news articles are focusing on Holdings paragraph 2, and quoting:
"The Court’s opinion should not be taken to cast
long-standing prohibitions on the possession of firearms
by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools
and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms."
In this, Neocon Scalia is trying to hold onto all these last seventy years of treasonously stolen rights of the people under Collective Rights Theory based rulings. Unfortunately for Scalia, in his camouflaged bid to appear as the protector of Originalist inter-pretation, he let enough of the truth into the Court’s opinion to sink his hidden agenda; or perhaps he actually did it on purpose as a true Originalist and used his interpretive dances to co-opt swing votes he needed to win this prestigious victory.
Most of his citations of court interpretations and "approved" Commentaries and of those individuals who actually ratified the Second Amendment when it was adopted, read right out of the Individual Rights handbook. Some of these citations from each period even reach a long way into the plainly intended prohibition against any infringement of the right at all. Quoting from Opinion Section
II D. 1. Post-ratification Commentary:
"In 1825, William
Rawle, a prominent lawyer who had
been a member f the Pennsylvania Assembly that ratified the Bill f Rights, published an influential
treatise, which analyzed the Second Amendment as follows:
"The first [principle] is a declaration that a well regulated militia is necessary to the security 9f a free state; a proposition from which few will dissent....
"The corollary, from the first position is, that the flight of the people to keep and bear arms shall not be infringed.
The prohibition is
general. No clause in the
constitution by any role of construction be
conceived to give to Congress a power to
disarm the people. ..."
Scalia goes on to reference Joseph Story in this Section:
published his famous Commentaries on the
Constitution of the United States in 1833. .... "
"In addition, in a shorter
1840 work Story wrote: "One of
the ordinary modes, by which tyrants accomplish their
purposes without; resistance, is, by disarming the
people, and making it an offence to keep arms, and by
substituting a regular army 4n the stead of a resort
to the militia." A Familiar’’ Exposition
Constitution of the United States 6 450...."
In Opinion Section II D. 2. Pre-Civil War Case Law., Scalia makes these amazing statements in the Court opinion:
"In Nunn v. State. 1 Ga. 243.251 (1846), the
Georgia Supreme Court construed the Second
Amendment as protecting the "natural right
of self-defense" and therefore struck down
a ban on carrying pistols
openly. Its opinion
perfectly captured the way in which the operative clause if the Second Amendment furthers
the purpose announced in the prefatory clause,
in continuing with the English right:
"The right of the whole people, old
and young, men, women and boys, and
not militias only, to keep and bear
arms of every description, and not
such merely as are used by
shall no be infringed curtailed or
broken upon in the smallest degree;
and all his for the important end to
be attained: the rearing up and
qualifying a well-regulated
so vitally necessary to the security
of a free State. Our opinion is, that
any law, State or Federal,
to the Constitution, and void, which
contravenes this right, originally
belonging to our forefathers..."
What do you think Scalia
is trying to do here by citing this
case opinion and claiming that it perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause? If this IS the truly PERFECT understanding, then there can be no claim made by any State or Federal government action that BANNING possession of ANY kind of arms is Constitutional. Later on he back-peddles on this position. Of course, in 1846 they were much closer to knowing the true ORIGINAL Intent than Neocon Scalia is today, when he tries to distort this perfect statement of intent, and purpose.
Opinion Section II D. 3. Post-Civil War Legislation.,
"Similar discussion attended the passage of the
Civil Rights Act of 1871 and the Fourteenth Amendment.
example, Representative Butler said of the Act:
"Section eight is intended to enforce the well-known
constitutional provision guaranteeing the right of
the citizen to keep and bear arms,’ and provides
that whoever shall take away, by force or violence, or
by threats and intimidation, the arms and weapons
which any person way have for his defense, shall be
deemed guilty of larceny of the same." H.R.Rep. No.
37, 41st Cong., 3d Sess., pp. 7-8 (1871). ..."
With this much historical
documentation and weight behind the
"well-known constitutional provision guaranteeing the right of
the citizen to keep and bear arms", it is not possible to view
the actions of Federal Judges in the 20th century denying the
existence of any individual right as anything other than treason
against the people an the Constitution. An agenda of evil has
been afoot for some time now in our federal courts.
In Opinion Section II D. 4. Post-Civil War
"Every late-19 h-century legal scholar that we
have read interpreted the Second Amendment to secure
an individual right unconnected with militia service.
The most famous as the judge and professor Thomas
Cooley, who wrote a massively popular 1868 Treatise
on Constitutional Limitations. Concerning the
Second Amendment it said:
"Among the other defenses to personal liberty
should be Mentioned the right of the people
to keep and bear arms... The alternative to
a standing ;army is ‘a well-regulated militia,’
but this cannot exist unless the people are
trained to bearing arms. Scalia goes on in reference to Cooley, "The Second Amendment, he said, "was adopted with some modification and enlargement from the English Bill of Rights of 1688..."",and further citing from Cooley’s writing:
"It might be supposed from the
phraseology of this
provision that the right to keep and bear arms was
only guaranteed! to the militia; but this would be an
interpretation not warranted by the intent. The
militia, as has been elsewhere explained, consists
of those person$ who, under the law, are liable to
the performance; of military duty, and are officered
and enrolled for service when called upon. But the
law may make provision for the enrollment of all who
are fit to perform military duty, or of a small
number only, or it may wholly omit to make any
provision at al’; and if the right were limited to
those enrolled, the purpose of this guaranty might
be defeated altogether by the action or neglect to
act of the government it was meant to hold in check.
The meaning of the provision undoubtedly is, that
the people, from whom the militia must be taken,
shall have the right to keep and bear arms; and they
need no permission or regulation of law for the
purpose. But this enables government to have a well-
Scalia then cites another powerful passage from another Commentator:
"[The purpose of
the Second Amendment is] to secure a
well-armed militia....But a militia would be useless
unless the citizens were enabled to exercise themselves
in the use of warlike weapons. To preserve this privilege,
and to secure to the people the ability to oppose
themselves in military force against the usurpations
of government, as well
as against enemies from without,
that government is forbidden by any law or proceeding
to invade or destroy the right to keep and bear arms....
The clause is analogous to the one securing the freedom
of speech and of the press. Freedom, not license, is
secured; the fair use, not the libelous abuse, is
protected." J. Pomeroy, An introduction to the Constitutional Law of the United States 152-153 (1868)
Scalia then quotes
another powerful passage from yet another
Commentator regarding the public welfare:
"Some general knowledge of firearms is important to the public welfare; because it would be impossible, in case of war, to organize promptly an efficient force of volunteers unless the people had some familiarity with weapons of war. The Constitution secures the right of the people to keep and bear arms. ..." B. Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land 333 (1880).
Why would Scalia go to all this trouble to cite these kind of passages and then later try to claim that the people’s right to possess military arms does not exist? He uses these passages to confirm individual rights, but he selectively ignores the rest of the words in these passages when they would upset his true ulterior agenda. Its pretty irrational of Scalia to pretend that all his favored historical figures Only got it half right.
The Holdings in Heller,
referring again to paragraph 1(f),
state: "United States v. Miller, 307 U.S. 174, does not limit the right to keep and beat arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes." In this we see that Scalia intends somewhat of a distortion and an artful deception, as the Miller case gives its examples of what "common use" means; meant the military type arms commonly in use and that is why the Miller opinion focused its discussion on "ordinary military equipment". A review of subsequent federal case law understood Miller to be discussing military type arms in every case I know of, and its application was only limited because of collective rights theory, so apparently ONLY Scalia knows anything of what Miller actually said. Importantly, Heller is claiming to NOT be overturning Miller. The "in common use at the time"
citation comes from this passage in Miller, 307 U.S. 179:
"And further, that ordinarily when called for service
these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
It is Scalia who has
appended the artful deception of "for lawful
purposes" as if to say that the only arms these men brought with them were arms they used for other purposes. This is plainly NOT true as shown in the Miller opinion. These men were required to possess a certain type of firearm within definite specification, which was the military specification for military arms in common use at the time. Scalia attempts to cast this as a limitation on arms to those which were possessed by the people for other lawful purposes such as hunting, and attempts to claim that the possession of these arms for militia/military purposes was merely an incidental transposition from one purpose to another. Scalia would like to distort the historical record elucidated in Miller with his citation
of State v. Kessler, 289 Ore. 359, 368, 614 P.2d. 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). This citation is hardly authoritative and certainly NOT a case Opinion from the colonial or Revolutionary War era; it is from a book about swords! And indeed, a sword which a man carried for self-defense may also have been the same sword he used for militia purposes. Swords are, however, a very very narrow class of "arms" and certainly do not encompass the matter. Scalia shows his shrewd Neocon chameleon stripes here. Returning to Miller, we see the true historical record. Read the obvious intent to require the people to purchase and possess arms meeting specific military specifications. The specific size of the musket bore and specific barrel lengths (and bayonets), rules out Scalia’s claim about the militia bringing whatever squirrel gun was hanging about the house (unless the Founders used bayonets to hunt squirrels...).
Using a one-ounce ball on a bird or a rabbit might not leave much to eat. The people were required to possess military grade weapons in common use at the time. 1
Miller’s many citations show the
process of evolution of
armaments from 9 foot long pikes, to muskets, to rifles. If Scalia’s Claim that
"dangerous" weapons were banned had been
the original intent of the Founders then no one would be able to possess
anything but muskets to this very day, as surely rifles were "dangerous" and Unusual when they were first devised. They
were certainly more dangerous than muskets as the British government
soldiers learned from South Carolina militiamen:
"In October 1780 at the battle of Kings Mountain,
South Carolina, backwoodsmen militia, proficient with
rifles, surrounded and killed Lt. Colonel Ferguson and 125 experienced soldiers. The militia’s losses were 28 killed and 62 wounded. This tremendous success infuriated Colonel Tarlton, and in January 1781, he decided to attack General Daniel Morgan’s militia at Cowpens, South Carolina. Within one hour, the Battle of Cowpens was over. The British losses were staggering-110 dead, 200 wounded and 500 captured. General Morgan’s militia suffered 12 killed and 10 wounded. The success of this battle was the direct result of experienced militia who were able to kill the enemy redcoats with rifles at long range. .... Over the centuries, a variety of weapons evolved such as the rifle and handgun. These weapons give security to responsible individuals. The Founding Fathers chose their words wisely."(Excerpted from an $8000 Award winning Essay by Meghan Dowd
for the National Rifle Association (2008).
Indeed it is Scalia himself in Opinion Section II D.1., who cites the historical record showing that an "efficient weapon", (i.e., dangerous to the government and government forces), the rifle, was sought to be banned so that the people of Kansas would be effectively disarmed prior to the Civil War:
his famous Senate speech about the 1856 "Bleeding Kansas"
conflict, Charles! Sumner proclaimed:
"The rifle has ever
been the companion of the pioneer and,
under God, his tutelary protector against the red
man and the beast of the forest. Never was this efficient weapon more needed in just
self-defense, than now in Kansas, and
at least one article in our National Constitution must be blotted out,
before the complete Fight to it can in any way be impeached. And yet such
is the madness of the hour, that, in defiance of tie solemn guarantee, embodied
in the Amendments to the Constitution, that ‘the
right of the people to keep and bear
arms shall not be infringed,’
the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed —of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment."
If we take Scalia’s words "for lawful
purposes" into critical
review, we can look to his own upholding of Presser v. Illinois for
protection. Presser said States may ban "bodies of men to associate
together as military organizations", but Presser is also twice
noted by Scalia (in opinion
and footnote 22 in Heller), with another
point in mind: "...the Court stated that "The second amendment
declares that it [i.e the right of bearing arms for a lawful
purpose] shall not be infringed." 92 U.S. at 553." Scalia’s
Heller opinion makes plain that the right of the people to possess arms for militia purposes PRE-DATES the Constitution and is thus in and of itself a lawful purpose to keep and bear arms which is protected and secured by the Second Amendment. It has been widely noted in Congress and case law that Congress enacted the National Firearms Act to address gangster-type unlawful purposes for possessing arms and this, was made clear upfront as an artful pretense of the times to circumvent the Second Amendment protection. As noted by the Supreme Court in Haynes v. U.S., 390 U.S. 85, 19 L.Fd.2d 923 (1968) in footnote 4:
"Nonetheless, it is pertinent
to note that the
Committee on Way and means of the house of
Representatives, while reporting in 1959 on
certain proposed amendments to the Act, stated that the "primary purpose of (the Firearms Act] was to make it m re difficult for the gangster element to obtain certain types of weapons. The type of weapons with which these provisions are concerned are the type it was thought would be used primarily by the gangster type element.""
Keeping this quote in mind, are militia/military type weapons the type of weapons they claim to intend to ban?
Is body armor a gangster-type weapon?
Scalia’s opinion cites in Section II B.:
"Writing for the court in an 1825 libel case, Chief Justice Parker wrote: "The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction." Commonwealth v. Blanding, 20Mass. 304, 313-314."
Scalia also cites this case in Section II D.2.:
"An 1829 decision by the Supreme Court of Michigan said: "The constitution of the United States also grants to the citizen the right to keep and bear arms.- But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose." United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346."
It is Scalia’s own
opinions and citations of original intent which bear out that possession and use, (keeping
and hearing), of arms for militia purposes is not
an "unlawful" or "unjustifiable" purpose. It is
effectively an act of treason for government actors to destroy the fundamental form of individual, state, and national defense,
on the pretext that disarming ALL the people of their effective arms will
disarm a tiny minority of criminals (a matter which
crime statistics show has had little or no effect on criminals and their purposes). The courts have adopted the
noxious rhetoric that only criminals
hive machine guns, and that there could be no
lawful purpose for possessing one, especially since the Second
Amendment did not protect an individual right. Citing the Supreme Court in Cooper v. Aaron, 358 U.S. 1, 16 (1958): "Thus law and order are not here to be preserved by depriving the [people] of their constitutional rights" Taking the rights of all the people to preserve law and order is unlawful and unconstitutional and empirically it has not worked. Citing the Supreme Court in U.S. v. Raines 362 U.S. 17, 4 L.Fd-2d 524, 525 (1960): "...there is the highest public interest in the due observance of all the constitutional guarantees, including those that bear most directly on private
Congress, the Federal Courts, and the Fascist Mainstream
would propagandize that public possession of machine guns or
"dangerous" weapons is a threat to public safety, yet over
160,000 machine guns exist in private hands grandfathered prior to the 1986 ban under 18 USC § 922(o)(1). All those gun owners must feel they have some lawful purpose and they (like other gun owners) are certainly not feeling compelled to commit acts of violence simply because they possess such a "dangerous" weapon. The courts have admitted that mere possession of such dangerous weapons does not create a substantial risk that force or violence will be used against the person or property of someone else. And since this is admitted, how is it justified to disarm all the "law abiding" people of their arms suitable to render effective the militia of the people as per Miller? How does Scalia get away with creating this loophole controversy, claiming that the currently banned weapons are "dangerous" and "unusual"? Citing from U.S. v. Hull 456 F.3d 133,139, (3rd. Cir. 2006) (referencing and taking authority from Leocal v. Ashcroft 543 U.S. 1, 160 L.Ed.2d 271 (2004)):
"The danger; from a
pipe bomb comes not from the
offense of possession, but from the added factor of use of the pipe bomb. See Leocal, 543 U.S. at 9, 125 S.Ct. 377 ("‘use’ requires active employment") (citing Bailey v. United States, 516 U.S. 137, 143, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)(substantive holding superseded by statute)); Bailey, 516 U.S.
at 144, 116 S.Ct. 501 ("use ... requires more than a showing of mere possession"). To commit the offense of possession, Hull merely had to exercise control or dominion over the pipe bomb. There is no risk that physical force might be used against another to commit the offense of possession, regardless of whether pie bombs have a legitimate purpose or not."
here, mere possession of a pipe bomb holds no risk of the intentional
use of force. Even if, as the Government posited at argument, a pipe bomb can unexpectedly explode (and the possessor has
even the most passive constructive possession’s,
such an explosion would not have been the
result of any intentional use of force. Possessing a pipe bomb does not necessarily include a
substantial risk that the possessor
might step in and intentionally
detonate the device,..."
Similarly, taking authority from the same Supreme Court case, the Sixth Circuit came to the same conclusion about other firearms in U.S. v. Amos 501 F.3d 524, 530 "In fact, it appears likely that the act of driving under the influence would be more likely to "involve[) conduct that presents a serious potential risk of physical injury to another," than would’ the mere possession of a sawed-off shotgun. See Leocal, 543 U.S. at 11..."
Amos also takes authority
from the First Circuit case U.S. v. Doe
960 F.2d 221, 224-225(1st.Cir. 1992) when now Supreme Court
Justice Breyer (dissenting in Heller) was Chief Judge in the First
"It is much harder, however, to imagine such
a risk of physical harm
often accompanying the
conduct th4t normally constitutes firearm
possession, for simple possession, even by a
felon, takes place in a variety of ways (e.g.
in a closet, in a storeroom, in a car, in a
pocket) may perhaps most, of which do not
involve likely accompanying violence."
If simple possession of any firearm by a
felon, let alone an
otherwise "law-abiding" citizen, does not carry a substantial
risk of accompanying violence, how does a court justify taking
our Second Amendment tight to keep Arms such as machine guns?
If a felon in possession of a machine gun does not carry a risk
then why is a non-felon who
keeps it for the long-standing lawful
purpose of the militia of the people made into a criminal?
opinion was a unanimous decision which referenced the
credibility of the U.S. v. Doe decision. The Amos court also
makes this point:
"...Michigan actually allows individuals to
carry concealed weapons,
provided they maintain
the proper license, rendering it difficult to
conclude that the same conduct presents a
serious risk of physical
injury simply because
it was done without a license." (See also U.S. v. Flores 477 F.3d 431, 438 (6th Cir. 2007))
With this in mind, the argument that licensing reduces some serious risk is also disposed of. The National Firearms Act and Gun Control Act’s imposition of licensing in order to create a crime out of possession has just been made out to be a mockery of false purposes. Remember, it was the purpose of imposing those taxes and licenses in order to make it more difficult for the gangster-type element’ to obtain those weapons, yet these courts now admit that even with (or without) said licenses it is difficult to conclude that the same conduct (possession) actually presents a serious risk of physical injury.
Justice Scalia’s attempt to claim that machine guns are not common is not supported by reality. Surely, after 70 years of Collective Rights Theory rulings subverting the Second Amendment, "law-abiding" people have been terrorized and brainwashed into abandoning their right to keep and bear Arms for militia purposes. This is directly the root cause of why most gun owners who appreciate "effective" firearms, despite intensely patriotic feelings, either do not, or do not publicly advertise, possession of machine guns. The Supreme Court’s "jurisprudence" in the U.S. v. Stewart remand to the Ninth Circuit 451 F.3d 1071 (9th Cir. 2006) would have us understand that machine guns are so commonplace that they are veritably as fungible as a bag of weed on any street corner. The Sixth Circuit noted all the way back in 1970 in U.S. v. Black 431 F.2d 524, 528 (6th Cir. 1970) footnote 5: "...the Gun Control Act of 1968 regulates the licensing of all common weapons, even including a starter gun." Not only is it admitted nearly 40 years ago that machine guns ARE "common", NOT "unusual", but that Congress has imposed a 100% complete infringement upon the Second Amendment, and Scalia amazingly enough, concludes, after all his supposedly pro-originalist opinion, that the possibility of such Acts being unconstitutional is "startling."
Under Scalia’s Neocon
distortionist reading of Miller, we see the rudiments of a
whole new era of judicial tyranny duplicative of the Collective Rights Theory era. Scalia’s
deliberate diminution of the right of the people to bear EFFECTIVE Arms flies
right in the
face of the Miller opinion and his own Heller opinion regarding the
"ideal of a citizen militia" in Section II A.3.:
"It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.
It is therefore
entirely sensible that the
Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for
self-defense and hunting. But the threat that the new Federal Government would destroy the citizen’s militia by taking away their arms was the reason that right -- unlike some other English rights--was
Codified in a written Constitution."
The conclusory remarks in the Heller opinion would appear to purport that the Arms the militia may keep and bear derive from other government dictated and approved lawful "permitted" purposes (licensed privileges with unlimited infringement) absent a state requirement that military arms be possessed for militia purposes (NOT! Refer back to Scalia’s citation of Thomas Cooley), but there is no contention to be proposed that the lawful purpose of militia derives exclusively from purposes of Minting or target shooting in self defense of one’s person or family, as the lawful purpose of militia stands on its own and pre-dates the Constitution as a defense against the usurpations of government or foreign invasion.
It is Justice Scalia who
ridicules the dissent in Section
"But if "bear
arms" means, as the petitioners and
the dissent think, the carrying of arms only for
military purposes, one simply cannot add "for the
purpose of }dining game." The right "to carry arms
in the militia for the purpose of killing game" is
worthy of the mad hatter."
remarks in dicta would have us believe
that the Miller opinion’s use of "ordinary military equipment"
of the militia should be
understood to mean the "ordinary sporting
goods" commonly possessed. If the only arms "lawfully possessed"
"in common use" are those "for the purpose of killing game", then
the right to carry arms in the militia of the people IS BEING
limited to those Arms for the purpose of killing game, and indeed
Scalia’s own Neocon distortion of Miller is worthy of the Mad
Hatter by his own words.
Quoting Heller Holdings, paragraph 3:
total ban on handgun possession in the
home amounts to a prohibition on an entire class of
"arms" that Americans overwhelmingly choose for the
lawful purpose of self-defense. Under any of the
standards of scrutiny the Court has applied to
enumerated constitutional rights, this prohibition-
...-would fail constitutional muster."
Return to Scalia’s
opinion in Section II A.3. about "the ideal of
a citizen militia." Scalia says the Second Amendment’s prefatory
clause announces "the purpose" for which the Second
was codified: "to prevent elimination of the militia." Would Scalia or the inferior courts now suggest that "the purpose" was an "unlawful purpose"? "The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; ..."; The Opinion clearly sets out a distinct and
preeminent lawful purpose for possessing arms, one that was so
preeminent that it was "the purpose" for which the ancient right
was codified at all. Viewing this preeminent lawful purpose in the
same light which the Heller Holdings paragraph 3 casts the lesser
included right of self-defense, it is no stretch to say that the
government’s total ban on machine gun possession in the home
amounts to a prohibition on an entire class of arms that
Americans would (and do) choose for the
lawful purposes of the
militia. If the handgun ban must fail constitutional muster under
ANY of the standards of scrutiny which the Supreme Court has
applied to enumerated constitutional rights, then this total
prohibition of machine guns which undermines the superior lawful
purpose and the fundamental lawful form of defense of the nation
must also fail constitutional muster. The Heller Holdings in
paragraph 3 go on to say:
the requirement that any lawful firearm
in the home be disassembled or bound by a trigger
lock makes it impossible for citizens to use arms
for the core lawful purpose of self-defense and is
It is the Holdings themselves which make it abundantly clear that any law which makes it, impossible for citizens to use arms for the core lawful purposes is unconstitutional.
It should not be taken lightly by any of us who value
and our constitutional republic, that Heller has made light of 70
years of a vast conspiracy among elitists in the Federal Judiciary
and across government to destroy the rights of the people and the
fundamental defense of this republic. This is no theory. What is
truly "startling" is Scalia’s conclusory remark in Heller footnote
24: "In any event, it should not be thought that the cases decided
by these judges would necessarily have come out differently under
a proper interpretation of the right." Quite smugly, they have no
intention of abandoning their conspiracy, their treason, nor their
tyranny.1Citing from U.S. v. Miller 307 U.S. 174, 181-182:
that ‘Every officer and soldier shall
appear at his
respective muster-field on the day appointed, by eleven
o’clock in the forenoon, armed, equipped, and accoutered,
as follows: * * * every non-commissioned officer and
private with a good, clean musket carrying an ounce ball,
and three feet eight inches long in the barrel, with a
good bayonet and iron ramrod well fitted thereto, a
cartridge box properly made, to contain and secure twenty
cartridges fitted to his musket, a good knapsack and
canteen, and moreover, each non-commissioned officer and
private shall have at every muster one pound of good
powder, and four pounds of lead, including twenty blind
cartridges; and each sergeant shall have a pair of moulds
fit to cast balls for their respective companies, to be
purchased by the commanding officer out of the monies
arising on delinquencies. Provided, That the militia of
counties westward of the Blue Ridge, and the counties
below and adjoining thereto, shall not be obliged to be
armed with muskets, but may have good rifles with proper
accoutrements, in lieu thereof. And every of the said
officers, non-commissioned officers, and privates, shall
constantly keep the aforesaid arms, accoutrements, and
ammunition, ready to be produced whenever called for by
his commanding officer. If any private shall make it
appear to the satisfaction of the court hereafter to be
appointed for trying delinquencies under this act that he is so poor that he cannot purchase the arms herein
required, such court shall cause them to be purchased
out of the money arising from delinquents.’