All sorts of opinions regarding the second amendment have been expressed on this board but the only opinions that count are those of the Supreme Court. Consequently I’m going to attempt to restrict this post to the relevant findings of the court.
District of Columbia v. 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.
New York State Rifle & Pistol Association, Inc. v. Bruen
Primary Holding
"When the Second Amendment's plain text covers an individual's conduct [here the right to bear arms], the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "'unqualified command.'"
This means that the courts MUST use the historical text and tradition of the nation when evaluating second amendment cases. The previous evaluations utilized a ‘two step’ process that weighed in the “public good.” A process of evaluation that is NOT applied to any of the other Bill of Rights commandments.
The Militia
A great many of the wannabe gun grabbers latch on to the militia clause in the second amendment as an out, not so. Going back to the Militia Act of 1792 the militia is considered to be comprised of all able bodied white, male, citizens between the ages of 18 and 45. Subsequent amendments to the Constitution have rendered race and gender moot points. That act defined the individuals that MAY BE CALLED UP for militia duty. However as pointed out in Heller you need not be a member of a formal militia nor does the age definition prohibit individuals outside that age range from volunteering.
Militia
And for those that want to slog through a long winded treatise (Hamilton never avoided using 40 words when 10 would do) there is this.
Federalist 29
Weapons of War
Next comes the argument that a citizen should not be allowed to have a “weapon of war” in their possession. Of course the entire definition of ‘what is a weapon of war’ comes to the fore but it’s an argument that is essentially mental masturbation. Why? Because the Supreme Court has already spoken on that issue.
US v Miller (1939)
Miller was arrested having a sawed-off shotgun in his possession. Miller argued that the possession was protected by the second amendment, the court found otherwise. Justice McReynolds, writing for the majority had this to say;
“In the absence of any evidence tending to show that
possession or use of a "shotgun having a barrel of less
than eighteen inches in length" at this time has some
reasonable relationship to the preservation or efficiency
of a well regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such
an instrument. Certainly it is not within judicial notice
that this weapon is any part of the ordinary military
equipment or that its use could contribute to the com-
mon defense.”
In other words the weapon in question was NOT suitable for military service. Quite clearly the court thought that ‘weapons of war’ were quite suitable.
District of Columbia v. 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.
New York State Rifle & Pistol Association, Inc. v. Bruen
Primary Holding
"When the Second Amendment's plain text covers an individual's conduct [here the right to bear arms], the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "'unqualified command.'"
This means that the courts MUST use the historical text and tradition of the nation when evaluating second amendment cases. The previous evaluations utilized a ‘two step’ process that weighed in the “public good.” A process of evaluation that is NOT applied to any of the other Bill of Rights commandments.
The Militia
A great many of the wannabe gun grabbers latch on to the militia clause in the second amendment as an out, not so. Going back to the Militia Act of 1792 the militia is considered to be comprised of all able bodied white, male, citizens between the ages of 18 and 45. Subsequent amendments to the Constitution have rendered race and gender moot points. That act defined the individuals that MAY BE CALLED UP for militia duty. However as pointed out in Heller you need not be a member of a formal militia nor does the age definition prohibit individuals outside that age range from volunteering.
Militia
And for those that want to slog through a long winded treatise (Hamilton never avoided using 40 words when 10 would do) there is this.
Federalist 29
Weapons of War
Next comes the argument that a citizen should not be allowed to have a “weapon of war” in their possession. Of course the entire definition of ‘what is a weapon of war’ comes to the fore but it’s an argument that is essentially mental masturbation. Why? Because the Supreme Court has already spoken on that issue.
US v Miller (1939)
Miller was arrested having a sawed-off shotgun in his possession. Miller argued that the possession was protected by the second amendment, the court found otherwise. Justice McReynolds, writing for the majority had this to say;
“In the absence of any evidence tending to show that
possession or use of a "shotgun having a barrel of less
than eighteen inches in length" at this time has some
reasonable relationship to the preservation or efficiency
of a well regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such
an instrument. Certainly it is not within judicial notice
that this weapon is any part of the ordinary military
equipment or that its use could contribute to the com-
mon defense.”
In other words the weapon in question was NOT suitable for military service. Quite clearly the court thought that ‘weapons of war’ were quite suitable.
