Future of SCOTUS / 2A changed forever

[RPRNY]

The truth of the matter is that Justice Scalia did no such thing in writing the Heller majority opinion!

The Supreme Court held in part:

(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause[emphasis added]. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. [emphasis added]Pp. 22–28.

In D.C. v. Heller Justice Antonin Scalia writes that “when able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.” Maj. Op. at 25

Justice Scalia’s majority opinion in Heller revisits that "ideal of a citizens' militia" theme in reviewing efforts by George III's government to disarm American colonists (pg. 21). Discussing the ancient origins of the right, Scalia notes that "the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents" (pg. 19).

Additionally, Heller does not overturn Miller (1934), in which the Court affirmed that arms commonly in use by the military are arms protected by the Second Amendment, ie. Miller determines types of arms protected while point (1) above from Heller says that the arms need not be kept in any way associated with militia service. It seems that one should effectively argue that semi-auto rifles ergonomically similar to those used by the military and firing ammunition similar to that used by the military are in fact exactly the arms that Miller determined were indeed protected by the Second Amendment. I don't know that the argument has yet been made to the Court.

 

[Dog Soldier]

This is the first time since the 1857 Dred Scott vs Sanford Decision that the future court is so pivotal. The court's direction can change everyone's life. I am a strict Constructionist regarding the Constitution so I hope for judges who are also.
http://brainly.com/question/1602177

 

[AlexanderA]

Additionally, Heller does not overturn Miller (1934), in which the Court affirmed that arms commonly in use by the military are arms protected by the Second Amendment, ie. Miller determines types of arms protected while point (1) above from Heller says that the arms need not be kept in any way associated with militia service. It seems that one should effectively argue that semi-auto rifles ergonomically similar to those used by the military and firing ammunition similar to that used by the military are in fact exactly the arms that Miller determined were indeed protected by the Second Amendment. I don't know that the argument has yet been made to the Court.

Scalia "reinterpreted" Miller beyond all recognition.

 

[RPRNY]

Scalia "reinterpreted" Miller beyond all recognition.

In your opinion.

 

[481]

I do believe that we, as a nation, walked right up to the edge of the abyss, peered in, and then decided to step back. No matter who DJT appoints to the High Court, they will be orders of magnitude better than any HRC would have considered.

I agree. These last few months WERE NOT the sort of suspense that I enjoy.

 

[barnbwt]

Scalia "reinterpreted" Miller beyond all recognition.

Not at all. The conclusion reached by Heller complements, rather than replaces, Miller, it's just that today's corrupt urban-center court systems turn a blind eye toward one or the other to construct the phony "Catch 22" arrangement so many live under today.

-Miller: Civilian guns in service to militia purposes are protected
-Heller: Handguns suitable for self-defense are protected
-Courts in a long-gun case: Heller says we can wantonly restrict weapons not suited for self-defense (i.e. anything not a handgun)
-Courts in a handgun case: Miller says we can wantonly restrict weapons not suited for militia use (i.e. anything not a rifle)

In neither case was the argument made that protection of one justified annihilation of the other; in fact, the court ruling on Miller did not even consider self-defense issues while busily carrying Roosevelt's water, and Heller only made the most basic of assessments with regards to militia/military service because of the essentially irrelevant Miller precedent (it had long been improperly applied to practically every case involving weapons restrictions, even when militia service had no bearing). Rather, Heller basically stated that despite Miller's findings, it had no bearing because self defense and the means to it is a human right, carved out in part by the second amendment.

But that's not what corrupt courts or anti-gun law makers wanted to hear, so they scooped out literally two words --"reasonable restrictions"-- as the only portion of Heller they would consistently cite when arguing future gun cases. Two words very poorly supported by the remainder of the opinion's logical path, no less. So now you get courts that feign ignorance or applicability of either Miller or Heller depending on whether it's a carry case or an assault weapon case. Conveniently, they alsp often imply the weapon class not at issue in the case is fully protected while shutting down the other, to claim the RKBA has not been meaningfully infringed. They also play a two-faced states' rights game, pretending that either the feds or states have dominion over the issue depending on the circumstances --so long as the conclusion is that yet another restriction can be upheld on the individual (carry licensing vs. marriage licensing being the most blatantly obvious example of this)

What we need is a case that forces a court to consider both Heller and Miller simultaneously, so they can't play "and/or" logical fallacy games to invent a non-existent paradox. The two cases clearly present an argument to justify protection of two classes of weapons in applicable circumstances (those for service, and those for personal protection), so to claim they are orthogonal and not additive is nothing but sophistry.

TCB

 

[LiveLife]

+1. More reasons why we need pro 2A appointments to the SCOTUS.

 

[22-rimfire]

The Supreme Court is always a crap shoot regardless as justices change their views over time. Assuming all of the obstructive re-counts that are beginning to happen change nothing which I expect, we'll be seeing D Trump as the next president. He has vowed to choose conservative justices that support the Second Amendment. I want strict constitutionalists at the Supreme Court level. We'll see.

 

[AlexanderA]

The crux of the Miller case was that the Court could not take judicial notice (i.e., no evidence had been introduced) that a sawed-off shotgun was in ordinary military use. Presumably, if there had been such evidence, the Court would have said that it was protected under the 2nd Amendment.

"The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

"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 common defense."
​

Conversely, Justice Scalia, writing in the Heller opinion, had this to say about Miller:

"We therefore read Miller to say only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."
​

He thereby converted, without much explanation, the "common military use" test of Miller into a "common civilian use" test. The possession of machine guns, which would have been protected under the rationale of Miller, is explicitly not protected under the rationale of Heller.

This is why I say that Scalia reinterpreted Miller beyond all recognition. And he did it in a very sloppy, superficial, and unhistorical way. He forced the precedents to support his predetermined conclusion, which was that handguns were OK, but that machine guns and so-called "assault weapons" were not.

 

[barnbwt]

The Supreme Court is always a crap shoot regardless as justices change their views over time. Assuming all of the obstructive re-counts that are beginning to happen change nothing which I expect, we'll be seeing D Trump as the next president. He has vowed to choose conservative justices that support the Second Amendment. I want strict constitutionalists at the Supreme Court level. We'll see.

I'm afraid it's much worse than a crap-shoot. I've come to conclude that the office of president is fundamentally incompatible with civil liberties (at least in it's current configuration/function) which is why we have other government branches to check its authority. Similarly, the deck is stacked against judicial appointments for the most part due to the state of academia (itself a result of a very stacked deck of leadership). SCOTUS justices necessarily must be among the brightest minds of their field (at least in theory), and the schools where such minds are attracted and excel are at this point firmly seated in opposition to individual liberties as historically understood. We all know/knew this, which is why the 'outsider' type of politician was so appealing for so many this go around; the first step in realizing the situation is not capable of fixing itself is to toss in some foreign matter & see if that does anything different.

Think about what percentage of constitutional lawyers from Harvard & Georgetown these days are like Scalia, and what percentage have been raised on social justice and federal supremacy? Even Scalia had a tendency toward the latter. If Trump/etc wants a direct replacement in his image, they're going to have to do a lot of research and hope they don't grab the wrong needle from the stack of needles.

TCB

 

[barnbwt]

"The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

"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 common defense.

The biggest joke of that whole proceeding is the notion that such 'notice' (uh, read the news sometime, justices; trench shotguns were used in WWI if I'm not mistaken) couldn't be submitted to the court at some later date. Like, at any point in the future, at which time the weapons would become protected*. At though the notion that SBS were not in use for the military at that instant meant they could/would never be, and that the issue could be settled for all time by an opinion in the here and now. There's a whole lot of 1+1=potato in that opinion, very much like other historically notorious rulings that had negative unintended consequences. Plus knowing how Miller's case was steamrolled straight to the top despite his attempts to concede, and even after his own violent death prosecuted in SCOTUS without representation for his side (highly irresponsible given the responsibility of the high court and the nature of disagreements between the states it oversees, dare I say illegal from a treasonous perspective in that it subverts our most basic notion of opposing court representation), and given that FDR was pushing the whole thing from the get-go to bolster his 1934 NFA, I'm convinced this was yet another instance of presidential manipulation of the high court for political purposes (just like with Dred Scott)

*Frankly, Miller's logic would make some sense if this was how the ruling was implemented, and maybe that's what they pretended to intend. Theoretical plasma phasers or prototype tactical Davey Crocket Nuclear rockets would not be protected arms, but the instant Headquarters decides to field them as standard equipment, all bets would be off. Such a scheme truly would keep weapons too destructive or hazardous to be used for militia purposes from proliferating to the danger of the whole people, while maintaining a relative force-parity at the infantry level as technology progresses.

He thereby converted, without much explanation, the "common military use" test of Miller into a "common civilian use" test. The possession of machine guns, which would have been protected under the rationale of Miller, is explicitly not protected under the rationale of Heller.

The main point Scalia constantly circled back to was that the 'civilian use' concept was centered around self defense. And he's right that not all weapons in common military use would necessarily have any bearing on self defense needs (though off-hand, crew-served weapons are the only weapon class I can imagine having little practical defensive value in the home, and Scalia et al certainly had no authority whatsoever to make such a proclamation). Like I said, it's really easy to ignore certain facets of both cases and rulings to construct a paradox that results in all weapons being banned. Miller was all about restricting weapons of no militia value (ostensibly for being too dangerous; a paradoxical notion in its own right) out of recognition for the stated purpose for the RKBA as explicitly stated in the 2nd amendment. Heller was all about protecting weapons best suited for self-defense; additional restrictions on other types of guns really weren't the pressing issue of the day, only so far as they also restricted weapons like handguns obviously suited for self-defense. It's not right that Scalia argued they could still be constitutionally restricted, and his supporting arguments don't really suggest this either, but it is obvious his overarching goal was to get handguns unequivocably protected in a time where prominent politicians were licking their lips in anticipation of confiscation. Like the justices in Millier, Scalia was wholly ignorant of what machineguns actually were and did, and was uanble to see past his own ego to seek an expert opinion on their suitability for defense (or militia purposes, for that matter)

A broader problem is we simply haven't had a case involving long guns before the court in a long, long time, and it's now badly overdue. Should've happened after the 1994 AWB, but the sunset clause gave our side cover to not pursue cases all the way. I think that Thompson Center case which struck down the ATF's "once a rifle always a rifle" nonsense-regulation (which they promptly ignored for a full decade) was the most recent, and that was in 1992. Given how handgun liberty is spreading like wildfire across nearly the whole nation at an ever increasing pace (that handgunlaw.us map gif is astonishing) it seems that shall issue is basically inevitable at this point and just waiting on a court order. But despite the unprecedented proliferation of semi-auto "assault weapons" across the entire nation over the last two decades, there is no binding precedent that's been tested in 'hostile' districts (the only challenges have been in areas with AWBs, and only upheld in areas supportive of AWBs, so despite the huge statutory gap between Arizona and adjacent California, "there is no conflict to resolve.")

TCB

 

[AlexanderA]

The main point Scalia constantly circled back to was that the 'civilian use' concept was centered around self defense. And he's right that not all weapons in common military use would necessarily have any bearing on self defense needs

There's a triad of defensive uses: against ordinary criminals, against foreign invaders, and against domestic tyrants. Modern 2nd Amendment jurisprudence focuses exclusively on the first of these, and dismisses the other two as impractical or even "insurrectionist." A quick look at 20th-century European history would show that these concerns are not that far-fetched. An armed population -- armed with military weapons -- has a distinct deterrent effect on both invaders and tyrants. The mere presence of the guns would be enough; they wouldn't necessarily ever have to be used.

The Miller case was all about the classes of weapons to be protected under the 2nd Amendment. It didn't really address the issue of whether membership in a militia would be required for the owners. The strong implication was that everyone would be covered, militia member or not. Anyway, an expansive reading of "militia" as the whole body of the people would cover that. The protected classes of weapons under Miller are greater in scope than the protected class of weapons (handguns?) under Scalia's dicta in the Heller case.

Certainly, clarification of the whole 2nd Amendment area is overdue. This has to wait for (a) a suitable Supreme Court, and (b) a suitable case or cases.

 

[barnbwt]

Certainly, clarification of the whole 2nd Amendment area is overdue. This has to wait for (a) a suitable Supreme Court, and (b) a suitable case or cases.

That or an Article V convention (I'm not convinced we'll ever see a cooperative court considering the breeding grounds for SCOTUS justices these days. Presidents, too, for that matter). I had kind of figured an attempt at manual reform was inevitable, but especially if Clinton had been elected & pursued some aggregious overreach.

TCB

 

[yokel]

There's a triad of defensive uses: against ordinary criminals, against foreign invaders, and against domestic tyrants. Modern 2nd Amendment jurisprudence focuses exclusively on the first of these, and dismisses the other two as impractical or even "insurrectionist." A quick look at 20th-century European history would show that these concerns are not that far-fetched. An armed population -- armed with military weapons -- has a distinct deterrent effect on both invaders and tyrants. The mere presence of the guns would be enough; they wouldn't necessarily ever have to be used.

The fundamental purpose and principal intent were alluded to at the tail end of the Nordyke v. King (2009) case in the United States Court of Appeals for the 9th Circuit:

http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf

The salient policies underlying the protection of the right to bear arms are of inestimable importance. The right to bear arms is a bulwark against external invasion. We should not be overconfident that oceans on our east and west coasts alone can preserve security. We recently saw in the case of the terrorist attack on Mumbai that terrorists may enter a country covertly by ocean routes, landing in small craft and then assembling to wreak havoc. That we have a lawfully armed populace adds a measure of security for all of us and makes it less likely that a band of terrorists could make headway in an attack on any community before more professional forces arrived. Second, the right to bear arms is a protection against the possibility that even our own government could degenerate into tyranny, and though this may seem unlikely, this possibility should be guarded against with individual diligence.

A broader problem is we simply haven't had a case involving long guns before the court in a long, long time, and it's now badly overdue.

The crux of the problem, in my estimation, is that the Second Amendment in the contemporary era has been relegated to a "special interest" represented by a "gun lobby", and there is no evidence whatsoever of any well regulated Militia doing its job to secure our free State.

 

[barnbwt]

The crux of the problem, in my estimation, is that the Second Amendment in the contemporary era has been relegated to a "special interest" represented by a "gun lobby", and there is no evidence whatsoever of any well regulated Militia doing its job to secure our free State.

The militia never really worked, apart from the original groups around during the revolution, and even then only for a couple decades. That fact is that the concept only ever existed because the Brits did a terrible job of protecting their colonies, but also forbade them from creating their own unified armed force, the only remaining option being highly local paramilitary bodies known as militia. Given how functional almost every other aspect of the new government ended up being coming off the Constitutional Convention, it's always struck me how badly they missed the mark with the 'militia in lieu of a military' concept; it was abandoned almost immediately by practically everyone involved (militia groups even devolved into notoriously drunken & incompetent frat houses before being banned in many cases). I suppose one explanation could be the Framers were basically paying lip service to what were *the only* means of armed resistance against further invasion for the young nation, knowing full well that despite warnings to the contrary, formal military and professional police forces would quickly be put together to replace them.

Selective interpretations of Miller created this false notion that the RKBA existed solely for militia purposes; a rather convenient and self-serving takeaway considering that they no longer existed at the time of the case. That myopic view is what Heller largely dismantled, saying that despite "a well regulated militia being necessary to the security of a free State," the RKBA existed for other purposes, and therefore needed to be protected where it served those purposes. The independent militia was simply the primary purpose written down for later years (since it was not nearly as 'self evident' as self defense rights protected elsewhere in the document already). At issue were handguns, which is why they were singled out; had the court been made aware of the widescale use of machineguns, the rather small difference in effectiveness between them, short barrel carbines intended for personal defense, and silencers meant to muffle the crippling blast of firearms indoors by defenders the ruling may have been broader. But we all know that neither Scalia nor Souter were made aware of these facts by Gura's arguments or amicus briefs, nor would they have any reason to be independently knowledgeable in these areas (it was a mere year after the AWB expired; everyone here should try to remember what they themselves thought about AR15s and machineguns at that time). With the ban long dead, small arms development spurred by the Iraq War, the NFA Trust revolution, and unprecedented explosion of concealed carry, these once obscure issues are now borderline common knowledge, so any new court case with a half-decent attorney would have to contend with factual evidence that flies in the face of Heller's ignorant stance on common use assault weapons. If an NFA case involves an AR15 in any manner these days, I don't see how they get around the numerous contradictions and ridiculous conclusions the ATF has erected for themselves (SIG braces, vertical foregrips, safety sears, easily-convertible short barrels vs. easily-convertible receivers, 'permanently attached' muzzle extensions, silencers vs. brakes, 'once a machinegun always a machinegun,' NFA engraving locations, the list of legal conflicts left unresolved to any reasonable satisfaction covers practically every aspect of these guns)

At this point I feel the courts are simply too terrified to pull at that thread, lest all the dominos fall like a house of cards. Checkmate.

TCB

 

[barnbwt]

Yokel, while that passage is a factually/historically/logically supported truism, it no longer matters. That opinion was vacated in 2012 by an en banc ruling (seems to happen a lot to gun cases ruled in our favor in the 9th) which found that gun shows could be subjected to basically whatever restrictions the country dreamed up so long as they weren't banned outright. For some reason I'm thinking CA (or maybe it's only local?) passed some rule about FFLs not being able to sell outside their stores, which in conjunction with the new background check rules means no one can sell firearms at a gun show anyway...but they still haven't banned gunshows by name, so it's all good according the the 9th. Someone familiar with the gunshow scene there these days needs to weigh in.

TCB

 

[yokel]

I mentioned the Nordyde excerpt simply to refute AlexanderA's assertion that "There's a triad of defensive uses: against ordinary criminals, against foreign invaders, and against domestic tyrants. Modern 2nd Amendment jurisprudence focuses exclusively on the first of these, and dismisses the other two as impractical or even "insurrectionist."[emphasis added]

An armed citizenry, i.e.militia, is supposed to be the population's last line of defense against tyranny by their own government instead of the NRA, GOA, SAF, or JPFO.

The Founding Fathers understood this, which is why the Second Amendment sets up a bulwark, in the Supreme Law of the land, to defend the right of the people to keep and bear arms. This bulwark marks the Rubicon that separates lawful government from the abuse of power by lawless forces usurping the name and authority of government. It also signals the moment when the peaceable courses of action envisaged and protected by the Constitution's First Amendment give way to the stern necessity that makes a well-regulated Militia necessary to the security of a free State.

 

[AlexanderA]

I mentioned the Nordyde excerpt simply to refute AlexanderA's assertion that "There's a triad of defensive uses: against ordinary criminals, against foreign invaders, and against domestic tyrants. Modern 2nd Amendment jurisprudence focuses exclusively on the first of these, and dismisses the other two as impractical or even "insurrectionist."[emphasis added]

As much as I would wish that all members of the triad (of defensive uses) be given equal weight, I don't believe that that's the case. A single 9th Circuit case is not controlling. Scalia's dicta in the Heller case seemed not to recognize the last two uses.

 

[yokel]

As much as I would wish that all members of the triad (of defensive uses) be given equal weight, I don't believe that that's the case. A single 9th Circuit case is not controlling. Scalia's dicta in the Heller case seemed not to recognize the last two uses.

I realize that it's not controlling case law, however, it is a stunner in view of the fact that a Clinton appointee authored it.

They have long been a favorite target of ridicule among conservatives : Rush Limbaugh refers to the court, headquartered in San Francisco, as the “Ninth Circus,” and many bloggers call it the “nutty Ninth.”

One line of the Heller opinion, written by the late Justice Antonin Scalia, the Court explicitly referenced the right of citizens to defend themselves against government oppression. In Scalia’s words, “When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.”

 

[barnbwt]

Modern 2nd Amendment jurisprudence focuses exclusively on the first of these, and dismisses the other two as impractical or even "insurrectionist."

Not that I'm all that familiar with every judgement in every court out there, but I think this statement is over broad. Over the last decade, and seemingly with greater frequency, we're getting wildly conflicting opinions involving completely incompatible core philosophies on this argument. Namely, government "compelling interest" in public safety overriding civil liberties vs. that triad of RKBA justifications including the mislabeled "insurrectionist" notion of violent overthrow of tyranny*. Now, partially due to political/judicial strategy (conceding cases before they get to SCOTUS to form binding precedent) and partially due to selection bias (the 5th Court has not had to rule against AWB's because there aren't any within it's member states to challenge), a true conflict between district courts has yet to arise on many of these issues that usually triggers SCOTUS involvement. Largely because as bad as AWB's and UBC's and the other infringements are, they truly don't reach beyond states' borders much, so challenges to them must arise entirely from within these states whose majorities clearly favor infringement (the same going for their applicable court systems). Not saying the MacDonald hasn't incorporated RKBA against these areas, but that it's just logistically harder to get cases with standing in front of sympathetic judges, so you end up with hostile district court rulings in favor of gun control, and "silence" from sympathetic district courts that have no cases to rule on. It's not at all insignificant that a substantial number of judges at various levels out there hold such conflicting, strident views, and suggests "modern jurisprudence" isn't quite so solid as anti-gunners like to pretend. They have just been good about picking their battles (and not ramming an illegal AWB through on the city of Austin, TX, for example)

Not to mention the whole notion of "modern jurisprudence" is a fundamentally flawed concept that is somewhat oxymoronic in light of how law is supposed to work. It's supposed to become more 'informed' over time and gradually resolve conflicts (becoming more efficient in doing so over time as new conflicts arise, by building on similiar issues in the past under the idea that basic legal/constitutional principles transcend time), rather than this progressive 'evolution' of 'living documents' nonsense that's been fabricated as a cover for corrupt jurists to shirk their duties & pursue political goals that undermine the core principles of the nation under color of law.

*Only someone unfamiliar with Locke/Rousseau and our American culture would not realize that in such a scenario, the only insurrectionists would be the tyrants perpetrating treason against the populace

TCB

 

[barnbwt]

It seems like there are in reality three schools of thought in jurisprudence at this time;
-Re-interpretation of old precedent and statute so as to support policy goals with wide popular support ('justified' by the notion that if an activist judge can make it through the maze of elections & appointments within our system to the bench, their opinion must be the objective 'true' will of the people; a combination of popular representation and divine right). This approach is much like trying to gradually paint a wall in splotches with a paintball gun, each shot intended to fill in the remainder.
-Utmost respect for the status quo, and examining every new case through the lens of how the last guys would have. For truly novel areas this means reaching back to the founding documents, but otherwise relying on contemporary opinions of judges who are often many generations removed from original principles, and who were often compromised by political influence (Dred Scott) or personal opinion. This approach is much like applying new, matching patches of paint on the multi-colored wall, ignoring whatever the base coat was before the Group 1 guys above went to town. (Basically a worship of the court system itself, always seeking to reinforce its past authority to justify its continuance in the future)
-Originalist interpretation that refers first and foremost to the first documents governing the system, only using newer precedent where the original was lacking sufficient relevance or detail. For some reason, these folks (including the Founders) also look past even these original documents to ancient pre-democratic English Common Law to help fill in the blanks, even though our nation was founded on largely rejecting the system directly supported by it. The idea here is twofold, that the courts were never meant to deviate from these initial marching orders to become an autonomous body, and that the original configuration of our system of government should be dutifully maintained as closely as possible under the assumption that deficiencies would be corrected by the proper Amendment process, thus the court would have no need to seek change of the original configuration itself. (Basically the 'worship' of unchanging historical documents, barring those changes sought by ratified amendments or new areas of law completely devoid of prior guidance; judicial precedence either does not exist, or is vastly overruled by interpretations of original language. It is not a coincidence that this is fundamentally how the various Protestant faiths that comprised the entire US population approach the Bible, and why they were so insistent on various fixed/static documents controlling the structure and limits of the new governing system being distributed to & ratified by the populace)

It figures that the one that's hardest for me to explain is the least popular (Scalia tried to encourage others to the originalist view, but himself was given to frequently ruling in accordance with the other two, at times as bad as the liberal justices in pursuing policy goals)

TCB

 

[AlexanderA]

It seems to me that even the courts most favorable to gun rights are equating "the right to keep and bear arms" with "the right of individual self defense" (against criminals). They're hardly mentioning defense against foreign invaders or domestic governmental usurpers, and when they do, it's in the context of a collectivist interpretation of the 2nd Amendment. The Heller case, including the dissenting opinions, is a prime example of this.

I daresay that most of the gun community is also quite happy to focus on individual self defense. They should not be surprised, then, when the courts end up upholding AWB's. Like Scalia, most judges would say that a handgun is adequate for individual self defense. When the 2nd Amendment is viewed narrowly in this way, AW's (not to mention things like machine guns) fall outside its scope.

 

[barnbwt]

New
It seems to me that even the courts most favorable to gun rights are equating "the right to keep and bear arms" with "the right of individual self defense" (against criminals). They're hardly mentioning defense against foreign invaders or domestic governmental usurpers, and when they do, it's in the context of a collectivist interpretation of the 2nd Amendment. The Heller case, including the dissenting opinions, is a prime example of this.

To be fair to this approach, it is a far more pragmatic one. The fact is, we don't have the same sort of terrorism problem as areas of Europe, nor anywhere the same level of incursion or revolt seen there or elsewhere (riots, invasion, and civil war are more common practically everywhere else on Earth). Which is why these fully legitimate uses don't come up during the limited time lawyers have to argue a simple, focused case before judges. You'd need a case where the application was directly relevant, like a militia with collectively-owned machineguns being disarmed by a state, or something. Remember, judges (and lawyers with judge-like powers to shut down discussion) refuse to entertain anything that isn't directly applicable to the exact topic at hand, especially if they can tell it is building an argument they do not favor. Which is why AR15s probably won't figure in to the new lawsuit challenging NY's TAZER ban, even though it'd be easy to tie them to common-use precedent, and the logic obviously follows.

You are correct that it *could* ultimately result in decay for support of the other justifications, but the fact of the matter is that we need to start exercising our rights in those areas first; both to cement the public knowledge of their importance to future generations, and to generate the legal conflicts that may be challenged in court for explicit redress. Who knows, maybe this latest generation of Iraq/Afghanistan vets, combined with the Gun Rennaissance and a general resurgence of libertarian ideals will lead to the regrowth of semi-professional local militia (and not the drunken fraternaties they've largely been since a decade after the Revolution)

Common use and defense are more than ample reasons to protect nearly all of the guns now classified as 'assault weapons' if we could get even half-honest judges to look at the case, so I don't think this focus is making us nearly as vulnerable as you fear. Stuff like machine guns and destructive devices, which are truly in very short supply compared to the 'common use' items, perhaps. But to play Devil's Advocate, neither of these are particularly instrumental to the trinity of RKBA you mention (you truly can effectively defend yourself, your community, and your nation without the use of automatic weapons or destructive devices. Plus, Destructive Device weapons truly are 'especially dangerous' compared to small-bores, and are more in keeping with the type of inherently uncontrollable/high collateral damage weaponry Scalia felt could be justifiably restricted for public safety reasons --as I said, he likely just did not understand how incremental automatic fire is over semi-automatic when it comes to firepower; they're practically the same, and have nearly the same application in warfare for small arms)

TCB

 

[AlexanderA]

You'd need a case where the application was directly relevant, like a militia with collectively-owned machine guns being disarmed by a state, or something. ...........

Who knows, maybe this latest generation of Iraq/Afghanistan vets, combined with the Gun Rennaissance and a general resurgence of libertarian ideals will lead to the regrowth of semi-professional local militia (and not the drunken fraternities they've largely been since a decade after the Revolution)

I think we have to be very careful about these sorts of "militias." The minute a self-selected group of people organize themselves into a "militia" (resembling the "volunteer militias" of the mid-19th century), they lose the attribute of universality, which is of prime importance to the constitutional theory behind the 2nd Amendment. Remember, the Founders talked about the militia as being "the whole body of the people." This "constitutional militia," today, must remain unorganized in order to preserve its universality. It's a paradox that an organized militia of any sort defeats its very purpose of asserting rights under the 2nd Amendment. Perhaps if a state law existed designating everyone (perhaps subject to conditions of age and physical fitness, at most) as members of the militia, it would satisfy the constitutional requirement.

 

[barnbwt]

Hence my "semi-professional" descriptor; you're right, it is the same paradox facing NCAA 'amateur' atheletes. No one wants to watch amateurs bumble around, but the system isn't set up to treat them as professionals, either.