How has a Constitutional Carry (no permit necessary) case never reached SCOTUS?

[AlexanderA]

We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. DC v Heller, pages 10-11

This is one of many things wrong with the Heller opinion. Justice Scalia went out of his way to separate the individual right (to keep and bear arms) from the militia context. Big mistake. Instead, assuming that militia membership is universal (and not dependent on enrollment in an organized unit), the Militia Clause would mean that each of us, as an individual, would be entitled to own any of the weapons ordinarily used by the military. This interpretation would be the way that we would overturn "assault weapon" bans, and eventually the National Firearms Act itself.

Anyway, Justice Scalia was wrong historically. "Bearing arms" in the 18th century -- and not only in the 18th century -- had a clear military connotation.

 

[natman]

This is one of many things wrong with the Heller opinion. Justice Scalia went out of his way to separate the individual right (to keep and bear arms) from the militia context. Big mistake. Instead, assuming that militia membership is universal (and not dependent on enrollment in an organized unit), the Militia Clause would mean that each of us, as an individual, would be entitled to own any of the weapons ordinarily used by the military. This interpretation would be the way that we would overturn "assault weapon" bans, and eventually the National Firearms Act itself.

Anyway, Justice Scalia was wrong historically. "Bearing arms" in the 18th century -- and not only in the 18th century -- had a clear military connotation.

Continuing Scalia's definition:
From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. DC v Heller, pages 10-11.

Please note the word "only" in the last sentence.

It is not necessary to resort to the Militia Clause to overturn AW bans. Heller clearly and repeatedly states that "weapons in common use for lawful purposes are protected by the Second Amendment", and AR15s and similar are certainly in common use for lawful purposes.

 

[AlexanderA]

Scalia did us no favors. Excerpts from his Heller opinion are being cited repeatedly by the antigunners. Whether he truly believed those things, or he just put them into the opinion to mollify Justice Kennedy, is another question. The fact remains that Heller is not 100% pro-gun. I would rather base our stance on the 1939 Miller case. If a gun is useful to the militia, it's protected.