Phatty said:
Note that Scalia says it would be "startling" to suggest that the NFA's restriction on machineguns is unconstitutional.
Startled though he might have been, he didn't say it was wrong. He also noted that the restrictions on machine guns wasn't challenged. Nothing can be drawn from his comment.
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.
Here Scalia and the other four concurring justices are only saying how they read
Miller, not that they concur.
essayons21 said:
Combine this with Heller's affirmation of an individual right and hopefully incorportation under McDonald, I don't see how an outright ban on modern select-fire weapons exactly of the type being used today as "ordinary military equipment" could be held constitutional. It would be up to the court to determine if the restrictions on SBRs and SBSs are "reasonable."
Don't forget that the Court in
DC v. Heller also held that the gun law in DC amounted to an outright ban of a complete class of weapons. For all intents and purposes, the restriction on new machine guns is an outright ban as well.
fiddletown said:
Remember that it is well settled Constitutional Law that constitutionally protected rights are subject to limited governmental regulation subject to certain standards.
That can be debated with a strict reading of
DC v. Heller. Here is my canned response:
In
DC v. Heller. at 54, Scalia wrote:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
This excerpt contains "purpose" which the Second Amendment does not protect. It is also pertinent to note that it doesn't make much difference whether the right secured by the Second Amendment should be unlimited or not. The Founding Fathers secured the right as if it is unlimited. I, for one, believe it is unlimited as did the Founding Fathers. How else could We the People grant unlimited power to the Union to defend us if we didn't have that unlimited power ourselves?
Further along at 54 and 55, Scalia wrote:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding 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.26
(Note the footnote #26 which we'll get to in a minute.) Scalia did not say all the longstanding 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 are sacrosanct or are "reasonable restrictions". He wrote that they didn't do a complete analysis of the scope of the Second Amendment and could not say those "restrictions" were in doubt without a complete analysis. He left it wide open for a future analysis to make such a definitive call. All he said was that such a call wasn't made in this deliberation(
DC v. Heller).
Now I'll address Footnote 26 in which Scalia wrote:
26 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
What can we glean from this? That his list of restrictions was incomplete? Yes, but more important is the inclusion of the phrase "presumptively lawful". The opinion of the Court is only
PRESUMING these regulatory measures("reasonable restrictions") are constitutional. That's twice Scalia made that point. This is the Court passing the buck on to the next case to come along that would address the issue of the constitutionality of all of these presumptively - for the time being - lawful regulatory measures.
There is a reason the issue of these presumptively lawful regulatory measures was not addressed. My guess would be to secure a fifth concurrence, and I would further guess that the fifth concurrence would be that of Justice Kennedy.
It can be said of Justice Antonin Scalia that he artfully crafted the majority opinion in
DC v. Heller and secured the fact that the Second Amendment protects a right of the individual, and made it clear that this is just the beginning of the denouement.
There is no lock on "reasonable restrictions" in
DC v. Heller
Does this say it's time to take on the NFA? Possibly. But it will be time to take on the Hughes amendment soon after we get a win in
McDonald. Once again, the Hughes amendment amounts to a ban on an entire class of arms and needs to be challenged while
Heller is hot! A win in
McDonald will be the second blow on the banning of an entire class of weapons. Once we get that done, it'll be time to start cutting the lumber for the NFA's coffin. My next donation to the NRA will be a saw(the wood cutting kind), a hammer(the carpenter kind), and a box of nails.
I'm hopeful.
Woody