2d Amendment case: DC v. Heller

If the only requirement is what is "common at the time" then weapons that once were covered but are no longer common would lose their protection...

...and new weapons could be banned before they become common so never gain protection.

Congress could lock in the present weapons with legislation.

I doubt that was Scalia's intent but it certainly makes it possible to do and goes directly against what you say the founders intent was.

Clearly, in the beginning, at least, not only did neither the framers nor the government envision the militia providing their own arms, it certainly looks as they went to considerable expense to provide arms for the militia.

You are playing a word game, Fishin'--the operative word, which you have highlighted, is from the verb to provide--not purchase, not own, but provide. It is entirely within the scope of the text of the constitution and of this act and of my argument that each militia member could provide himself the specified arms and equipment by applying at the nearest militia muster location, said arms and equipment having been provided to the several states by the Federal government.

The act you cite was passed three years before the model 1795 Springfield musket was developed, and five years before it was distributed. Working from this page of internal links at Wikipedia for "Springfield rifle" (my search criterion was Springfield musket, but this was one of the search results yielded), i find that 70,000 model 1795 muskets were produced (in service 1797 to 1815), 30,000 model 1812 muskets (in service in 1815-16), about 675,000 model 1816 muskets (in service 1816-44), 600,000 model 1822 muskets (in service 1822-circa late 1850s), 30,000 model 1840 muskets, and 272,565 model 1842 muskets. Wikipedia did not have an article on the model 1835 musket, and the article on the model 1855 rifled-musket does not specify how many are produced.

Therefore, exclusive of the 1835 and 1855 models, the United States government produced in excess of 1,600,000 muskets before the American Civil War, which was the first time in American history that the aggregate of all United States forces ever exceeded 100,000 men. So, perhaps you could tell precisely what the United States government did with more than a million and half muskets with a standing army which did not at any time exceed 10,000 men prior to 1845? Does it not suggest itself to you that the arms with which militiamen "provided" themselves in pursuance of the terms of the 1792 militia act were in fact those arms which the Federal government provided to the several states? Or do you have a more plausible explanation you care to offer?

I still think you are reading it wrong and I don't see how my reading of his words creates any issues with his being an originalist. It is the right to own firearms that carries the originalist meaning. You are trying to extraoplate that into the actual type of firearms themselves which the Contitution is entirely silent on. Scalia doesn't have to explain how his interpretation fits with an originalist take because the Constitution itself is silent as to the type of firearms.

The right that is enumerated within the Constitution is maintained regardless of what firearms are "in common use" are contemporary to the time.

fishin wrote:

I still think you are reading it wrong and I don't see how my reading of his words creates any issues with his being an originalist. It is the right to own firearms that carries the originalist meaning. You are trying to extraoplate that into the actual type of firearms themselves which the Contitution is entirely silent on. Scalia doesn't have to explain how his interpretation fits with an originalist take because the Constitution itself is silent as to the type of firearms.

Well, Scalia certainly thinks that Miller was talking about the second amendment's protection of a certain type of firearm:

It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was [i]not[/i] that the defendants were "bear[ing] arms" not "for . . . military purposes" but for "nonmilitary use," [i]post[/i], at 2. Rather, it was that the [i]type of weapon at issue[/i] was not eligible for Second Amendment protection...

Regardless, for the reasons that I previously set forth, I think my interpretation makes a whole lot more sense than yours. I have not, however, seen any commentators talk about this aspect of Heller.

Fair enough, it's an honest disagreement.

fishin wrote:

The right that is enumerated within the Constitution is maintained regardless of what firearms are "in common use" are contemporary to the time.

Aren't you contradicting yourself here?

Indeed he does. Miller however, isn't the Constitution. But the section you are quoting from there was his ripping apart of Justice Stevens' opinion as well as where he attacks the lack of information the looked at while deciding Miller. Two paragraphs later Scalia basically agrees that Miller set that standard and he didn't strike it down but it isn't all that clear that he agrees with it either

I don't think so... I do have an extra "are" in there that should have been edited out but the point remains. The right is a right to own/posses firearms. Someone who lived in 1810 would have the right to own firearms "in common use" in 1810. Someone who lived in 1890 would have the right to own firearms "in common use" in the 1890s and someone today would have the right to own firearms "in common use" today. An Originalist reading of the right doesn't need to maintain that the right is dependent on the firearm types in use at the time the law/amendment was passed.

You are playing a word game, Fishin'--the operative word, which you have highlighted, is from the verb to provide--not purchase, not own, but provide. It is entirely within the scope of the text of the constitution and of this act and of my argument that each militia member could provide himself the specified arms and equipment by applying at the nearest militia muster location, said arms and equipment having been provided to the several states by the Federal government. The act you cite was passed three years before the model 1795 Springfield musket was developed, and five years before it was distributed. Working from this page of internal links at Wikipedia for "Springfield rifle" (my search criterion was Springfield musket, but this was one of the search results yielded), i find that 70,000 model 1795 muskets were produced (in service 1797 to 1815), 30,000 model 1812 muskets (in service in 1815-16), about 675,000 model 1816 muskets (in service 1816-44), 600,000 model 1822 muskets (in service 1822-circa late 1850s), 30,000 model 1840 muskets, and 272,565 model 1842 muskets. Wikipedia did not have an article on the model 1835 musket, and the article on the model 1855 rifled-musket does not specify how many are produced.

Therefore, exclusive of the 1835 and 1855 models, the United States government produced in excess of 1,600,000 muskets before the American Civil War, which was the first time in American history that the aggregate of all United States forces ever exceeded 100,000 men. So, perhaps you could tell precisely what the United States government did with more than a million and half muskets with a standing army which did not at any time exceed 10,000 men prior to 1845? Does it not suggest itself to you that the arms with which militiamen "provided" themselves in pursuance of the terms of the 1792 militia act were in fact those arms which the Federal government provided to the several states? Or do you have a more plausible explanation you care to offer?

Well, Fishin', you might also have noted that all the muskets up to and including the 1822 model were based on the .69 caliber model 1777 Charleville musket, of which the French provided us more than 100,000. You might also note that the pre-1860 total did not include the model 1835 musket and the model 1855 rifled-musket for which i could find no figures. Therefore, it were completely reasonable to infer that there had been many more than 2,000,000 small arms in the possession of the Federal government in the period specified. I stuck with the roughly 1.6 million figure (what i provided actually totals to more than 1.7 million) because i had documented it. But i would ask you just how many muskets do you think were required to meet the demands of the several states?

Are you perhaps suggesting that the Kentucky case was an anomaly, and that the Federal government provided arms and accoutrements to the state of Kentucky, but to no other state?

None of this, however, invalidates my objection to what Brandon posted. Nowhere in the constitution, neither in Article One, Section Eight, nor in the Second Amendment, is there an explicit statement nor an implied statement to the effect that members of the militia are required to arm themselves.

Your reference to Longfellow was to a visit in 1843. Given the numbers already provided, the 1,000,000 stand of small arms to which he referred could easily have been muskets returned when replaced by later models, and it ignores that between 1841 and 1844, hundreds of thousands of the 1822 models were refitted with percussion cap locks. How are we to know if Longfellow wasn't seeing row upon row of muskets which had been refitted, and not yet returned to the several states, or row upon row of flintlock muskets awaiting refitting with percussion cap locks? I don't consider your Longfellow source to be very convincing.

Brandon9000 wrote:

Also, in my opinion, the 2nd clause of the amendment is crystal clear when it says that the right of the people to own and bear arms may not be limited. It seems to me that even if the amendment were phrased:

Owning guns is awful and so the right of the people to own and bear arms shall not be infringed

it would be an odd choice of conflicting ideas, but the statement that the government can't infringe on the peoples' the right to own guns would still be clear. I feel that the first phrase is there to give an example. Also, to state that a militia may arm itself would be an unnecessary redundancy, since the mere existence of a militia implies that it exists to provide armed protection.

I strongly suspect that the Founders thought that the existence of the inherent right to personal liberty implied an inherent right to self defense, including the right, should the occasion present itself, to defend oneself agains a tryannical government.

This is a pretty typical and rather tired conservative argument peculiar to those who obsess over the idea that no one should be able to restrict gun ownership. The first clause of the second amendment does not say that a militia may arm itself. Article One, Section Eight, treating of the powers of Congress reads, in part:

(Congress shall have the power) To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

In United States versus Miller, the Court states that the second amendment can only be interpreted in the context of that portion of the constitution. It appears that this must long have irritated Scalia, who seems to think that the second amendment should only be interpreted in light of his personal political agenda.

The United States government in the first century of its existence produced muskets and rifled muskets in quatities which far exceeded the most extravagant claim one could make for necessarily arming the regular army, which remained until the time of the Mexican War (1845), a very small organization. For example, 70,000 of the Model 1795 Springfield musket were produced between 1795 and 1812 when a new model was adopted. The entire enlistment of the United States army from 1787 to 1845 (beginning of the Mexican War) was not half that number--and at the height of its expansion for the Mexican War, the entire United States Army, including volunteer organizations and militia activated to serve in that war, did not exceed 35,000.

Clearly, in the beginning, at least, not only did neither the framers nor the government envision the militia providing their own arms, it certainly looks as they went to considerable expense to provide arms for the militia.

I consider your arguments without merit.

There is little doubt that the states had armories and that they got at least some rifles from the federal government. I still however don't see how that disproves that the Militia Act required militia members to provide their own however. The discussions that took place in the Senate about the cost to the individual members of the milita simply wouldn't have taken place if the government was providing all of their arms/equipment.

The idea advanced by others that the intention of the amendment is to guarantee militias the right to own and bear arms is incorrect for several reasons:

1. The existence of a militia inherently implies that it may be armed, so such a guarantee would be redundant.
2. The second clause states that the right of the people to own and carry weapons shall not be limited. When the law states that an activity can't be limited, then prohibiting the activity altogether isn't in compliance.
3. The Bill of Rights is clearly intended to set limits on the powers of the government over individuals.

Remember that the amendment is only one sentence and doesn't contain any of this case law being referred to. Case law is not a guide to what the people who wrote the law intended.

Despite Scalia's extensive historical research, he seems to have missed something potentially important. Regarding the scope of US v. Miller, he states:

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. ... [i]Miller[/i] said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."

There's just one problem with this analysis: Miller upheld a federal law prohibiting the possession of sawed-off shotguns, yet such weapons (or their equivalents) were "in common use at the time" of the adoption of the second amendment.

But you are completely dismissing that Miller was decided using the solidly individual right reasoning of Aymette at 158. Aymette conveyed the usually employed in civilized warfare, and that constitute the ordinary military equipment criteria for protection and SCOTUS took that reasoning and Aymette's reasoning on why certain weapons don't enjoy protection and decided how to treat Miller's shotgun.

It is entirely within the scope of the text of the constitution and of this act and of my argument that each militia member could provide himself the specified arms and equipment by applying at the nearest militia muster location, said arms and equipment having been provided to the several states by the Federal government.

McReynolds only cited Aymette twice: once in a long string citation which is just a compilation of "important" militia cases; and once in the text for the proposition that "it is not within judicial notice that this weapon [i.e. a sawed-off shotgun] is any part of the ordinary military equipment or that its use could contribute to the common defense." Your selection from Aymette confirms that. There is, in short, nothing in the Miller opinion to suggest that it relied on the reasoning in Aymette.