I do believe Antonin Scalia, along with the other four concurring justices, have missed a big one in
US v. Miller. Nowhere in the Constitution is there any requirement that an arm must meet some means test, or suitability requirements, to be eligible for militia use. In order to meet the assumed ability for the militia to suffice as the force to defend the country in lieu of a standing army, as was the sentiment of the period the amendment was adopted, the arms in common use had to be arms that would have been required to be of use in a standing army if that standing army was to be relied upon to defend the country. Otherwise, Scalia's interpretation of "arms in common use at the time" being simply the arms a civilian might have in use for deer or squirrel hunting, or self defense, would leave the militia grossly underarmed in comparison to the arms in the possession of the average armies of foreign nations - some we actually fought.
I cannot concur with Scalia and the other four concurring Justices in this matter. If the current Court is to use
Miller in this matter, it must use
Miller as it was written, and not their own "interpretation", meaning what they wish
Miller to say. Clearly, though unconstitutional on its face, the Court in
Miller "assumed" that "arms to be protected" by the Second Amendment must have some "reasonable relationship to the preservation or efficiency of a well regulated militia", that militia subject to be called upon to defend the country as in Article I Section 8, Clause 15:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Deer rifles and squirrel guns can be useful to that end, but are far from any level of competition with the most likely superior and far more destructive arms an invading army is sure to bring(read as "in common use"). To be able to mount a defense and actually defeat an invading army, we must have arms that will kill people - lots of them - and break things - big and POWERFUL things. I think the Justices in
Miller knew this and I believe Justices Scalia, Kennedy, Thomas, Roberts, and Alito know this as well, but decided to use their power in an inordinate fashion to preserve current law rather than abide the Constitution, use common sense, and clear the path for We the People to defend ourselves and our country with more than our deer rifles, squirrel guns, shotguns, and bodies piled high for cannon fodder. These people risk our lives, our sovereignty, and the security of our land for a status quo that is nothing more than a golden path for our enemies to exact our destruction.
Scalia and the four concurring Justices also lean too heavily upon
Miller as they claim Justice Stevens did in his dissent. Yes, leaned on it and in an aspect abhorrent to the Second Amendment. By claiming the
type of weapon at issue was not eligible for Second Amendment protection, via a fabricated caveat - a caveat not even suggested in the Second Amendment - to justify the interpolation of their alternate definition of "in common use" into
Miller's text, so they might say any arm in common use by the general populace is the subject of the Second Amendment and not necessarily arms in common use by military. Truth is, the Second Amendment doesn't include or exclude any specific class of arms. The Second Amendment uses the unmodified word "arms" which covers all weapons of offense and armour of defense. Government is forbidden to infringe our right to keep and bear arms. Period. If you single out any particular class of arms and forbid the people to keep and bear them simply by saying the Second Amendment doesn't protect that class of arms, it's an out and out lie, and government has infringed our right to keep and bear that class of arms. I see no difference in this action by the Court - assuming a class of arms can be exempted from the protections of the Second Amendment - and Mayor Fenty and the DC City Council banning a whole class of arms. I also find it to be blatantly hypocritical for the Court to strike down a law on the same grounds it uses to uphold other nearly identical law.
In the light of needing at least five Justices to accomplish what we have gained from
Heller, I do realize compromises had to be made. I would have preferred the Court ignore the issues beyond the immediate
Heller questions, but I believe these compromises had to be made to garner the swing vote. And, I'll admit I am glad the strongest positive result was sought - as evinced by the 5-4 ruling as opposed to what a 6-3, or 7-2 or larger ruling would have cost.
This, though, I find encouraging. The Fab Five concurred on the following:
Miller stands only for the proposition that the
Second Amendment right, whatever its nature, extends
only to certain types of weapons.
(Heller, Page 50, last sentence in the middle paragraph)
They called it a proposition. Not fact, mind you, but a proposition. Does this contradict what was used in this ruling and its dicta? I believe so.
This from Page 64 I like as well:
We are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun
ownership is a solution. The Constitution leaves the
District of Columbia a variety of tools for combating that
problem, including some measures regulating handguns,
see supra, at 54–55, and n. 26. But the enshrinement of
constitutional rights necessarily takes certain policy
choices off the table.
(Bolding is mine.)
"The Constitution leaves the District of Columbia a variety of tools for combating that problem, ..." Eh, like keeping violent criminals locked up, maybe? The insane institutionalized? Guardians(read parents) for the immature? Maybe that's too much common sense for Mayor Fenty and company.
Woody
I guess it's sort of like one of those "I could have died" sort of feelings that has crept upon me.....
