§ 1197. Notwithstanding the reasonableness of these suggestions, the power was made the subject of the most warm appeals to the people, to alarm their fears, and surprise their judgment. At one time it was said, that the militia under the command of the national government might be dangerous to the public liberty; at another, that they might be ordered to the most distant places, and burthened with the most oppressive services; and at another, that the states might thus be robbed of their immediate means of defence. Joseph Story, Commentaries on the Constitution 3:§§ 1195--97
There you go! Story backs me up aren't Iraq and Afghanistan "the most distant places"? Aren't these long tours of duty "burthened with the most oppressive services"?
The folks fighting McDonald v. Chicago need to point out that the Second Amendment can't be extracted from the Constitutional framework, let alone remove the significance of the proeme.
As I have said before, Dellinger should have argued that there was already precedent:
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. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. UNITED STATES v. MILLER, 307 U.S. 174 (1939)
I realise that McReynolds wrote this holding in an ass backward manner, it makes much more sense if the first paragraph is read after the second or to paraphrase this:
The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' is reasonably related 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 of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.
Unfortunately, we have the poorly thought out precedent of Heller to contend with.
But, wasn't the Second Amendment supposed to protect the States from Federal encroachment on their laws? I mean wasn't part of the tyranny thing that there was "no taxation without representation" ? In other words, it wasn't the taxes, it was the local decision making.
Tyranny would be local legislation overturned by someone who is not a local citizen, in this case the federal government, or even more saliently the Cato institute, using the legal system to overturn legislation. I thought conservatives hated that sort of thing.
Oh, yeah, the Cato Institute is a Libertarian organisation. You know, Libertarianism: facism with a smiley face or right wing anarchism.
So, having Federal Judges come around and second guess local legislation is Tyranny!
But, how do you get that point through to judges who have already interpreted the Second Amendment out of its context and trashed proper legal scholarship.
