"Gun Right" supporters who are critical of Heller

Since my anger with the DC v. Heller decision is pretty much based on Scalia's playing fast and loose with the law and his alleged theory of Constitutional interpretation, I usually mention these articles in passing. You will find that most people who support Heller were in some way associated with the decision, or just plain ignorant.

http://reason.com/blog/2008/06/26/a-somewhat-skeptical-take-on-h
http://tadventures.org/2009/07/30/2nd-amendment-not-so-fast-my-friends/
http://constitutionalism.blogspot.com/2008/03/fatal-concession-in-dc-v-heller.html
http://www.lewrockwell.com/grigg/grigg-w32.html
http://www.lewrockwell.com/blog/lewrw/archives/022044.html
http://www.lewrockwell.com/blog/lewrw/archives/022039.html
http://www.lewrockwell.com/blog/lewrw/archives/021863.html
http://www.lewrockwell.com/blog/lewrw/archives/021701.html

The final post isn't so much anti-Heller as much as it is also critical of Scalia for failing to follow what he claims is his method for interpreting the Constitution.

http://works.bepress.com/jeffrey_shaman/1/

For SouthernFemaleLawyer

I am sure you would understand what I mean when I say I worked in USAO-DC's Operation Ceasefire in the mid-1990s, which is a major reason for my interest in this case--along with having lived in Washington, DC during that period.

Anyway, I find your use of the term "penumbral" in regard to the right enunciated in Heller to be quite novel. This is because the term "penumbral" usually means coming from the shadow in an eclipse. The right enunciated in DC v. Heller comes from out of nowhere as Justice Stevens' dissenting opinion points out.

In fact, DC. V. Heller can be used for great mischief in the hands of crafty lawyers since it stands for pretty much a trashing of most legal principles. Even those held by Scalia himself!

For example stare decisis. Prior to Heller it was held that the Second Amendment right was to paraphrase US. v. Miller, 307 U.S. 174 (1939):

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.

The DC court of appeals reiterated that the Second Amendment was to ensure militia efficacy in Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987).

As Justice Stevens pointed out, one does not lightly overturn precedent. I will add especially when that precedent was unanimously decided as was US. v. Miller, 307 U.S. 174 (1939).

Likewise, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)offers the guidance in US Constitutional interpretation that:

Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.

It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.

and

The subsequent part of the section is mere surplusage -- is entirely without meaning -- if such is to be the construction.

The above quotes are not in order as they appear in the decision, but placed in such a way as to educate modern minds. The DC v. Heller decision stands for the principle that inconvenient language may be ignored.

To say that the right Scalia enunciated in DC v. Heller is penumbral would be akin to saying that if he suddenly decided that the Catholic Church was the State religion based upon the First Amendment would be penumbral. Not too far out a thought since his Heller decision has no historical or legal basis. What is to stop us from a mad judge doing the same with other rights? Or to quote the man himself:

If the courts are free to write the Constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. Antonin Scalia, Vigilante Justices: The Dying Constitution

Another aspect which should be frightening to lawyers is that DC v. Heller does not stand for the principle of equal justice before the law, but follows the "Golden Rule". That is, those with the gold make the rules. It is an open secret that the Heller litigation was bankrolled by the Cato Institute, a libertarian think tank with connections to big business: in particular Rupert Murdoch and Koch Industries; the largest privately owned company in the United States. Likewise, the Cato Institute is bankrolling the McDonald case as well.

If we consider that the cry of "no taxation without representation" did not refer to the taxation, but the lack of representation in the decision making process that led to the taxation, DC v. Heller engages in exactly what the founders considered tyranny. That is the interference in the local legislative process by unelected persons. In particular, those who are not local, such as the Cato Institute or the Supreme Court. Again, this proves that Scalia's decision is without merit.

Next we come to Judicial Certainty: Some of my original posts deal with the US v. Rybar decision, which was the decision that earned Justice Alito the monicker "Machinegun Sammy". Amazingly enough, the Rybar court followed the Civic right interpretation of the Second Amendment, yet Alito signed on to Heller.

Likewise, Justice Scalia claims to follow an "originalist" interpretation, which he claimed followed the exact intent of the founders. Scalia proved that his judicial style is more "original" than "orignalist". This means that the law is whatever the judge cares to make it without any real bother with historic, legal, or other constraints. In fact, it will be amusing to see how he rules on McDonald since I believe he has said before that the Second Amendment only applies to the Federal Government. Scalia has said that the doctrine of “incorporation,” which holds that the Bill of Rights applies to state governments via the Fourteenth Amendment, is a “mistake” and is “probably false” in a speech he made at the Hoover Institution.

So, I am not sure how one determines what and how Scalia will rule: which side of the bed he gets up on, whether the sun is shining, etcetera. We may see Justice Scalia contradict himself yet again. How does one appeal from an insane judge, or at least a seriously inconsistent one?

Does that sound penumbral to you?

Kevin Gutzman on DC v. Heller

I just bought a copy of Prof. Gutzman's The Politically Incorrect Guide to the Constitution where he left out any commentary on the Second Amendment. I found this interesting since the Politically Incorrect Guides take the "pro-gun" side of the issue. This is what I found:

March 18, 2008
Gun Control and the Second Amendment
Posted: 05:19 PM ET
Kevin R.C. Gutzman, J.D., Ph.D.

Neither side has it right in the Second Amendment case currently before the Supreme Court.

District of Columbia v. Heller is an appeal from a federal appeals court’s decision that the D.C. gun control laws violate the Second Amendment. The circuit court’s decision reflected what I believe is the emerging scholarly consensus around the position that the Second Amendment involves an individual right to keep and bear arms.

Gun control advocates on one side and gun rights advocates on the other dispute this question. Since I am known as an originalist, I was asked to sign an amicus brief arguing that the Second Amendment bans laws like D.C.’s. I refused to sign.

Does that mean that I do not believe that the Second Amendment reflected an individual right to keep and bear arms? No, it means that I do not believe that the District of Columbia is governed by the Second Amendment.

Why? Because the District of Columbia, insofar as it behaves as a state, is properly treated as a pseudo-state by the Supreme Court.

The original understanding of the Bill of Rights, including the Second Amendment, was reflected in the Bill’s preamble. That preamble says that the Bill of Rights was added to the Constitution "in order to prevent misconstruction or abuse of its [that is, the federal government’s] powers." It was not about empowering federal judges to strike down state laws, in other words, but about limiting federal power.

The Supreme Court reflected this understanding in the 1833 case of Barron v. Baltimore (1833). There, for a unanimous Court, Chief Justice John Marshall said that the Bill of Rights limited only the powers of the federal government, not those of the states. This was the only significant decision in which Marshall came out for a limitation on federal power; he did so because what he was saying was indisputable.

One might counter by saying that the District of Columbia is part of the federal government. Yet, Congress long ago delegated home rule functions to D.C., and it allows residents to elect mayors, city councilors, and a delegate to Congress. When it comes to the Second Amendment, then, D.C. is a state, and the Second Amendment does not restrict its policy-making discretion.

This is not to say that gun control laws are a good idea. It also does not mean that D.C. residents do not have a right to keep and bear arms. What it means is that if they want that right to be respected, people in D.C. should take that up with their own government, not end-run the republican process by trying to get the Court to overturn its valid laws.

If the conservative majority on the Supreme Court rules in favor of Mr. Heller and against the D.C. gun laws, it will be ruling against the original understanding of the Second Amendment.

Editor's note: Gutzman, an associate professor of history at Western Connecticut State University, is the author of The Politically Incorrect Guide to the Constitution and, with Thomas E. Woods, Jr., of the forthcoming Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush

More Prof. Gutzman
9th Circuit "Incorporates" 2nd Amendment
8:43 AM PDT, April 23, 2009
Before the Supreme Court's Heller decision striking down DC's gun regulations as violations of the 2nd Amendment, I argued for the opposite outcome here: http://ac360.blogs.cnn.com/2008/03/18/gun-control- the-second-amendment/. In brief, I reasoned that under home rule, DC was a quasi-state, and that the Bill of Rights had been intended solely as a limitation on the Federal Government; therefore, I concluded, DC's government was not subject to the 2nd Amendment.

The Supreme Court disagreed. Today comes news that the 9th Circuit Court of Appeals has gone the Supreme Court one better, enforcing the 2nd Amendment against an actual state. The so-called Incorporation Doctrine, which has turned a bill of rights intended as a limit on federal legislative power over the states into an instrument of federal judicial power over the states, thus takes new territory.

All without any warrant from the Constitution.

McDonald v Chicago

I find it interesting that people are so interested in seeing the Second Amendment "incorporated" against the states.

The problem is that the Second Amendment was to counter Federal tyranny and guarantee the state's rights. The history and Framers’ intent concerning the Second Amendment suggest that it was ratified as a means to protect the states from federal encroachment, to limit the states would be contrary to the Amendment’s original purpose. Thus, regardless of the right’s force as applied to federal law, those determining whether the Second Amendment should be incorporated must consider and reconcile the right’s federalist history.

I guess that's why this quote isn't used too much these days.

When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist.
Patrick Henry, The Debates in the Several State Conventions on the Adoption of the Federal
Constitution (3 Elliot's Debates 384-7), Virginia, Saturday, June 14, 1788.

Of course, those who find Heller was correctly decided should have no problem with yet another erosion of their rights.

How original is Scalia?

Since Scalia bases a good portion of his Second Amendment analysis in DC v. Heller on the first clause being "prefatory"--

Nelson Lund, for example, helped shift the focus of Second Amendment interpretation by characterizing its first clause as “prefatory” and its second clause as “operative” — and received a Second Amendment chair funded by the NRA for his work. A Hein Online search for the terms “operative,” “prefatory,” and “second amendment” suggests that Nelson Lund was the first academic to introduce this terminology into the Second Amendment literature. See Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 GA. L. REV. 1 (1996). Nelson Lund is the Patrick Henry Professor of Constitutional Law and the Second Amendment at the George Mason University School of Law. This position was created thanks to a one million dollar commitment to GMU School of Law by the National Rifle Association Foundation announced in 2003. Press Release, $1 Million Endows Professorship at George Mason University (Jan. 28, 2003). Justice Scalia relies on the distinction between “prefatory” and “operative” in describing the relationship of the amendment’s first and second clause. See, e.g., Heller, 128 S.Ct. at 2789 (“The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause.”).

The problems is that, as has been pointed out, Scalia also uses Blackstone's commentaries on the Laws of England and is bound by the language of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):

The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction...It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.

Blackstone would look to the proeme (the "prefatory clause") for guidance in interpreting the language (see previous post and this).

So, the idea of "prefatory" and "operative" came about over 200 years after the drafting of the Bill of Rights (1996).

Hardly original.

Who do people in the United States appeal to?

I have to admit watching the furore over the elections in Iran and thinking about the contested Bush v. Gore election. Personally, I believe that Bush was not elected president and that there were indeed suspicious circumstances. The amusing thing was that a newspaper in Zimbabwe had an editorial pointing out that if the son of any other former head of a security service had been elected under similar circumstances, there would have been serious questions raised.

The question went to the Supreme Court which had this

What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

in the dissenting opinion. Bush v. Gore dissent

That works for where I am going with this post because first off, I am a sore loser that Bush had 8 years to ruin the US and the world.

But even more upset at how the District of Columbia v. Heller, 554 U.S. ___ (2008) decision was decided. Amusingly enough, both Bush v. Gore and the Heller decision were written by the same person: Justice Scalia (editorial comment: and the dissents in these cases by the same person: Justice Stevens).

Now, if the US were a commonwealth country, it could appeal to Her Majesty's Most Honourable Privy Council which was formerly a supreme court of appeal for the entire British Empire.

Now, I realise that Heller addressed the Second Amendment of the United States Constitution, but the case was wrongly decided as "It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it." [Marbury v. Madison 5 U.S. 137, 175(1803)] Meaning that the question framed by the court in DC v. Heller (ibid):

"The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"

was a resounding "NO" and had been made precedent by United States v. Miller, 307 U.S. 174 (1939) where the Supreme Court had directly addressed the scope of the Second Amendment:

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.

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 for the intellectually challenged:

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.

As far as I can tell, no deference was given to the precedent set by the unanimous decision in United States v. Miller.

Which takes me to my second point, the Second Amendment states:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Now, I have seen a couple of versions of this with various punctuation, but the verbiage is pretty much the same.

I do not see the words "self-defence".

One cannot place words or concepts into a law without their being there in the actual text.

Justice Scalia glommed in the concept of self-defence where it does not exist. In common law, this is a big no-no.

It would be nice to be able to take this to the Privy Council as they have familiarity with the common law concept of self-defence.

The right to keep and bear arms also comes from the British Bill of Rights:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

Amusingly enought, as I like to point out, the real issue of the Second Amendment is the prevention of the establishment of a standing army by ensuring the vitality of the militia institution, and this:

That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.

is right before the clause on bearing arms.

Yet, there is loads of US scholarship which removes the Second Amendment from its role of preserving citizen militias creating a bulwark against standing armies. On the other hand, no other common law country with a similar provision has the concept of "gun rights".

Actually, shouldn't that be "arms" rights?

Another concept in the British Bill of rights is freedom from royal interference with the law. Though the sovereign remains the fount of justice, he or she cannot unilaterally establish new courts or act as a judge. Likewise, the executive should not have sway over the judiciary. Even more importantly, neither should popular opinion. The proper forum for changing the constitution is the legislature, not the judiciary.

Heller was a political decision, not a proper legal one, and Justice Scalia needs to have his wrist smacked by a higher authority (or maybe even a nun). My blog is for my own amusement and to exorcise my demons. I doubt Justice Scalia gives rat's arse what I say, but he should be ashamed to have his name attached to Heller.

And I want to point out something from the opinions above: It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. In other words, it is having faith that the proper rules of judicial decision making, that is following the law and precedent are followed, which allows for confidence in the judicial system. I need to trust that Judges will follow legal precendent and not whims.

It is a sad state of affairs if the Judges of the highest court are swayed by political considerations rather than legal ones.

I think that all should be disturbed by the Heller decision and its disregard for legal process.

Now, am I too late to file this appeal to the Privy Council?

Still even yet more DC v Heller

There is a phrase that seems to be missing throughout all this punditry on DC v Heller, with the exception of my posts: stare decisis. Actually, the American Bar Association's Brief deals specifically with this topic.

QUESTION PRESENTED
Whether the following provisions—D.C. Code §§ 7-
2502.02(a)(4), 22-4504(a), and 7-2507.02—violate the
Second Amendment rights of individuals who are not
affiliated with any state-regulated militia, but who wish
to keep handguns and other firearms for private use in
their homes?

There is an objection in court "Asked and answered", which this question is.

It has been taken as a ruling that the Miller court established that there needs to be a relationship between the activity and to ensure the efficacy of the Militia institution set up under Article I, Section 8. This has been the interpretation for the past 70 years. Prior to Miller, the Second Amendment has not been seen as a barrier to gun control.

In fact, any detailed reading of the primary source material shows that the Second Amendment is a guarantee that the Militia forces would not be disarmed. In fact, the Second Amendment is a guarantee against standing armies, not personal ownership of firearms. But, for some reason, the peace movement hasn't capitalised on the debates the way the guns for criminals crowd has.

Anyway, with the cost of "gun violence" in terms of public health and law enforcement, there is no reason to find an individual right. Even more impotantly to place concept of self-defence within the purview of the Second Amendment when it has not been a part of that Amendment's purpose or jurisprudence.

One need not go too far to find merit in DC's appeal and overturn the Parker decision.

The legal rules require such a decision.

RKBA and Anti-semitism

Bob Levy is old enough to remember anti-Semitism. Hell, you don't need to be that old since a Temple University kid was beaten up for being Jewish within the last week. That's in Philadelphia which has a pretty large Jewish population.

On the other hand, he is not savvy enough to realise who he is getting into bed with. The RKBA crowd tends to like to talk inclusivity, but I keep seeing a video of a klan member saying "don't let them take away your guns". The logic was that the minorities, Jews and Blacks, will ruin the United States as they knew it.

Gun control is a tool of the culture war. And the right likes using fear of crime and minorities and government's lack of ability to "protect you" as a tool of control. And even though JFPO comes up pretty high if you google "jews gun control" it doesn't take long until you find something like this:

http://wsi.matriots.com/gun_legislation.html

Better yet, check out these posts:

http://www.wakeupfromyourslumber.com/node/5307
or
http://www.stormfront.org/forum/showthread.php/jews-gun-control-58147.html

Now, Bob, are you ready for the backlash if your little gamble fails? Is Alan Gura also a Jew? Judge Laurence H. Silberman was the author of this piece which is getting US Supreme Court attention. Now, doesn't this play into the hands of those who want to put fear of Jews into people's minds? The last blog entry shows my fears are justified.

Of course, it might be a Catholic, or more, who will stand up for the "collective right"/militia enabling interpretation. Don't forget that Catholics have been victims of prejudice as well. I mean, the US should be proud that Kennedy was president after all.

Bob, for all your bravado, are you certain that you will really prevail when the arguments you present were previously rejected by Justice Alito in US v. Rybar, 103 F.3d 273 (3d Cir. 1996)? In fact, with the exception of two opinions, the courts in this country have held that the Second Amendment only applies to the militia, that is the body organised under Article I, Section 8, and its direct activities.

Now, Bob I know you don't own a gun. I can probably guess that you've never been to a gun show either. I am not sure how you would react to all the Nazi regalia you would see them and books like the "Turner Diaries". Ever read that one, Bob? You should if you haven't. That book was the inspiration for the Oklahoma City bombing, Lots of the guns for criminals crowd say that type of thing will happen if the Court finds against them.

And they claim to be law abiding!

The world is a scary place, Bob, and you are helping make it scarier. Head you lose, tails they win. What will the body count rise to if the Personal right is affirmed? Where will that lead? There are 2255 petitions from federal prisoners and other challenges to severe federal gun sentences that will flood lower courts if the Supreme Court issues a broad Second Amendment ruling.

On the other hand, what will the RKBA crowd say if the Collective right is affirmed? Remember you are in cahoots with some serious right wing crazies.

US V Rybar on the Second Amendment

Editorial note: This is the Section of U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996) that deals with Rybar's Second Amendment defence. It addresses the arguments found in the pro-Heller briefs and finds them without merit.


Second Amendment

As an independent basis for his argument that section 922(o)
is unconstitutional, Rybar relies on the Second Amendment of the
Constitution, which provides: "A well regulated Militia, being
necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed." U.S.
Const. amend. II.

In support, Rybar cites, paradoxically, the Supreme Court
decision in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816,
83 L.Ed. 1206 (1939), where the Court upheld the
constitutionality of a firearms-registration requirement against
a Second Amendment challenge. Rybar draws on that holding,
relying on the Miller Court's observation that the sawed-off
shotgun in question had not been shown to bear "some reasonable
relationship to the preservation or efficiency of a well
regulated militia." Brief of Appellant at 24-25; Miller, 307
U.S. at 178, 59 S.Ct. at 818. Drawing from that language the
contrapositive implication, Rybar suggests that because the
military utility of the machine guns proscribed by section 922(o)
is clear, a result contrary to that reached in Miller is
required, and the statute is therefore invalid under the Second
Amendment.

Rybar's reliance on Miller is misplaced. The language Rybar
cites is taken from the following passage:

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.

307 U.S. at 178, 59 S.Ct. at 818.

We note first that however clear the Court's suggestion that
the firearm before it lacked the necessary military character, it
did not state that such character alone would be sufficient to
secure Second Amendment protection. In fact, the Miller Court
assigned no special importance to the character of the weapon
itself, but instead demanded a reasonable relationship between
its "possession or use" and militia-related activity. Id.; see
Cases v. United States, 131 F.2d 916, 922 (1st Cir.1942)
(susceptibility of firearm to military application not
determinative), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87
L.Ed. 1718 (1943). Rybar has not demonstrated that his
possession of the machine guns had any connection with
militia-related activity. Indeed, as noted above, Rybar was a
firearms dealer and the transactions in question appear to have
been consistent with that business activity.

Nonetheless, Rybar attempts to place himself within the
penumbra of membership in the "militia" specified by the Second
Amendment by quoting from 10 U.S.C. section 311(a):

The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in
section 313 of title 32, under 45 years of age who are ...
citizens of the United States....

Rybar's invocation of this statute does nothing to establish
that his firearm possession bears a reasonable relationship to
"the preservation or efficiency of a well regulated militia," as
required in Miller, 307 U.S. at 178, 59 S.Ct. at 818. Nor can
claimed membership in a hypothetical or "sedentary" militia
suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th
Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123
L.Ed.2d 174 (1993); United States v. Oakes, 564 F.2d 384, 387
(10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55
L.Ed.2d 521 (1978); United States v. Warin, 530 F.2d 103, 106
(6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d
1185 (1976).

Rybar boldly asserts that "the Miller Court was quite simply
wrong in its superficial (and one-sided) analysis of the Second
Amendment." Brief of Appellant at 27. As one of the inferior
federal courts subject to the Supreme Court's precedents, we have
neither the license nor the inclination to engage in such
freewheeling presumptuousness. In any event, this court has on
several occasions emphasized that the Second Amendment furnishes
no absolute right to firearms. See United States v. Graves, 554
F.2d 65, 66 n. 2 (3d Cir.1977); Eckert v. City of Philadelphia,
477 F.2d 610 (3d Cir.), cert. denied, 414 U.S. 839, 843, 94 S.Ct.
89, 104, 38 L.Ed.2d 74, 81 (1973). Federal attempts at firearms
regulation have also consistently withstood challenge under the
Second Amendment. See, e.g., Hale, 978 F.2d at 1020; Warin, 530
F.2d at 108; United States v. Three Winchester 30-30 Caliber
Lever Action Carbines, 504 F.2d 1288, 1290 n. 5 (7th Cir.1974);
United States v. Johnson, 497 F.2d 548, 550 (4th Cir.1974);
Cases, 131 F.2d at 923. We see no reason why section 922(o)
should be an exception.