The 2nd Amdt protects the ancient right to keep and bear arms ...

... for Militia members only. Which it why it mentions a Militia.

Hosreshit repeated is still horseshit.

District of Columbia v. Heller, S. Ct. 26 June 2008, Syllabus:

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22.

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District of Columbia v Heller, S. Ct. (2008)

From Heller at 581:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

Heller at 582:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Heller at 584:

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

Heller at 620:

We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ”

Heller at 624-25:

“In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. 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. That accords with the historical understanding of the scope of the right, see Part III, infra.

We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment.

Heller at 626:

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. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).

Heller at 627-28:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Black's Law Dictionary, 6 Ed.

Arms. Anything that a man wears for his defense, or takes in his hands as a weapon.

The "right to keep and bear arms" existed in the colonies, was brought forth into the states before the union, and was protected by the 2nd Amendment. The right which existed in the colonies came from the English common law. The Framers saw no need to explain to themselves what that right to keep and bear arms was.

Heller at 593-95:

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.

And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833).

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.

Heller at 626-28:

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. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). 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.

We also recognize another important limitation on the right to keep and carry arms. Miller 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.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

Book the First - Chapter the First: Of the Absolute Rights of Individuals

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

And for future reference, don't cite Roe v Wade, Kelo, or Obamacare (the penalty is a tax). They got it wrong there, too.

Book the First - Chapter the First: Of the Absolute Rights of Individuals

I never said they didn't have the right. They do. Just that the second amendment doesn't protect it.

So you can stop citing Blackstone, too.

"We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”

Yeah. In common use by the militia. According to Miller:

"... when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Meaning, they were to show up with weapons supplied by themselves and commonly used by the militia. They were not expected to show up with a revolver.

The question before the Miller court was whether or not a sawed-off shotgun had "any reasonable relation to the preservation or efficiency of a well regulated militia". If it did, then the second amendment protected it.

[misterwhite #65] Don't bother citing Heller. I told you the court got it wrong.

You got it wrong and Heller (and McDonald) are current Supreme Court precedent.

By contrast you want to keeep digging up the corpses of Cruickshank, Presser and Miller, three very old cases that you happen to like.

I will continue to cite and quote current Supreme Court precedent and you are welcome to dig up the corpses of 19th century post civil war cases and drag them before the forum.

[misterwhite #66] I never said they didn't have the right. They do. Just that the second amendment doesn't protect it.

The 2nd Amendment does protect the individual right to keep and bear arms, as explicitly expressed and held by current Supreme Court precedent.

[misterwhite #67] Yeah. In common use by the militia. According to Miller:

[...]

The question before the Miller court was whether or not a sawed-off shotgun had "any reasonable relation to the preservation or efficiency of a well regulated militia". If it did, then the second amendment protected it.

There ya go, digging up that corpse again. This claptrap was crushed in Heller.

District of Columbia v Heller, 554 US 570 (2008)

[595]

2. Prefatory Clause.

The prefatory clause reads: "A well regulated Militia, being necessary to the security of a free State .... "

a. "Well-Regulated Militia." In United States v. Miller, 307 U. S. 174, 179 (1939), we explained that "the Militia comprised all males physically capable of acting in concert for the common defense." That definition comports with founding-era sources.

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[596]

Petitioners take a seemingly narrower view of the militia, stating that "[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, § 8, cls. 15-16)." Brief for Petitioners 12. Although we agree with petitioners' interpretive assumption that "mi­litia" means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and na­vies, which Congress is given the power to create ("to raise . . . Armies"; "to provide . . . a Navy," Art. I, § 8, cls. 12-13), the militia is assumed by Article I already to be in existence. Congress is given the power to "provide for call­ing forth the Militia," § 8, cl. 15; and the power not to create, but to "organiz[e]" it—and not to organize "a" militia, which is what one would expect if the militia were to be a federal creation, but to organize "the" militia, connoting a body al­ready in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first Militia Act, which specified that "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia." Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them.

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[598]

3. Relationship Between Prefatory Clause and Opera­tive Clause.

We reach the question, then: Does the preface it with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had elimi­nated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the peo­ple's arms, enabling a select militia or standing army to sup­press political opponents. This is what had occurred in Eng­land that prompted codification of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution.

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[599]

It is therefore entirely sensible that the Second Amend­ment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. JUSTICE BREYER's assertion that individual self-defense is merely a "subsidiary interest" of the right to keep and bear arms, see post, at 714 (dissenting opinion), is profoundly mis­taken. He bases that assertion solely upon the prologue— but that can only show that self-defense had little to do with the right's codification; it was the central component of the right itself.

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[619]

United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right "is not a right granted by the Con­stitution [or] in any manner dependent upon that instrument for its existence. The second amendment... means no more

620

than that it shall not be infringed by Congress." Id., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had dis­banded the local militia unit the year before the mob's attack, see C. Lane, The Day Freedom Died 62 (2008). We de­scribed the right protected by the Second Amendment as " 'bearing arms for a lawful purpose' " and said that "the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes" to the States' police power. 92 U. S., at 553. That discussion makes little sense if it is only a right to bear arms in a state militia.

Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade "bodies of men to associate together as military organiza­tions, or to drill or parade with arms in cities and towns unless authorized by law." Id., at 264-265. This does not refute the individual-rights interpretation of the Amend­ment; no one supporting that interpretation has contended that States may not ban such groups.

621

JUSTICE STEVENS presses Presser into service to support his view that the right to bear arms is limited to service in the militia by join­ing Presser's brief discussion of the Second Amendment with a later portion of the opinion making the seemingly relevant (to the Second Amendment) point that the plaintiff was not a member of the state militia. Unfortunately for JUSTICE STEVENS' argument, that later portion deals with the Four­teenth Amendment; it was the Fourteenth Amendment to which the plaintiff's nonmembership in the militia was rele­vant. Thus, JUSTICE STEVENS' statement that Presser "suggested that . . . nothing in the Constitution protected the use of arms outside the context of a militia," post, at 674-675, is simply wrong.

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[621]

JUSTICE STEVENS places overwhelming reliance upon this Court's decision in Miller, 307 U. S. 174. "[H]undreds of judges," we are told, "have relied on the view of the Amend­ment we endorsed there," post, at 638, and "[e]ven if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law," post, at 639. And what is, according to JUSTICE STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons." Post, at 637.

Nothing so clearly demonstrates the weakness of JUSTICE STEVENS' case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men's federal indictment for transporting an unregistered short-barreled

622

shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not "for . . . military purposes" but for "nonmilitary use," post, at 637. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: "In the ab­sence of any evidence tending to show that the possession or use of a [short-barreled shotgun] 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." 307 U. S., at 178 (emphasis added). "Cer­tainly," the Court continued, "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." Ibid. Beyond that, the opinion provided no expla­nation of the content of the right.

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. JUSTICE STEVENS can say again and again that Miller did not "turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns," post, at 677, but the words of the opinion prove otherwise. The most JUSTICE STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General's argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938,

623

No. 696, pp. 4-5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

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[623]

It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. JUS­TICE STEVENS claims, post, at 676-677, that the opinion reached its conclusion "[a]fter reviewing many of the same sources that are discussed at greater length by the Court today." Not many, which was not entirely the Court's fault. The defendants made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court's consideration of the Second Amendment). See Frye, The Peculiar Story of United States v. Miller, 3N. Y. U. J. L. & Liberty 48, 65-68 (2008). The Government's brief spent two pages discussing English legal sources, concluding " that at least the carrying of weapons without lawful occa­sion or excuse was always a crime" and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) "the early Eng­lish law did not guarantee an unrestricted right to bear arms." Brief for United States, O. T. 1938, No. 696, at 9-11. It then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United States, O. T. 1938, No. 696, at 12-18. The final section of the brief recognized that "some courts have said that the right to bear arms in­cludes the right of the individual to have them for the protec­tion of his person and property," and launched an alternative argument that "weapons which are commonly used by crimi­nals," such as sawed-off shotguns, are not protected. See id., at 18-21. The Government's Miller brief thus provided

624

scant discussion of the history of the Second Amendment— and the Court was presented with no counter discussion. As for the text of the Court's opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U. S., at 178 (which we do not dispute), and then reviews some historical materials dealing with the na­ture of the militia, and in particular with the nature of the arms their members were expected to possess, id., at 178­182. Not a word (not a word) about the history of the Sec­ond Amendment. This is the mighty rock upon which the dissent rests its case.

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

McDonald v Chicago, 561 US 742 (2010)

[Syllabus at 1]

The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U. S. 542, Presser v. Illinois, 116 U. S. 252, and Miller v. Texas, 153 U. S. 535— which were decided in the wake of this Court's interpretation of the Fourteenth Amendment's Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36.

Held: The judgment is reversed, and the case is remanded.

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[Syllabus at 2]

(b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War's aftermath fundamentally altered the federal system. Four years after the adop­tion of the Fourteenth Amendment, this Court held in the Slaughter­ House Cases, that the Privileges or Immunities Clause protects only those rights "which owe their existence to the Federal government, its National character, its Constitution, or its laws," 16 Wall., at 79, and that the fundamental rights predating the creation of the Fed­eral Government were not protected by the Clause, id., at 76. Under this narrow reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79-80. Subse­quently, the Court held that the Second Amendment applies only to the Federal Government in Cruikshank, 92 U. S. 542, Presser, 116 U. S. 252, and Miller, 153 U. S. 535, the decisions on which the Sev­enth Circuit relied in this case. Pp. 5-9.

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[Syllabus at 3]

(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19-33.

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[9]

The Court reversed all of the convictions, including those relating to the deprivation of the victims' right to bear arms. Cruikshank, 92 U. S., at 553, 559. The Court wrote that the right of bearing arms for a lawful purpose "is not a right granted by the Constitution" and is not "in any manner dependent upon that instrument for its exis­tence." Id., at 553. "The second amendment," the Court continued, "declares that it shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress." Ibid. "Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government." Heller, 554 U. S., at_, n. 23 (slip op., at 48, n. 23).

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[10]

As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners' claims at the Court of Appeals level. Petitioners argue, however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the "privi­leges or immunities of citizens of the United States." In petitioners' view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15-21, but petitioners are unable to identify the Clause's full scope, Tr. of Oral Arg. 5-6, 8-11. Nor is there any consen­sus on that question among the scholars who agree that the Slaughter-House Cases' interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting).

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter­ House holding.

At the same time, however, this Court's decisions in Cruikshank, Presser, and Miller do not preclude us from considering whether the Due Process Clause of the Fourteenth Amendment makes the Second Amendment right binding on the States. See Heller, 554 U. S., at_, n. 23 (slip op., at 48, n. 23). None of those cases "engage[d] in the sort of Fourteenth Amendment inquiry required by our later cases." Ibid. As explained more fully below, Cruikshank, Presser, and Miller all preceded the era in which the Court began the process of "selective incorpo­ration" under the Due Process Clause, and we have never previously addressed the question whether the right to keep and bear arms applies to the States under that theory.

11

Indeed, Cruikshank has not prevented us from holding that other rights that were at issue in that case are bind­ing on the States through the Due Process Clause. In Cruikshank, the Court held that the general "right of the people peaceably to assemble for lawful purposes," which is protected by the First Amendment, applied only against the Federal Government and not against the States. See 92 U. S., at 551-552. Nonetheless, over 60 years later the Court held that the right of peaceful assembly was a "fun­damental righ[t] . . . safeguarded by the due process clause of the Fourteenth Amendment." De Jonge v. Oregon, 299 U. S. 353, 364 (1937). We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause.

- - - - - - - - - -

[13]

An alternative theory regarding the relationship be-

14

tween the Bill of Rights and §1 of the Fourteenth Amend­ment was championed by Justice Black. This theory held that §1 of the Fourteenth Amendment totally incorporated all of the provisions of the Bill of Rights. See, e.g., Adamson, supra, at 71-72 (Black, J., dissenting); Duncan, supra, at 166 (Black, J., concurring). As Justice Black noted, the chief congressional proponents of the Four­teenth Amendment espoused the view that the Amend­ment made the Bill of Rights applicable to the States and, in so doing, overruled this Court's decision in Barron. Adamson, 332 U. S., at 72 (dissenting opinion). None-

15

theless, the Court never has embraced Justice Black's "total incorporation" theory.

While Justice Black's theory was never adopted, the Court eventually moved in that direction by initiating what has been called a process of "selective incorporation," i.e., the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments. See, e.g., Gideon v. Wainwright, 372 U. S. 335, 341 (1963); Malloy v. Hogan, 378 U. S. 1, 5-6

16

(1964); Pointer v. Texas, 380 U. S. 400, 403-404 (1965); Washington v. Texas, 388 U. S. 14, 18 (1967); Duncan, 391 U. S., at 147-148; Benton v. Maryland, 395 U. S. 784, 794 (1969).

The decisions during this time abandoned three of the previously noted characteristics of the earlier period.11 The Court made it clear that the governing standard is not whether any "civilized system [can] be imagined that would not accord the particular protection." Duncan, 391 U. S., at 149, n. 14. Instead, the Court inquired whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice. Id., at 149, and n. 14; see also id., at 148 (referring to those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions" (empha­sis added; internal quotation marks omitted)).

The Court also shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights. Only a handful of the Bill of Rights pro-

17

tections remain unincorporated.

Finally, the Court abandoned "the notion that the Four­teenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights," stating that it would be "incongruous" to apply different standards "depending on whether the claim was asserted in a state or federal court." Malloy, 378 U. S., at 10-11 (internal quotation marks omitted). Instead, the Court decisively held that incorporated Bill of

18

Rights protections "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment." Id., at 10; see also Mapp v. Ohio, 367 U. S. 643, 655-656 (1961); Ker v. California, 374 U. S. 23, 33-34 (1963); Aguilar v. Texas, 378 U. S. 108, 110 (1964); Pointer, 380 U. S., at 406; Duncan, supra, at 149, 157-158; Benton, 395 U. S., at 794-795; Wallace v. Jaffree, 472 U. S. 38, 48-49 (1985).

Employing this approach, the Court overruled earlier decisions in which it had held that particular Bill of Rights

19

guarantees or remedies did not apply to the States. See, e.g., Mapp, supra (overruling in part Wolf, 338 U. S. 25); Gideon, 372 U. S. 335 (overruling Betts, 316 U. S. 455); Malloy, supra (overruling Adamson, 332 U. S. 46, and Twining, 211 U. S. 78); Benton, supra, at 794 (overruling Palko, 302 U. S. 319).

III

With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U. S., at 149, or as we have said in a related context, whether this right is "deeply rooted in this Nation's his­tory and tradition," Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).

A

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right. 554 U. S., at_(slip op., at 26); see also id., at_(slip op., at 56) (stating that the "inherent right of self-defense has been central to the Second Amendment right").

- - - - - - - - - -

[31]

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.

- - - - - - - - - -

and Heller (and McDonald) are current Supreme Court precedent.

Which replaced the Cruikshank/Presser/Miller precedent. What good is precedent if the courts ignore precedent?

"three very old cases that you happen to like."

They're old?? How about your citations of English common law?

Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

Correct. Those used by a militia. The Miller court was unsure whether a sawed-off, double-barrel shotgun was a militia weapon.

We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause.

Right. States shall not infringe the right of a state to form a state militia.

When you start distorting the meaning of the second amendment, you end up looking foolish.

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right.

Uh-huh. And now 5 justices will tell every citizen the type of weapon they may have for individual self-defense, where they may carry it (if at all), how they may carry it, and when and where they may use it.

Some basic right.

The Court:-----

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right. ------ In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty

Uh-huh. And now 5 justices will tell every citizen the type of weapon they may have for individual self-defense, where they may carry it (if at all), how they may carry it, and when and where they may use it.

Some basic right. --- misterwrong

It is clear that the Framers protected us from a Supreme Court that can infringe upon the 2nd.

Our resident troll tries to tell us different.. Ignore his bullshit..

and Heller (and McDonald) are current Supreme Court precedent.

[misterwhite #69] Which replaced the Cruikshank/Presser/Miller precedent. What good is precedent if the courts ignore precedent?

Your claimed abject ignorance of the legal system is amusing.

There is no Cruickshank/Presser/Miller precedent on whether the right to keep and bear arms is an individual right.

Cruickshank/Presser/Miller held that the 2nd Amendment had not been incorporated into the 14th Amendment, and therefore did not apply to the states, and only applied to the Federal government.

Under the bullshit you misunderstand, but ignorantly defend, it was held that States, or municipalities in States, could ban ownership of entire classes of weapons, such as handguns. That was held not to be a violation of the 2nd Amendment RKBA because under Cruickshank/Presser/Miller the 2nd Amendment did not apply to them.

Cruickshank/Presser/Miller did not establish a precedent regarding whether the right to keep and bear arms is an individual right or not. In those case, the Court did not directly adddress, or decide, that matter. Dicta does not establish precedent.

You claim ignorance that a precedent established by a court cannot bind itself. It only binds lower courts. No precedent is ever binding upon the U.S. Supreme Court.

"three very old cases that you happen to like."

[misterwhite #69] They're old?? How about your citations of English common law?

The English common law was cited as the original source of the 2nd Amendment right to keep and bear arms. It was not cited as precedent.

Statute law always takes precedent over common law. No federal common law has been created in the United States since the Constitutional government was formed, nor can it be.

Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

[misterwhite #70] Correct. Those used by a militia. The Miller court was unsure whether a sawed-off, double-barrel shotgun was a militia weapon.

The Court opined,

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.

There was no brief or appearance for Miller. No evidence was provided except by the government. The court can only consider evidence that is before it.

With no relevant evidence before the court whether a short barrel shotgun bore, "some reasonable relationship to the preservation or efficiency of a well regulated militia," the court could not "say that the Second Amendment guarantees the right to keep and bear such an instrument."

You cite that as precedent for what?

We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause.

[misterwhite #71] Right. States shall not infringe the right of a state to form a state militia.

When you start distorting the meaning of the second amendment, you end up looking foolish.

No blockhead. SCOTUS was considering whether the 2nd Amendment was incorporated into the 14th Amendment and, therefore, applied against the States.

SCOTUS decided it was incorporated and did apply against the States. Previously, your vaunted 2nd Amendment RKBA had no defense against State action as the 2nd Amendment was not applied to states.

You would choose to march boldly back into the era where States could ban ownership of handguns, or other categories of weapons, and you had no legal recourse.

While we recognize that this case raises controversial issues which engender strong emotions, our task is to apply the law as it has been interpreted by the Supreme Court, regardless of whether that Court's interpretation comports with various personal views of what the law should be.

[...]

Appellants concede that municipalities may, under the Illinois Constitution, exercise their police power to enact regulations which prohibit "possession of items legislatively found to be dangerous ...", Quilici br. at 9. They draw a distinction, however, between the exercise of the police power in general and the exercise of police power with respect to a constitutionally protected right. Indeed, they vehemently insist that a municipality may not exercise its police power to completely prohibit a constitutional guarantee.

[...]

We agree that the state may not exercise its police power to violate a positive constitutional mandate, People v. Warren, 11 Ill. 2d 420, 143 N.E.2d 28 (1957), but we reiterate that section 22 simply prohibits an absolute ban on all firearms. Since Ordinance No. 81-11 does not prohibit all firearms, it does not prohibit a constitutionally protected right. There is no right under the Illinois Constitution to possess a handgun, nor does the state have an overriding state interest in gun control which requires it to retain exclusive control in order to prevent home rule units from adopting conflicting enactments. See City of Evanston v. Create, Inc., 85 Ill. 2d 101, 51 Ill.Dec. 688, 421 N.E.2d 196 (1981). Accordingly, Morton Grove may exercise its police power to prohibit handguns even though this prohibition interferes with an individual's liberty or property. People v. Warren, 11 Ill. 2d 420, 143 N.E.2d 28 (1957).

[...]

As we have noted, the parties agree that Presser is controlling, but disagree as to what Presser held. It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate when the Presser decision plainly states that "[t]he Second Amendment declares that it shall not be infringed, but this ... means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government ...." Presser v. Illinois, 116 U.S. 252, 265, 6 S. Ct. 580, 584, 29 L. Ed. 615 (1886). As the district court explained in detail, appellants' claim that Presser supports the proposition that the second amendment guarantee of the right to keep and bear arms is not subject to state restriction is based on dicta quoted out of context. Quilici v. Village of Morton Grove, 532 F. Supp. at 1181-82. This argument borders on the frivolous and does not warrant any further consideration.

[...]

Since we hold that the second amendment does not apply to the states, we need not consider the scope of its guarantee of the right to bear arms. For the sake of completeness, however, and because appellants devote a large portion of their briefs to this issue, we briefly comment on what we believe to be the scope of the second amendment.

Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982) cert denied 464 U.S. 863 (1983). Your Presser (former) precedent in action.

Yeah, you like that one and want to march boldly right back to it. Three cheers for Presser and your advocacy of it.

Why do you so zealously advocate for the idea of going back to when states, cities and villages could ban handguns, or other classes of weapons, and it was NOT considered a violation of the 2nd Amendment? The good old days when only a Federal law could violate the 2nd Amendment.

You knew the legal significance of the holding in Presser because you stayed at a Holiday Inn Express, right?

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right.

[misterwhite #72] Uh-huh. And now 5 justices will tell every citizen the type of weapon they may have for individual self-defense, where they may carry it (if at all), how they may carry it, and when and where they may use it.

Some basic right.

And you are just too dumb to realize that, under your misinterpreted post-civil war opinions, a State or municipality could and did tell citizens exactly what type or class of weapon they may carry or possess. A ban on handguns by a municipality in Illinois was upheld as not infringing the 2nd Amendment because the 2nd Amendment did not apply to anything but the Federal government. Only a law issued by the Federal legislature could violate the 2nd Amendment. A state law, or local ordinance, could not violate any 2nd Amendment right, as the 2nd Amendment was inapplicable to the states. That is what you blather you want to return to?

The U.S. Supreme Court is established as the ultimate arbiter of what the law is. If that does not satisfy you, you should seek out some place where the ultimate arbiter is some blogger.

Self-defense is a basic right,

Yes it is. We are in agreement. BUT, self-defense with a weapon may be restricted, limited, or even prohibited. Can a violent, psychotic felon carry around a machine gun for self-defense?

"we held that individual self- defense is "the central component" of the Second Amendment right."

Why? Why the second amendment? Why can't state constitutions protect the right to individual self-defense? And isn't that preferable?

"... a State or municipality could and did tell citizens exactly what type or class of weapon they may carry or possess."

True. And before the Bill of Rights was selectively incorporated, states banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion.

"That is what you blather you want to return to?"

You bet! I believe in state's rights because I don't believe in one-size-fits-all government. Get the federal government out of my life so MY state can reflect the will of it's citizens.

That's known as a republic -- a form of government Benjamin Franklin challenged us to keep from people like you.

Why the second amendment? Why can't state constitutions protect the right to individual self-defense? And isn't that preferable?

A right protected by the 2nd Amendment cannot be dependent upon the states to choose whether or not they will recognize it.

As the 2nd Amendment RKBA has been incorporated into the 14th Amendment, the states may no longer enforce laws that violate the individual RKBA.

Psychotic felons have no RKBA to carry around a machine gun or any other gun, or flame thrower, or surface to air missile.

The RKBA is subject to regulation, just as the right to free speech is subject to regulation.

Quilici speaks loudly to why our constitutional rights cannot be subjected to unchecked state or municipal government. The people did not give such unchecked power to the Federal government. They retained it for themselves.

Heller and McDonald protect against state overreach.

You cite that as precedent for what?

That the type of weapon protected by the second amendment was relevent to its usefulness to a militia.

Useful? Protected. Not useful? Not protected.

Meaning, the second amendment has nothing to do with protecting some handgun for self-defense in the home. It's a restriction on the federal government to leave the state militias (and their weapons) alone.

Your right to self-defense with a firearm is protected by your state constitution. Always has been. The Heller court got it wrong.

[misterwhite] And before the Bill of Rights was selectively incorporated, states banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion.

"That is what you blather you want to return to?"

[misterwhite] You bet!

So you admit you want to return to when the state constitutionally "banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion."

If you just repeal the Bill of Rights, or make it inapplicable to the States, you can have what you want.

Your right to self-defense with a firearm is protected by your state constitution.

Look at how well that worked in Illinois. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

Meaning, the second amendment has nothing to do with protecting some handgun for self-defense in the home. It's a restriction on the federal government to leave the state militias (and their weapons) alone.

The RKBA is an individual right. Deal with it. Heller and McDonald.

The RKBA is not a restriction on the federal government to leave the state militias (and their weapons) alone. What sort of right would that be?

There are no more State militias. There is the National Guard.

A right protected by the 2nd Amendment cannot be dependent upon the states to choose whether or not they will recognize it.

Circular reasoning. I'm saying the right is NOT protected by the second amendment and IS protected by state constitutions.

"As the 2nd Amendment RKBA has been incorporated into the 14th Amendment, the states may no longer enforce laws that violate the individual RKBA."

True, but only because recent courts ruled that way. Rulings with which I don't agree.

"The RKBA is subject to regulation, just as the right to free speech is subject to regulation."

Well, you had me worried there with all your talk about "basic rights which can't be infringed" and "common law going back centuries".

"Heller and McDonald protect against state overreach."

Why oh why do you assume the federal government will protect your RKBA better than your own state? Heller and McDonald now give the federal government the exclusive power to decide what firearms are protected by the second amendment, for who, the meaning of "to keep", the meaning of "to bear" -- and their decision will now apply to every citizen in every state.

Five justices will now control your right. What will happen when we have five liberal, gun-grabbing justices who conclude that your RKBA does not include "assault rifles"? That "to bear" only means "to transport unloaded" and "to keep" means locked in a state armory?

You're not only an idiot, you're a traitor.

So you admit you want to return to when the state constitutionally "banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion."

I want to return back to when the citizens of the states had the power to make those decisions.

"If you just repeal the Bill of Rights, or make it inapplicable to the States, you can have what you want."

When the Bill of Rights was written it did not apply to the states. That bullshit started in the 1960's.

Look at how well that worked in Illinois. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

If that's what the citizens of Morton Grove wanted, who the fuck are you to tell them how to live? Who died and made you King?

You cite that as precedent for what?

That the type of weapon protected by the second amendment was relevent to its usefulness to a militia.

- - - - - - - - - -

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.

Presser

In the absence of evidence, the court could not say whether the a short barrel shotgun was a weapon in any part of the ordinary military equipment.

What a precedent. In the absence of evidence, the court could not say.

The District of Columbia argues that the prefatory clause declares the Amendment’s only purpose—to shield the state militias from federal encroachment—and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right. In other words, according to the District, the operative clause is not just limited by the prefatory clause, but instead both clauses share an explicitly civic character. The District claims that the Second Amendment “protects private possession of weapons only in connection with performance of civic duties as part of a well-regulated citizens militia organized for the security of a free state.” Individuals may be able to enforce the Second Amendment right, but only if the law in question “will impair their participation in common defense and law enforcement when called to serve in the militia.” But because the District reads “a well regulated Militia” to signify only the organized militias of the founding era—institutions that the District implicitly argues are no longer in existence today—invocation of the Second Amendment right is conditioned upon service in a defunct institution. Tellingly, we think, the District did not suggest what sort of law, if any, would violate the Second Amendment today—in fact, at oral argument, appellees’ counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District’s position to be that the Second Amendment is a dead letter.

[...]

We are told by the District that the Second Amendment was written in response to fears that the new federal government would disarm the state militias by preventing men from bearing arms while in actual militia service, or by preventing them from keeping arms at home in preparation for such service. Thus the Amendment should be understood to check federal power to regulate firearms only when federal legislation was directed at the abolition of state militias, because the Amendment’s exclusive concern was the preservation of those entities. At first blush, it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as “Congress shall make no law disarming the state militias” or “States have a right to a well-regulated militia.”

[...]

Both the collective and sophisticated collective theories assert that the Second Amendment was written for the exclusive purpose of preserving state militias, and both theories deny that individuals qua individuals can avail themselves of the Second Amendment today. The latter point is true either because, as the District appears to argue, the “Militia” is no longer in existence, or, as others argue, because the militia’s modern analogue, the National Guard, is fully equipped by the federal government, creating no need for individual ownership of firearms. It appears to us that for all its nuance, the sophisticated collective right model amounts to the old collective right theory giving a tip of the hat to the problematic (because ostensibly individual) text of the Second Amendment.

[...]

In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right—“the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”—indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights.

The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all—e.g., “the states.” See Emerson, 270 F.3d at 227. These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions. Indeed, the Supreme Court has recently endorsed a uniform reading of “the people” across the Bill of Rights.

[...]

In sum, the phrase “the right of the people,” when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual.

Parker v District of Columbia, 478 F3d 372 (DC Cir 2007), Affirmed U.S. Supreme Court, 554 U.S. 570 (2008)

The RKBA is an individual right. Deal with it. Heller and McDonald.

That's how those courts ruled. I disagree.

"The RKBA is not a restriction on the federal government to leave the state militias (and their weapons) alone. What sort of right would that be?"

That would be the right of a state to form and maintain a well-regulated militia consisting of armed citizens.

"There are no more State militias. There is the National Guard."

21 states have State Defense Forces in addition to the National Guard. If the other 29 wish to have them, the second amendment protects their right to organize them.

What a precedent. In the absence of evidence, the court could not say.

Just the fact that the court connected the weapon to a state militia speaks volumes as to the meaning of the second amendment.

"The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals"

They were. They were citizens with full rights -- to own property, run for office, vote, bear arms in the militia. For example, Article I, Section 2 says "the people" vote for House members. Not "the citizens" vote for House members.

In short, we take the District’s position to be that the Second Amendment is a dead letter.

Well, does the Distict of Columbia have a militia? If not, then the second amendment doesn't apply. I wouldn't call it a dead letter.

misterwhite] And before the Bill of Rights was selectively incorporated, states banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion. "That is what you blather you want to return to?" [misterwhite] You bet!

So you admit you want to return to when the state constitutionally "banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion."

If you just repeal the Bill of Rights, or make it inapplicable to the States, you can have what you want.

nolu chan

Good work Chan.. --- You've finally got misterwrong to admit what I've been telling this forum since we all got here.. This guy is an anti-constitutional troll..

As robertpausen, we argued these same points over 15 years ago, on FR, until we were both banned by JR for 'disruption '.

Well, does the Distict of Columbia have a militia? If not, then the second amendment doesn't apply.

The District of Columbia is not a state. It is a Federal district. There was no need for incorporation for the 2nd amendment to apply to the District of Columbia.

The District indicated the 2nd Amendment was a dead letter. The court disagreed and found the District to be in violation of the 2nd Amendment.

Just the fact that the court connected the weapon to a state militia speaks volumes as to the meaning of the second amendment.

Yes. You should write SCOTUS a sternly worded letter about it.

The meaning of the 2nd Amendment is not the definition of the right to keep and bear arms.

Here is what a unanimous Supreme Court said in 2016 about such blather.

Caetano v. Massachusetts, 14-10078, 577 US ____ (2016) per curiam

This is a UNANIMOUS opinion in which the author is not identified.

Cite as: 577 U. S._(2016)

1

Per Curiam

SUPREME COURT OF THE UNITED STATES

JAIME CAETANO v. MASSACHUSETTS

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

No. 14-10078. Decided March 21, 2016

PER CURIAM.

The Court has held that "the Second Amendment ex­tends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding," District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this "Second Amend­ment right is fully applicable to the States," McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Su­preme Judicial Court of Massachusetts upheld a Massa­chusetts law prohibiting the possession of stun guns after examining "whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment." 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they "were not in common use at the time of the Second Amendment's enactment." Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller's clear statement that the Second Amendment "extends . . . to . . . arms . . . that were not in existence at the time of the founding." 554 U. S., at 582.

The court next asked whether stun guns are "dangerous per se at common law and unusual," 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one "important limitation on the right to keep and carry arms," Heller, 554 U. S., at 627; see ibid. (referring to "the historical tradition of prohibiting the carrying of 'dangerous and

2

CAETANO v. MASSACHUSETTS

Per Curiam

unusual weapons' "). In so doing, the court concluded that stun guns are "unusual" because they are "a thoroughly modern invention." 470 Mass., at 781, 26 N. E. 3d, at 693-694. By equating "unusual" with "in common use at the time of the Second Amendment's enactment," the court's second explanation is the same as the first; it is inconsistent with Heller for the same reason.

Finally, the court used "a contemporary lens" and found "nothing in the record to suggest that [stun guns] are readily adaptable to use in the military." 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposi­tion "that only those weapons useful in warfare are pro­tected." 554 U. S., at 624-625.

For these three reasons, the explanation the Massachu­setts court offered for upholding the law contradicts this Court's precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

- - - - - - - - - -

And here is the concurring opinion which accompanied the per curiam opinion.

Cite as: 577 U. S. __ (2016)

1

ALITO, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

JAIME CAETANO v. MASSACHUSETTS

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

No. 14-10078. Decided March 21, 2016

Justice Alito, with whom Justice Thomas joins, concurring in the judgment. After a "bad altercation" with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and "in fear for [her] life." Tr. 31, 38 (July 10, 2013). She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun "for self-defense against [her] former boy friend," 470 Mass. 774, 776, 26 N. E. 3d 688, 690 (2015), Caetano accepted the weapon.

It is a good thing she did. One night after leaving work, Caetano found her ex-boyfriend "waiting for [her] outside." Tr. 35. He "started screaming" that she was "not gonna [expletive deleted] work at this place" any more because she "should be home with the kids" they had together. Ibid. Caetano's abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn't need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: "I'm not gonna take this anymore. . . . I don't wanna have to [use the stun gun on] you, but if you don't leave me alone, I'm gonna have to." Id., at 35-36. The gambit worked. The ex-boyfriend "got scared and he left [her] alone." Id., at 36.

It is settled that the Second Amendment protects an individual right to keep and bear arms that applies against both the Federal Government and the States. District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010). That right

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vindicates the "basic right" of "individual self-defense." Id., at 767; see Heller, supra, at 599, 628. Caetano's en­counter with her violent ex-boyfriend illustrates the con­nection between those fundamental rights: By arming herself, Caetano was able to protect against a physical threat that restraining orders had proved useless to pre­vent. And, commendably, she did so by using a weapon that posed little, if any, danger of permanently harming either herself or the father of her children.

Under Massachusetts law, however, Caetano's mere possession of the stun gun that may have saved her life made her a criminal. See Mass. Gen. Laws, ch. 140, §131J (2014). When police later discovered the weapon, she was arrested, tried, and convicted. The Massachusetts Su­preme Judicial Court affirmed the conviction, holding that a stun gun "is not the type of weapon that is eligible for Second Amendment protection" because it was "not in common use at the time of [the Second Amendment's] enactment." 470 Mass., at 781, 26 N. E. 3d, at 693. This reasoning defies our decision in Heller, which rejected as "bordering on the frivolous" the argument "that only those arms in existence in the 18th century are pro­tected by the Second Amendment." 554 U. S., at 582. The decision below also does a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not.

The events leading to Caetano's prosecution occurred sometime after the confrontation between her and her ex-boyfriend. In September 2011, police officers responded to a reported shoplifting at an Ashland, Massachusetts, supermarket. The store's manager had detained a sus­pect, but he identified Caetano and another person in the parking lot as potential accomplices. Police approached the two and obtained Caetano's consent to search her

I

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3

ALITO, J., concurring in judgment

purse. They found no evidence of shoplifting, but saw Caetano's stun gun. Caetano explained to the officers that she had acquired the weapon to defend herself against a violent ex-boyfriend.

The officers believed Caetano, but they arrested her for violating Mass. Gen. Laws, ch. 140, §131J, "which bans entirely the possession of an electrical weapon," 470 Mass., at 775, 26 N. E. 3d, at 689.¹ When Caetano moved to dismiss the charge on Second Amendment grounds, the trial court denied the motion.

A subsequent bench trial established the following undisputed facts. The parties stipulated that Caetano possessed the stun gun and that the weapon fell within the statute's prohibition.² The Commonwealth also did not challenge Caetano's testimony that she possessed the weapon to defend herself against the violent ex-boyfriend. Indeed, the prosecutor urged the court "to believe the defendant." Tr. 40. The trial court nonetheless found

__________

¹ Specifically, the statute prohibits the possession of any "portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is de­signed to incapacitate temporarily, injure or kill." Mass. Gen. Laws, ch. 140, §131J (2014). The statute includes exceptions for law-enforcement officers and weapon suppliers, who may possess electrical weapons "designed to incapacitate temporarily." Ibid. Violations are punishable by a fine of $500 to $1,000, imprisonment of 6 months to 2% years, or both. Ibid.

² Stun guns like Caetano's "are designed to stun a person with an electrical current" by running a current between two metal prongs on the device and placing the prongs in direct contact with the person. 470 Mass. 774, 775, n. 2, 26 N. E. 3d 688, 689, n. 2 (2015). A similar device, popularly known by the brand name "Taser," shoots out wires tipped with electrodes that can deliver an electrical current from a distance. Tr. 25-26. Tasers can also be used like a stun gun without deploying the electrodes—a so-called "dry stun." Id., at 26. As the Common­wealth's witness testified at trial, these sorts of electrical weapons are "non-lethal force" "designed to incapacitate"—"not kill"—a target. Id., at 27.

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Caetano guilty, and she appealed to the Massachusetts Supreme Judicial Court. The Supreme Judicial Court rejected Caetano's Second Amendment claim, holding that "a stun gun is not the type of weapon that is eligible for Second Amendment protec­tion." 470 Mass., at 775, 26 N. E. 3d, at 689. The court reasoned that stun guns are unprotected because they were "not 'in common use at the time' of enactment of the Second Amendment," id., at 781, 26 N. E. 3d, at 693 (quot­ing Heller, supra, at 627), and because they fall within the "traditional prohibition against carrying dangerous and unusual weapons," 470 Mass., at 779, 26 N. E. 3d, at 692 (citing Heller, supra, at 627).

II

Although the Supreme Judicial Court professed to apply Heller, each step of its analysis defied Heller's reasoning.

A

The state court repeatedly framed the question before it as whether a particular weapon was " 'in common use at the time' of enactment of the Second Amendment." 470 Mass., at 781, 26 N. E. 3d, at 693; see also id., at 779, 780, 781, 26 N. E. 3d, at 692, 693, 694. In Heller, we emphati­cally rejected such a formulation. We found the argument "that only those arms in existence in the 18th century are protected by the Second Amendment" not merely wrong, but "bordering on the frivolous." 554 U. S., at 582. In­stead, we held that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Ibid. (emphasis added).³ It is hard to

__________

³ Stun guns are plainly "bearable arms." As Heller explained, the term includes any "[w]eapo[n] of offence" or "thing that a man wears for his defence, or takes into his hands," that is "carr[ied] . . . for the purpose of offensive or defensive action." 554 U. S., at 581, 584 (inter-

Cite as: 577 U. S._(2016)

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ALITO, J., concurring in judgment

imagine language speaking more directly to the point. Yet the Supreme Judicial Court did not so much as mention it.

Instead, the court seized on language, originating in United States v. Miller, 307 U. S. 174 (1939), that "'the sorts of weapons protected were those "in common use at the time."'" 470 Mass., at 778, 26 N. E. 3d, at 692 (quot­ing Heller, supra, at 627, in turn quoting Miller, supra, at 179). That quotation does not mean, as the court below thought, that only weapons popular in 1789 are covered by the Second Amendment. It simply reflects the reality that the founding-era militia consisted of citizens "who would bring the sorts of lawful weapons that they possessed at home to militia duty," Heller, 554 U. S., at 627, and that the Second Amendment accordingly guarantees the right to carry weapons "typically possessed by law-abiding citizens for lawful purposes," id., at 625. While stun guns were not in existence at the end of the 18th century, the same is true for the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols. Revolvers were virtually unknown until well into the 19th century,⁴ and semiautomatic pistols were not invented until near the end of that century.⁵ Electronic stun guns are no more exempt from the Second Amend­ment's protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment. Id., at 582 (citing Reno v. American Civil Liberties Union, 521

__________

nal quotation marks omitted).

⁴ See J. Bilby, A Revolution in Arms: A History of the First Repeating Rifles 23 (2006). Samuel Colt did not patent his famous revolver until 1836. Ibid.

⁵ See Firearms: An Illustrated History 166 (2014); see also W. Greener, The Gun and Its Development 524-529, 531-534 (9th ed. 1910) (dis­cussing revolvers and self-loading semiautomatic pistols as "modern pistols").

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U. S. 844, 849 (1997), and Kyllo v. United States, 533 U. S. 27, 35-36 (2001)). As Heller aptly put it: "We do not inter­pret constitutional rights that way." 554 U. S., at 582.

B

The Supreme Judicial Court's holding that stun guns may be banned as "dangerous and unusual weapons" fares no better. As the per curiam opinion recognizes, this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual. Because the Court rejects the lower court's conclusion that stun guns are "unusual," it does not need to consider the lower court's conclusion that they are also "dangerous." See ante, at 1-2. But make no mistake—the decision below gravely erred on both grounds.

1

As to "dangerous," the court below held that a weapon is "dangerous per se" if it is " 'designed and constructed to produce death or great bodily harm' and 'for the purpose of bodily assault or defense.'" 470 Mass., at 779, 26 N. E. 3d, at 692 (quoting Commonwealth v. Appleby, 380 Mass. 296, 303, 402 N. E. 2d 1051, 1056 (1980)). That test may be appropriate for applying statutes criminalizing assault with a dangerous weapon. See ibid., 402 N. E. 2d, at 1056. But it cannot be used to identify arms that fall outside the Second Amendment. First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. See Heller, supra, at 627 (contrasting "'dangerous and unusual weap­ons' " that may be banned with protected "weapons . . . 'in common use at the time' "). Second, even in cases where dangerousness might be relevant, the Supreme Judicial Court's test sweeps far too broadly. Heller defined the "Arms" covered by the Second Amendment to include " 'any thing that a man wears for his defence, or takes into his

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ALITO, J., concurring in judgment

hands, or useth in wrath to cast at or strike another.'" 554 U. S., at 581. Under the decision below, however, virtually every covered arm would qualify as "dangerous."

Were there any doubt on this point, one need only look at the court's first example of "dangerous per se" weapons: "firearms." 470 Mass., at 779, 26 N. E. 3d, at 692. If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous. 554 U. S., at 636. A fortiori, stun guns that the Common­wealth's own witness described as "non-lethal force," Tr. 27, cannot be banned on that basis.

2

The Supreme Judicial Court's conclusion that stun guns are "unusual" rested largely on its premise that one must ask whether a weapon was commonly used in 1789. See 470 Mass., at 780-781, 26 N. E. 3d, at 693-694. As al­ready discussed, that is simply wrong. See supra, at 4-6.

The court also opined that a weapon's unusualness depends on whether "it is a weapon of warfare to be used by the militia." 470 Mass., at 780, 26 N. E. 3d, at 693. It asserted that we followed such an approach in Miller and "approved its use in Heller." 470 Mass., at 780, 26 N. E. 3d, at 693. But Heller actually said that it would be a "startling reading" of Miller to conclude that "only those weapons useful in warfare are protected." 554 U. S., at 624. Instead, Miller and Heller recognized that militia members traditionally reported for duty carrying "the sorts of lawful weapons that they possessed at home," and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon's suitability for military use. 554 U. S., at 627; see id., at 624-625. Indeed, Heller acknowledged that advancements in military technology might render many commonly owned weapons ineffective in warfare. Id., at 627-628. But such "modern developments . . . cannot change our

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interpretation of the right." Ibid.

In any event, the Supreme Judicial Court's assumption that stun guns are unsuited for militia or military use is untenable. Section 131J allows law enforcement and correctional officers to carry stun guns and Tasers, pre­sumably for such purposes as nonlethal crowd control. Subduing members of a mob is little different from "sup­pressing] Insurrections," a traditional role of the militia. U. S. Const., Art. I, §8, cl. 15; see also ibid. (militia may be called forth "to execute the Laws of the Union"). Addition­ally, several branches of the U. S. armed services equip troops with electrical stun weapons to "incapacitate a target without permanent injury or known side effects." U. S. Army, Project Manager Close Combat Systems, PD Combat Munitions: Launched Electrode Stun Device (LESD),

http://www.pica.army.mil/pmccs/combatmunitions/nonlethalsys/taserx26e.html

(all Internet materials as last visited Mar. 18, 2016); see U. S. Marine Corps Admin­istrative Message 560/08 (Oct. 2, 2008) (Marine Corps guidance for use of Tasers),

http://www.marines.mil/News/Messages/MessagesDisplay/tabid/13286/Article/1130 24/marine-corps-training-and-use-of-human-electro-muscular-incapacitation-hemi-dev.aspx;

Joint Non-Lethal Weapons Directorate, Non-Lethal Weapons (NLW) Reference Book 3 (2012) (Department of Defense report stating that "[m]ultiple Services employ" Tasers),

http://dtic.mil/dtic/tr/fulltext/u2/a565971.pdf.

C

As the foregoing makes clear, the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today. The Supreme Judicial Court offered only a cursory discussion of that question, noting that the "'number of Tasers and stun guns is dwarfed by the number of fire­arms.'" 470 Mass., at 781, 26 N. E. 3d, at 693. This ob-

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ALITO, J., concurring in judgment

servation may be true, but it is beside the point. Other­wise, a State would be free to ban all weapons except handguns, because "handguns are the most popular weapon chosen by Americans for self-defense in the home." Heller, supra,at 629.

The more relevant statistic is that "[h]undreds of thou­sands of Tasers and stun guns have been sold to private citizens," who it appears may lawfully possess them in 45 States. People v. Yanna, 297 Mich. App. 137, 144, 824 N. W. 2d 241, 245 (2012) (holding Michigan stun gun ban unconstitutional); see Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199, 244 (2009) (citing stun gun bans in seven States); Wis. Stat. §941.295 (Supp. 2015) (amended Wisconsin law permitting stun gun possession); see also Brief in Opposi­tion 11 (acknowledging that "approximately 200,000 civil­ians owned stun guns" as of 2009). While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts' categorical ban of such weapons therefore violates the Second Amendment.

III

The lower court's ill treatment of Heller cannot stand. The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense. The Su­preme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. 470 Mass., at 783, 26 N. E. 3d, at 695. But the right to bear other weap­ons is "no answer" to a ban on the possession of protected arms. Heller, 554 U. S., at 629. Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should

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not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.⁶

Countless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons—or simply out of fear of killing the wrong person. See Brief for Arming Women Against Rape & Endanger-ment as Amicus Curiae 4-5. "Self-defense," however, "is a basic right." McDonald, 561 U. S., at 767. I am not pre­pared to say that a State may force an individual to choose between exercising that right and following her con­science, at least where both can be accommodated by a weapon already in widespread use across the Nation.

* * *

A State's most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsi­est of grounds. This Court's grudging per curiam now sends the case back to that same court. And the conse­quences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense. See Pet. for Cert. 14.

If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.

__________

⁶ The court below also noted that Massachusetts no longer requires a license to possess mace or pepper spray. 470 Mass., at 783, 26 N. E. 3d, at 695. But the law was changed in 2014, after Caetano was convicted. A spray can also be foiled by a stiff breeze, while a stun gun cannot.

In July 2016, Massachusetts dropped the charges.

"There are no more State militias. There is the National Guard."

21 states have State Defense Forces in addition to the National Guard. If the other 29 wish to have them, the second amendment protects their right to organize them.

https://en.wikipedia.org/wiki/State_defense_force

State defense forces (SDF; also known as state military, state guards, or state military reserves) in the United States are military units that operate under the sole authority of a state government. State defense forces are authorized by state and federal law and are under the command of the governor of each state.

State defense forces are distinct from their state's National Guard in that they cannot become federal entities. All state National Guard personnel (to include the National Guard of the District of Columbia, the Commonwealth of Puerto Rico and the territories of Guam and the Virgin Islands) can be federalized under the National Defense Act Amendments of 1933 with the creation of the National Guard of the United States. This provides the basis for integrating units and personnel of the Army National Guard into the U.S. Army and, since 1947, units and personnel of the Air National Guard into the U.S. Air Force.

The federal government recognizes state defense forces, as per the Compact Clause of the U.S. Constitution, under 32 U.S.C. § 109 which provides that state defense forces as a whole may not be called, ordered, or drafted into the armed forces of the United States, thus preserving their separation from the National Guard. However, under the same law, individual members serving in the state defense force are not exempt from service in the armed forces (i.e., they are not excluded from the draft). Under 32 USC § 109(e), "A person may not become a member of a defense force ... if he is a member of a reserve component of the armed forces."

The defense forces are created pursuant to 32 U.S.C. 109. They are subject to being drafted into the U.S. armed forces.

https://law.justia.com/codes/us/2016/title-32/chapter-1/sec.-109/

2016 US Code
Title 32 - National Guard
Chapter 1 - Organization
Sec. 109 - Maintenance of other troops

(a) In time of peace, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may maintain no troops other than those of its National Guard and defense forces authorized by subsection (c).

(b) Nothing in this title limits the right of a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands to use its National Guard or its defense forces authorized by subsection (c) within its borders in time of peace, or prevents it from organizing and maintaining police or constabulary.

(c) In addition to its National Guard, if any, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces.

(d) A member of a defense force established under subsection (c) is not, because of that membership, exempt from service in the armed forces, nor is he entitled to pay, allowances, subsistence, transportation, or medical care or treatment, from funds of the United States.

(e) A person may not become a member of a defense force established under subsection (c) if he is a member of a reserve component of the armed forces.

https://en.wikipedia.org/wiki/Militia_(United_States)

Today, as defined by the Militia Act of 1903, the term "militia" is primarily used to describe two groups within the United States:

Organized militia – consisting of State militia forces; notably, the National Guard and Naval Militia. (Note: the National Guard is not to be confused with the National Guard of the United States.)

Unorganized militia – composing the Reserve Militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the National Guard or Naval Militia.

The state defense forces do not meet the definition of the organized or unorganized militia.

You may stop making believe that they are the militia, resurrected.

"The RKBA is not a restriction on the federal government to leave the state militias (and their weapons) alone. What sort of right would that be?"

That would be the right of a state to form and maintain a well-regulated militia consisting of armed citizens.

Perhaps you missed it, but over a century ago the state militias were changed by Federal law into the National Guard.

Where did you find the constitutional right of a State to form and maintain a militia?

The Constitution says 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;

- - - - - - - - - -

"There are no more State militias. There is the National Guard."

21 states have State Defense Forces in addition to the National Guard. If the other 29 wish to have them, the second amendment protects their right to organize them.

The militia, resurrected, they ain't.

https://en.wikipedia.org/wiki/State_defense_force

State defense forces (SDF; also known as state military, state guards, or state military reserves) in the United States are military units that operate under the sole authority of a state government. State defense forces are authorized by state and federal law and are under the command of the governor of each state.

State defense forces are distinct from their state's National Guard in that they cannot become federal entities. All state National Guard personnel (to include the National Guard of the District of Columbia, the Commonwealth of Puerto Rico and the territories of Guam and the Virgin Islands) can be federalized under the National Defense Act Amendments of 1933 with the creation of the National Guard of the United States. This provides the basis for integrating units and personnel of the Army National Guard into the U.S. Army and, since 1947, units and personnel of the Air National Guard into the U.S. Air Force.

The federal government recognizes state defense forces, as per the Compact Clause of the U.S. Constitution, under 32 U.S.C. § 109 which provides that state defense forces as a whole may not be called, ordered, or drafted into the armed forces of the United States, thus preserving their separation from the National Guard. However, under the same law, individual members serving in the state defense force are not exempt from service in the armed forces (i.e., they are not excluded from the draft). Under 32 USC § 109(e), "A person may not become a member of a defense force ... if he is a member of a reserve component of the armed forces."

[...]

Other problems cited by the Inspector General's office were a lack of standardization in training and physical fitness, raising questions as to the ability of SDFs to work alongside their National Guard counterparts, and a lack of coordination with and support from the Department of Defense. During a survey conducted by the Inspector General of SDF commanders and adjutant generals, 18 of 19 considered their SDFs to be part of the organized militia and subject to the Code of Military Justice, 14 of 18 considered the members of SDFs to be "soldiers", 14 of 18 considered SDF personnel to be "lawful belligerents" under the rules of war, and only 4 of 19 authorized their personnel to conduct firearms training. Almost all of the missions reported to the IG's office were non-military in nature, including small-scale search and rescue, disaster management, and other unarmed, homeland security related-tasks.

[...]

Some state defense forces have minimal enlistment requirements, permitting virtually any citizen under a prescribed age (usually 66) to join, even if they have no previous military experience, or don't meet conventional military physical standards (California, for instance, requires no physical fitness test prior to entry and has weight/height standards significantly more relaxed than the U.S. military).

Many state defense forces allow enlistment "at will" and personnel are under no termed service obligation, unlike most conventional military forces, meaning they can simply quit at any time without facing charges of desertion or Absence Without Leave.

Training standards vary widely, but usually require 15 days of annual drill, compared to the absolute minimum of 38 days (if not more) required of most federal military reserve forces. Unlike the U.S. military, there is generally only a limited period of basic training, often as few as four days for persons with no prior military experience, significantly less than the ten weeks of basic training required, for instance, by the United States Army.

[...]

Weapons qualification and training is provided in some SDFs. However, most SDFs do not require weapons proficiency. A 2006 report by the U.S. Freedom Foundation, an organization affiliated with the State Guard Association of the United States, recommended minimum standards for state defense forces, including weapons training, but the report has been largely ignored. Some SDFs have laws that in the event of deployment by order of the state legislature and/or governor, they will become armed.

The defense forces are created pursuant to 32 U.S.C. 109. They are subject to being drafted into the U.S. armed forces.

https://law.justia.com/codes/us/2016/title-32/chapter-1/sec.-109/

2016 US Code
Title 32 - National Guard
Chapter 1 - Organization
Sec. 109 - Maintenance of other troops

(a) In time of peace, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may maintain no troops other than those of its National Guard and defense forces authorized by subsection (c).

(b) Nothing in this title limits the right of a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands to use its National Guard or its defense forces authorized by subsection (c) within its borders in time of peace, or prevents it from organizing and maintaining police or constabulary.

(c) In addition to its National Guard, if any, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces.

(d) A member of a defense force established under subsection (c) is not, because of that membership, exempt from service in the armed forces, nor is he entitled to pay, allowances, subsistence, transportation, or medical care or treatment, from funds of the United States.

(e) A person may not become a member of a defense force established under subsection (c) if he is a member of a reserve component of the armed forces.

https://en.wikipedia.org/wiki/Militia_(United_States)

Today, as defined by the Militia Act of 1903, the term "militia" is primarily used to describe two groups within the United States:

Organized militia – consisting of State militia forces; notably, the National Guard and Naval Militia. (Note: the National Guard is not to be confused with the National Guard of the United States.)

Unorganized militia – composing the Reserve Militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the National Guard or Naval Militia.

The state defense forces do not meet the definition of the organized or unorganized militia.

You may stop making believe that they are the militia, resurrected.

"The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals"

They were. They were citizens with full rights -- to own property, run for office, vote, bear arms in the militia. For example, Article I, Section 2 says "the people" vote for House members. Not "the citizens" vote for House members.

When used in a constitutional sense, the citizens and the people are one and the same. This reduces your statement to gibberish.

People ... In a more restricted sense, and as generally used in constitutional law, the entire body of those citizens of a state or nation who are invested with the political power for political purposes.

Black's Law Dictionary, 6th Ed.

Look at how well that worked in Illinois. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

If that's what the citizens of Morton Grove wanted, who the fuck are you to tell them how to live? Who died and made you King?

You died of self-inflicted wounds.

You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns. Talk about a surrender monkey.

Hey hey, ho ho,
Whitey's rights have got to go!

"You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns."

Only if the state constitution allows it and the people want it. Are you saying that people don't have the right to self-governance because you, nolu chan, disagree with the decisions they're making?

Is your way the better way?

The District of Columbia is not a state. It is a Federal district. There was no need for incorporation for the 2nd amendment to apply to the District of Columbia.

Which is the main problem with the Heller decision. Had, say, Ohio banned handguns in the home for self-defense, the ruling would have been different because the court would have referred to Ohio's state constitution.

So the Heller court felt compelled to twist and distort the second amendment to make it applicable to DC residents. Which it is not.

The Massachusetts Supreme Court was correct -- the second amendment does not protect stun guns or sawed-off shotguns or zip guns or any other weapon not suitable for a miliria. That's not to say citizens can't have them if their state constitution protects them. Just that they're not protected by the second amendment.

Now, this case proves the point I've been making since Heller was decided. Five justices on the The U.S. Supreme Court now get to define the word "arms" in the second amendment for everyone.

Not the people. Not the city. Not the state. Five unelected, appointed-for-life Federal judges.

You bring up the Massachusetts ruling like it's a good thing because the U.S. Supreme Court forced Massachusetts to allow stun guns. The citizens of Massachusetts don't want civilians to have stun guns. Tough shit, citizens.

BUT what happens when some future, liberal U.S. Supreme Court defines arms as not including "assault rifles" -- the very weapons needed for protection from an out-of-control government? Still a good idea when the ruling goes against you?

The state defense forces do not meet the definition of the organized or unorganized militia.

If State Defense Forces don't meet the definition of a modern day state militia, then I don't know what does. Next you'll be telling me that an AR-15 doesn't meet the definition of "arms" because it's not a muzzle-loader.

(I will not be surprised when the U.S. Supreme Court defines it that way.)

"Where did you find the constitutional right of a State to form and maintain a militia?"

I would think you would know, being an expert in common law. The authority comes from posse comitatus and pre-dates the U.S. Constitution.

The second amendment says the Federal Government can't infringe on this common law.

When used in a constitutional sense, the citizens and the people are one and the same.

Not when the U.S. Constitution was written. And if we're looking for the meaning of the second amendment, that's what you go on.

"People ... In a more restricted sense, and as generally used in constitutional law, the entire body of those citizens of a state or nation who are invested with the political power for political purposes."

First of all, the term is "the people", not "people", not "persons", not "individuals, not "citizens". Each one had a different meaning in the U.S. Constitution.

Second, were your "people" -- the the the entire body of those citizens -- allowed to vote? Children weren't. Women weren't. Non-property owners weren't. Could those groups run for office? (No.)

So how can you possibly include them with those "who are invested with the political power for political purposes"?

nolu chan ------ "You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns. Talk about a surrender monkey".

Misterwrong ------ Only if the state constitution allows it and the people want it. Are you saying that people don't have the right to self-governance because you, nolu chan, disagree with the decisions they're making?

State constitutions or State/local 'laws' cannot infringe on 2nd amendment rights, -- (see the Supremacy Clause),....

"You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns."

Only if the state constitution allows it and the people want it. Are you saying that people don't have the right to self-governance because you, nolu chan, disagree with the decisions they're making?

The Federal Constitution prohibits infringing upon the right of the people to keep and bear arms.

The people reserved the right to themselves and neither the Federal government, nor a lawless, usurping State government has the lawful power to infringe upon this right of the people.

This is true regardless of your mindless blatherings, or my astute observations of the actual law and current U.S. Supreme Court precedent.

The District of Columbia is not a state. It is a Federal district. There was no need for incorporation for the 2nd amendment to apply to the District of Columbia.

Which is the main problem with the Heller decision. Had, say, Ohio banned handguns in the home for self-defense, the ruling would have been different because the court would have referred to Ohio's state constitution.

So the Heller court felt compelled to twist and distort the second amendment to make it applicable to DC residents. Which it is not.

Once again, you do not know what the hell you are talking about and just blather.

Heller only applied to the District of Columbia, not to the States.

McDonald took up the issue regarding thd States and decided that the 2nd Amendment had been incorporated into the 14th Amendment and was fully applicable to all the States.

Heller did not have to twist or distort anything to make it applicable to the District. It is a Federal district, under the control of the U.S. Congress. Congress has the power "to to exercise exclusive Legislation in all Cases whatsoever, over such District...." Art. 1, Sec. 8, Cl. 17. The 2nd Amendment automatically applied to the Federal district.

The Massachusetts case came after the Heller decision, so you can expect weird, convoluted second amendment rulings from here on out.

The Massachusetts case followed the precedent in Heller. Caetano v. Massachusetts was a UNANIMOUS decision of the U.S. Supreme Court.

If you do not like the legally binding precedents of the U..S. Supreme Court, send them a sternly worded letter giving them the benefit of your wisdom.

Five justices on the The U.S. Supreme Court now get to define the word "arms" in the second amendment for everyone.

Yes, it has not changed. The U.S. Supreme Court is empowered by the people to issue a legally binding definition. You are not.

The state defense forces do not meet the definition of the organized or unorganized militia.

If State Defense Forces don't meet the definition of a modern day state militia, then I don't know what does.

Finally, you made a statement that appears to be absolutely true.

"Where did you find the constitutional right of a State to form and maintain a militia?"

I would think you would know, being an expert in common law. The authority comes from posse comitatus and pre-dates the U.S. Constitution.

The second amendment says the Federal Government can't infringe on this common law.

You're blowing it out of your ass.

https://www.law.cornell.edu/constitution/articlei#section8

Article 1, Section 8:

The Congress shall have 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;

For your cited State Defense Forces, which may be comprised of fat 65-year old men with no military experience, they are authorized by Federal statute.

https://law.justia.com/codes/us/2016/title-32/chapter-1/sec.-109/

2016 US Code
Title 32 - National Guard
Chapter 1 - Organization
Sec. 109 - Maintenance of other troops

32 U.S.C. § 109 (2016)

(a) In time of peace, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may maintain no troops other than those of its National Guard and defense forces authorized by subsection (c).

(b) Nothing in this title limits the right of a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands to use its National Guard or its defense forces authorized by subsection (c) within its borders in time of peace, or prevents it from organizing and maintaining police or constabulary.

(c) In addition to its National Guard, if any, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces.

(d) A member of a defense force established under subsection (c) is not, because of that membership, exempt from service in the armed forces, nor is he entitled to pay, allowances, subsistence, transportation, or medical care or treatment, from funds of the United States.

(e) A person may not become a member of a defense force established under subsection (c) if he is a member of a reserve component of the armed forces. Source Credit

(Aug. 10, 1956, ch. 1041, 70A Stat. 600; Pub. L. 85–861, §2(2), Sept. 2, 1958, 72 Stat. 1542; Pub. L. 100–456, div. A, title XII, §1234(b)(1), Sept. 29, 1988, 102 Stat. 2059; Pub. L. 109–163, div. A, title X, §1057(b)(3), Jan. 6, 2006, 119 Stat. 3441; Pub. L. 111–383, div. A, title X, §1075(h)(4)(B), Jan. 7, 2011, 124 Stat. 4377.)

The Second Amendment says The Federal Government shall not infringe a RIGHT OF THE PEOPLE. By incorporation into the 14th Amendment, the restriction applies equally to the several States.

Common law. As distinguished from statutory law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England. In general, it is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments. The "common law" is all the statutory and case law background of England and the American colonies before the American revolution.

Black's Law Dictionary 6th Ed.

Take your childish argument to your nearest pre-revolutionary colonial court.

There have never been common law courts in the United States.

When used in a constitutional sense, the citizens and the people are one and the same.

Not when the U.S. Constitution was written.

Again, you are full of shit.

That is the usage of the Framers. That is why it is applicable in constitutional usage.

As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

“ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

Heller, 554 U.S. 570, 590 (2008)

But back when the U.S. Constitution and the second amendment were written, "the people" referred only to citizens with full rights -- the right to vote, to own property, to run for office. Only they were "part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

So when Article 1, Section 2 or the second amendment refers to "the people", that's who they're talking about. Not everyone. Not back then.