Ted Nugent takes on the minority of Supreme Court justices for denying the obvious meaning of the Second Amendment. Obviously, I agree with the points raised by Mr. Nugent in the Fox video. I am no more a constitutional scholar than most 2A activists, but still that places me ahead of most law professors and after casually reviewing Scalia's opinion I would be critical of it for not going far enough and conceding too much to the grinches. Perhaps I was expecting too much, but the opinion seemed a bit anticlimactic after the great successes below such as Emerson. Nevertheless, the majority opinion made some really great points and the Heller decision is clearly a watershed moment for liberty.
The opinion recognizes that the prefatory clause clarifies the purpose of the Second Amendment: to prevent the elimination of the militia. [Not "hunting" as a tax law professor told me, the second time I went to law school a few years ago; the first time I went to law school, in the late 1980s, I don't recall them ever talking about the Second Amendment at all-maybe I missed that day.] As Scalia points out: "'well-regulated' implies nothing more than the imposition of proper discipline and training." He quotes Cooley:
The alternative to a standing army is "a well-regulated militia," but this cannot exist unless the people are trained to bearing arms.
.....
for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use...
The opinion also, in fn. 23 with regard to Fourteenth Amendment incoporation, points out that Cruikshank (though reaffirmed in several cases proximate in time) in holding the Second Amendment did not apply against the states, viewed the First Amendment the same way and did not employ the Fourteenth Amendment analysis required by later cases. An opening, perhaps.
I am doubtful of Scalia's characterization of the home as the place where lawful defense is "most acute"--what if someone wants defend themselves while away from home and there is no one there to help? If no one can hear them scream, are they really there? And we have all heard of cases where our fellow citizens heard "hue and cry" for help and did nothing.
The opinion buys into the sheer folly of creating gun-free victimization zones in "sensitive places such as schools and government buildings."
The opinion does put Miller in its place, calling it "an uncontested and virtually unreasoned case" holding "only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." [But what if the American character changes and gun culture wanes? Does the Second Amendment wane also?] Scalia justifies Miller's limitation of weapons to those "in common use at the time" based on historical tradition of prohibiting carry of "dangerous and unusual weapons." [As an Anaheim cop once told me, "guns are dangerous, and that's a good thing." And what is wrong with unusual? I should be able to carry a phaser if I can do so without violating the prime directive.] Scalia apparently views many of the current regulatory schemes as "presumptively lawful"--I am not sure why. He brings up M-16's apparenty as an example of a primarily military weapon "not in common use" that could be banned, yet fails to point out they are frequently used for home defense (very effective, with frangible rounds, in the right circumstances) and hunting. Though holding to the protected right, Scalia entertains the notion it may diverge from the prefatory clause in that today's militia would require sophisticated, unusual arms (bombers, tanks) to be truly effective. Nonsense--this ignores the effectiveness of guerilla warfare and assassination, especially where there is broad public appeal for the political motive involved. Earlier in the opinion, where Scalia quotes a very broad definition of "arms", I wish he included another definition from the period I've seen making clear the distinction between "Arms" (personal) and "Ordnance" (artillery and the like).
Scalia is brilliant and the weak points may have resulted from having to dumb down the opinion to Kennedy's level of comprehesion. There is even a hint of humor in Scalia's last paragraph: "well-trained police forces provide personal security." Nothing against LEO's; it's just that that's not their job and cases have held so.
I don't train at the level I train at because of guns I keep at home. I train seriously "for their efficient use" because I carry every day, outside the home, and like most who do so, I want to do so responsibly.
