So why can't I, as a member of the United States Militia, buy a machine gun in California?
The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistable. Who are the militia? are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
- Tenche Coxe, The Pennsylvania Gazette, February 20, 1788.10 USC 311: The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
And aside from that, the first clause of the Second Amendment is not a restrictive clause, but rather an explanatory cause. The Supreme Court recognized as much in the Miller case where there was no dispute as to whether Miller and his fellow defendants were an active part of an organized militia in considering their standing to assert a Second Amendment claim.
And aside from that, the Constitution and the Bill of Rights confer no rights at all, they merely recognize pre-existing natural rights, among those the right to life and liberty, and the inherent right to defend life and liberty that the Second Amendment represents.
And aside from that, the Constitution and the Bill of Rights confer no rights at all, they merely recognize pre-existing natural rights, among those the right to life and liberty, and the inherent right to defend life and liberty that the Second Amendment represents.
303 mvpel
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FR's 'states rightist' contingent flatly deny that we have such natural rights defended by the US Constitution.
If our State has no RKBA's provision in its constitution, we are SOL, according to their brand of 'reason'.
Apparently, unless your State has specifically enumerated a right to be protected, it can regulated, outlawed, or prohibited by majority will or whim.
Weird logic, but there you have it.
You don't live in California, so why did you phrase your question that way? Oh well, let's assume that you still live in San Jose -- it makes the answer simpler.
#1, The California state constitution is silent on your RKBA. It offers zero protection for gun owners. The state legislature can pass any law it feels it can get away with regarding weapons, and the citizens have no constitutional recourse.
#2, Machine guns are illegal in California -- it's against state law.
#3, The second amendment protects you from federal infringement of your RKBA as part of a state militia, not as a member of the United States militia. Are you a member of the California state militia? Answer: There is no California "well regulated" state militia (or any other state, for that matter).
#4, IF the state of California permitted you to purchase a machine gun and the federal government said you couldn't, you would have a second amendment case. But, I believe the courts would rule, as they did in that other California case, Silveira v Lockyer, that you are not associated with a state militia, and therefore have no second amendment protection. The 9th Circuit Court stated (in part):
"After conducting our analysis of the meaning of the words employed in the amendment's two clauses, and the effect of their relationship to each other, we concluded that the language and structure of the amendment strongly support the collective rights view. The preamble establishes that the amendment's purpose was to ensure the maintenance of effective state militias, and the amendment's operative clause establishes that this objective was to be attained by preserving the right of the people to "bear arms" -- to carry weapons in conjunction with their service in the militia. . . ."
IV. CONCLUSION
"Because the Second Amendment affords only a collective right to own or possess guns or other firearms, the district court's dismissal of plaintiffs' Second Amendment claims is AFFIRMED. . . . The constitutional challenges to the validity of the California Assault Weapons Control Act are all rejected, with the exception of the claim relating to the retired officers provision."
"The Supreme Court recognized as much in the Miller case where there was no dispute as to whether Miller and his fellow defendants were an active part of an organized militia ..."
I don't believe the case ever got that far -- the USSC remanded the case back to the lower court to clear up the "barrel less than 16 inches" question.
You may have a naural right to protect yourself, but not necessarily with a gun. The state in which you reside defines and protects the means by which you may use a weapon to defend yourself.