Replies

"So why can't I, as a member of the United States Militia, buy a machine gun in California?"

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.

Well, there's been varied and thorough rebuttals of the tortured logic that the Ninth Circuit applied in their dicta on the Silveira case by people whose expertise far exceeds mine, including the justices of the Fifth Circuit Court of Appeals, as well as some of the judges of the Ninth Circuit.

Maybe if I feel inclined I'll cite it for you at some point, but not right now, at 11:30pm.

In the meantime, though, I'll simply take solace in knowing that the Ninth Circuit is the most frequently-overturned appeals court in the nation, and that the petition for writ of certiaori in the Nordyke case is pending before the US Supreme Court and should be decided on by Christmas-time.

If granted, we'll all be able to attain a final resolution of this question so we won't have to waste any more time and bandwidth arguing about it.