And yet he never gives up.
He's either a "true believer" in the New World Order, or he's a Brady Troll.
Too bad really. We could use such a tenacious mind on the Founding Intent/Natural Rights side of the fence.
A scant 11 years after the Cruikshank opinion, SCOTUS affirmed that opinion in holding that the Second Ammendment, standing alone, applied only to action by the federal government, and that states without the power to infringe upon the right to keep and bear arms, holding that "the States cannot, even laying the constitutional provision in question out of view, prohibit people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government."
In the 1886 opoinion, Presser v. Illinois, 116 U.S. 252, the opinion plainly suggests that the Second Ammendment applies to the States through the Fourteenth Ammendment and thus that a state can not forbid individuals to keep and bear arms. The statute in front of the court was that Illinois 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..." The conclusion of the court was that Illinois State statute did not violate the right to keep and bear arms.
In its discussion respecting the Privileges and Immunities clause of the Fourteenth Ammendment, "[i]t is only the privileges and immunities of the citizens of the United States that the clause relied on was intended to protect." The court had already held that the substantive right to keep/bear was not infringed by Illinois statute since that statute did not prohibit keeping/bearing, but prohibited military-like excercises by armed men. As such, the court concluded that it did not need to rule on the constitutionality of the State statute.
Subsequently, 8 ears later, Miller v Texas, 153 U.S. 535 (1894), the court ruled in its last opinion rendered to date respecting the matter of the Second Ammendendment applying to the States throught the Fourteenth, confirming that it had never addressed the issue. That notwithstanding, the court found in that case that the Second and Fourth Ammendments, of themselves, did not limit state action. As it pertained specifically to the case before the court, it turned to the issue of warrantless searches with respect to the right to keep/bear as incorporated in the Fourteenth Ammendment. The court would not hear Miller's contentions because they were not filed in a timely manner, so it refused to decide the issue with respect to the Second and Fourth Ammendment applying to the States throught the Fourteenth Ammendment in that its powers of adjudication to the review of errors timely assigned in court trial. The idea that the States were so constrained was left open and to date hasn't been challenged.
It seems remarkable that some shrewed lawyer hasn't argued that before the court in the following 112 years (they argue everything else under the sun, don't they?).
In the U.S. v Miller, 307 U.S. 174 (1939) decision, SCOTUS rendered the only opinion ever regarding the application of the Second Ammendment with respect to Federal Firearms statutes. Instead of rashly rendering an opinion concerning the statutes constitutionality, it instead established a prima facie evidence test to measure constitutionality. The Miller case is the watershed case concerning the applicability of any and all firearms in question of keeping/bearing as it pertains to the Militia.
I would be so bold to say, that it could be ruled that any statute that stipulates that any male younger than 18, and older than 45 (65 if being a veteran of the organized) militia) may not keep nor bear any firearm other than a pellet rifle (if under 18), or .22 caliber derringer (or flintlock), if the individual male is older than proscribed ages for inclusion in the organized (or unorganized - on basis of not having requisite experience in such capacity) militia, would be absolutely and utterly constitutional, i.e., the right to keep/bear arms is not being infringed, but regulated. Such regulation can only be derived from State (not federal) action.
I'll concede that there's a whole bevy of lower U.S. District and U.S. appeals court decisions, but SCOTUS has yet to weigh in on the topic other than previously discussed in 230 years.
Alexander Hamilton talks about the quandary that was readily acknowledged respecting the Militia, and the odium that a standing army places upon U.S. citizens, Federalist Paper #29 (addressed to the People of the State of New York). This is most readily discernable in his discourse of the treatise:
"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year."Hamilton then goes on to say the following most poignant comment:
"There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the SOLE AND EXCLUSIVE APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia."
If we're so afraid of even the State's regulation of what has historically been their absolute and uncontested domain, then what should be said of federal powers?