“It is clear that the founders believed the militia consisted of all those capable of bearing arms. “
My concern is that a closely devided court might look to other sources other than the framer’s clear intent to interpret the meaning of militia. They could claim that a militia as it was intended by the framers is no longer practical or applicable given the lanscape of our society today (I totally disagree, but again, I am not on the SCOTUS...).
I only mention this because of recent decisions by this court re: property rights and political speech.
58: exactly.
I understand your concern about looking to other sources. Perhaps they could turn to the “Dick Act” of 1907. This Act is law that established the National Guard. This federal law defined the militia as consisting of both an organized (National Guard and Reserve) and an unorganized militia (all others capable of bearing arms but not in the organized militia). This remains federal law.
BTW, don’t you think it a bit absurd to even consider that the founding fathers meant the militia to be the National Guard, an organization that would not be founded for over a hundred fifty years?
I’m a bit surprised that USSC would even consider this case since I don’t think there is a clear majority for either side. Perhaps something will emerge that limits gun control only to those instances where a state must demonstrate a very compelling interest, something beyond we just don’t like guns. Of course, USSC could issue a very limited ruling that hinges upon the uniqueness of DC since it is not a state.
What gives me optimism is the fact that well respected legal scholars such as Lawrence Tribe have endorsed the individual rights position.
For another thing, I don’t really think there has been much scholorship on the 2nd for a number of years. First, it was generally assumed to be an individual right. Then, it became chic to believe in the state right that could be used to justify all sorts of mischief. Now, it appears that serious scholars are beginning to say that it must be an individual right.
Believing the 2nd defines a right to be exercised collectively has several major issues. The one I find most compelling is this. If you believe the 2nd amendment supports a right to bear arms only when a part of state organization, then you should also believe that your first amendment right to freedom of speech can also be exercised collectively thru National Public Radio. If one right is collective, then all rights can be too.
“They could claim that a militia as it was intended by the framers is no longer practical or applicable given the lanscape of our society today.”
Current Federal law says otherwise. All able-bodied males aged 17-45 are ALREADY members of the unorganized Federal militia. See 10 USC 311 http://www.law.cornell.edu/uscode/10/311.html
This basic legal definition of the militia has been in place since the Militia Act of 1792.
Could the court make such a glaring factual error? Of course. I do suspect that the amici briefs will deal with this subject, so it would have to be a deliberate, glaring legal error, utterly transparent to every reasonable observer. After Kelo, well such things do happen. I hope not.