Scalia reads the 2nd amendment as permitting the government to ban the private possession of M-16’s, based directly on a dishonest construction of Miller.
Just because the opinion did not rule on M-16s does not mean it ruled against them.
Doubt me? Provide the quote that concerns you, and I’ll point it out.
My comments in []. My view is that Circuit Courts will run with this, and SCOTUS won't agree to hear a case where the Circuit Courts are in agreement.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." [All of Scalia's conclusions in this vein depend on the scope of government regulatory power being congruent with "in common use," which is downright handy when the government can regulate things out of common use] We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." [1) notice the stated historical prohibition is on carrying, not on keeping, and 2) cites omitted, but they do not support a conclusion that the US government can constitutionally ban the private possession of a dangerous and unusual weapon, let alone Scalia's outcome that it can constitutionally ban a small arm in common use by the military]It may be objected that if weapons that are most useful in military service--M-16 rifles and the like--may be banned, then the Second Amendment right is completely detached from the prefatory clause. [Here he seems to be saying that the government may ban M-16s and weapons that are useful in military service] But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. [Notice he does not probe the scope of "lawful weapons possessed at home" at the time of the Second Amendment's ratification] It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. [Unusual is not the measure, and even if it was, "highly unusual" in this instance is bootstrapped from government restriction] Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. [He neutralizes the Miller Court's statement -- "weapon [that] is any part of the ordinary military equipment or [which] use could contribute to the common defense [is in the scope of 2nd amendment protection]" -- without explanation]
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. [Yeah, and so were short barrel shotguns, and so, application of Miller in light of the missing finding of fact would result in holding the 1934 NFA unconstitutional in light of the 2nd amendment. Scalia dodges this obvious conclusion in an easy case (Miller is so simple, even a cave-man can get it right)] ...We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. [Read Miller yourself. Scalia is directly, and blatantly, completely reversing what Miller says.]
Here's another one, where he shows rank dishonesty in a concise statement that (man, this guy has brass balls) even includes a cite to the language that shows his conclusion to be wrong!
Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: "In the absence of any evidence tending to show that the possession or use of a [short- barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
Had Miller shown, on remand, that short barrel shotguns has some reasonable relationship to the preservation or efficiency of a well regulated militia, the ruling below (the 1934 NFA is unconstitutional in light of the 2nd amendment) would have been AFFIRMED. In Miller, the logic was that if a short barrel shotgun has a Militia use, then it IS protected. Miller didn't find the type of weapon at issue was not eligible for 2nd amendment protection. The Court said "absent evidence, WE CAN'T SAY."
I find Scalia's read of Miller to be startling, so startling in fact, that I conclude it is a deliberate act of LYING. If Congress had any balls, it would impeach the entirety of SCOTUS over this. Oh wait, I forget, Congress is by nature gun-grabbing too. If the gun-friendly public had any sense, it would be outraged over the rank dishonesty and misrepresentation that Scalia spouted in Heller. But no, they got the "individual right" bone, and feel just great about it.
Was that a real offer, or a hollow one?