Concurring Opinions insight on Heller

Excellent essay, thanks for the link! What’s really amazing is that it made it through the .mil firewall and I could actually get to the page. Most of the links I click on here pop up the dreadful warning from comm squadron about official use or some such.

Great read! Clearly and logically written! Hope he's right.

Back in the 1800's, there was the Presser case. It involved a guy who was organizing a bunch of his friends, and parading down the streets of Chicago, fully armed, and military style. He figured that 2A protected him against the Illinois law prohibiting such exercises. SCOTUS ruled that it didn't, but did state that the purpose of 2A was to provide the federal government with people skilled in the use of arms, in time of need. They said that no state government had the right to deprive the federal government of this resource. So 2A is about skilled people, not their firearms. That's all the "militia connection" an arm needs to have: It helps the owner become skilled.

Then there is the issue of "well-regulated". The phrase just begs to be read "well-regulated by the government". But it doesn't say that. Before 1900, the term had nothing whatever to do with government regulation. I have researched dozens of old citations, including references to well regulated music, well regulated gentlemen, well regulated minds, well regulated horses, well regulated hair, well regulated scientific instruments, and a well regulated society that just happened to be in rebellion against its government. At the time, it meant "properly functioning", "orderly", or "in its ideal state".

Once you get over the wrong notion that the militia requires government regulation, then you no longer have to worry about which branch of government gets to do the regulating, how much they can regulate the militia, and whether the militia has to be organized at all.

Miller's core finding:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

Aymette v. State's key finding:

As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution.

But this was based on the language of the State Constitution:

In the first article of the Constitution of this State, containing a declaration of rights, sec. 26, it is declared, "That the free white men of this State, have a right to keep and bear arms for their common defence."

And that's where Miller went wrong. Because not only does the RKBA in the US Constitutition not contain the restriction "for their common defence", that express language was considered during the ratification debates over the 2nd amendment, and was explicitly rejected:

Journal of the Senate of the United States of America, Volume 1: pp. 77
On motion to amend article the fifth, by inserting these words, 'for the common defence,' next to the words 'bear arms:'

It passed in the negative.

On motion strike out of this article, line the second, these words, 'the best', and insert in lieu thereof 'necessary to the;'

It passed in the affirmative.

On motion, on article the fifth, to strike out the word 'fifth,' after 'article the,' and insert 'fourth,' and to amend the article to read as follows: 'A well regulated milita being the security of a free state, the right of the people to keep and bear arms shall not be infringed.'

It passed in the affirmative.

So, arguments based on Humphries via Miller - that the RKBA provision of the federal constitution applies only to weapons of use in the "common defence" are unsupported.

I had an opportunity to research the "common defense" holdings once. Three states have held that their constitutions RKBA clause was "collective" due to "common defense" language. They are Maine, Mass and Kansas.

The people of Maine were so outraged that they modified their Constitution the very next year, and their Supreme Court reversed themselves the year after that. This is light speed for law and politics.

Mass and Kansas still stand. Kansas courts seem to be slowly finding other legal ways around that ruling. Mass is probably hopeless.