A busy time for Heller commentary

I thought Nelson Lund was anti individual
rights???

On the bright side, the inconvenient dicta of Scalia do have the virtue of being unsupported and therefore more readily knocked down than the fake "support" for the "collective right" view which soiled our Constitutional jurisprudence for so many decades.

Also, if Mr. Poulin wants an inkling of where Prof. Lund stands, then he should buy and watch Mr. Hardy's dvd: http://www.secondamendmentdocumentary.com/

If that does not clarify Prof. Lund's stance, then read the articles of his which are readily available through a simple flick of your google.

:)

Nelson Lund "anti individual rights"?? Have you read anything he's written, or heard him give a speech? He comes across as strongly in support of individual rights, and as a true traditional libertarian.

Has any translated Heller to human rights treaties on the human right to life and the human right of armed self-defense to protect your human right to life?

Come on people (2A professors)! Take the next step!

Great paper. And yes Lund is hard on Scalia, what he doesn't say and should is that you have to write an opinion that will get a majority of votes. Now dicta being what it is I agree with Tarn Helm that we get around to that when we can. I'd make a further observation as to how to extend Lund's work - one that I've suggested here before so please excuse the redundancy. Simply this - at a minimum, the Second Amendment protects those arms suitable for the tasks assigned to the militia in Article 1 Section 8. So, if in use by police ("execute the Laws of the Union") like saps, tasers, batons (and firearms) or by the military ("repel Invasions") pistols, precision rifles and machine guns, then being necessary for the militia to perform it's constitutionally assigned missions, the government may not infringe on the right to keep and bear these arms without due process of law.

From Mr. Solum's article "A simple registration requirement that can easily be complied with by all citizens at minimal cost seems like a clear example of a noninfringing regulation of the right to keep and possess weapons."

That statement does not fit the history of the Revolutionary War and development of the Bill of Rights. Detachments of British regular soldiers were used to take the firearms and gunpowder from people based on Tory informants. Citizens should be compelled to register guns so that informants would not be necessary?
I would say that registration of any "arms" would be one of the first infringements prohibited by the 2nd Amendment.

Dicta in Heller appears to just make excuses to do what is prohibited in the 2nd Amendment.

Mr. Poulin:

Please read the Second Amendment Foundation amicus brief filed by Prof. Lund on behalf of Dick Heller. It's excellent.

http://www.gurapossessky.com/news/parker/documents/07-290bsacSecondAmendmentFoundation.pdf

SUMMARY OF ARGUMENT

The purpose of the Second Amendment is to prevent Congress from using its Article I authorities, including its authority to regulate the militia, to disarm American citizens. The principal reason for including a preamble praising the militia – a preamble that does not substantively alter the operative prohibition on federal overreaching – was to endorse the traditional citizen militia, which many Americans preferred as an alternative to standing armies. The language, grammar, and history of the Amendment show both that its protection is not limited to militia-related activities, and that the protected right does
extend to having arms for self defense against violent criminals.

The one question that is bugging me is this -- The Heller descision established two things that are protected, self defense and the role of an individual in the militia. Obviously, if you restricted or limited the weapons that the individual can have, that would restrict the individuals ability to do either.

So how do these AW bans fit within that required of militia usage?

Bill, AW bans don't fit. Hopefully we'll get there soon. As I see things we need at least four separate issues dealt with to protect the fundamental rights identified in the 2nd. a) as in Heller, that the right is individual b) that after the 14th Amendment it applies to the states (full incorporation) c) that the right is subject to strict scrutiny in interpretation and d) that weapons suitable for use under Article 1 Section 8 by the citizen based (unorganized) militia (see 10 USC 311) are protected for all people, except those who have proven themselves untrustworthy via due process having been found guilty of a violent felony or being insane.

I agree with RKV except for his point, letter "d". 10 USC 311 doesn't state that the unorganized militia consists of, and therefore protects, "all people". Going by that, only those citizens addressed in 10 USC 311 would be protected in their second amendment rights. Those citizens beyond the age of 45, the infirm and, no doubt, numerous others, could well be found ineligible to exercise their second amendment rights. I'd try to broaden the definition to include all citizens having reached the age of majority and not prohibited by reason of a violent felony conviction or insanity.

Thanks RKV, that's the most concise answer I have received on this question. It's only fitting that if the militia clause applies, then it surly applies to rifles and handguns that are in common service with the US Army.

Greg, Contrary to your statement 10 USC 311 PROVIDES the legal definition of who is in the unorganized militia.

"(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

Bill of Rights history, state and federal, and adoption is about the individual citizens' rights. Militia or not militia, federal or state laws, government is prohibited from infringing upon the individual right to keep and bear arms.

Quit trying to use militia as some qualifier of what is allowed or not allowed under the 2nd Amendment.

Joe, State constitutions do limit concealed carry and weapons which can be easily concealed. Like the results or not I presume that most are consistent with the original public meaning of the 2nd Amendment. "Shall not be infringed" is very strong language indeed, and we should respect that meaning, but no rights are completely unlimited. My intent in bring the Article 1 Section 8 missions of the militia into the discussion is to provide a standard which the courts could use, and that such standard be found within the constitution itself, rather than constructed by judges. Further, such a standard would be a minimum, AND the right protected by the 2nd is a right of the people, not a right of the militia members (or of government employees only).

http://www.law.ucla.edu/volokh/beararms/statecon.htm