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Justice Scalia on Fox News Sunday


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Chris Wallace tried to pin down Justice Scalia on the general issue of gun control, and hi-cap mags & semi-autos in particular.

 

His Honor basically said it will have to be decided via legislation and challenges, but what I took away from it was the idea of "in common use" and hand-held = the "bearing arms" part. The obtuse interpretation would be The Framers only meant single-shot muzzle loading muskets & rifles, as they were the common arm of the era.

 

However, with in excess of 2,500,000 AR-15 rifles with 20 or 30 round mags, and probably an equal number of AK-47 rifles with 30 round mags in circulation, I'd say the "in common useage" part has been effectively handled for any future arguments.

 

He also gave a very effective Civics 101 lesson on why the Justices have lifetime appointments. The People gave them that power when the government was established, so quit complaining. Especially when some law comes up for review that may be politically popular at the moment but goes against The Constitution.

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Chris Wallace tried to pin down Justice Scalia on the general issue of gun control, and hi-cap mags & semi-autos in particular.

 

His Honor basically said it will have to be decided via legislation and challenges, but what I took away from it was the idea of "in common use" and hand-held = the "bearing arms" part. The obtuse interpretation would be The Framers only meant single-shot muzzle loading muskets & rifles, as they were the common arm of the era.

 

However, with in excess of 2,500,000 AR-15 rifles with 20 or 30 round mags, and probably an equal number of AK-47 rifles with 30 round mags in circulation, I'd say the "in common useage" part has been effectively handled for any future arguments.

 

He also gave a very effective Civics 101 lesson on why the Justices have lifetime appointments. The People gave them that power when the government was established, so quit complaining. Especially when some law comes up for review that may be politically popular at the moment but goes against The Constitution.

 

 

I know I posted these in a different thread, but I think they are appropriate here, too:

 

Tench Coxe (May 22, 1755 – July 17, 1824) was an American political economist and a delegate for Pennsylvania to the Continental Congress in 1788-1789, and a key anti-Federalist, writing under the pseudonym "A Pennsylvanian".

 

 

The power of the sword, say the minority..., is in the hands of Congress. My friends and countrymen, it is not so, for The powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans. The unlimited power of the sword is not in the hands of either the federal or state governments but where, I trust in God, it will always remain, in the hands of the people.

The Pennsylvania Gazette, Feb. 20, 1788.

 

 

And from "A View of the Constitution" by Wm. Rawle, 1829, which book was used as a text at the US Military Academy, chapter the Tenth:

 

In the second article, it is declared, that a well regulated Militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.

 

The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.

 

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

 

In most of the countries of Europe, this right does not seem to be denied, although it is allowed more, or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to Protestant subjects only, on the revolution of 1688; and it is cautiously described to be that of bearing arms for their defence, "suitable to their conditions, and as allowed by law." 6 An arbitrary code for the preservation of game in that country has long disgraced them. A very small proportion of the people being permitted to kill it, though for their own subsistence; a gun or other instrument, used for that purpose by an unqualified person, may be seized and forfeited. Blackstone, in whom we regret that we cannot always trace the expanded principles of rational liberty, observes however, on this subject, that the prevention of popular insurrections and resistance to government by disarming the people, is oftener meant than avowed, by the makers of forest and game laws. 7

 

This right ought not, however, in any government, to be abused to the disturbance of the public peace.

 

An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single, individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonments.

 

And, if we throw in Miller):

 

On May 15, 1939 the Supreme Court, in a unanimous opinion by Justice McReynolds, reversed and remanded the District Court decision. The Supreme Court declared no conflict between the NFA and the Second Amendment had been established, writing:

 

"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."

 

Describing the constitutional authority under which Congress could call forth state militia, the Court stated, "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

 

In dicta, the Court also looked to historical sources to explain the meaning of "militia" as set down by the authors of the Constitution:

 

"The significance attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

 

In effect, the Miller decision almost mandates that citizens keep military grade weapons in their homes, or on their persons.

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Chris Wallace tried to pin down Justice Scalia on the general issue of gun control, and hi-cap mags & semi-autos in particular.

 

His Honor basically said it will have to be decided via legislation and challenges, but what I took away from it was the idea of "in common use" and hand-held = the "bearing arms" part. The obtuse interpretation would be The Framers only meant single-shot muzzle loading muskets & rifles, as they were the common arm of the era.

 

However, with in excess of 2,500,000 AR-15 rifles with 20 or 30 round mags, and probably an equal number of AK-47 rifles with 30 round mags in circulation, I'd say the "in common useage" part has been effectively handled for any future arguments.

 

He also gave a very effective Civics 101 lesson on why the Justices have lifetime appointments. The People gave them that power when the government was established, so quit complaining. Especially when some law comes up for review that may be politically popular at the moment but goes against The Constitution.

 

refresh my memory but wasn't there a case in the early 1900 that ruled the citizens have the right to have basically the same arms as the military. Something like Miller vs the U.S. or something like that

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refresh my memory but wasn't there a case in the early 1900 that ruled the citizens have the right to have basically the same arms as the military. Something like Miller vs the U.S. or something like that

 

Yep!

 

Justice Antonin Scalia tells Fox News that landmark 2008 gun case leaves room for states to regulate guns but doesn't that pretty much contradict court decisions in the last few years?

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He also gave a very effective Civics 101 lesson on why the Justices have lifetime appointments. The People gave them that power when the government was established, so quit complaining.

Even though a judge may serve his entire life, he maybe impeched by congress. One judge was, Chase. Also it was tried on Douglas during the 50s, but failed.

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Remember BOTH sides in the Revolutionary War were EQUALLY armed with the Brown Bess musket which was THE premier rifle of the day.

 

The Brits just had a lot more troops with guns! (and cannons, ships, better training). :P

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