Not a lawyer here. But I think the historical context of a militia matters. It never was every Tom, Dick, and Harry. It was able bodied persons who worked as a unit. It was a collective through small groups or townships, though not with federal oversight akin to today’s military.I get that military and militia are different terms. But militia was not a single person writing a manifesto. I think the intent mattered to the framers and it should still matter today.
And Scalia essentially threw out the well regulated militia term in Heller because to use that as a complete term could arguably make gun ownership contingent on military service. Scalia said the 2A was an individual right. But the 1st amendment is all about individual rights. I’d argue the 2A is a collective right, contingent on being well regulated for the neccesity to the safety of the Union.
Scalia said that the well regulated clause is not sufficient to overwhelm “common sense” implications of it, whatever that really means. In grammatical terms, a clause not surrounded by commas, it is necessary for the meaning of the sentence. So we’ll just throw out grammatical rules to fit our legal/political end goal? Alright alright alright.
So I’m sorry you don’t have patience to discuss what a militia is for the whichever superfluous number it is, but I disagree with the assertion that this guy from Uvalde or name any other tragedy meets definition to bear arms.
Recently Texas passed laws to allow open carry with practically no upfront requirements and passed other laws loosening restrictions. None of this seems well regulated to me.
I think reasonable people can disagree about the Framers' intent regarding an individual vs collective right, but there isn't room to disagree what SCOTUS thinks about it. It's an individual right.
The "well regulated" phrase, in the context and syntax of the times, meant something more akin to "competent" rather than under orders or restrictions of a central (government) authority. Times change, warfare changes, and there's really no role for a militia in that sense any more, especially given the existence of our enormous professional full-time standing Army. Today's "militia" groups are mostly Trump-cult LARPers playing in the woods with their tacticool gear. They sure aren't "necessary to the security of a free State."
But anyway, a simple literal reading of the 2A should
🙂 make it clear that although militia participation is ONE enumerated reason that the people may keep and bear arms, it doesn't preclude other reasons. And certainly in those days - same as today - there are other reasons for the people to be armed. Beyond self defense, the most obvious being resistance vs the government. The purpose of a militia was for defense against external forces. No one can reasonably argue that the Framers didn't ALSO want people armed to resist tyranny from an internal source. They talked and wrote about this a lot.
Ultimately though, this is all philosophical and historical and linguistic hair splitting, because for all practical purposes, and not to put too fine a point on it, the Constitution means what the Supreme Court says it means.
The majority opinion in McDonald clearly incorporates the 2A as an individual right in the States. The dissenting Justices were smart and educated people, but whatever merits their arguments hold, the simple end result is still that the 2A guarantees an individual right to keep and bear arms.
I'm not sure there's much point in debating that further, though I can respect the view that the decision was wrong, even if I disagree with it. Maybe the Court will revisit Heller in 50 years the way they're revisiting Roe today.
So what's next? There's an individual right. How does it get regulated in a way that will be upheld by today's Court, and impacts unlawful use of guns?
Again, a lot has been said about this guy's age. The 9th Circuit just ruled banning rifle sales to 18-21 year olds is unconstitutional. I don't see the current SCOTUS disagreeing with that. Do you?
Reformed background checks and red flag laws at the federal level? My guess is that these probably won't pass the Senate, but maybe they will. But they won't reduce or prevent mass shootings, because most of these people aren't prohibited people, and I'm skeptical red flag laws will stop them. They're awful, crazy humans, but they're motivated.
There's no way any kind of ban of semiautomatic rifles gets passed at the federal level, much less survives the courts. If anything, I think state level bans are going to fall before SCOTUS in the next decade. NYSRPA is going to give us a big hint how fast or slow that happens, but it'll happen.
Same with normal capacity (sometimes erroneously referred to as "high capacity") magazines.
Beyond all that, is the fact that renewed focus on gun control in the next few months is absolutely going to cost Democrats votes, particularly in swing states. Whatever momentum had shifted their way with the Roe decision, is going to be lost. There's still inflation and the economy looming large over these issues. Republicans will retake both houses of Congress. Probably the presidency in 2024 too unless some Trumpist loser runs.
The actual answer to these societal ills is to make society better. That's a broad topic I touched on in my first post in this thread. I think Democrats have better ideas in that direction than Republicans, but they don't seem capable of remembering that every time they get distracted by gun control, they lose power for a decade and have to watch policy get made by people who won the election.