Confirming once again, as Americans witness the increasing lawlessness around them, that the 2nd Amendment…
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Confirming once again, as Americans witness the increasing lawlessness around them, that the 2nd Amendment isn't the anachronism that its antagonists believe:

 

 

[caption id="" align="alignleft" width="742"] Background Checks Set Another Record[/caption]…[more]

July 03, 2020 • 11:23 AM

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Jester's CourtroomLegal tales stranger than stranger than fiction: Ridiculous and sometimes funny lawsuits plaguing our courts.
The Contradictory Logic of Gun-Grabbers Print
By Timothy H. Lee
Thursday, March 02 2017
For decades, liberals had insisted that government could broadly restrict private firearms precisely because they were not of the sort commonly used by the military.

A little intellectual integrity is apparently too much to ask of Second Amendment restrictionists. 

Witness the ever-shifting and contradictory legal rationalizations in their unrelenting campaign to infringe upon Americans' right to keep and bear arms, as convenience and changing circumstance dictate. 

Last week, the Fourth Circuit Court of Appeals in Kolbe v. Hogan egregiously sustained a Maryland law broadly prohibiting so-called "assault weapons" and "large-capacity magazines" under the logic that such items are "most useful in military service." 

That logic, however, contradicts what Second Amendment restrictionists had been telling us prior to the seminal 2008 Supreme Court decision in D.C. v. Heller

For decades, liberals had insisted that government could broadly restrict private firearms precisely because they were not of the sort commonly used by the military. 

That line of argument derived from U.S. v. Miller (1939), a rare Supreme Court case that even glancingly addressed the Second Amendment during the 20th century.  In that case, two criminal defendants were charged in federal court with transporting an unregistered sawed-off shotgun across state lines from Oklahoma to Arkansas in violation of the National Firearms Act.  The trial court dismissed the prosecution on Second Amendment grounds, but federal prosecutors persisted all the way to the Supreme Court. 

By that point, however, the charged defendants' indictment had long since been quashed and they didn't even bother to appear before the Supreme Court.  And since the defendants made no appearance to present evidence or argue their case, the Court held only that it was incapable of determining whether the Second Amendment protected their right to possess the shotgun at issue.  "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," held the Court, "we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." 

From that point forward, Second Amendment opponents misconstrued Miller for the proposition that only collective government militias were protected by its provisions, even though the Supreme Court explicitly acknowledged in that same decision that, "the Militia comprised all males physically capable of acting in concert for the common defense." 

More fundamentally, leftists' "collective right" interpretation curiously ignores the fact that the Second Amendment specifically refers to the right of "the people" to keep and bear arms, not some government entity.  The Constitution refers multiple times throughout its text to "the people," including the First, Second, Fourth, Ninth and Tenth Amendments in the Bill of Rights, and in each instance it protects individual rights.  It's absurd to suggest that the Second Amendment is somehow anomalous among the Bill of Rights as the single instance in which "the people" is somehow used to protect a government right. 

Fortunately, that question was resolved in 2008 by the Heller decision. 

There, the Court at long last affirmed that the Second Amendment protects the individual right of the people to keep and bear arms regardless of membership in any sort of government militia, and for such purposes as self-defense, sporting or collection. 

Fast-forward to last week, when the Fourth Circuit inexplicably pivoted to the opposite line of argument.  "The Second Amendment does not shield," the Court asserted, "weapons that are most useful in military service." 

It's dishonorable enough that such logic flatly contradicts the argument Second Amendment opponents made for seven long decades following the 1939 Miller decision.  Even worse, the Kolbe majority disregards the Heller decision itself. 

Specifically, the Heller majority observed that, "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."  Accordingly, the fact that a lawful firearm in private possession might be "useful in military service" (in the words of the Fourth Circuit in Kolbe) logically increases the degree to which the Second Amendment protects it. 

That's not to assert that the Second Amendment prohibits any restriction upon arms capable of military use.  The Heller majority explicitly acknowledged otherwise. 

But it does mean that restrictionists can't logically claim that weapons capable of military use fall outside of Second Amendment protection.  That directly contradicts not only the Heller decision, but also the logic they asked us to accept for seven long decades. 

Question of the Week   
John Adams, then-delegate to the Continental Congress and signatory to the Declaration of Independence, said this “… will be the most memorable in the history of America …” with regard to which historic day?
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"Let's not forget why we celebrate 4th of July, it is the day Will Smith saved us from the aliens."…[more]
 
 
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