The American Militia

D.C. vs. Heller; Scotus Decision


For the past several months The American Militia has been anticipating the Supreme Court of the United States (SCOTUS) decision in DC v. Heller. It is here, it is pretty much as expected and it is important. In preparation for your upcoming tasks, you can read it here;

Over the past weeks, we have read the amici briefs filed in the case, we listened to the aural arguments and had an anticipation of the result. As others have said, the court has now affirmed the long understood individual right of Citizens to Keep and Bear Arms. Now, with authority, we can say, “What part of “Keep and Bear” and “shall not be infringed” do you not understand?” And now we will not have to suffer the counter argument about the Militia clause, we just reply “asked and answered”.

It is vitally important to understand that the DC v. Heller case was a VERY NARROW question and ruling of law. It is equally important to understand that this was a NARROW 5 to 4 decision by the court. One wonders if the questions before the court had been broader and more “controversial”, such as the Citizens right to keep and bear arms as part of the traditional Militia task of defending the Constitution, if then the decision would have gone the other way. Such questions will be for other days.

Fortunately, this good first step comes from a case reviewing two narrow parts of the law of the District of Columbia, a federal district, which effectively prohibited armed self defense in the home and prohibited an individual from obtaining arms (a pistol) for such defense.

The case did not address other issues of law. Some will report that the decision does not cover certain topics, it does not pronounce certain things are permitted and thereby they may try to imply that such things are prohibited. These are false assumptions because the case did not cover more than its narrow focus. This points out the need to further legislate or litigate the many remaining issues.

As briefly and succinctly as possible, the Heller decision confirms that individual Citizens may keep and bear arms for lawful purposes, and by example such purposes are described as self defense. That right enumerated in the Second Amendment is as fundamental a right as any other in the Bill of Rights, it is “a specific enumerated right”. If any law prohibits (or effectively prohibits by severe constraint) that right, then it is un-constitutional. The question of what sort of law and under what jurisdiction the right would be infringed remains at issue, only the DC law was addressed and serves only as a loose example for other laws. The issue of jurisdiction in the states is a remaining big question as discussed below in part of this posting from scotusblog.

Heller Discussion Board: Incorporation and the Need for Further Litigation

Thursday, June 26th, 2008 2:24 pm Ben Winograd

The following post was written by David J. Schenck of the Jones Day office in Dallas.

He filed an amicus brief on behalf of State Firearm Associations in support of the respondents.

It is not hyperbole to describe today’s decision in Heller as the most significant opinion of this century, and likely, of the last two generations. Two particular thoughts immediately come to mind. First, the extent to which today’s decision effectively opens the door for future litigation regarding the Second Amendment to further clarify the extent of . Second, this is an election year. This decision, closely divided as it is, will likely provide a rallying cry for the millions of the Americans who recognize that their Second Amendment rights came down to a single vote.

In reading Justice Scalia’s opinion, there is an overwhelming theme that to interpret the Second Amendment as not protecting an individual right would gut the amendment of meaning and defy logic. It is, after all, the Second Amendment, not the two hundredth. This is not an obscure line buried among thousands of pages of text. It is inconceivable that the framers would have given it the priority they did, placing it ahead of so many other critical rights, if they only meant it to apply to militias as the dissenting justices suggest.

But as emphatic as Justice Scalia’s opinion is, however, it leaves open the question of whether the Second Amendment is selectively incorporated so as to apply to the States through the Fourteenth Amendment. This is a particularly important question for my clients - 47 state rifle associations - on whose behalf I filed an amicus brief. But while the opinion itself is clear in confirming an individual right, it conspicuously leaves the question of selective incorporation dangling. To be sure, this is attributable to the fact that the question was not before the Court...

The American Militia now has new opportunities and tasks before it. The opportunity is this, the SCOTUS has now confirmed the long understood individual right to keep and bear arms. The first task is to carefully read the Heller decision. It will be hard and boring, but it is vital to understand the discussion of all the points. Narrow points such as the meaning of “arms”, and “keep and bear” and yes, even Militia, are discussed at length. At the very least, read the many scholarly analyses of the decision that will point out the important parts and gems of wisdom. Compare these to the actual text and understand what is being said. The material in the decision will be vital in presenting support for your discussions on the issues of firearm freedom. That is the second task, to take the information from Heller and make presentations in public supporting gun rights or firearm freedom.

It is vital that the public be continuously and effectively “educated” about this topic. The public in this case is the unknowing or uncaring individual who may now be a candidate for education. Forget the gun-hater, they are the lost cause. Address them only if to make clear their foolish emotional lies. Focus now on the un-educated general public which may be influenced. Contact media and any group which can yield useful results. Contact youth and women and minority groups which you can educate in the need for lawful self defense.

Self defense was the focus of the Heller case and that should be the teaching point now. Community and Constitutional defense will come later. Contact politicians and candidates with a mild “I told you so” message, the SCOTUS has confirmed what the gun-owners have told you for years. Now is the time for politicians to embrace that position of firearms and lawful self defense. They have been given cover by the Heller decision, the “pro gun” stigma has been officially removed by the Supreme Court. They can come on out of the closet. And, it is election time !

Although the Heller decision holds only in the federal District of Columbia, the flood gates have been opened and similar suits have been filed, and no doubt others will follow, to take this issue to the states. Incorporation to the states under the fourteenth Amendment will possibly reverse sever infringements of Second Amendment Rights in many states. State preemption of local firearm laws will then take it to communities and where preemption is weak or non-existent, then local suits will be filed. There is even a very curious fallout from this case in the carrying of firearms in the National Parks, where the rules are currently under revision. Since the parks are federally managed areas, which PROHIBIT the carrying of firearms, they may now be thought to be in direct violation of this recent decision. Even the proposed regulations, which in some cases will still prohibit carrying, have the same problem. We will no doubt be hearing more of this in the very near future.

The American Militia knows the proper interpretation and function of the Second Amendment. They have just won a victory to boost the education and further strengthening of their position in public. A hill has been crested and a well marked road is ahead of them. Many civilians might now become Citizens if you actively invite them to do so. The American Militia moves forward with renewed energy.

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