AndyH wrote:
YankeeTarheel wrote: I believe you missed my main point:
I didn't miss your point. You communicated that you believe that Scalia downplayed the 'militia' clause and focused on the individual right, and thus left a hole for the antis to worm their way in. I do hear what you're saying, but I don't agree that it's a problem for three reasons: First, because I don't see any indication in his writings that he actually downplayed the 'militia' clause. Second, because it's clear from the founding writings that the militia and individual right were one and the same - can't have one without the other (so Scalia recalibrated with history rather than relying on twists and turns of case law). Finally, the tactic the antis are already using is to focus on the 'militia' clause in order to negate any individual right - which I think was at least part of the reason Heller got to the Supremes to begin with. When I first started thinking about the 2A, I had already accepted the 'mainstream' view that it was made up of two separate clauses and thus read them as two separate thoughts. It wasn't until I dug into the foundation writings that it clicked that they cannot be separated. There can be no militia without armed and skilled individuals, and there can be no civil rights without armed and skilled individuals willing to fight for them. The ballot box isn't enough. That's my take, FWIW.
Sorry for deleting the rest, but I really believe you and I are now getting really close to each other's POV, with some nuts&bolts things to work out.
Let me start at the end: I believe I have argued (or at least I intended to argue) from the very beginning that you cannot separate the first 14 words from the rest. You've come to that same point, so that's a key point of agreement.
And...there can be no militia without armed a skilled individuals. Again, agreed.
Can there be civil rights without armed and skilled individuals willing to fight for them (presumably with force)? Well, here I have to deviate, based on empirical evidence rather than emotion. Emotionally, I agree, and I know and agree that dictators disarm the citizenry, but I have to point to Canada, Australia, New Zealand, Japan, Western Europe and some of the former Soviet bloc. All of those nations have similar rights protections and respect for rights that we do, yet they mostly don't have a 2nd equivalent, yet seem to be able to protect and maintain their democracies and liberties as we know them. How do we explain them? And you do realize, of course, they think we're out of our fucking minds!?
The most similar Western nations (and I use "Western" as shorthand), are, I guess, Canada, Switzerland, and Israel. Let's ignore Israel's partial descent away from democracy to
a theocratic dominated state for the moment. All 3 have far more guns among the citizenry than the other states, but do not see mass shootings like we do. We also don't see them in the other Western nations at the frequency we do, and, there they seem to be from politically motivated.
Yet, I think that if gun ownership de facto makes one a member of the ad hoc well-regulated militia, it's possible to sweep much of the anti position away--but introduces two VERY clear and interesting inferences that I see. First, as you point out, "skilled" individuals are necessary--and that means training for both safety and efficacy (Borrowed that phrase from FDA regs on new drugs!
). Secondly, as members of the WRM, personal arms actually need to be military capable, which ACTUALLY means select-fire weapons may have to be legalized! Not sure how to get around that... or if we should. Gotta think it through.
This brings me back to Scalia and his discussion of the prefatory clause and his dismissal of it having no influence on the rest is, at a minimum, puzzling, given what we've agreed on.
I do want to come back to the argument you don't seem to recognize, which, actually buttresses with the rest: That Militias were seen in the South as ways to defend against slave insurrections, a way to preserve "our way of life". Again, it's simply a non-contestable fact that the Bill of Rights was pushed for by Southerners, written by a Southerner after much debate, and included one amendment, the 9th, as a compromise with the North. The North had resisted the BOR, but not because they were against rights. Rather, they thought they were obvious and unnecessary, and that enumerating some of them would imply that others wouldn't exist. Hence, the 9th.
And, it's clear that Scalia would have horrified the Northerners whose price for compromise was the 9th when he wrote it basically has no legal standing (No, that's not Heller).
As I said at the start, Andy, I think you and are a lot closer than we realized.
YT.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."