Replacing white people to kill gun rights

[Surf Fishing Guru]

49. Well . . .

Well, the "bearing arms for lawful purpose" the Cruikshank Court was describing was the right of armed self defense, in public, as exercised by two ex-slaves, then Freemen from the Night Riders / KKK in 1873 Louisiana, a state with no official state militia -- it having been disbanded by the republican governor.

Armed self defense in public by citizens who were excluded from serving in the militia is what the "it" is in those excerpts and is what the 2nd Amendment protects.

Regarding Miller, it does not support the collective right model. That was created in two lower federal court decisions a couple years after Miller. Cases v US is especially noteworthy because it offers a true (but hyperbole laden) interpretation of Miller's "rule" and what it meant for gun control laws.

The Cases court said after quoting the pertinent parts of the Miller decision:


"

Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia.

However, we do not feel that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon.

In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,--almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,--is in effect to hold that the limitation of the Second Amendment is absolute.

Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, . . . "

That exaggerated "truth" is why the Cases court invented the "militia right" interpretation in 1942 -- and likewise, in the same year, the 3rd Circuit in Tot created the "state's right" interpretation.

SCOTUS has never embraced or endorsed any permutation of any collective right theory.