Eugene wrote:

"I do think the Court would be influenced by Congressional statements about
the Second Amendment being an individual right, from the Freedmen's Bureau
bill to the Firearms Owners Protection Act to this statute, if it's enacted.
(Among other things, it helps undermine the argument that whatever the
Second Amendment may have meant at the framing, times have changed so much
that the provision is obviously obsolete.)"

I hadn't given a lot of thought about the Congressional statements before,
but since Congress holds the power to effectuate the militia clauses, and
since the courts are saying or implying that the 2nd Am right is contingent
somehow on the organization of the militia, then the Congressional
statements become especially relevant, correct? I mean, if Congress defines
the militia and that's what the courts look toward to assign the 2nd Am
right, and Congress is saying that the 2nd Am right applies to private gun
owners, then that's your standing right there.

The above shouldn't be logical, since it assumes that a right protected from
Congress is dependent on Congress for its recognition. But that's where the
courts have left it anyway.

The alternate militia-bound explanation would be that the right is dependent
on state recognition. I think I've already shown where that has problems.
But even within the state-bound interpretation the Congressional statements
should be definitive precisely because of the federal preemption issue. If
Congress declares that the militia consists of (for example) everybody with
a gun, then the states can be precluded from prescribing a narrower
definition.

The catch would seem to be that the Congressional statements about the 2nd
Am are not actually part of the militia laws. But that, too, argues in favor
of an individual right reading, because it shows that Congress itself views
the Second Amendment and militia law as being unrelated. And the caselaw
indicates that the judiciary's position is the same, since there are
"militia" cases, and there are "Second Amendment" cases, and ne'er the twain
meet.

What thinketh our esteemed moderator?

Norman Heath

Reply via email to