[spence]

Originally Posted by ReelinRod

And your fundamental premise is as flawed as your lexicon.

My lexicon is not flawed. Judges interpret legislation to test adherence to the Constitution.

Yes, hundreds of state and federal gun control have been challenged and upheld over the last 71 years . . . problem for your side is that the legal support for those decisions has been extinguished.

The "militia right" and state's right" interpretations were inserted into the federal courts in 1942. The First and Third Circuits ignored and dismissed SCOTUS in order to do this. Subsequent gun / 2nd Amendment cases were decided citing this invented "militia right" or "state's right" and the claims of 2ndA rights injury by various and assorted individual American citizens were denied / struck down.

In 2008 Heller slapped the federal courts back into obeying SCOTUS and finally invalidated those perversions . . . So . . . the mass of state and lower federal court decisions resting on that invalid reasoning are now themselves infirm and stand as merely "presumptively lawful".

People say the big deal about Heller was the validation of the individual right but I'm not so sure. The idea of the a militia at the time of the Constitution was made up of individuals who would bring the guns they'd use for hunting or personal protection into service with them. The individual right to own has always been there, it just hasn't been explicitly validated, what to own or for what purpose is still an open question.

Scalia's oft quoted:

"nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. 26"

Shouldn't be read divorced from its footnote:

"26 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."

No doubt was cast because none of those presumptively lawful laws were being examined under Heller's re-affirmed doctrine and the Court in Heller, did not "undertake an exhaustive historical analysis today of the full scope of the Second Amendment".

You're spinning the footnote.

That the research was not "exhaustive" is irrelevant as the opinion is very clear in it's support for Miller. To say they didn't contest because that was outside of the case would be wrong as the opinion appears to endorse previous judgements.

One of the first cases to follow Heller was the California case of Nordyke v King which was re-heard after Heller:

". . . we must first decide whether Heller abrogated Hickman. It did. Hickman rested on our conclusion that the Second Amendment protects only a collective right; Heller squarely overruled such conclusion. . . . Thus the basis for Hickman’s holding has evaporated, and the opinion is clearly irreconcilable with Heller. In such circumstances, we consider our prior decision abrogated by higher authority."

Nordyke v King, pg 4475-4476, (April 20, 2009) (194KB .pdf)

You're mixing cut and pastes together.

That is what's in store for hundreds of gun control laws that you take for granted right now which rest only on collective / militia / State "right" perversions. As an aside, most of those state cases recognize the root incompatibility of their holdings with the concept of liberty, so they claim that even if the 2ndA does secure an individual right, the 2nd has no force against state laws . . . Well, that is now dead too, post McDonald v Chicago.

What's significant about these cases is also what's not significant. Yes, by narrow margin they established that common firearms can't be totally banned and that States must adhere to the Second Amendment...but beyond that don't expand on what that really means in any new way.

The idea that the potential is now there to invalidate all gun laws is pretty absurd and generally runs against public opinion.

-spence