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
