Scalia’s Critical Error As The 2nd Amendment Literally Requires Military Weapons Ownership by Citizens

February 25, 2021
By David Codrea

“We conclude … that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment,” Bill Clinton nominee and 4th Circuit Court of Appeals Judge Robert King wrote in the opinion to Kolbe v. Hogan, a challenge to the State of Maryland’s “assault weapons” ban. “That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are ‘like’ ‘M-16 rifles’—’weapons that are most useful in military service’—which the Heller Court singled out as being beyond the Second Amendment’s reach.

“Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage,” he disingenuously whined.

And all the Supreme Court had to do to let this logically and legally indefensible position prevail was … nothing. SCOTUS refused to take the case for reasons that would certainly have included tripping all over its own contradictions.

What the antis disparage as “weapons of war” are precisely what “We the People” are entitled to have. That’s why the militia was deemed “necessary to the security of a free State” by the Founders. And Judge King would not have needed to “extend” anything. US v. Miller, the “landmark” case from 1939, already observed a weapon would need to have “some reasonable relationship to the preservation or efficiency of a well regulated militia [or] that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”

Gun owners can thank supposed “originalist” Justice Antonin Scalia for perpetuating and solidifying the “confusion,” although it’s fair to suspect his motives were more deliberate than speculative.

“Like most rights, the Second Amendment right is not unlimited,” Scalia volunteered, seemingly desperate to apologize for the majority ruling and to make a concession the gun-grabbers could use to later advantage. “Miller’s holding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

He used that to imply banning weapons such as “M-16 rifles and the like” would not be an infringement. Otherwise, he asserted, “it would mean that the National Firearms Act’s restrictions on machineguns … might be unconstitutional, machineguns being useful in warfare in 1939.”

And his point was?

Hell, yes, we’re entitled to M-16s. And hell, yes, NFA is a tyrannical abomination.

Who but someone willfully deluding himself, or a liar, or both, would cite Miller and then deliberately ignore that it recognized the militia as “all males physically capable of acting in concert for the common defense [and] bearing arms supplied by themselves and of the kind in common use at the time”? Its function was — and still is — to field citizen soldiers. And these citizens bore arms that were suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles.

The militia did not assemble on the green bearing torches and pitchforks. They came with the intent to match and best a professional military threat. To suggest the Framers of the Constitution meant anything else is to accuse them of being insane, and of codifying into the supreme Law of the Land that sending an ill-equipped citizenry to their slaughter was “necessary to the security of a free State.”

As an aside, Scalia’s opinion should have been no surprise. In a footnote for his 1997 book, “A Matter of Interpretation,” he wrote “”Of course, properly understood, [the Second Amendment] is no limitation upon arms control by the states.”

For someone represented by the establishment as an “originalist,” Scalia’s views were anything but. In A View of the Constitution, which colleague Brian Puckett writes “was the standard constitutional law text at Harvard until 1845 and at Dartmouth until 1860,” William Rawle, “a contemporary of the Founders and the man to whom George Washington offered an appointment as the first U.S. Attorney General,” offered a vastly different opinion.

“No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people,” Rawle declared. “Such a flagitious (think “shameful,” “wicked,” “criminal,” “villainous”) attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”

Speaking of shameful, wicked, and criminal villains, fast-forward to the present. There is a Democrat eye-rolling feeding frenzy to strip Americans of what Continental Congress Delegate Tench Coxe called “the birthright of an American,” which he specifically identified as “every other terrible implement of the soldier.”

“[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people,” Coxe continued.

That’s the last thing a “monopoly of violence” wants. He knew this well, and the Coxe & Frazier merchant firm he formed after the War of the Rebellion ended dealt, among other commodities, in firearms. The firm, as the James Madison Research Library and Information Center notes, “made arms for private purchase … for state militias … and for local militia groups.”

Coxe went on to play a “major role … in the Jefferson and Madison administrations by promoting an early version of American industrial policy … Among the articles that he promoted for domestic manufacture were gunpowder and ironworks.” While he opposed taking up arms in the Whiskey Rebellion because he believed a constitutionally imposed tax was “not grounds for a Second Amendment revolution to rescue the Constitution from tyranny,” he “would continue to support the right to arms as a mechanism allowing popular revolt as a last resort.”

And not just for that.

A supporter of the “Philadelphia Aurora, the leading Jeffersonian newspaper of the time,” Coxe promoted armed citizens guarding the paper after its editor was beaten and Federalists set out to destroy the press. But again, it wasn’t just for “collective” actions, as he “signed off” on an article appearing in the paper urging:

“But as men intent upon hostility have associated themselves in military corps, it becomes your duty to associate likewise? Arm and organize yourselves immediately … Do you wish to preserve your rights? Arm yourselves. Do you desire to secure your dwellings? Arm yourselves. Do you wish your wives and daughters protected? Arm yourselves. Do you wish to be defended against assassins or the Bully Rocks of faction? Arm yourselves. Do you desire to assemble in security to consult for your own good or the good of your country? Arm yourselves. To arms, to arms, and you may then sit down contented, each man under his own vine and his own fig-tree and have no one to make him afraid … If you are desirous to counteract a design pregnant with misery and ruin, then arm yourselves; for in a firm, imposing and dignified attitude, will consist your own security and that of your families. To arms, then to arms.”

Imagine a newspaper today taking that editorial stance. That was then, this is now, when gun-grabbing LIARS still are trying to swindle citizens out of their birthrights by telling them the idea of the Second Amendment applying to individuals is a modern fiction, and that it’s an archaic and destructive holdover in any case.

Don’t be surprised to see a federal gun ban introduced soon, whether Joe Biden and the Democrats have enough juice to push a bill through now, or if they decide to wait until the next high-casualty exploitation of a “gun-free zone.” This is what “originalist” Antonin Scalia, revered by most gun owners as their judicial champion, enabled.

When that happens, all Democrats will need are a few gutless Republicans to switch sides, not exactly a rare commodity these days. As we’ve seen with all the scrambling to distance themselves from the “late unpleasantness” at the Capitol, the prime directive for “moderates” will always be political self-preservation.

There’s never a better time to determine true character and priorities than when the ship is perceived as sinking, and the alternative is not so much between who will stay with the band as the waters rise, as whether or not those opting for abandonment will scurry down mooring lines like rats or don a gown and head for the lifeboats, securing their seats and the hell with those they leave behind.

[EDITOR’S NOTE: The Founders were brilliant historians who were very well aware of government oppression and genocide since the beginning of time. Their writings state that the purpose of an armed populace is so that the individual could defend his/her life and liberty against a tyrannical government. It is nonsensical for anyone (especially a “pro-gun” politician or gun-rights activist) to state that the 2^nd Amendment is a safeguard against tyranny and then in the same breath state that a ban on machineguns or grenade launchers is constitutional. Why would the Founders want the citizenry to be able to defend themselves against a possible tyrannical government yet be at a technological disadvantage? They did not. If that were the case, then the Founders would have stipulated that the citizens can only own crossbows and catapults instead of state-of-the-art muskets and cannons of the time. The 2^nd Amendment is a God-given government-recognized right by which the individual can defend their life and liberty. Its primary focus is not defense against robbers and rapists, as “pro-gun” politicians and many gun-rights activists seem only to talk about, it’s about defense against tyranny and genocide. And of course, it’s not about hunting or target shooting.]