Outstanding post, OC4me. Couple of points, though, not with you, but with some of the "common thought" going around the bench.
The constitutionality of background checks (universal or not) may have to be litigated in court on Second Amendment grounds via a completely different tactic.
Agreed. I have in mind the original purpose as to why the Second Amendment was created.
There is nothing that prevents a State acting as a plaintiff in challenging the Federal background check system under the Second Amendment (successfully doing so would doom all other state background check systems by the way). This wouldn't be a novel concept at all. The legal groundwork has already been provided courtesy of the antis themselves who argued (in desparation) that the Second Amendment was intended to protect a State's interest in preventing the Federal government from disarming State militias (i.e. a State, itself, would be the appropriate party to sue the Federal government to enforce the 2A).
Maintaining the state militia is one reason. There are others.
It should be noted that the Heller decision happened to be in agreement on that point, i.e. Scalia specifically noted that the militia clause was the most salient purpose of the Second Amendment before going further to explain that the amendment was not limited to that purpose, but also protected the ability of individual citizens to keep and bear arms for purposes of self-defense unconnected with militias.
Smart man, Justice Scalia. Self-defense is reason 2.
From a State’s vantage point, the Second Amendment was intended to ensure that a Governor could muster an army of citizen-soldiers in a damn hurry! The Federal background check requirement would block citizens from legally acquiring arms during a dire national emergency since it is highly probable that any ‘instant’ background check system would cease to function for a variety of reasons (i.e. the plug is intentionally pulled, the national electrical grid crashes, the system simply collapses from extreme demand, etc.).
Back to reason one, but you have to understand that if a federal background check suddenly stopped working as a ruse to prevent any further sales of firearms, we'd still have more firearms in the hands of the people than we have people. Furthermore, there's nothing to prevent a governor from getting on the radio and announcing the background check was a ruse for control, and state will no longer be recognizing the validity of that federal law.
So far, 2A litigation has focused on whether or not some federal or state law violates an individual citizen's Second Amendment rights related to self-defense in peace time. That is fine and dandy however, future litigation should also focus on whether or not some federal law frustrates a State's interest in maintaining an appropriately armed citizenry from which a militia could be raised in the midst of war and disaster.
Montana are you listening?
Still just the first two reasons. Are you ready for something really amazing?
Just my .02 cents (thinking outside the ever shrinking self-defense 2A box we have allowed ourselves to become comfortable inside).
Agreed. Now, here's where it gets interesting.
When our Founding Fathers crafted the Second Amendment, they did so because they had assumed that no one would ever attempt to disarm the people. After all, we'd been armed since we first arrived. The crown was the only entity that had seriously attempted to disarm the people. Yet amazingly, forces within our own government attempted to collect arms from the people from the outset.
Our Founders blinked, thought, "Perhaps we weren't clear enough," and enacted our Bill of Rights.
Our Second Amendment's "the right to keep and bear arms shall not be infringed," they meant every word. "Shall not" is an imperative, a non-negotiable mandate. There is no wiggle room. The only way the courts have gotten around it is by ignoring it. Any and all forms of gun control, registration, waiting periods, and other restrictions are infringements.
In fact, the reasons are limitless as to why our Founding Fathers created such an absolute mandate. Hunting. Sport. Competition. The Olympics. Pure fun. Self-defense. Defense against tyranny at all levels, and all types. Deterring enemy aggressing. Repelling invading armies.
ALL are valid reasons, as is "just because."
Our Founding Fathers had the depth of wisdom and keen insight to NOT put any restrictions on our right to keep and bear arms. Instead, they put the maximum restriction on any and all entities against infringing our right to keep and bear arms. They didn't limit to to Congress, as they did in the First Amendment. The restriction applies to everyone. NO ONE has the authority to infringe on our right to keep and bear arms. All are specifically and completely prohibited from infringing on our right to keep and bear arms. There are no bounds, and all such attempts violate the Constitution.
Nor does the term "arms " apply only to firearms. It's short for "armaments," as in knives, swords, bow and arrow, axe, cannon, bludgeon, stick, rock, whatever.
More than 200 years ago, our Founding Fathers had already foreseen the gun-free zones and other ridiculous attempts to make people "safer" and how they would actually endanger people. They foresaw because they were students of history. This is nothing new. It has happened many times before. Governments disarm citizens to "protect them." Even if their intentions were originally noble, disarming citizens has always made them targets, and noble intentions always become ignoble, even tyrannical.
Our Founding Fathers knew this. In response they crafted a very simple moratorium: "the right to keep and bear arms shall not be infringed."
It really is that simple. The only thing complicated about this issue are the hooks the antis have thrown into the mix. All such hooks violate the intent and direct wording of the Constitution, and are therefore illegal.
Thankfully, recent decisions by the Supreme Court and federal courts have mostly upheld these principles, much to the surprise of the antis. Clearly, Justice Scalia and others do understand a lot more about the importance of preserving the integrity of our Second Amendment than we generally would have imagined.
