Supreme Court с вашим анализом second amendment не согласен.
[*1c] Text of Second Amendment
The text of the Second Amendment to the United States Constitution is as follows:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
[*2] Summary and comment
[*2a] Generally
The common law did not recognize any absolute right to keep and bear arms (Burton v Sills (1968) 53 NJ 86, 248 A2d 521 , 28 ALR3d 829, app dismd 394 US 812, 22 L Ed 748, 89 S Ct 1486). During the American colonial period, there had been great fear of military rule, the colonists believing that standing armies were acceptable only in extraordinary circumstances and under control of civil authorities, and that a militia was the proper organ for defense of the individual states (Burton v Sills (1968) 53 NJ 86, 248 A2d 521 , 28 ALR3d 289, app dismd 394 US 812, 22 L Ed 748, 89 S Ct 1486). The United States Constitution gave Congress the power to provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasions (Article I, § 8, clause 15) and the power to provide for organizing, arming, and disciplining the militia (Article I, § 8, clause 16). The Second Amendment was adopted to quiet the fears of those who thought that the congressional powers under Article I, § 8, clauses 15 and 16, with regard to the state militias, might have the effect of enervating or destroying those forces (Commonwealth v Davis (1976, Mass) 1976 Adv Sheets 688, 343 NE2d 847 ). Thus, the Second Amendment reflects an historic distrust of standing armies and the desire that state militias be protected from federal encroachment (Burton v Sills (1968) 53 NJ 86, 248 A2d 521, 28 ALR3d 829, app dismd 394 US 812, 22 L Ed 748, 89 S Ct 1486). 2
In line with the history of the Second Amendment, the courts have interpreted the Second Amendment right to keep and bear arms very narrowly. Thus, although there is a small amount of early authority to the contrary, the general view is that the Second Amendment is a limitation only on the powers of the Federal Government and not on the powers of the states ( § 3 , infra). It has also been held that the right, under the Second Amendment, to keep and bear arms, is a collective right rather than an individual right ( § 4 , infra). Furthermore, following the Supreme Court's opinion in United States v Miller (1939) 307 US 174, 83 L Ed 1206, 59 S Ct 816, infra § 5 , the courts have held that the Second Amendment right to keep and bear arms is not applicable in the absence of a reasonable relationship to the "well regulated militia" provision of the Amendment ( § 5 , infra). Although this last-mentioned rule is frequently stated, and although the Supreme Court's opinion in United States v Miller, supra, is frequently cited for this rule, there is some confusion among the courts and commentators as to exactly what this rule means, and as to whether the Supreme Court in United States v Miller was in fact laying down a general rule at all ( § 5 , infra).
Over the years litigants (usually defendants in criminal prosecutions) have argued that particular federal statutes, state statutes, or local ordinances regulating weapons were, either on their face or as applied, in violation of the Second Amendment right to keep and bear arms. The courts, taking a very restrictive view of the Second Amendment right as discussed above, have rejected these contentions in almost every case. Specifically, the courts have held that various provisions of the National Firearms Act (26 U.S.C.A. §§ 5801 et seq.) do not violate the Second Amendment right to keep and bear arms ( § 6 , infra). Provisions of the Gun Control Act of 1968 (18 U.S.C.A. §§ 921 et seq.) and provisions of a predecessor statute (the Federal Firearms Act) have similarly been held not to violate the Second Amendment right to keep and bear arms ( § 7 , infra). It has also been held that provisions of the Omnibus Crime Control and Safe Streets Act of 1968 prohibiting certain persons from receiving, possessing, or transporting firearms (18 App. U.S.C.A. §§ 1201, 1202) do not violate the Second Amendment ( § 8 , infra). Section 414 of the Mutual Security Act of 1954 (former 22 U.S.C.A. § 1934), the predecessor of § 38 of the Arms Export Control Act (22 U.S.C.A. § 2778), has also been held not to violate the Second Amendment ( § 9 , infra).
In almost all cases, state statutes and local ordinances prohibiting the carrying or possessing of concealed or dangerous weapons have been held not to violate the Second Amendment right to keep and bear arms ( § 10 , infra). It has also been held that various state statutes and local ordinances prohibiting particular classes of persons from possessing firearms did not violate the Second Amendment ( § 11 , infra). Various state statutes and local ordinances dealing with the registration and licensing of weapons ( § 12 , infra) and miscellaneous state and local firearms regulations ( § 13 , infra) have also been held not to violate the Second Amendment.
Although almost all cases in which the Second Amendment right to keep and bear arms has been construed have involved the validity, under the Second Amendment, of particular statutes and ordinances, in a very few cases the Second Amendment right has been applied in different contexts ( § 14 , infra).
Since the Second Amendment right to keep and bear arms has been construed by the courts so narrowly, and since statutes and ordinances regulating firearms have been upheld against a Second Amendment challenge in almost every case, it is not surprising that at least one commentator has argued that the right to bear arms is becoming anachronistic. 3 In any event, it should be noted that since its 1939 opinion in United States v Miller (1939) 307 US 174, 83 L Ed 1206, 59 S Ct 816, infra § 5 , the United States Supreme Court has remained silent on the application of the Second Amendment to firearms regulation. 4
[*2b] Practice pointers
Although counsel for the defendant in a prosecution for violation of a federal, state, or local statute or ordinance regulating firearms may wish to argue that the particular statute or ordinance violates the Second Amendment right to keep and bear arms, it seems unlikely that a court will accept such an argument, in view of the large number of cases where such arguments have been rejected ( §§ 6 , infra). However, if counsel does wish to raise such a contention, he should be sure to raise it during the trial, and not to wait until an appeal of the conviction, since a few appellate courts have refused to decide a Second Amendment issue when the matter was not raised prior to the appeal. 5
If a defendant in a criminal prosecution for violation of a state firearms statute or local firearms ordinance raises the contention that the statute or ordinance violates the Second Amendment, the prosecutor should keep in mind that it will probably be sufficient for the prosecutor to respond that the Second Amendment has been held to be a limitation on the Federal Government only, and not a limitation on the power of the states ( § 3 , infra). It is true, however, that many states have in their own constitutions some provision guaranteeing the right to bear arms (79 Am Jur 2d, Weapons and Firearms, § 4). 6 Nonetheless, the prosecutor should be able to find sufficient authority in his state's case law to convince a court to reject an argument that a particular state statute or local ordinance regulating firearms violates a state constitutional provision guaranteeing the right to bear arms. 7
уж чего, а про это я знаю хорошо.
