That seems to be Josh Horwitz’s position. He quotes from Heller, as an example of “Justice Scalia’s dangerous insurrectionist rhetoric in Heller“:
“If…the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia … If, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure the existence of a ‘citizens’ militia’ as a safeguard against tyranny.”
Nice cherry picking there Josh. Here’s the full quote:
Justice Breyer’s assertion that individual self-defense is merely a “subsidiary interest†of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self- defense had little to do with the right’s codification; it was the central component of the right itself.
Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]†but rather codified a right “inherited from our English ancestors,†Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petititioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee—it does not assure the existence of a “citizens’ militia†as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force.17 That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks.
So in context, we can see Scalia is arguing against Justice Breyer’s assertion that the militia prologue essentially negates the self-defense interest in the Second Amendment. He does this by arguing that showing how Justice Breyer’s interpretation would permit Congress to essentially destroy the right using its militia powers, which Scalia correctly points out is an absurd result for an enumerated Constitutional right.
Perhaps the reason the Court did not address the issue, as Coalition to Stop Gun Violence’s brief urged, is because CSGV assertion that this was an issue was absurd and ignorant. These guys seemed to prosper when they were media darlings, but the party is over. Post Heller, the Brady’s immediately went into tactical retreat mode. CGSV just seems to have gotten angry and ridiculous. Perhaps they always were, and success covers a lot of faults, except their movement has not had any since the mid 90s.
