We are not going to discuss whether this is an individual, collective or civic right. We are going to analyse the sentence that is the Second Amendment. We will also look at it in light of what the Constitution says.
Why is there a "the right of the People to keep and bear arms" that "shall not be infringed" using the words above? What is the scope of this right?
I think I know the answer to that. The answer lies in the first 13 words. These are the 13 words that Justice Scalia left out in order to come to his "majority decision" in Heller. Is that right?
If your answer is self-defence, then you are wrong since the phrase self-defence is not plainly written in the text.
Figthing government tyranny is not mentioned in the Second Amendment.
What is mentioned is a "militia."
So, using the text above and the Constution, The right to "Keep and bear arms" has something to do with "a well regulated militia" since that is mentioned in the text of the Second Amendment and is a purpose tied to "providing for the common defence" which is a purpose stated in the Constitution. It has nothing to do with self-defence since nowhere in the text of the Second Amendment or the Constitution is the phrase "self-defence" present or even hinted at.
What do you think about that? Does it make sense that, in spite of the Heller decision, the first meaning of the 2nd Amendment could not have been about individual self defense?
The way I see it, owning guns for personal protection may very well be necessary and acceptable, depending on the situation, but that has nothing to do with the Constitution. To elevate the desire to own guns to the level of Glorious Divine Rights protected by the Sacred Document is manipulation and distortion.
What's your opinion? Is that Laci the Dog great or what?
I refuse to speak to anything of Laci's until she gives us the proof of her statement that a 5-4 decision by the Supreme Court is not "proper law". This "Ingnore Heller look at Miller" is nothing but a smokescreen.
ReplyDeleteI would urge everyone else to do the same.
"These are the 13 words that Justice Scalia left out in order to come to his "majority decision" in Heller."
ReplyDeleteThis proves that you have not read the Heller decision. Scalia covered this quite extensively. For you to claim that he "left out the first 13 words" is both patently false and easy to prove.
I have the Heller decision printed out right in front of me.
Do you?
What right remains under this interpretation?
ReplyDeleteIt sounds like you are saying that the government can indirectly regulate guns by refusing admittance to a "well-regulated militia". Am I close?
I was curious as to what MikeB would do with this when he told me he was going to write this piece. MikeB pared down this post.
ReplyDeleteThe answers to your questions are in the two posts (I did this in a two part post). Mike quotes part I. Part II, I get a bit more into why the proeme should not be neglected.
I'll give you a quick hint: there is a principle of statutory interpretation that The express mention of one thing excludes all others, that is items not on the list are assumed not to be covered by the statute.
If you believe that things not mentioned in a law should be read into them, then I hope you don't mind being arrested for something that the law didn't cover and successfully prosecuted.
Also, are you saying the first part was mere surplusage? This can't be since It cannot be presumed that any clause in the Constitution is intended to be without effect.
This is why real lawyers don't like the "individual right" (non-civic) interpretation.
This is your only chance to comment on these post.
TomB says, "I refuse to speak to anything of Laci's until she gives us the proof of her statement that a 5-4 decision by the Supreme Court is not "proper law"."
ReplyDeleteI thought Laci did explain that, and at great length.
Isn't the idea that although it is now the law of the land, the Heller decision is viewed by legal scholars as a bad decision? Isn't that what Laci means by "not proper law?"
Isn't the idea that although it is now the law of the land, the Heller decision is viewed by legal scholars as a bad decision? Isn't that what Laci means by "not proper law?"
ReplyDeleteThere are many 5-4 decisions in the SC, and every one of them are criticized by the losing side. That doesn't mean we have any legal standing to ignore them.
The very fact that Laci even bring the topic of "proper law" up shows she is not a serious thinker. Even the term "proper law" is a fallacy.
Yes, thank you MikeB. I do indeed answer that question at great length from a legal standpoint and from a "pro-gun" standpoint. Although, perhaps I should do the pro-gun complaints in a separate post.
ReplyDeleteActually, I don't say ignore Heller look at Miller. Miller was a civic/collective right decision and was a unanimous decision that, despite the doctrine of stare decisis was overtunred by Heller that found a right beyond the "relationship to the preservation or efficiency of a well regulated militia".
Seventeen, you ask the most salient question, which is why I copied this from the other post:
It protects us from the establishment of a standing army by ensuring a vibrant militia. In practise, the US should have a military like that of Switzerland.
Ever wonder why there are so few cases discussing the Second Amendment in the Supreme Court. The only Amendment with less jurisprudence is the third Amendment.
TomB, proper law is not a fallacy.
ReplyDeleteThere is a proper legal method with rules. I like to compare the legal profession to playing a game since it has rules and procedures. There is a proper method for doing things in the law.
The Heller majority did not follow proper legal method and has been criticised for that By Judge Posner and other Judges for this.
There is a proper legal method with rules. I like to compare the legal profession to playing a game since it has rules and procedures. There is a proper method for doing things in the law.
ReplyDeleteThe Heller majority did not follow proper legal method and has been criticised for that By Judge Posner and other Judges for this.
As I stated before, EVERY 5-4 decision by the SC has its critics, some more than others. That does absolutely nothing to stop it from becoming law of the land.
I ask, yet again, for a specific cite of this "proper law" that you continue to cling to. Because, if so, there are a few SC 5-4 decisions I would like to ignore...
Also, are you saying the first part was mere surplusage?
ReplyDeleteNo, the 1st part explains the PURPOSE, I.E., to maintain a "well-regulated" militia.
Well-Regulated meant "well-trained" and "well-armed" by the way. Oh, and the founders were explicitely clear as to who the "militia" were.
Try reading Miller for yourself and see who's fibbing.
ReplyDeleteMiller did not say the 2A was a collective right.
Miller stated that due to a lack of evidence that a sawed off shotgun was a useful military arm, then it was not protected under the 2A.
I'll even make it easy for you.
ReplyDeleteRead it please, it's not very long.
http://usgovinfo.about.com/library/bills/blusvmiller.htm
It says THE GUN was not protected under the 2A, not that the right was collective in nature.
Kaveman - C'mon, if Laci actually bothered to READ Miller she might be forced to rethink her bigoted viewpoints, misguided prejudices, and general ignorance.
ReplyDeleteIt's easier for her to remain ignorant while pretending she knows what she's talking about.
Mike W...
ReplyDeleteThis isn't for Laci to read, I know she won't do it.
I'm hoping that MikeB will read Miller so he can see with his own eyes that Laci is fibbing.
I can't really explain this to you if you don't grasp the simple concept that the civic right is tied to the relationship to the preservation or efficiency of a well regulated militia.
ReplyDeleteYou can tell that it being discussed since the term "common defence" and "militia" will be a part of any discussion.
Miller as I have emphasised in the following excerpt of the holding is definitely Civic in its tone.
The Holdig of US v Miller:
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. UNITED STATES v. MILLER, 307 U.S. 174 (1939)
This phrase is incorporated from Aymette v. State:
To make this view of the case still more clear, we may remark
that the phrase, "bear arms," is used in the Kentucky constitution
as well as in our own, and implies, as has already been suggested,
their military use...Here
we know that the phrase has a military sense, and no other; and we
must infer that it is used in the same sense in the 26th section,
which secures to the citizen the right to bear arms. A man in the
pursuit of deer, elk, and buffaloes might carry his rifle every day
for forty years, and yet it would never be said of him that he had
borne arms; much less could it be said that a private citizen bears
arms because he has a dirk or pistol concealed under his clothes,
or a spear in a cane. So that, with deference, we think the
argument of the court in the case referred to, even upon the
question it has debated, is defective and inconclusive.
Obviously, I have read Miller and unlike you, I understood it.
I feel very sorry for you if you don't believe that there is proper legal method and due process.
You obviously seem to belive that the law is whatever a judge says it is without proper due process constraints.
As George Washington Said in regard to Shays' Rebellion:
"I am mortified beyond expression when I view the clouds that have spread over the brightest morn that ever dawned in any country... What a triumph for the advocates of despotism, to find that we are incapable of governing ourselves and that systems founded on the basis of equal liberty are merely ideal and fallacious."
Even further support for the Civic right in Miller:
ReplyDeleteMost if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.
That is "The District Court held that section 11 of the Act violates the Second Amendment."
And if you have read the opinion you will find that McReynolds spends the entire discussion centred on the Militia.
This is in contrast to Heller which works as hard as possible to show that there was no connection between the Second Amendment and militia service.
I think this more than proves I've read Miller and, unlike you, I actually undewrstood what he was saying.
Plus Did Kaveman go to Law School?
ReplyDeleteNO, but Laci did. Also Kaveman has a stupid screen name!
All these point to me that Laci must be right!
I kan brain good!
Are there any writings by any of the authors to the Constitution or The Bill of Rights any of the Federalist Papers or anything written by anyone alive when it was ratified that has even ever hint at a collective right?
ReplyDeleteNope.
Are there any that would make you believe that the founders believed it to be an individual right like any other?
Yes.
Are there any S.C. decisions written before this collective right nonsense was invented last century that would make anyone believe that the intent of the 2nd Amendment was anything but a right of the people?
Nope.
Are there any serious legal documents, papers, journals, or anything written in the 18th or 19th centuries that push this collective rights notion?
Nope.
Is there any reasonable explanation why the authors of the Constitution use the word "people" to speak of individuals throughout the Bill of Rights except in the 2nd which means the State?
Nope.
The 2nd Amendment is an individual right. Always has been up until someone decided to make up this collective rights nonsense. The reason the court has very little history with it was that the subject was not in question and was abundantly clear until recently.
Weer'd Beard, I am speechless!
ReplyDeleteThank you.
Yes, Weer'd Beard, you kan brain very well! I hope I kan brain as well as you.
ReplyDeleteBTW, I think this goes to something Weer'd Beard said in another post.
ReplyDeleteIf you look at the Stephen Halbrook's material, he is focusing on the "that every man be armed" "unorganised militia" concept. That was the defence presented in Rybar and a few other early 90s cases.
You start to move away from that with an article I remember Karen McNutt makes in Women and Guns in 1995
that the focus needs to turn away from the militia. http://www.firearmsandliberty.com/macnutt.militia.html
About that time, we start seeing Nelson Lund and Vol, er he who shall not be named articles showing that the proeme is not significant.
So, yes, there has been this interesting hybrid of civic and individual right out there in the popular mind. It's not totally without basis, but that comes mostly from the State Constitutions.
The McReynolds quote points that out.
Laci, I still don't see any cite stating I can ignore a SC decison if it is 5-4 on the basis it isn't "proper law".
ReplyDelete(You know, the more I read that, the more assnine it becomes.)
Laci - How do you explain the various state Constitutions which make it quite clear that the right to keep & bear arms is INDIVIDUAL and not constrained only to militia duty?
ReplyDeleteHow do you explain the Militia Acts of 1792?
Do you realize that citizens were expected to come bearing their own personally owned arms and ammunition? How were they to do so if they did not have an individual right to keep & bear arms?
How do you dismiss "The People" as being something other than "the People" as seen in the rest of the BOR, particularly when the "well-regulated militia" ARE "The People?"
Oh, and I see you're STILL avoiding the parts of Miller that don't fit with your worldview.
The federal constitution is a baseline. State constitution may exceed that baseline in the protection of a right, but cannot offer a lower level of protection. For example, Pennsylvania offers a higher standard for search and seizure than does the Federal constitution.
ReplyDeleteThe "People" argument is a smoke screen, especially if you choose to use the Militia Act as a guideline.
Short answer, There were a specific class of people who were subject to militia service (if you read George Mason's "Who are the militia? They consist now of the whole people, except a few public officers"). Again, we have to look to the text for the class protected. The segment of the "people" who could claim the right are those in the militia.
Again, short answer with the Militia Act, it would be those enrolled in the militia who had a "right" to the arms. Although, I believe that is an incredible simplification.
The Heller decision reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens,” (p. 63). But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions. The Court offers no way to harmonize its conflicting pronouncements.
Using your argument about the people, wouldn't "we the people" in the preamble mean that all the citizens of the US took part in drafting the constitution? Wouldn't it be a tight squeeze at independence hall?
Also, Heller is incorrect in it's reading of "the People".
The words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.
ReplyDeleteTomB, Heller itself.
ReplyDeleteAll you need are the Justices willing to give it cert.
Again, if you don't get that point, then I don't think I need to explain it further.
FWM, Try Patrick Henry and the rest of that crew. The Debates in the Several State Conventions on the Adoption of the Federal Constitution (3 Elliot's Debates 384-7), Virginia, Saturday, June 14, 1788.
ReplyDeleteAs my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.
May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.
Henry is specifically discussing arming the militia in light of Congress's power under Article I, Section 8, Clause 16.
I saw no mention of a personal right in that quote.
Seventeen, you ask the most salient question, which is why I copied this from the other post:
ReplyDeleteIt protects us from the establishment of a standing army by ensuring a vibrant militia. In practise, the US should have a military like that of Switzerland.
Um....That could be a "why" but it doesn't tell me anything about the "what".
I really wish I could get a straight answer to this question from just about anyone who believes restrictions are .
I'll try coming at it from a different direction:
What do articles and amendments of the constitution do, besides either prohibit or require certain actions under certain circumstances?
What is prohibited or required by the second that would be different without it?
the civic right is tied to the relationship to the preservation or efficiency of a well regulated militia.
ReplyDeleteYou can tell that it being discussed since the term "common defence" and "militia" will be a part of any discussion usually in relationship to Congress's power the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States" under Aricle I, Section 8, Clause 16.
FWM, the ratification debates point to the predominance of the civic right.
PH's question is "When this power is given up to Congress without limitation or bounds, how will your militia be armed?"
You might have a point if there were discussions about hunting and self-defence.
On the other hand, a stated purpose of the Constitution is to provide for the common defence.
Again, Mike W's comment about the militia act, the right was extended to those enrolled in the militia. They were expected to bring specific firearms, not their flintlocks.
I find it far more persuasive that the Second Amendment right is civic in nature. I find the individual right present in state constitutions where it is specifically mentioned.
Mike W, I find your arguments unpersuasive since you show a lack of understanding.
ReplyDeleteRegulated means exactly the same as it does now regulated by rules (See the OED definition of "Regulated").
"Well trained" is not present in the OED definition of "regulated".
Laci...
ReplyDeleteThankyou for supporting my claim that Miller talked about THE GUN involved, not whether or not the Right was collective or individual.
The government didn't bring the case because miller wasn't a militia member, they brought it because he failed to register it and pay the $200 tax stamp.
FWM, I cite loads of 18th and Century treatises that back up the civic right if you read my pieces.
ReplyDeleteI have read them in their entirity.
As I keep saying, I have yet to see a persuasive argument that the Second Amendment provides for an individual right.
Although saying that the second Amendment has a civic or individual right does not tell us the scope of that right.
Therefore, my question for you is to show me the language that gives the scope of the right.
I do not see the words self-defence, hunting, or fighting tyranny (although persoanl defence and hunting are present in state constitutions).
You are confusing the Second Amendment with state constitutional rights.
BTW Laci, you do realise that current U.S. Code supports the individual rights view?
ReplyDeletePer U.S. Law the National Guard is the current "Organized Militia." but there is also an "unorganized militia comprised of individual citizens.
The Founders were also quite clear about who the militia was.
A few quotes can be found here. It would appear they advocated "bearing arms" unconnected with actual militia service. Scalia was right.
http://anothergunblog.blogspot.com/2008/03/few-quotes-in-light-of-heller.html
http://www.law.cornell.edu/uscode/10/usc_sec_10_00000311----000-.html#
Tell me, since you're the authority with the legal degree (haha) what's the definition of "Militia?"
We can keep going, either here or on my site. I find it entertaining trouncing your inane arguments.
TomB. I you didn't know it, prior to Heller the controlling case in
ReplyDeleteW.D.C. was Sandidge v. United States, 520 A.2d 1057 (D.C. 1987), which held that the Second Amendment guaranteed a collective rather than an individual right to possess firearms in relation to an organized and well regulated militia.
Likewise, prior to Heller, Miller was controlling law. I paraphrase the holding thus:
The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose. Without evidence that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' is reasonably related to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment of the body organised under Article 1, Section 8, Clause 16 of the Constitution or that its use and possession would contribute to the common defense.
Also a unanimous decision.
Despite these being considered solid cases and the doctrine of stare decisis, cert was granted to Heller
The Parker court was bound by Sandidge, yet it found an individual right outside a "well-regulated" militia.
FWM, question for you:
ReplyDeleteIn light of the state constitutional provisions with explicit guarantees of an individual right, where do you see similar language in the Second Amendment?
The right of the citizens to bear arms in defence of themselves and the State shall not be questioned
The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.
A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.
Do you see similar non-military terms in the Second Amendment?
you know I am beginning to hate that term as I hate collective right:
Better personal right and civic right.
Sevesteen, I think I have answered this before, but even Heller's individual right is extremely limited:
Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
registration and licencing schemes are not contrary to the scope of Heller's right, which is where it takes heat from the "pro-gun" crowd.
"Therefore, my question for you is to show me the language that gives the scope of the right."
ReplyDeleteOkie-dokie... How about we refer to the very people who crafted the Constitution and the Bill of Rights?
Are they a credible authority on matters concerning the documents they wrote?
http://www.godseesyou.com/2nd_amendment_quotes.html
Sevesteen, I have to say that you ask a question that truly puzzles legal minds since the civic right really narrows the scope of the right.
ReplyDeleteMy opinion is that what would be covered would be someone who wants to join a universal militia, but who is barred by the current law regarding the national guard.
A taxpayer upset at the military budget is another possibility, but I am not sure how you get standing on that one. A taxpayer young enough to be in a universal militia upset by the current military?
A state arguing that it needs nuclear weapons to prevent it from federal tyranny?
My first reaction when I finally grasped this was "some right" and feeling terribly depressed.
you know I am beginning to hate that term as I hate collective right:
ReplyDeleteBetter personal right and civic right.
Changing the terms doesn't make your position any less invalid and factually & historically inaccurate.
Nice try.
Sorry, but the "unorganized militia" is best described as a draft pool. It is frequently addressed in jurisprudence: e.g. Rybar, United States v. Hale, 978 F.2d 1016, 1020 (8th
ReplyDeleteCir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123
L.Ed.2d 174 (1993); United States v. Oakes, 564 F.2d 384, 387
(10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55
L.Ed.2d 521 (1978); United States v. Warin, 530 F.2d 103, 106
(6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d
1185 (1976).
The reserve militia or unorganized militia, consists of every able-bodied man of at least 17 and under 45 years of age who are not members of the National Guard or Naval Militia. (that is, anyone who would be eligible for the draft).
A fun Second Amendment incorporation issue is since there is a concurrent draft between the militia and the military, is that a violation of the Second Amendment
A rough analogy to organised and unorganised militia is someone who is in the military and someone subject to the draft.
Being subject to the draft does not make you a member of the armed forces or eligable to its benefits.
The whole "unorganized militia" aspect was a much later legislative maneuver for people to GET OUT of the real (i.e. "organized") militia, akin to say getting out of the draft by being shuffled into a "reserve draft" category. It was for people to escape the conscription-like service requirements, not a license for private paramilitary groups. The structural details of the militia system were concerned with the extremely difficult task of funding and running an effective military without having a large standing army, and had nothing to do with individual gun rights. "Unorganized militia" in modern terms was more a draft-dodging loophole, not a Rambo clause.
It's something like if during the Vietnam War, people could get out of the draft by merely going into the "unorganized draft", which was supposed to come forth if the US was invaded by Vietnam. Formally, if you read that many decades later, you might naively think it actually implied some military service, whereas knowing the historical background gives it a very different aspect.
So, this would be akin to calling a Vietnam era draft dodger, say Bill Clinton or Ted Nugent, a Vietnam vet.
I am sure that statement just insulted most Vietnam vets, but I am making a point.
My opinion is that what would be covered would be someone who wants to join a universal militia, but who is barred by the current law regarding the national guard.
ReplyDeleteAlthough you have come closer than anyone to answering the collective rights version of the second, I still don't understand--It sounds like you are saying that if you are eligible to join the national guard, the only way you can be guaranteed a right to own guns is if you do...but if you are ineligible, you can own guns without membership?
I've got more rights than young skinny people because I'm old and fat?
My opinion is that what would be covered would be someone who wants to join a universal militia, but who is barred by the current law regarding the national guard.
ReplyDeleteSomeone needs to brush up on the term "militia" and current US Code regarding militias and the national guard.
As of this very moment I am a member of the militia per the founders and per current federal law. I don't have to "join" anything.
Sadly current Federal law would exclude you since you're a woman (unless you're in the National Guard) The law as written is clearly discriminatory against women. It could likely also be challenged under the ADA as discriminating against those with disabilities.
http://www.law.cornell.edu/uscode/10/usc_sec_10_00000311----000-.html
Kaveman, I don't remember saying any such thing. Please cite where I said this.
ReplyDeleteThe type of gun was totally irrelevant to the discussion. It could have been a weenie roaster for all that mattered.
The question was whether the object "has some reasonable relationship to the preservation or efficiency of a well regulated militia"
The holding could have read:
In the absence of any evidence tending to show that possession or use of a weenie roaster at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weenie roaster is any part of the ordinary military equipment or that its use could contribute to the common defense.
The entire text of the Second Amendment was made with the obvious purpose to assure the continuation and render possible the effectiveness of the forces created under authority of Article 1, Section 8, Clause 16. It must be interpreted and applied in consideration of that purpose.
I don't think I could have a discussion with you, Kaveman, if you can't understand what I am saying. You are obviously having trouble understanding simple concepts.
Although, this might explain why you make the comments you do.
Federalist Paper #29, in which Hamilton discusses the composition of the militia.
ReplyDelete"To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia."
Regulate does not mean "regulate" as it means today. It means well-armed and well-trained/disciplined. Pure logic would tell you that it makes no sense to say the people have a right that shall not be infringed but that the government may "regulate" it out of existence.
Kaveman, I have read the entire text of the debates and those quotes in primary sources, not the excerpts cited there.
ReplyDeleteSorry, but all those quotes, when read in their entirity, point to the Civic right being the proper interpretation.
You should see that from the Patrick Henry quote.
Kaveman, It's obvious that you aren't able to comprehend what I am saying and that you prefer to hear what you wish to hear.
Also a unanimous decision.
ReplyDeleteDespite these being considered solid cases and the doctrine of stare decisis, cert was granted to Heller
The Parker court was bound by Sandidge, yet it found an individual right outside a "well-regulated" militia.
Nothing of what you wrote provides us with any law or legal precedent that invalidates a Supreme Court decision that is 5-4 as not "proper law". That is exactly what you said and I await proof of that concept, i.e. that close decisions by the SC can be ignored as not "proper law".
We continue to wait.
BTW, Kaveman,you can cite all the quotes you wish, they are irrelevant in legal method (even if they do support the civic right).
ReplyDeleteYou need to use the text of the law and only the word in it.
From the Dred Scott ruling (1857)
ReplyDeleteFor if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
Even in 1857 it was understood that the 2nd Amendment was a right enjoyed by individual citizens OUTSIDE of service in a militia.
Therefore, my question for you is to show me the language that gives the scope of the right.
ReplyDeleteThe best we can hope for concerning the people at large is that they be properly armed."
-- Alexander Hamilton, The Federalist Papers at 184-188
"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms ... "
-- Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87
"[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
--James Madison, The Federalist Papers, No. 46
"To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws."
--John Adams, A Defense of the Constitutions of the United States 475
"Whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it."
--Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788
"No Free man shall ever be debarred the use of arms."
-- Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334
Per US Code "organized" and "unorganized" militia are 2 separate entities.
ReplyDeleteMembership in the unorganized militia is not dependent upon membership in the National Guard.
I suggest you read U.S. code, and the Federalist papers while you're at it.
BTW, Kaveman,you can cite all the quotes you wish, they are irrelevant in legal method (even if they do support the civic right).
ReplyDeleteWell, we now have Laci admitting the writers of the 2nd Amendment did indeed consider it an individual right.
She just clings to Miller as a slowly-sinking life preserver.
Well done all.
I thik I need to clarify this:
ReplyDeleteCivic right: tied to the militia.
Language to clue you in: Common defence, militia, organised, discipline, and other military language
Example quote:
"When this power is given up to Congress without limitation or bounds, how will your militia be armed?"
Note: focus is on militia.
Private or individual right: personal uses not tied to military service: self-defence, hunting, target shooting, skeet shooting, concealed weapons, etc.
Language will be decidely non-military in tone.
Example of personal right:
The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.
A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.
Note: personal language.
Fun question: is this Civic or Individual in its scope?:
The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.
What's your opinion? Is that Laci the Dog great or what?
ReplyDeleteOther than being a woman she's virtually indistinguishable from you. So no, she's not what I call great.
Head on over to Tam, Brigid or Breda's blogs if you want to see great.
Federalist Paper #29 read in its entirity supports the Civic right interpretation. Additionally, you use only a portion of that section, the entire section points to the meaning I use:
ReplyDelete"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year."
Dred Scott????
Mike W. You make me laugh! That is the most ignorant thing to choose to back up your argument! That is one of the most thoroughly discredited cases in Supreme Court history!
If you read the Text, Dred Scot was considered property and as such couldn't have rights. Dred Scott, of course, infamously held that slaves were property and not entitled to the same rights as citizens. It’s later-reversed holding had nothing to do with the Second Amendment. In dicta, the Court analyzed whether slaves were entitled to the protections of the Constitution by listing a few examples: “Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding."
You're pretty despirate to use that dicta! Perhaps, you should give up.
Or study up on the primary sources rather than have someone excerpt them for you.
Mike W. I think you should actually READ with comprehension the material you quote.
The Supreme Court has cautioned against citing Dred Scott recognizing the fatally flawed reasoning in the case and that the case failed to heed “[t]he wisdom of refraining from avoidable constitutional pronouncements” that are “not ‘absolutely necessary to a decision,’”
ReplyDeleteIn one of the weirdest aspects of this debate, it has become acceptable to quote the Dred Scott case as a legitimate constitutional authority. Dred Scott had nothing to do with the Second Amendment. Justice Taney did make a brief reference to the right to travel armed, but he never actually discusses the meaning of the Second Amendment. How remarks made by a judge in the most universally reviled decision in American history could provide a solid foundation to over-turn seventy years of precedent on the meaning of the Second Amendment is truly baffling. Of course, Taney was the father of judicial activism, so it might actually make a certain amount of sense to use Dred Scott to revisit the meaning of the Second Amendment if the court were interested in making new law, not interpreting existing law.
BTW, realise that I cite check, it's a bad habit lawyers and academics have that it totally ingrained in me. So, I do read what I quote and verify what is quoted to me.
ReplyDeleteWeer'd Beard, I am not sure where you're going with that comment, but realise the question was more based upon proper legal method.
Not to mention I'm neing a bit of a law prof (OMG Shoot me!). Come on, let me have my fun!
I do have to admit to having fun here though. Thank you.
RE: Federalist Paper #29
ReplyDeleteWell-regulated v. Well-trained
Note:
as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia,
a little further down he says:
it will be possible to have an excellent body of well-trained militia,
If well-regulated means well-trained, why does he use both terms? Is he being a show off?
Actually, I think Mike W is totally missing the point, by making any sort of connection to a "militia" service, you are firmly placing this in the civic right camp. The Civic right relates to military purposes.
ReplyDeleteQuestions are "is there relationship to the preservation or efficiency of a well regulated militia?"
"Does it contribute to the common defense?"
Personal right (I like that better) is exactly that, the right has something to do with non-military uses: self-defence, hunting, target shooting.
Question is this related to a personal purpose?
Civic=military
Personal=non-military
I think that's why its hard for modern minds to understand.
Saying it is an individual or collective right doesn't really give you the scope (applicability) of the right. Individuals can claim the collective right purpose if it is related to the common defence or he preservation or efficiency of a well regulated militia.
Quoting Dred Scott will get you laughed out of most courts.
ReplyDeleteAlthough, I am sure if you cited it in the Supreme Court, Justice Thomas would get up on the bar of the court and start jigging and cooning.
"Ah, massa, I wants me some waddy mellon!"
YA Know, the Dred Scott comment so amused me that I did a post on it at my blog.
ReplyDeleteSince you ignored my post, I'll reiterate one:
ReplyDelete"[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms."
--James Madison, The Federalist Papers, No. 46
Individual enough for you???
I quoted Scott because Taney listed those INDIVIDUAL rights which citizens of this country enjoy as free people. The despicable part is that the court then said Scott did not have those rights.
ReplyDeleteThe fact that the court held that Scott was not a person but property and thus held no such rights is irrelevant to the point I made.
I'm not surprised that rather than think you chose to go "Ewwww, Dredd Scott, that's RACIST!" and turn off your brain.
Again, Mike W's comment about the militia act, the right was extended to those enrolled in the militia. They were expected to bring specific firearms, not their flintlocks.
Yup, citizens were expected to bring their own PERSONALLY OWNED WEAPONS AND AMMO when appearing for militia service. They were expected to bring specific weapons, which for officers included a flintlock.
How were they expect to appear armed if they had no right to procure and possess those arms as individuals? You seem to continually side step that issue.
Mike W. says, "How were they expect to appear armed if they had no right to procure and possess those arms as individuals? You seem to continually side step that issue."
ReplyDeleteBut, isn't the idea that the need for a militia is no longer operative, therefore there is no right.
That's not to say guns are banned. That's just to say you can't keep claiming you've got this lofty glorious RIGHT.
But, isn't the idea that the need for a militia is no longer operative, therefore there is no right.
ReplyDeleteCan you show us the law that recinds the milita act?
But, isn't the idea that the need for a militia is no longer operative, therefore there is no right.
ReplyDeleteI guess under your logic since blacks are no longer slaves there's no need for the 13th Amendment, therefore there is no right.
Or the 3rd Amendment. When's the last time soldiers were quartered in civilian homes without their consent? I guess the need for that is no longer operative, therefore there is no right.
Man MikeB, you've got some crazy twisted logic. Just because you deem a right archaic or unnecessary doesn't make it disappear. Sorry if that bugs you.
Why is it MikeB that you consistently neglect to apply your logic to other parts of the BOR?
ReplyDeleteWhat is so unique about the individual right to keep & bear arms?
Guns are unique in the Constitution, aren't they? Are there other "tools" mentioned? Other weapons?
ReplyDelete