Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.–James Madison
It cannot be presumed that any clause in the constitution is intended to be without effect;--Marbury v. Madison, 5 U.S. 137 (1803).
I was thinking about calling this post The Truly Embarrassing Militia Clauses of the US Constitution as a take of on Sandford Levinson's "The Embarrassing Second Amendment". In it, Levinson points out that "the second amendment is not taken seriously by most scholars." Levinson then says:
I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning," interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay --The Embarrassing Second Amendment -- for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU). Indeed, one sometimes discovers members of the NRA who are equally committed members of the ACLU, differing with the latter only on the issue of the Second Amendment but otherwise genuinely sharing the libertarian viewpoint of the ACLU.Problem is that Lawyers know the rules of the game better than most plain folks, and in Constitutional law, it appears some know it far better than 5 of the Judges on the Supreme court. Never mind that when Levinson wrote his piece (1989-1990) the Civic Right interpretation was pretty much the norm. The Second Amendment was neglected since it was pretty much seen as settled law prior to the rise of the revisionist pseudo-scholars. Levinson article was part of the flood of scholarship that has led to revisionism of the Second Amendment pseudo-scholars which has unsettled nearly 70 years of settled precedent. The pseudoscholars have been like good magicians and directing people's attention to the wrong thing while they deceive them into making the illusion look real.
But, my reason for disliking the individual right interpretation goes to the two quotes that start here. True "Second Amendment" scholarship goes beyond just the text of the Second Amendment which everyone involved in this game knows comes in two versions:
As passed by the Congress:
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.As ratified by the States:
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.
The Pseudoscholarship only looks at the second half of the Second Amendment ("the right of the People to keep and bear arms shall not be infringed") and tries to neglect the Prefatory clause (A well regulated militia being necessary to the security of a free State). Unfortunately, this has coloured the debate in recent years despite the admonition from Marbury v. Madison that "It cannot be presumed that any clause in the constitution is intended to be without effect". The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. It is wrong that the prefatory text should be treated as mere surplusage according to the original rule for interpreting the Constitution.
The current debate isn't True Second Amendment/Constitutional law scholarship since that MUST include also the militia clauses from Article I, Section 8 of the US Constitution along with the text of the Second Amendment:
Clause 15. The Congress shall have Power *** To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
Clause 16. The Congress shall have Power *** 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.
These two clauses change the debate and bring it closer to historic reality of how the Second Amendment should be interpreted. When the commentators were saying things such as "The great object is, that every man be armed", Henry was specifically addressing Article I, Section 8, Clause 16 as the text shows:
The problem is that if one looks at the Second Amendment in light of Congress's powers under the Militia clauses, in particular--the power to arm the militia, the individual right proposition begins to wither away. Even more so when seen in the proper historical perspective. Then, needs to add Article 1, Section 8, Clause 12 (To raise and support Armies) to the mix to get the proper meaning of the Second Amendment.
As 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.
Somehow, the dislike of Standing Armies in the Anglo-American mind has also been neglected in this mix. In the 17th and 18th Century Great Britain and the British Colonies in America, there was a sentiment of distrust of a standing army not under civilian control. In England, this led to the Bill of Rights 1689, which reserves authority over a standing army to Parliament, not the King. The Declaration of Independence lists keeping standing armies during time of peace as one of the grievances. This dislike was far more nuanced in the United States Constitution which reserves by virtue of "power of the purse" similar authority to Congress, instead of to the President. The President, however, retains command of the armed forces when they are raised, as commander-in-chief. This dislike of standing armies heavily flavoured the debates relating to the adoption of both the Constitution and Bill of Rights, which leads to to this question from Elbridge Gerry:
What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.
The Constitution’s retention of the militia and its creation of divided authority over that body did not prove sufficient to allay fears about the dangers posed by a standing army. For it was perceived by some that Article I contained a significant gap: While it empowered Congress to organize, arm, and discipline the militia, it did not prevent Congress from providing for the militia’s disarmament. As George Mason argued during the debates in Virginia on the ratification of the original Constitution:
“The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.” Elliot 379.On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States. Governor Edmund Randolph, reporting on the Constitutional Convention to the Virginia Ratification Convention, explained: “With respect to a standing army, I believe there was not a member in the federal Convention, who did not feel indignation at such an institution.” 3 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 401 (2d ed. 1863) (hereinafter Elliot). On the other hand, the Framers recognized the dangers inherent in relying on inadequately trained militia members as the primary means of providing for the common defense, and the institutional deficiencies of the militia were the subject of bitter complaint.
Fortunately, the Congressional debates regarding the adoption of the Second Amendment are very short and found here. There was debate in Congress over the religious exemption, and it was removed. Otherwise, there was general discussion of standing armies and the militia, not about personal uses, and widespread support for the proposed Amendment. It became part of the Constitution with the rest of the Bill of Rights on December 15, 1791.
Considering the immediate political context of the Second Amendment, as well as its long historical background, there can be no doubt about its intended meaning. There had been a long standing fear of military power in the hands of the executive, and, rightly or wrongly, many people believed that the militia was an effective military force which minimized the need for such executive military power. The proposed Constitution authorized standing armies, and granted sweeping Congressional power over the militia. Some even feared disarmament of the militia. The Second Amendment was clearly and simply an effort to relieve that fear.
Thus, the Second Amendment needs to be read as more than just one clause, but within the context of text of the entire Constitution for it to be properly understood. The majority opinion neglected the guide to constitutional construction given by Marbury that "It cannot be presumed that any clause in the constitution is intended to be without effect" and rendered the "prefatory clause" to be mere surplusage, which is far from how a truly "original interpretation" based upon how such a text was understood to be read. This has led to absurdities such as the Chicago v. McDonald ruling which said that a provision relating to Congress's powers under Article I, Section 8, Clause 16 applies to the states--even though the states do not have these powers granted to them.
It seems to me that there are good reasons for ignoring the Heller-McDonald decisions and reverting to the standard announced by US v. Miller that said the entire text of the Second Amendment must be used for its interpretation:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces (The Article I, Section 8, clause 15 & 16 Militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
Justice William O. Douglas (who was on the Court at the time of Miller) later described the decision as:
The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.” Adams v. Williams, 407 U.S 143, 150 -51 (1972)Miller addressed Congress's power over the militia, yet it has been dropped from the current discussion of the Second Amendment thus removing it from the the debate regarding the proper scope of the Amendment.
Ultimately, the right granted by the Second Amendment (and the Third) was supposed to be one that there would be no Standing Army, not for private citizens to own firearms. The Constitution, in particular, the Second Amendment is silent on the issue of non-militia arms. That fact, strips away the concept of "gun rights" as being protected under the US Constitution (although gun rights are found in State Constitutions). Instead, the Second Amendment is a window on a vastly different United States from the one we now live. One in which standing armies were feared.
The Constitution is not to be taken piecemeal, but to be seen as a whole to properly understand it. The individual right concept separate texts from historical background and says that clauses in the constitution are intended to be without effect rendering them mere surplusage. This turns the constitution upon its head by neglecting that there are two concepts that are in conflict here: the State Militias and the Federal Army.
Yet, rather than scream bloody murder this act has been allowed to be perpetrated upon the American public. Justice Berger called this interpretation a fraud upon the American public and the 5 justices played fast and loose with the rules of Constitutional interpretation to distort the constitution. Those who dislike penumbras in the law and government intrusion into the private lives of citizens, yet can tolerate Heller-McDonald need to understand what they have just condoned. For Heller-McDonald has not come from the penumbras, but out of nowhere in violation of the role of judges to be interpreters of the law, not legislators.
Delegates to the Constitutional Convention had no intention of establishing any personal right to keep and bear arms. Therefore the "individualist" view of the Second Amendment presented in the Heller-McDonald decisions must be rejected in favor of the "collectivist" interpretation, which is supported by history and the pre-Heller-McDonald Supreme Court decisions on the issue: in particular US v. Miller.
The nature of the Second Amendment also does not provide a right that could be interpreted as being incorporated into the Fourteenth Amendment. It was designed solely to protect the states against the powers given to the Federal government under Article I, Section 8, Clause 16, not to create a personal right which either state or federal authorities are bound to respect.
The contemporary meaning of the Second Amendment should be the same as it was at the time of its adoption. The federal government may regulate the body that was called the Militia (now the National Guard), but may not disarm it against the will of state legislatures. Nothing in the Second Amendment, however, precludes Congress or the states from requiring licensing and registration of firearms; in fact, there is nothing to stop an outright congressional ban on private ownership of all handguns and all rifles.
See:THE POWER TO RAISE AND MAINTAIN ARMED FORCES
Founders' Constitution:
Article 1, Section 8, Clause 12
Article 1, Section 8, Clause 15
Article 1, Section 8, Clause 16
Second Amendment
Amendment Three
House of Representatives, Amendments to the Constitution 17, 20 Aug. 1789 Annals 1:749--52, 766--67
Weatherup, Roy, Standing Armies And Armed Citizens: An Historical Analysis of The Second Amendment, 2 Hastings Const. L.Q. 961-1001 (1975)
Schwoerer, Lois G. "No Standing Armies!" The Antiarmy Ideology in Seventeenth-Century England
Wow, the amount of time you have on your hands in which to continue to beat a dead horse is astounding.
ReplyDeleteImpressive, but at the end of the day very moot.
Dead horse?
ReplyDeleteMoot?
Hardly, Heller-McDonald decisions were 5-4 decisions and more than one commenter has said that they have set the once settled interpretation of the Second Amendment on its arse.
As a typical comment states:
This is only the opening to what will take a long time to hash out.
While it may seem a waste to you, FWM,if what I post proves helpful to a laywer or judge in destroying the Heller-McDonald, then it is well worth the time.
To be quite honest, I am not writing for people like you, FWM, since I see people you as being an ignorant fools and will never get it.
I am writing for the people who need to rectify the mistake made by the Heller-McDonald decisions and bring the debate back to its truly original meaning.
They are my audience, which is why I am now posting here.
But you also said Heller was a "hollow victory". So why do you care so much?
ReplyDeleteI made Laci a 2nd amendment timeline to help him:
ReplyDeletebefore 1939 Everyone knows it is an individual right.
1939 S.C. says that the feds can regulate sawed off shotguns.
1939 > 2008 Almost everyone knows it is an individual right but a few nuts think that it is some sort of community-state-collective right thing because feds can regulate sawed off shotguns.
2008. Supreme court says its an individual right and that everyone should have known that.
2008 - 2010. A few anti's cry about it not applying to the states.
2010. Supreme court says that after the 14th, it applies to the states too.
2010 > present. The entire planet, except, for Laci knows it is an individual right.
"I am writing for the people who need to rectify the mistake made by the Heller-McDonald decisions and bring the debate back to its truly original meaning.
ReplyDeleteThey are my audience, which is why I am now posting here."
Supreme Court in Laciland:
"Hey everyone, when we ruled on that individual rights thing that everyone already knew was an individual right except for some left leaning activist justices, we forgot to ask LACI what he thought. We've been reading MikeB's blog and we need to change it to what those 4 activists justices thought it was. Guess we were wrong. From now on, anytime we rule on anything, we have to ask: WWLD?
FWM, what are your qualifications to pontificate upon the law? You are a SFB as far as I am concerned and spout crap.
ReplyDeleteFWM, if your timeline is correct, then why is Patrick Henry commenting upon article I, Section 8, clause 16 and the federal power to arm the militias.
FWM, you are too effing stupid to have understood this post which is why you post ignorant bullshit.
TS, maybe you lot don't really care about the Constitution, but I would prefer to see it in line with the principles that the founders expounded.
FWM, if you had the intelligence to understand this post, you wouldn't say the bullshit you did.
ReplyDeleteYYOu only prove you are a DF.
A Corrected timeline for FWM, 2nd amendment timeline to help him:
ReplyDeletebefore 1939, it is legally accepted that the Second Amendment relates to Article I, Section 8, Clause 16--
See quotations in the post.
1939 S.C. says that:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces (The Article I, Section 8, clause 15 & 16 Militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
1939 > 2008 Courts follow the Holding in US v Miller which the court in Sandidge v. United States, 520 A.2d 1057 (D.C. 1987) says
We agree with numerous other courts that "the Second Amendment guarantees a collective rather than an individual right...The purpose of the second amendment is "to preserve the effectiveness and assure the continuation of the state militia."
The fact that I can provide documented proof that you are incorrect in our assertion that "Almost everyone knows it is an individual right"--only ignorant people like yourself believed this.
2008 Scalia misinterprets the Second Amendment much to the Joy of most people. A few scholars are disgusted by this decision. The Heller decision changes settled law to unsettled law with 5 Justices following Scalia's new interpretation and 4 the Civic right intepretation.
see:
Posner, Richard A. (2008-08-27). "In Defense of Looseness". The New Republic.
Wilkinson, J. Harvie (2009). "Of Guns, Abortions, and the Unraveling Rule of Law". Virginia Law Review 95 (2): 253.
Shaman, Jeffrey M.,The Wages of Originalist Sin: District of Columbia v. Heller (July 17, 2008).
2010. Alito totally comes up with one of the most ridiculous opinions in McDonald v. Chicago by saying that the Second Amendment, which was intended to address the Federal powers applies to the State. Even more ridiculous was the fact that Justice Stevens failed to address this absurdity in his dissent and played along with the incorporation silliness.
The fact that no one is screaming over Alitos baseless and silly opinion proves that the Second Amendment is a historic relic, the meaning of which has been lost over the passing of time.
FWM, I provide cites, you provide ignorant bullshit.
Lighten up Francis. My posts where intended to be a little light hearted. I didn't realize you were so, so, emotional.
ReplyDeleteThis is a blog, anyone can pontificate the law. I don't know that anyone would argue that Article 1 doesn't apply to arming the militia. Then there is this thing that came along called the 2nd amendment that says that keeping and bearing arms is a guaranteed, individual right though.
You can pontificate, defecate or whatever it is you do to the law and call me names all day long but nothing changes the fact that I'll keep and bear all the arms I want to because I am a free American and that's the way I like to roll.
I hate that. Every time I think I've come up with a zinger, I learn somebody's said it before. Madison said "bastardized" way back in the beginning.
ReplyDeleteWell written Laci.
ReplyDeleteFWM, you are foolish, and clearly do not understand the actual reason dead horses have been beaten, historically speaking.
You think it is a metaphor that refers to trying to get a dead horse to move, which is illogical.
In my appreciation for the art of bookbinding, as it used to be performed by hand not by machine, a dead horse was beaten, if death had occurred sufficiently recently, because the resulting bruising to the hide produced a desired difference when that hide was subsequently used to make parchment for books. Horse hide was used even more frequently than hides from other species for the largest size books and maps.
So, in the sense that your metaphor in fact, if not intent, suggests that Laci was improving on something for a better end result is apt, it was better chosen but opposite to your meaning.
I won't even address the tenderizing improvement to muscle, as horse meat is not a U.S. delicacy, although it is appreciated in other countries, notably in certain Asian cuisines, and some parts of Europe and South America because of it's comparative low fat and high protein, as well as flavor.
Personally, I much prefer to ride horses than eat them; but it is another twist on your metaphor.
Laci, it is just that you are obviously bent up about the Heller decision so it makes it hard to believe that you see it as a “hollow victory”. What has it been 100 posts, maybe 200 posts on the subject in the last three years since the decision went down? Why are you so worked up over a “hollow victory”?
ReplyDeleteDelegates to the Constitutional Convention had no intention of establishing any personal right to keep and bear arms. Therefore the "individualist" view of the Second Amendment presented in the Heller-McDonald decisions must be rejected in favor of the "collectivist" interpretation
ReplyDeleteQuestion. In ratifying the Bill of Rights, the Senate rejected a change in the Second Amendment that would have limited it to bearing arms “for the common defense.”
Why would they do this if the right to be protected was simply a collective right?
The Sherman proposal read:
“The militia shall be under the government of the laws of the respective States, when not in the actual Service of the United States, but such rules as may be prescribed by Congress for their uniform organization and discipline shall be observed in officering and training them, but military Service shall not be required of persons religiously scrupulous of bearing arms.”
If the object were to protect the state militias from the misuse of federal power, Sherman’s amendment showed the way. The U.S. House committee that was drafting the Bill of Rights, however, did not support that amendment.
Instead, the committee favored a proposal from James Madison. Unlike the Sherman amendment, the Madison amendment said nothing about state control of the militias. Rather, the amendment protects the right of “the people.” If he had intended the Second Amendment to be a limit on the power of the federal government to interfere with state militias, he would have put it after Article 1, section 8, which grants Congress militia powers. Instead, Madison put the right to bear arms amendment, along with the freedom of speech amendment, in Article I, section 9—the section that guaranteed essential individual rights, such as habeas corpus.
You mention Marbury v. Madison quite a bit. Any comment with regards to the 35 non specific 2A cases which point to the 2A as an individual right? contrary to popular belief, 2A has been mentioned many times. The dispute about whether the Second Amendment guarantees an individual right can be pretty well settled by looking at the thirty-five other Supreme Court cases which quote, cite, or discuss the Second Amendment. These cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment "right of the people to keep and bear arms" as an individual right, rather than as a right of state governments.
Chief Justice Melville Fuller's Supreme Court (1888-1910) had the most cases involving the Second Amendment: eight. So far, the Rehnquist Court is in second place, with six. But Supreme Court opinions dealing with the Second Amendment come from almost every period in the Court's history, and almost all of them assume or are consistent with the proposition that the Second Amendment in an individual right.
To name a few:
Scott v. Sandford. 1857, Presser v. Illinois. 1886, Logan v. U.S. 1892, Trono v. U.S. 1905, Twining v. N.J. 1908, Konigsberg v. State Bar. 1961, Roe v. Wade. 1973, Planned Parenthood v. Casey. 1992 and lastly U. S. v. Verdugo-Urquidez. 1990
Just a note of interest. Of the twenty-nine U.S. Supreme Court opinions (including Miller) which have quoted the Second Amendment, twenty-three contain only a partial quote. This quoting pattern suggests that, generally speaking, Supreme Court justices have not considered the "purpose clause" at the beginning of the Second Amendment to be essential to the meaning of the main clause.
So if your argument is that the Constiution must be taken as a whole, it falls flat with regard to historical judicial review.
Anon, are you familiar with the maxim . Expressio unius est exclusio alterius’ (The express mention of one thing excludes all others) : Items not on the list are assumed not to be covered by the statute.
ReplyDeleteIf they intended it for self defence, then why doesn't it read something like this:
“That the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.”
Anyway, you mention the common defence, obviously you are not too familiar with the US Constitution that opens:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
So, it's already a part of the Constitution that this will relate to the Common defence.
Next: the 35 non specific 2A cases which point to the 2A as an individual right?
You mention Dred Scott v. Sandford.
Whether the Second Amendment protects a “collective right” or an “individual right” is irrelevant. Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.
Unless the case specifically mentions the Second Amendment, it irrelevant to interpreting the Second Amendment. On the other hand, I do talk about Justice Douglas's comment in Adams V. Williams, but that's only because he was on the Court at the time of Miller. His opinion should carry some weight. His opinion is that the Civic right interpretation is the correct one.
Sorry, anon, but you obviously have no idea of what you are talking about from the cases that you mention.
Let alone about how one should deal with Constitutional interpretation.
Anon, I should add that there are only five cases other than the Heller-McDonald cases that specifically addressed the Second Amendment:
ReplyDeleteUnited States v. Cruikshank, 92 U.S. 542 (1875), Presser v. Illinois, 116 U.S. 252 (1886), Miller v. Texas, 153 U.S. 535 (1894), Robertson v. Baldwin, 165 U.S. 275 (1897), and United States v. Miller, 307 U.S. 174 (1939).
If you are saying Miller "contains only a partial quote." the you are wrong. The Second Amendment is quoted in its entirity. Furthermore, Justice McReynolds states:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces (The Article I, Section 8, clause 15 & 16 Militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
Declaration and Guarantee referring to both clauses of the Second Amendment.
BTW, Anon, what were the facts and holding of U. S. v. Verdugo-Urquidez?
As I said in my previous response, it's pretty obvious that you have no idea of what you are talking about.
I should also add, anon, that you also don't really understand what I wrote.
ReplyDeleteYour comment about Marbury v. Madison demonstrates a serious lack of understanding of the basics of Constitutional law.
Marbury is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it "unconstitutional", a process called judicial review. The landmark decision helped define the "checks and balances" of the American form of government.
Since it defined judicial review, it also provided guidelines for that review--the most important of which is the one I keep mentioning--that "It cannot be presumed that any clause in the constitution is intended to be without effect".
According to Marbury, One cannot presume that any language in the Constitution is mere surplusage--is entirely without meaning.
Come back when you have gotten a bit more education and can make intelligent comments.
Otherwise, shut your face.
But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.
ReplyDeleteYou're catching on. The scope need not be more than an individual right. Plainly written and recognized. Besides, scope has never been needed before the last few decades. Heller and McDonald are the start. The scope will be fleshed out in short order.
Unless the case specifically mentions the Second Amendment, it irrelevant to interpreting the Second Amendment.
They do which is why they are worth mentioning. Generally the Second Amendment appears as part of an argument intended to make a point about something else. Still it is mentioned specifically. I think you may have some reading to do.
Justice Douglas's .. opinion is that the Civic right interpretation is the correct one.
Justice McReynolds wrote Miller so Douglas's opinion is mute. And that's If (and that's a BIG IF) Miller were the only source of information about the Second Amendment.
But the 35 other cases speak volumes and can't be just disregarded (your minority view notwithstanding).
Let alone about how one should deal with Constitutional interpretation.
That's some funny stuff right there. Have a great day. Been fun.
Anonymous, can you read, write, and understand the English language?
ReplyDeleteThe first two paragraphs of your response contradict themselves.
I guess I also did not make myself clear, unless the Cases specifically address the Second Amendment, they are irrelevant. As I said in my previous response, there are only five cases other than the Heller-McDonald cases that specifically addressed the Second Amendment:
United States v. Cruikshank, 92 U.S. 542 (1875), Presser v. Illinois, 116 U.S. 252 (1886), Miller v. Texas, 153 U.S. 535 (1894), Robertson v. Baldwin, 165 U.S. 275 (1897), and United States v. Miller, 307 U.S. 174 (1939).
Otherwise, what you are talking about is called dicta in legal language, which is any statement by a court that extends beyond the issue before the court.
Presser v. Illinois goes against your proposition since it dealt with paramilitary training and found that the Second Amendment to the United States Constitution limited only the power of Congress and the national government to control firearms, not that of the state.
You failed to answer my question about Verdugo-Urquidez--the case concerned search and seizure of a Mexican Citizen in Mexico and the court held that the Fourth Amendment did not apply to non-citizens outside of the US.
Scott v. Sandford, AKA Dred Scott related to a runaway slave. The fact that he was a slave meant that he was property and had no rights.
Roe v. Wade. 1973, Planned Parenthood v. Casey. 1992 both address the issue of abortion, not the Second Amendment.
Logan v. United States, 144 U.S. 263 (1892) concerned conspiracy to deny prisoners protection when in custody, and whether there was federal jurisdiction under the Fourteenth Amendment to enforce the prisoners' rights.
Trono v. United States, 199 U.S. 521 (1905) concerned the protection against double jeopardy during a period when the Philippine Islands were a U.S. territory.
Twining v. New Jersey, 211 U.S. 78 (1908) concerned self-incrimination in a state court and whether the Fourteenth Amendment made the Fifth Amendment enforceable against State infringement.
Konigsberg v. State Bar, 366 U.S. 36, 49 n.10 (1961) concerned an applicant to the California Bar who refused to answer questions about Communist affiliations.
The only volumes that these cases speak is that you have no idea of what you are talking about.
Dicta does not form a necessary part of the court's decision and cannot be used as authority.
If you are a law student, I strongly suggest that you quit as you are wasting your time.
In fact, I think you may be a first year law student who has been a first year law student for the past three years.
Take my advice and give up now.
I should add for the reader's edification, that one of the tricks of the pseudo-scholar is to find a case, no matter how irrelevant to the Second Amendment, which mention that Amendment to use as authority.
ReplyDeleteUsually, these cases are so irrelevant to the Second Amendment as to make the argument absurd. These comments are called dicta in legal language, which is any statement by a court that extends beyond the issue before the court.
Dicta does not form a necessary part of the court's decision and cannot be used as authority.
This is probably a bit mean of me, but the thought which crossed my mind was.....are this commenter's initials by any chance MikeW?
ReplyDeleteI'm not a lawyer, I don't play on one TV, I don't pretend to practice law, but sheeesh, I'm certainly a better researcher than Anonymous, and apparently I even the understand the law more clearly as well -- all without attending law school.
I could follow Laci's arguments easily; why can't you?
Laci's right; give it up, you have no talent for this apparently.
"Laci's right; give it up, you have no talent for this apparently."
ReplyDeleteI would say based on the latest rulings by the Supreme Court in Heller and McDonald that Laci is wrong. Of course her opinion is that the Supreme Court is wrong, but I am gonna go with the Supreme Court on what is currently lawful and what is not.
Jim, I think you are well aware that Laci is male. I object to you using false gender references to insult someone here. If you continue, I will delete those comments.
ReplyDeleteJim wrote:"Of course her opinion is that the Supreme Court is wrong, but I am gonna go with the Supreme Court on what is currently lawful and what is not."
Yes, the supreme court decisions are the law of the land for the time they are in effect. Does that mean however that you have no objections whatsoever to oh, say Roe v. Wade? You support that decision, do you?
And do you believe that Dredd Scott was correct, at the time, and that by inference, then, that there was nothing wrong with people being property?
How about that nineteenth amendment; was it a good thing as well as a legal status that women were not allowed to vote, prior to that amendment?
You are improperly conflating legal with correct. And you are doing it badly; your argument fails.
Ah, Jim, you are entitled to your opinion.
ReplyDeleteBut Constitutional law is like a lava flow there are some times that it is solid and other times when it is fluid.
Heller-McDonald brought forth a split decision in which one side came up with a novel interpretation of that right, and the other side followed the Civic Right interpretation.
Unfortunately, Miller was a unanimous decision which used the civic right interpretation.
My opinion is that there is only one definite interpetation of the Second Amendment that makes sense and is legally and historically accurate.
I give reasons for that, which you do not address. In fact, it is hard to attack my reasoning because it is legally solid.
On the other hand, the ridiculous interpreation now held by the court is ripe for attack.
You also neglect that Miller was overturned upon the shakiest of grounds. Additionally it is very limited in its scope.
Had the Supreme Court come out and said that the Civic Right interpretation was the correct one, there would have been a hew and cry from the "gun rights" camp.
On the other hand, Three years and more than 400 legal challenges later, courts — so far — have held that the Supreme Court’s ruling in Heller was narrow and limited, and that the Second Amendment does not interfere with the people’s right to enact legislation protecting families and communities from gun violence.
I think you will find, Jim, that my position is unassailable which is why you cold only refute it by stating your opinion.
Opinion is not fact.
Besides, people like you and FWM aren't my audience. It's people who are able to use my research to restore the Constitution. I know that my product has been seen by these people.
So, you just keep encouraging me to keep on writing.
You can't silence the truth no matter how hard you try.
"Opinion is not fact."
ReplyDeleteFact - the Supreme Court has ruled that the 2nd Amendment is an individual right.
Opinion - the ruling by the recent court is invalid.
Who is expressing a fact in these discussions and who is expressing an opinion?
Laci - in your legal opinion, does the current law of the United States hold that the 2nd Amendment provides for an individual right or a collective civic right?
ReplyDeleteJim, did you read the Sandidge v. United States, 520 A.2d 1057 (D.C. 1987) decision that I posted?
ReplyDeleteThere is very good legal reason for a court to follow the Civic Right interpretation and attack the Heller-McDonald decisions.
If you have read and understood my posts, you would know a good portion of them.
The United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), followed the Civic right interpretation.
Likewise, Justice Stevens's dissent in Heller, which was joined by four other justices, followed the Civic right interpretation.
All that is needed is for a judge, or two, or three, or more, to start saying Justice Stevens was correct and the Majority should not have ignored US v. Miller for it to be overturned.
The folks who run The American Legislative Exchange Council (ALEC) would be very happy for you single issue voters to use this as a litmus test for who you decide to support in coming elections.
BTW, the NRA is a major operator in ALEC.
Think about that.
Laci - that did not really answer my question on what the current US Law states about the 2nd Amendment. Can you clarify what your legal opinion is of the current status of the 2nd Amendment?
ReplyDeleteAsked and answered.
ReplyDeleteBut, as simply as possible, Heller-McDonald took settled law and upset it.
In 1934, Congress enacted the National Firearms Act, the first major federal firearms law. The Miller Court said in upholding a conviction under that Act, the Supreme Court held that, “[i]n 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.” Miller, 307 U. S., at 178.
The view of the Amendment That the Supreme Court took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.
Since the Miller decision, hundreds of judges have relied on the view of the Amendment the Supreme court expounded upon. The Court affirmed it in again 1980 in Lewis v. United States, 445 U. S. 55 , n. 8 (1980). No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons.
Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage for Congress to regulate firearms, rather than limit their ability to do so.
Heller-McDonald is ripe for attack and does not withstand legal and historic scrutiny.
Verstaste?
Laci - can you simply not type what the current law of the United States says in regard to the 2nd Amendment? I understand that you like previous interpretations of past courts, but I am more concerned with the truth of the here and now. Come on, you can do it... According to current Supreme Court decisions, what is the current lawful interpretation of the 2nd Amendment in regards to it being an individual right?
ReplyDeleteASKED AND ANSWERED
ReplyDeleteJim, you are failing to understand, since I am being quite clear.
Please think over my response and better rephase the question rather than repeat since since I have properly answered you.
Miller v. US --unanimous court holding the Civic Right interpretation of the Second Amendment.
Heller-McDonald 5 Justices change the law to allow for registered firearms to be kept in the home and 4 follow the Civic Right interpretation.
This unsettles the law with both viewpoints being legally valid.
Exact holding from Heller:
hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
I believe McDonald was also allowed to register a handgun.
The Heller-McDonald holdings as they stand are extremely limited the protected class to “law-abiding, responsible citizens” being able to keep fireams in the home.
I do not see the "Second Amendment" protections being broadened.
As I have said, the position expoused by Heller-McDonald is untenable and ripe for attack.
Once again, In case you missed it-–here is the Heller-McDonald language relating to regulation of firearms:
ReplyDeleteLike most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Heller at 54-5
Which has as a footnote (26):
We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
Better yet:
But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Heller at 64
From McDonald:
It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40
The only thing off the table is anything that purports to be a ban. Which leads to my question: had Chicago theoretically allowed for registrations (as does New York City) since that is not an “absolute prohibition”– would the law have passed constitutional muster? After all, NYC’s law has been around for 99 years: doesn’t that count as a longstanding regulatory measure?
As I said, the Civic Right interpretation is the only one that makes sense in the long run.
"Miller v. US --unanimous court holding the Civic Right interpretation of the Second Amendment."
ReplyDeleteNot according to Heller. According to Heller, the interpretation had never been defined by the Supreme Court and it was the majority's opinion that the 2nd Amendment guaranteed an individual right. Yes they did say it could be regulated, but they specifically state that it is an individual right. Therefore as far as current law goes in the U.S. the 2nd Amendment does in fact guarantee an individual right.
There is no need to cite previous court decisions as the most recent decision is what matters. Come back when you have a decision by the Supreme Court after the Heller decision that says otherwise.
Reread previous comments.
ReplyDeleteAlthough, I do have a question for you Jim--How can you say that a 5-4 split decision is settled law?
Especially when the previous decision was unanimous?
You are ignoring quite a bit of legal details here.
Jim, I just did a text search of the Miller decision.
ReplyDeleteNo where do I see that the Court says that the right is an individual one.
Have you actually read the Miller Decision?
BTW, Miller references Aymette v. State, 2 Humphreys (Tenn.) 154, 158 which says:
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. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." 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.
Comments?
I said it is settled law until the next Supreme Court decision says otherwise. The only law that matters is what the law says now. For instance, you can't claim that Slavery is legal now because it was once legal in America. The law changed and the courts ruled and now we stand where we stand.
ReplyDeleteHowever, if the law was to be re-written to authorize slavery, then that would be the law until a court ruled otherwise (not that this would ever happen). The same can be said for abortion or any other controversial subject. The law is the law until someone with the authority changes it - be it Congress writing new laws or the Courts deciding laws are constitutional or not.
The vote on any given decision does not have any bearing on the legality of that decision be it 9-0, 8-1, 7-2, 6-3, or 5-4 it is still the judgement of the court and it is binding.
Quotes from the majority opinion in Heller:
ReplyDelete"We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."
"Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment . We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed "
"There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms."
"We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights."
Regarding the Miller decision, Heller says this:
"And what is, according to Justice Stevens, the holding of Miller that demands such obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.” Post, at 2.
Nothing so clearly demonstrates the weakness of Justice Stevens’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for … military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] 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.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “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.” Ibid. Beyond that, the opinion provided no explanation of the content of the right.
This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen."
You can say what you want.
ReplyDeleteAs it was a settled Law prior to Heller that:
We agree with numerous other courts that "the Second Amendment guarantees a collective rather than an individual right." 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); accord Stevens v. United States, 440 F.2d 144, 149 (6th Cir.1971); United States v. Kozerski, 518 F.Supp. 1082, 1090 (D.N.H.1981), aff'd mem., 740 F.2d 952 (1st Cir.), cert. denied, 469 U.S. 842, 105 S.Ct. 147, 83 L.Ed.2d 86 (1984); Annot. 37 A.L.R.Fed. 696, 706 (1978) (citing cases). That is to say, it protects a state's right to raise and regulate a militia by prohibiting Congress from enacting legislation that will interfere with that right. The second amendment says nothing that would prohibit a state (or the legislature for the District of Columbia) from restricting the use or possession of weapons in derogation of the government's own right to enroll a body of militiamen "bearing arms supplied by themselves" as in bygone days. United States v. Miller, 307 U.S. 174, 179, 59 S.Ct. 816, 818, 83 L.Ed. 1206 (1939). In sum, "[t]he right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights the people may have depend upon local legislation...." Cases v. United States, 131 F.2d 916, 921 (1st Cir.1942), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943). Sandidge v. United States, 520 A.2d 1057 (D.C. 1987).
End part 1
I trust you are familiar with US v. Miller, 307 U.S. 174 (1939).
ReplyDeleteAt the end of the decision it says:
MR. JUSTICE DOUGLAS took no part in the consideration or decision of this cause.
That refers to Justice WIlliam O. Douglas who had just joined the court at the time the decision had argued. In a later case, Adams v. Williams, 407 U.S 143(1972) Justice Douglas said at 150 -51:
The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, "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."
There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.
The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id. at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."
The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be [p151] secured through the Militia -- civilians primarily, soldiers on occasion.
Id. at 178-179.
Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment.
Please state why the is the longest-serving justice in the history of the Supreme Court With a term lasting 36 years and 209 days who happened to be a member of the Miller Court would not have a better understanding of US v. Miller than you do?
Additionally, I would ask that you not lecture me on legal matters.
"As it was a settled Law prior to Heller that:"
ReplyDeleteI agree that prior to Heller that was settled law... then Heller changed it.
"Additionally, I would ask that you not lecture me on legal matters."
I am not lecturing you on legal matters, I was quoting from the text of the majority decision in Heller. I find it hard to believe that you scanned the text and could not find the references by the majority decision that referred to the individual right... are you sure you looked in the majority decision and not the minority?
Jim, your comments from Heller deonstrate that you do not understand either that decision or Miller.
ReplyDeleteI gave you the opinion of Justice Douglas who was a member of the Miller Court who directly contradicts the Majority's reading of Miller.
Additionally, I have given you quotes from Miller which contradict the Majority's reading of that decisions.
Namely:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces (The Article I, Section 8, clause 15 & 16 Militias), the declaration and guarantee (both parts) of the Second Amendment were made. It must be interpreted and applied with that end in view.
The court misinterprets:
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, 2 Humphreys (Tenn.) 154, 158.
The contention that contention that Miller stands for the proposition that Congress may regulate only those classes of weapons which have no relationship to the militia i absurd. The Supreme Court "did not intend to formulate a general rule in Miller, but merely dealt with the facts of that case." Warin, 530 F.2d at 106 (citing Cases, 131 F.2d at 922). Given the destructive capabilities of modern weaponry, it is inconceivable and irrational to suggest that Congress may only regulate weapons which have no possible relationship to the common defense today "such as a flintlock musket or a matchlock harquebus."
I would also add that Miller uses the term Judicial Notice which is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted. This is done upon the request of the party seeking to have the fact at issue determined by the court. Matters admitted under judicial notice are accepted without being formally introduced by a witness or other rule of evidence, and even if one party wishes to lead evidence to the contrary.
Judicial notice is frequently used for the simplest, most obvious common sense facts, such as which day of the week corresponded to a particular calendar date.
The fact that McReynolds states that "it is not within judicial notice that this weapon is any part of the ordinary military equipment" demonstrates that the firearm was not the issue.
Had it have been, then it would have been entered into evidence that sawed off shotguns were used for the common defence.
See This for an explanation of Aymette
As I said, the Heller decision is on very shakey ground.
"Please state why the is the longest-serving justice in the history of the Supreme Court With a term lasting 36 years and 209 days who happened to be a member of the Miller Court would not have a better understanding of US v. Miller than you do? "
ReplyDeleteI do not claim a better understanding of US. vs Miller than Douglass. I am only saying what the current Supreme Court decideded. And in the end that is all that matters.
There is clearly a disconnect here, where the attempt to make a cogent explanation by Laci is not being understood. This is leaving us with an endless cycle of tedium, of repetitious asked and answered.
ReplyDeleteUntil we can dicover some way to bridge that disconnect, there is no point to continuing the discussion, on either side.
I looked in Miller, not Heller
ReplyDeleteThe majority decision is Heller is an absurdity for the many reasons I have already posted here.
I suggest that you reread them since I will not bother continuing with this.
You have enough information from me to try to get an idea of the point I am making.
"As I said, the Heller decision is on very shakey ground."
ReplyDeleteIt very well may be, but it is the current law of the land.
"I looked in Miller, not Heller"
ReplyDeleteWell Heller is the current decision that determines what the law says, so why would you look in Miller? Heller clarified what Miller said in the majority opinion written for the Heller case. Don't more recent decisions supercede past decisions in the US judicial system if they are dealing with the same legal issue?
Jim, I know you aren't reading my responses.
ReplyDeleteBoth you and FWM have said that the Individual Right interpretation was the common one, in particularly prior to Heller.
You have given me no solid evidence for that assertion.
Furthermore, I have posted enough information that you should be able to figure out what I am trying to tell you.
Keep reading until you get my point.
"Both you and FWM have said that the Individual Right interpretation was the common one, in particularly prior to Heller."
ReplyDeleteI did not claim that. I stated that was what was determined in the Heller decision and that an individual right was also determined to exist in the Heller decision. Since this is a valid ruling by the Supreme Court that has not been overturned by another ruling then that is what the law of the land is as of this date.
You could be right that every other court decided the 2nd Amendment was not an individual right. Who cares. That is not what the last Supreme Court decision decided and the latest decision is all that matters for now.
Dog Gone's right, it's become tedious.
ReplyDeleteHere's the answer. Just think about it. Forget about the law and the various rulings and your personal interpretations.
In 1795 the whole idea was to own a musket and other equipment in order to participate in the militia. What in the fucking hell does that have to do with us today?
Now, doesn't that simplify it?
Article one is mentioned, but aren't Amendments just that....they amend something already in the Constitution and add something to it. Several states wanted the actual Constitution changed PRIOR to it's ratification, but Madison said that it could not be and that is what Article V was for. So Madison agreed to add the Bill of Rights during the 1st Congress if the states would ratify the Constitution. The 2nd grants no right to any one. I believe that private gun ownership by the People was a given and understood right, which is why we were able to arm ourselves with the same types of weapons that the British had. The Founders distrusted a professional and standing army, which is why there is so much debate regarding the militia. But the 2nd amendment AMENDS the militia clause in Article I and RESTRICTS the government from infringing upon the Right of the People. Are "The People" in the 2nd Amend. different from "The People" in every other part of the Constitution? I think not. We are not Europe. We are Not Britain. We are Not Australia. We are The United States, whose Founders, within the Constitution that has served us for 238 years, RESTRICTS the Federal Government from infringing upon our Right to possess arms. The US is the only country in the world with that provision. And virtually ALL of our States contain that provision within their State Constitutions.
ReplyDelete