I support the Second Amendment as well--if you want to belong to a miliait set up under Article I, Section 8, clause 16 to exercise your right to keep and bear arms in order to eliminate the necessity of a standing army--I'm all for it!
In fact, I think abolishing the US military in order to have an obligation for universal militia duty is a super idea.
Otherwise, forget it.
Nowhere in the Second Amendment is the personal use of firearms mentioned (see state analogues for examples of this).
@ Laci The Dog. The limitation you suggest (that the individual right is limited to persons enrolled in an Article I, Sec 8, Cl 16 militia) is totally illusory and provides absolutely no protection from the evils imagined by the framers of the 2nd Amendment. Do you believe the framers intended that the 2nd provide absolutely substantive protections?
Exactly what do you mean by "provides absolutely no protection from the evils imagined by the framers of the 2nd Amendment. Do you really think modern-day gun ownership does?
First you must know what the framers feared in connection with the Article I, Sec 8, Cl 15-16. I can provide supporting evidence for this if you wish, but I will merely list the 3 major concerns:
1.) That because Article I, Sec 8, Cl 16 gives the Feds the power to provide for the arming of the militia it implies the converse power, the power to disarm the militia. Further, that even if the Feds did not actively disarm the militia, they may negligently fail to provide for the adequate arming of the militia through benign negligence.
2.) That because Article I, Sec 8, Cl 16 gives the Feds the power to provide for the organization of the militia, they may create a "select militia" which does not represent the whole body of the people (a militia was somewhat analogous to a "jury of your peers" and they were afraid of "jury stacking" where certain persons are excluded in order to obtain a favorable result).
3.) That because Article I, Sec. 8, Cl 15 allows the feds to call the militia up for federal service and deploy them outside of the state, this may leave the state defenseless.
Does the 2nd prevent any of these expressed fears from occuring? The answer is no. In fact the 2nd does not prevent the feds from disarming the well regulated militia, as they do it all the time. I could easily point out that the feds take away the firearms of members of the militia when they are not actively "bearing" them during training. They require them to turn them in where they are stored in an armory. Thus, there is clearly not a right of members of the militia to "keep arms". You would probably belittle such argument, so I will provide another... During Gulf War II, shortages of equipment led the feds to disarm whole units of the National Guard as they were rotated out so that they could adequately equip National Guard units that were being rotated in. Is this a violation of the 2nd in your view?
Does the 2nd Amend require the federal government to adequately arm the militia? In other words, can a court require the federal government to expend a certain amount of money to arm the militia? How would a court determine how much the feds have to spend? I can assure you that no court case has ever made such an opinion.
Can the feds exclude persons from the well regulated militia? Indeed they can. The original militia act of 1792 only provided for "free white males" to be in the militia? Massachusetts in the 1850s tried to enroll free blacks in the militia, they federal law was held to prevent Massachusetts from doing so. A more modern example would be the application of "don't ask, don't tell". If this is a violation of the 2nd, I find it odd that all of the court challenges to same by the ACLU and other high powered legal talent never even included the 2nd as a legal argument.
Does the 2nd prevent the feds from calling up the militia and sending them out of state? Absolutely not. In fact in April 1917, the feds totally destroyed the well regulated militia by the simple expediant of drafting them into the regular armed services and sending them to europe. When the states complained that they were now defenseless, the feds said basically "tough, you are on your own". This led to the a series of cases referred to as the Selective Service Cases, in which SCOTUS held that the feds have the power to complete destroy the well regulated milita... it was a unanimous decision.
So what does the 2nd protect?
You also ask "Do you really think modern-day gun ownership does?"
My answer is that the individual right to arms does and in fact has protected the well regulated militia from the evils imagined by the framers. I will allow you to respond to this post first before I expound further.
There is no "well regulated militia" today. That was an entity of the 18th century that shortly thereafter ceased to exist. Whatever you're talking about is like birds that have evolved from ancestor dinosaurs.
First, you did not answer my question, so I will ask again....
What does the 2nd protect? More specificaly, what would constitute a violation of same?
Second, SCOTUS disagrees with you. Maryland v. United States, 381 U.S. 41 (1965). In a unanimous decision of the US Supreme Court, it was held that the National Guard, when not called into federal service, was "the modern Militia reserved to the States by Art. I, § 8, cl. 15, 16, of the Constitution." See also, Perpich v. Department of Defense, 496 U.S. 334 (1990) holding that state defense organizations created pursuant 32 U.S.C. § 109(c) are also state militias reserved under Art. I, § 8, cl. 15, 16. This was a unanimous decision of SCOTUS, authored by Justice Stevens.
However, and even if we adopt your position, I do not recall any constitutional amendment which repeals the 2nd Amend. What you are really saying is that the 2nd should be repealed as a historic anachronism. I certainly do not have any problem with you advocating for such action. What I do have a problem with is your seeming conclusion that we can ignore parts of the Constitution we do not personally like.
Since you did not answer my question, I will reserve my answer to your question, which I deferred hereinabove, to wit:
"Do you really think modern-day gun ownership does?"
However, I think you would find my answer quite enlightening, as it provides the answer to just exactly how the 2nd Amend works to protect the well regulated militia from the evils envisioned by the framers.
State militias may be the justification for the amendment, but the right belongs to the people, not to the militias or the states. I don't recall giving notice to the government that I no longer want my right.
I agree with your assesment, but what many people do not understand or appreciate is just exactly how and why an individual right unconnected to membership in a well regulated militia provides that justification.
I have stated the necessity of the right on an individual basis in other posts. I have an inalienable right to life and liberty. When someone tries to deny my life or liberty and "peaceful" measures do not dissuade the aggressor, I have no other choice but to resort to force. If non-lethal force gets the job done, great. If not, then I have to escalate to lethal force.
Gun grabbers argue that firearms are not necessary because law enforcement personnel, pepper spray, tasers and stun guns are all that we need. That is simply not the truth as I have pointed out example after example where those methods are ineffective.
But that is simply a distraction. The problem in the end is that people who deny my right to bear arms are attempting to deny my right to property (firearms) by force. And that is a blatant attack on my liberty.
Your argument exists independent of the 2nd amend and is one I would employ to establish a right to arms under the 9th amendment (I would also throw in some quotes from Hobbes and Locke about self defense being the 1st law of nature and that it is a primary unalienable "life" interest).
What I am trying to do here is to explain how and why protecting the individual right to arms unrelated to any service in a well regulated militia is the only realistic method to protect the viability and continuation of a well regulated militia. In other words, to demonstrate why the two concepts are in fact related and are both found in the 2nd Amend.
Leagle eagle - ARE you an attorney? If so in what state(s) are you licensed to practice, and what specialty if any do you have in constitutional law or gun law?
Crunchy, you don't have a true right to execute someone who is doing something where a court would not be empowered to give a death sentence. That is just one of the reasons you don't and should not have a lethal weapon right.
You also don't have a right to a lethal weapon when so very often it doesn't protect anyone, but rather endangers the rest of us and yourself.
You like to give a great deal of emphasis to one aspect of possible gun use, but that is emphasizing a minor part of the total spectrum of gun ownership, both legal and illegal. You cannot succeed in your argument if you are honest enough to address the entire spectrum of the problem - and you and your guns ARE part of that larger problem.
IF you could not resolve a problem without lethal violence, you would have to do something else. THAT is preferable to the choices that so often are displayed here in comments, notably the incorrect identification of when it would be appropriate to shoot someone committing a crime.
We would have to do something else? That would be die, I suppose. If someone is attacking me right now, how are the police going to save my life? They do a remarkable job in general, but I care about my life in specific as well. We aren't claiming a right to execute someone. We claim a right to defend ourselves from violence--a right that includes lethal force, if that's what is required. This isn't a hunting license or a license to pop off rounds at random. It's a right to defend our lives.
You keep telling us that we're a part of the problem, but I've yet to see any good reason from you as to how that's the case. We aren't going about killing people, nor are we handing out guns to shady types, despite your best efforts to portray an elderly couple as a pair of dangerous thugs.
The problem of gun violence is a part of a larger problem of dangerous criminals out free. Put violent criminals away for longer, and the problem will diminish rapidly.
To answer your question, yes I am a lawyer and I am licensed to practice not only in my home state, but also all federal courts in my state, the US Circ Court of Appeals which has jurisdiction in my state and the United States Supreme Court where I authored an amicus brief on behalf of respondent in DC v Heller. I respectfully decline to provide further identifying information as that would easily lead an interested person to know exactly who I am.
However, you are quite free to disbelieve my CV as I do not rely upon my say so here. Everything I claim, I can back up with citations, all you need do is ask.
Perhaps you may wish to try to answer my question which I have asked several times and have as of yet not received a substantive reply? Yhat question again is this:
What does the 2nd protect? More specificaly, what would constitute a violation of same?
Leagle Eagle - thank you for your response. I do not wish you to identify yourself beyond what you have provided. Too many of us on the side of gun regulation have been on the receiving end of threats ourselves.
My understanding of the 2nd Amendment was that it addressed the right to arms for common defense versus a standing army. While I believe a property owner who otherwise complies with laws, including all state, federal, and local laws and ordinances, should be able to keep weapons, properly secured, on their premises, or places where they may legally shoot, such as gun ranges or hunting acreage, so long as they do so safely. Guns are property which because they are potentially deadly weapons, should be regulated accordingly.
The intention of the 2nd Amendment appears to have evolved into the later more correct premise of a right to safety that is expressed in the Universal Declaration of Human Rights and other documents it inspired, including international law. We are no longer a nation of pioneers with a frontier, we are no longer a nation where hunting is a necessity. It is a sport, a recreational activity. That was not true at the time of the ratification of the U.S. Constitution.
To presume that the founding fathers were either omniscient, or infallible is clearly an error, an exampl of filiopietistic thinking. Rather we have amended the constitution quite often; it is a living and changing document.
I would argue to you that there is sufficient abuse of the ownership of firearms to justify more stringent regulation and licensing, all of which are consistent with the Heller decision. I believe the 2nd Amendment was intended to recognize a right to safety, and addressed primarily a right to safety from organized attack by another state. It now should either be revised to reflet the change in thinking about rights to reflect a right to safety by law enforcement and a recognition that in fact we DO rely on standing armies, and to stipulate that a right to lethal weapons is not in fact an absolute right or any of the other gibberish that is often offered in support of unlimited and unfettered access to guns.
I would argue that to the extent that tens of thousands of people die every year, especially innocent people, because the bullets in the gun of one person violated the life, liberty and pursuit of others, that the 2nd Amendment should recognize the rights of those innocent people to be free of the guns of others to an extent that it does not currently explicitly state -but should. We are no longer even remotely like the 18th or 19th century society that produced the old 2nd amendment, nor are our weapons the same either. It should be updated to reflect those changes. The first amendment should be updated to reflect the addition of the internet and other modern media.
dog gone- let me preface my remarks by saying that the 2nd amendment is a hot button issue for many on both sides of the debate and the threats you describe are not one sided as I have been subject to such on some forums. Thankfully, I believe that the vast majority of these are hyperbole buttressed by the anonymity offered by the internet. Oft times we focus on the attacks upon us and our allies and ignore similar attacks made by our allies and addressed to our competition, thus our perception is that the other side is the threatening enemy wile our side is nothing but angels.
you write: "My understanding of the 2nd Amendment was that it addressed the right to arms for common defense versus a standing army."
That is part of it. Many of the framers feared a standing army because a standing army of the day was more akin to what we describe today as a mercenary force who owed their allegiance primarily to whomever provided them with a paycheck. Imagine if you will the uproar which would arise if the US decided to privatize our defense needs by disbanding our military and contracting it out to Blackwater. (We might save money and it might be more efficient!!–LOL)
In contrast to a standing army was the citizens militia, composed of our friends and neighbors who trained one weekend a month in order to become a "well regulated militia". We can trust these ordinary folks not to be used as an instrument of terror or oppression, for the simple reason that they would refuse to obey such orders.
The best analogy I can provide is that of a trial by jury. A jury composed of ordinary folks just like ourselves is seen as a barrier to over zealous prosecutors and judges. The jury will provide justice when the law offers none by engaging in what is called "jury nullification"... specifically ignoring the judges instructions when to do so would amount to a great injustice.
The framers also feared what they termed a "select militia", which did not reflect a true cross section of the people. Imagine if you will a neocon president who directs that membership in the National Guard shall be limited to members of the Tea Party. The analogy to the jury arises again... blacks excluded from juries, women excluded from juries. I hope you see my point.
To be brief, a jury serves a role as the peoples voice in the judicial branch of our government. The well regulated militia serves the role of the peoples voice in the military institutions of our government and that is why the framers cherished it.
I will let you think about that a bit before I address the other parts of your post.
LegalEagle, you spout twaddle. In fact,you spout the same twaddle as expoused by Scalia as his reason for ignoring what you term the preferatory clause, which is the reason for the law.
While that was the argument presented by the majority, that in no was#y makes it dispositive.
If you are truly aware of how this decision was written then you MUST be aware that the Minority dissented and followed the Civic right interpretation.
However, if you accept that this is the reason for the law and you are truly aware of how statutory interpretation worked at the time of the Adoption of the Second Amendment, then you know Ubi cessat ratio legis, cessat ipsa lex.
That is if the reason for the law no longer exists, then the law is no longer meaningful.
You also should know that if the law is silent on a topic, one cannot infer that it is covered.
Thus, in your ignorant way, you have proven my point.
So,even if you worked on one of the more silly argumented pro-Heller Briefs, you haven't really proven any serious knowledge of this topic.
In fact, even the source mostlikely to support your position, the Pennsylvania Dissent spends most of its time saying that the reasoning for the right to arms is to prevent standing armies.
Even worse, Legal Eagle you provide that was the reason, yet you go further an promote the revisionist intepretation of the Second Amendment.
If you cannot name which amicus brief you worked upon, I will assume it is one of the sillier argumed briefs.
Even if it was not one of the sillier argued briefs,to try to say that the Second Amendment has nothing to do with the State Militias flies in the fact of any of the adopted texts.
If anything, "LeaglEagle" if you have that you can tolerate poor precendent being introduced into the law, which shows me that you have no respect or knowledge of how law should be practised--no matter what court you may or may not be admitted to practise before.
If anything,LegalEagle, you are a demonstration of how poorly the American Legal system works to produce a surfeit of lawyers who have no idea of how the law works.
Hello Laci The Dog I wish you would cease with insults and instead provide substantive argument backed up by citations. As it is, we have merely your ramblings of your unsupported opinion... so lets take a look
You write: In fact, you spout the same twaddle as expoused by Scalia as his reason for ignoring what you term the preferatory clause, which is the reason for the law.
What you call “twaddle” is also espoused by Stevens in his dissent:
“A well regulated Militia, being necessary to the security of a free State” The preamble to the Second Amendment... “ Slip Opinion, DC V Heller, Stevens Dissent at pg 5.
So is it your opinion that Stevens was also espousing “twaddle”?
You write: “If you are truly aware of how this decision was written then you MUST be aware that the Minority dissented and followed the Civic right interpretation.”
Ahhh, the theory espoused by the esteemed Saul Cornell. However, your analysis is incorrect. Stevens, like you, did not explain how his version of the 2nd Amend actually worked to preserve and protect the well regulated militia. Since you are seemingly familiar with Professor Cornell’s theory, perhaps you might enlighten us on how a non lawyer historian financed by the Joyce Foundation explains exactly how the 2nd works and tell us how Cornell, with a straight face, requires governmental intervention in order for the right to arise at all, thereby creating a completely illusory right which does not protect the well regulated militia from the evils envisioned by the framers of the 2nd Amend in any manner shape or form. Essentially, his argument is that if there is a "well regulated militia" then individuals have a right-duty to serve in said well regulated militia, but if government does not set up such a militia, the right does not exist. Which theory is quite interesting except for the fact that the Militia Act of 1792 only allowed free white males to serve and when Massachusetts tried to include free blacks in their militia during the 1850's, they were quickly informed that federal law preempted the area and Massachusetts could do no such thing.
You write: “However, if you accept that this is the reason for the law and you are truly aware of how statutory interpretation worked at the time of the Adoption of the Second Amendment, then you know Ubi cessat ratio legis, cessat ipsa lex.
The legal maxim “where the reason of the law ceasing, the law itself ceases” is a very interesting argument. However, one who can quote that legal maxim should also know that it applies only to common law and case law and does not apply to constitutional law or statutory law, since the constitutional provision or the statute continues to exist until it is repealed. The primary application of that maxim today is where a court has previously issued an injunction but the reason for the injunction has subsequently disappeared and thus the injunction itself disappears. Broom, Max159; 4 co. 38; Appeal of Cummings, 11 Pa. 273; Nice’s Appeal, 54 Pa 201. But I bet you wowed a lot of people with that one, though, GOOD JOB!
You write: “You also should know that if the law is silent on a topic, one cannot infer that it is covered.”
Correct. In this case the law is not silent on the issue, so your point is what?
You write: "In fact, even the source mostlikely to support your position, the Pennsylvania Dissent spends most of its time saying that the reasoning for the right to arms is to prevent standing armies."
Yet the amendment proffered by said Pennsylvania dissent clearly protects the private use of arms. So your point is what exactly?
You write: “Even worse, Legal Eagle you provide that was the reason, yet you go further an promote the revisionist intepretation of the Second Amendment.”
Such revisionist interpretation as espoused by St George Tucker in Tuckers Blackstone:
“This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.” Tucker's Blackstone, 1803
You write: “Even if it was not one of the sillier argued briefs,to try to say that the Second Amendment has nothing to do with the State Militias flies in the fact of any of the adopted texts.”
Obviously you have not read what I wrote. The purpose of the 2nd Amend is to protect the well regulated militia, the methodology employed to protect the well regulated militia from the evils envisioned by the framers is to preserve from infringement a preexisting right to arms for individual purposes... Or, in the words of Laurence Tribe, the foremost liberal scholar on Constitutional Law and Professor of Constitutional Law at Harvard Law:
"[The Second Amendment's] central purpose is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes--not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons--a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by § 1 of the Fourteenth Amendment against state or local government action. (Laurence H. Tribe, 1 American Constitutional Law 902 n.221 [3d ed. 2000]"
So will you now tell us how exactly your version of the 2nd Amend works and what would constitute a violation thereof, or will you continue to resort to unsupported argument interlaced with insult and ad homs?
Laci keeps quoting that saying, but he has yet to show how it is a part of U.S. law. As far as I can tell, it comes from a mediaeval legal theorist, and thus may be interesting, but only as relevant as de Vattel.
Once again, Greg demonstrates that his ignorance knows no bounds.
All this is mentioned in Blackstone's Commentaries:
The citation from Blackstone regarding the “proeme, or preamble” is part of a larger section that consists of “observations concerning the interpretation of laws.” 1 Blackstone at *58. One of those “observations” was: “BUT, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewise to cease with it.” 1 Blackstone at *61.
Blackstone refers to this “when the reason ceases, the law ought to cease” principle several times in the Commentaries, which would seem to indicate that he considered it a fairly important interpretive principle. 2 Blackstone at *390-91 (discussing property interests in tame and domestic animals and noting “But here the reasons of the general rule cease, and ‘cessante ratione cessat et ipsa lex‘ [The reason of the law ceasing, the law itself also ceases]“), 3 Blackstone at *219 (discussing the law of nuisance, and noting “But, where the reason ceases, the law also ceases with it : therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water.”), 4 Blackstone at *3 (noting that some aspects of Britain’s criminal law “seem to want revision and amendment” and explaining that “These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the resons have ceased upon which those rules were founded . . . “), 4 Blackstone at *81 (discussing the law of treason, and noting that the “plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and therefore, when this reason ceases, the law ceases with it . . .”), 4 Blackstone at *330 (discussing the plea of a former attainder, and noting “But to this general rule however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex.”).
Some of these seem to refer to common-law decision making, but he also applies this principle to statutes.
Which means that if the “cause/reason” for the Second Amendment was the “well-regulated militia”, then it could be argued that when that reason ceased, the law ought likewise to cease with it.
Too bad, Greg is ignorant of the fact that Blackstone is mentioned as being highly influential upon US Juristpursdence.
In fact, since Blacstone commentaries were rather inexpensive and wide published, they were used for legal training in the US.
So, if you want to argue that Blackstone is "only as relevant as de Vattel", you have your work cut out for you, Greg.
I strongly suggest tha you keep your ignorqance to yourself in future.
When copying and pasting from the internet, it is prudent to either cite your source or provide a link. In this case from someone identifying themselves as "MILF Avenue" (not verified) April 8, 2009.
MILF Avenue wrote: "2 Blackstone at *390-91 (discussing property interests in tame and domestic animals and noting “But here the reasons of the general rule cease, and ‘cessante ratione cessat et ipsa lex‘ [The reason of the law ceasing, the law itself also ceases]“)"
Common Law rule which provides that the owner of a domestic animal owns the offspring of same and discussing the exception to the common law rule involving swans which splits the ownership of the offspring because the male and female swan are actively involved in the upbringing of the offspring and mate for life. The reason for the common law rule was that the use of the female would be lost to the owner during the pregnacy and upbringing and there was no sure way to identify the male parent. Thus ‘cessante ratione cessat et ipsa lex‘
MILF Avenue wrote: 3 Blackstone at *219 (discussing the law of nuisance,
Dealing with the common law interference with incorporeal hereditaments, not statutes.
MILF Avenue wrote: "4 Blackstone at *3 (noting that some aspects of Britain’s criminal law “seem to want revision and amendment”
And lamenting that parliament should revise and/or repeal them ... "These have chiefly arisen from too scrupulous an adherence to some rules of the ancient common law, when the reasons have ceased upon which those rules were founded; from not repealing such of the old penal laws as are either obsolete or absurd; and from too little care attention in framing and passing new ones." Obviously, if such rule applied to statutes, Blackstone would not be making this comment.
MILF Avenue wrote: "4 Blackstone at *81 (discussing the law of treason, and noting that the “plain intention of this law is to guard the blood royal
Which was treason at common law, having been handed down by feudal tradition. 1 Hal. P. C. 118. 1 Hawk. P. C. 38; 3 Inst. 9.
MILF Avenue wrote: "4 Blackstone at *330 (discussing the plea of a former attainder"
A common law plea... this particular plea deals with a common law concept of "civil death" which is the basis of the exclusion of voting rights to convicted felons and to the exclusion of 2nd Amend rights to convicted felons.
So, taking all the examples proffered by MILF Avenue, only one deals with statutes and in that case Blackstone is lamenting that parliament should adhere to the rule cessante ratione, cessat et ipsa lex and repeal or amend those laws.
MILF Avenue wrote: "Which means that if the “cause/reason” for the Second Amendment was the “well-regulated militia”, then it could be argued that when that reason ceased, the law ought likewise to cease with it."
Even if we assume arguendo that your analysis was correct, you have yet to demonstrate that the well regulated militia does not exist or that a need for one can not arise. In other words you are assuming facts not in evidence and those assumed fact are already disproven by the unanimous decisions of SCOTUS in Maryland and Perpich that I previously cited.
Laci The Dog writes: "In fact, since Blacstone commentaries were rather inexpensive and wide published, they were used for legal training in the US."
For once we are in agreement. Madison noted in a speech at the Virginia ratifying convention that "every man here has their copy of Blackstone". Blackstone was more influential in the US than in England.
Laci, your view is out of date. Dog Gone would point that out to you, if she weren't so stuck in her own biases. America has formed a new consensus on the Second Amendment.
To everyone,
1. I prefer what the rest of the world calls football to American football, so I couldn't care less about the Super Bowl.
2. Those two yahoos spent tens of millions of dollars to buy air time for that?
3. The idea that they support the Second Amendment is laughable. Name one action that either of them has done in support of gun rights.
4. Outside of their gun grabbing paradises and a few other places, they're nothing. They may win over a handful of silly mayors, but many states have preemption on gun laws, so that will accomplish nothing. Look at the race to get rid of local gun regulations in Florida, for example.
Heller specified that regulation is part of and consistent with the 2nd Amendment. These two men have advocated, and god less them, put their money where their beliefs are, to espouse the elimination of ILLEGAL guns, which is perfectly consistent with Heller and with the 2nd Amendment rights and with our human right to be safe from gun nuts like you who do stupid and dangerous things with your weapons, and who are careless, reckless, and negligent in checking out who you transfer them to.
To paraphrase a wonderful old comic strip, Pogo,"We have met the enemy and he is us" - or in this case, YOU.
Heller did not state that regulation is part of and consistent with the 2nd Amendment.
What they stated is that the 2nd, just like all other rights protected by the Constitution, is not unlimited and that laws restricting gun rights can be written which are not in violation of the 2nd Amend. A view I subscribe to.
mikeb wrote: "What were you saying before heller, that we were right?"
What I was saying before Heller is the same as I am saying after Heller, that the 2nd, just like all other rights protected by the Constitution, is not unlimited and that laws restricting gun rights can be written which are not in violation of the 2nd Amend. When the 2nd is treated just like every other right protected by the Constitution, my work will be done.
Question: Where in the Constitution for the united States is the authority for Congress to disarm the people? It seems clear to anyone that doesn't have a head filled with legal mumble jumble that the 2A is not granting a right but preserving and guaranteeing that right.
It's as Jeff Cooper once observed: In some parts of this country, anything not specifically allowed is forbidden, while in others, anything not specifically forbidden is allowed. We prefer the latter view, but the authors here prefer the former.
Yes, we read. "The right of the people to keep and bear arms shall not be infringed." Where is the limitation there? The well-regulated clause is the explanation for why the people in general need arms. The idea is that the people will then come to the militia with some notion of how to use guns.
I repeat, in my opinion, the 2A has absolutely no relevance in today's world, none. I believe eventually the recent and mistaken Supreme Court decisions will be reversed and the gun-rights folks will be forced to admit that I'm right.
Now, that doesn't mean all civilian guns will have to disappear. All it means is you'll have to stop hiding behind the irrelevant second amendment to justify your gun ownership. You'll probably have to live with stricter gun control laws and everybody will live happily ever after.
If the 2nd Amendment has no relevance today, please answer these simple questions: (1) What are the options for the people of southern Arizona who face drug smugglers alone? I have posted links in other threads that show local law enforcement is unable to protect local citizens and the federal government refuses to protect local citizens. (2) What are the options for the people of a large city when a riot breaks out such as the city of Los Angeles in the 1980s when the police left residents on their own for several days without police protection? (3) What are the options for citizens who effectively have no police protection, e.g. rural or isolated areas and areas where catastrophes cut-off citizens from police response? (4) What are the options for citizens who find themselves the subject of sudden attack from violent flash mobs or terrorist groups?
If you believe that the 2nd is an anachronism which has no relevance in today's world, the remedy is to amend the Constitution pursuant to Article V. You may not ignore it as long as it has not been modified by Constitutional Amendment.
You state that the recent decisions of SCOTUS were mistaken. In order to validly make such an argument, you must articulate exactly how the 2nd amend was intended to work and what exactly would constitute a violation of same and how such protections resolved the express fears of the framers of the 2nd concerning the well regulated militia.
Even if the Supreme Court reverses itself, something that I hope is unlikely, we won't admit that you're right. The Court cannot govern how we think and speak, unless they also throw out the First Amendment along with the Second.
But you need to understand that we aren't a one-trick pony. We're working in the states and in Congress too. How about you live happily with rights?
Lets start by having all those people who are victims of gun violence live happily. That means those tens of thousands who die from gun violence, the additional people who are injured by gun violence, especially children, and the many many more who are threatened and intimidated by gun violence. Don't forget the clumsy and unsafe accidental shootists in there as well.
WE are working as well, and time and trends are on our side, not yours.
You do repeatedly say that time is on your side, but you provide no evidence for that. I, on the other hand, provide you lots of evidence that things are going my way.
What doesn't get said in the articles describing shootings, but what I read between the lines in most of those stories is that the problem gun owners are a small percentage of the total gun owners in this country. They could be identified by their criminal records in many cases. If we were serious about punishing violent crime, while at the same time decriminalizing activities that should be treated as a public health matter (drug abuse) and also in educating our population, there would be far fewer shootings. My solution doesn't take away the rights of good gun owners. But my solution doesn't disarm private citizens, so you can't support it.
Legaleagle, in you last comment you didn't ask any questions and concluded with "Is my question so difficult to answer?"
Even some folks of your esteemed profession feel that the 2A is obsolete. The word "militia" does not mean what it did back then. It's that simple.
As far as "amending the Constitution," I'm not interested. I simply reject your attempts to justify gun ownership and especially concealed carry with the 2A.
Mikeb, My question is indeed contained in the post you are responding to. Here it is again:
"You state that the recent decisions of SCOTUS were mistaken. In order to validly make such an argument, you must articulate exactly how the 2nd amend was intended to work and what exactly would constitute a violation of same and how such protections resolved the express fears of the framers of the 2nd concerning the well regulated militia."
Quite simply, mikeb, it is easy to claim that the 2nd does not protect this or that and to assert my articulation of the 2nd is mistaken, but if you can not precisely state what the 2nd is and how it works and what would constitute a violation, your assertions of what the 2nd isn't are meaningless.
Regardless of whether you believe that the 2nd is obsolete or not, the fact is that it has not been repealed and therefore can not be ignored. I believe you reside in the UK? Well the UK believes that in certain circumstances the right to a jury trial is obsolete and has done away them in situations where the facts are too "complex" or where there is a threat of "jury intimidation". They also believe that the concept of double jeopardy is obsolete in certain circumstances where it would give rise to a gross injustice. In response to those claims, and because the UK has adopted a system of "parliamentry supremacy", they passed some laws which did away those nicities if certain criteria are establishe. We can not do that in the US. Our recourse is limited to amending the Constitution.
Finally, and from a legal standpoint, the term militia means the same thing it meant way back in 1789. My view is supported by 2 unanimous decisions of SCOTUS which I cited previously, to wit, Maryland and Perpich. You are of course entitled to disagree with said unanimous decisions (unless of course you feel that the 1st amend is also obsolete), however I must warn you that your unsupported opinion will never be cited by SCOTUS as authority.
Let me put it this way. The 2A was intended to protect the right of citizens of the new Republic to own weapons in order to be potential militia members if needed.
What in the hell does that have to do with you in the year 2012?
About the Supreme Court's decisions in Heller and McDonald, what were you saying before them? I'll bet you were saying the same thing, that the 2A guarantees an individual right. So, the "mistaken" decisions had no effect on your position. Am I right?
Hello mike, indeed the 2A is intended to protect the right of citizens to own weapons, so that they could be employed in a well regulated militia if necessary. This right is general in nature so as to actually encourage weapons ownership, not merely protect same. You see mike, in spite of this protection, it was likely that a percentage of persons who would be called upon to serve would not own arms. Yet in an emergency the militia could rely upon Grandpa Joe to lend the arms that he owns to his grandson Militiaman Bob. The militia really did not care if Militiaman Bob used his own arms, so long as Militiaman Bob had arms available to use in the well regulated militia. Further, the private ownership and private use of arms would insure that a good percentage of recruits would already have familiarity with arms and thus be further along the way to being part of a well regulated militia.
"[W]hereas, 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..." Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.
Thus, the best way to preserve and protect the well regulated militia is to insure that a preexisting right to arms for private purposes, including self defense was protected. The 2nd Amendment serves as a "carrot" to promote widespread ownership because "the great object is that all men be armed". Patrick Henry, Virginia Ratifying Convention, June 1788.
You ask what that has to do with 2012... I will again reiterate that this argument is irrelevant. The 2nd has not been repealed and until it is we may not violate it. Your recourse is found in Article V of the Constitution.
This is getting somewhat long so I shall respond to the other questions you presented in a future post.
The relevancy of the 2nd Amend and the well regulated militia. 20th Century examples:
1.) Te 2nd Amend to the rescue!!! On April 6, 1917 the US declared war on Germany and entered into World War I. Contemporaneously with the the declaration of war, the US effectively destroyed the well regulated militia by the expediant of drafting them en mass into the regular armed services and shipping them off to Europe. This caused quite a problem with the individual states who had relied upon the well regulated militia for their security. However their concerns were rejected. According to the U.S. War Department secretary, "It is up to the states to furnish their own protection." So how did the States respond? Well they set up Home Guard Units, organized at the County level and under the direction of the County Sheriff. There was yet another problem however.... due to a little ruckus which ended in 1865, there was this Federal law which prohibited the states from arming these companies:
"An armory and good drill ground have been provided, but the company is as yet without uniforms and guns. Inasmuch as the law is a Federal law and specifically states that the States will not furnish arms and uniforms, it seems to our people that equipment must either be furnished by the National Government or else purchased by the members of the Home Guard companies."
http://www.militarymuseum.org/CoalingaHG.html
What to do? What to do? Well what was done is that they employed private arms... and not merely those owned by the members of the Home Guard, but also from donations (including a certain well known rifle club) and some of the more wealthier members even went to their nearby gun store and purchased weapons for those who could not afford them to supplement the arming of the Home Guard. Some of the more famous units were the Cabrillo Rifles, a unit which formed in the San Diego area and took over responsibilities such as patrolling the San Diego docks:
"When the San Diego Rifle Club offered the use of its range at Ocean Beach to the Cabrillo Rifles, rifle and pistol practices were held on Sundays during 1917. Many of the members became fair marksmen and some even scored as sharpshooters.17 The 30-30 Winchester model was the preferred weapon of the Rifles, although members who owned other models could use them. Each member furnished his own gun and supplied his own ammunition. The official uniform consisted of an olive drab service hat with the letters "C R" on the front of the crown, light brown khaki shirt, outing coat, riding breeches, and canvas leggings. The hat and leggings were issued by the Cabrillo Rifles' commissary, and the rest furnished by the member himself."
The relevancy of the 2nd Amend in the 20th Century continued...
2.) The 2nd Amendment saves England!!!
After the fall of France and the miracle at Dunkirk in June 1940, Britain found itself short of arms for island defense, because most of their equipment was left on the beaches at Dunkirk. Britain could barely equip its professional forces and, as a result, the Home Guard was forced to drill with canes, umbrellas, spears, pikes, and clubs. When citizens could find a gun, it was generally a sporting shotgun ill suited for military use because of its short range and bulky ammunition. This was because in the immediate aftermath of WWI the UK passed a series of strict gun control laws. The avowed purpose of such laws was crime prevention, but most historians agree that the events occuring in Russia scared the bejabbers out of the Lords and Lordettes and the spector of the returning soldiers, trained in arms was just too much. Thus, civilain ownership of arms was quite limited
What to do? What to do?
This is what they did... the British government placed advertisements in American newspapers and in magazines such as The American Rifleman begging Americans to "Send A Gun to Defend a British Home and British civilians... faced with threat of invasion. desperately need arms for the defense of their homes." The ads pleaded for "Pistols, Rifles, Revolvers, Shotguns and Binoculars from American civilians who wish to answer the call and aid in defense of British homes and British Civilians."
In response to these pleas, generous American citizens donated over 120,000 privately owned firearms for the defense of the British Isles, including over 7,000 donated by a certain rifle club.
Prime Minister Winston Churchill's book "Their Finest Hour" details the arrival of the shipments. Churchill personally supervised the deliveries to ensure that they were sent on fast ships, and distributed first to Home Guard members in coastal zones. Churchill thought that the American donations were "entirely on a different level from anything we have transported across the Atlantic except for the Canadian division itself." Churchill warned an advisor that "the loss of these rifles and field-guns [if the transport ships were sunk by Nazi submarines] would be a disaster of the first order." He later recalled that "[w]hen the ships from America approached our shores with their priceless arms, special trains were waiting in all the ports to receive their cargoes." "The Home Guard in every county, in every town, in every village, sat up all through the night to receive them .... By the end of July we were an armed nation ... a lot of our men and some women had weapons in their hands." Winston S. Churchill, Their Finest Hour 237-38 (1949).
Example number 3 takes us to the 21st century... in my next post.
The 2nd Amend at work in the 21st century... This does not involve firearms per se, but another type of arm protected by the 2nd Amend, to wit personal body armor (an arm as that term is employed in the 2nd amend refers to anything that a man wears or takes in his hand to strike out or defend against another... Sir Edward Coke, Institutes of the Lawes of England).
3.) In the early statge of Gulf War II, there were serious shortages of vital equipment due to poor planning by the Pentagon. "Specifically, GAO cited shortages of batteries, tires, vehicle track shoes, body armor, meals ready to eat (MREs), Humvees with extra armor, and add-on armor kits for Humvees."
These shortages fell heavily upon units of the "well regulated militia" (National Guard) as the regular army was given top priority. The problem, of course, is that military procurement is notoriously slow, even when given an expidited priority. We are talking about at least a 6 month period in which our poor militiaman would be forced to wear Vietnam era flak jackets in lieu of the modern body armor available today. The lives of our troops are at stake!
What to do? What to do?
Well, the answer was the friends, relatives and spouses of our brave militia men went onto the private market and purchased modern body armor and sent it to their loved ones:
"Like many other U.S. service members in Iraq, her son was given a Vietnam-era flak jacket that cannot stop the type of weapons used today. It appears that parents across the country are now purchasers of body armor because of the failure of the military to supply soldiers with modern vests.... For many GIs, Iraq appears to be a strictly BYOB war - Bring Your Own Bulletproofs. "
Of course, some countries ban the civilian ownership of body armor and California tried to restrict ownership in the past, but because American civilians were able to purchase modern body armor, our boys started receiving them within weeks instead of months.
"The US army has promised to rush new body armour to Iraq by the end of this month after it emerged that tens of thousands of soldiers were sent to the front without the life-saving protective jackets. Parents of some of the troops have resorted to buying the jackets with their bullet-stopping ceramic inserts themselves and posting them to Iraq. The failure to equip ordinary soldiers properly has caused fury in Congress, where the shortfall in body armour has been contrasted with the generous allocations to other projects in this year's $379bn defence budget."
"In Australia, it is illegal to import body armour without prior authorization"
"Under British Columbia's Body Armour Control Act, it is illegal to possess body armour without a licence issued by the provincial government as of July 1, 2010."
"In European Union port and sale of ballistic vests and body armor are allowed in Europe, except protections that are developed under strict military specifications and/or for main military usage, shield above the level of protection NIJ 4, thus considered by the law as "armament materials" and forbidden to civilians"
Now days, alas, we hear collective tsk tsks from the British press about how armed Americans are. I have heard, though, that the riots of last year are causing some reconsideration about gun control there.
Reading tabloids again, like the disreputable and unrealiable Daily Mail Greg? You seem to have difficulty in discriminating between credible sources and those which are not, given your poor grasp of history.
Btw, the PBS series American Experience has been covering a variety of old west figures, such as Billy the Kid, General Custer and his last stand, Annie Oakley, etc.
So far, not one single mention of belt carrying firearms as a custom. I particularly looked for any about Billy the Kid. Nada, zip, it is all part of your modern gunloon delusions that you use to justify dangerous practices.
Are you still on about old photographs? You really expect a PBS program to discuss such techniques? But seriously, what can you tell us about the riots in England?
Where pray tell, greg, have you heard this? It obviously was not in the British media (well, perhaps the Daily Mail as Dog Gone points out).
Perhaps you read BNP material, Greg, are you showing your true colours here?
I think you will hear more disapproval from the general British public toward the concept of relaxed firearms laws than what you are claiming.
But, I have to concur with Dog Gone, since I am far more in contact with Britain than you are, Greg. I would truly appreciate knowing what segment of the Great British public advocates US style gun laws.
Is it the population of Colney Hatch?
I am sure you would have much in common with them.
Thank you for your feedback. I have argued exactly as you stated (via the 9th Amendment) in other posts on this blog.
I am also arguing right now about the 2nd Amendment directly in another post in MikeB's blog here: http://mikeb302000.blogspot.com/2012/02/second-amendment-and-concealed-carry.html
I am sure you will enjoy reading the comments and jumping in.
Or any other part of interpreting the U.S. Constitution? Would you agree that very few people have in fact read it, and that the support for the founding fathers having read it - versus having heard of it and being familiar with it - is sketchy at best?
Of more importance would be Dutch scholar, Hugo Grotius' "The Rights of War and Peace" and 17th century scholar Samuel Pufendorf, and his eight volume masterpiece, "Of the Law of Nature and Nations". However they both pale in comparison to Thomas Hobbes and John Locke, with Locke being considered the philosopher of the American Revolution and the inspiration for our form of government. The ideals of natural rights and the social contract lay the foundation for our form of government and should not be ignored, even if you do not subscribe to that philosophy... because it was the philosophy which inspired the Constitution itself. When both the Declaration of Independence and the Constitution parphrases the exact words of Locke, you can rest assured that the founding fathers were quite familiar with those works.
1) If something is explicitly metioned in a law, it is covered 2) if something is not explicitly mentioned in a law, it is not covered 3) If the reason for the law ceases--the law ceases (cessante ratione legis cessat ipsa lex,) 4) if the Second Amendment is to cover personal purposes, not address the militia--then it needs to be amended.
If you are turly someone with legal knowledge, then you must concede that I am offering correct legal method.
Even better response for you, LeagleEagle45, if you are going to concede that the "preferatory clause" provides the reason for the Second Amendment--why should the Amendment be reinterpreted, which is it since 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)
Given Justice Douglas actually was a member of the Court during the Miller decision, I trust his interpretation more than yours legalEalgle.
So, if the Sedcond Amendment has become meaningless, why should it be reintepreted along the lines you propose.
Isn't the proper method to amend the constitution?
"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."
Funny, the Miller case did not uphold "a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun." The Miller case said that they could not make that determination because there was insufficient evidence. Here is the holding:
"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."
But don't feel so bad, you probably have not read the case, right? There is no excuse for Stevens however. In his dissent he wrote:
"Upholding a conviction under that Act, this Court held that..." DC v Heller, Dissent of Stevens at page 2 of the slip opinion. Stevens obviously did not read Miller either since there was no conviction, the lower court had dismissed all charges based upon a demurrer filed by the defendants. Even a first year law student would not make that mistake.
But lets talk about Miller... First it was written by Justice McReynolds who was by most accounts the worst justice to ever sit on the bench of the Supreme Court. His opinion in Miller was so badly written that both sides of the 2nd Amendment, could, with a straight face, argue that it supports their position.
The pro 2nd Amend side claims that the case was weapons centric, the decision turned on whether the shotgun itself would be useful if employed in the service of the militia. If the shotgun would be useful, then the law would violate the 2nd Amend. Your side argues that the weapon must actually be related to service in a well regulated militia.
What is rarely discussed is the only case cited by Miller in support of its conclusion, to wit: Aymette v. State, 2 Humphreys (Tenn.) 154 (1840). So let's take a look at Amyette, OK?
The issue in Amyette was a law prohibiting the carrying of a concealed bowie knife. The defense claimed that the law violated the Tennesse Constitutional provision which read: "That the free white men of this State, have a right to keep and bear arms for their common defence."
The court in Aymette found that:
"so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin . These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution." Id.
As to those weapons which could be employed in a well regulated militia the court held: "The citizens have the unqualified right to keep the weapon, it being of the character before described, as being intended by this provision."
The Court concluded that a bowie knife being is a type of weapon which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin, the conviction was upheld. Id.
Laci wrote: "Given Justice Douglas actually was a member of the Court during the Miller decision, I trust his interpretation more than yours legalEalgle."
Well, since Mr. Justice Douglas took no part in the consideration or decision of the case your opinion is superfolous. You never read the Miller case, huh?
Your misunderstanding of my position is quite odd, Laci. I would think that one learned in the law would be more perceptive...
We both agree that the purpose of the 2nd Amendment is to protect the well regulated militia. That is where your analysis stops and you close your mind.
So listen carefully.. The METHODOLOGY employed to protect the well regulated militia was to preserve and protect a preexisting individual right to arms for personal purposes such as self defense. Or, in the words of the most influential LIBERAL Constitutional Law Scholar alive today:
"[The Second Amendment's] central purpose is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes--not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons--a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by § 1 of the Fourteenth Amendment against state or local government action." Laurence H. Tribe, 1 American Constitutional Law 902 n.221 [3d ed. 2000]
Read it over again, carefully, Laci, perhaps you might understand.
dog gone it is not a dependent clause, in fact it is not a clause at all. It is a declaratory phrase acting as a preamble to the operative phrase.
Try this:
"Professor Jones being ill today, class is canceled."
Now if you were a student of Professor Jones and you saw that posted on the classroom door, you would not attend class.... even if you saw Professor Jones driving to the beach with a surfboard on his car roof. Class is canceled regardless of whether the good professor is ill or playing hookey. The operative phrase is not limited by the declaratory phrase and even if you know Professor Jones is not ill, you can sit in that classroom all day long but class is still cancelled.
At St. John's College, we were expected to carry on class if our professor (called a tutor there) failed to appear. Sometimes, the ivory tower can be a pleasurable place to be.
Furthermore, "LegalEagle" if you know anything about these poor desicions, then you lknow that the right created (yes, created) is extremely limited and hardly anything to crow about.
As I said, I will assume that if you are not willing to name the Amicus Brief that you worked on that it was probably one of the ones with a preposterous legal argument.
Even if you were on the Catoi Institute funded brief, then you were making spurious arguments.
In short, you can come here and blather, but you will hardly persuade me of the truth of your cause.
I find that the arguments you make only prove my point by trying to ignore the reason for the Second Amendment and eliminate the actual historical basis for the Amendment, which was the prevention of the establlishment of a standing army.
Furthermore, you cannot disporcve my point without providing half truths and false arguments.
The civic right interpretation is based upon the proper legal interpretation and history of the Second Amendment in Anglo-American Jurisprudence.
Yet another question for you, LegalEagle--why is the concept of gun rights only found in US law if it was a fixture of Anglo-American History?
Laci, I'm still waiting for you to explain why the Second Amendment identifies "the people" as having the right to keep and bear arms. If the right was meant only for state militias, then why didn't it say that?
Laci The Dog-- I have responded to all relevant inquires by you in previous posts, but this one is interesting:
You wrote: "Yet another question for you, LegalEagle--why is the concept of gun rights only found in US law if it was a fixture of Anglo-American History?"
The answer to this argument is that our Constitution is the Supreme Law of the land. Our Bill of Rights may not be overturned by a mere statute as in the case of both Canada and the UK. The UK employs what is known as “parliamentary supremacy” which allows Parliament to override any right otherwise established by law or custom. Indeed, even the Magna Carta and the English Bill of Rights are subject to the express intervention of Parliament. Thoburn v Sunderland City Council, [2003] QB 151 (Div Ct).Similarly, Canada has the Canadian Charter of Rights and Freedoms. However, and unlike our Constitution, Section One contains the “reasonable limits” clause, which allows the government to limit an individual’s Charter rights. Additionally, the Charter contains what is known as the “notwithstanding clause” which allows the Canadian Parliament or any provincial parliament to override fundamental individual rights.
However, and prior to the intervention of “parliamentary supremacy”, there were a series of cases which interpreted the provision in the English Bill of Rights protecting the right to arms. Lets take a look:
The Game Acts did “not extend to prohibit a man from keeping a gun for his necessary defence." Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739). “[T]he mere having a gun was no offense . . . for a man may keep a gun for the defense of his house and family." Mallock v. Eastley, 87 Eng. Rep. 1370, 1374 (K.B. 1744). "[A] gun may be kept for the defense of a man’s house." Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752); accord, The King v. Thompson, 100 Eng. Rep. 10, 12 (K.B. 1787) (it is “not an offence to keep or use a gun”), and Rex v. Hartley, II Chitty 1178, 1183 (1782) (“a gun may be used for other purposes, as the protection of a man's house.”).
Some invented right........... I guess they forgot to tell the English judges of the 1700's about that invention, huh?
In either a democracy or a republic, (we are at times both since we vote on some things directly and do other government business through elected representatives)the government IS the people. The second amendment is the basis for laws like those which created conscription. Read up.
Unless you are a Republican who believes that corporations are people? The right seems to suffer chronic confusion on that topic.
Look at the Bill of Rights. "People" is used specifically in contrast to states or the United States. Or do you believe that the right of peaceable assembly only applies to meetings of the government? Does "people" in the Fourth Amendment only protect members of Congress?
I regard Citizens United as a bad decision, since corporations are decidedly not persons. At the same time, the government is not synonymous with the people in terms of the rights ennumerated in the first ten amendments to the Constitution.
You wrote: "The second amendment is the basis for laws like those which created conscription."
Then you must disagree with the unanimous decision of SCOTUS in The Selective Draft Law Cases, 245 U.S. 366 (1918). That case found the power for conscription to be founded upon Article I, Sec 8, Cl. 12 which gives Congress the power to "raise and support armies".
The entire Bill of Rights contains no grant of power to the federal government whatsoever. The preamble to the Bill of Rights, annexed to the proposals submitted to the states for ratification described them as "further declaratory and restrictive clauses".
How so, Mikeb? "Semantic bullshit" is the term used when someone wants to claim that the distinction between words has no meaning. Is that really what you want to do with the language of the Constitution?
Let me ask you Leagle Eagle, are you asserting that the one case you cite means that no other parts of the constitution have been addressed by either legal thought, or the SCOTUS?
I would argue to you that there have been other parts of the constitution that address the militia in the context of duty to defend the country - ie conscription.
There are other cases involving conscription, but The Selective Draft Law Cases, 245 U.S. 366 (1918) is the seminal case. Just as their are other cases on abortion, the seminal case is Roe v Wade.
There is no case which uses the 2nd Amend as a grant of power for the draft.
Leagle Eagle, I'm still waiting for you to identify where you obtained your law school degree, and to which of the many amicus briefs you contributed.
The 2nd Amendment relates to the provision for militias. I would refer you to the distinctions between a standing army and a sedentary force, and make note that militias were identified as an obligation, a duty, which was required of citizens. No militia ever existed without a militia ballot day or militia enrollment. Therefore, it represents a military style conscription, with the term conscription referring to (to use the definition of dictionary.com)
con·scrip·tion /kənˈskrɪpʃən/ Show Spelled[kuhn-skrip-shuhn] Show IPA noun 1. compulsory enrollment of persons for military or naval service; draft. Word Origin & History
conscription
late 14c., "a putting in writing," from M.Fr. conscription, from L. conscriptionem (nom. conscriptio) "a drawing up of a list, enrollment, a levying of soldiers," from conscribere "to enroll," from com- "with" + scribere "to write" (see script). The sense "compulsory enlistment
Are you denying that the 2nd Amendment requires military service? How is that not a FORM of conscription?
By the time of the decision you quoted, a standing army had replaced the militias of the earlier era, but the premise that the government could require military service continued FROM that earlier militia premise present in the 2nd Amendment.
It goes directly to the point Laci made about the 2nd Amendment, and the 3rd as MikeB noted, having become obsolete, superseded by other entities and practices.
To continue:http://constitution.org/mil/mil_act_1792.htm
which states: "That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, ... every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock...."
and I refer you to the wikipedia site on militias which states as to calling them up: "The entire able-bodied population of a community, town, county, or state, available to be called to arms. A subset of these who may be legally penalized for failing to respond to a call-up. A subset of these who actually respond to a call-up, regardless of legal obligation."
That means that the entire population could be required to provide service or be penalized - in other words drafted or conscripted.
Militias differ from standing armies only in that back to wikipedia: " In colonial era Anglo-American usage, militia service was distinguished from military service in that the latter was normally a commitment for a fixed period of time of at least a year, for a salary, whereas militia was only to meet a threat, or prepare to meet a threat, for periods of time expected to be short. Militia persons were normally expected to provide their own weapons, equipment, or supplies, although they may later be compensated for losses or expenditures.[43]
A related concept is the jury, which can be regarded as a specialized form of militia convened to render a verdict in a court proceeding (known as a petit jury or trial jury) or to investigate a public matter and render a presentment or indictment (grand jury).[44]"
Both jury and militia service are based on people being compelled to perform those civic duties, not only on volunteers, or on those who are hired, which is effectively what is done with soldiers in a volunteer army.
We no longer require militia soldiers to provide their own weapons for our current version of them - the National guard.
dog gone wrote: "Are you denying that the 2nd Amendment requires military service?"
Yes, I am denying that. The 2nd amend insures that if the state needs to form a well regulated militia, there will always be sufficient arms for use by the members of the militia, which members can be conscripted by the state or they may be volunteers. However, the 2nd Amend does not compel the state to do so nor is it the source of power to do so.
The "right-duty" concerning arms are two different sides of the same coin. The English origins of of the militia are traced to Alfred the Great in the late 800's AD. Blackstone's Commentaries, Vol. 2, Ch. 13, p. 409. They were organized in response to Viking raids. The Viking longboat presented a new problem in that its shallow draft allowed them to sail far upriver and attack almost anywhere at any time. Alfred's army could not be in all places at all times, so the solution was to organize the ordinary people and train them on a part time basis as a citizens militia. What followed over the course of several centuries, was a series of laws collectively referred to as the Assize of Arms, with the first being passed in 1181. This law required all freemen to have arms. The nature of the arms to be kept varied according to class. The more wealth you had, the more arms you must have... all for service in the militia. This was expanded by the Assize of Arms of 1252 which required all males over 15 to keep arms including bows. In the Assize of Arms of 1388 even non freemen (serfs) were required to have arms. Of course merely having a law does not insure compliance. Laws were passed to subsidize the price of arms so that more people could have them. People were encouraged to practice with arms by the holding of archery tournaments and the like. Private useage of arms was encouraged so as to develop the skills necessary in warfare... The result of all this hard work was the Battle of Agincourt where a numerically inferior English force defeated the French with the skill of 7,000 longbowmen.
This does not mean that all of these people were subject to service in the "well regulated militia". The development of such a skilled force required too much time away from their normal occupations. What developed was the creation of "trained bands", men chosen by lot for extensive training and they represented the primary strength of the militia. The remainder of the people were still required to have arms even though they were not part of a trained band.... they were still subject to being called into service in an emergency.
Together with the legal duty to have arms, the official encouragement to use arms gave rise to an expectation, a proto right if you will, that the arms that they were required to keep could be employed for all lawful private purposes, including self defense. When this expectation was infringed upon, it gave rise to a bloodless coup called the "Glorious Revolution"..
Following the restoration, and in 1671 Parliament passed a Game Act which provided that “person and persons, not having Lands and Tenements of the clear yearly value of One hundred pounds ... are ... not allowed to have or keep... any Guns. 22 & 23 Car. 2, ch. 25 (1671). The avowed purpose of the Game Act was to prevent illegal hunting, but the effect of the Act was to make the owning of firearms illegal for the vast majority of the population. The background tension involved was the perceived Catholic sympathies of the King. King James II then used the Game Act as a ruse to systematically disarm the protestant population, while at the same time creating a select militia, manned by his supporters, and officered by Catholics in order to insure the security of his throne (it is important to note that the object of the disarmament campaign was the private arms of individuals which would be employed in hunting during a more peaceful era, as the supposed purpose of the Act was to curtail illegal hunting). This and other abuses directly led to the “Glorious Revolution” and the accession of William and Mary to the throne. However, their accession was made conditional to their ratification of the English Bill of Rights, so as to guard against future similar abuses. 1 W.& M. st. 2. c. 2. Included within the English Bill of Rights was a specific right to arms, which reads:
"That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law"
How the bit about the English Bill of Rights fits into the discussion of the militia. The primary methodology employed to destroy the militia was not through the direct means of disarming members of the militia, but through a general disarming of the people at large. George Mason expressed exactly this view at the Virginia Ratifying Convention on June 14, 1788:
"Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them;" George Mason, 3 Elliot, Debates at 380.
George Mason was, of course, the primary drafter of the 2nd Amend.
Declaration of Taking Up Arms, Second Continental Congress (July 6, 1775) states as one of the reasons for taking up arms, the disarmament of the inhabitants of Boston:
"the Governor ordered the arms deposited as aforesaid, that they might be preserved for their owners, to be seized by a body of soldiers; detained the greatest part of the inhabitants in the town, and compelled the few who were permitted to retire to leave their most valuable effects behind." Id.
"They are not compellable to march out of their counties, unless in case of invasion or actual rebellion, nor in any case compellable to march out of the kingdom. They are to be exercisd at stated times: and their discipline in general is liberal easy; but, when drawn out into actual service, they are subject to the rigours of martial law, as necessary to keep them in order." 1 Blackstone 399-400.
The militia was a defensive force, not an offensive one. It could not under any circumstances be deployed outside of the country... that was the role of the army.
"WHEN the nation is engaged in a foreign war, more veteran troops and more regular discipline may perhaps be necessary, than can be expected from a mere militia. And therefore at such times particular provisions have been usually made for the raising of armies and the due regulation and discipline of the soldiery: which are to be looked upon only as temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom." Blackstone, Id.
However, such armies were distrusted.
"Charles the Second kept up about five thousand regular troops, by his own authority, for guards and garrisons; which king James the Second by degrees increased to no less than thirty thousand, all paid from his own civil list; it was made one of the articles of the bill of rights, that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law." Blackstone, Id.
Comparison with the US Constitution next. Continued...
"nor in any case compellable to march out of the kingdom"
Article I, Sec 8, cl 15: "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions"
This is a grant of power to call the militia into federal service for only the reasons provided.... not to fight wars in Iran, or Vietnam. To get around this problem, the US drafted the entire militia into the armed services in April of 1917. Thereafter, the US devised a scheme called "dual enlistment" whereby the National Guard is a hybrid militia nad regular armed forces. When not in federal service, they are a militia. When in Federal service they are part of the regular armed forces and can be shipped overseas.
"that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law."
"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years" Article I, Sec 8, cl 12.
It is simplistic to note that each term of Congress is calculated in 2 year terms. Thus each new Congress must authorize the expenditure of funds for the army.
"They are to be exercisd at stated times: and their discipline in general is liberal easy; but, when drawn out into actual service, they are subject to the rigours of martial law, as necessary to keep them in order."
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;"
Note the militia is only subject to military law when in actual service in time of war or public danger, otherwise, they are subject to civilian law. Not so with regular armed forces...
Greg writs:Yes, we read. "The right of the people to keep and bear arms shall not be infringed."
You may read, you may write, but you do both badly. There is no separate sentence beginning with THE right etc. Rather there is a dependent clause which if you diagramed it would clearly show it was based on the foundational clause preceding it. To try to read it as a separate sentence dishonestly -as you so often do - changes the meaning of the original.
Grammatically, the right of the people clause is the independent clause. The well-regulated militia clause is dependent. Here's another sentence that is structured exactly like the Second Amendment:
Fruit being necessary to a healthy diet, the right of the people to eat oranges shall not be infringed.
Notice that such a sentence declares a specific right: people get to eat oranges. It gives an explanation, but it isn't negated if people eat oranges because they enjoy citrus fruit; the sentence doesn't ban using oranges as flavoring in cakes or cocktails.
Grammatically, the independent clause can stand alone. If we ignore or cut off the dependent clause, the sentence remains a sentence. From a standpoint of logic, the right of the people clause does not depend on the well-regulated militia clause. The militia is the reason given, but the right is stated as being more than just for that one purpose.
"A well informed electorate, being necessary to a properly functioning democracy, the right of the people to keep and read publications shall not be infringed."
If we employ the rationale of those who deny that the 2nd protects a broad individual right, what we have is that the right is confined to actual voters and that the only publications that are protected are official governmental voting guides which may only be read by said voters while they are actually in the voting booth. However, in my view, a much broader based right is protected because it better serves the purposes of the right protected.
Greg, you ass. You don't know what Leagleagle's contribution to Heller was, therefore calling it good work is meaningless if you don't know what the work was, and you don't know if it was good.
Not that you'd recognize if it was good or not if it bit you in the parts you use to sit down.
As to thanking him, I'm betting he was compensated. There was quite a lot of right wing money thrown at the very poorly decided Heller decision.
I doubt that money is going to give that decision legs over time, though.
Although the material in this web site is pre-Heller, it provides some excellently reasoned legal thinking and research, and references the 2nd Amendment:
http://www.potowmack.org/conscri1.html
"Chief Justice White began his opinion by quoting the various military clauses in the Constitution. He then wrote:
As the mind cannot conceive an army without the men to compose it, on the race of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice...[I]t is said, the right to provide is not denied by calling for volunteer enlistments, but it does not and cannot include the power to exact enforced military duty by the citizen. This however but challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertions is in no substantial sense a power.(17) "
The quote you are using says nothing of the 2nd Amendment. In fact the entire opinion does not contain a single reference to the 2nd amendment, although it does mention the 1st, the 13th and the 14th. Here is a link to the actual opinion:
The unanimous opinion held that the power to raise armies found in Article I, Sec 8, cl 12 was sufficient to sustain the compulsory draft. Not the 2nd amend in any manner shape or form....
I think you do not understand the distinction between a militia and the regular armed forces. For you to understand the 2nd Amend, it is necessary for you to know this. For example, you will find this in the opinion:
"When the War of 1812 came, the result of these two forces composed the army to be relied upon by Congress to carry on the war. Either because it proved to be weak in numbers or because of insubordination developed among the forces called and manifested by their refusal to cross the border.."
The historical fact is that the Governors of some states specifically directed that their militia not cross the border into Canada. There is a legal reason for this. Do you know what it is?
The Bill of Rights makes a clear distinction among the terms, people, state, and United States. People refers to citizens; states are the former colonies that combined to form the new nation, and United States is the Federal government.
1. Am I correct in my understanding of those terms?
2. If so, how does "the people" refer to individual citizens in other amendments, but to the collective right of states and their militias in the Second?
If the Second Amendment was meant solely to arm state militias, why doesn't it state that explicitly? How can a right named as belonging to the people expire? If that right can expire, why can't any other named in the Bill of Rights?
Dog Gone and Laci, I'm not trying to be difficult here. I want real answers. I'd appreciate it if you'd take these questions seriously and not resort to personal attacks, instead of answering.
Greg, we've answered you until we're bored to tears. You need to do your own homework apparently to understand our answers, to have the background that provides context.
You might start with reading some moral philosophy more recent than the 17th and 18th century, even if it doesn't support what you want to hear or read.
Apparently, John Rawls isn't sufficiently modern for you, since you won't post the comment that I made about him. Your moderation policy creates a false impression of what is being said here.
I believe that implicit in the texts (either version) of the 2nd amendment, it stipulates a miliita.
"There are several versions of the text of the Second Amendment, each with slight capitalization and punctuation differences, found in the official documents surrounding the adoption of the Bill of Rights.[5] One version was passed by the Congress,[6] while another is found in the copies distributed to the States[7] and then ratified by them.
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 and authenticated by Thomas Jefferson, Secretary of State:
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.[8]"
I would argue that the 2nd Amendment is PART of the right of the federal and state governments to conscript people into their military forces, specifically addressing how they were to be armed for defense of the state, where clearly both the feds and the state were trying so far as possible to avoid the expense.
And that this was important in the constitution because of issues like the debt from the Revolution, rather than being about 'rights' in the sense that gun nuts try to use it now. This is born out by the language of the previously mentioned previously in the language of the Militia Act of 1792, and here, from a more libertarian source: (http://mises.org/journals/jls/15_4/15_4_2.pdf)
"The only U.S. war fought without conscripts before the Civil War was the Mexican War. American governments, state or national, drafted men not only to fight the Revolution and the War of 1812, but also to wage Indian wars and to suppress the Whiskey Rebellion. Because they employed decentralized militia drafts, however, this fact has often escaped notice. Military experts privy to the compulsory nature of the militia and the implications of such arcane phrases as “calling forth the militia” have failed to communicate their knowledge to outsiders. Indeed, the militia’s coercive elements lasted until they were discontinued during the Jacksonian era.3
You write: "I would argue that the 2nd Amendment is PART of the right of the federal and state governments to conscript people into their military forces"
You would be wrong. The whole of the Bill of Rights is a restriction on governmental power, not a grant of governmental power. The "preamble" to the Bill of Rights (which was included with the packet of documents transmitted to the states regarding ratification of the Bill of Rights, states as follows:
"Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution."
The key is this: "further declaratory and restrictive clauses should be added", not further powers granted.
The militia Act of 1792 bases its authority upon Article I, Sec 8, cl 15-16.... not the 2nd. Houston v. Moore, 18 U.S. 1 (1820).
I support the Second Amendment as well--if you want to belong to a miliait set up under Article I, Section 8, clause 16 to exercise your right to keep and bear arms in order to eliminate the necessity of a standing army--I'm all for it!
ReplyDeleteIn fact, I think abolishing the US military in order to have an obligation for universal militia duty is a super idea.
Otherwise, forget it.
Nowhere in the Second Amendment is the personal use of firearms mentioned (see state analogues for examples of this).
@ Laci The Dog. The limitation you suggest (that the individual right is limited to persons enrolled in an Article I, Sec 8, Cl 16 militia) is totally illusory and provides absolutely no protection from the evils imagined by the framers of the 2nd Amendment. Do you believe the framers intended that the 2nd provide absolutely substantive protections?
ReplyDeleteExactly what do you mean by "provides absolutely no protection from the evils imagined by the framers of the 2nd Amendment. Do you really think modern-day gun ownership does?
DeleteHello Mike.
DeleteFirst you must know what the framers feared in connection with the Article I, Sec 8, Cl 15-16. I can provide supporting evidence for this if you wish, but I will merely list the 3 major concerns:
1.) That because Article I, Sec 8, Cl 16 gives the Feds the power to provide for the arming of the militia it implies the converse power, the power to disarm the militia. Further, that even if the Feds did not actively disarm the militia, they may negligently fail to provide for the adequate arming of the militia through benign negligence.
2.) That because Article I, Sec 8, Cl 16 gives the Feds the power to provide for the organization of the militia, they may create a "select militia" which does not represent the whole body of the people (a militia was somewhat analogous to a "jury of your peers" and they were afraid of "jury stacking" where certain persons are excluded in order to obtain a favorable result).
3.) That because Article I, Sec. 8, Cl 15 allows the feds to call the militia up for federal service and deploy them outside of the state, this may leave the state defenseless.
Does the 2nd prevent any of these expressed fears from occuring? The answer is no. In fact the 2nd does not prevent the feds from disarming the well regulated militia, as they do it all the time. I could easily point out that the feds take away the firearms of members of the militia when they are not actively "bearing" them during training. They require them to turn them in where they are stored in an armory. Thus, there is clearly not a right of members of the militia to "keep arms". You would probably belittle such argument, so I will provide another... During Gulf War II, shortages of equipment led the feds to disarm whole units of the National Guard as they were rotated out so that they could adequately equip National Guard units that were being rotated in. Is this a violation of the 2nd in your view?
Does the 2nd Amend require the federal government to adequately arm the militia? In other words, can a court require the federal government to expend a certain amount of money to arm the militia? How would a court determine how much the feds have to spend? I can assure you that no court case has ever made such an opinion.
Can the feds exclude persons from the well regulated militia? Indeed they can. The original militia act of 1792 only provided for "free white males" to be in the militia? Massachusetts in the 1850s tried to enroll free blacks in the militia, they federal law was held to prevent Massachusetts from doing so. A more modern example would be the application of "don't ask, don't tell". If this is a violation of the 2nd, I find it odd that all of the court challenges to same by the ACLU and other high powered legal talent never even included the 2nd as a legal argument.
Does the 2nd prevent the feds from calling up the militia and sending them out of state? Absolutely not. In fact in April 1917, the feds totally destroyed the well regulated militia by the simple expediant of drafting them into the regular armed services and sending them to europe. When the states complained that they were now defenseless, the feds said basically "tough, you are on your own". This led to the a series of cases referred to as the Selective Service Cases, in which SCOTUS held that the feds have the power to complete destroy the well regulated milita... it was a unanimous decision.
So what does the 2nd protect?
You also ask "Do you really think modern-day gun ownership does?"
My answer is that the individual right to arms does and in fact has protected the well regulated militia from the evils imagined by the framers. I will allow you to respond to this post first before I expound further.
There is no "well regulated militia" today. That was an entity of the 18th century that shortly thereafter ceased to exist. Whatever you're talking about is like birds that have evolved from ancestor dinosaurs.
DeleteFirst, you did not answer my question, so I will ask again....
DeleteWhat does the 2nd protect? More specificaly, what would constitute a violation of same?
Second, SCOTUS disagrees with you. Maryland v. United States, 381 U.S. 41 (1965). In a unanimous decision of the US Supreme Court, it was held that the National Guard, when not called into federal service, was "the modern Militia reserved to the States by Art. I, § 8, cl. 15, 16, of the Constitution." See also, Perpich v. Department of Defense, 496 U.S. 334 (1990) holding that state defense organizations created pursuant 32 U.S.C. § 109(c) are also state militias reserved under Art. I, § 8, cl. 15, 16. This was a unanimous decision of SCOTUS, authored by Justice Stevens.
However, and even if we adopt your position, I do not recall any constitutional amendment which repeals the 2nd Amend. What you are really saying is that the 2nd should be repealed as a historic anachronism. I certainly do not have any problem with you advocating for such action. What I do have a problem with is your seeming conclusion that we can ignore parts of the Constitution we do not personally like.
Since you did not answer my question, I will reserve my answer to your question, which I deferred hereinabove, to wit:
"Do you really think modern-day gun ownership does?"
However, I think you would find my answer quite enlightening, as it provides the answer to just exactly how the 2nd Amend works to protect the well regulated militia from the evils envisioned by the framers.
State militias may be the justification for the amendment, but the right belongs to the people, not to the militias or the states. I don't recall giving notice to the government that I no longer want my right.
DeleteHello Greg.
DeleteI agree with your assesment, but what many people do not understand or appreciate is just exactly how and why an individual right unconnected to membership in a well regulated militia provides that justification.
Hello Legaleagle,
DeleteI have stated the necessity of the right on an individual basis in other posts. I have an inalienable right to life and liberty. When someone tries to deny my life or liberty and "peaceful" measures do not dissuade the aggressor, I have no other choice but to resort to force. If non-lethal force gets the job done, great. If not, then I have to escalate to lethal force.
Gun grabbers argue that firearms are not necessary because law enforcement personnel, pepper spray, tasers and stun guns are all that we need. That is simply not the truth as I have pointed out example after example where those methods are ineffective.
But that is simply a distraction. The problem in the end is that people who deny my right to bear arms are attempting to deny my right to property (firearms) by force. And that is a blatant attack on my liberty.
Hello Capn,
DeleteYour argument exists independent of the 2nd amend and is one I would employ to establish a right to arms under the 9th amendment (I would also throw in some quotes from Hobbes and Locke about self defense being the 1st law of nature and that it is a primary unalienable "life" interest).
What I am trying to do here is to explain how and why protecting the individual right to arms unrelated to any service in a well regulated militia is the only realistic method to protect the viability and continuation of a well regulated militia. In other words, to demonstrate why the two concepts are in fact related and are both found in the 2nd Amend.
Legaleagle,
DeleteMy comment was aimed at Mikeb. I'm glad to see a lawyer coming here to explain the law to the gun grabbers. Keep up the good work.
Lets not jumpt to conclusions.
DeleteLeagle eagle - ARE you an attorney? If so in what state(s) are you licensed to practice, and what specialty if any do you have in constitutional law or gun law?
Crunchy, you don't have a true right to execute someone who is doing something where a court would not be empowered to give a death sentence. That is just one of the reasons you don't and should not have a lethal weapon right.
You also don't have a right to a lethal weapon when so very often it doesn't protect anyone, but rather endangers the rest of us and yourself.
You like to give a great deal of emphasis to one aspect of possible gun use, but that is emphasizing a minor part of the total spectrum of gun ownership, both legal and illegal. You cannot succeed in your argument if you are honest enough to address the entire spectrum of the problem - and you and your guns ARE part of that larger problem.
IF you could not resolve a problem without lethal violence, you would have to do something else. THAT is preferable to the choices that so often are displayed here in comments, notably the incorrect identification of when it would be appropriate to shoot someone committing a crime.
Dog Gone,
DeleteWe would have to do something else? That would be die, I suppose. If someone is attacking me right now, how are the police going to save my life? They do a remarkable job in general, but I care about my life in specific as well. We aren't claiming a right to execute someone. We claim a right to defend ourselves from violence--a right that includes lethal force, if that's what is required. This isn't a hunting license or a license to pop off rounds at random. It's a right to defend our lives.
You keep telling us that we're a part of the problem, but I've yet to see any good reason from you as to how that's the case. We aren't going about killing people, nor are we handing out guns to shady types, despite your best efforts to portray an elderly couple as a pair of dangerous thugs.
The problem of gun violence is a part of a larger problem of dangerous criminals out free. Put violent criminals away for longer, and the problem will diminish rapidly.
Hello dog gone.
DeleteTo answer your question, yes I am a lawyer and I am licensed to practice not only in my home state, but also all federal courts in my state, the US Circ Court of Appeals which has jurisdiction in my state and the United States Supreme Court where I authored an amicus brief on behalf of respondent in DC v Heller. I respectfully decline to provide further identifying information as that would easily lead an interested person to know exactly who I am.
However, you are quite free to disbelieve my CV as I do not rely upon my say so here. Everything I claim, I can back up with citations, all you need do is ask.
Perhaps you may wish to try to answer my question which I have asked several times and have as of yet not received a substantive reply? Yhat question again is this:
What does the 2nd protect? More specificaly, what would constitute a violation of same?
Leagle Eagle - thank you for your response. I do not wish you to identify yourself beyond what you have provided. Too many of us on the side of gun regulation have been on the receiving end of threats ourselves.
DeleteMy understanding of the 2nd Amendment was that it addressed the right to arms for common defense versus a standing army. While I believe a property owner who otherwise complies with laws, including all state, federal, and local laws and ordinances, should be able to keep weapons, properly secured, on their premises, or places where they may legally shoot, such as gun ranges or hunting acreage, so long as they do so safely. Guns are property which because they are potentially deadly weapons, should be regulated accordingly.
The intention of the 2nd Amendment appears to have evolved into the later more correct premise of a right to safety that is expressed in the Universal Declaration of Human Rights and other documents it inspired, including international law. We are no longer a nation of pioneers with a frontier, we are no longer a nation where hunting is a necessity. It is a sport, a recreational activity. That was not true at the time of the ratification of the U.S. Constitution.
To presume that the founding fathers were either omniscient, or infallible is clearly an error, an exampl of filiopietistic thinking. Rather we have amended the constitution quite often; it is a living and changing document.
I would argue to you that there is sufficient abuse of the ownership of firearms to justify more stringent regulation and licensing, all of which are consistent with the Heller decision. I believe the 2nd Amendment was intended to recognize a right to safety, and addressed primarily a right to safety from organized attack by another state. It now should either be revised to reflet the change in thinking about rights to reflect a right to safety by law enforcement and a recognition that in fact we DO rely on standing armies, and to stipulate that a right to lethal weapons is not in fact an absolute right or any of the other gibberish that is often offered in support of unlimited and unfettered access to guns.
I would argue that to the extent that tens of thousands of people die every year, especially innocent people, because the bullets in the gun of one person violated the life, liberty and pursuit of others, that the 2nd Amendment should recognize the rights of those innocent people to be free of the guns of others to an extent that it does not currently explicitly state -but should. We are no longer even remotely like the 18th or 19th century society that produced the old 2nd amendment, nor are our weapons the same either. It should be updated to reflect those changes. The first amendment should be updated to reflect the addition of the internet and other modern media.
dog gone- let me preface my remarks by saying that the 2nd amendment is a hot button issue for many on both sides of the debate and the threats you describe are not one sided as I have been subject to such on some forums. Thankfully, I believe that the vast majority of these are hyperbole buttressed by the anonymity offered by the internet. Oft times we focus on the attacks upon us and our allies and ignore similar attacks made by our allies and addressed to our competition, thus our perception is that the other side is the threatening enemy wile our side is nothing but angels.
Deleteyou write: "My understanding of the 2nd Amendment was that it addressed the right to arms for common defense versus a standing army."
That is part of it. Many of the framers feared a standing army because a standing army of the day was more akin to what we describe today as a mercenary force who owed their allegiance primarily to whomever provided them with a paycheck. Imagine if you will the uproar which would arise if the US decided to privatize our defense needs by disbanding our military and contracting it out to Blackwater. (We might save money and it might be more efficient!!–LOL)
In contrast to a standing army was the citizens militia, composed of our friends and neighbors who trained one weekend a month in order to become a "well regulated militia". We can trust these ordinary folks not to be used as an instrument of terror or oppression, for the simple reason that they would refuse to obey such orders.
The best analogy I can provide is that of a trial by jury. A jury composed of ordinary folks just like ourselves is seen as a barrier to over zealous prosecutors and judges. The jury will provide justice when the law offers none by engaging in what is called "jury nullification"... specifically ignoring the judges instructions when to do so would amount to a great injustice.
The framers also feared what they termed a "select militia", which did not reflect a true cross section of the people. Imagine if you will a neocon president who directs that membership in the National Guard shall be limited to members of the Tea Party. The analogy to the jury arises again... blacks excluded from juries, women excluded from juries. I hope you see my point.
To be brief, a jury serves a role as the peoples voice in the judicial branch of our government. The well regulated militia serves the role of the peoples voice in the military institutions of our government and that is why the framers cherished it.
I will let you think about that a bit before I address the other parts of your post.
LegalEagle, you spout twaddle. In fact,you spout the same twaddle as expoused by Scalia as his reason for ignoring what you term the preferatory clause, which is the reason for the law.
DeleteWhile that was the argument presented by the majority, that in no was#y makes it dispositive.
If you are truly aware of how this decision was written then you MUST be aware that the Minority dissented and followed the Civic right interpretation.
However, if you accept that this is the reason for the law and you are truly aware of how statutory interpretation worked at the time of the Adoption of the Second Amendment, then you know Ubi cessat ratio legis, cessat ipsa lex.
That is if the reason for the law no longer exists, then the law is no longer meaningful.
You also should know that if the law is silent on a topic, one cannot infer that it is covered.
Thus, in your ignorant way, you have proven my point.
So,even if you worked on one of the more silly argumented pro-Heller Briefs, you haven't really proven any serious knowledge of this topic.
In fact, even the source mostlikely to support your position, the Pennsylvania Dissent spends most of its time saying that the reasoning for the right to arms is to prevent standing armies.
Even worse, Legal Eagle you provide that was the reason, yet you go further an promote the revisionist intepretation of the Second Amendment.
If you cannot name which amicus brief you worked upon, I will assume it is one of the sillier argumed briefs.
Even if it was not one of the sillier argued briefs,to try to say that the Second Amendment has nothing to do with the State Militias flies in the fact of any of the adopted texts.
If anything, "LeaglEagle" if you have that you can tolerate poor precendent being introduced into the law, which shows me that you have no respect or knowledge of how law should be practised--no matter what court you may or may not be admitted to practise before.
If anything,LegalEagle, you are a demonstration of how poorly the American Legal system works to produce a surfeit of lawyers who have no idea of how the law works.
Hello Laci The Dog I wish you would cease with insults and instead provide substantive argument backed up by citations. As it is, we have merely your ramblings of your unsupported opinion... so lets take a look
DeleteYou write: In fact, you spout the same twaddle as expoused by Scalia as his reason for ignoring what you term the preferatory clause, which is the reason for the law.
What you call “twaddle” is also espoused by Stevens in his dissent:
“A well regulated Militia, being necessary to the security of a free State” The preamble to the Second Amendment... “ Slip Opinion, DC V Heller, Stevens Dissent at pg 5.
So is it your opinion that Stevens was also espousing “twaddle”?
You write: “If you are truly aware of how this decision was written then you MUST be aware that the Minority dissented and followed the Civic right interpretation.”
Ahhh, the theory espoused by the esteemed Saul Cornell. However, your analysis is incorrect. Stevens, like you, did not explain how his version of the 2nd Amend actually worked to preserve and protect the well regulated militia. Since you are seemingly familiar with Professor Cornell’s theory, perhaps you might enlighten us on how a non lawyer historian financed by the Joyce Foundation explains exactly how the 2nd works and tell us how Cornell, with a straight face, requires governmental intervention in order for the right to arise at all, thereby creating a completely illusory right which does not protect the well regulated militia from the evils envisioned by the framers of the 2nd Amend in any manner shape or form. Essentially, his argument is that if there is a "well regulated militia" then individuals have a right-duty to serve in said well regulated militia, but if government does not set up such a militia, the right does not exist. Which theory is quite interesting except for the fact that the Militia Act of 1792 only allowed free white males to serve and when Massachusetts tried to include free blacks in their militia during the 1850's, they were quickly informed that federal law preempted the area and Massachusetts could do no such thing.
You write: “However, if you accept that this is the reason for the law and you are truly aware of how statutory interpretation worked at the time of the Adoption of the Second Amendment, then you know Ubi cessat ratio legis, cessat ipsa lex.
The legal maxim “where the reason of the law ceasing, the law itself ceases” is a very interesting argument. However, one who can quote that legal maxim should also know
that it applies only to common law and case law and does not apply to constitutional law or statutory law, since the constitutional provision or the statute continues to exist until it is repealed. The primary application of that maxim today is where a court has previously issued an injunction but the reason for the injunction has subsequently disappeared and thus the injunction itself disappears. Broom, Max159; 4 co. 38; Appeal of Cummings, 11 Pa. 273; Nice’s Appeal, 54 Pa 201. But I bet you wowed a lot of people with that one, though, GOOD JOB!
Continued in my next post...
Response to Laci the Dog Continued..
DeleteYou write: “You also should know that if the law is silent on a topic, one cannot infer that it is covered.”
Correct. In this case the law is not silent on the issue, so your point is what?
You write: "In fact, even the source mostlikely to support your position, the Pennsylvania Dissent spends most of its time saying that the reasoning for the right to arms is to prevent standing armies."
Yet the amendment proffered by said Pennsylvania dissent clearly protects the private use of arms. So your point is what exactly?
You write: “Even worse, Legal Eagle you provide that was the reason, yet you go further an promote the revisionist intepretation of the Second Amendment.”
Such revisionist interpretation as espoused by St George Tucker in Tuckers Blackstone:
“This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.” Tucker's Blackstone, 1803
Continued...
Response to Laci the Dog, part 3
DeleteYou write: “Even if it was not one of the sillier argued briefs,to try to say that the Second Amendment has nothing to do with the State Militias flies in the fact of any of the adopted texts.”
Obviously you have not read what I wrote. The purpose of the 2nd Amend is to protect the well regulated militia, the methodology employed to protect the well regulated militia from the evils envisioned by the framers is to preserve from infringement a preexisting right to arms for individual purposes... Or, in the words of Laurence Tribe, the foremost liberal scholar on Constitutional Law and Professor of Constitutional Law at Harvard Law:
"[The Second Amendment's] central purpose is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes--not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons--a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by § 1 of the Fourteenth Amendment against state or local government action. (Laurence H. Tribe, 1 American Constitutional Law 902 n.221 [3d ed. 2000]"
So will you now tell us how exactly your version of the 2nd Amend works and what would constitute a violation thereof, or will you continue to resort to unsupported argument interlaced with insult and ad homs?
Legal Eagle, I don't speak the same language as you and Laci, but I got schooled.
Delete"If the reason for the law ceases--the law ceases (cessante ratione legis cessat ipsa lex,)"
Laci keeps quoting that saying, but he has yet to show how it is a part of U.S. law. As far as I can tell, it comes from a mediaeval legal theorist, and thus may be interesting, but only as relevant as de Vattel.
DeleteOnce again, Greg demonstrates that his ignorance knows no bounds.
DeleteAll this is mentioned in Blackstone's Commentaries:
The citation from Blackstone regarding the “proeme, or preamble” is part of a larger section that consists of “observations concerning the interpretation of laws.” 1 Blackstone at *58. One of those “observations” was: “BUT, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewise to cease with it.” 1 Blackstone at *61.
Blackstone refers to this “when the reason ceases, the law ought to cease” principle several times in the Commentaries, which would seem to indicate that he considered it a fairly important interpretive principle. 2 Blackstone at *390-91 (discussing property interests in tame and domestic animals and noting “But here the reasons of the general rule cease, and ‘cessante ratione cessat et ipsa lex‘ [The reason of the law ceasing, the law itself also ceases]“), 3 Blackstone at *219 (discussing the law of nuisance, and noting “But, where the reason ceases, the law also ceases with it : therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water.”), 4 Blackstone at *3 (noting that some aspects of Britain’s criminal law “seem to want revision and amendment” and explaining that “These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the resons have ceased upon which those rules were founded . . . “), 4 Blackstone at *81 (discussing the law of treason, and noting that the “plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and therefore, when this reason ceases, the law ceases with it . . .”), 4 Blackstone at *330 (discussing the plea of a former attainder, and noting “But to this general rule however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex.”).
Some of these seem to refer to common-law decision making, but he also applies this principle to statutes.
Which means that if the “cause/reason” for the Second Amendment was the “well-regulated militia”, then it could be argued that when that reason ceased, the law ought likewise to cease with it.
Too bad, Greg is ignorant of the fact that Blackstone is mentioned as being highly influential upon US Juristpursdence.
In fact, since Blacstone commentaries were rather inexpensive and wide published, they were used for legal training in the US.
So, if you want to argue that Blackstone is "only as relevant as de Vattel", you have your work cut out for you, Greg.
I strongly suggest tha you keep your ignorqance to yourself in future.
Laci the Dog-
DeleteWhen copying and pasting from the internet, it is prudent to either cite your source or provide a link. In this case from someone identifying themselves as "MILF Avenue" (not verified) April 8, 2009.
http://www.acslaw.org/acsblog/olc-opinion-claims-that-2nd-amendment-creates-an-individual-right#comment-201
MILF Avenue wrote: "2 Blackstone at *390-91 (discussing property interests in tame and domestic animals and noting “But here the reasons of the general rule cease, and ‘cessante ratione cessat et ipsa lex‘ [The reason of the law ceasing, the law itself also ceases]“)"
Common Law rule which provides that the owner of a domestic animal owns the offspring of same and discussing the exception to the common law rule involving swans which splits the ownership of the offspring because the male and female swan are actively involved in the upbringing of the offspring and mate for life. The reason for the common law rule was that the use of the female would be lost to the owner during the pregnacy and upbringing and there was no sure way to identify the male parent. Thus ‘cessante ratione cessat et ipsa lex‘
MILF Avenue wrote: 3 Blackstone at *219 (discussing the law of nuisance,
Dealing with the common law interference with incorporeal hereditaments, not statutes.
MILF Avenue wrote: "4 Blackstone at *3 (noting that some aspects of Britain’s criminal law “seem to want revision and amendment”
And lamenting that parliament should revise and/or repeal them ... "These have chiefly arisen from too scrupulous an adherence to some rules of the ancient common law, when the reasons have ceased upon which those rules were founded; from not repealing such of the old penal laws as are either obsolete or absurd; and from too little care attention in framing and passing new ones." Obviously, if such rule applied to statutes, Blackstone would not be making this comment.
MILF Avenue wrote: "4 Blackstone at *81 (discussing the law of treason, and noting that the “plain intention of this law is to guard the blood royal
Which was treason at common law, having been handed down by feudal tradition. 1 Hal. P. C. 118. 1 Hawk. P. C. 38; 3 Inst. 9.
MILF Avenue wrote: "4 Blackstone at *330 (discussing the plea of a former attainder"
A common law plea... this particular plea deals with a common law concept of "civil death" which is the basis of the exclusion of voting rights to convicted felons and to the exclusion of 2nd Amend rights to convicted felons.
So, taking all the examples proffered by MILF Avenue, only one deals with statutes and in that case Blackstone is lamenting that parliament should adhere to the rule cessante ratione, cessat et ipsa lex and repeal or amend those laws.
MILF Avenue wrote: "Which means that if the “cause/reason” for the Second Amendment was the “well-regulated militia”, then it could be argued that when that reason ceased, the law ought likewise to cease with it."
Even if we assume arguendo that your analysis was correct, you have yet to demonstrate that the well regulated militia does not exist or that a need for one can not arise. In other words you are assuming facts not in evidence and those assumed fact are already disproven by the unanimous decisions of SCOTUS in Maryland and Perpich that I previously cited.
Laci The Dog writes: "In fact, since Blacstone commentaries were rather inexpensive and wide published, they were used for legal training in the US."
For once we are in agreement. Madison noted in a speech at the Virginia ratifying convention that "every man here has their copy of Blackstone". Blackstone was more influential in the US than in England.
Laci, your view is out of date. Dog Gone would point that out to you, if she weren't so stuck in her own biases. America has formed a new consensus on the Second Amendment.
ReplyDeleteTo everyone,
1. I prefer what the rest of the world calls football to American football, so I couldn't care less about the Super Bowl.
2. Those two yahoos spent tens of millions of dollars to buy air time for that?
3. The idea that they support the Second Amendment is laughable. Name one action that either of them has done in support of gun rights.
4. Outside of their gun grabbing paradises and a few other places, they're nothing. They may win over a handful of silly mayors, but many states have preemption on gun laws, so that will accomplish nothing. Look at the race to get rid of local gun regulations in Florida, for example.
Heller specified that regulation is part of and consistent with the 2nd Amendment. These two men have advocated, and god less them, put their money where their beliefs are, to espouse the elimination of ILLEGAL guns, which is perfectly consistent with Heller and with the 2nd Amendment rights and with our human right to be safe from gun nuts like you who do stupid and dangerous things with your weapons, and who are careless, reckless, and negligent in checking out who you transfer them to.
DeleteTo paraphrase a wonderful old comic strip, Pogo,"We have met the enemy and he is us" - or in this case, YOU.
Hi dog gone
DeleteHeller did not state that regulation is part of and consistent with the 2nd Amendment.
What they stated is that the 2nd, just like all other rights protected by the Constitution, is not unlimited and that laws restricting gun rights can be written which are not in violation of the 2nd Amend. A view I subscribe to.
What were you saying before heller, that we were right?
DeleteHelloe mike... I assume this is directed at me:
Deletemikeb wrote: "What were you saying before heller, that we were right?"
What I was saying before Heller is the same as I am saying after Heller, that the 2nd, just like all other rights protected by the Constitution, is not unlimited and that laws restricting gun rights can be written which are not in violation of the 2nd Amend. When the 2nd is treated just like every other right protected by the Constitution, my work will be done.
Question: Where in the Constitution for the united States is the authority for Congress to disarm the people?
ReplyDeleteIt seems clear to anyone that doesn't have a head filled with legal mumble jumble that the 2A is not granting a right but preserving and guaranteeing that right.
It's as Jeff Cooper once observed: In some parts of this country, anything not specifically allowed is forbidden, while in others, anything not specifically forbidden is allowed. We prefer the latter view, but the authors here prefer the former.
DeleteUm, NO, clearly it is LIMITING any such right.
DeleteDon't you read?
Yes, we read. "The right of the people to keep and bear arms shall not be infringed." Where is the limitation there? The well-regulated clause is the explanation for why the people in general need arms. The idea is that the people will then come to the militia with some notion of how to use guns.
DeleteI repeat, in my opinion, the 2A has absolutely no relevance in today's world, none. I believe eventually the recent and mistaken Supreme Court decisions will be reversed and the gun-rights folks will be forced to admit that I'm right.
ReplyDeleteNow, that doesn't mean all civilian guns will have to disappear. All it means is you'll have to stop hiding behind the irrelevant second amendment to justify your gun ownership. You'll probably have to live with stricter gun control laws and everybody will live happily ever after.
If the 2nd Amendment has no relevance today, please answer these simple questions:
Delete(1) What are the options for the people of southern Arizona who face drug smugglers alone? I have posted links in other threads that show local law enforcement is unable to protect local citizens and the federal government refuses to protect local citizens.
(2) What are the options for the people of a large city when a riot breaks out such as the city of Los Angeles in the 1980s when the police left residents on their own for several days without police protection?
(3) What are the options for citizens who effectively have no police protection, e.g. rural or isolated areas and areas where catastrophes cut-off citizens from police response?
(4) What are the options for citizens who find themselves the subject of sudden attack from violent flash mobs or terrorist groups?
Hello Mike:
DeleteIf you believe that the 2nd is an anachronism which has no relevance in today's world, the remedy is to amend the Constitution pursuant to Article V. You may not ignore it as long as it has not been modified by Constitutional Amendment.
You state that the recent decisions of SCOTUS were mistaken. In order to validly make such an argument, you must articulate exactly how the 2nd amend was intended to work and what exactly would constitute a violation of same and how such protections resolved the express fears of the framers of the 2nd concerning the well regulated militia.
Is my question so difficult to answer?
Even if the Supreme Court reverses itself, something that I hope is unlikely, we won't admit that you're right. The Court cannot govern how we think and speak, unless they also throw out the First Amendment along with the Second.
DeleteBut you need to understand that we aren't a one-trick pony. We're working in the states and in Congress too. How about you live happily with rights?
LIVE happily with rights?
DeleteLets start by having all those people who are victims of gun violence live happily. That means those tens of thousands who die from gun violence, the additional people who are injured by gun violence, especially children, and the many many more who are threatened and intimidated by gun violence. Don't forget the clumsy and unsafe accidental shootists in there as well.
WE are working as well, and time and trends are on our side, not yours.
You do repeatedly say that time is on your side, but you provide no evidence for that. I, on the other hand, provide you lots of evidence that things are going my way.
DeleteWhat doesn't get said in the articles describing shootings, but what I read between the lines in most of those stories is that the problem gun owners are a small percentage of the total gun owners in this country. They could be identified by their criminal records in many cases. If we were serious about punishing violent crime, while at the same time decriminalizing activities that should be treated as a public health matter (drug abuse) and also in educating our population, there would be far fewer shootings. My solution doesn't take away the rights of good gun owners. But my solution doesn't disarm private citizens, so you can't support it.
Legaleagle, in you last comment you didn't ask any questions and concluded with "Is my question so difficult to answer?"
DeleteEven some folks of your esteemed profession feel that the 2A is obsolete. The word "militia" does not mean what it did back then. It's that simple.
As far as "amending the Constitution," I'm not interested. I simply reject your attempts to justify gun ownership and especially concealed carry with the 2A.
Mikeb,
DeleteLegaleagle keeps asking your side what the Second Amendment was written to protect and how it could be violated. Now, will any of you answer?
Mikeb, My question is indeed contained in the post you are responding to. Here it is again:
Delete"You state that the recent decisions of SCOTUS were mistaken. In order to validly make such an argument, you must articulate exactly how the 2nd amend was intended to work and what exactly would constitute a violation of same and how such protections resolved the express fears of the framers of the 2nd concerning the well regulated militia."
Quite simply, mikeb, it is easy to claim that the 2nd does not protect this or that and to assert my articulation of the 2nd is mistaken, but if you can not precisely state what the 2nd is and how it works and what would constitute a violation, your assertions of what the 2nd isn't are meaningless.
Regardless of whether you believe that the 2nd is obsolete or not, the fact is that it has not been repealed and therefore can not be ignored. I believe you reside in the UK? Well the UK believes that in certain circumstances the right to a jury trial is obsolete and has done away them in situations where the facts are too "complex" or where there is a threat of "jury intimidation". They also believe that the concept of double jeopardy is obsolete in certain circumstances where it would give rise to a gross injustice. In response to those claims, and because the UK has adopted a system of "parliamentry supremacy", they passed some laws which did away those nicities if certain criteria are establishe. We can not do that in the US. Our recourse is limited to amending the Constitution.
Finally, and from a legal standpoint, the term militia means the same thing it meant way back in 1789. My view is supported by 2 unanimous decisions of SCOTUS which I cited previously, to wit, Maryland and Perpich. You are of course entitled to disagree with said unanimous decisions (unless of course you feel that the 1st amend is also obsolete), however I must warn you that your unsupported opinion will never be cited by SCOTUS as authority.
Let me put it this way. The 2A was intended to protect the right of citizens of the new Republic to own weapons in order to be potential militia members if needed.
DeleteWhat in the hell does that have to do with you in the year 2012?
About the Supreme Court's decisions in Heller and McDonald, what were you saying before them? I'll bet you were saying the same thing, that the 2A guarantees an individual right. So, the "mistaken" decisions had no effect on your position. Am I right?
Hello mike, indeed the 2A is intended to protect the right of citizens to own weapons, so that they could be employed in a well regulated militia if necessary. This right is general in nature so as to actually encourage weapons ownership, not merely protect same. You see mike, in spite of this protection, it was likely that a percentage of persons who would be called upon to serve would not own arms. Yet in an emergency the militia could rely upon Grandpa Joe to lend the arms that he owns to his grandson Militiaman Bob. The militia really did not care if Militiaman Bob used his own arms, so long as Militiaman Bob had arms available to use in the well regulated militia. Further, the private ownership and private use of arms would insure that a good percentage of recruits would already have familiarity with arms and thus be further along the way to being part of a well regulated militia.
Delete"[W]hereas, 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..." Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.
Thus, the best way to preserve and protect the well regulated militia is to insure that a preexisting right to arms for private purposes, including self defense was protected. The 2nd Amendment serves as a "carrot" to promote widespread ownership because "the great object is that all men be armed". Patrick Henry, Virginia Ratifying Convention, June 1788.
You ask what that has to do with 2012... I will again reiterate that this argument is irrelevant. The 2nd has not been repealed and until it is we may not violate it. Your recourse is found in Article V of the Constitution.
This is getting somewhat long so I shall respond to the other questions you presented in a future post.
The relevancy of the 2nd Amend and the well regulated militia. 20th Century examples:
Delete1.) Te 2nd Amend to the rescue!!! On April 6, 1917 the US declared war on Germany and entered into World War I. Contemporaneously with the the declaration of war, the US effectively destroyed the well regulated militia by the expediant of drafting them en mass into the regular armed services and shipping them off to Europe. This caused quite a problem with the individual states who had relied upon the well regulated militia for their security. However their concerns were rejected. According to the U.S. War Department secretary, "It is up to the states to furnish their own protection." So how did the States respond? Well they set up Home Guard Units, organized at the County level and under the direction of the County Sheriff. There was yet another problem however.... due to a little ruckus which ended in 1865, there was this Federal law which prohibited the states from arming these companies:
"An armory and good drill ground have been provided, but the company is as yet without uniforms and guns. Inasmuch as the law is a Federal law and specifically states that the States will not furnish arms and uniforms, it seems to our people that equipment must either be furnished by the National Government or else purchased by the members of the Home Guard companies."
http://www.militarymuseum.org/CoalingaHG.html
What to do? What to do? Well what was done is that they employed private arms... and not merely those owned by the members of the Home Guard, but also from donations (including a certain well known rifle club) and some of the more wealthier members even went to their nearby gun store and purchased weapons for those who could not afford them to supplement the arming of the Home Guard. Some of the more famous units were the Cabrillo Rifles, a unit which formed in the San Diego area and took over responsibilities such as patrolling the San Diego docks:
"When the San Diego Rifle Club offered the use of its range at Ocean Beach to the Cabrillo Rifles, rifle and pistol practices were held on Sundays during 1917. Many of the members became fair marksmen and some even scored as sharpshooters.17 The 30-30 Winchester model was the preferred weapon of the Rifles, although members who owned other models could use them. Each member furnished his own gun and supplied his own ammunition. The official uniform consisted of an olive drab service hat with the letters "C R" on the front of the crown, light brown khaki shirt, outing coat, riding breeches, and canvas leggings. The hat and leggings were issued by the Cabrillo Rifles' commissary, and the rest furnished by the member himself."
http://www.sandiegohistory.org/journal/84fall/rifles.htm
OK, this too is getting long, so example #2 will be a different post.
The relevancy of the 2nd Amend in the 20th Century continued...
Delete2.) The 2nd Amendment saves England!!!
After the fall of France and the miracle at Dunkirk in June 1940, Britain found itself short of arms for island defense, because most of their equipment was left on the beaches at Dunkirk. Britain could barely equip its professional forces and, as a result, the Home Guard was forced to drill with canes, umbrellas, spears, pikes, and clubs. When citizens could find a gun, it was generally a sporting shotgun ill suited for military use because of its short range and bulky ammunition. This was because in the immediate aftermath of WWI the UK passed a series of strict gun control laws. The avowed purpose of such laws was crime prevention, but most historians agree that the events occuring in Russia scared the bejabbers out of the Lords and Lordettes and the spector of the returning soldiers, trained in arms was just too much. Thus, civilain ownership of arms was quite limited
What to do? What to do?
This is what they did... the British government placed advertisements in American newspapers and in magazines such as The American Rifleman begging Americans to "Send A Gun to Defend a British Home and British civilians... faced with threat of invasion. desperately need arms for the defense of their homes." The ads pleaded for "Pistols, Rifles, Revolvers, Shotguns and Binoculars from American civilians who wish to answer the call and aid in defense of British homes and British Civilians."
http://www.twinbuttebunch.org/misc/i/british_ad.gif
In response to these pleas, generous American citizens donated over 120,000 privately owned firearms for the defense of the British Isles, including over 7,000 donated by a certain rifle club.
Prime Minister Winston Churchill's book "Their Finest Hour" details the arrival of the shipments. Churchill personally supervised the deliveries to ensure that they were sent on fast ships, and distributed first to Home Guard members in coastal zones. Churchill thought that the American donations were "entirely on a different level from anything we have transported across the Atlantic except for the Canadian division itself." Churchill warned an advisor that "the loss of these rifles and field-guns [if the transport ships were sunk by Nazi submarines] would be a disaster of the first order." He later recalled that "[w]hen the ships from America approached our shores with their priceless arms, special trains were waiting in all the ports to receive their cargoes." "The Home Guard in every county, in every town, in every village, sat up all through the night to receive them .... By the end of July we were an armed nation ... a lot of our men and some women had weapons in their hands." Winston S. Churchill, Their Finest Hour 237-38 (1949).
Example number 3 takes us to the 21st century... in my next post.
The 2nd Amend at work in the 21st century... This does not involve firearms per se, but another type of arm protected by the 2nd Amend, to wit personal body armor (an arm as that term is employed in the 2nd amend refers to anything that a man wears or takes in his hand to strike out or defend against another... Sir Edward Coke, Institutes of the Lawes of England).
Delete3.) In the early statge of Gulf War II, there were serious shortages of vital equipment due to poor planning by the Pentagon. "Specifically, GAO cited shortages of batteries, tires, vehicle track shoes, body armor, meals ready to eat (MREs), Humvees with extra armor, and add-on armor kits for Humvees."
http://www.govexec.com/defense/2005/04/pentagon-faulted-for-shortage-of-critical-war-supplies/18963/
These shortages fell heavily upon units of the "well regulated militia" (National Guard) as the regular army was given top priority. The problem, of course, is that military procurement is notoriously slow, even when given an expidited priority. We are talking about at least a 6 month period in which our poor militiaman would be forced to wear Vietnam era flak jackets in lieu of the modern body armor available today. The lives of our troops are at stake!
What to do? What to do?
Well, the answer was the friends, relatives and spouses of our brave militia men went onto the private market and purchased modern body armor and sent it to their loved ones:
"Like many other U.S. service members in Iraq, her son was given a Vietnam-era flak jacket that cannot stop the type of weapons used today. It appears that parents across the country are now purchasers of body armor because of the failure of the military to supply soldiers with modern vests.... For many GIs, Iraq appears to be a strictly BYOB war - Bring Your Own Bulletproofs. "
http://www.mail-archive.com/ugandanet@kym.net/msg07533.html
Of course, some countries ban the civilian ownership of body armor and California tried to restrict ownership in the past, but because American civilians were able to purchase modern body armor, our boys started receiving them within weeks instead of months.
"The US army has promised to rush new body armour to Iraq by the end of this month after it emerged that tens of thousands of soldiers were sent to the front without the life-saving protective jackets.
Parents of some of the troops have resorted to buying the jackets with their bullet-stopping ceramic inserts themselves and posting them to Iraq. The failure to equip ordinary soldiers properly has caused fury in Congress, where the shortfall in body armour has been contrasted with the generous allocations to other projects in this year's $379bn defence budget."
http://www.guardian.co.uk/world/2003/dec/05/iraq.usa
Those poor countries without a nd Amend:
"In Australia, it is illegal to import body armour without prior authorization"
"Under British Columbia's Body Armour Control Act, it is illegal to possess body armour without a licence issued by the provincial government as of July 1, 2010."
"In European Union port and sale of ballistic vests and body armor are allowed in Europe, except protections that are developed under strict military specifications and/or for main military usage, shield above the level of protection NIJ 4, thus considered by the law as "armament materials" and forbidden to civilians"
http://en.wikipedia.org/wiki/Bulletproof_vest#Legality
Now days, alas, we hear collective tsk tsks from the British press about how armed Americans are. I have heard, though, that the riots of last year are causing some reconsideration about gun control there.
DeleteReading tabloids again, like the disreputable and unrealiable Daily Mail Greg? You seem to have difficulty in discriminating between credible sources and those which are not, given your poor grasp of history.
DeleteBtw, the PBS series American Experience has been covering a variety of old west figures, such as Billy the Kid, General Custer and his last stand, Annie Oakley, etc.
So far, not one single mention of belt carrying firearms as a custom. I particularly looked for any about Billy the Kid. Nada, zip, it is all part of your modern gunloon delusions that you use to justify dangerous practices.
Are you still on about old photographs? You really expect a PBS program to discuss such techniques? But seriously, what can you tell us about the riots in England?
DeleteWhere pray tell, greg, have you heard this? It obviously was not in the British media (well, perhaps the Daily Mail as Dog Gone points out).
DeletePerhaps you read BNP material, Greg, are you showing your true colours here?
I think you will hear more disapproval from the general British public toward the concept of relaxed firearms laws than what you are claiming.
But, I have to concur with Dog Gone, since I am far more in contact with Britain than you are, Greg. I would truly appreciate knowing what segment of the Great British public advocates US style gun laws.
Is it the population of Colney Hatch?
I am sure you would have much in common with them.
Far more than you do with me, greg.
Legaleagle,
ReplyDeleteThank you for your feedback. I have argued exactly as you stated (via the 9th Amendment) in other posts on this blog.
I am also arguing right now about the 2nd Amendment directly in another post in MikeB's blog here:
http://mikeb302000.blogspot.com/2012/02/second-amendment-and-concealed-carry.html
I am sure you will enjoy reading the comments and jumping in.
I really find you lot tiresome. I have address your nonsense and you could look it up if you were as smart as you believe yourselves to be.
DeleteLeagle eagle - would you agree that de Vattel's work on natural law has absolutely no bearing on the 2nd Amendment?
ReplyDeleteOr any other part of interpreting the U.S. Constitution? Would you agree that very few people have in fact read it, and that the support for the founding fathers having read it - versus having heard of it and being familiar with it - is sketchy at best?
DeleteWhy are you still banging on about de Vattel? I didn't see Legaleagle mention him, and you're the only one to bring him up in a long time.
DeleteHello Ddog gone
DeleteOf more importance would be Dutch scholar, Hugo Grotius' "The Rights of War and Peace" and 17th century scholar Samuel Pufendorf, and his eight volume masterpiece, "Of the Law of Nature and Nations". However they both pale in comparison to Thomas Hobbes and John Locke, with Locke being considered the philosopher of the American Revolution and the inspiration for our form of government. The ideals of natural rights and the social contract lay the foundation for our form of government and should not be ignored, even if you do not subscribe to that philosophy... because it was the philosophy which inspired the Constitution itself. When both the Declaration of Independence and the Constitution parphrases the exact words of Locke, you can rest assured that the founding fathers were quite familiar with those works.
But Locke is old-fashioned, as, apparently, is our Constitution.
DeleteThank you for proving my point LeagleEagle45:
ReplyDelete1) If something is explicitly metioned in a law, it is covered
2) if something is not explicitly mentioned in a law, it is not covered
3) If the reason for the law ceases--the law ceases (cessante ratione legis cessat ipsa lex,)
4) if the Second Amendment is to cover personal purposes, not address the militia--then it needs to be amended.
If you are turly someone with legal knowledge, then you must concede that I am offering correct legal method.
And you are not.
Even better response for you, LeagleEagle45, if you are going to concede that the "preferatory clause" provides the reason for the Second Amendment--why should the Amendment be reinterpreted, which is it since US v. Miller that said the entire text of the Second Amendment must be used for its interpretation:
ReplyDeleteWith 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)
Given Justice Douglas actually was a member of the Court during the Miller decision, I trust his interpretation more than yours legalEalgle.
So, if the Sedcond Amendment has become meaningless, why should it be reintepreted along the lines you propose.
Isn't the proper method to amend the constitution?
Laci the Dog wrote:
Delete"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."
Funny, the Miller case did not uphold "a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun." The Miller case said that they could not make that determination because there was insufficient evidence. Here is the holding:
"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."
But don't feel so bad, you probably have not read the case, right? There is no excuse for Stevens however. In his dissent he wrote:
"Upholding a conviction under that Act, this Court held that..." DC v Heller, Dissent of Stevens at page 2 of the slip opinion. Stevens obviously did not read Miller either since there was no conviction, the lower court had dismissed all charges based upon a demurrer filed by the defendants. Even a first year law student would not make that mistake.
But lets talk about Miller... First it was written by Justice McReynolds who was by most accounts the worst justice to ever sit on the bench of the Supreme Court. His opinion in Miller was so badly written that both sides of the 2nd Amendment, could, with a straight face, argue that it supports their position.
The pro 2nd Amend side claims that the case was weapons centric, the decision turned on whether the shotgun itself would be useful if employed in the service of the militia. If the shotgun would be useful, then the law would violate the 2nd Amend. Your side argues that the weapon must actually be related to service in a well regulated militia.
What is rarely discussed is the only case cited by Miller in support of its conclusion, to wit: Aymette v. State, 2 Humphreys (Tenn.) 154 (1840). So let's take a look at Amyette, OK?
The issue in Amyette was a law prohibiting the carrying of a concealed bowie knife. The defense claimed that the law violated the Tennesse Constitutional provision which read: "That the free white men of this State, have a right to keep and bear arms for their common defence."
The court in Aymette found that:
"so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin . These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution." Id.
As to those weapons which could be employed in a well regulated militia the court held: "The citizens have the unqualified right to keep the weapon, it being of the character before described, as being intended by this provision."
The Court concluded that a bowie knife being is a type of weapon which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin, the conviction was upheld. Id.
Laci wrote: "Given Justice Douglas actually was a member of the Court during the Miller decision, I trust his interpretation more than yours legalEalgle."
DeleteWell, since Mr. Justice Douglas took no part in the consideration or decision of the case your opinion is superfolous. You never read the Miller case, huh?
Your misunderstanding of my position is quite odd, Laci. I would think that one learned in the law would be more perceptive...
We both agree that the purpose of the 2nd Amendment is to protect the well regulated militia. That is where your analysis stops and you close your mind.
So listen carefully.. The METHODOLOGY employed to protect the well regulated militia was to preserve and protect a preexisting individual right to arms for personal purposes such as self defense. Or, in the words of the most influential LIBERAL Constitutional Law Scholar alive today:
"[The Second Amendment's] central purpose is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes--not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons--a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by § 1 of the Fourteenth Amendment against state or local government action." Laurence H. Tribe, 1 American Constitutional Law 902 n.221 [3d ed. 2000]
Read it over again, carefully, Laci, perhaps you might understand.
dog gone it is not a dependent clause, in fact it is not a clause at all. It is a declaratory phrase acting as a preamble to the operative phrase.
DeleteTry this:
"Professor Jones being ill today, class is canceled."
Now if you were a student of Professor Jones and you saw that posted on the classroom door, you would not attend class.... even if you saw Professor Jones driving to the beach with a surfboard on his car roof. Class is canceled regardless of whether the good professor is ill or playing hookey. The operative phrase is not limited by the declaratory phrase and even if you know Professor Jones is not ill, you can sit in that classroom all day long but class is still cancelled.
At St. John's College, we were expected to carry on class if our professor (called a tutor there) failed to appear. Sometimes, the ivory tower can be a pleasurable place to be.
DeleteFurthermore, "LegalEagle" if you know anything about these poor desicions, then you lknow that the right created (yes, created) is extremely limited and hardly anything to crow about.
ReplyDeleteAs I said, I will assume that if you are not willing to name the Amicus Brief that you worked on that it was probably one of the ones with a preposterous legal argument.
Even if you were on the Catoi Institute funded brief, then you were making spurious arguments.
In short, you can come here and blather, but you will hardly persuade me of the truth of your cause.
I find that the arguments you make only prove my point by trying to ignore the reason for the Second Amendment and eliminate the actual historical basis for the Amendment, which was the prevention of the establlishment of a standing army.
Furthermore, you cannot disporcve my point without providing half truths and false arguments.
The civic right interpretation is based upon the proper legal interpretation and history of the Second Amendment in Anglo-American Jurisprudence.
Yet another question for you, LegalEagle--why is the concept of gun rights only found in US law if it was a fixture of Anglo-American History?
Laci, I'm still waiting for you to explain why the Second Amendment identifies "the people" as having the right to keep and bear arms. If the right was meant only for state militias, then why didn't it say that?
DeleteLaci The Dog-- I have responded to all relevant inquires by you in previous posts, but this one is interesting:
ReplyDeleteYou wrote: "Yet another question for you, LegalEagle--why is the concept of gun rights only found in US law if it was a fixture of Anglo-American History?"
The answer to this argument is that our Constitution is the
Supreme Law of the land. Our Bill of Rights may not be overturned by a mere statute as in the case of both Canada and the UK. The UK employs what is known as “parliamentary supremacy” which allows Parliament to override any right otherwise established by law or custom. Indeed, even the Magna Carta and the English
Bill of Rights are subject to the express intervention of
Parliament. Thoburn v Sunderland City Council, [2003] QB 151 (Div Ct).Similarly, Canada has the Canadian Charter of Rights and Freedoms. However, and unlike our Constitution, Section One contains the “reasonable limits” clause, which allows the government to limit an individual’s Charter rights. Additionally, the Charter contains what is known as the “notwithstanding clause”
which allows the Canadian Parliament or any provincial parliament to override fundamental individual rights.
However, and prior to the intervention of “parliamentary supremacy”, there were a series of cases which interpreted the provision in the English Bill of Rights protecting the right to arms. Lets take a look:
The Game Acts did “not extend to prohibit a man from keeping a gun for his necessary defence." Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739). “[T]he mere having a gun was no offense . . . for a man may keep a gun for the defense of his house and family." Mallock v. Eastley, 87 Eng. Rep. 1370, 1374 (K.B. 1744). "[A] gun may be kept for the defense of a man’s
house." Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752); accord, The King v. Thompson, 100 Eng. Rep. 10, 12 (K.B. 1787) (it is “not an offence to keep or use a gun”), and Rex v. Hartley, II Chitty 1178, 1183 (1782) (“a gun may be used for other purposes, as the protection of a man's house.”).
Some invented right........... I guess they forgot to tell the English judges of the 1700's about that invention, huh?
Second try:
ReplyDeleteLaci, if the Second Amendment was meant only for state militias, then why does it declare the right as belonging to the people?
In either a democracy or a republic, (we are at times both since we vote on some things directly and do other government business through elected representatives)the government IS the people. The second amendment is the basis for laws like those which created conscription. Read up.
DeleteUnless you are a Republican who believes that corporations are people? The right seems to suffer chronic confusion on that topic.
Look at the Bill of Rights. "People" is used specifically in contrast to states or the United States. Or do you believe that the right of peaceable assembly only applies to meetings of the government? Does "people" in the Fourth Amendment only protect members of Congress?
DeleteI regard Citizens United as a bad decision, since corporations are decidedly not persons. At the same time, the government is not synonymous with the people in terms of the rights ennumerated in the first ten amendments to the Constitution.
Hello dog gone.
DeleteYou wrote: "The second amendment is the basis for laws like those which created conscription."
Then you must disagree with the unanimous decision of SCOTUS in The Selective Draft Law Cases, 245 U.S. 366 (1918). That case found the power for conscription to be founded upon Article I, Sec 8, Cl. 12 which gives Congress the power to "raise and support armies".
The entire Bill of Rights contains no grant of power to the federal government whatsoever. The preamble to the Bill of Rights, annexed to the proposals submitted to the states for ratification described them as "further declaratory and restrictive clauses".
Greg, that is semantic bullshit and you know it.
DeleteHow so, Mikeb? "Semantic bullshit" is the term used when someone wants to claim that the distinction between words has no meaning. Is that really what you want to do with the language of the Constitution?
DeleteLet me ask you Leagle Eagle, are you asserting that the one case you cite means that no other parts of the constitution have been addressed by either legal thought, or the SCOTUS?
DeleteI would argue to you that there have been other parts of the constitution that address the militia in the context of duty to defend the country - ie conscription.
Hi dog gone
DeleteThere are other cases involving conscription, but The Selective Draft Law Cases, 245 U.S. 366 (1918) is the seminal case. Just as their are other cases on abortion, the seminal case is Roe v Wade.
There is no case which uses the 2nd Amend as a grant of power for the draft.
Leagle Eagle, I'm still waiting for you to identify where you obtained your law school degree, and to which of the many amicus briefs you contributed.
DeleteThe 2nd Amendment relates to the provision for militias. I would refer you to the distinctions between a standing army and a sedentary force, and make note that militias were identified as an obligation, a duty, which was required of citizens. No militia ever existed without a militia ballot day or militia enrollment. Therefore, it represents a military style conscription, with the term conscription referring to (to use the definition of dictionary.com)
con·scrip·tion /kənˈskrɪpʃən/ Show Spelled[kuhn-skrip-shuhn] Show IPA
noun
1. compulsory enrollment of persons for military or naval service; draft.
Word Origin & History
conscription
late 14c., "a putting in writing," from M.Fr. conscription, from L. conscriptionem (nom. conscriptio) "a drawing up of a list, enrollment, a levying of soldiers," from conscribere "to enroll," from com- "with" + scribere "to write" (see script). The sense "compulsory enlistment
Are you denying that the 2nd Amendment requires military service? How is that not a FORM of conscription?
By the time of the decision you quoted, a standing army had replaced the militias of the earlier era, but the premise that the government could require military service continued FROM that earlier militia premise present in the 2nd Amendment.
It goes directly to the point Laci made about the 2nd Amendment, and the 3rd as MikeB noted, having become obsolete, superseded by other entities and practices.
In other words - desuetude.
To continue:http://constitution.org/mil/mil_act_1792.htm
Deletewhich states:
"That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, ... every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock...."
and I refer you to the wikipedia site on militias which states as to calling them up:
"The entire able-bodied population of a community, town, county, or state, available to be called to arms.
A subset of these who may be legally penalized for failing to respond to a call-up.
A subset of these who actually respond to a call-up, regardless of legal obligation."
That means that the entire population could be required to provide service or be penalized - in other words drafted or conscripted.
Militias differ from standing armies only in that
back to wikipedia:
"
In colonial era Anglo-American usage, militia service was distinguished from military service in that the latter was normally a commitment for a fixed period of time of at least a year, for a salary, whereas militia was only to meet a threat, or prepare to meet a threat, for periods of time expected to be short. Militia persons were normally expected to provide their own weapons, equipment, or supplies, although they may later be compensated for losses or expenditures.[43]
A related concept is the jury, which can be regarded as a specialized form of militia convened to render a verdict in a court proceeding (known as a petit jury or trial jury) or to investigate a public matter and render a presentment or indictment (grand jury).[44]"
Both jury and militia service are based on people being compelled to perform those civic duties, not only on volunteers, or on those who are hired, which is effectively what is done with soldiers in a volunteer army.
We no longer require militia soldiers to provide their own weapons for our current version of them - the National guard.
dog gone wrote: "Are you denying that the 2nd Amendment requires military service?"
DeleteYes, I am denying that. The 2nd amend insures that if the state needs to form a well regulated militia, there will always be sufficient arms for use by the members of the militia, which members can be conscripted by the state or they may be volunteers. However, the 2nd Amend does not compel the state to do so nor is it the source of power to do so.
The "right-duty" concerning arms are two different sides of the same coin. The English origins of of the militia are traced to Alfred the Great in the late 800's AD. Blackstone's Commentaries, Vol. 2, Ch. 13, p. 409. They were organized in response to Viking raids. The Viking longboat presented a new problem in that its shallow draft allowed them to sail far upriver and attack almost anywhere at any time. Alfred's army could not be in all places at all times, so the solution was to organize the ordinary people and train them on a part time basis as a citizens militia. What followed over the course of several centuries, was a series of laws collectively referred to as the Assize of Arms, with the first being passed in 1181. This law required all freemen to have arms. The nature of the arms to be kept varied according to class. The more wealth you had, the more arms you must have... all for service in the militia. This was expanded by the Assize of Arms of 1252 which required all males over 15 to keep arms including bows. In the Assize of Arms of 1388 even non freemen (serfs) were required to have arms. Of course merely having a law does not insure compliance. Laws were passed to subsidize the price of arms so that more people could have them. People were encouraged to practice with arms by the holding of archery tournaments and the like. Private useage of arms was encouraged so as to develop the skills necessary in warfare... The result of all this hard work was the Battle of Agincourt where a numerically inferior English force defeated the French with the skill of 7,000 longbowmen.
This does not mean that all of these people were subject to service in the "well regulated militia". The development of such a skilled force required too much time away from their normal occupations. What developed was the creation of "trained bands", men chosen by lot for extensive training and they represented the primary strength of the militia. The remainder of the people were still required to have arms even though they were not part of a trained band.... they were still subject to being called into service in an emergency.
More...
Continued...
DeleteTogether with the legal duty to have arms, the official encouragement to use arms gave rise to an expectation, a proto right if you will, that the arms that they were required to keep could be employed for all lawful private purposes, including self defense. When this expectation was infringed upon, it gave rise to a bloodless coup called the "Glorious Revolution"..
Following the restoration, and in 1671 Parliament passed a Game Act which provided that “person and persons, not having Lands and Tenements of the clear yearly value of One hundred pounds ... are ... not allowed to have or keep... any Guns. 22 & 23 Car. 2, ch. 25 (1671). The avowed purpose of the Game
Act was to prevent illegal hunting, but the effect of the Act was to make the owning of firearms illegal for the vast majority of the population. The background tension involved was the perceived Catholic sympathies of the King. King James II then
used the Game Act as a ruse to systematically disarm
the protestant population, while at the same time creating a select militia, manned by his supporters, and officered by Catholics in order to insure the
security of his throne (it is important to note that the object of the disarmament campaign was the private arms of individuals which would be employed in hunting during a more peaceful era, as the
supposed purpose of the Act was to curtail illegal hunting). This and other abuses directly led to the
“Glorious Revolution” and the accession of William and Mary to the throne. However, their accession was made conditional to their ratification of the English Bill of Rights, so as to guard against future similar abuses. 1 W.& M. st. 2. c. 2. Included within the English Bill of Rights was a specific right to arms, which reads:
"That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law"
Continued...
Continued...
DeleteHow the bit about the English Bill of Rights fits into the discussion of the militia. The primary methodology employed to destroy the militia was not through the direct means of disarming members of the militia, but through a general disarming of the people at large. George Mason expressed exactly this view at the Virginia Ratifying Convention on June 14, 1788:
"Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them;" George Mason, 3 Elliot, Debates at 380.
George Mason was, of course, the primary drafter of the 2nd Amend.
Declaration of Taking Up Arms, Second Continental Congress (July 6, 1775) states as one of the reasons for taking up arms, the disarmament of the inhabitants of Boston:
"the Governor ordered the arms deposited as aforesaid, that they might be preserved for their owners, to be seized by a body of soldiers; detained the greatest part of the inhabitants in the town, and compelled the few who were permitted to retire to leave their most valuable effects behind." Id.
Ok, now back to the militia... continued.
Continued..
DeleteThe common law of the militia:
"They are not compellable to march out of their counties, unless in case of invasion or actual rebellion, nor in any case compellable to march out of the kingdom. They are to be exercisd at stated times: and their discipline in general is liberal easy; but, when drawn out into actual service, they are subject to the rigours of martial law, as necessary to keep them in order." 1 Blackstone 399-400.
The militia was a defensive force, not an offensive one. It could not under any circumstances be deployed outside of the country... that was the role of the army.
"WHEN the nation is engaged in a foreign war, more veteran troops and more regular discipline may perhaps be necessary, than can be expected from a mere militia. And therefore at such times particular provisions have been usually made for the raising of armies and the due regulation and discipline of the soldiery: which are to be looked upon only as temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom." Blackstone, Id.
However, such armies were distrusted.
"Charles the Second kept up about five thousand regular troops, by his own authority, for guards and garrisons; which king James the Second by degrees increased to no less than thirty thousand, all paid from his own civil list; it was made one of the articles of the bill of rights, that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law." Blackstone, Id.
Comparison with the US Constitution next. Continued...
Final installment.
Delete"nor in any case compellable to march out of the kingdom"
Article I, Sec 8, cl 15: "To provide for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repeal Invasions"
This is a grant of power to call the militia into federal service for only the reasons provided.... not to fight wars in Iran, or Vietnam. To get around this problem, the US drafted the entire militia into the armed services in April of 1917. Thereafter, the US devised a scheme called "dual enlistment" whereby the National Guard is a hybrid militia nad regular armed forces. When not in federal service, they are a militia. When in Federal service they are part of the regular armed forces and can be shipped overseas.
"that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law."
"To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years" Article I, Sec 8, cl 12.
It is simplistic to note that each term of Congress is calculated in 2 year terms. Thus each new Congress must authorize the expenditure of funds for the army.
"They are to be exercisd at stated times: and their discipline in general is liberal easy; but, when drawn out into actual service, they are subject to the rigours of martial law, as necessary to keep them in order."
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger;"
Note the militia is only subject to military law when in actual service in time of war or public danger, otherwise, they are subject to civilian law. Not so with regular armed forces...
Fini.
Greg writs:Yes, we read. "The right of the people to keep and bear arms shall not be infringed."
ReplyDeleteYou may read, you may write, but you do both badly.
There is no separate sentence beginning with THE right etc. Rather there is a dependent clause which if you diagramed it would clearly show it was based on the foundational clause preceding it.
To try to read it as a separate sentence dishonestly -as you so often do - changes the meaning of the original.
Try again. Because that was a complete fail.
Dog Gone,
ReplyDeleteGrammatically, the right of the people clause is the independent clause. The well-regulated militia clause is dependent. Here's another sentence that is structured exactly like the Second Amendment:
Fruit being necessary to a healthy diet, the right of the people to eat oranges shall not be infringed.
Notice that such a sentence declares a specific right: people get to eat oranges. It gives an explanation, but it isn't negated if people eat oranges because they enjoy citrus fruit; the sentence doesn't ban using oranges as flavoring in cakes or cocktails.
Grammatically, the independent clause can stand alone. If we ignore or cut off the dependent clause, the sentence remains a sentence. From a standpoint of logic, the right of the people clause does not depend on the well-regulated militia clause. The militia is the reason given, but the right is stated as being more than just for that one purpose.
Hi Greg
DeleteTry this instead:
"A well informed electorate, being necessary to a properly functioning democracy, the right of the people to keep and read publications shall not be infringed."
If we employ the rationale of those who deny that the 2nd protects a broad individual right, what we have is that the right is confined to actual voters and that the only publications that are protected are official governmental voting guides which may only be read by said voters while they are actually in the voting booth. However, in my view, a much broader based right is protected because it better serves the purposes of the right protected.
Legaleagle, you're spot on. Thank you, by the way, for your good work in Heller.
DeleteGreg, you ass. You don't know what Leagleagle's contribution to Heller was, therefore calling it good work is meaningless if you don't know what the work was, and you don't know if it was good.
DeleteNot that you'd recognize if it was good or not if it bit you in the parts you use to sit down.
As to thanking him, I'm betting he was compensated. There was quite a lot of right wing money thrown at the very poorly decided Heller decision.
I doubt that money is going to give that decision legs over time, though.
Although the material in this web site is pre-Heller, it provides some excellently reasoned legal thinking and research, and references the 2nd Amendment:
Deletehttp://www.potowmack.org/conscri1.html
"Chief Justice White began his opinion by quoting the various military clauses in the Constitution. He then wrote:
As the mind cannot conceive an army without the men to compose it, on the race of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice...[I]t is said, the right to provide is not denied by calling for volunteer enlistments, but it does not and cannot include the power to exact enforced military duty by the citizen. This however but challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertions is in no substantial sense a power.(17) "
Hi dog gone.
DeleteThe quote you are using says nothing of the 2nd Amendment. In fact the entire opinion does not contain a single reference to the 2nd amendment, although it does mention the 1st, the 13th and the 14th. Here is a link to the actual opinion:
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0245_0366_ZO.html
The unanimous opinion held that the power to raise armies found in Article I, Sec 8, cl 12 was sufficient to sustain the compulsory draft. Not the 2nd amend in any manner shape or form....
I think you do not understand the distinction between a militia and the regular armed forces. For you to understand the 2nd Amend, it is necessary for you to know this. For example, you will find this in the opinion:
"When the War of 1812 came, the result of these two forces composed the army to be relied upon by Congress to carry on the war. Either because it proved to be weak in numbers or because of insubordination developed among the forces called and manifested by their refusal to cross the border.."
The historical fact is that the Governors of some states specifically directed that their militia not cross the border into Canada. There is a legal reason for this. Do you know what it is?
The Bill of Rights makes a clear distinction among the terms, people, state, and United States. People refers to citizens; states are the former colonies that combined to form the new nation, and United States is the Federal government.
ReplyDelete1. Am I correct in my understanding of those terms?
2. If so, how does "the people" refer to individual citizens in other amendments, but to the collective right of states and their militias in the Second?
If the Second Amendment was meant solely to arm state militias, why doesn't it state that explicitly? How can a right named as belonging to the people expire? If that right can expire, why can't any other named in the Bill of Rights?
Dog Gone and Laci, I'm not trying to be difficult here. I want real answers. I'd appreciate it if you'd take these questions seriously and not resort to personal attacks, instead of answering.
Greg, we've answered you until we're bored to tears. You need to do your own homework apparently to understand our answers, to have the background that provides context.
ReplyDeleteYou might start with reading some moral philosophy more recent than the 17th and 18th century, even if it doesn't support what you want to hear or read.
Apparently, John Rawls isn't sufficiently modern for you, since you won't post the comment that I made about him. Your moderation policy creates a false impression of what is being said here.
DeleteI believe that implicit in the texts (either version) of the 2nd amendment, it stipulates a miliita.
ReplyDelete"There are several versions of the text of the Second Amendment, each with slight capitalization and punctuation differences, found in the official documents surrounding the adoption of the Bill of Rights.[5] One version was passed by the Congress,[6] while another is found in the copies distributed to the States[7] and then ratified by them.
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 and authenticated by Thomas Jefferson, Secretary of State:
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.[8]"
I would argue that the 2nd Amendment is PART of the right of the federal and state governments to conscript people into their military forces, specifically addressing how they were to be armed for defense of the state, where clearly both the feds and the state were trying so far as possible to avoid the expense.
And that this was important in the constitution because of issues like the debt from the Revolution, rather than being about 'rights' in the sense that gun nuts try to use it now. This is born out by the language of the previously mentioned previously in the language of the Militia Act of 1792, and here, from a more libertarian source: (http://mises.org/journals/jls/15_4/15_4_2.pdf)
"The only U.S. war fought without conscripts before the Civil War was the Mexican War. American governments, state or national, drafted
men not only to fight the Revolution and the War of 1812, but also to wage Indian wars and to suppress the Whiskey Rebellion. Because
they employed decentralized militia drafts, however, this fact has often
escaped notice. Military experts privy to the compulsory nature
of the militia and the implications of such arcane phrases as “calling
forth the militia” have failed to communicate their knowledge to outsiders.
Indeed, the militia’s coercive elements lasted until they were
discontinued during the Jacksonian era.3
Hello dog gone
DeleteYou write: "I would argue that the 2nd Amendment is PART of the right of the federal and state governments to conscript people into their military forces"
You would be wrong. The whole of the Bill of Rights is a restriction on governmental power, not a grant of governmental power. The "preamble" to the Bill of Rights (which was included with the packet of documents transmitted to the states regarding ratification of the Bill of Rights, states as follows:
"Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution."
The key is this: "further declaratory and restrictive clauses should be added", not further powers granted.
The militia Act of 1792 bases its authority upon Article I, Sec 8, cl 15-16.... not the 2nd. Houston v. Moore, 18 U.S. 1 (1820).
This discussion is getting to have too much legalese for me. I hate lawyers, except Laci, and that Legaleagle guy is starting to grow on me too.
ReplyDelete