mikeb302000.blogspot.com/search/label/Second Amendment HIstory
Where I am sure he will find the answers to pretty much all his questions.
I asked him if Justice Douglas, who was on the Court at the Time of Miller also misunderstood Miller when he said in ADAMS v. WILLIAMS, 407 U.S. 143 (1972)?
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."I believe that Douglas gives the same opinion as I do.
"The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be [407 U.S. 143, 151] secured through the Militia - civilians primarily, soldiers on occasion." Id., at 178-179.
Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment.
In his response that Justice Douglas was wrong, LeaglEagle makes the mistake of pointing out that the Miller decision incorporated by reference, the decision of
Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840). Aymette makes the following point.
To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.I think that quote from Aymette puts paid to any attempt to try to say that Miller related to private uses of firearms.
As for the topic of Desuetude and the Second Amendment, Justice Story points out in his commentaries (Commentaries on the Constitution 3:§ 1890) that:
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.The Second Amendment is related to the Duty of the Citizen to participate in the institution of the Militia, not anythiing to do with private arms as the refgerence in Aymette found Miller points out and makes clear. I think that Story's comment also makes it clear that the right is related to militia duty as well.
Yet it is beyond LegalEagle to read footnotes, or to read as it would seem. I have more than amply given my reasons following the civic right interpretation, not his theory based upon half-truths and fake history.
In Walz v. Tax Commission of the City of New York, 397 U.S. 664, 678 (1970) addresses the First Amendment--hardly what one would call a little used aspect of the Constitution, The United States Supreme Court asserted in it that: "It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it."
"It must be a very strong case," says Chief Justice Tilghman, "to justify the court in deciding, that an act standing on the statute book, unrepealed, is obsolete and invalid. I will not say that such case may not exist -- where there has been a non-user for a great number of years; where, from a change of times and manners, an ancient sleeping statute would do great mischief, if suddenly brought into action; where a long, practice inconsistent with it has prevailed, and, specially, where from other and latter statutes it might be inferred that in the apprehension of the legislature, the old one was not in force." 13 Serg. & Rawle, 452; Rutherf. Inst. B. 2, c. 6, s. 19; Merl. Repert. mot Desuetude.That seems to back up my point about Desuetude--one cannot amend the Constitution by Judicial fiat--there is a Constitutional process for amendment, which Heller violated.
I am going to add a couple of quotes from cases which LegalEagle probably hasn't read since they, back up my assertions (APU):
The National Guard is the modern Militia reserved to the States by Art. I, § 8, cl. 15, 16, of the Constitution.Maryland v. United States - 381 U.S. 41 (1965)
The District Court rejected the Governor's challenge, holding that the federal Guard was created pursuant to Congress' Article I, § 8, power to raise and support armies; that the fact that Guard units also have an identity as part of the state militia does not limit Congress' plenary authority to train the units as it sees fit when the Guard is called to active federal service; and that, accordingly, the Constitution neither required the gubernatorial veto nor prohibited its withdrawal. The Court of Appeals affirmed.Perpich v. Department of Defense, 496 U.S. 334 (1990).
The Second Amendment relates to the Body created under Article I, Section 8, clause 16.
What are the powers granted to Congress under this clause--LegalEagle?
I think that you are only proving that you have no idea of what you are talking about, LegalEagle.
And LegalEagle repeating lies will not make them true, nor will they persuade me of anything other than you have no idea of what you are talking about.
LegaleEagle, you are intellectually dishonest if not just a plain fool. You are an ideeologue, not a lawyer.
Additionally, LegalEagle, I won't do your thinking for you, but it is quite obvious that you do prefer to let others do your thinking for you.
I think for myself and fashion my own opinions based upon my own experience--not because someone tells me it is so.