Webster:
REPEAT: "The Sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia"
It is precisely that.
The concept is to show that this body is not active.
Being a part of it grants you no rights or privileges.
Active Militias, that is THE organised, enrolled, embodied, active (or other term signifying active) Militia, can be supplemented if necessary by the ballot (selection by lot)--in other words drafted from the Unorganised militia draft pool.
The term "unorganized" did not begin to emerge until the 1830s and 1840s, when a massive wave of opposition destroyed the compulsory militia system. Nobody wanted to serve in the militia. State governors and legislators wanted to be able to accommodate this desire, but they were bound by the 1792 Uniform Militia Act, which stated that every white male aged 18-45 would be in the militia.
Militia service was so unpopular that Delaware abolished its militia system altogether in 1831. Massachusetts eliminated compulsory service in 1840, followed by Maine, Ohio, Vermont in 1844, Connecticut and New York in 1846, Missouri in 1847, and New Hampshire in 1851. Indiana classified its militia according to age in 1840, and exempted all but the young men from service. New Jersey withdrew the right to imprison a man for failure to pay a militia fine in 1844; Iowa did the same in 1846, Michigan in 1850, and California in 1856." - Mahon, John K, The History of the Militia and the National Guard, p. 83
Not a good situation if you were a supporter of the militia system (as opposed to a professional military).
However, the 1792 Uniform Militia Act explicitly allowed the states to determine who was exempt from militia service. So states divided their militias into two sections, the "organized" militia and the "unorganized" militia. In this way, the letter, though not the spirit, of the 1792 law could be complied with. However, only the "organized" militia would have responsibilities. These people would be volunteers, people who actually wanted to perform militia service; they gradually evolved into the National Guard. These people would have uniforms, guns, and would drill, review and encamp.
The other people were the people who did NOT want to be in the militia. Accordingly, members of the "unorganized" militia were NOT supposed to perform any duty or carry any weapons or have any responsibilities. All that would remain was the nominal authority of the state over them for military manpower purposes. This group of people had no militia responsibilities at all (in some areas they had to register, like for the draft today). In this way states could flaunt the spirit of the 1792 Uniform Militia Act, while nominally keeping to the letter of it.
The term "unorganized militia" was kept in use in subsequent decades as a statutory "reminder" that the state could still obligate its citizens to perform military duty, should it ever want them to. Eventually, U.S. law in the early twentieth century picked up this same usage for the same reason: by creating the "unorganized militia," the United States could guarantee usage of this manpower for military purposes, should the (remote) need ever arise.
Joseph Story noted the dislike for militia discipline in his 1833 Commentaries on the Constitution (3:§ 1890) :
So, being in the "unorganized militia" conveys to you no rights, only the possibility of responsibilities. All it means is that you belong to that class of the militia which has no responsibilities. Being in the unorganized militia allows you to do not a single thing, because only the state and federal governments can create (working together) active militia systems. To date, their interest in doing so has largely concentrated on the National Guard.
Again, let me emphasize that there is not a single right guaranteed to you by virtue of your being in the unorganized militia.
The militia system intended by the framers is utterly defunct nowadays, the Pseudo Second Amendment "militia" advocates have seized upon the phrase "unorganized militia" in the US regulations. The subtle rhetoric trick here is to claim the "unorganized militia", (a term simply meaning eligible citizens) is the same as the "organized militia" (a term meaning amateur army) - EXCEPT when it comes to any State and Federal controls. They thus try to have it both ways, all the good things about the term (military connotations), without any of the restraints implied (government authority). However, it's very much an invention without any basis in fact. They just hope no-one in the audience knows enough history to call them on it, and they're often right.
But the propaganda here has it exactly backwards. The whole "unorganized militia" aspect was a much later legislative maneuver for people to GET OUT of the real (i.e. "organized") militia, akin to say getting out of the draft by being shuffled into a "reserve draft" category. It was for people to escape the conscription-like service requirements, not a license for private paramilitary groups. The structural details of the militia system were concerned with the extremely difficult task of funding and running an effective military without having a large standing army, and had nothing to do with individual gun rights. "Unorganized militia" in modern terms was more a draft-dodging loophole, not a Rambo clause.
It's something like if during the Vietnam War, people could get out of the draft by merely going into the "unorganized draft", which was supposed to come forth if the US was invaded by Vietnam. Formally, if you read that many decades later, you might naively think it actually implied some military service, whereas knowing the historical background gives it a very different aspect.
This whole "unorganized militia" banner is a bit like people calling themselves "draft dodgers", and then claiming veteran's preference because they've been part of a "dodged draft". The word simply means the opposite of what they think it means.
The whole point of creating an unorganized militia was so that the majority of citizens would have no militia responsibilities at all. This is not a big secret that I somehow uncovered; it has been well known among military historians for ages.
For a good reference see: MILITIA - HISTORY AND LAW FAQ
Some standard works on the militia and the American military are:
un·or·ga·nizedThe free dictionary:
adj
Definition of UNORGANIZED : not organized : lacking order or coherence
Adj. 1. unorganised - not having or belonging to a structured wholeunorganised - not having or belonging to a structured whole; "unorganized territories lack a formal government"Seriously, how can something without structure be useful?
unorganized
unstructured - lacking definite structure or organization; "an unstructured situation with no one in authority"; "a neighborhood gang with a relatively unstructured system"; "children in an unstructured environment often feel insecure"; "unstructured inkblots"
2. unorganised - not affiliated in a trade union; "the workers in the plant were unorganized"
nonunionised, nonunionized, unorganized
nonunion - not belonging to or not allowing affiliation with a trade union; "nonunion carpenters"; "a nonunion contractor"
REPEAT: "The Sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia"
It is precisely that.
The concept is to show that this body is not active.
Being a part of it grants you no rights or privileges.
Active Militias, that is THE organised, enrolled, embodied, active (or other term signifying active) Militia, can be supplemented if necessary by the ballot (selection by lot)--in other words drafted from the Unorganised militia draft pool.
The term "unorganized" did not begin to emerge until the 1830s and 1840s, when a massive wave of opposition destroyed the compulsory militia system. Nobody wanted to serve in the militia. State governors and legislators wanted to be able to accommodate this desire, but they were bound by the 1792 Uniform Militia Act, which stated that every white male aged 18-45 would be in the militia.
Militia service was so unpopular that Delaware abolished its militia system altogether in 1831. Massachusetts eliminated compulsory service in 1840, followed by Maine, Ohio, Vermont in 1844, Connecticut and New York in 1846, Missouri in 1847, and New Hampshire in 1851. Indiana classified its militia according to age in 1840, and exempted all but the young men from service. New Jersey withdrew the right to imprison a man for failure to pay a militia fine in 1844; Iowa did the same in 1846, Michigan in 1850, and California in 1856." - Mahon, John K, The History of the Militia and the National Guard, p. 83
Not a good situation if you were a supporter of the militia system (as opposed to a professional military).
However, the 1792 Uniform Militia Act explicitly allowed the states to determine who was exempt from militia service. So states divided their militias into two sections, the "organized" militia and the "unorganized" militia. In this way, the letter, though not the spirit, of the 1792 law could be complied with. However, only the "organized" militia would have responsibilities. These people would be volunteers, people who actually wanted to perform militia service; they gradually evolved into the National Guard. These people would have uniforms, guns, and would drill, review and encamp.
The other people were the people who did NOT want to be in the militia. Accordingly, members of the "unorganized" militia were NOT supposed to perform any duty or carry any weapons or have any responsibilities. All that would remain was the nominal authority of the state over them for military manpower purposes. This group of people had no militia responsibilities at all (in some areas they had to register, like for the draft today). In this way states could flaunt the spirit of the 1792 Uniform Militia Act, while nominally keeping to the letter of it.
The term "unorganized militia" was kept in use in subsequent decades as a statutory "reminder" that the state could still obligate its citizens to perform military duty, should it ever want them to. Eventually, U.S. law in the early twentieth century picked up this same usage for the same reason: by creating the "unorganized militia," the United States could guarantee usage of this manpower for military purposes, should the (remote) need ever arise.
Joseph Story noted the dislike for militia discipline in his 1833 Commentaries on the Constitution (3:§ 1890) :
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.REPEAT TO REINFORCE THE MESSAGE: a category was created to keep the letter of the law, but not its spirit--The Unorganised, Sedentary, reserve, etcetera militia.
So, being in the "unorganized militia" conveys to you no rights, only the possibility of responsibilities. All it means is that you belong to that class of the militia which has no responsibilities. Being in the unorganized militia allows you to do not a single thing, because only the state and federal governments can create (working together) active militia systems. To date, their interest in doing so has largely concentrated on the National Guard.
Again, let me emphasize that there is not a single right guaranteed to you by virtue of your being in the unorganized militia.
The militia system intended by the framers is utterly defunct nowadays, the Pseudo Second Amendment "militia" advocates have seized upon the phrase "unorganized militia" in the US regulations. The subtle rhetoric trick here is to claim the "unorganized militia", (a term simply meaning eligible citizens) is the same as the "organized militia" (a term meaning amateur army) - EXCEPT when it comes to any State and Federal controls. They thus try to have it both ways, all the good things about the term (military connotations), without any of the restraints implied (government authority). However, it's very much an invention without any basis in fact. They just hope no-one in the audience knows enough history to call them on it, and they're often right.
But the propaganda here has it exactly backwards. The whole "unorganized militia" aspect was a much later legislative maneuver for people to GET OUT of the real (i.e. "organized") militia, akin to say getting out of the draft by being shuffled into a "reserve draft" category. It was for people to escape the conscription-like service requirements, not a license for private paramilitary groups. The structural details of the militia system were concerned with the extremely difficult task of funding and running an effective military without having a large standing army, and had nothing to do with individual gun rights. "Unorganized militia" in modern terms was more a draft-dodging loophole, not a Rambo clause.
It's something like if during the Vietnam War, people could get out of the draft by merely going into the "unorganized draft", which was supposed to come forth if the US was invaded by Vietnam. Formally, if you read that many decades later, you might naively think it actually implied some military service, whereas knowing the historical background gives it a very different aspect.
This whole "unorganized militia" banner is a bit like people calling themselves "draft dodgers", and then claiming veteran's preference because they've been part of a "dodged draft". The word simply means the opposite of what they think it means.
The whole point of creating an unorganized militia was so that the majority of citizens would have no militia responsibilities at all. This is not a big secret that I somehow uncovered; it has been well known among military historians for ages.
For a good reference see: MILITIA - HISTORY AND LAW FAQ
Some standard works on the militia and the American military are:
- Cress, Lawrence Delbert Cress. Citizens in Arms: The Army and the Militia in American Society to the War of 1812
- Cunliffe, Marcus, Soldiers and Civilians: The Martial Spirit in America, 1775-1865
- Mahon, John K, The History of the Militia and the National Guard
- Millett, Allan R. & Maslowski, Peter, For The Common Defense: A Military History of the United States of American: Revised Edition
- Riker, William H, Soldiers of the States
- One of the few Law Review articles discussing the historical militia is "The Militia Clause of the Constitution" by Frederick Wiener 54 Harvard Law Review 181(1940).
- See also Adam Smith's Wealth of Nations, Book V, Chapter I (Of the Expences of the Sovereign or Commonwealth), PART I: 16-27 (Of the Expence of Defence) for a critique of the miltia system from 1775.
- Also, David Chandler & Ian Beckett, The Oxford Illustrated History of the British Army (ISBN: 978-0198691785) has a section on the Amateur Military Tradition (I.E., the Militia).
why the hang up about defining what is and is not the militia? The supreme court has ruled that gun ownership is an individual right and is not connected with service in a militia.
ReplyDeleteYou lack a knowledge of the history of these decision by the SCOTUS. This decision undid more than a hundred years of settled law, including other supreme court decisions.
DeleteFurther, there are some credible allegations that the conservative members of the SCOTUS who took this position have had a pattern of conflict of interest that caused this renegade decision -- a decision that was determined by one vote with highly significant dissent.
It is unlikely to last past this particular court, and it is much more likely that the preceding tradition, which is much better grounded in law, will prevail.
You are either ignorant, or cherry picking your facts, or both.
JimF, the SCOTUS was divided on this issue.
DeleteMiller is still out there and remains good law.
The majority in the Heller-McDonald cases acted in an extrajudicial manner by reinterpreting the Second Amendment with any proper amendment of that law.
As such, I believe it is quite correct and proper to ignore the majority decision and follow Stevens' dissent.
or do you have an issue with the rule of law?
No, the firearm was not at issue in Miller, that is why Justice McReynolds note that its use for military purposes does not fall under Judicial Notice.
DeleteThe passage which is usally misterpreted in that decision is this:
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.
Turn that around and it makes more sense:
"We cannot say that the Second Amendment guarantees the right to keep and bear such an instrument without 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."
If the firearm were at issue, the fact that such a weapon was used by the military would fall under the concept of judicial notice.
"If the firearm were at issue, the fact that such a weapon was used by the military would fall under the concept of judicial notice."
DeleteThe definition of judicial notice that I found is this: "Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted. This is done upon the request of the party seeking to rely on the fact at issue. Facts and materials admitted under judicial notice are accepted without being formally introduced by a witness or other rule of evidence, and even if one party wishes to lead evidence to the contrary.
Judicial notice is frequently used for the simplest, most obvious common sense facts, such as which day of the week corresponded to a particular calendar date."
From reading that definition I take it to mean that Justice McReynolds was saying that it was not accepted as common knowledge that a short barrel shotgun was used as a weapon of the militia and therefore was not covered by the 2nd Amendment. Since no one presented evidence to the contrary in the Miller case, the court ruled the shot gun was not a protected weapon. What the court did not rule was that the person could not carry the weapon because they were not a member of the militia. Therefore, I do not see how Miller is shown to be a decision that limits ownership of weapons to only militia members.
Of course, Jim, you know fuck all about law or the Miller decision.
DeleteSimply put--
Sawed off shotguns were used in trench warfare.
Miller was a criminal in possession of an unregistered sawed off shotgun.
Does the fact that sawed off shotguns were used in trench warfare mean that a criminal's possession of it would in anyway be useful to a lawfully created militia?
Since you are a legal idiot, Jim, a defendant doesn't need to present evidence.
Jim goes on to say Therefore, I do not see how Miller is shown to be a decision that limits ownership of weapons to only militia members.
Not only are you a legal idiot, Jim, but you are a complete idiot as well:
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.
Does that last quote from Miller help you understand or do I need to dumb this down further for you?
Laci - The language used clearly indicates that the issue was that the court did not recognize the sawed of shot gun as a legitimate weapon of the milita (depsite the fact that it was used in WW1) and the ruling specifically was limited to not being able to carry that specific instrument. Note the ruling did not say that Miller was restricted from carrying any other type of gun or that his not being in the militia was the reason he could not carry a gun. The ruling was that "possession or use of a "shotgun having a barrel of less than eighteen inches in length" did not have "some reasonable relationship to the preservation or efficiency of a well regulated militia" Miller does not make any statement on other weapons that do have "some reasonable relationship to the preservation or efficiency of a well regulated militia" since they are not mentioned anywhere in the ruling. In fact, since they were specifically left out, I would assume that weapons commonly used by a well regulated militia would be lawful to own - which is what the Supreme Court clarified in the Heller decision.
DeleteOK, then why does the decision say this in the next paragraph?
DeleteThe Constitution as originally adopted granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
In other words, the The Second Amendment must be interpreted toward the obvious purpose of the Second Amendment is to assure the continuation and vitality of that force
I'm, also going to add, Jim, that you must be pretty stupid since you continually ask the same questions.
DeleteYou are fighting a losing battle with me unless you can show that Congress has no power over the militia and that the founders were not concerned with the fact that Congress had that power.
In short, you haven't shown me that the Second Amendment has nothing to do with Article I, Section 8, Clause 16 because you can't do that.
Jim, can you demonstrate that the ownership of sawed off shotguns by criminals contributes to the national defence?
DeleteIf not, could you just shut up.
Nothing in that states that individuals do not have the right to own arms outside of service in the militia. It simply states what the Congress and States can do with the Militia.
DeleteFurther down in the decision is this statement:
"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." So the people responding to the call for the militia were not only allowed to own guns, they were required to own guns. Now I will admit that I do not think the 2nd Amendment requires all citizens to own guns, but it could be interpreted that all males between 18 and 40 are required to own a weapon commonly used by the military today. This to me would be whatever assault rifle is issued to army infantry today.
SO????
DeleteIf it says nothing about it, then it is not part of the issue.
People can own atomic weapons, or government can ban arms ownership totally since the Second Amendment doesn't apply.
It says they needed to provide their own arms
when called for service
What don't you understand about that?
The Subject of the Second Amendment is Well-Regulated militias--not personal arms.
If anything, you shoot yourself in the foot since you keep trying to say its applicable to something which you admit is not covered by the law.
Expressio unius est exclusio alterius ("the express mention of one thing excludes all others"). That is not on mentioned in a statute are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as".
but it could be interpreted that all males between 18 and 40 are required to own a weapon commonly used by the military today
More legal ignorance.
Actual quote from George Mason is:
Mr. Chairman — A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government all ranks of people are subject to militia duty.
Usually, people ignorantly pull 10 USC 311, not realising that the next chapter is 10 USC 312. Militia duty: exemptions.
Only those enrolled in a unit are properly the militia, which is how it has been since the system began.
"Jim, can you demonstrate that the ownership of sawed off shotguns by criminals contributes to the national defence?"
DeleteNo I can't show that... but what does that have to do with gun ownership by individuals? As noted in Miller, the militia members were required to possess arms in common use at the time and the decision was that a sawed off shot gun did not count. Also, they were supposed to provide these arms by themselves which would imply that someone should be allowed to sell them those arms. Again, all of this only applies to the militia members - nothing is stated about individual non militia member ownership of weapons. To my knowledge, there is a current Supreme Court ruling on individual ownership of weapons that states the 2nd amendment allows for it. This did not overrule Miller's decision concerning the Militia and its requirements.
"If it says nothing about it, then it is not part of the issue."
DeleteCorrect - Miller did not rule on whether the 2nd Amendment covered individual rights to own weapons. It ruled that a sawed off shot gun was not a legitimate weapon for use by the militia at that time. Heller is the correct Supreme Court decision to look at on the question of whether or not the 2nd amendment protected an individual right to own weapons. And according to Heller it does. what is your problem with understanding this?
Jim! Jim! Jim!
DeleteHow stupid are you????
As noted in Miller, the militia members
You answer your own question, it doesn't say private individuals.
Have you read Heller-McDonald? I don't think so.
First off, Stevens' dissent in Heller follows the interpretation that I give. McDonald is pure gibberish since the Second Amendment addresses federal, not state powers.
Secondly, the Heller-McDonald decisions are very limited in their scope. The only prevent the prohibition of firearms for home defence by law abiding citizens:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
This did not overrule Miller's decision concerning the Militia and its requirements
It most certainly did, and rewrote the Constitution to boot, but fortunately, most people are like you and don't mind this decision.
10 USC 312 - Militia duty: expemtions
Delete(a)The following persons are exempt from militia duty:
(1)The Vice President.
(2)The judicial and executive officers of the United States, the several States, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(3)Members of the armed forces, except members who are not on active duty.
(4)Customhouse clerks.
(5)Persons employed by the United States in the transmission of mail.
(6)Workmen employed in armories, arsenals, and naval shipyards of the United States.
(7)Pilots on navigable waters.
(8)Mariners in the sea service of a citizen of, or a merchant in, the United States.
(b)A person who claims exemption because of religious belief is exempt from militia duty in a combatant capacity, if the conscientious holding of that belief is established under such regulations as the President may prescribe. However, such a person is not exempt from militia duty that the President determines to be noncombatant.
Sounds like this is a very short list of people exempted from the Militia... not sure what your point was on this.
From Stevens' dissent:
DeleteThe Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
No! No! No! No!
DeleteWhether or not the sawed off shotgun was used by the militia at any time was not at issue.
Judicial notice deals with undisputed facts, and Sawed off shotguns were used by the military in trench warfare.
Now, you're going down the silly route since if we take your argument, that means that the ownership of flintlocks should be unregulated.
It isn't the character of the weapon that matters, it is whether the weapon use and/or possession contributes to the institution of the militia.
My point on the exemptions goes to the fact that people have been trying to get out of militia service for ages. It is not "all the people".
In fact, since I served in the active military, I cannot be considered a member of the militia.
This topic really has nothing to do with civilian gun rights, but deals with the nature of the military.
Laci - that is from the dissent. In applying laws, which part of the judgement is usually used? The majority of the court stated the 2nd amendment protected an individual right to own weapons subject to some state regulations. Just because your opinion is that the dissent was correct does not in fact make it currently the correct interpretation of the law as decided by the Supreme Court.
Delete"In fact, since I served in the active military, I cannot be considered a member of the militia."
DeleteThat is not how I read the exemptions. If you are not currently active duty military, then you are part of the militia.
"Now, you're going down the silly route since if we take your argument, that means that the ownership of flintlocks should be unregulated."
DeleteI did not say that ownership of guns is unregulated. That is not what Heller decided. It stated that some regulations were allowed, so it will probably take several more court cases to flesh out what the Supreme Court decides is a valid regulation and what is not. The decision did say that there is an individual right to own arms, so for sure a total gun ban is not acceptable.
"(5)Persons employed by the United States in the transmission of mail. "
DeleteWonder how many people joined the post office during Vietnam to avoid being drafted? haha.
Look, I don't have the time to waste trying to spoon feed this stuff to you.
DeleteA court can use the dissent if they find it is far more accurate than the majority opinion. There are two types of legal authority: mandatory and persuasive.
Additionally, if the majority opinion is without a legal basis, it can be ignored.
In fact, that's one of the wonders of the Heller-McDonald decisions is that a judge doesn't really need to follow precedent.
or the law as written.
Didn't you get that?
I guess you didn't from all your questions.
Now, I'll post them, but I don't have time to waste trying to give you an education, Jim.
Simple question--has the Second Amendment been modified since it was adopted?
DeleteIn particular, has there been any change in language since Miller was decided?
Failing a showing that there was any change in law which would justify a reinterpretation of the Second Amendment, Miller is controlling.
I find that Stevens' dissent in Heller follows the precedent set by the Miller decision.
Scalia goes out of his way to say that Miller is not applicable and provides no guidance, which is incorrect in my opinion.
"Scalia goes out of his way to say that Miller is not applicable and provides no guidance, which is incorrect in my opinion."
DeleteI will stick with the majority opinion of the Supreme Court of the United States. No disrespect intended, but I think their opinion has more weight on what the law of the United States is than your's does.
Other than it's your uneducated opinion, of which you are entitled.
DeleteSeriously, Jim, what basis do you have for saying their opinion is better than mine?
Straight off, Jim, you're a fuckwit when it comes to the law--so, I don't give a shit what you think because the toilet paper I wipe my arse with has better opinions than yours.
Jim, my opinion on it is far better grounded than yours. Additionally, my criticisms have been echoed by people with better credentials than you have.
But, the majorioty opinions in the Heller-McDonald cases are wrong.
And if you would shut up and learn something by trying to understand my posts on the decisions, you would see it as well.
Although, you tend to be one of those people who don't see what they don't want to see.
So, Jim, you are an ignorant fuck. and your opinions don't mean shit.
But, I'll let you have a wank by seeing them in print.
Straight off, Jim, where did you go to law school and how long have you been practising law?
DeleteI doubt you have any legal education.
So, shut the fuck up with you think this or you think that about the law.
You have no fucking idea of what you are talking about and it shows to me.
Laci - how many years have you served on the Supreme Court? Please note it is not my opinion on the law that I am saying is correct. I am saying that the opinion of the Supreme Court is correct. So my law credentials are not important. Please post your law experience compared to the Justices of the Supreme Court. Please state how many Supreme Court cases you have decided. Please indicate which judgements you have written for the majority decision and which dissents you have authored. If the answer is none, then I would say your opinion less valid than that of a Supreme Court Justice. And I can say all of that without a single curse word or insult intended to disparage you. Also, feel free to keep talking as I enjoy reading your responses and do not feel it is my place to tell anyone to shut up.
Delete"Note: posting personal information will get your comments deleted and you will be banned from posting here."
Delete"Straight off, Jim, where did you go to law school and how long have you been practising law?"
You trying to get me banned Laci? :p
I am admitted to the Bar of the Supreme Court in my jurisdiction.
DeleteYes, Jim, I have written briefs which were actually used in the British House of Lords--the Highest court in the United Kingdom.
I have written appellate briefs, which have been incorporated into judicial decisions.
I have attended top law schools in the US and UK.
So, Jim, yes, my opinions are worthy of consideration--far more than yours.
I should add that I have been admitted to the bar of the Supreme Court and practised for over 20 years.
DeleteSo just to be clear - you have not made any Supreme Court decisions but you have argued cases in front of the Supreme Court. I admit that your legal opinion is good, but in deciding the outcome of Supreme Court cases, the Justices of the Supreme Court opinions outweigh yours - would you not agree?
DeleteNo.
DeleteI'll elaborate upon that, just because someone has gone through the political process of confirmation does not make their opinion any better than mine--especially if their opinions are not made on a proper legal basis.
DeleteYes, the Heller-McDonald decisions sound good to you, but you have no idea of the practise of law. That means you don't have a proper basis for judging what a good decision is from one that is bad.
Let's take the Dred Scot decision, that was made in violation of Common Law Precedent. In particular, Lord Mansfield issued the opinion in Somersett’s Case (AKA R v Knowles, ex parte Somersett (1772) 20 State Tr 1), which was widely taken to have held that slavery was illegal in England:
The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it’s so odious, that nothing can be suffered to support it, but positive law.
Likewise, Joseph Knight's case found the same thing in Scottish law. The Court of Session emphatically rejected Wedderburn's appeal, ruling that "the dominion assumed over this Negro, under the law of Jamaica, being unjust, could not be supported in this country to any extent: That, therefore, the defender had no right to the Negro’s service for any space of time, nor to send him out of the country against his consent: That the Negro was likewise protected under the act 1701, c.6. from being sent out of the country against his consent."
So, just becaus eone has a robe doesn't mean their opinions are legitimate.
Sorry - are you saying that your legal opinion outweighs that of an actual Supreme Court Justice when handing down a decision of the Supreme Court? Are you one of the actual Supreme Court members Laci? I thought the only people allowed to vote on a decision of the Supreme Court were current Justices. Did I miss a class lesson on who decides the outcome of Supreme Court cases?
DeleteIf it has a better legal basis than the opinion in question--yes.
DeleteIn fact, if you weren't thick, Jim, you would have understood that my opinion if it is based in fact carries far more weight than a Unanimous court decision that is based upon faulty legal reasoning.
That is the nature of my job.
Note: posting personal information will get your comments deleted and you will be banned from posting here.
ReplyDeleteI should also add that shows you are losing your argument since you are unable to actually deal with the substance of my statements.
REPEAT:
ReplyDeleteWe are under no obligation to publish your comments, or even to read them. And this includes responding to your idiotic comments.
This especially includes idiotic, repetitive, and annoying comments.
Apparently JimF is unaware that not all SCOTUS decisions in the past have been 'golden'.
ReplyDeleteSome of them are more manure than diamonds.
Those are the decisions that subsequently are overturned, and which do not hodl up well in the longer view of history.
While the Supreme Court has a very important and very real authority, they do not make decisions that are equivalent to the Pople speaking ex cathedra to Roman Catholics, they are not infallible.
Some Justices have been brilliant; Louis Brandeis comes to mind. Others have been more or less incompetent political hacks.
Just because a Supreme Court decision was made does not mean it cannot be undone, and does not mean it is going to hold up in the longer run.
Usually before those bad decisions get undone, they go through criticism and critiques by legal opinion.
A really smart, well educated person knows the difference, is able to discern good from bad reasoning, regardless of the title or authority someone has.
Using your reasoning, every president is equally good, and every presidential policy is equally sound and beneficial, just because someone has been elected... or had the SCOTUS rig their election for them.
I doubt you believe that to be the case; authority is important, but it should not be unquestioned.
Laci has a first class legal mind, and he reasons very well, and grounds his argument in a good legal foundation.
Because you don't know the law, very much like you don't know insurance and fundamental economic principles, you are not able to figure out if a decision is good or bad.
Ignorance is a terrible thing; not recognizing the limits imposed on your by your ignorance is an even more terrible problem.
argumentum ad verecundiam, or the argument from authority is a logical fallacy. In this case, it works like this:
DeleteThe Supreme Court says that the Second Amendment applies to non-militia purposes, that must be true.
But, the problem is that this was a split decision, while the majority did not follow the interpretation that I do, Stevens' dissent DID.
So, it's not like I am blowing this out my arse, Jim.
This is a very complex issue, which you are missing the subtle nuances. There is far more at issue than whether the Second Amendment addresses non-militia purposes, which it does not textually.
Although, I would appreciate your showing me where the Second Amendment EXPLICITLY contradicts me. That is it mentions non-militia purposes such as hunting or self-defence.
"Although, I would appreciate your showing me where the Second Amendment EXPLICITLY contradicts me"
Delete"the right of the people to keep and bear arms shall not be infringed"
Laci could be the best legal mind in the history of the world... if he can't convince at least 5 justices of the Supreme Court that his opinion is correct, then he will never win a case before the Supreme Court correct? So in the real world as of today, the 2nd Amendment legally guarantees an individual right to keep and bear arms that is subject to some state regulations... which state regulations are allowed has not been definitevly defined. Is that a correct summation of the current state of American law at this point in time?
DeleteIt is that you can have guns at home, under a wide range of limitations, yes.
DeleteHowever, that is a very simplistic summation, and of course, you leave out that important phrase for the moment.
Or did you think that the ruling carved it in granite?
Even citizens united is being brought back for further review in the Montana case being considered this court term.
So YOU are agreeing that the judiciary all the way to the Supreme court is an evolving and changing one of interpretation -- in this case by the conservative activist judges?
I'll agree with you, if you agree with that.
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]
DeleteJimF, where the F appears to be his gradepoint average represented by a letter grade, not his initial wrote:
"Although, I would appreciate your showing me where the Second Amendment EXPLICITLY contradicts me"
That would be in the first three words of the Amendment that it explicity contradicts you.
"That would be in the first three words of the Amendment that it explicity contradicts you.
Delete"A well regulated" contradicts the phrase "the right of the PEOPLE to keep and bear arms shall not be infringed"?
And yes I do agree that the laws are always changing and the interpretations of the Supreme Court will change as well. I am glad that you agree with my summation.
A well regulated militia - which is a state approved or federally approved militia - is the basis for the right to keep and bear arms.
DeleteHow many gun owners do yOU know who belong to such a 'militia'? Our modern equivalent of militia is the National Guard. The Naational Guard maintains our arms for the militia, which are consistent with the army grade weapons --- and for the most part, that is NOT what is legally permitted civilians. Further, our National Guard, as the entity which owns and pays for their equipment, does not usually encourage or allow the people who are serving to take those weapons home with them, because they are not personal property.
So if the militia weapons, paid for by the militia and belonging to the militia/National Guard, as distinct from an 18th century militia where people brought a mis-matched collection of their own personal weapons for militia training and other service, YES.
So while it is legally possible and conceivable that the National Guard might wish the people enlisted and enrolled to provide personal weapons for their service, in practice that isn't going to happen, because people don't want to pay for their own weapons for government service and because our National Guard wants more professional equipment with much greater uniformity and less variety in their equipment.
Again - see any of the prior posts where Laci expounds on how militias operated IN THE 18th Century, versus now. Also, remember the most recent SCOTUS decision ONLY permits home ownership, not public carry -- which would seem to contradict the 'bear' part substantially.
What part of this do you not understand?
No Jim, in the fragment you cite--does it give some sort of reason that there is "the right of the PEOPLE to keep and bear arms shall not be infringed".
DeleteMore specifically, does it mention hunting, self-defence, robbing banks, committing mass shootings, or any other purpose?
You can't assume that something is covered in a law if it is not specifically mentioned.
What purpose is specifically mentioned in the Second Amendment?
What reason is specifically given for that right in the Second Amendment?
That specific reason or purpose is given in the first half:
"A well regulated militia being necessary to the security of a free state,"
Cessante ratione legis, cessat ipsa lex.
“It is a basic canon of statutory construction that when the reason of the law ceases, the law itself ceases. Cessante ratione legis, cessat ipsa lex. This principle is also expressed in the maxim ratio legis est anima: the reason of law is its soul.”
Since you are ignorant, Jim, by removing the first half of the Second Amendment Scalia's decision not only judicially amendmended the Second Amendment, but it also voided it.
BTW, Jime, this post Ignorance is the gunloon state of mind was writtien about you.
Deleteif he can't convince at least 5 justices of the Supreme Court that his opinion is correct, then he will never win a case before the Supreme Court correct?
DeleteJim, the fallacious thinking present in this statement is amazing.
You assume that because five justice, one of whom is biased, Scalia, which also makes the Heller-McDonald decision Suspect, makes it a correct decision that will stand the test of time.
Just because five justices have come up with a PoS decision which ignorant fools such as yourself accept because it fits your worldview does not mean it is good law.
It only shows that you are not willing to look beyond your beliefs and escape your ignorance.
The reason that Dog Gone was deaaling with your responses is that I know that you are ignorant and will only waste my time because you want me to agree with you.
But, Jim, you cannot make me agree with you since I know how the game is supposed to be played--which is something that you don't.
Repeating lies and misinformation only further reinforces my opinion that you are ignorant and a waste of my time.