Why Presser v. Illinois is the progunner's worst nightmare.

Of course, Scalia dismissed it in his exposition of mendacity called District of Columbia v. Heller, 554 U.S. 570 (2008), but he also dismissed such pearls as:

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.

and

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

Since they "weren't helpful".

That's putting it mildly--they totally contradict your position.

After all, why not dismiss anything which shows that what you are saying is total bollocks?

The American people are too happily ignorant to notice anyway.

Anyway...

Presser basically is making the same tired argument we hear over and over about being part of an unorganised militia, except that term didn't have actual currency back then in US Federal law.  The court tossed that argument since Presser wasn't part of the enrolled militia.

Even better, Presser actually addressed the incorporation issue.  If Heller is a joke, then McDonald v. Chicago is even worse of a joke since Presser came to the correct conclusion about the matter:

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265]   and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.

Yeah, the Second Amendment relates to congress' power under article I, Section 8, Clauses 15 & 16--not state power.

I thought that Alito was on the ball when he asked if congress' power was "plenary" in the Heller.  Yeah, it is which means that the answer is:

The right is related to the militia and congress' power to arm it

Seriously, you had it right in US v Rybar, 103 F.3d 273 (3d Cir. 1996), WHAT MADE YOU GO FOR THE INTELLECTUALLY DISHONEST POSITION??? DIDN'T THINK YOU WOULD GET CAUGHT????

Back to the story,  Presser concerned people openly carrying while pretending to be a militia and claiming their Second Amendment right, but the court swatted it down saying:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think [116 U.S. 252, 266]   it clear that the sections under consideration do not have this effect.

Oh dear, it's that nasty civic right interpretation.

And, unlike Justice Stevens' version, this one actually got it right on incorporation.

Presser even compares the First Amendment claim:

We have not been referred to any statute of the United States which confers upon the plaintiff in error the privilege which he asserts. The only clause in the constitution which, upon any pretense, could be said to have any relation whatever to his right to associate with others as a military company, is found in the first amendment, which declares that 'congress shall make no laws ... abridging ... the right of the people peaceably to assemble and to petition the government for a redress of grievances.' This is a right which it was held in U. S. v. Cruikshank, above cited, was an attribute of national citizenship, and, as such, under the protection of, and guarantied by, the United States. But it was held in the same case that the right peaceably to assemble was not protected by the clause referred to, unless the purpose of the assembly was to petition the government for a redress of grievances. The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law.

By now, I am laughing my arse off since this case is a serious nugget when looked at in relation to the farce that is Heller-McDonald.  Combine Presser with Miller, and Heller-McDonald is the serious odd man out.

As I have been pointing out, it is a tough stretch to say that carrying weapons in public outside the national defence context is protected (again, the US Constitution makes it clear it addresses NATIONAL Defence and no where mentions self-defence).

I keep mentioning that if the law is silent on the topic, one cannot assume or imply it is somehow addressed, which is something else Presser mentions:

Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

In the case of the Second Amendment, it is silent on personal uses if firearms, unlike state constitutions which specifically mention self-defence.  That was something Justice Stevens pointed out in his dissent.  In fact, some State Constitutions  offer a greater level of protection for "gun rights" than the US Constitution.

Anyway, I think Presser makes it pretty clear the right is tied to militia service:

It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are [116 U.S. 252, 268]   authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine.

As a nation has the right to national defence, a state has the right to legislate for the general welfare.
The ability to regulate or prohibit arms is something which is necessary to the public peace, safety, and good order.
 
It is not for judges to make law, but to interpret it.  It is even less their place for judges to amend the constitution outside the written constitutional framework.  The court went well beyond any constitutional powers that it was granted  by making this decision for there is no constitutional provision which allows for judicial reviews of laws (that comes from Marbury v. Madison, 5 U.S. 137 [1803]).

I keep wishing that someone with more academic clout/prestige would take up these arguments, but it seems that I am the little boy who is saying the emperor has no clothes here.

But, I have loads of evidence he is as naked as a jaybird.

William Rawle on the Second Amendment

NOTE:   The right judicially created by the Heller-McDonald cases does not extend beyond the curtilage (boundaries of the home).

I've been quoting William Rawle a lot lately since it is pretty much a given that there is no right to walk about carrying weapons in such a way that is likely to commit a disturbance of the peace  (see Blackstone, Commentaries on the Laws of England, Chapter XI. Of Offences Against the Public Peace).

William Rawle explains this in relation to the Second Amendment in his treatise "A View of the Constitution of the United States", 125--26 1829 (2d ed.):

"This right ought not, however, in any government, to be abused to the disturbance of the public peace.

An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment."

In other words, people are well within their rights to call the police if they see someone carrying a weapon in public:  after all, that is the police's job to deal with people who could possibly be causing a breech of the peace.

In fact, there are some seriously good legal precedent that say someone carrying a weapon in public must give surety, or at least have some form of licence.

While the Cruikshank case isn't really useful for Second Amendment precedent, the Presser case sure as hell is where it says that the government has the right to licence the carrying of weapons outside the Militia context.

Also, it's interesting that people cite to Rawle and call his treatise a landmark text.  They even mention that Rawle says that the Second Clause is a corollary clause, yet they miss that the word "corollary" implies a relationship:

a statement that follows readily from a previous statement.

In other words, there is a relationship between the first and second clauses of the Second Amendment, whether people want to admit that these days.  The Miller Court reiterated that when it said, "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."

And, as Presser pointed out:

It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are [116 U.S. 252, 268]   authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine.

I find it hard to say that carrying arms in public outside of the militia/national defence context is in any way a protected act by the Second Amendment.

Heller is wrongly decided and does not properly follow the Second Amendment Jurisprudence as set out by the Supreme Court.

the 64 Million Dollar question!

If the right to keep and bear arms is so important: why didn't Maryland, New York, and New Jersey from the original 13 colonies adopt these provisions in their constitutions?  Indeed, why do only 44 states have such provisions.

California, Iowa, Maryland, Minnesota, New Jersey, and New York do not have "right to keep and bear arms" provisions in their state constitutions.

I would add that one of the original colonies also added this provisions to its constitutions in recent time (Delaware).

Here's a sampling:

• Connecticut:  Every citizen has a right to bear arms in defense of himself and the state.  Art. I, § 15 (enacted 1818, art. I, § 17).  The original 1818 text came from the Mississippi Constitution of 1817.
• Delaware:  A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.  Art. I, § 20 (enacted 1987). 
•  Massachusetts:  The people have a right to keep and to bear arms for the common defence.  And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.  Pt. 1, art. 17 (enacted 1780).
• New Hampshire:  All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.  Pt. 1, art. 2-a (enacted 1982).
• Pennsylvania:  That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.  Declaration of Rights, cl. XIII, 1776.  
• Virginia:  That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.  Art. I, § 13 (enacted 1776 without explicit right to keep and bear arms; "therefore, the right to keep and bear arms shall not be infringed" added in 1971).
• Rhode Island:  The right of the people to keep and bear arms shall not be infringed.  Art. I, § 22 (enacted 1842). 

Of these, I find that Massachusetts provision relates only to arms for the common defence and mentions the standing army issue.  In fact, I see that the standing army issue is mentioned in a few of the other original colonies' provisions.

As I said, if this was such an important issue and personal guns were so important: why aren't they mentioned?

Seriously, wouldn't this be top on the list of everybody, the way pro-gunners like telling us how important this "right" happens to be?  Also, why the mentions of the common defence and standing armies if this is about a "personal" right to arms outside that context?

As I said, if you look hard, the pro-gun arguments start to fall apart.

Footnote to this, I didn't add some of the Southern States since the provisions I found appear to be from after the Civil War.

Additionally, this was not an exhaustive study of this topic.

Sources:
State Constitutional Right to Keep and Bear Arms Provisions
NRA-ILA | Guarantees Of The Right To Arms In State constitutions

Meet Presser v. Illinois, 116 U.S. 252 (1886)

I am amazed at how much the Second Amendment debate is held in ignorance: in particular, this case should be front and centre.

I should add that as long as the "civic right" interpretation of the Second Amendment is out there, this is still a valid case.  In fact, while the Heller-McDonald line of cases said this may no longer be applicable, the fact that the court said that "to drill or parade with arms, without, and independent of, an act of Congress or law of the State authorizing the same" would relate to public order means that this is a very relevant case to a world where people want to openly carry arms in public.

Facts:

Herman Presser was part of a citizen militia group, the Lehr und Wehr Verein (Instruct and Defend Association), a group of armed ethnic German workers, associated with the Socialist Labor Party. The group had been formed to counter the armed private armies of companies in Chicago.

The indictment charged in substance that Presser, on September 24, 1879, in the county of Cook, in the State of Illinois, "did unlawfully belong to, and did parade and drill in the city of Chicago with an unauthorized body of men with arms, who had associated themselves together as a military company and organization, without having a license from the Governor, and not being a part of, or belonging to, 'the regular organized volunteer militia' of the State of Illinois, or the troops of the United States." A motion to quash the indictment was overruled. Presser then pleaded not guilty, and both parties having waived a jury the case was tried by the court, which found Presser guilty and sentenced him to pay a fine of $10.

In December 1879, marched at the head of said company, about four hundred in number, in the streets of the city of Chicago, he riding on horseback and in command; that the company was armed with rifles and Presser with a cavalry sword; that the company had no license from the governor of Illinois to drill or parade as a part of the militia of the State, and was not a part of the regular organized militia of the State, nor a part of troops of the United States, and had no organization under the militia law of the United States.

Presser claimed the law violated his rights under the Second Amendment.

Holding: 

"Unless restrained by their own constitutions, state legislatures may enact statutes to control and regulate all organizations, drilling, and parading of military bodies and associations except those which are authorized by the militia laws of the United States."

The Presser Court said:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.

The Court emphatically disposed of Presser's argument that there exists a right to assemble, drill, or march in a militia independent of authorization by state or federal law:

The right voluntarily to associate together as a military company or organization or to drill or parade with arms, without, and independent of, an act of Congress or law of the State authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the State and Federal governments, acting in due regard to their respective prerogatives and powers. The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

In other word, as I have been saying all along, you do not belong to a "Constitutional Militia"  unless you belong to an actual serving organisation which is organised under Article I, Section 8, Clauses 15 & 16 of the United States Constitution.  As per Article VI, Clause 2 of the United States Constitution, that body is the National Guard: whether you like it or not.

In fact, reading Presser, it's pretty clear that the "unorganised militia" argument is seriously nonsensical from a legal point standpoint.  There is no basis for claiming that a reserve pool with no obligation of service (hence Unorganised, Sedentary, reserve, inactive,  general or other term indicating INACTIVITY Militia) has any "right" to arms.

This is especially true if your unit was not created by act of congress and under some form of governmental control.

I would also add that local governments are probably on good ground in strictly regulating open carry rallies by combining this case with the comment in Heller that:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).

Additionally, as I pointed out before the First Amendment protect peaceable assembly.  Any armed group is not "peaceable" in any realistic sense of that word.

No, "well-regulated" does not mean "well-trained"--it means that the organisation is firmly under control

The usual pro-gun argument about the term "well-regulated" in the Second Amendment is that it has something to do with the militia being well-trained, but like most of the mythology surrounding the Second Amendment this takes that passage out of historical and political context.

I like to cite to Adam Smith's comment in wealth of nations that:

This distinction being well understood, the history of all ages, it will be found, bears testimony to the irresistible superiority which a well-regulated standing army has over a militia.[1]

This could would be scary if the meaning were "well-trained" rather than a standing army firmly under civilian control since the fear was that a well-trained, well-armed, professional military could indeed overrun a poorly trained civilian force.


Additionally, the Constitution was partially a response to Shays Rebellion, which was an out of control mob: not a militia.  Shays Rebellion was firmly in the minds of the people who were debating the Constitution and its ratification.  They would not have wanted a militia which was not firmly under control.

As I have said before, the issue isn't personal arms in the Constitutional debates as much as it is the nature of the defence establishment and civilian control over the military.  To say that the term "well-regulated" does not refer to making sure that the militia is firmly under civilian control is to show a degree of historical ignorance which is staggering

Where this falls into the topic of a militarised police force isn't so much that a police force is like Scotland Yard or the French Gendarmerie Nationale as much as that it is firmly under civilian control and well-regulated by rules and procedures which protect the people.

A strong, independent judiciary is a necessary institution in such a society to make sure that the military/police are kept under control.  That was why the Constitution specifically sets limits for the Judiciary and guarantees protections in the legal process, both civil and criminal.

As another commenter said, "well-regulated means exactly that", whether one is talking about militias or professional military. 

[1] Adam Smith, Wealth of Nations, Book V, Chapter I-Of the Expences of the Sovereign or CommonwealthPART I Of the Expence of Defence V.1.27

Quote of the day

The class of cases to which the constitutional provision applies is widely different from the right of a private citizen to bear, concealed about his person, deadly weapons or arms. In the one, they are kept and carried in conformity with the Constitution and laws of the United States, with a certain specific object in view; in the other, they are kept and carried for private purposes, wholly independent of any constitutional regulation, and to answer private ends, wh[i]ch have no bearing upon the security of the State[.] If this idea be correct, then it follows that when arms are not kept or used for the defense of the State or Federal government, the manner of carrying and mode of using them are subject to the control and authority Of the State Legislature.

State v. Buzzard, 4 Ark. (2 Pike) 18 (1842)

Patrick Henry's "That every man be armed."

This is the entire text of Patrick Henry's speech in context, but I will put US Constitution Article I, Section 8, Clause 16 as a reminder of what it says:

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;

The Citation for Henry's speech is The Debates in the Several State Conventions on the Adoption of the Federal Constitution (3 Elliot's Debates 384-7), Virginia, Saturday, June 14, 1788.

Mr. HENRY. Mr. Chairman, in my judgment the friends of the opposition have to act cautiously. We must make a firm stand before we decide. I was heard to say, a few days ago, that the sword and purse were the two great instruments of government; and I professed great repugnance at parting with the purse, without any control, to the proposed system of government. And now, when we proceed in this formidable compact, and come to the national defence, the sword, I am persuaded we ought to be still more cautious and circumspect; for I feel still more reluctance to surrender this most valuable of rights.

As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.

May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.

The argument of my honorable friend was, that rulers might tyrannize. The answer he received was, that they will not. In saying that they would not, he admitted they might. In this great, this essential part of the Constitution, if you are safe, it is not from the Constitution, but from the virtues of the men in government. If gentlemen are willing to trust themselves and posterity to so slender and improbable a chance, they have greater strength of nerves than I have.

The honorable gentleman, in endeavoring to answer the question why the militia were to be called forth to execute the laws, said that the civil power would probably do it. He is driven to say, that the civil power may do it instead of the militia. Sir, the military power ought not to interpose till the civil power refuse. If this be the spirit of your new Constitution, that the laws are to be enforced by military coercion, we may easily divine the happy consequences which will result from it. The civil power is not to be employed at all. If it be, show me it. I read it attentively, and could see nothing to warrant a belief that the civil power can be called for. I shall be glad to see the power that authorizes Congress to do so. The sheriff will be aided by military force. The most wanton excesses may be committed under color of this; for every man in office, in the states, is to take an oath to support it in all its operations. The honorable gentleman said, in answer to the objection that the militia might be marched from New Hampshire to Georgia, that the members of the government would not attempt to excite the indignation of the people. Here, again, we have the general unsatisfactory answer, that they will be virtuous, and that there is no danger.

As you can see, Henry's concern is not for private arms, but the fact that Congress has the power to arm the militia.

Additionally, the issue of the use of military force is mentioned, since the real core issue was civilian control of the military, whether it is a professional standing army or the civilian militia. A militia needed to be under civilian control (i.e., "well regulated") as much, if not more so, than a professional army if there is to be domestic tranquility.

Anyway, when read as a whole, this text proves that this speech deals with the nature of the military force and how it was to be armed as opposed to anything else.

Why does this seem to be missing from most of the discussions about the Second Amendment

Don't forget Article I, Section 8, Clause 16 of the Constitution, which is something that need needs to be mentioned in relation to the Second Amendment. This provision gives Congress the power to arm the militia.

That was really what the Second Amendment refers to.

No conversation about the Second Amendment should neglect that this is part of the Constitution:

(Congress has the power} To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Most of the quotations that are taken out of context refer to this part of the Constitution and the concern that congress would fail to arm the militia in preference for the federal army.

It's really annoying me that the Second Amendment is not only misquoted and taken out f historical context, but it is taken out of Constitutional Context:

The Constitution, as originally adopted, granted to the Congress power --

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

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. US v. Miller, 307 U.S. 174 (1939)

I'm sick of people pretending that the first part of the Second Amendment is irrelevant to the Second.

And even sicker of people who would make any part of it irrelevant.

The right of the people to keep and bear arms is tied to the well regulated militia which is necessary for the security of the free state.

It must be read as a whole, not a part.

Billy Johnson [finally] says something intelligent.

I guess if I were to label someone a pseudo-intellectual, it would have to be the NRA's Billy Johnson since he can appear to think and say some interesting things, but (APU) they don't stand up to scrutiny.

In this case he accidentally made my case for me. That means he really doesn't think through what he says--he just likes the sound of his voice and thinks he looks hip.


Seriously,  if goofball wants to follow what the founding fathers believed in, then he should require military training in schools. 

After all, the Second Amendment does start out "a well-regulated militia being necessary for the security of the free state".

But, the "pro-gun" side wants to forget that part and say it's irrelevant, but that means the Second Amendment is garbage.

After all, why start the sentence with something that is unrelated to the rest of the sentence?

That is called a nonsequitur.  You are saying the Founding Fathers wrote gibberish.The Second Amendment was implemented by the Militia Acts of 1792, not the Guns for Irresponsible Dickheads Acts of 1792.
 
In fact, did hard enough and do some serious research and you will find the part about the "well-regulated militia" (which means under civilian control--not an armed mob) is integral to the Second Amendment.

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.--Joseph Story, Commentaries on the Constitution 3:§§ 1890

I've noticed the hemming and hawing whenever anyone mentions that the Second Amendment right is tied to the responsibility of actually serving in an Article I, Section 8, Clause 16 Militia.  Not saying that you are liable for service as a member of the "unorganised militia" since that designation confers no right or duty other than you can be called up for service.

It's the same thing as saying having a draft card makes you a member of the US military.

Anyway, I can guarantee that once it becomes obligatory and the duties are reimposed that we will see a repeat of what Justice Story mentions above.

So, I say bring it--make people perform the requisite duties under the Second Amendment.

And that means military training in addition to marksmanship.

Then, let's see how many people will be screaming for their Second Amendment rights.

BTW, I support your Second Amendment right--please go to your nearest National Guard recruiting office to exercise it.

As I said, that's not what you want to hear, but what you should be hearing.

See also:

• NRA: Let's Make Schoolkids Shoot Guns "to Advance to the Next Grade"
• NRA Floats Idea Of Kids Needing To Show Gun Proficiency "To Advance To The Next Grade" | Blog | Media Matters for America

The real history of the NRA and gun control in America

Judge Richard Posner on Scalia's dismissal of the first clause in the Heller decision

It's nice when the leading CONSERVATIVE jurist backs up my opinion.

Similarly, the book’s defense of the Heller decision fails to mention that most professional historians reject the historical analysis in Scalia’s opinion. Reading Law quotes approvingly Joseph Story’s analysis of preambles—“the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute”—but fails to apply the analysis to the preamble of the Second Amendment, which reads: “A well regulated Militia being necessary to the security of a free State.” The preamble implies that the Second Amendment (which creates a right “to keep and bear arms”) is not about personal self-defense, but about forbidding the federal government to disarm state militias. Contra Story, Justice Scalia treated the preamble dismissively in his opinion in Heller.

Actually, the proeme should act as a built in sunset clause.  It states the purpose for which the law was written, and once that purpose is no longer necessary: neither is the law.

In other words, those who would ask that we ignore it are tacitly admitting that the Second Amendment has no place in 21st Century America.

And if we are going to get into it, Aymette v State, 2 Humphreys 154 (Tenn. 1840), also contradicts what Scalia claims, which is " Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court’s 1840 decision in Aymette v. State, 21 Tenn. 154. The case does not stand for that broad proposition; in fact, the case does not mention the word “militia” at all, except in its quoting of the Second Amendment . Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons.":

 We think there is a manifest distinction.  In the nature of things, if they were not allowed to bear arms openly, they could not bear them in their defence of the state at all.  To bear arms in defence of the state is to employ them in war, as arms are usually employed by civilized nations.  The arms, consisting of swords, muskets, rifles, etc., must necessarily be borne openly; so that a prohibition to bear them openly would be a denial of the right altogether.  And, as in their constitution the right to bear arms in defence of themselves is coupled with the right to bear them in defence of the state, we must understand the expressions as meaning the same thing, and as relating to public, and not private, to the common, and not the individual, defence...

 ...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.

If the authorities are not helpful to his argument, it is because they contradict that argument.

Or did Scalia not bother actually reading Aymette and hope that no one else would and call him on it?

As is the case with most "pro-gun" arguments, Scalia's opinion in the Heller case does not withstand close scrutiny.

Three supreme court justices on the Second Amendment

That famous quote from Chief Justice Warren Burger

Let's not forget Justice William O. Douglas’s dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972).  Don't forget that Douglas was actually on the court at the time of US v. Miller (you did actually read the decision--didn't you?).

Douglas' successor on the Court, Justice John Paul Stevens:

For more than 200 years following the adoption of that amendment, federal judges uniformly understood that the right protected by that text was limited in two ways: First, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus, in United States v. Miller, decided in 1939, the court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”

When I joined the court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.

Sorry, but saying the Second Amendment is not related to the militia is not only textually incorrect, it is historically and legally incorrect.

As I said in another post, if you want to exercise your Second Amendment right, you can get all the gear paid if you join the national guard, which is the Article I, Section 8, Clause 16 militia.  That also points out the silliness of asserting that the Second Amendment right is not related to the preservation or efficiency of a “well regulated Militia.”

You've got to pay for one (and go through the legal procedures) to be able to own a firearm if it is not related to the preservation or efficiency of a “well regulated Militia.”

That clause in the US Constitution is what makes a militia "constitutional", not quotes from the founding fathers.

OK, even though  I think the Heller and McDonald "decisions" are complete bullshit--I should at least quote them as well:

Scalia from Heller:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Alito from McDonald:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

I know that Heller held that registration and background checks were A-OK.

No matter how you look at it--an unfettered right to personal arms is a fantasy.

It will be even more of a fantasy as Heller and McDonald are dissected in law journals and found to be composed of horseshit.

Exercise your Second Amendment right and get a free M-4 from the government!!!!

I know all of you think that you are entitled to a free assault rifle if you are going to exercise your Second Amendment right.

Well, guess what.

That is a fact, the government WILL give you a free M-4 assault rifle and everything you need to exercise your Second Amendment right

For more information on how to exercise your Second Amendment right and get that FREE M-4 assault rifle.

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This site will happily give you all the information you need to properly and legally exercise your Second Amendment right.

Sanity makes a come back

This is in regard to Second Amendment Scholarship, in particular the interpretation of that clause of the Constitution which references "a well-regulated militia".

Politico published an article by Michael Waldman called "How the NRA rewrote the Second Amendment", which basically says everything I have been saying all along about that part of the Constitution.

Many are startled to learn that the U.S. Supreme Court didn’t rule that the Second Amendment guarantees an individual’s right to own a gun until 2008, when District of Columbia v. Heller struck down the capital’s law effectively banning handguns in the home. In fact, every other time the court had ruled previously, it had ruled otherwise. Why such a head-snapping turnaround? Don’t look for answers in dusty law books or the arcane reaches of theory.

So how does legal change happen in America? We’ve seen some remarkably successful drives in recent years—think of the push for marriage equality, or to undo campaign finance laws. Law students might be taught that the court is moved by powerhouse legal arguments or subtle shifts in doctrine. The National Rifle Association’s long crusade to bring its interpretation of the Constitution into the mainstream teaches a different lesson: Constitutional change is the product of public argument and political maneuvering. The pro-gun movement may have started with scholarship, but then it targeted public opinion and shifted the organs of government. By the time the issue reached the Supreme Court, the desired new doctrine fell like a ripe apple from a tree.

Read more: http://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment-106856.html#ixzz32IACUa4h

Saul Cornell on Heller

I may not agree with him on everything, but he is pretty bang on in the American Constitution Society blog post History and 'Heller': The Past as a Two-Edged Sword. I thought about excerpting it, but it's pretty good:

In District of Columbia v. Heller, Justice Scalia engaged in a revisionist exercise, rewriting history to further his ideological agenda. If you have any doubts about this proposition, just consider the following: according to Heller’s logic, it would have been okay for the first Congress to pass a law making muskets illegal in the District of Columbia, but Congress would have been prohibited from banning dueling pistols. Such a conclusion is pretty hard to reconcile with the Amendment’s text and history.

Scalia’s majority opinion is an example of the new originalism. Following the wacky logic of this theory, Scalia argues that the Founding era would not have treated the Amendment’s preamble as the “key to open the mind of the makers” of the text. Instead, Justice Scalia believes that the average competent speaker of eighteenth-century American English would have looked at the text and said, “Yep, we should read this backwards.” (Just try to find a John Marshall decision where he reads a text backwards.) Where does the evidence for this novel technique come from, you may ask? The answer: from legal treatises written in the middle of the 19th century. Either Justice Scalia does not understand that legal thought changed in the tumultuous decades after ratification or he believes in time travel. (I hope it is the latter, since that would be crazy but interesting. The former claim is just intellectually embarrassing.)

 

Heller’s misuse of history borders on the scandalous, but we are pretty much stuck with it. The decision also points to history as the starting point for evaluating gun laws. Of course, this raises the thorny question about which history matters most when seeking to understand the meaning and scope of the right: Founding era, Reconstruction, the last century (or the future—Heller already assumes the existence of time travel—why not)?

 

Some gun rights advocates interpret Heller’s assertion that “constitutional rights are enshrined with the scope they were understood to have when the people adopted them" to mean only laws on the books in 1791 count. This claim about original meaning is seriously flawed. The original meaning of a text is not the same as the original expected application of the text. Indeed, Scalia’s opinion mocks the idea that the right to bear arms would only apply to Revolutionary era muskets; so, if that it is true, it is hard to see how only laws regulating muskets are legal from a constitutional perspective.

 

Finally, gun rights champions ought to be a bit more careful about what they wish for, because sometimes wishes come true. If we froze the Second Amendment’s meaning and scope as of 1791, it would mean no right to stand your ground; no right to carry, in most cases; required government inspection of privately owned firearms; and a host of other regulations. Perhaps we should turn the clock back to 1791 and give gun rights extremists the real historical Second Amendment they crave.

I trust Saul Cornell on this subject far more than some asshole in the internet.

Fake gun quotes.

You know how I keep saying that if you actually have a brain, can do research, and go and cite check those pro-gun quotes out there, that they usually are inaccurate and misleading.

Gawker has a few of these, but I particularly like this one:

"Arms in the hands of the citizens may be used at individual discretion for the defense of the country, the overthrow of tyranny or private self defense."

FALSELY ATTRIBUTED TO: John Adams.

TRUTH: A version of this was even used by the NRA for several years. Because what Adams—federalist, signer of the Sedition Acts, and perennial pessimist about human nature—really liked was armed mobs. In fact, this is a bastardization of a longer quote in defense of the Constitution, which says something very different—namely, that armed untrained citizens in mass posed a threat to liberty and constitutional government:

To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.

I've already posted a link that showed most people were appalled by the anarchy which followed the War for American Independence (with a few exceptions, such as Jefferson).  Things like Samuel Adams  statement that "the man who dares rebel against the laws of a republic ought to suffer death."

Abigail Adams wrote about her anxieties for Massachusetts and her disappointment in the behavior of some of its inhabitants n a letter to Thomas Jefferson from 29 January 1787:

With regard to the tumults in my Native State which you inquire about, I wish I could say that report had exaggerated them, it is too true Sir that they have been carried to so allarming a Height as to stop the courts of justice in several Counties. Ignorant, restless desperadoes, without conscience or principals, have led a deluded multitude to follow their standard, under pretence of grievances which have no existence but in their own imaginations. (3)

According to Abigail Adams, the grievances of those closing the courts in Massachusetts

Abigail snappishly dismissed the demands and grievances of these "mobish insurgents" who were "sapping the foundation, and destroying the whole fabrick" of the state:

Some of them were crying out for a paper currency, some for an equal distribution of property, some were for annihilating all debts, others complained that the Court of common pleas was unnecessary that the sitting of the general court in Boston was a grievance. By this list you will see the materials which compose this rebellion and the necessity there is of the wisest and more vigorus measures to quell & suppress it…(4)

She firmly believed that "these people make[?] only a small part of the State." Time and attention to the true causes of the problems by "the more Sensible and judicious" residents would resolve the situation.

Benjamin Franklin had no sympathy for "the mad attempts to overthrow" the Massachusetts Constitution or "the wickedness and ignorance of a few, who, while they enjoy it, are insensible of its excellence." Franklin, like Samuel Adams, had little patience for those who he believed sought to undermine or overthrow a government constituted by and for the people.

I've also mentioned that James Madison said:

 "There never was a government without force. What is the meaning of government? An institution to make people do their duty. A government leaving it to a man to do his duty, or not, as he pleases, would be a new species of government, or rather no government at all."

Additionally, the Constitution makes it pretty clear in Article III, Section iii what it thinks of waging war against the United States.  And despite your bullshit to the contrary, the Second Amendment really doesn't explicitly repeal that section of the Constitution.

I know at least one of you doesn't understand the meaning of this passage, but I will quote it again anyway:

Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.–Dennis v. United States, 341 U.S. 494 (1951)

I think Abagail Adams pretty much sums up the situation in regard to using the Second Amendment to justify insurrection:

Ignorant, restless desperadoes, without conscience or principals, have led a deluded multitude to follow their standard, under pretence of grievances which have no existence but in their own imaginations.

A couple of Supreme Court Justices on the Second Amendment

Let's start with Chief Justice Warren Burger, a Conservative who was Chief Justice from 1969 to 1986:

Of course, that was before the term "conservative" came to have the meaning along the lines of being out of touch with reality or some kind of idiot in US English.

Next, we have another long sitting Justice, William O. Douglas, who was on the court for 36 years and 209 days (1939–75) which is the longest tenure in the history of the Supreme Court.  He was on the court at the time US v. Miller was decided, but was not part of the panel that heard the case.

The quote is from Adams v. Williams, 407 U.S 143, 150 -51 (1972)

Time magazine called Douglas "the most doctrinaire and committed civil libertarian ever to sit on the court".  Don't you think that such a person would come out for "gun rights" if such a concept actually existed?

Additionally, wouldn't his being on the Court when Miller was decided give him some sort of insight into the meaning of the decision?

And let's not forget the reference to Aymette v. State, 2 Humphreys 154 (Tenn. 1840) in Miller.  Aymetter says:

     In the former part of this opinion we have recurred to the
circumstances under which a similar provision was adopted in
England, and have thence deduced the reason of its adoption, and
consequently have seen the object in view when the right to keep
and bear arms was secured.  All these considerations are left out
of view in the case referred to, and the court confine themselves
entirely to the consideration of the distinction between a law
prohibiting the right, and a law merely regulating the manner in
which arms may be worn.  They say there can be no difference
between a law prohibiting the wearing concealed weapons and one
prohibiting the wearing them openly.

     We think there is a manifest distinction.  In the nature of
things, if they were not allowed to bear arms openly, they could
not bear them in their defence of the state at all.  To bear arms
in defence of the state is to employ them in war, as arms are
usually employed by civilized nations.  The arms, consisting of
swords, muskets, rifles, etc., must necessarily be borne openly; so
that a prohibition to bear them openly would be a denial of the
right altogether.  And, as in their constitution the right to bear
arms in defence of themselves is coupled with the right to bear
them in defence of the state, we must understand the expressions as
meaning the same thing, and as relating to public, and not private,
to the common, and not the individual, defence.

     But a prohibition to wear a spear concealed in a cane would in
no degree circumscribe the right to bear arms in the defence of the
state; for this weapon could in no degree contribute to its
defence, and would be worse than useless in an army.  And, if, as
is above suggested, the wearing arms in defence of the citizens is
taken to mean the common defence, the same observations apply.

     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.

Gun Control: ‘Liberal’ TV Anchors Alter Stance On Second Amendment

I am blatantly ripping off the title of this piece mostly because it it pure rubbish.  You might have a big alteration in the US Main Stream Media "position" on the Second Amendment if they came out and said that a right to arms outside the Militia Context was pure rubbish.  But, people still to the rest of the sentence want to talk about "personal gun rights".

On its face, the Second Amendment comes right out and says "A well regulated militia being necessary for the Security of the Free state".  Well if its fucking necessary, then it MUST have some relevance.  That's why US v. Milller (307 U.S. 174 [1939]) says:

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.

I have emphasised the above passage to point out that this decision says that the Amendment must be read as a WHOLE as the First sentence gives the purpose of the right and the second part tells how it would be implemented.  It's a sunset clause for those educated enough to understand it (which Scalia did not) You have just said that the Second Amendment is no longer valid if you say that the first part is irrelevant.  Although, for all his sophistry about Second Amendment linguistics, Scalia failed to actually address the Miller decision saying that it wasn't helpful to his analysis.

No shit, Sherlock, the decision totally contradicts what you did.  Especially if one reads the cryptic  Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840) reference at the end of this paragraph from Miller:

>In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

Aymette  says:

To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.

Justice McReynolds taught law at Tennesse's Vanderbilt University, I am sure he was quite aware of this reference which has gotten lost in the mix. And what he is saying is that the Second Amendment's use of the phrase to keep and bear arms has a military sense, and no other.

Anyway, there is far more proof that the Second Amendment relates to an institution which is as relevant to modern US society as the direct appointment of Senators.   As such, it is no bar to gun control.

Or to once again quote Justice William O. Douglas’s dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972).  Reminder Justice Douglas was on the SCOTUS at the time of US v. Miller:

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL concurs, dissenting.

My views have been stated in substance by Judge Friendly, dissenting, in the Court of Appeals. 436 F.2d 30, 35. Connecticut allows its citizens to carry weapons, concealed or otherwise, at will, provided they have a permit. Conn. Gen. Stat. Rev. 29-35, 29-38. Connecticut law gives its police no authority to frisk a person for a permit. Yet the arrest was for illegal possession of a gun. The only basis for that arrest was the informer’s tip on the narcotics. Can it be said that a man in possession of narcotics will not have a permit for his gun? Is that why the arrest for possession of a gun in the free-and-easy State of Connecticut becomes constitutional?
The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.
The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be 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. I share with Judge Friendly a concern that the easy extension of Terry v. Ohio, 392 U.S. 1, to “possessory offenses” is a serious intrusion on Fourth Amendment safeguards.
“If it is to be extended to the latter at all, this should be only where observation by the officer himself or well authenticated information shows `that criminal activity may be afoot.’” 436 F.2d, at 39, quoting Terry v. Ohio, supra, at 30.

The Second Amendment in Art

A sort of cross post from my blog and repost again on this blog. But, I get annoyed when people keep talking about the Second Amendment and "supporting the Second Amendment", yet any discussion of it is totally out of context. That is why I am reposting this. These are paintings from two prominent collections of US art.  Instead of people carrying weapons outside the militia context, we have examples of the Muster Day, which is when the able bodied men were obligated to enroll and drill in their respective militia units.

This is Charles Henry Granger’s Muster Day which is in the National Gallery in Washington, DC.

There is another version of this at the located at the Pennsylvania Academy of Fine Arts in Philadelphia called Militia Training by James G. Clonney (1812 – 1867).

While able-bodied citizen between the ages of eighteen and forty-five were considered members of the militia under the militia act of 1792, The annual muster day was how they accomplished the actual enrollment of the members into their units. The Militia Act stated:

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, 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, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment,

There's that nasty word, enrollment, which is what one needed to do to actively be a member in a militia unit. And as any person with serious knowledge of the militia system will ell you that service was compulsory.

Local companies of militia would gather annually for parade and inspection at their regiment’s muster day which often involved a thousand or more men from half a dozen towns. Food and alcohol vendors, showmen, fiddlers, auctioneers, charlatans, gamblers, and several thousand spectators turned these gatherings into regional festivals in an era of few such diversions. Muster days were structured social events in a regimental towns in ways not duplicated since. By 1830, muster days were under attack from those who resented the required participation. They were joined by temperance advocates, who objected to the considerable public drunkenness attending each muster, and later by critics of the Mexican War, who claimed that the existence of a peace-time militia had in fact led to this conflict.

“Their general good conduct on the field was creditable to officers and soldiers – with the exception of a few, (such as never know how to leave off when they have done), who fired promiscuously about the plain a long time after they had been dismissed, a practice always disreputable to good soldiers and the officers to whom they belong. the occasion attracted an unusual assemblage of spectators, pedlers, rumsellers, rumdrinkers and gamblers; whose noise, ribaldry, intoxication, and violation of the laws in the face and eyes of the authorities, was disgraceful to the place, to the occasion, to those specially engaged in it, and to all who looked on and tolerated it. We leave it to the people to judge whether there be more good than evil derived from ‘making a muster.’” –Report of the Amherst Muster Day from The Farmers’ Cabinet, 1834

Exemptions to Militia service were:

Vice President, federal judicial and executive officers, congressmen and congressional officers, custom-house officers and clerks, post-officers and postal stage drivers, ferrymen on post roads, export inspectors, pilots, merchant mariners, and people exempted under the laws of their states”notwithstanding their being above the age of eighteen and under the age of forty-five years.”

Or as the quote goes: “I ask, sir, what is the militia? It is the whole people, except for a few public officials.”
— George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788 (that should be quite a few public officials).

So, militia service was NOT universal. In fact, Men actively sought exemption from militia service. This was a reason for the carnival atmosphere at muster days. Again from Story:

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.

To be quite honest, people had jobs and other things to do than militia service and sought exemption from that duty. The muster day had a carneval feeling because it made the obligation less painful. Still there was an obligation to perform militia service. This was compulsory military duty which required time away from your work.

Now,people are demand the right without the obligation incumbent to that right.

True Confession

I know that the usual gunloon belief is that people who are "anti-gun" have no experience of firearms, hate guns, or are just "bigoted against guns".

In fact, I've noticed that whenever anyone who is a gun owner comes out for anything which might be remotely considered to be "reasonable" the gunloons shoot him down (e.g., background checks).  I can give you examples of Smith and Wesson's agreement with the Clinton Administration where S & W agreed agreed to were; to sell guns with locks, to build the locks in the weapons within two years, implement smart gun technology, and take ballistic fingerprints of its guns.  Or Former Field and Stream Editor, Dick Metcalf Supporting gun control with this statement:

“I bring this up,” he wrote, “because way too many gun owners still believe that any regulation of the right to keep and bear arms is an infringement. The fact is that all Constitutional rights are regulated, always have been, and need to be.”

The pro-gun side will call the people who admit the US has a serious problem with firearms all sorts of nasty name: including "sheeple".  Bus, isn't the term "sheeple" referring to people who follow and don't think?  Isn't it implying a certain amount of intellectual dishonesty?

Anyway, I bet you wouldn't guess that I was once one of the gun rights fold?

Yep, serious gun rights.  Maybe on the verge of militia movement.  What happened?

I grew up.

First off, I'm probably a LOT better traveled than most of you.  And guess what?  Lots of other countries have guns!  Yeah, they do.

As for the Second Amendment, I actually looked into it and its history.  I didn't bother with the books by the pseudo-scholars.  Does the term taking things out of context have any meaning to you?  trust me, that is what they do.  And if you think for yourself, you will see that. For example:

The current gun control debate has resurrected a quote allegedly from George Washington that goes like this: "A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.”  The quote is floating around on Facebook and on various anti-gun control blogs like "Ammunition Depot"  and "Famous Second Amendment Quotes."  Sometimes the quote has a source, usually the Boston Independent Chronicle, January 14, 1790 but usually is just attributed nakedly to George Washington.

The actual quote comes from Washington's address to Congress on January  8th, 1790 and goes like this: "A free people ought not only to be armed, but disciplined; to which end a Uniform and well digested plan is requisite: And their safety and interest require that they should promote such manufactories, as tend to render them independent others, for essential, particularly for military supplies."  Note that the quote has nothing to do with gun rights and is clearly concerns properly equipping the military.

That is not a unique example of how the gun rights crowd distort the Second Amendment historical roots.

Anyway,you need to go beyond your own comfort zone here.  Because if you really want to believe  in the gun rights version of the Second Amendment, because that's the way you want it to read, then you are going to have a serious problem dealing with the truth.  But, that's what the gun rights people want you to do--accept lies.

You are going to actually have to read the primary sources and do some historical research on your own.

It requires actually thinking for yourself.

Let's toss in a well meaning home maker who lived near my mother getting murdered.  Not really anyone who was close to my family, other than she lived near my mother.  Then, there are too many other innocent people who get shot.  They may not die, but they drain on the public's resources.

Is my having a gun really that important?  Is it rally the best method of home defence?

Anyway, I have really looked into this topic. I have considered most of your arguments and found them to not be valid.  Especially if the only reason why you believe in gun rights is that is the way you want it to be.

Life is tough, man, grow up if you just want your guns because...

So, I am not really an "anti-gun bigot".  If I were bigoted, I would still be on the "pro-gun" side.