The real meaning of the 2nd Amendment

[woodwork201]

The "collective right" interpretations of the 2ndA were inserted in the federal courts in 1942 in two lower federal court decisions, Cases v. U.S, 131 F.2d 916 (1st Cir. 1942) for the "militia right" and U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942) for the "state's right".

Miller speaks of the collective object of the 2nd Amendment, to perpetuate the general militia principle but that does not speak to the nature of the pre-existing, fully retained right to arms, only recognized and secured by the 2nd Amendment.

Cruikshank says nothing about militia, that case centered on the actions of militant Whites disarming, kidnapping and lynching two former slaves, then citizens in 1873 Louisiana, a state that had no militia, it being disbanded by the governor on orders from Congress.

Presser focused on the actions of a group of individuals who marched as a private paramilitary organization and drilled armed, in the city of Chicago, without any allowance in state or federal law.

Presser held the 2nd Amendment does not secure any right for private citizens to form themselves as a paramilitary organization (militia) and the state law forbidding that action, did not infringe on the right to keep and bear arms, as recognized and secured by the 2nd Amendment and thus was constitutional.

Heller reaffirmed the Presser holding:

"Justice Stevens’ statement that Presser “suggested that… nothing in the Constitution protected the use of arms outside the context of a militia,” post, at 40, is simply wrong. Presser said nothing about the Second Amendment’s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations."​

Thanks for that. I had forgotten about Cases but I don't remember reading Tots before.

Still both cases did refer back to Miller to get the militia based defense of the NFA and FFA.

Presser was convicted under an Illinois law that made it illegal for armed men to parade except for government approved militias groups. The Court didn't consider the constitutionality of the parade (bearing arms) portion of the the Illinois law. So they didn't uphold or overturn, because they didn't consider, the provision. Thus my statement that it was mentioned but that it wasn't until Miller that the idea began to take root.

In any case, like the idea of substantive due process, the collective right was a made up constitutional theory that didn't appear at all until well over 100 years from the ratification of the Bill of Rights.

 

[Abatis]

Thanks for that. I had forgotten about Cases but I don't remember reading Tots before.

Still both cases did refer back to Miller to get the militia based defense of the NFA and FFA.

Cases is very interesting and puzzling at the same time. Yes, it refers to Miller but not to rely on it but to mock it and give a hyperbolic (but true) interpretation of what they call "the rule of the Miller case", only to dismiss and ignore Miller and SCOTUS.

Cases mocks Miller as outdated and holds Miller's statement that "it is not within judicial notice" that a sawed-off shotgun has military usefulness, as a reason to dismiss SCOTUS:

"the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called 'Commando Units' some sort of military use seems to have been found for almost any modern lethal weapon."​

The Cases court goes on and explains what legal determinations -- regarding the possession and use of guns by private citizens -- they would be compelled to sustain, (and the gun control they would be forced to invalidate), if they enforced "the rule of the Miller case":

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"if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,-- almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-- is in effect to hold that the limitation of the Second Amendment is absolute.​

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Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns . . . "​

It's clear that Cases cannot be read to say Miler demands an interpretation of the 2ndA that compels a militia conditioning of the right; it says the opposite! Cases says Miller says the 2ndA protects the possession and use of military arms by "private persons not present or prospective members of any military unit'.

That outcome of course was deemed unacceptable (even though it was legally correct). The Cases court then opined (without any legal justification) that the framers couldn't possibly have intended to bind Congress so strictly.

Now the Cases court had a clean slate. The Cases court turns to the facts of the case and since the "Miller rule" is now cast aside, the focus of SCOTUS on the type of arm and its military usefulness, can also be cast aside.

The Cases court (after acknowledging that the possession and use of the revolver would actually be protected under Miller) shifts the focus from the weapon's usefulness, to the mindset of the person and creates a mandate for his physical attachment to a military organization or intent to join one, before claiming any 2nd Amendment immunity.

The Cases court changes the protection criteria for the 2nd Amendment in US courts:

"We therefore turn to the record in the case at bar. From it it appears that on or about August 27, 1941, the appellant received into his possession and carried away ten rounds of ammunition, and that on the evening of August 30 of the same year he went to Annadale's Beach Club on Isla Verde in the municipality of Carolina, Puerto Rico, equipped with a .38 caliber Colt type revolver of Spanish make which, when some one turned out the lights, he used, apparently not wholly without effect, upon another patron of the place who in some way seems to have incurred his displeasure. While the weapon may be capable of military use, or while at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber, still there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career."​

And Abracadabra! The "militia right" interpretation of the 2nd Amendment was created and inserted into the federal courts of the USA where it would remain for 66 years to extinguish the claims of US citizens of a right to arms in US courts.

US v Tot is on shakier ground. The Tot court, without any examination to justify the statement, just declares:

"It is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power."​

And Abracadabra! The "state's right" interpretation of the 2nd Amendment was created and inserted into the federal courts of the USA where it would remain for 66 years to extinguish the claims of US citizens of a right to arms in US courts . . .

Heller, with the simple holding that the 2ndA secures an individual right without militia conditioning, invalidated Cases and Tot and their illegitimate reasoning and rendered infirm the dozens of subsequent lower federal and state court opinions that are grounded in Cases and Tot.

.

 

[Abatis]

Presser was convicted under an Illinois law that made it illegal for armed men to parade except for government approved militias groups. The Court didn't consider the constitutionality of the parade (bearing arms) portion of the the Illinois law. So they didn't uphold or overturn, because they didn't consider, the provision.

Of course the Court upheld the one section of state law by dismissing Presser's claim of constitutional protection of the action of marching armed without permission. The Court used severability to justify not examining the entire militia code of Illinois, the specific challenged statutes were examined under Presser's 2ndA claim and deemed legitimate.

"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 and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. . . .​

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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.​

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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 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."​

 

[JoeB131]

When was the last political assassination in this country? So no, it doesn’t happen every day here even with our guns and you left wing, violent fascists.

It doesn't happen here because we have highly trained bodyguards for most of our leaders. If only the rest of us had such protections.

 

[JoeB131]

We already have laws to keep guns out of the hands of crazies. Those who sell guns to a nutcase should be nailed for selling them a gun, but they want the money more than they care about what happens sequentially, so it will take some doing to learn who sold the gun to such persons as a Salvador Ramos seeking to kill more schoolchildren than such laconic places as Uvalde, Texas. Somebody profited off the murders of the 19 children and teachers with newly-purchased firearms. Had the law been observed by the profit maker of the AR-15, ammunition, and another gun, Mr. Ramos might have raided someone's home while the inhabitants were on vacation. Mentally sick people can be very surreptitious about the perdition they intentionally incur.

But that's the point... we've given gun sellers blanket protections from liability..

You see, after the DC Snipers were caught, they realized that one of them was a convicted felon and the other was a minor, but they were able to get guns anyway. A jury found the gun store liable. Well, the gun industry marched right off to DC and demanded a law that protects gun sellers and manufacturers from liability when a Second Amendment Enthusiast gets too enthusiastic.

 

[beautress]

But that's the point... we've given gun sellers blanket protections from liability..

You see, after the DC Snipers were caught, they realized that one of them was a convicted felon and the other was a minor, but they were able to get guns anyway. A jury found the gun store liable. Well, the gun industry marched right off to DC and demanded a law that protects gun sellers and manufacturers from liability when a Second Amendment Enthusiast gets too enthusiastic.

DC Snipers? The only "sniper" on Jan 6. was one of Nancy's Capitol Police who shot an unarmed war hero who was trying to encourage the protesters to turn back. She lived and died serving her country, even though while being a Republican. She was not armed, and she was trying to get her curious fellow Republicans to turn back. She was the only one who was shot dead for her actions, which were in favor of stopping people from entering the Capitol building. None of the Republicans were armed at all. Strange thing, that.

 

[JoeB131]

DC Snipers? The only "sniper" on Jan 6. was one of Nancy's Capitol Police who shot an unarmed war hero who was trying to encourage the protesters to turn back. She lived and died serving her country, even though while being a Republican. She was not armed, and she was trying to get her curious fellow Republicans to turn back. She was the only one who was shot dead for her actions, which were in favor of stopping people from entering the Capitol building. None of the Republicans were armed at all. Strange thing, that.

Wow, nice change of the subject.

You mean an unarmed woman was killed for acting in a threatening manner? Were her last words, "Can't you see I'm white?"

 

[Blues Man]

Here's the problem with your very long babbling.

The original intent of the Second Amendment (and the Third Amendment) was to define and limit militias.

The original proposed text of the Second also allowed for contentious objections on religious grounds for being conscripted into a militia. This was a big deal at the time, because you had groups like the Quakers who objected to military service. It was rejected because that would limit the power of the militia. The third was meant to limit the militia... it wasn't just about putting soldiers in people's houses, it was about having a permanent militia presence in communities in peacetime.

The problem, of course, is that these original intents have been lost, because militias have been replaced by professional Armies and Police Forces, with the police become far more militarized than in the worst nightmares of the founders.

Of course, it was never about gun ownership. Gun ownership was actually relatively rare in colonial America. There wasn't even a domestic gun industry, firing mechanisms had to be imported from Europe.

The founding fathers believed in Well-Regulated Militias, and at the time, each state had reams of laws defining the militia, with everything from uniforms to what the standard weaponry should be. (Again, you can't do logistics for a militia if everyone shows up with a different caliber gun). What they didn't believe in was angry mobs with guns, which is why "popular rebellions" like Shay's Rebellion and the Whisky Rebellion were put down.

The entire Bill of Rights was about the rights of the people not the government.

The state has no rights, the government has no rights.

THE PEOPLE have rights

 

[beautress]

But that's the point... we've given gun sellers blanket protections from liability..

You see, after the DC Snipers were caught, they realized that one of them was a convicted felon and the other was a minor, but they were able to get guns anyway. A jury found the gun store liable. Well, the gun industry marched right off to DC and demanded a law that protects gun sellers and manufacturers from liability when a Second Amendment Enthusiast gets too enthusiastic.

Soros footing the bill for hatemongers of the leftist press use their fellow Democrat liars of the social media and the DNC Talking Points page for insiders as their only sources of information that they will mimic and pretend their hatred is justified. It isn't, and in fact, it is the national disgrace to those who know the truth: Pelosi and her fellow whining hatemongers in the press, many of whom are card-carrying communists. I actually experienced one of those card-carrying communists soliloquy on why "the people" should arm themselves to shoot and kill all non-communists because they stand in the way of (murderous) progressives. I never had my piano tuned again because of that spiel given to me while he should have been doing his job of tuning my piano. Don't worry. He was treated with dignity and respect under my roof, but I declined his invitation to come to the next communist meeting in Oregon. I had no idea the Communists would someday overtake the Democrat Party someday, because that lecture was delivered to me in the late 70s just after my late husband and I moved our family and the piano which was out of tune after its 1200 mile trip to the Beaver State. I needed the piano for community chorale practice. Singing offkey was not my preference.

 

[JoeB131]

The entire Bill of Rights was about the rights of the people not the government.

The state has no rights, the government has no rights.

THE PEOPLE have rights

Yes, if you want to tell yourself that... but no. The Second and Third are clearly about militias.

The Fourth through Eighth are about limits on the courts.

And the Ninth and tenth are kind of catch alls for anything they hadn't thought of.

 

[beautress]

Wow, nice change of the subject.

You mean an unarmed woman was killed for acting in a threatening manner? Were her last words, "Can't you see I'm white?"

No, her last words were to her fellow Republicans to the tune of "You have to turn back." Nancy Pelosi didn't want anyone to escape the holocaust she had planned for them. And you know it too, don't you.

 

[JoeB131]

Soros footing the bill for hatemongers of the leftist press use their fellow Democrat liars of the social media and the DNC Talking Points page for insiders as their only sources of information that they will mimic and pretend their hatred is justified. It isn't, and in fact, it is the national disgrace to those who know the truth: Pelosi and her fellow whining hatemongers in the press, many of whom are card-carrying communists. I actually experienced one of those card-carrying communists soliloquy on why "the people" should arm themselves to shoot and kill all non-communists because they stand in the way of (murderous) progressives. I never had my piano tuned again because of that spiel given to me while he should have been doing his job of tuning my piano. Don't worry. He was treated with dignity and respect under my roof, but I declined his invitation to come to the next communist meeting in Oregon. I had no idea the Communists would someday overtake the Democrat Party someday, because that lecture was delivered to me in the late 70s just after my late husband and I moved our family and the piano which was out of tune after its 1200 mile trip to the Beaver State. I needed the piano for community chorale practice. Singing offkey was not my preference.

Ah, the fun reaction of two crazy people getting together...

Did this poor fellow have to shoo away one of your 25 cats when tuning your piano?

 

[Blues Man]

Yes, if you want to tell yourself that... but no. The Second and Third are clearly about militias.

The Fourth through Eighth are about limits on the courts.

And the Ninth and tenth are kind of catch alls for anything they hadn't thought of.

No they are not.

The 4th -8th are protections FOR THE PEOPLE from the government.

And the ninth states that THE PEOPLE have rights beyond those enumerated in the Constitution.

 

[JoeB131]

No, her last words were to her fellow Republicans to the tune of "You have to turn back." Nancy Pelosi didn't want anyone to escape the holocaust she had planned for them. And you know it too, don't you.

Uh, no, Crazy Cat Lady, you guys can try to paint Jan 6 in nicer terms, but it was a riot incited by Trump where you lunatics thought you could overturn an election you lost.

And then like children who had been caught with their hands in the cookie jar, you tried to shift blame. "Well, you shouldn't have put the cookie jar where we could get at it so easily!"

 

[JoeB131]

No they are not.

The 4th -8th are protections FOR THE PEOPLE from the government.

And the ninth states that THE PEOPLE have rights beyond those enumerated in the Constitution.

Yes, the Constitution is badly written, we got that.

But this absurd notion that the Militia Amendment is about gun ownership is silly, and if one of the Dead Slave Rapists heard your crazy argument about armed mobs being considered a militia, they'd have looked at you sideways.

You see, when the Founding Slave Rapists said, "The people" what they really meant was "The White Landed Gentry".

 

[Blues Man]

Yes, the Constitution is badly written, we got that.

But this absurd notion that the Militia Amendment is about gun ownership is silly, and if one of the Dead Slave Rapists heard your crazy argument about armed mobs being considered a militia, they'd have looked at you sideways.

You see, when the Founding Slave Rapists said, "The people" what they really meant was "The White Landed Gentry".

The Second clearly states "THE RIGHT OF THE PEOPLE"

Not the right of the militia

 

[Bob Blaylock]

No they are not.

The 4th -8th are protections FOR THE PEOPLE from the government.

And the ninth states that THE PEOPLE have rights beyond those enumerated in the Constitution.

So are the First through Third Amendments. Really, the entire Bill of Rights, as ratified.

All except the Tenth are clearly about rights that belong to the people, and a constraint on government violating these rights. The Tenth is really more about limiting the power of the federal government to those powers explicitly delegated thereto.

 

[Bob Blaylock]

Yes, the Constitution is badly written, we got that.

It only seems that way to those of a tyrannical mindset, who desire government to seize and abuse powers which the Constitution specifically denies to government.

Most of the Constitution is very clear, to those who do not have malicious intent to go against the principles established therein.

But this absurd notion that the Militia Amendment is about gun ownership is silly…

Except that that is what it explicitly says. It explicitly, unambiguously states that the right to keep and bear arms belongs to THE PEOPLE (not to the state, the federal government, nor any militia) and that government is forbidden from infringing this right.

 

[Abatis]

But that's the point... we've given gun sellers blanket protections from liability..

No "blanket" immunity exists.

You see, after the DC Snipers were caught, they realized that one of them was a convicted felon and the other was a minor, but they were able to get guns anyway.

They stole the gun from the gun store, their status as a prohibited person was of no consequence.

A jury found the gun store liable.

The lawsuit was settled, no jury verdict was handed down.

Well, the gun industry marched right off to DC and demanded a law that protects gun sellers and manufacturers from liability when a Second Amendment Enthusiast gets too enthusiastic.

Well, since you have lied about every aspect you have stated so far, the chances you can support that statement, that the Protection of Lawful Commerce in Arms Act was lobbied for and a result of the settlement from the DC Snipier case, are less than zero . . . Especially since the negligent and criminal actions of the gun store would not have been covered by the PLCA.

Why do you anti-gunners always lie?

 

[sparky]

The entire Bill of Rights was about the rights of the people not the government.

The state has no rights, the government has no rights.

THE PEOPLE have rights

Much to the point Blues

the 2nd was written before a standing army

Militia literally meant 'we the people' were to be armed , in order to defend ourselves.

'Militia' was in lieu of 'Government army'

Militia was meant to defend a free state, be it foreign OR domestic

Once the government , even our own, has more access to and/or owns more 'arms' , we forfeit that right to defend ourselves

~S~