The Right To Bear Arms

[NoTeaPartyPleez]

In U.S. V. Miller, 307 U.S. 174 (939) the Court upheld a federal law criminalizing the shipment of a sawed-off shotgun in interstate commerce. Concluding that the "obvious purpose" of the Second Amendment was "to assure the continuation and render possible the effectiveness" of the state militia, the Court refused to strike down the law on Second Amendment grounds absent any evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." The Court added that without this evidence, "we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

What a softball...

Had the Court, in Miller, believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. You can say again and again that Miller did not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns, but the words of the opinion prove otherwise.

The most you can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective. Thus, Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

Bottom line: if the NRA flunkies REALLY are into the Constitution to justify gun ownership, then they would have to JOIN A MILITIA...which is currently in the form of the NATIONAL GUARD....and abide by their rules. I don't think they could or want to do that.

Bottom line:
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home

Then why the language of a "well regulated militia" at all if it means nothing?
Sorry, Nemo wins.

 

[M14 Shooter]

In U.S. V. Miller, 307 U.S. 174 (939) the Court upheld a federal law criminalizing the shipment of a sawed-off shotgun in interstate commerce. Concluding that the "obvious purpose" of the Second Amendment was "to assure the continuation and render possible the effectiveness" of the state militia, the Court refused to strike down the law on Second Amendment grounds absent any evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." The Court added that without this evidence, "we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

What a softball...

Had the Court, in Miller, believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. You can say again and again that Miller did not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns, but the words of the opinion prove otherwise.

The most you can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective. Thus, Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

Bottom line: if the NRA flunkies REALLY are into the Constitution to justify gun ownership, then they would have to JOIN A MILITIA...which is currently in the form of the NATIONAL GUARD....and abide by their rules. I don't think they could or want to do that.

Bottom line:
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home

Then why the language of a "well regulated militia" at all if it means nothing?

Another softball.

It is entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. The assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms is profoundly mistaken: this assertion is solely based upon the prologue, which can only show that self-defense had little to do with the right’s codification, whereas in fact self-defense was the central component of the right itself.

Sorry, Nemo wins.

Given that this conversation doesnt involve Nemo, that's not possible.

 

[Little-Acorn]

Then why the language of a "well regulated militia" at all if it means nothing?
Sorry, Nemo wins.

The amendment means,

"Since a militia is necessary, the right of ordinary people shall not be infringed."

Even if somebody later proved that militias weren't necessary, the amendment would still mean that the right shall not be infringed.

BTW, the reason that the Miller opinion came out so stilted and strange-sounding, was because nobody showed up for the defense.

That's right. One side of the courtroom was completely empty. Defendent Miller wasn't there, his lawyer wasn't there, no defense team, no Friends of the Court, no nothing. Only the government lawyers for the prosecution were there.

Those govt lawyers took advantage of the incredible windfall, and read a number of flat lies into the record. Including such fibs as "The 2nd amendment only protects military-style weapons", and "Miller's shotgun is nothing like the weapons used in the military", and "You have to be in a military organization to be protected by the 2nd amendment".

The justices rubber-stamped those lies into an Opinion of the Court, since nobody came forward to refute them, and it stands to this day. And the Govt has been VERY careful to never, ever revisit that case.

 

[M14 Shooter]

Then why the language of a "well regulated militia" at all if it means nothing?
Sorry, Nemo wins.

The amendment means,

"Since a militia is necessary, the right of ordinary people shall not be infringed."

Even if somebody later proved that militias weren't necessary, the amendment would still mean that the right shall not be infringed.

BTW, the reason that the Miller opinion came out so stilted and strange-sounding, was because nobody showed up for the defense.

That's right. One side of the courtroom was completely empty. Defendent Miller wasn't there, his lawyer wasn't there, no defense team, no Friends of the Court, no nothing. Only the government lawyers for the prosecution were there.

Those govt lawyers took advantage of the incredible windfall, and read a number of flat lies into the record. Including such fibs as "The 2nd amendment only protects military-style weapons", and "Miller's shotgun is nothing like the weapons used in the military", and "You have to be in a military organization to be protected by the 2nd amendment".

The justices rubber-stamped those lies into an Opinion of the Court, since nobody came forward to refute them, and it stands to this day. And the Govt has been VERY careful to never, ever revisit that case.

In all reality, with the situation you describe, above, they got Miller right.

The essence of Miiler is that if you can show that a given weapon, particularly a fiream, is of a kind that would be effective for service in the militia, and part of the ordinary military equipment in common use at the time, the 2nd protects it.

That's a particularly borad stroke, which Heller then widened by also including weapons in common use for the traditionally lawful purposes one might have for a firearm.

 

[legaleagle_45]

You are living in a dream world. You will learn for yourself the true nature and source of your rights when you have need to enforce them. There is no provision in the Constitution for any imprescriptible rights of any kind.

Incorrect. Obviously you are unfamiliar with what exactly is an "unalienable right". It has its origin in the social compact theory pf government... that governments are formed among men and derive their just powers from the consent of the governed. So why is that important? There are certain things which humans have no power or control over and thus have no capacity to give consent to government to curtail. As such, they are "unalienable". That the Constitutiopn is based upon the social compact theory is quite evident..

We the People of the United States..do ordain and establish this Constitution for the United States of America.

Quoting the Bible or John Locke or Thomas Jefferson is no authority and will get you nowhere; and unless you have a legal basis for your claim of right you’re SOL. God-given rights are only good in heaven; natural rights are no good in court; and in the real world, one need have recourse to the law.

Your primary problem is that you somehow believe that it is imppossible to violate an unalienabvle right. Or that government protection of unalienable rights somehow converts them into something else... However, that is clearly not the case:

...that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men,

We form governments to secure these rights, not to create them. "Life liberty and property" found in the 5th and 14th Amendment is basically plagerized from John Locke's 2 Treastises...

The aim of such a legitimate government is to preserve, so far as possible, the rights to life, liberty, health and property... An illegitimate government will fail to protect those rights ... [and] a despotic government asserts the power to defeat those rights.

Natural Law Philosophy is a philosophy and you need not adopt that philosphy and you may deny its accuracy and you are free to reject same. Some would say you have an unalienable right to believe what you belioeve and that no law which prohibits you from disbelieveing in unalienable rights will be obeyed. However, what is not in dispute, and never has been in dispute by any legitimate legal scholar, is that the basis of our government is founded upon Natural Law Philosphy, the Social Compact and the concept of unalinable rights. As such, our government is constrained accordingly.

I find it interesting that many liberals disclaim the Natural law theory as it is considered the foundation of modern liberal thought. Perhaps because of the phrase "god given rights?"? I assure you that natural law philosophy works equally well in a Darwinian universe. I also find it interesting that the political philosophy that it displaced is quite close to what you seem to be espousing. I refer, of course, to the "Divine Right of Kings" which holds that government power is supreme and can do anything it pleases subject only to the intervention of God. Of course you throw out God and basically make the power of government unlimited. It can do no wrong because it makes the rules unconstrained by anything or anyone... it can do anything it wants to.

I personally do not like that philosophy because it makes Nazi Germany no better or no worse than any other government. I can not say what they did was wrong, because, under that theory, nothing a government does is wrong. However with Natural Law philosophy no such problem arises. Nazi Germany was despotic as they asserted the power to defeat the unalienable rights of people by herding them into gas chambers to be murdered and that was wrong... period.

 

[legaleagle_45]

The Declaration of Independence is not authority for anything. The Declaration of Independence is not a foundational document.

SCOTUS disagrees with you and has disagreed with you for a looong time. You should write them and tell them of their error. Here is where to mail them a letter:

Supreme Court of the United States
1 First Street, NE
Washington, DC 20543

Or you can call them here:

Telephone:202-479-3000
TTY:202-479-3472
(Available M-F 9 a.m. to 5 p.m. eastern)

I am sure they will be so impressed with your scholarly credentials that they will revise all of their previous rulings which employed the Declaration of Independence as a source of substantive law right away. They can start with their error in Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. (3 Pet.) 99, 121 (1830) and then correct the mistakes made in Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 163 (1892) and United States v. Ritchie, 58 U.S. (17 How.) 525, 539-40 (1854).

Did you know that one of the wars declared by the the United States Congress under the authority of our present Constitution involved, in part, the US insistance that the Declaration of Independence had substantive legal effect? Too bad it is kinda late for you to disabuse them of their error.

 

[legaleagle_45]

In U.S. V. Miller, 307 U.S. 174 (939) the Court upheld a federal law criminalizing the shipment of a sawed-off shotgun in interstate commerce. Concluding that the "obvious purpose" of the Second Amendment was "to assure the continuation and render possible the effectiveness" of the state militia, the Court refused to strike down the law on Second Amendment grounds absent any evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." The Court added that without this evidence, "we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

The primary problem is that you are so lacking in historical context that you can not perceive why or how a broad based individual right to have and use arms for individual purposes serves to preserve and protect the well regulated militia much better than any other formulation which can be devised.

The purpose is to protect a well regulated militia, the method employed is to preserve a preexisting individual right to arms for individual purposes, such as self defense. Laurence Tribe... liberal darling of the legal scholarly arena, Famed Harvard Constitutional Law Professor, who in his textbook used in many law schools phrased it this way:

[The Second Amendment's] central purpose is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes--not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons--a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by §1 of the Fourteenth Amendment against state or local government action.

Laurence H. Tribe, 1 American Constitutional Law 902 n.221 [3d ed. 2000] .

The fact is, the individual right to arms and the duty of arms to serve in a militia are two sides of the same coin. They grew up together. The viability of a well regulated milita REQUIRED a populace which was well armed and familiar with the use of arms so that they could be orgasnized into a well regulated militia in an emergency.

[W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.

---Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.


The fact is, no other formulation of the right provides any protection whatsoever, as the government disarms the militia all the time... not allowing them to keep arms whatsoever and only allowing them to bear arms when and whre the government directs. In fact the Feds disbanded the well regulated militia entirely at one point in our history, drafting the entire force into the regular armed forces so they could fight overseas... and took away all their supplies and equipment, lock, stock and gun barrel for use overseas. When the states complained, the Feds said they needed to fend for themselves.

 

[Nemo]

In point of fact, the primary purpose of the Second Amendment was to protect the right of the several states to control their militias, and as a limitation of the power of the federal government over state militia’s under Article I, Section 8, Clause 15. At the time of the ratification of the Second Amendment, there was no standing army, and there was very real concern that the Constitution ceded too much power to Congress. See The Federalist Papers, No. 46 (James Madison, Jan. 29, 1788). However that has been largely made obsolete by time, as the National Guard is now an adjunct component of the United States Army Reserve. (Interestingly, an argument could be made that the deployment of State National Guard Units to Iraq and Afghanistan violates the Second Amendment.)

 

[legaleagle_45]

In point of fact, the primary purpose of the Second Amendment was to protect the right of the several states to control their militias, and as a limitation of the power of the federal government over state militia’s under Article I, Section 8, Clause 15.

In point of fact you are obviously wrong as the 2nd Amend was drawn from the amendments proposed by the state of Virginia. Virginia proposed two blocks of proposed amendments The first block was entitled

That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following: —

The 2nd block consited of structural changes to the Constitution rather than additions.

As indicated previously, the Bill of Rights provision to protect the unalienable rights of the people contained what was to become the 2nd Amend... it also contained

That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the legislature for redress of grievances. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

Plus many of the other individual rights provided for in the Bill of Rights.

Now the structural changes included a provision as follows:

That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service, in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by the laws of its own state.

So unless you wish to violate every rule of statutory construction known to man, and wish to argue that Virginia passed two distinct amendments which mean exactly the same thing, then you would be wrong...

Further, when Madison introduced his draft of the Bill of Rights to the 1st Congress on June 8, 1789, his proposal was to amend the constitution by interliniation rather than by addendum... In other words, insert the amendments in the body of the constitution in the appropriate place where they belonged rather than sticking them in a single document as an appendix.

Now what is interesting is that Madison lumped the 1st , 2nd, 3rd, 4th and some of the 5th all together and were to be inserted "in article 1st, section 9, between clauses 3 and 4" --or just following the protections of the Writ of Habeas Corpus and the prohibitions against Bill of Attainder or ex post facto Laws... He lumped much of the trial by jury and rights of the accused in Article III relating to the judiciary. and the 10 Amend was to be placed in a brand new VII Article.

Now if you were correct, Madison would have placed the 2nd Amend not with other individual rights but either:
1.) Right around, or within Article I, Sec 8, Cl 15-16; or,
2.) In that brand new Article VII...(it relating to a power reserved to the states)

He did neither, he lumped it together with other individual rights in a portion of the constitution which was preserving individual rights.

Another factor which proves you wrong is the notes to Madison's speech to the 1st Congress introducing the Bill of Rights. What Madison states is that his version of the 2nd is superior than the one found in the English Bill of Rights because it was not "just for protestants only" and was not subject t a "mere act of parliament"... and of course, as everyone knows the right to arms found in the English Bill of Rights was then recoginized as an individual right ..

the mere having a gun was no offense . . . for a man may keep a gun for the defense of his house and family .

Mallock v. Eastley, 87 Eng. Rep. 1370, 1374 (K.B. 1744). Se also, Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B.1739); Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752); accord, The King v. Thompson, 100 Eng. Rep. 10, 12 (K.B. 1787) (it is “not an offence to keep or use a gun&#8221, and Rex v. Hartley, II Chitty 1178, 1183 (1782) (“a gun may be used for other purposes, as the protection of a man's house.&#8221.

However that has been largely made obsolete by time, as the National Guard is now an adjunct component of the United States Army Reserve.

Irrelevant even if true, if you feel the 2nd is obsolete, you should repeal it. Until you repeal it, you can not ignore it.

Interestingly, an argument could be made that the deployment of State National Guard Units to Iraq and Afghanistan violates the Second Amendment.)

Obviously, you are unfamiliar with a unanimous decision of SCOTUS authored by Stevens and entitled Perpich v Dept of Defense. Nor do you seem to know anything about the dual enlistment clause or the existence of state defense forces authorized by 32 USC 109(c). When you have read that, get back to me with any questions.

 

[RandallFlagg]

well congrats to all the liberals here.

The people that claim to be the authors of the Constitution

In openly admitting that freedom is so passe.


thank you for your honesty

Remember that liberals believe that you're free in America. As long as THEY approve of it.

I detest liberals.

 

[Rct_Tsoul]

You have the right to bear arms, so that you can work and make a living.
eg. Lets say a wealthy person wanted to make an example out of you for talking some shit.
He can't chop off your arms because you have the right to bear arms, instead, he can chop off your hands at the base of the wrist, thus preserving the arm, thus the right to bear arms.
It doesn't say anything about modern firearms or sophisticated weaponry.
The Bill of Rights .......... misread it is ..............

 

[Quantum Windbag]

you can chose either: A well regulated Militia, or being necessary to the security of a free State, ...


my choice: "being necessary to the security of a free State,"


you know, gunlovers running around blowing away anyone or anything they disagree with .... at least by one bolt - leaver action at a time and reloading as they go.

How about "the right of the people to keep and bear arms shall not be infringed."

The solution is to require all public firearms to be lever or bolt action per round with non detachable magazines ... "being necessary to the security of a free State,"

not a contradiction - "the right of the people to keep and bear arms shall not be infringed."

How do lever or bolt action rifles contribute to the security of a free state? Is there something wrong with rifles that use revolving actions that makes them especially dangerous to free states? Is it remotely possible you don't know what you are talking about?

 

[Quantum Windbag]

The Second Amendment does not grant any rights. See United States v. Cruikshank, 92 U.S. 542 (1875). The prohibition against “infringement” does not preclude “regulation.” Whatever rights that are secured under the Second Amendment, whether individual or collective, are nevertheless subject to law; which is to say that they are not unlimited, much less absolute. American gun owners shall soon find themselves the more “well regulated”.

All rights are absolute, governments just don't want you to understand that.

 

[Quantum Windbag]

Under the Constitution there can be no extra-legal rights, period. There are no God-given rights, no inherent rights, no natural rights, no unalienable rights; there are only legal rights. There are no rights without law, no rights contrary to law, no rights superior to law. That's the way it is, the way it must be, and no other way. Get used to it.

You are so full of shit you should be in the Guinness Book of World Records.

If there are no extra legal rights how do you explain privacy?

 

[Quantum Windbag]

Under the Constitution there can be no extra-legal rights, period. There are no God-given rights, no inherent rights, no natural rights, no unalienable rights; there are only legal rights. There are no rights without law, no rights contrary to law, no rights superior to law. That's the way it is, the way it must be, and no other way. Get used to it.

I have a friend who is a civil rights attorney who has won many cases before the Pennsylvania Supreme Court, and he would agree with you 100%. You are spot on.

Your alleged friend would agree that no one has a right to privacy? Can anyone tell me why I should believe that?

 

[Quantum Windbag]

No, there are no natural rights. The problem with the concept of natural rights is that it is egocentric; i.e., it places the individual in the center of importance. It assumes, falsely, that man, as Locke espoused, has certain inherent rights; or, as Jefferson phrased it, unalienable rights. However, that is not how things are ordered. There are no inherent rights; there are no unalienable rights; there are only legal rights. The words “inherent” and “unalienable” do not appear anywhere in the Constitution. The framers of the Constitution created a nation of laws and not men. It is the recognition, from the time of Magna Carta to this day, that no person can be above the law; for it is not the individual that is sovereign, it is the law. To say that one has a right to anything need must admit that such right exists by law. Indeed, there is nothing in the varied course of human events, from the moment of life’s conception to the final disposition of one’s mortal remains and property after death, that is not governed by law. Natural rights are a fiction - a philosophical construct - airy nothings. Real rights are legal rights; rights that are provided and protected by law.

I can demonstrate natural rights outside of human society, what does that do to your premise?

 

[Quantum Windbag]

No. You cite one right that is not subject to law. You can't because there are none - not one. All rights exist only by law - even unto the very air we breathe. Get used to it.

If we accept that premise there can be no moral justification for fighting against the legal infringement of rights.

 

[Quantum Windbag]

I am not a liberal. I am a founding member of the Federalist Society.

You making donations to a club does not qualify you to comment on anything.

 

[petro]

Idiotic Quote "Guns are bad, they must be banned then confiscated from the general public."

Again blame the object and not the individual.

Reality...
Guns will NEVER be banned in free America. Accept that or move to a country more to your way of thinking...such as China or any tyrannical society where you can feel safe.

Confiscation? Good luck with that one... To quote Charlton Heston..."Out of my cold dead hands"

 

[legaleagle_45]

I have a friend who is a civil rights attorney who has won many cases before the Pennsylvania Supreme Court, and he would agree with you 100%. You are spot on.

Not a very good civil rights attorney because s/he is obvioulsly unfamilar with the one of the most important rulings by SCOTUS:

We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Griswold v. Connecticut, 381 U.S. 479 (1965)