Why doesn't the ACLU like the 2nd amendment?

[Ranb]

I was looking at the ACLU's homepage and their stance on the second amendment. They think it is all about the "right of the states to maintain militias to assure their own freedom and security against the central government" and that this makes the 2nd amendment "somewhat anachronistic".

The first ten amendments mention the people ( or owners, persons) eight out of ten times. Only in the 2nd amendment does the ACLU say ( or agree with some of the courts) the word people actually means the state. They also do not think that in this day and age the 1st amendment is anachronistic. Think about this while you are reading the JREF forum. It takes a long time to get the mail when it is printed on a manual press and delivered by horseback or barge.

Ranb

[American]

Officially, they say they are neutral about guns. One interesting point they make is that if you (one person) are forbidden to own an attack chopper (or a bazooka, or a nuke, or a tank...) then why can't the law regulate smaller weapons?

I don't see it that way. I have good judgement, and I say a gun is a gun and a tank is a tank, and if it's something in-between, then let's fight it out in court. (Not "me", just speaking theoretically.)

[Ranb]

I was in a bit of a hurry when I posted, I could have been a bit more specific. I read that they do indeed say they are neutral, but I think they are not.

The ACLU is silent when the law allows total bans at the whim of law enforement or selective bans with no accountibility to the public they serve. They are wimping out when they say they are neutral. They should take a stand one way or the other.

Ranb

[Crossbow]

Well, the ACLU devotes itself to issues regarding rights of individuals, however the 2nd Admendment does not directly address individual rights (as is done in the Bill of Rights) and the courts have upheld numerous laws that affirm that gun ownership is not an individual right.

Laws concerning the restriction of individual ownership of machine guns, sawed off shotguns, carrying concealed weapons, etc. have all been upheld by the courts.

So I would have to say that the ACLU has taken a stand that is in line with its purposes.

[Zero]

Frankly, I think that the 2nd Amendment is clumsily written, anachronistic, and needs to be replaced with someing a little more clear and relevant.

[corplinx]

the right to keep and bear arms shall not be infringed



that is soooooooo vague

[Otther]

I think this would be a GREAT oportunity for a little give and get between conservatives and liberals.

Liberals get a rewrite the 2nd ammendment so guns are essentially outlawed...

And conservatives get the removal of the first clause of the 17th ammendment plus a reinforcement of the 10th.


Anyone game? :D

[Zero]

Originally posted by corplinx
the right to keep and bear arms shall not be infringed



that is soooooooo vague Have you tried reading the whole thing, in the historical context in which it was written?

[Otther]

The whole thing isn't much different from what he said... 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. The way I read it... the militia part is the reasoning, and the latter part is the ruling.

And the historical context is obvious... but that doesn't mean that it wouldn't ever apply again, does it?

[Zero]

Originally posted by Otther
The whole thing isn't much different from what he said... The way I read it... the militia part is the reasoning, and the latter part is the ruling.

And the historical context is obvious... but that doesn't mean that it wouldn't ever apply again, does it? No, but the Amendment itself assumes regulation, if you can dig it?

I own a rifle myself, I am not against gun ownership...I'm just saying that from a logical standpoint, all the talk about militias, and the assumption of a citizen army in charge of national defense, seems to be an anachronism.

[Otther]

I don't have a problem with regulation... I do have issues with it being a state's right issue.

the assumption of a citizen army in charge of national defense Where is that assumed? I mean... if it was, why would in art1, sct 8 does it say that the goverment can raise armies? I sincerely do not know, and I'm just going by what my natural interpretation is... but the way I read it (as a mildly conservative moderate) the "security of a free state" does not assume the protection is from outside forces.

[shanek]

While the ACLU's comments on the Second Amendment are curious to say the least, they to my knowledge have never acted against it, and have even joined in actions on the side of those fighting for the second amendment (although that wasn't the only issue in those cases). My guess, which I have no evidence for, is that they don't want to p!ss off the liberals who provide them with a lot of their funding.

I say, fair enough. The Second Amendment has the NRA, GOA, and other organizations fighting for it. I'm not going to fault the ACLU for avoiding that one issue.

[Zero]

Originally posted by Otther
I don't have a problem with regulation... I do have issues with it being a state's right issue.

Where is that assumed? I mean... if it was, why would in art1, sct 8 does it say that the goverment can raise armies? I sincerely do not know, and I'm just going by what my natural interpretation is... but the way I read it (as a mildly conservative moderate) the "security of a free state" does not assume the protection is from outside forces. Well, where are they going to raise the army FROM? Maybe I was stretching the point a bit, but the point is that the historical context is that the government(local, state or federal) would raise troops directly from the populace. That situation doesn't exist anymore, does it?

*edited to add* "states' rights" is an oxymoron.

[American]

Originally posted by Crossbow
Well, the ACLU devotes itself to issues regarding rights of individuals, however the 2nd Admendment does not directly address individual rights (as is done in the Bill of Rights) and the courts have upheld numerous laws that affirm that gun ownership is not an individual right.


The courts have also done just the opposite in numerous cases. There's no consensus; it's a constant battle by both sides, which I'm actually happy with if it remains in some reasonable equilibrium. I don't want either side to win 100%, or lose for that matter.

[Zero]

Originally posted by American



The courts have also done just the opposite in numerous cases. There's no consensus; it's a constant battle by both sides, which I'm actually happy with if it remains in some reasonable equilibrium. I don't want either side to win 100%, or lose for that matter. Yeah, too bad we can't all accept a happy medium, right? Reasonable restriction while keeping as much freedom as is possible?

[Otther]

Well, where are they going to raise the army FROM? The point is that the historical context is that the government(local, state or federal) would raise troops directly from the populace. That doesn't make any sense... if they're raising an army, why does that army need to be able to have guns before the army is raised?

"states' rights" is an oxymoron. Maybe in that wording... but the abilitys of the state goverment's are supposed to be protected by law in the same way the right's of individuals are.

I say, fair enough. The Second Amendment has the NRA, GOA, and other organizations fighting for it. I'm not going to fault the ACLU for avoiding that one issue. I like to harp on republicans about honesty as much as anyone else, and as such I feel obligated to ask the same from the ACLU.

[Zero]

Originally posted by Otther
That doesn't make any sense... if they're raising an army, why does that army need to be able to have guns before the army is raised?
Historical context...how many mass-produced firearms existed in the 18th century?

[Troll]

Let's take a look at what the framers had in mind.

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

The military (Army, Air Force, Navy, Marines, Coast Guard...and even the National Guard) is under the control of the government, not individual citizens.

In the 4th, 9th and 10th amendments "the people" refer to individual citizens and their rights. No reason to doubt the use of "the people" to mean anything different in the 2nd amendment.

Thomas Jefferson "No free man shall be debarred the use of arms within his own land."

George Mason "I ask, sir, what is the militia? It is the whole people, except for a few public officials."

I don't think the intent of the framers is actually questionable or debatable when they make such statements themselves.

[Otther]

By that logic the goverment didn't employ any soldiers who didn't have guns beforehand... can you source this?

Edit to say that this was in response to Zero's post, not Troll's.

[Otther]

The military (Army, Air Force, Navy, Marines, Coast Guard...and even the National Guard) is under the control of the government, not individual citizens. While I may be arguing against myself, it is important to remember that there would be no standing army if we go by what the founder's had in mind.

However, It really wouldn't be up to the civilians to fight as civilians during a war because they could raise an army at will.

[Zero]

Originally posted by Troll
Let's take a look at what the framers had in mind.

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

The military (Army, Air Force, Navy, Marines, Coast Guard...and even the National Guard) is under the control of the government, not individual citizens.

In the 4th, 9th and 10th amendments "the people" refer to individual citizens and their rights. No reason to doubt the use of "the people" to mean anything different in the 2nd amendment.

Thomas Jefferson "No free man shall be debarred the use of arms within his own land."

George Mason "I ask, sir, what is the militia? It is the whole people, except for a few public officials."

I don't think the intent of the framers is actually questionable or debatable when they make such statements themselves. If you will recall, though, the military mostly went back home with their rifles after conflicts. Heck, the Marines were even disbanded completely at one point.

Again, though, I am not saying that all firearms should be banned, but reasonable restriction is not a negative.

[American]

Originally posted by Zero
Historical context...how many mass-produced firearms existed in the 18th century?


Do you mean the advent of the Colt in the 19th? Before that, in the 18th, they weren't as widely kept by citizens... that's my memory reaching back to 8th grade. (You forget a lot in one year...)

[Zero]

Originally posted by Otther
While I may be arguing against myself, it is important to remember that there would be no standing army if we go by what the founder's had in mind.

However, It really wouldn't be up to the civilians to fight as civilians during a war because they could raise an army at will. Uh huh...it is ok to adjust your position, I'm not gonna call you a liar or hypocrit over it...:D Hell, it makes for a better discussion.

The fact that the intent was to not have a standing army jibes with my idea that the populace was expected to be drafted during times of war, and likely to provide their own weapons as needed.

[Zero]

Originally posted by American



Do you mean the advent of the Colt in the 19th? Before that, in the 18th, they weren't as widely kept by citizens... that's my memory reaching back to 8th grade. (You forget a lot in one year...) I'm pretty sure that the capability to quickly supply an army with weapons didn't exist in a practical way when the Bill Of Rights was drafted.

[Otther]

Heh... it wasn't directly a contradiction between what I was saying before. One can interpret it as such, but it's not really.

What you said is correct as far as the situation of the army being...

but that doesn't mean the reason for the 2nd ammendment is to reduce the training time for new recruits, or to lesson arming costs.

[corplinx]

Originally posted by Zero
I'm just saying that from a logical standpoint, all the talk about militias, and the assumption of a citizen army in charge of national defense, seems to be an anachronism.

Well, and that part is nothing legally binding. "the right to keep and bear arms shall not be infringed" is the actual letter of the law. The preceding statements aren't conditionals but are more of a statement of intent. Said intent is why I support mandatory gun training to purchase a firearm (you arent much use in the defense of you country unless you can safely use/store the darn thing).

[Troll]

Originally posted by Otther
While I may be arguing against myself, it is important to remember that there would be no standing army if we go by what the founder's had in mind.

However, It really wouldn't be up to the civilians to fight as civilians during a war because they could raise an army at will.

Not really. The 2nd amendment concerns the rights of the people, not the establishment of a military. As such it gave people the freedom of living their lives and choosing their occupation or profession, as opposed to having to be armed and ready for war while still maintaining the rights of those that chose non-military occupations to posess arms.

[Troll]

Originally posted by Zero
If you will recall, though, the military mostly went back home with their rifles after conflicts. Heck, the Marines were even disbanded completely at one point.

Again, though, I am not saying that all firearms should be banned, but reasonable restriction is not a negative.

Yep, almost like what happened in Iraq. Now they're forming a standing military, but until it's up and running we're playing the role. We didn't have anyone playing the role for us, by choice and victory. But it wasn't long before organization of a standing miltary was in place.

I'd agree with your last statement if I knew your definition of reasonable restriction.

[Zero]

Originally posted by Otther
Heh... it wasn't directly a contradiction between what I was saying before. One can interpret it as such, but it's not really.

What you said is correct as far as the situation of the army being...

but that doesn't mean the reason for the 2nd ammendment is to reduce the training time for new recruits, or to lesson arming costs. I didn't claim you reversed yourself, just that you had adjusted your position...I'm one of the folks pushing towards the middle ground, remember?:D

I discount the ideas of reduced training and cost, and g9o straight to teh heart of the matter: where else was the government on the 18th century going to come up with the weapons to arm tens of thousands of civilian troops on short notice?

[Otther]

where else was the government on the 18th century going to come up with the weapons to arm tens of thousands of civilian troops on short notice? Then why didn't the ammendment give the people the right to keep firearms until a war broke out, at which point they surrender their guns to the goverment for it's own purposes?

If the people were merely toolsheds for the guns, why weren't they given toolshed rights?

I didn't claim you reversed yourself, just that you had adjusted your position...I'm one of the folks pushing towards the middle ground, remember? So you want to take me up on that trade of the 2nd ammendment for the 17th and 10th? ;)

[Zero]

Originally posted by Troll

I'd agree with your last statement if I knew your definition of reasonable restriction. That's easy...it mostly involves better enforcement of the existing laws. It also involves removing loopholes which weaken the ability to enfoce the spirit of existing laws.

Pretty much, my idea is that any law-abiding citizen should be able to own a hunting rifle, shotgun, or pistol, with the caveat that the person should get a licence, the same as they do to get a driver's licence. To ease things, the two could be combined, the same way that it can be checked if you are an organ donor, or have outstanding speeding tickets. There is no reason why someone should own a rocket launcher or a machine gun, though.

[Zero]

Originally posted by Otther
Then why didn't the ammendment give the people the right to keep firearms until a war broke out, at which point they surrender their guns to the goverment for it's own purposes?

If the people were merely toolsheds for the guns, why weren't they given toolshed rights?

So you want to take me up on that trade of the 2nd ammendment for the 17th and 10th? ;) Do you think that the phrase 'well-regulated militia' got into the Constitution by accident?

I

[Otther]

Zero,

Obviously not, but that doesn't explain why it phrases it in such a way that says people have a right to bear arms. Can you find some examples where the founders threw this term around loosely?

Also... is it just me, or does the 2nd ammendment read like really bad hiaku?

[Zero]

Originally posted by corplinx


Well, and that part is nothing legally binding. "the right to keep and bear arms shall not be infringed" is the actual letter of the law. The preceding statements aren't conditionals but are more of a statement of intent. Said intent is why I support mandatory gun training to purchase a firearm (you arent much use in the defense of you country unless you can safely use/store the darn thing). I have 0 problem with mandatory gun training, and my complaint with the 2nd Amendment doesn't mean I want to see guns banned...I just think the specific wording is the cause of alot of out debate.


I wonder if a "revamped" amendment wouldn't do us all some good?

[Zero]

Originally posted by Otther
Zero,

Obviously not, but that doesn't explain why it phrases it in such a way that says people have a right to bear arms. Can you find some examples where the founders threw this term around loosely?

Also... is it just me, or does the 2nd ammendment read like really bad hiaku? See, that's my point...it reads badly!! I don't believe that the right to bear arms should ever be taken away, but at the same time I feel that there is no inherent fault with the concept of reasonable regulation. Would you say that violent felons should be allowed to buy firearms without any restriction?

[Otther]

Zero,

But isn't it a slippery slope to say we're going to rewrite awkwardly worded laws? Give the goverment an inch... and... and... gah, I can't think of anything funny, but we still should avoid giving it... inches? hehe.

[Troll]

Originally posted by Otther
Zero,

But isn't it a slippery slope to say we're going to rewrite awkwardly worded laws? Give the goverment an inch... and... and... gah, I can't think of anything funny, but we still should avoid giving it... inches? hehe.

Give them an inch and you take it that much further up the rear?

[Zero]

Is it time to go back to the "Natalie Portman having sex with Chinese guys" thread?

Seriously, though, while the Amendment is a bit clumsy, American case law is not. It is a pretty soundly established concept that the right to bear arms is in no way an absolute right...and we really don't mind that, do we?

[Troll]

Originally posted by Zero
That's easy...it mostly involves better enforcement of the existing laws. It also involves removing loopholes which weaken the ability to enfoce the spirit of existing laws.

Pretty much, my idea is that any law-abiding citizen should be able to own a hunting rifle, shotgun, or pistol, with the caveat that the person should get a licence, the same as they do to get a driver's licence. To ease things, the two could be combined, the same way that it can be checked if you are an organ donor, or have outstanding speeding tickets. There is no reason why someone should own a rocket launcher or a machine gun, though.

I can live with a license and training process so long as it's not cost prohibitive. I like knowing that law abiding citizens are better trained than those that aren't. It's either 80 or 85% (can't recall the number exactly) of firearms that are used in crime in the US that are illegaly obtained, and it's unlikely those that got them that way would bother to go to a range or any other place to train themselves well. Misuse of the gun results in either loss of or suspension of license as well as other punishment.

Unlike some I don't consider a rocket launcher or hand grenades etc, to be firearms, and i think those that ask about them in their arguments are grasping at straws. Not that you did that, some in the past have.

I don't like the current mandate of going after weapons based upon style or looks. Just because it looks like a military weapon doesn't mean that it is and it's just silly to base anything upon appearance. I also don't like caliber restrictions.

Laws should be enforced, but some restrictions and laws need to be removed.

[Zero]

A ban based on looks is nonsense, since the after-market suppliers will sell you a kit to make your Ruger .22 look like an assault rifle...

Mainly, I think the restrictions should go to the gun dealers and manufacturers...only as regards to criminal activity. Completely close the gun show loophioles, institute a cheap 'transfer of ownership' system for guns, make the oversight on dealers more stringent...besides that, I don't have alot of ideas.

As far as classes...that should be easy and cheap. Charge $20 for a course of three classes, 20 to a class...some off-duty cop pockets a good 1/3 to teach the course, a third to the cost of maintaining the firearms for the course, and the rest for other incidental costs(the cost of the licence itself is included in the driver's licence, which is already accounted for and is not new spending)...seems like a completely reasonable idea to me.

[fishbob]

ACLU serves a useful purpose in US society. I think they are sometimes unfairly represented as some kind of wacky liberal organization. 2nd Amendment seems to me was intended as security for the public and a deterrent to invaders.

Anyway, I saw the title of this thread and expected flaming name calling and frothing temper tantrums. Instead I see civil discourse and reasoned opinions. What is the matter with you people?

[Troll]

Originally posted by fishbob
ACLU serves a useful purpose in US society. I think they are sometimes unfairly represented as some kind of wacky liberal organization. 2nd Amendment seems to me was intended as security for the public and a deterrent to invaders.

Anyway, I saw the title of this thread and expected flaming name calling and frothing temper tantrums. Instead I see civil discourse and reasoned opinions. What is the matter with you people?

well it was mostly an american thing. few, if any, foreign born heathens were involved. So logic can prevail over emotion. :p

[NullPointerException]

What are reasonable regulations? Do you have a non emotional reason for these regulations? What are civil liberties? Is the ACLU hypocritical for being nuetral on anything that involves promoting liberties? Is the ACLU just a front group for civil reform that has become dated with the advent of self propagating civil reforms? Is regulation effective? Is it enforced? What percentage of people own guns illegaly? How many times have gun control laws resulted in the unlawful seizure of private property? Do you understand what a liberty is? If you want to regulate guns heavily to prevent deaths why not support the regulation of alcohol to prevent alcohol associated eaths? Why did prohibition fail? Is the right to feel safe a liberty or a right? If it is a right does that explain why the ACLU doesn't care about it? Do local gun control laws go against the constitution? Would it be okay for a property owner to shoot a cop who entered their property with the intent to seize their propery and arrest them for posession of illegal weapons that are entirely constitutional?

Are you thinking yet?:book:

[Troll]

Originally posted by NullPointerException
What are reasonable regulations? Do you have a non emotional reason for these regulations? What are civil liberties? Is the ACLU hypocritical for being nuetral on anything that involves promoting liberties? Is the ACLU just a front group for civil reform that has become dated with the advent of self propagating civil reforms? Is regulation effective? Is it enforced? What percentage of people own guns illegaly? How many times have gun control laws resulted in the unlawful seizure of private property? Do you understand what a liberty is? If you want to regulate guns heavily to prevent deaths why not support the regulation of alcohol to prevent alcohol associated eaths? Why did prohibition fail? Is the right to feel safe a liberty or a right? If it is a right does that explain why the ACLU doesn't care about it? Do local gun control laws go against the constitution? Would it be okay for a property owner to shoot a cop who entered their property with the intent to seize their propery and arrest them for posession of illegal weapons that are entirely constitutional?

Are you thinking yet?:book:

This is where thinking ahead is important. Who are you asking? Outside of child rapists and rapists in general, well and some animla abuse, I can post without emotional ties. and in most other topics, such as rights and guns, I can do the same.

So in asking:
"What are reasonable regulations? Do you have a non emotional reason for these regulations" It may help to address a specific person

[NullPointerException]

Anyone can answer, I just wanted to point out that this topic isn't addressing key issues associated with the question.

[Troll]

Originally posted by NullPointerException
Anyone can answer, I just wanted to point out that this topic isn't addressing key issues associated with the question.

Yeah but it sorta gives an excuse to those that don't want to answer on the grounds of it may make them look like morons. so they avoid answering as it wasn't a "person directed" question.;)

trust me, many will avoid the question as best they can if not directed to them specifically

[Zero]

I don't personally have an emotional view on the situation, I don't think. I likes guns, I have a sweet little big game rifle, and I don't think I should have to give it up. I also don't think that having to submit to a backround check is a violation of my civil liberties.

[Ranb]

Originally posted by Zero
...........Again, though, I am not saying that all firearms should be banned, but reasonable restriction is not a negative.

Zero, so what are these reasonable restrictions you like to see in place? Are they the ones that say no new machineguns can enter the NFA registery since 1986 dispite the fact that no American civilian has ever murdered someone using his/her legally owned machinegun? Or the servere penalties to owning an improperly registered rifle with a barrel 15" long? Or the social and legal stigma attached to owning and using silencers? Or maybe you also like the fact that the local sheriff can prevent ownership of any NFA weapon in his county even when it is completely legal for his constituants to do so.

Am I flaming you? Sure am. If you want to know why, it is because you talk about the "gunshow loophole" like it really exists. Knowing that licensed dealers are always required to do background checks when selling a gun and unlicensed persons are NEVER required to do background checks in states that still allow private sales, what is this loophole you are talking about? Does it matter if I buy a gun at a shop, online, or through a newspaper from a dealer? Of course not. The dealer has to do all the paperwork no matter what. When I buy from a guy or gal in their house, the Gov can keep their nose out of my business.

Ranb

[Zero]

Originally posted by Ranb


Zero, so what are these reasonable restrictions you like to see in place? Are they the ones that say no new machineguns can enter the NFA registery since 1986 dispite the fact that no American civilian has ever murdered someone using his/her legally owned machinegun? Or the servere penalties to owning an improperly registered rifle with a barrel 15" long? Or the social and legal stigma attached to owning and using silencers? Or maybe you also like the fact that the local sheriff can prevent ownership of any NFA weapon in his county even when it is completely legal for his constituants to do so.

Am I flaming you? Sure am. If you want to know why, it is because you talk about the "gunshow loophole" like it really exists. Knowing that licensed dealers are always required to do background checks when selling a gun and unlicensed persons are NEVER required to do background checks in states that still allow private sales, what is this loophole you are talking about? Does it matter if I buy a gun at a shop, online, or through a newspaper from a dealer? Of course not. The dealer has to do all the paperwork no matter what. When I buy from a guy or gal in their house, the Gov can keep their nose out of my business.

Ranb Crybaby. You like freedom, you don't like the government, then don't call the cops if you get robbed, ok? Better yet, go live on an island if you don't want to be part of a country.

[NullPointerException]

Someone else flame Zero for his funny message, I am unable to do so as my new years resolution was to raise my karmic level to somewhere above mass-kitty killer.

[The Central Scrutinizer]

Originally posted by corplinx
the right to keep and bear arms shall not be infringed



that is soooooooo vague

A well regulated militia......

That is soooooooo vague.

[Crossbow]

Originally posted by American



The courts have also done just the opposite in numerous cases. There's no consensus; it's a constant battle by both sides, which I'm actually happy with if it remains in some reasonable equilibrium. I don't want either side to win 100%, or lose for that matter.

Are you sure about that?

I am not a lawyer so I may be wrong, but I was thinking that there has not been even one case that made it all the way to the Supreme Court where individual gun ownership rights have been upheld. And the court has looked at this issue many times in its long history.

Cases involving ownership of machine guns, silencers, sawed off shotguns, hand gernades, convicted felon firearm ownership, etc. have all been upheld by the court.

If you know of some exceptions, then I would appreciate it if you would post accordingly.

[Suddenly]

The United States Supreme Court in the Miller case held that the right to bear arms was predicated by a connection to a state militia. The only remaining question is how significant that connection must be. In Miller the court included that the gun must be of a type typically used in national defense. However, as that particular requirement was not met in that case, the court did not explicitly name any other further criteria w/r/t detemining the existance of a connection.

The great mass of caselaw has viewed the "type of weapon" criteria in Miller to not preclude other criteria, that the "type of weapon" was just one thing to consider when determining whether the connection to a militia to exist. Most courts have held that the ownership itself must be in the context of membership of a state interest. For example there is U.S. v. Rybar, 103 F.3d 273 (3rd Cir., 1996), which illustrates the above.

Then, we get the Emerson (U.S. v. Emerson, 270 F.3d 203 (5th Cir, 2001)) case that attempts to argue that the identification criteria in Miller is exclusive, that all that ever needs to be shown is that the gun is of the type generally used in a militia. This is the case that brought us the misleading and propaganda-like "individual vs. collective rights" terminology. This case frames it's narrow reading of Miller as presenting an "individual right" to bear arms, and framing virtually all other cases as only allowing a "collective" right.

This is misleading for two reasons. First, both of these views present an individual right predicated upon some connection to acting in the collective defense. The only debate is how strong of a connection must exist. Emerson wants a weaker connection, but it still recognizes the explicit requirement set forth by Miller that the weapon myst be of a type typically used in a militia. Likewise, Rybar and similar cases allows for an individual right, but requires actual membership in a state militia. In both cases the right is individual, it is just that the collective activity that predicates those rights differs in magnitude.

The second reason for the confusion is that less savvy pro-gun supporters who are unaware of the nuances of what Emerson meant by "individual rights" cite pre-Emerson cases that in passing mention the 2nd amendment as an "individual right" , usually while deciding an issue with absolutely nothing to do with guns. These mentions of the second amendment were at the time simple statements of fact, but by (out of dishonesty or ignorance) retroactively applying the fallacious labeling of Emerson these statements can be made to appear to support the "individual rights" view today held by the pro gun crowd and the authors of Emerson. This gets played out towards the end of this thread:

http://www.randi.org/vbulletin/showthread.php?s=&threadid=27556&perpage=40&highlight=miller%20individual%20right&pagenumber=6



The charitable way to describe Emerson is that it presents a circuit split. More realistically it is a renegade case based on a false counter-positive of the holding of Miller, that Miller holds that if a weapon is of the type used by a militia it is covered by the second amendment. I reaponded to this somewhere in the middle of this thread:
http://www.randi.org/vbulletin/showthread.php?s=&threadid=29373&perpage=40&highlight=Miller%20false%20militia&pagenumber=3

Here is what I said: They [The Miller court] are saying that to satisfy proposition "A" (having some reasonable relationship to the preservation or efficiency of a well- regulated militia) one must show element "B" (the weapon in question is of a type that is commonly used in a militia).

In other words, If not B then not A, as B is a necessary condition for A.

The court never said B was the only necessary condition for A, just that it was necessary. They had no need to get into any other necessary conditions, so the question was left unanswered.

Taking "If not B than not A" to mean "If B then A" is a false contrapositive. There can be other necessary conditions for A.

So, saying that Miller holds that: If the weapon is of a type used in a militia then it "has some reasonable relationship to the preservation or efficiency of a well- regulated militia" is a false contrapositive, As Miller actualy says that if the weapon is not of that type, it does not have a reasonable relationship...

Miller neither establishes nor does it preclude additional necessary conditions. They never got that far.

[shanek]

Originally posted by Suddenly
The United States Supreme Court in the Miller case held that the right to bear arms was predicated by a connection to a state militia. The only remaining question is how significant that connection must be. In Miller the court included that the gun must be of a type typically used in national defense. However, as that particular requirement was not met in that case, the court did not explicitly name any other further criteria w/r/t detemining the existance of a connection.

Of course, if the weapon type is the exclusive criteria, then these so-called "assault weapons" should be allowed and the argument that people shouldn't be allowed access to military-grade weapons is specious.

What I think is more significant, though, is that to my knowledge the court has never said what a militia actually is. Going from what our founders wrote, it's clear that they meant any able-bodied citizen who could take up arms and act in defense. I think it's always assumed that that would be against an invading power, but if you had, say, a neighborhood watch program where citizens with arms patrol their streets (they actually exist, BTW, and are quite effective) and use their firearm to protect their neighbors from burglars, rapists, etc., would that be considered a militia?

And if it is, then why would it not be considered an action in connection to a militia to defend your own house against intruders? I think it would be nonsense to say that you can legally defend your neighbors and your neighborhood streets but not your own house.

[Tmy]

The bill o rights took years to write and ratify. Why is there always such confusion on the pupose of the 2nd Amend. I would think there was alot of discussion over its purpose.

[Ed]

A couple of thoughts. Machine guns are legal in 30 something states, silencers too. You have to pay a federal tax is all.

I am in favor of firearms regulation however I refuse to support even reasonable suggestions by people like Handgun control because their avowed purpose is civilian disarmament. Sometimes the slippery slope is not a fallacy at all.

There are 25,000 laws (literally) on the books concerning firearms. The difficulty is that there is sporatic enforcement. Unfortunately, firearm laws are the darling of the left: any cockamamie law seems to be a good idea for some absurd notion of safety. For example, in CT in an effort to reduce the movie style shootouts the occur in all of our pastoral villages, the idiots in Hartford passed an automatic weapons ban. Except what they regulated were selective fire firearms. The gun folks here know where I am going. Ergo, it is illeagal for me to own a Thomson Submachine Gun but ok to own a team serviced .30 Cal. Browning.

A couple of years ago NJ banned "assault weapons". At the time there were like 5 crimes commited by users of these things, they had to get a sample from a gun store to show how horrible they are since the cops had none that were confiscated. When this law came up for renewel a few years later, there was, naturally, no change in "assult weapon" related crime since there was none to begin with. The lame excuse for extending it (to the cheers of the left) was something like "it dosen't hurt". Pure politics.

I would like to see laws passed concerning firearms, in return I would like to see the secvond ammendment rewritten to be completely clear and have it supported by those that want laws and insist that they are not after complete disarmament.

I understand, also, that there are an incresing number of states that have passed consitutional ammendments that affirm the right to keep and bear arms.

Speaking of the loony NRA (I am a benfactor member but they still act loony sometimes). Front cover of the American Rifleman this month (I am not kidding) "Buy the Cold Dead Hands Rifle". The one Chuck Heston waved when he made those deathless remarks. Don't they have a Director of PR over there? Idiots.

[Troll]

Originally posted by JAR

I advocate that they be exterminated in a perfectly legal manner okayed and carried out by the U.S. government. I'm against having people carry it out illegally.

The above was said about non-white people. It's also a good example of why the second amendment exists to allow an armed citizenry. If Jar had his wish come true the rest of us would be better prepared to overthrow a government that supported such behavior.

[Crossbow]

Originally posted by Ed
A couple of thoughts. Machine guns are legal in 30 something states, silencers too. You have to pay a federal tax is all.

...

Not to be overly fussy, but is this right?

I thought it was in 1986 where there was Federal law passed concerning private ownership of machine guns and the law stated that one (with a Class III License) could own machine guns made prior to the law, but not machine guns made after enactment of the law.

There is a good, and legal, business in these old weapons as a result, but the one can no longer purchase new machine guns.

[Tmy]

Whats the deal with silencers. It would seem that there main purpose would be for sinister use. Do you not want to wake the neighbors as you defend your home from armed intruders?

What are the 2nd amendment arguments FOR allowing them?

[Suddenly]

Originally posted by shanek


Of course, if the weapon type is the exclusive criteria, then these so-called "assault weapons" should be allowed and the argument that people shouldn't be allowed access to military-grade weapons is specious.

What I think is more significant, though, is that to my knowledge the court has never said what a militia actually is. Going from what our founders wrote, it's clear that they meant any able-bodied citizen who could take up arms and act in defense. I think it's always assumed that that would be against an invading power, but if you had, say, a neighborhood watch program where citizens with arms patrol their streets (they actually exist, BTW, and are quite effective) and use their firearm to protect their neighbors from burglars, rapists, etc., would that be considered a militia?

And if it is, then why would it not be considered an action in connection to a militia to defend your own house against intruders? I think it would be nonsense to say that you can legally defend your neighbors and your neighborhood streets but not your own house.

The courts have spoke as to the what a militia is, for example a snippet from the above mentioned Rybar case:

Nonetheless, Rybar attempts to place himself within the penumbra of membership in the "militia" specified by the Second Amendment by quoting from 10 U.S.C. Section(s) 311(a):

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are . . . citizens of the United States . . . .

[74] Rybar's invocation of this statute does nothing to establish that his firearm possession bears a reasonable relationship to "the preservation or efficiency of a well regulated militia," as required in Miller, 307 U.S. at 178. Nor can claimed membership in a hypothetical or "sedentary" militia suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978); United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948 (1976).

More specifically from the Hale case cited in the above:

Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test. Oakes, 564 F.2d at 387. Membership in a hypothetical or "sedentary" militia is likewise insufficient. See Warin, 530 F.2d 103.

and also from Hale

Hale wants to find in Miller the rule that individual possession of true military weapons is protected under the Second Amendment. When the Second Amendment was ratified in 1791, the state militias functioned as both the principal units of military organization and as an implicit check on federal power. See generally Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U.Dayton L.Rev. 5 (1989). These militias were comprised of ordinary citizens who typically were required to provide their own equipment and arms. The Second Amendment prevented federal laws that would infringe upon the possession of arms by individuals and thus render the state militias impotent. Over the next 200 years, state militias first faded out of existence and then later reemerged as more organized, semi-professional military units. The state provided the arms and the equipment of the militia members, and these were stored centrally in armories. With the passage of the Dick Act in 1903, the state militias were organized into the national guard structure, which remains in place today. Id.

More recently, the Supreme Court in Perpich v. U.S. Department of Defense, 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990), has analyzed the early history of the militia, including the Act of 1792 which required militia members to provide themselves "with a good musket or firelock," as well as cartridges and other equipment. The Court observed that these requirements were virtually ignored for more than a century. Id. at 341, 110 S.Ct. at 2423. Perpich discusses in detail the relationship between the militia and the National Guard and recognizes that the "Federal Government provides virtually all of the funding, the materiel, and the leadership for the State Guard units." Id. at 351, 110 S.Ct. at 2428. While Perpich does not deal with the Second Amendment issue present here, its discussion of the militia gives further dimension to our analysis.

Considering this history, we cannot conclude that the Second Amendment protects the individual possession of military weapons. In Miller, the Court simply recognized this historical residue. The rule emerging from Miller is that, absent a showing that the possession of a certain weapon has "some reasonable relationship to the preservation or efficiency of a well-regulated militia," the Second Amendment does not guarantee the right to possess the weapon. Miller, 307 U.S. at 178, 59 S.Ct. at 818. Miller simply "did not hold ... that the Second Amendment is an absolute prohibition against all regulation of the manufacture, transfer and possession of any instrument capable of being used in military action." Warin, 530 F.2d at 106.

[Ranb]

Originally posted by Tmy
Whats the deal with silencers. It would seem that there main purpose would be for sinister use. Do you not want to wake the neighbors as you defend your home from armed intruders?

What are the 2nd amendment arguments FOR allowing them?

I am not trying to insult you but your first sentence is typical of gun phobics in the USA. According to one reliable source (Al Paulson's Silencer History and Performance) there are 60,000 American owners of silencers ( more correctly called suppressors). It is very rare to find them used in crimes here. Of course there are illegal suppressors used in crimes, and the nature of suppressors can help a felon reduce the noise of his shot.

Suppressors do not make guns silent at all. While some small 22 rimfire caliber rifles with a suppressor may make no more noise than an air rifle, they are still at least 100 decibels loud. Other more powerful suppressor equipped firearms still require the shooter to use hearing protection while shooting to prevent hearing loss. Small, powerful, and quiet is a combination that only exists on a Hollywood sound stage. Suppressors do not work (with only one exception) on revolvers.

Suppressors reduce the need for hearing protection for shooters and bystanders. They also are very effective in reducing noise polution from rifle ranges. With more people and homes near ranges these days, complaints from the neighbors are closing them down. Suppressors can help with the noise here.

As for your second question, Suppressors are firearms only because the Fed/BATF have defined them as such. I see no reason for controlling them at all. There should not be a 2nd amendment reason for owning them. Americans can own any weapon not forbidden by law.

Ranb

[Ed]

Originally posted by Crossbow


Not to be overly fussy, but is this right?

I thought it was in 1986 where there was Federal law passed concerning private ownership of machine guns and the law stated that one (with a Class III License) could own machine guns made prior to the law, but not machine guns made after enactment of the law.

There is a good, and legal, business in these old weapons as a result, but the one can no longer purchase new machine guns.

Quite right. There are so many machine guns out there that I was not thinking of availability, per se.

Point is, you can buy and use a completely legal machine gun in those states.

[Suddenly]

Bump

[RandFan]

Originally posted by Suddenly
Bump So, let me see if I understand your argument. Because the Supreme court has ruled in Miller and there exists case law that "interprets" the 2nd Amendment to be a states right and not an individual right that "people" does not in all actuality mean individuals.

Correct?

[Kodiak]

"Amendment II --

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.

The Militia was just the reason given for originally instituting the 2nd Amendment. It protects the right of the people, not just the militia."

The second amendment is composed of two parts: the Justification clause, and the Rights clause.

Justification clause: "A well regulated Militia being necessary to the security of a free State,"

Rights clause: "the right of the people to keep and bear Arms, shall not be infringed."

"The justification clause does not modify, restrict, or deny the rights clause."
"Justification clauses appear in many state constitutions, and cover liberties including right to trial, freedom of the press, free speech, and more. Denying gun rights based on the justification clause means we would have to deny free speech rights on the same basis." -- Eugene Volokh, Prof. Law, UCLA See http:/www.law.ucla.edu/faculty/volokh/beararms/testimon.htm

The Second Amendment is an individual right, not a collective right:

The Supreme Court has listed the Second Amendment in at least two rulings as an individual right. -- Dred Scott, Casey v. Planned Parenthood and U.S. v. Cruikshank

The Supreme court specifically reaffirmed that the right to keep and bear arms did not belong to the government. -- United States v. Miller

"We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not thay are a member of a select militia or performing active military service or training".
"We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment."
"All of the evidence indicates that the 2nd Amendment, like the rest of the Bill of Rights, applies to and protects individual Americans."
"The plain meaning of the right of the people to keep arms is that it is an individual, rather than a collective, right and is not limited to keeping arms while engaged in active military service or as a member of a select militia such as the National Guard." -- U.S. v. Emerson, 5th court of Appeals decision, November 2, 2001, No. 99-10331

"62% of those likely voters sampled believe the 2nd Amendment guarantees an individual right, while only 28% believe it protects the power of the states to form militias." -- Associated Television News Survey, August 1999

"There are 23 state constitutions with "right to keep and bear arms" clauses adopted between the Revolution and 1845, and 20 of them are explicitly individual in nature, only 3 have "for the common defense...." or other "collective rights" clauses."
"Of 300 decisions of the federal and state courts that have taken a position on the meaning of the Second Amendment, or the state analogs to it, only 10 (3.3%) have claimed that the right to keep and bear arms is not an individual right. Many of the other decisions struck down gun control laws because they conflicted with the Second Amendment, such as State v. Nunn (Ga. 1846)." -- Clayton Cramer, historian, author of For the Defense of Themselves and the State_(Praeger Press, 1994), cited as an authority in USA v. Emerson (N.D. Texas 1999)

James Madison, considered to be the author of the Bill of Rights, wrote that the Bill of Rights was "calculated to secure the personal rights of the people". -- Stephen P. Halbrook, "Where Kids and Gun Do Mix", Wall Street Journal, June 2000.

"The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respectingthe rights of property: nor will the constitution permit any prohibition of arms to the people: or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion. -- Tucker's Blackstone, Volume 1 Appendix Note D., 1803 - Tucker's comments provide a number of rare insights into the consensus for interpretation of the Constitution that prevailed shortly after its ratification, after the debates had settled down and the Constitution was put into practice

"The signification attributed to the term "Militia" appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense. And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." -- U.S. v. Miller -the Miller case specifically held that specific types of guns might be protected by the Second Amendment. It depended on whether a gun had any military (militia) use, and they wanted some evidence presented, confirming that citizens have a right to military style weapons.

[Suddenly]

Originally posted by RandFan
So, let me see if I understand your argument. Because the Supreme court has ruled in Miller and there exists case law that "interprets" the 2nd Amendment to be a states right and not an individual right that "people" does not in all actuality mean individuals.

Correct?

No.

The right can be looked at as a personal right that exists only when the ownership of the weapon is in connection with a well regulated militia. This is a settled point of law.

The only debate remaining is how strong the connection needs to be. That is in a nutshell what the above posts say.

[Kodiak]

Originally posted by Suddenly
This is a settled point of law.

Wrong, thank you for playing, and please try again...

[Suddenly]

Originally posted by Kodiak
"Amendment II --

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.

The Militia was just the reason given for originally instituting the 2nd Amendment. It protects the right of the people, not just the militia."

The second amendment is composed of two parts: the Justification clause, and the Rights clause.

Justification clause: "A well regulated Militia being necessary to the security of a free State,"

Rights clause: "the right of the people to keep and bear Arms, shall not be infringed."

"The justification clause does not modify, restrict, or deny the rights clause."
"Justification clauses appear in many state constitutions, and cover liberties including right to trial, freedom of the press, free speech, and more. Denying gun rights based on the justification clause means we would have to deny free speech rights on the same basis." -- Eugene Volokh, Prof. Law, UCLA See http:/www.law.ucla.edu/faculty/volokh/beararms/testimon.htm

Everybody has an opinion. Same with Volokh. I've been an editor on a law review and taught classes in law. So what? His statements have no more binding authority in law than mine, or Franko's for that matter.

Plus, his last sentence makes little sense. What justification clause in the 1st amendment? Furthermore, who is completely denying gun rights? Restricting the right to "Militia" related activities is hardly an outright denial that a right exists, its just a restriction, be it a rather large one. His next to last sentence makes little sense as well. That types of clauses may exist in law does not somehow require that all of them are going to be construed with identical weight w/r/t the rest of a sentence. That's silly.

His opinion is contrary to the case law. _Miller_ clearly places a restriction on gun ownership. The only debate is the magnitude of the restriction, as I summarized above.

The Second Amendment is an individual right, not a collective right:

The Supreme Court has listed the Second Amendment in at least two rulings as an individual right. -- Dred Scott, Casey v. Planned Parenthood and U.S. v. Cruikshank
I'm pretty confident that such a mention is dicta in the first two cases. Offhand comments not directly related to the issue to be decided have no force in law, as they are not made within the court's grant of power under the constitution. The third I'll just suspect absent knowledge of context. There is no cite for me to look it up.
The Supreme court specifically reaffirmed that the right to keep and bear arms did not belong to the government. -- United States v. MillerThis right is restricted by the "some reasonable relationship to the preservation or efficiency of a well regulated militia"" test spelled out by Miller. You are arguing with the strawman that these cases ban all personal rights to own a gun. They don't. The argument is that personal right only exists where some relationship to militia activity exists. Miller stands for the proposition that the weapon itself must be of a type commonly used for militia type purposes. The question remaining today is whether or not ownership of a gun that passes the "Miller test" is protected by the second amendment even if the person owning it does not do so in relation to actual militia activity. The circuits are split on this....

"We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not thay are a member of a select militia or performing active military service or training".
"We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment."
"All of the evidence indicates that the 2nd Amendment, like the rest of the Bill of Rights, applies to and protects individual Americans."
"The plain meaning of the right of the people to keep arms is that it is an individual, rather than a collective, right and is not limited to keeping arms while engaged in active military service or as a member of a select militia such as the National Guard." -- U.S. v. Emerson, 5th court of Appeals decision, November 2, 2001, No. 99-10331

This is one half of the split I mentioned above. Read the whole case and you will see that the above text fits in with what I am saying. In Emerson, the court limited Miller to only speak to types of weapons. It doesn't contradict Miller, or overrule it. The principle that a weapon must in type have "some reasonable relationship to the preservation or efficiency of a well regulated militia" is not disturbed. The Emerson court refuses to take the next step and find that Miller implies that for the second amendment to apply a person must be engaged in some sort of militia activity. Then if you read the other half of the split, the Rybar case I mention in an above post, that court does take the next step and refuses to find second amendment protection because while the guns (they were machine guns) passed the "Miller" test, the owner had no relationship whatsoever to a militia.

Here's a segment from _U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996):

In support, Rybar cites, paradoxically, the Supreme Court decision in United States v. Miller, 307 U.S. 174 (1939), where the Court upheld the constitutionality of a firearms-registration requirement against a Second Amendment challenge. Rybar draws on that holding, relying on the Miller Court's observation that the sawed-off shotgun in question had not been shown to bear "some reasonable relationship to the preservation or efficiency of a well regulated militia." Brief of Appellant at 24-25; Miller, 307 U.S. at 178. Drawing from that language the contra positive implication, Rybar suggests that because the military utility of the machine guns proscribed by Section(s) 922(o) is clear, a result contrary to that reached in Miller is required, and the statute is therefore invalid under the Second Amendment.

[70] Rybar's reliance on Miller is misplaced. The language Rybar cites is taken from the following passage:

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.

[71] 307 U.S. at 178.

[72] We note first that however clear the Court's suggestion that the firearm before it lacked the necessary military character, it did not state that such character alone would be sufficient to secure Second Amendment protection. In fact, the Miller Court assigned no special importance to the character of the weapon itself, but instead demanded a reasonable relationship between its "possession or use" and militia related activity. Id.; see Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942) (susceptibility of firearm to military application not determinative), cert. denied, 319 U.S. 770 (1943). Rybar has not demonstrated that his possession of the machine guns had any connection with militia-related activity. Indeed, as noted above, Rybar was a firearms dealer and the transactions in question appear to have been consistent with that business activity.

[73] Nonetheless, Rybar attempts to place himself within the penumbra of membership in the "militia" specified by the Second Amendment by quoting from 10 U.S.C. Section(s) 311(a):

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are . . . citizens of the United States . . . .

[74] Rybar's invocation of this statute does nothing to establish that his firearm possession bears a reasonable relationship to "the preservation or efficiency of a well regulated militia," as required in Miller, 307 U.S. at 178. Nor can claimed membership in a hypothetical or "sedentary" militia suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978); United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948 (1976).

This is the split. Emerson goes with a relatively "individual right" in that participation in militia is not necessary. Rybar takes the opposite view, embracing the so called "collective" right.

Both views still follow Miller, in that only guns of the type commonly used for militia purposes are protected by the second amendment.
"62% of those likely voters sampled believe the 2nd Amendment guarantees an individual right, while only 28% believe it protects the power of the states to form militias." -- Associated Television News Survey, August 1999
Are you serious? If 88% of people believe 2+2=73 that doesn't make it so. Plus, I'd love to see the actual question. Thanks to certain groups uses of ellipses, I wonder how many people know the actual text of the second amendment?
"There are 23 state constitutions with "right to keep and bear arms" clauses adopted between the Revolution and 1845, and 20 of them are explicitly individual in nature, only 3 have "for the common defense...." or other "collective rights" clauses."
"Of 300 decisions of the federal and state courts that have taken a position on the meaning of the Second Amendment, or the state analogs to it, only 10 (3.3%) have claimed that the right to keep and bear arms is not an individual right. Many of the other decisions struck down gun control laws because they conflicted with the Second Amendment, such as State v. Nunn (Ga. 1846)." -- Clayton Cramer, historian, author of For the Defense of Themselves and the State_(Praeger Press, 1994), cited as an authority in USA v. Emerson (N.D. Texas 1999)This would be great if the federal courts were bound by state courts, or if law was a question of statistics rather than binding authority. It isn't. It is just a footnote in a case that is part of a circuit split.

James Madison, considered to be the author of the Bill of Rights, wrote that the Bill of Rights was "calculated to secure the personal rights of the people". -- Stephen P. Halbrook, "Where Kids and Gun Do Mix", Wall Street Journal, June 2000.
Authorship doesn't automatically confer authority. Furthermore, like a said before, this statement is not really contradictory to the "collective" right theory. The "collective" right as stated in Rybar does confer a right on the individual, it just conditions that right on membership in a militia. The right is not held collectively but individually. However, that individual right is conditioned by membership is a "collective" group, In that "I" have a right to own a gun, as long as it is in the context of militia membership."

"The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respectingthe rights of property: nor will the constitution permit any prohibition of arms to the people: or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion. -- Tucker's Blackstone, Volume 1 Appendix Note D., 1803 - Tucker's comments provide a number of rare insights into the consensus for interpretation of the Constitution that prevailed shortly after its ratification, after the debates had settled down and the Constitution was put into practice

Maybe in your opinion. I have serious doubts that the "debates" you mention have ever settled down. Furthermore, the 14th amendment and decisions about the commerce clause have dramatically changed the nature of federal power over domestic concerns. These insights seem simply out of date.

"The signification attributed to the term "Militia" appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense. And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." -- U.S. v. Miller -the Miller case specifically held that specific types of guns might be protected by the Second Amendment. It depended on whether a gun had any military (militia) use, and they wanted some evidence presented, confirming that citizens have a right to military style weapons. Yes. The whole so called "collective" versus "individual" rights argument is simply an argument over whether or not the test in Miller extends beyond the type of gun to require that the ownership interest be realted to militia purposes. That is it. That's all the argument is.

Either way, you definately have an individual right under the second amendment to own a gun that is of a type suitable for militia purposes, if the ownership interest relates to militia activity. (The so-called "collective rights view")

Some circuits hold that only the type of weapon is important, the owner need not actually be involved in the militia. (individual rights view)

Legally, that is the question. Confusion results when people use the words "collective" and "individual" both as terms of art as explained above and with their common meanings.

"Collective" in the above context includes a (restriced) individual right, and the "individual" right still is affected by a collective flavor, in that the right is justified by a showing the weapon is of a type used for the collective defense.

What a mess.

[RandFan]

Originally posted by Suddenly
The right can be looked at as a personal right that exists only when the ownership of the weapon is in connection with a well regulated militia.So, you are saying that I have a right to own a gun as long as I am part of a well regulated militia? If I am not part of a regulated militia I have no right to keep and bear arms?

This is a settled point of law. Slavery was a settled point of law. Please see SCOTUS, Dread Scott. "prohibiting slavery was a violation of the slave holder’s property rights!"

The only debate remaining is how strong the connection needs to be. That is in a nutshell what the above posts say. And this is wrong. Please see Kodiak's post regarding justification and rights clauses.

Please look at the 2nd Amendment again. Note that it is the 2nd. It must have some importance beyond a vague connection to a militia. Also note that the words are direct. Congress shall make NO law. Also note that the framers could have easily said the "peoples" right in certain and specific instances. What was not said is as important as to what was said. The right belongs to the people and not in some vague hard to decipher connection to a militia.

That courts have bent over backwards to make the 2nd Amendment say what they wanted it to say does not change its purpose or the intent of the framers who expressly gave the right to the "people".

[Kodiak]

Originally posted by Suddenly
What a mess.

Agreed

[Suddenly]

Originally posted by Kodiak


Wrong, thank you for playing, and please try again...

Can you support that outside of your traditional cut and paste job? Perhaps you can find more legal passages to take out of context. Those are fun.

[Kodiak]

Originally posted by Suddenly


Can you support that outside of your traditional cut and paste job? Perhaps you can find more legal passages to take out of context. Those are fun.

Another reason not to discard old threads...

We rehash this every 6 months...

2nd Amendment - individual right (http://www.afn.org/~afn01750/politics/2ndIndividualRight.html)

[Kodiak]

Originally posted by Suddenly
,,,the owner had no relationship whatsoever to a militia.


Other than the fact that being a citizen of legal age, he was eligible for military service in defense of his country!!!!!!!!

Get it?

Even allowing for the justification clause (which I and many others do not), any American citizen of legal age is a potential militiaman!!!!

[Suddenly]

Originally posted by RandFan
So, you are saying that I have a right to own a gun as long as I am part of a well regulated militia? If I am not part of a regulated militia I have no right to keep and bear arms? Not exactly. According to present law there must be some connection. As to how big a connection is the present split. One side (the majority view) more or less requires membership. The other only requires the weapon to be that which a militia would use.

Slavery was a settled point of law. Please see SCOTUS, Dread Scott. "prohibiting slavery was a violation of the slave holder’s property rights!" My argument is limited to what the law is. Your argument here could apply to any area of law at any time, be it insider trading or laws against pedophilia. Laws do change.

And this is wrong. Please see Kodiak's post regarding justification and rights clauses. I don't buy "grammar is dentiny" as I point out in my usual rebuttal to that post.

Please look at the 2nd Amendment again. Note that it is the 2nd. It must have some importance beyond a vague connection to a militia. Also note that the words are direct. Congress shall make NO law. Also note that the framers could have easily said the "peoples" right in certain and specific instances. What was not said is as important as to what was said. The right belongs to the people and not in some vague hard to decipher connection to a militia.

That courts have bent over backwards to make the 2nd Amendment say what they wanted it to say does not change its purpose or the intent of the framers who expressly gave the right to the "people".

So, what you believe it means is different from what the courts have decided it means. Welcome to the real world where ambiguity in language is a fact of life. Since the power to interpret the language of positive law is given to the courts, it seems that they have the power to say what the thing means.

There is a difference in debating what the law should be versus what the law is. As far as the latter goes, I am confident I am correct about this. As far as the former goes, I have no such confidence.

[Suddenly]

Originally posted by Kodiak


Other than the fact that being a citizen of legal age, he was eligible for military service in defense of his country!!!!!!!!

Get it?

Even allowing for the justification clause (which I and many others do not), any American citizen of legal age is a potential militiaman!!!!

Scroll up several posts and note I give snippets of several cases that reject this thinking in response to Shanek's similar point. Specifically the Rybar and Hale cases. This often gets raised in federal gun cases, as it is in fact I think a reasonable point.

However...

It isn't a matter of "getting it" as much as it is a matter of agreeing with it, and the courts have pretty uniformly not cared much for it. That is the courts on the majority side of the circuit split. The Emerson court wouldn't really need to get to the point as they would see membership as unnecessary anyway.

[Kodiak]

Originally posted by Suddenly
It isn't a matter of "getting it" as much as it is a matter of agreeing with it, and the courts have pretty uniformly not cared much for it. That is the courts on the majority side of the circuit split. The Emerson court wouldn't really need to get to the point as they would see membership as unnecessary anyway.

Hmmm...

"Of 300 decisions of the federal and state courts that have taken a position on the meaning of the Second Amendment, or the state analogs to it, only 10 (3.3%) have claimed that the right to keep and bear arms is not an individual right. Many of the other decisions struck down gun control laws because they conflicted with the Second Amendment, such as State v. Nunn (Ga. 1846)." -- Clayton Cramer, historian, author of For the Defense of Themselves and the State_(Praeger Press, 1994), cited as an authority in USA v. Emerson (N.D. Texas 1999)

[Suddenly]

Originally posted by Kodiak


Hmmm...

"Of 300 decisions of the federal and state courts that have taken a position on the meaning of the Second Amendment, or the state analogs to it, only 10 (3.3%) have claimed that the right to keep and bear arms is not an individual right. Many of the other decisions struck down gun control laws because they conflicted with the Second Amendment, such as State v. Nunn (Ga. 1846)." -- Clayton Cramer, historian, author of For the Defense of Themselves and the State_(Praeger Press, 1994), cited as an authority in USA v. Emerson (N.D. Texas 1999)

I read that. Several times.

1) "or the state analogs to it" -- Most state "gun amendments" do not share the peculiar construction of the U.S. second amendment.

2) Even Miller and the other cases can be read to include an individual right, just one conditioned on a connection to the militia. Considering even Emerson agrees to that extent, we begin to see a problem with the language. "Individual right" can mean different things.

3) Not a good sign that the only case he can cite using the 2nd to strike down a law is a case from the highest court in Georgia that pre-dates the civil war.

4) I wonder how many offhand dicta remarks are included by this guy in his "taken a position" criteria. Are these cases that actually discuss such a right?

[Kodiak]

Originally posted by Suddenly


I read that. Several times.

1) "or the state analogs to it" -- Most state "gun amendments" do not share the peculiar construction of the U.S. second amendment.

2) Even Miller and the other cases can be read to include an individual right, just one conditioned on a connection to the militia. Considering even Emerson agrees to that extent, we begin to see a problem with the language. "Individual right" can mean different things.

3) Not a good sign that the only case he can cite using the 2nd to strike down a law is a case from the highest court in Georgia that pre-dates the civil war.

4) I wonder how many offhand dicta remarks are included by this guy in his "taken a position" criteria. Are these cases that actually discuss such a right?

You claimed that a vertual judicial concensus had been reached.

My only purpose above was to refute that.

[Suddenly]

Originally posted by Kodiak


You claimed that a vertual judicial concensus had been reached.

My only purpose above was to refute that.

I understand that.

However, that item has nothing to do with present legal reality. Any case decided before Miller is irrelevant, as Miller is when the Supreme Court sets the legal principle I am referring to. The very example given predates Miller.

In fact, the item was cited by a case that agreed with the principle I am discussing, that there must be a connection between the ownership and a militia purpose. The Emerson case doesn't disagree with that aspect of Miller, rather it just greatly narrows it, holding that if the weapon is of a type used for militia purposes, the ownership of same is protected by the second amendment.

Now, I think the Emerson case is an example of poor reasoning, but I recognize that in at least one circuit it is the law...

[billydkid]

Originally posted by Ranb
I was looking at the ACLU's homepage and their stance on the second amendment. They think it is all about the "right of the states to maintain militias to assure their own freedom and security against the central government" and that this makes the 2nd amendment "somewhat anachronistic".

The first ten amendments mention the people ( or owners, persons) eight out of ten times. Only in the 2nd amendment does the ACLU say ( or agree with some of the courts) the word people actually means the state. They also do not think that in this day and age the 1st amendment is anachronistic. Think about this while you are reading the JREF forum. It takes a long time to get the mail when it is printed on a manual press and delivered by horseback or barge.

Ranb

I would be wholeheartedly supporting the ACLU if they were consistent in their support for individual liberty. They simply are not.

[Richard G]

Militia is defined in Federal Code, and there is NOTHING vague about it:

Sec. 311. - Militia: composition and classes


(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are -

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia


These people are exempt from militia service (note that people in the military are exempt):


Sec. 312. - Militia duty: exemptions


(a) The following persons are exempt from militia duty:

(1) The Vice President.


(2) The judicial and executive officers of the United States, the several States and Territories, and Puerto Rico.

(3) Members of the armed forces, except members who are not on active duty.

(4) Customhouse clerks.

(5) Persons employed by the United States in the transmission of mail.

(6) Workmen employed in armories, arsenals, and naval shipyards of the United States.

(7) Pilots on navigable waters.

(8) Mariners in the sea service of a citizen of, or a merchant in, the United States.

(b) A person who claims exemption because of religious belief is exempt from militia duty in a combatant capacity, if the conscientious holding of that belief is established under such regulations as the President may prescribe. However, such a person is not exempt from militia duty that the President determines to be noncombatant

[Suddenly]

Originally posted by Richard G
Militia is defined in Federal Code, and there is NOTHING vague about it:

Sec. 311. - Militia: composition and classes


(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are -

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia


These people are exempt from militia service (note that people in the military are exempt):


Sec. 312. - Militia duty: exemptions


(a) The following persons are exempt from militia duty:

(1) The Vice President.


(2) The judicial and executive officers of the United States, the several States and Territories, and Puerto Rico.

(3) Members of the armed forces, except members who are not on active duty.

(4) Customhouse clerks.

(5) Persons employed by the United States in the transmission of mail.

(6) Workmen employed in armories, arsenals, and naval shipyards of the United States.

(7) Pilots on navigable waters.

(8) Mariners in the sea service of a citizen of, or a merchant in, the United States.

(b) A person who claims exemption because of religious belief is exempt from militia duty in a combatant capacity, if the conscientious holding of that belief is established under such regulations as the President may prescribe. However, such a person is not exempt from militia duty that the President determines to be noncombatant

Nonetheless, Rybar attempts to place himself within the penumbra of membership in the "militia" specified by the Second Amendment by quoting from 10 U.S.C. Section(s) 311(a):

The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are . . . citizens of the United States . . . .

[74] Rybar's invocation of this statute does nothing to establish that his firearm possession bears a reasonable relationship to "the preservation or efficiency of a well regulated militia," as required in Miller, 307 U.S. at 178. Nor can claimed membership in a hypothetical or "sedentary" militia suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978); United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948 (1976).

U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996)

The fact that the defendant Warin, in common with all adult residents and citizens of Ohio, is subject to enrollment in the militia of the State confers upon him no right to possess the submachine gun in question. By statute the State of Ohio exempts "members of . . . the organized militia of this or any other state, . . ." (emphasis added) from the provision, "No person shall knowingly acquire, have, carry, or use any dangerous ordnance." Ohio Revised Code § 2923.17. "Dangerous ordnance" is defined to include any automatic firearm. O.R.C. § 2923.11. There is no such exemption for members of the "sedentary militia." Furthermore, there is absolutely no evidence that a submachine gun in the hands of an individual "sedentary militia" member would have any, much less a "reasonable relationship to the preservation or efficiency of a well regulated militia." Miller, supra, 307 U.S. at 178, 59 S.Ct. at 818. Thus we conclude that the defendant has no private right to keep and bear arms under the Second Amendment which would bar his prosecution and conviction for violating 26 U.S.C. § 5861(d).

[13] Even where the Second Amendment is applicable, it does not constitute an absolute barrier to the congressional regulation of firearms. After considering several arguments that Third Circuit in United States v. Tot, supra, stated that it decided the case on the "broader ground" that "[w]eapon bearing was never treated as anything like an absolute right by the common law. It was regulated by statute as to time and place as far back as the Statute of Northampton in 1328 and on many occasions since." 131 F.2d at 266 (footnote omitted). In Stevens v. United States, supra, this court discussed the broad power of Congress in relying on the commerce clause of the Constitution to deal with the changing needs of the nation. 440 F.2d at 150-152.



United States v. Warin, 530 F.2d 103 (6th Cir. 1976)

and for good measure...

[7] The second constitutional argument that appellant advances is that the prosecution here violated his right to bear arms guaranteed by the second amendment.[fn1] Defendant presents a long historical analysis of the amendment's background and purpose from which he concludes that every citizen has the absolute right to keep arms. This broad conclusion has long been rejected. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206. However, as in his search and seizure argument, appellant attempts to avoid the seemingly dispositive nature of the case law by arguing a factual distinction. He contends that, even if the second amendment is construed to guarantee the right to bear arms only to an organized militia, he comes within the scope of the amendment. He points out that under Kans.Const. art. VIII, § 1, the state militia includes all "able-bodied male citizens between the ages of twenty-one and forty-five years . . .." He further points out that he is a member of "Posse Comitatus, a militia-type organization registered with the state of Kansas."

[8] The purpose of the second amendment as stated by the Supreme Court in United States v. Miller, supra at 178, 59 S.Ct. 816, was to preserve the effectiveness and assure the continuation of the state militia. The Court stated that the amendment must be interpreted and applied with that purpose in view. Id. To apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy. This lack of justification is even more apparent when applied to appellant's membership in "Posse Comitatus," an apparently nongovernmental organization. We conclude, therefore, that this prosecution did not violate the second amendment.



United States v. Oakes, 564 F.2d 384 (10th Cir. 1977)

[Richard G]

The courts are wrong.

[TillEulenspiegel]

Originally posted by Richard G
The courts are wrong.

Well s**t who can argue with that?

[TillEulenspiegel]

Sorry for the short stop.
In answer to the main threads question "Why doesn't the ACLU like the 2nd amendment?"
I wouldn't say that their against it , it's like Amnesty Intnl's position ( of which I am also a member). They let people opt out of any editorial position that is anti-death penalty while still embracing the core values of the organization.

The US and China are about all the countries that embrace the death penalty, we for heinous crimes against people, they for every thing that appearers against the state. I personally believe in the death penalty, altho when one looks at the arbitrary use of the ultimate sanction , it seems less certain.

[Suddenly]

Originally posted by TillEulenspiegel
Sorry for the short stop.
In answer to the main threads question "Why doesn't the ACLU like the 2nd amendment?"
I wouldn't say that their against it , it's like Amnesty Intnl's position ( of which I am also a member). They let people opt out of any editorial position that is anti-death penalty while still embracing the core values of the organization.

The US and China are about all the countries that embrace the death penalty, we for heinous crimes against people, they for every thing that appearers against the state. I personally believe in the death penalty, altho when one looks at the arbitrary use of the ultimate sanction , it seems less certain.

The criticism of the ACLU is largely circular. The challenge seems to be that they don't do more to support the individual's absolute right to bear arms. However, the case law has been pretty clear as to that right not existing, so the ACLU's opinion w/r/t the nature of the second amendment is in line with the caselaw.

In the end the ACLU is criticized for not supporting a right the ACLU doesn't believe exists.

Now, whether the ACLU can be rightly faulted for not doing more to support the right to bear arms in states where the constitutional provisions identifying those rights do not share the peculiar limitations of the 2nd Amendment is a whole different question. Some state constitutions spell out a clear individual right, and I would think the ACLU should support that right. Often they do in policy but not in deed, both because of the ACLU's liberal bent, and also because the ACLU isn't the first organization one thinks of when one stumbles upon a gun rights issue.

One of my freinds was on the board of the W.Va. ACLU, and he resigned largely due to this issue. It was also part of the reason that I didn't wind up working for the ACLU. I expressed a strong opinion that these rights were important as our state constitution is pretty specific about an individual right, and my opinion didn't go over very well...

That and they couldn't afford me ;)


(Which actually should be followed by a :eek: or maybe a :( considering how shockingly low my salary demands are)

[RandFan]

Originally posted by Suddenly
The criticism of the ACLU is largely circular. The challenge seems to be that they don't do more to support the individual's absolute right to bear arms. However, the case law has been pretty clear as to that right not existing, so the ACLU's opinion w/r/t the nature of the second amendment is in line with the caselaw. ???? Dread Scott did not mean that Blacks did not have any rights. You seem to confuse rights with Court decisions. Rights aren't given or taken away by the Courts.

[The Central Scrutinizer]

Originally posted by Richard G
The courts are wrong.

Wrong. Ultimately, the courts are never wrong.

[RandFan]

Originally posted by The Central Scrutinizer
Wrong. Ultimately, the courts are never wrong. So they were right in Dred Scott?

[The Central Scrutinizer]

Originally posted by RandFan
???? Dread Scott did not mean that Blacks did not have any rights.


Yes, Dred Scott meant exactly that.

Originally posted by RandFan
You seem to confuse rights with Court decisions. Rights aren't given or taken away by the Courts.

Ultimately, of course they are.

[The Central Scrutinizer]

Originally posted by RandFan
So they were right in Dred Scott?

Yes.

[RandFan]

Originally posted by The Central Scrutinizer
Yes, Dred Scott meant exactly that. No! It simply refused to acknowledge those rights.

Question, can the courts make a silk purse out of a sow's ear? They can declare that it is but it won't make it so. Rights aren't something that are given or taken away. We all have inalienable rights, sadly Dictators, oppresive governments, and sometimes the courts refuse to acknowledge our rights and restrict or deny them to us.

The rights of Blacks weren't taken away by Dred Scott just denied. Distinction without a difference? NO! If it is then there are no such things as rights only opinions and permission. Suddenly's view of the 2nd Amendment is a permission to carry a gun when in fact the framers were very specific as to what our rights are as they relate to keeping and bearing arms. The writings of the founders take away any guess work as to what they meant. Sadly the Courts don't wish to follow the constitution and ignore our rights and treat them as permissions instead of rights.

If the Courts tomorrow ruled against free speech it would not take away our right of free speech, just infringe on it.

[The Central Scrutinizer]

Originally posted by RandFan
No! It simply refused to acknowledge those rights.

Question, can the courts make a silk purse out of a sow's ear? They can declare that it is but it won't make it so. Rights aren't something that are given or taken away. We all have inalienable rights, sadly Dictators, oppresive governments, and sometimes the courts refuse to acknowledge our rights and restrict or deny them to us.

The rights of Blacks weren't taken away by Dred Scott just denied. Distinction without a difference? NO! If it is then there are no such things as rights only opinions and permission. Suddenly's view of the 2nd Amendment is a permission to carry a gun when in fact the framers were very specific as to what our rights are as they relate to keeping and bearing arms. The writings of the founders take away any guess work as to what they meant. Sadly the Courts don't wish to follow the constitution and ignore our rights and treat them as permissions instead of rights.

If the Courts tomorrow ruled against free speech it would not take away our right of free speech, just infringe on it.

Those are your opinions. In my opinion, the 2nd ammendment only gives gun rights to militias, ie the National Guard.

So, we have a difference of opinion as to what the 2nd ammendment means. Who settles it? The courts!!! And the courts (so far) agree with me.

So you can talk until you're blue in the face about what you think the 2nd ammendment says. It is meaningless. The courts interpret the constitution. You do not.

[RandFan]

Originally posted by The Central Scrutinizer


Those are your opinions. In my opinion, the 2nd ammendment only gives gun rights to militias, ie the National Guard.

So, we have a difference of opinion as to what the 2nd ammendment means. Who settles it? The courts!!! And the courts (so far) agree with me.

So you can talk until you're blue in the face about what you think the 2nd ammendment says. It is meaningless. The courts interpret the constitution. You do not. You did not address the issue of the Dredd Scott question or whether rights are something that can be given and taken away.

Did you feel that your position on that issue was untenable?

[RandFan]

Originally posted by The Central Scrutinizer
So you can talk until you're blue in the face about what you think the 2nd ammendment says. It is meaningless. The courts interpret the constitution. You do not. I'm sorry you feel that way. Meaningless? Really, I thought a major reason for freedom of speech was to discuss opinions in the hopes that we could right those things that are wrong?

If the courts are wrong, and it seems quite clear from reading the framers that they are, then we should discuss it and hopefully change things.

I don't think those who were for the abolishment of slavery didn't just throw up there hands and say, "oh well" our OPINIONS are meaningless.

[The Central Scrutinizer]

Originally posted by RandFan
You did not address the issue of the Dredd Scott question or whether rights are something that can be given and taken away.

Did you feel that your position on that issue was untenable?

Yes.

No.

[The Central Scrutinizer]

Originally posted by RandFan
I'm sorry you feel that way. Meaningless? Really, I thought a major reason for freedom of speech was to discuss opinions in the hopes that we could right those things that are wrong?


"Freedom of speech" only applies to the government regulation of speech. A lot of people use the term incorrectly, as you just did. A common mistake.

Originally posted by RandFan
If the courts are wrong, and it seems quite clear from reading the framers that they are,

False. The courts have interpreted it (2nd ammendment) correctly.

Originally posted by RandFan
then we should discuss it and hopefully change things.

Discuss to your hearts content. I'm not stopping you. But in this case, we don't want to change anything.

Originally posted by RandFan
I don't think those who were for the abolishment of slavery didn't just throw up there hands and say, "oh well" our OPINIONS are meaningless.

I'm glad they didn't either. Why do you mention that?

[RandFan]

Originally posted by The Central Scrutinizer
Yes. Non responsive.

No. Then why not provide argument to support it?

[RandFan]

Originally posted by The Central Scrutinizer
"Freedom of speech" only applies to the government regulation of speech. A lot of people use the term incorrectly, as you just did. A common mistake. Actually I didn't. Nice try though. One reason people can make a difference in a Democratic society is that we can discuss things. That is why it is important. If the government or courts seek to infringe on my rights I am not without options. Discussion is the first step and that is why our founders made it possible for us to speak out against the powers that be without fear of reprisals.

The courts have interpreted it (2nd ammendment) correctly. And this is your opinion.

Discuss to your hearts content. I'm not stopping you. But in this case, we don't want to change anything. Who is this "we"?

I'm glad they didn't either. Why do you mention that? Because you said my opinion is meaningless. Knowing that the framers clearly intended "people" to keep and bear arms then I will work hard to protect those rights. I don't sit down and shut up because someone didn't want to affirm my rights as enumerated by the constitution anymore than anti-slave activists kept quiet.

RandFan

[billydkid]

Originally posted by RandFan
No! It simply refused to acknowledge those rights.

Question, can the courts make a silk purse out of a sow's ear? They can declare that it is but it won't make it so. Rights aren't something that are given or taken away. We all have inalienable rights, sadly Dictators, oppresive governments, and sometimes the courts refuse to acknowledge our rights and restrict or deny them to us.

The rights of Blacks weren't taken away by Dred Scott just denied. Distinction without a difference? NO! If it is then there are no such things as rights only opinions and permission. Suddenly's view of the 2nd Amendment is a permission to carry a gun when in fact the framers were very specific as to what our rights are as they relate to keeping and bearing arms. The writings of the founders take away any guess work as to what they meant. Sadly the Courts don't wish to follow the constitution and ignore our rights and treat them as permissions instead of rights.

If the Courts tomorrow ruled against free speech it would not take away our right of free speech, just infringe on it.

It seems quite clear that many folks do not grasp the notion of inalienable (unalienable?) rights. They seem to view that statement as merely a rhetorical device and not a statement of principle.

[The Central Scrutinizer]

Originally posted by RandFan
Non responsive.

Non responsive.

Originally posted by RandFan
Then why not provide argument to support it?

Don't need an "argument". I answered the question.

[Kodiak]

Originally posted by billydkid


It seems quite clear that many folks do not grasp the notion of inalienable (unalienable?) rights. They seem to view that statement as merely a rhetorical device and not a statement of principle.

Sadly, you are correct. For many, government is the "end all, be all". Rights and freedoms are just ideas and concepts bestowed upon the citizenry by government if it so chooses.

[Kodiak]

Originally posted by Kodiak
2nd Amendment - individual right (http://www.afn.org/~afn01750/politics/2ndIndividualRight.html)


Was there some reason this link was ignored?

[Suddenly]

Originally posted by RandFan
???? Dread Scott did not mean that Blacks did not have any rights. You seem to confuse rights with Court decisions. Rights aren't given or taken away by the Courts.

Is it OK for people to have a different opinion than you w/r/t the second amendment or any other issue? Are you going to trot out Dred Scott every time the court makes a decision w/r/t a right that you disagree with, or just on guns? It is quite tired and borders on the sort of thing "Goodwins Law" is meant to address.

Let me explain what I am getting at:

Your whole battle with CS isn't a new concept. CS is approaching this from a legal positivist point of view and you are holding a more "natural rights" theory. There is room for both points of view, but ultimately neither can stand alone.

Natural Rights theory holds that rights exist. Originally it was argued they came from a creator, but a more modern attitude would seem that these rights are a fact of existence or something along those lines. Rights just are and there is nothing that can be done to eliminate them. The "Natural Law" controlls over any contrary positive or judicial action.

Legal Positivism is in a nutshell the idea that rights only exist when recognized by government. It rejects the idea that there is a "Natural Law" that trumps all earthly manifestations of same.

The problem with LP is that it does nothing to avoid situations where laws are passsed that are simply unjust. Slavery is an example of this. LP would dictate that something like Dred Scott indeed is the law, but would not prevent criticism or desire to change those laws. NR would simply claim slavery as illegal. Either way, there is an element of NR reasoning behind legal positivism that leads us to want to ignore and reject laws that conflict with our absolute rights.

The problems with NR theory are a little more profound. First of all, it can't really be defined. People will have different opinions as to what these "Natural Laws" are, so either have anarchy absent universal agreement, or the NR people have to let a little LP into their lives to settle disagreements. Second, is that since it is not well defined, it can be used for any purpose. The early 20th century is lousy with supreme court cases tossing out labor laws based more or less on a NR theory centering around the right to contract.

Slavery makes a nice little package for NR proponents when Dred Scott, fugitive slave laws and etc. are brought up. However, this is largely post hoc reasoning. There were at that time a lot of people that viewed the NR aspect of slavery differently, that whites had a natural right to enslave blacks. General public opinion as to this has changed. NR would claim this is the process of people "discovering the real rights," while a legal positivist would describe it as changing of attitudes brought about by evolving moral principles and so forth.

Today, people can argue over abortion, animal rights, drugs, or whatever, and argue that "there is a right to an abortion" or that "the unborn have rights" or "animals have rights" or "animals are part of my natural property rights" or whatever on to infinity. Perhaps someday one side or another will prevail, and no matter what that side is NR theory will point towards the continued discovery of rights while LP will try to uncover the economic, social and political reasons for the change in attitudes.

While the idea of basic rights that law cannot touch has it's positive aspects, and is a good thing to have as an ideal, it breaks down almost immediately if put into practice. People have different ideas as to what exactly those rights are, so for any government to work it has to be able to make decisions as to practical application that are respected by the people. Otherwise, we have nothing but confusion.

Thus, as a practical matter the law is what the legislature and courts say it is. That is the LP aspect of our system. However, we do recognize NR theory in that we are not simple positivists. Statutes are judged by the NR principles as identified in the constitution, and the Constitution is interpreted in light of various factors, including general principles of justice and the founders intent. As a practical matter, it comes back to the courts.

This is why it is important to make distictions between what the law is as a practical matter and opinions as to what the law "should be" (LP) or "really is" (NR). In this thread I speak of the former, what a judge will likely buy if you wind up in a court of law. Failure to make this distinction is where we get legal cranks, people that are convinced of the unconstitutionality of income tax, that there is sooper seekrit constitutional amendment forbidding lawyers from holding public office, and so on and so forth. Sadly, I put the "Second Amendment is an absolute individual right to own weaponry" position in this category. There is a big difference between the caselaw and many people's perception of what "should be" or "really is."

It is interesting how people switch from LP to NR and back again when it suits their politics. I'm curious how many NR screamers w/r/t gun rights condemned that San Francisco mayor for granting marriage licenses because "he broke the law." It isn't that simple, as those positions do not completelt contradict each other, but there are those for which the argument is that simple.

[epepke]

Originally posted by Suddenly
U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996)

You seem pretty good at this stuff, so I'll ask you.

Assume for the sake of argument that the courts are "right" or whatever word you want to use in assuming that the 2nd Amendment applies to the maintenance of a state militia.

Many states specify firearm ownership as an individual right in the state constitution.

By what precedent or decision, then, does the Federal government get to trump firearm ownership rights in those states that specify individual firearm ownership as a right? Is it anything more than hand-waving and the 14th Amendment?

[Suddenly]

Originally posted by Kodiak



Was there some reason this link was ignored?

Because it is the same crap that adds nothing to the discussion?

Just for you though:

Does the Second Amendment Refer to States' Rights?
Copyright 1998,1999 Bob Johnson, afn01750@afn.org

--------------------------------------------------------------------------------

Well, No.

It's amazing that some gun control zealots still claim that the Second Amendment was intended to protect a collective right, that is, a right of State governments. This claim has been so thoroughly disproved that those who still promote it should simply be laughed at.



Nice claim. Can you spot any possible bias or conclusions being drawn? Lets see if he can back them up:

In 1846, the Georgia Supreme Court

and

Even the U.S. Supreme Court, in 1990 [United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)], pointed out that "The Second Amendment protects the right of the people to keep and bear Arms ...." when it was explaining what individual rights were mentioned in the Constitution. Are you going to argue with the Supreme Court?

So we have a case superceeded by the Supreme Court's Miller decision and some dicta that furthers the verbal shell game that the pro gun crowd like to play with the idea of "individual right." Nothing new here. In fact this reasoning should be embarassing to pro-gun people considering that the one time the Supreme Court spoke on the topic it didn't exactly agree with the thesis here. Is he going to argue with the Supreme Court?

The author then goes on to disagree with what the Supreme Court (that he says we shouldn't argue with) clearly spelled out in Miller, that the right to bear arms (whether you call it individual or not) is contingent upon some connection with a state militia, and that every court decision applying Miller has held that membership in a "sedentary" militia as spelled out in both the U.S. code and many state codes is not enough of a connection. The U.S. Supreme court reversed exactly zero of these cases.

[Suddenly]

Originally posted by epepke


You seem pretty good at this stuff, so I'll ask you.

Assume for the sake of argument that the courts are "right" or whatever word you want to use in assuming that the 2nd Amendment applies to the maintenance of a state militia.

Many states specify firearm ownership as an individual right in the state constitution.

By what precedent or decision, then, does the Federal government get to trump firearm ownership rights in those states that specify individual firearm ownership as a right? Is it anything more than hand-waving and the 14th Amendment?

There is the supremacy clause in Article VI that binds states to follow a constitutionally established federal law. Thus, a challenge based on a state constitutional provision is useless against a federal law.

That state provision can be used against state laws. However, the state constitution is trumped by federal law via the supremacy clause.

What the 14th amendment does is allow a challenge against a state law using a federal constitutional provision if it is found that the 14th amendment makes that federal constitutional provision apply to the state. Otherwise, a federal constitutional right is believed to not apply in a challenge to a state law.

The upshot is the above italicized words. As a matter of legal reality the commerce clause is the real key to understanding the evolution of our federal gun cases. Before the commerce clause was massively expanded in the early 20th century, there was very little controversy surrounding the 2nd amendment, because Congress didn't really have the power to pass laws restricting gun ownership.

The article from Kodiak that I respond to in my above posts completely misses this issue, and draws a very weird conclusion from the dearth of gun regulations and laws prior to the last 75 or so years.

[Kodiak]

Well, Suddenly, it seems you have Miller, and I have history and the founder's intent...

Check it out (http://www.chron.com/content/chronicle/nation/guns/part4/constitution.html)

This too (http://www1.law.ucla.edu/~volokh/2amteach/sources.htm)

[Kodiak]

Until a narrow constructionist Supreme Court decides to rule on the 2nd Amendment, I guess I'll have to take comfort in this:

Michigan Constitution Article I, Sec. 6: Every person has a right to keep and bear arms for the defense of himself and the state.

[epepke]

Originally posted by Suddenly
There is the supremacy clause in Article VI that binds states to follow a constitutionally established federal law. Thus, a challenge based on a state constitutional provision is useless against a federal law.

This comes close to answering my question, but not quite. I'll try to explain in more details.

I'm aware of the supremacy clause, and in most instances it's clear. I can't be legal in a state to do something that violates a Constitutionally established Federal law.

However, as far as I can tell, the Federal interpretation of the right to firearm ownership as part of maintaining a state militia.

As far as I can tell, one of the other of the following statements hold:

1) The states have a right recognized by the Federal government to decide, under their constitutions or by laws, who within that state is part of the state militia.

2) The states do not have a right recognized by the Federal government to decide, under their constitutions or by laws, who within that state is part of the state militia.

Neither position seems to me consistent both with the Constitution and with many Federal decisions.

If the former maintains, then a defense of membership in a state militia under state law should hold up in a Federal court. It seems that it doesn't.

If the latter maintains, then all Federal statements and precedents that pretend to uphold the 2nd Amendment by referring to state militias seem to become nonsense, because such militias would essentially be Federal militias.

[Suddenly]

Originally posted by epepke


This comes close to answering my question, but not quite. I'll try to explain in more details.

I'm aware of the supremacy clause, and in most instances it's clear. I can't be legal in a state to do something that violates a Constitutionally established Federal law.

However, as far as I can tell, the Federal interpretation of the right to firearm ownership as part of maintaining a state militia.

As far as I can tell, one of the other of the following statements hold:

1) The states have a right recognized by the Federal government to decide, under their constitutions or by laws, who within that state is part of the state militia.

2) The states do not have a right recognized by the Federal government to decide, under their constitutions or by laws, who within that state is part of the state militia.

Neither position seems to me consistent both with the Constitution and with many Federal decisions.

If the former maintains, then a defense of membership in a state militia under state law should hold up in a Federal court. It seems that it doesn't.

If the latter maintains, then all Federal statements and precedents that pretend to uphold the 2nd Amendment by referring to state militias seem to become nonsense, because such militias would essentially be Federal militias.

I understand your point, but there is a small detail that derails the argument.

The courts never suggest that these people who are listed as "sedintary" militia members are not actually in a militia. Let's look at Rybar again:

Rybar's invocation of this statute does nothing to establish that his firearm possession bears a reasonable relationship to "the preservation or efficiency of a well regulated militia," as required in Miller. Nor can claimed membership in a hypothetical or "sedentary" militia suffice.

(cited in above posts, legal cites deleted from text for clairity)

The test is not simple militia membership. The test is whether the firearm possession relates to militia purposes. The court is actually saying that "sedentary" militia membership doesn't by itself presume that firearm possession by that person is related to the "preservation or efficiency of a well regulated militia."

So, the states have the right to call whomsoever they please "a militia member." However, that designation is not enough to make gun ownership by those individuals protected by the Second Amendment as interpreted by Miller.

[Suddenly]

Originally posted by Kodiak
Well, Suddenly, it seems you have Miller, and I have history and the founder's intent...

Check it out (http://www.chron.com/content/chronicle/nation/guns/part4/constitution.html)

This too (http://www1.law.ucla.edu/~volokh/2amteach/sources.htm)

Considering my whole point is the state of the law at present, that is just fine. I've no problem with those that want to change the law, but I do have a problem with those that ignore and distort the present legal reality. Like you say, until the Supreme Court overturns Miller, Miller stands as good law.

Also possible would be the Supreme Court ratifying the logic in Emerson and thereby gutting Miller without having to overturn the basic premise behind it.

[Suddenly]

Originally posted by Kodiak
Until a narrow constructionist Supreme Court decides to rule on the 2nd Amendment, I guess I'll have to take comfort in this:

Michigan Constitution Article I, Sec. 6: Every person has a right to keep and bear arms for the defense of himself and the state.

Ours is better:

West Virginia Constitution Article III, Sec. 22:

A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.

[epepke]

Originally posted by Suddenly
I understand your point, but there is a small detail that derails the argument.

I'm not really arguing, just trying to understand the situation by presenting challenges, which I've found is the best way to acquire understanding.

If I were arguing, I'd take more of an ideological approach.

The courts never suggest that these people who are listed as "sedintary" militia members are not actually in a militia.

The test is not simple militia membership. The test is whether the firearm possession relates to militia purposes. The court is actually saying that "sedentary" militia membership doesn't by itself presume that firearm possession by that person is related to the "preservation or efficiency of a well regulated militia."

So, the states have the right to call whomsoever they please "a militia member." However, that designation is not enough to make gun ownership by those individuals protected by the Second Amendment as interpreted by Miller.

So, what counts as "sedentary"? This seems fairly ad hoc to me, like declaring that a book you haven't read in five years is no longer covered by the First Amendment. How many rounds does one have to fire per month in order to be considered not sedentaty? Or do you actually have to put down an uprising every other week or something?

[Kodiak]

Originally posted by Suddenly


Considering my whole point is the state of the law at present, that is just fine. I've no problem with those that want to change the law, but I do have a problem with those that ignore and distort the present legal reality. Like you say, until the Supreme Court overturns Miller, Miller stands as good law.

Also possible would be the Supreme Court ratifying the logic in Emerson and thereby gutting Miller without having to overturn the basic premise behind it.

You argued your position well and forced me to adjustment my beliefs accordingly.

I definitely wouldn't call Miller "good" law, but it is "law", and all we currently have to go by. :(


By the way, do you know what Former Chief Justice Warren Burger meant when he said that it is foolish to hold "the view that any right to bear arms extended beyond the states"? Does that have something to do with the point epepke was trying to make?

[Kodiak]

Originally posted by Suddenly


Ours is better:

West Virginia Constitution Article III, Sec. 22:

A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.

I agree. Unfortunately, I love my state too much to leave. All that fresh water and quality hockey...

[Suddenly]

Originally posted by epepke


I'm not really arguing, just trying to understand the situation by presenting challenges, which I've found is the best way to acquire understanding.

If I were arguing, I'd take more of an ideological approach.

I meant argument in the classical sense, the presentation of a point of view supported by logic and evidence, and not an accusation of combativeness. We are on the same page here.



So, what counts as "sedentary"? This seems fairly ad hoc to me, like declaring that a book you haven't read in five years is no longer covered by the First Amendment. How many rounds does one have to fire per month in order to be considered not sedentaty? Or do you actually have to put down an uprising every other week or something?

The "sedentary" label is largely a red herring. What has to be presented is evidence that the ownership is connected to the militia purpose. Status doesn't cut it.

For example, if you are an active state militia member, in fact lets make you the commanding officer, that alone does not grant you blanket 2nd amendment protection. If you are caught in possession of a particular weapon in violation of a federal law, the Second Amendment doesn't apply unless you can show that the ownership is connected to the militia. If you had it to knock off liquor stores in your free time or some other non-militia purpose, the 2nd Amendment wouldn't help you.

[Suddenly]

Originally posted by Kodiak


You argued your position well and forced me to adjustment my beliefs accordingly.

I definitely wouldn't call Miller "good" law, but it is "law", and all we currently have to go by. :(


By the way, do you know what Former Chief Justice Warren Burger meant when he said that it is foolish to hold "the view that any right to bear arms extended beyond the states"? Does that have something to do with the point epepke was trying to make?

I'd guess he was referring more to what I have been saying w/r/t to the difference between legal reality and what the law should be (or "really is" for the Natural Law set). The former is more fact than opinion, and the latter more opinion than fact.

It would be dangerous to tell people they have an absolute right to bear arms when they don't. This is one way decent people wind up in prison or with criminal records.

[epepke]

Originally posted by Suddenly
I meant argument in the classical sense, the presentation of a point of view supported by logic and evidence, and not an accusation of combativeness.

Fair enough.

For example, if you are an active state militia member, in fact lets make you the commanding officer, that alone does not grant you blanket 2nd amendment protection. If you are caught in possession of a particular weapon in violation of a federal law, the Second Amendment doesn't apply unless you can show that the ownership is connected to the militia. If you had it to knock off liquor stores in your free time or some other non-militia purpose, the 2nd Amendment wouldn't help you.

Knocking off liquor stores is also a red herring. As for the rest, how is it distinguishable from question-begging? I'm not even talking about weapons such as full-auto weapons that you need a Federal license.

It seems to me from what you are saying that someone in the Federal government gets to decide whether ownership of a firearm is related to the militia and does in fact decide that 1) belonging to the militia, 2) regularly training with the weapon to maintain preparedness, and 3) being willing to rise up should the militia be called does not qualify as evidence that the ownership of the weapon is militia-related.

Stripping away "sedentary" and "knocking off liquor stores" and other red herrings, is this in fact what is happening? It seems to me that a lot of the legalese is tapdancing around the idea.

[RandFan]

Originally posted by The Central Scrutinizer
Non responsive. So I take it your just going to play obtuse?

Don't need an "argument". I answered the question. But your answer flies in the face of reason. Oh well. I guess your "answer" can just be ignored. Thanks anyway.

[Checkmite]

In my completely uneducated opinion, the second amendment as such is rather out-of-date. In the late 1700's, the United States was not intended to have a permanent professional military, but rather a score of good people who would volunteer to fight should the need arise. Without a standing military, there would be no reason for the government to contract the mass-production of firearms - besides, (as I think has already been mentioned) the ability to quickly produce thousands of guns once a war broke out and they were needed probably didn't exist back then. So, they needed all those gun owners to already have guns...that way, when they volunteered in time of conflict, they would be armed, and could even give extra arms to those who were unarmed. That's why the right of the people to keep arms was not to be infringed.

Since we now have a professional military, none of that stuff matters. The "militia", as such, will (and possibly can) no longer be "called up", and everyone who joins the military is issued weapons, and cannot even use their own weapons while on duty. The personal owning of firearms is no longer necessary for the "security of the state".

Now, that's not to say people shouldn't be allowed to have personal weapons. It just means that the "preambulatory clause" of the Second Amendment - that people owning weapons is necessary for national defense - is no longer valid. And, although some here seem to suggest it, we cannot simply "disregard" the preambulatory clause, when considering the amendment. Since the declaration that the right to bear arms shall "not be infringed" is justified by that preambulatory clause (which is no longer valid), the Second Amendment literally becomes a non sequiter.

Therefore, the amendment needs to be amended - provided with a new preambulatory statement that is relevant today. Otherwise, it will always be open to dissection and exposure as a non sequiter, and the right will continue to be redefined however the government sees fit.

[RandFan]

Originally posted by Suddenly
Is it OK for people to have a different opinion than you w/r/t the second amendment or any other issue? Are you going to trot out Dred Scott every time the court makes a decision w/r/t a right that you disagree with, or just on guns? It is quite tired and borders on the sort of thing "Goodwins Law" is meant to address. Well done. I am familiar with the Natural Law vs Legal Positivism but it has been awhile since I've discussed it.

Thanks for the response.

RandFan

[epepke]

Originally posted by Joshua Korosi
Since we now have a professional military, none of that stuff matters. The "militia", as such, will (and possibly can) no longer be "called up", and everyone who joins the military is issued weapons, and cannot even use their own weapons while on duty. The personal owning of firearms is no longer necessary for the "security of the state".

Maybe, maybe not.

But there is an official militia; it's called the National Guard, and it was used somewhat effectively during the Civil Rights era, somewhat less so at Kent State. In those kinds of situations, it's still preferable to the US Army.

I don't know that a State militia matters so much since the Civil War. However, I do know of instances where private firearm ownership provided a check on abuses by governmental bodies. The best I know of happened in Orlando, Florida a few years ago; widespread use of no-knock warrants and fishing expeditions on the part of the police were curtailed as a result of some cops getting shot.

The instances are few and far between, but I think there is still good symbolic value to the notions that states can have militias and are not simply vassals of the US. There is also some practical value. Here in Florida, we get environmental disasters from time to time, and they are usually accompanied by civil disturbances. I'd like to maintain at least the possibility of a state being able to call upon able-bodied citizens to intervene.

[Suddenly]

Originally posted by epepke





It seems to me from what you are saying that someone in the Federal government gets to decide whether ownership of a firearm is related to the militia and does in fact decide that 1) belonging to the militia, 2) regularly training with the weapon to maintain preparedness, and 3) being willing to rise up should the militia be called does not qualify as evidence that the ownership of the weapon is militia-related. Not someone. The judical system acts to answer mixed questions of law and fact in this area just as others, nothing new there. The courts (judges and juries) decide these kinds of questions every day where vague principles are interpreted to specific situations.

I'm not sure where you get those three points at, as the cases in mention don't deal with those circumstances and simply stand for the proposition that claiming membership in a militia based on a militia statute does not suffice to make the second amendment apply. They are silent as to what facts are actually needed to show a sufficient relationship, except that they seem to hint that active participation in militia activities is important.

Stripping away "sedentary" and "knocking off liquor stores" and other red herrings, is this in fact what is happening? It seems to me that a lot of the legalese is tapdancing around the idea.

What it comes down to is the "liquor store example" I cited above. The real inquiry is whether the gun is being used in a manner that " bears a reasonable relationship to 'the preservation or efficiency of a well regulated militia,' as required in Miller."

Consider the Warin case I cite above:

To apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy. This lack of justification is even more apparent when applied to appellant's membership in "Posse Comitatus," an apparently nongovernmental organization. We conclude, therefore, that this prosecution did not violate the second amendment.

Note the "has not been shown to have any connection to the militia" language. If there were facts otherwise, the court's reasoning would have to be different. Mere status as a militia member does not magically make all gun ownership by that person such that it passes the Miller test.

[epepke]

Originally posted by Suddenly
Not someone. The judical system acts to answer mixed questions of law and fact in this area just as others, nothing new there. The courts (judges and juries) decide these kinds of questions every day where vague principles are interpreted to specific situations.

Yes, yes, but I'm trying to get at the root of what's happening.

You keep saying "Miller." That's one name, one decision. Not "the courts." If the answer is that "the courts" interpret vague principles, then that's a fine answer. But you keep saying "Miller," and I'm trying to figure out what you mean.

Either it means something, or it doesn't. If "Miller" doesn't address all situations, that's fine, too--I'm trying to understand what it does and does not address.

I'm not sure where you get those three points at, as the cases in mention don't deal with those circumstances and simply stand for the proposition that claiming membership in a militia based on a militia statute does not suffice to make the second amendment apply. They are silent as to what facts are actually needed to show a sufficient relationship, except that they seem to hint that active participation in militia activities is important.

I just made them up. Say I'm in a state that claims that all able-bodied residents who are citizens are in the United States. Say I go to the range twice a month, and I pay for my own ammunition and range fees. Say I'm perfectly willing to be called as a member of the militia.

Does that count, or is it a crap shoot depending on what the judge had for breakfast that day, or is it something between the two?

Who defines this? Saying that Miller is silent on this is no help.

I'm well aware that there are lots of courts and lots of judges and they decide lots of things. However, I am also aware that decisions and opinions get "canonized," or else you wouldn't keep saying "Miller."

Can a Federal judge decide that my ownership of a firearm is not militia-related because it isn't "kersplotnick" enough? Or because I and not the state paid for the ammunition? Or because it was a private range?

I'm asking these questions because in my perception the interpretations of the Second Amendment seem particularly ad hoc compared to, say, interpretations of the First Amendment. This has not always been the case; around WWI the First Amendment was pretty shaky. Schenck v. US was especially troubling. But over the years, First Amendment rights seem to have made a comeback.

What it comes down to is the "liquor store example" I cited above. The real inquiry is whether the gun is being used in a manner that " bears a reasonable relationship to 'the preservation or efficiency of a well regulated militia,' as required in Miller."

Robbing a liquor store is already illegal, and someone convicted of robbing a liquor store, at least in this state, is prohibited from owning firearms during the period of incarceration or probation. This is non-controversial.

[Suddenly]

Originally posted by epepke


Yes, yes, but I'm trying to get at the root of what's happening.

You keep saying "Miller." That's one name, one decision. Not "the courts." If the answer is that "the courts" interpret vague principles, then that's a fine answer. But you keep saying "Miller," and I'm trying to figure out what you mean.

Either it means something, or it doesn't. If "Miller" doesn't address all situations, that's fine, too--I'm trying to understand what it does and does not address. Miller sets the general principle, the whole "reasonable relationship" test. Miller also gives some guidence as to what that means in practice, in that the type of weapon is considered as evidence. Other cases seek to apply the general principle that is established in Miller, thus providing more specific guidance as to what Miller means.

This is just how our court system works and has worked dating back hundreds of years.

At this point we know the following (there may be more but these are the rules discussed so far in this thread)

1) There must be a reasonable relationship to the... militia (Miller)
2) If a weapon is of the type not used by a militia the ownership of same flunks the Miller test. (also Miller)
3) Simple membership in a militia is not enough on its own to pass the Miller test. (Rybar and other cases)


As more situations arise not clearly covered by the above, more decisions are made that set new principles thus creating a larger body of law that gradually evolves.



I just made them up. Say I'm in a state that claims that all able-bodied residents who are citizens are in the United States. Say I go to the range twice a month, and I pay for my own ammunition and range fees. Say I'm perfectly willing to be called as a member of the militia.

Does that count, or is it a crap shoot depending on what the judge had for breakfast that day, or is it something between the two? Between the two. A judge is sort of a gatekeeper to decide if any evidence of a "reasonable relationship" exists. This decision is based on relevant caselaw and depends largely on the judge. Once that is determined, it would be put before a jury.

Who defines this? Saying that Miller is silent on this is no help. The court that is confronted with the question. It gets tricky sometimes, as a court can't answer a question not asked of it, so the court's legal statements are only considered "law" if they address the controversy at hand. Thus while Miller could set out a general principle and note the reasons for its decision (the type of weapon), that court couldn't go further and decide other possible cases.

I'm well aware that there are lots of courts and lots of judges and they decide lots of things. However, I am also aware that decisions and opinions get "canonized," or else you wouldn't keep saying "Miller." Using the term "Miller" is just shorthand for citing the case U.S. v. Miller, 307 U.S. 174 (1939)

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=307&invol=174

Since Miller is from the highest federal court, all lower courts are bound to follow it. Thus, it is very important until the Supreme Court were to reverse it.

Can a Federal judge decide that my ownership of a firearm is not militia-related because it isn't "kersplotnick" enough? Or because I and not the state paid for the ammunition? Or because it was a private range? The judge would do her best to apply the existing law to the facts. This is where the distinction between "can" and "should" becomes important. A judge "can" do all you suggest. However, judges generally play nice for four general reasons:

1) They could be reversed by a higher court, an event that most judges find embarassing.

2) "Judge Marshall has made his decision. Now let him enforce it." (They rely on the executive for enforcement)

3) Too weird and the legislature can impeach.

4) They are aware that the power of the Judicary comes solely from it's credibility. Decisions made in less than good faith erode confidence in the Judiciary, and make #2 and 3 above seem more reasonable.

Now, as far as what they are "supposed" to do is to make a decision based on legal principles. A decision on point by a higher court is binding, as is positive law and there is a mildly complex hierarchy as to authority. Judges can also used other cases as persuasive authority, as well as factors such as historical attitudes, effect on public policy, and so on.

I'm asking these questions because in my perception the interpretations of the Second Amendment seem particularly ad hoc compared to, say, interpretations of the First Amendment. This has not always been the case; around WWI the First Amendment was pretty shaky. Schenck v. US was especially troubling. But over the years, First Amendment rights seem to have made a comeback. There just aren't that many Supreme Court decisions dealing with the Second Amendment; in fact none outside Miller, so we are left with many unresolved issues. There is a much larger body of caselaw around the First Amendment, so there is more to guide us when a new question or situation arises. As far as the Second Amendment goes, we have the Miller test and a few cases trying to apply it. Not much there, so it is difficult to predict how courts would rule in particular circumstances, other than the fact that they would be bound by the Miller test.



Robbing a liquor store is already illegal, and someone convicted of robbing a liquor store, at least in this state, is prohibited from owning firearms during the period of incarceration or probation. This is non-controversial.

That misses the point. The liquor store is just a clear example of a purpose other than that specified by the Miller test.

What I was pointing out is that no matter what one's status is w/r/t a state militia, be it a commander of an active outfit or some 25 year old who has no idea he is technically a member of the militia by statute, that status does not automatically confer 2nd Amendment protection to gun ownership for purposes clearly unrelated to the militia.

[RandFan]

Having thought carefully about the issue and your points I have to say that even by your own admission the 2nd Amendment coupled with case law is confusing at best.

I don't think there is much question as to what the framers had intended. Unfortunately the courts it seems to me have injected a significant amount of ambiguity. Based on your posts I couldn't tell you if the 2nd Amendment has any real legal or constitutional meaning in the 21st century. As I said, I don't think this is at all what the framers had in mind.

Has the 2nd Amendment ever been used to uphold the rights of anyone to keep and bear arms?

[RandFan]

Originally posted by Suddenly
The problems with NR theory are a little more profound. First of all, it can't really be defined. People will have different opinions as to what these "Natural Laws" are, so either have anarchy absent universal agreement, or the NR people have to let a little LP into their lives to settle disagreements. Second, is that since it is not well defined, it can be used for any purpose. The early 20th century is lousy with supreme court cases tossing out labor laws based more or less on a NR theory centering around the right to contract. Setting aside NR. It is obvious that the framers believed (rightly or wrongly) that certain rights were inalienable. Further that they intended to remove any ambiguity and forcefully recognize those rights. It was for this reason that they created the bill of rights. It was for this reason they stated plainly "the rights of the people to keep and bear arms shall not be infringed". Yet the courts can't tell us what that really means. Just that they will know it when they see it. Is this really what the framers had in mind?

Question: Of what value is the constitution if it is what ever we say it is from one day to the next? Is it a living document as some suggest that can be molded to fit with cultural mores? Perhaps we put too much value in it.

Did the framers do a damn great job with most of the constitution but flubbed the second one so badly that we can't really say here and now what is and isn't a militia? Would such an organization protect the people from the federal government as the framers had envisioned? I can't imagine how it could?

I can very well imagine how an armed populace could frustrate the desires of a corrupt government. Which leads us back to the intent of the framers.

[RandFan]

Originally posted by RandFan
So, let me see if I understand your argument. Because the Supreme court has ruled in Miller and there exists case law that "interprets" the 2nd Amendment to be a states right and not an individual right that "people" does not in all actuality mean individuals.


Originally posted by Suddenly
No.

The right can be looked at as a personal right that exists only when the ownership of the weapon is in connection with a well regulated militia. This is a settled point of law.

The only debate remaining is how strong the connection needs to be. Isn't this a dodge? Aren't you saying that "people" means "people" when the state says it means "people"?

At what point would the 2nd Amendment kick in and couldn't the state simply move the goal post in such an event?

[epepke]

Originally posted by Suddenly
That misses the point. The liquor store is just a clear example of a purpose other than that specified by the Miller test.

You're answering my questions quite well, and I appreciate it. I don't want you to get the impression that I don't appreciate this exchange.

However, I'm still confused here. Where is the precedent, interpretation, law, whatever that blurs the line between ownership and use? Why, in fact, are we even talking about use?

If I own a long gun for milita use, and I wrap a washcloth around the end and use it to sweep away the spider webs on the ceiling, does this somehow magically make it Not A Militia Weapon Any More™ and therefore I can't own it?

How does any other use of the weapon affect the right to ownership provided that the militia use still exists?

[Suddenly]

Originally posted by RandFan
Having thought carefully about the issue and your points I have to say that even by your own admission the 2nd Amendment coupled with case law is confusing at best.

I don't think the law is confusing, but the use of certain terms in certain ways by certain people has certainly muddied the waters. Of that I'm.... certain.

I don't think there is much question as to what the framers had intended. Unfortunately the courts it seems to me have injected a significant amount of ambiguity. Based on your posts I couldn't tell you if the 2nd Amendment has any real legal or constitutional meaning in the 21st century. As I said, I don't think this is at all what the framers had in mind. My guess from my reading of legal history is that the present reading of the 2nd amendment is a correct measure of how it was intended to read. I don't think it was intended to protect private gun ownership, regardless of the fact that the founders were advocates of such ownership. How is this possible?

The commerce clause.

The framers intended the federal government to be one of quite limited power. I don't think they thought a federal law restricting private gun ownership was at all a possibility, so they didn't put a real strong statement of a private gun right in the constitution. Once the commerce clause exploded in the early part of this century, things changed. So while I think the effect of the second amendment is consistant with the framers' intent for that particular amendment, I would also say that they did not intend for the federal government to be able to restrict those rights, so if the framers could be aware of how the commerce power would explode, they would have likely included a specific private right in the constitution similar to that contained in state constitutions.


Has the 2nd Amendment ever been used to uphold the rights of anyone to keep and bear arms?

The Emerson case did:

http://lw.bna.com/lw/19990427/698.htm

This is a minority opinion that isn't very well reasoned as far as it's reading of Miller goes. This is half of the split that I described several times in this and other threads.

Other than that I think the second amendment would become important again were a state to decide to require or officially and specifically encourage private ownership of firearms.

[Suddenly]

Originally posted by RandFan
Setting aside NR. It is obvious that the framers believed (rightly or wrongly) that certain rights were inalienable. Further that they intended to remove any ambiguity and forcefully recognize those rights. It was for this reason that they created the bill of rights. It was for this reason they stated plainly "the rights of the people to keep and bear arms shall not be infringed". Yet the courts can't tell us what that really means. Just that they will know it when they see it. Is this really what the framers had in mind? I think the framers avoided being overspecific to avoid future absurdity. Rights can't be absolute as at some point your free exercise infringes on some right of mine. The interplay of rights is dynamic as there are changes in population patterns, technology and social constructs.

Question: Of what value is the constitution if it is what ever we say it is from one day to the next? Is it a living document as some suggest that can be molded to fit with cultural mores? Perhaps we put too much value in it. I think people overstate the flexibility a living document creates. I used an example w/r/t cruel and unusual punishment in a different thread. A strict "dead document" proponent would look to 1791 standards in determining what is cruel or unusual. A living document person would look to what today would be considered cruel or unusual. I think some flexibility in these concepts is necessary.

Did the framers do a damn great job with most of the constitution but flubbed the second one so badly that we can't really say here and now what is and isn't a militia? Would such an organization protect the people from the federal government as the framers had envisioned? I can't imagine how it could?

We can say what a militia was then. As far as flubbing the second I address that in an above post. I don't think they thought the private right to gun ownership was any of the Federal government's business, given the strict limitation on federal power envisioned.

I can very well imagine how an armed populace could frustrate the desires of a corrupt government. Which leads us back to the intent of the framers. Sure. They wanted to protect the state's ability to have a militia. Private gun ownership was up to the state and their police powers.

[Suddenly]

Originally posted by RandFan
Isn't this a dodge? Aren't you saying that "people" means "people" when the state says it means "people"?

At what point would the 2nd Amendment kick in and couldn't the state simply move the goal post in such an event?

What I am saying is that the "collective right" vs "Individual right" language is a misleading use of words.

I am saying that there is a right to possess firearms held by individuals, but that right is contingent upon the possession being connected with the state militia.

It really isn't a pure individual right, because it requires some connection to the state. It isn't purely collective, as it suggests the possibility of individual action under certain circumstances. When exactly is still a gray area.

"Collective" and "Individual" in this context are largely buzzwords that are not purely descriptive.

[Suddenly]

Originally posted by epepke


You're answering my questions quite well, and I appreciate it. I don't want you to get the impression that I don't appreciate this exchange.

However, I'm still confused here. Where is the precedent, interpretation, law, whatever that blurs the line between ownership and use? Why, in fact, are we even talking about use? Use is a good way to determine purpose of ownership. You are correct that it is not in issue, strictly speaking, but rather decent evidence of the purpose of ownership.

If I own a long gun for milita use, and I wrap a washcloth around the end and use it to sweep away the spider webs on the ceiling, does this somehow magically make it Not A Militia Weapon Any More™ and therefore I can't own it?

How does any other use of the weapon affect the right to ownership provided that the militia use still exists?

You identify a question of law and fact that I can only speculate about and give only a general answer:

First is a legal question, that I think I can answer. If a weapon is owned for militia purposes, does other use in effect invalidate the second amendment protection for that weapon?

I would say no, that as long as it can be connected to the militia, the inquiry ends, and the Second Amendment applies. However, misuse of such a weapon could be punished.

As a factual matter on the other hand, other uses could affect the right when they lead a finder of fact to believe that the real purpose of ownership is not for militia purposes.

[RandFan]

Originally posted by Suddenly
What I am saying is that the "collective right" vs "Individual right" language is a misleading use of words. I disagree. It is important. Without it the Amendment has no real meaning but is a vague and transitory statute that can be read to mean anything.

I am saying that there is a right to possess firearms held by individuals, but that right is contingent upon the possession being connected with the state militia. I certainly disagree in principle. Case law is another thing. Sadly such a right is so vague as to be meaningless. What link?

It really isn't a pure individual right, because it requires some connection to the state. It isn't purely collective, as it suggests the possibility of individual action under certain circumstances. When exactly is still a gray area. Yes, please compare your statement with that of the framers of the constitution.

Article II

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 If we take the courts interpretation then the first part renders the 2nd part meaningless and transitory.

You can't even definitively define "people" as it relates to the 2nd Amendment. I find that truly ironic especially in light of the fact that the framers were so intentional of the use of the word throughout. Now you tell us "people" doesn't mean people per se but "people" in certain difficult to define instances.

"Collective" and "Individual" in this context are largely buzzwords that are not purely descriptive. All in all the framers either had a purpose in mind or they didn't. The current state of affairs can't be said to represent the founders intent.

I'm sorry but I find the whole affair obnoxiously disappointing. The framers were very specific in their wording but it has been neutered by the judiciary to have no meaning whatsoever. You can't even tell me when and where the 2nd Amendment applies. The only instance that the 2nd Amendment was used to protect any right is controversial according to you.

And Miller makes it easy for any state or the Federal government to infringe on the 2nd Amendment by simply moving the goal post.

It is clear that you don't want to admit that which is plain to see. Whatever purpose the framers had for the 2nd Amendment it no longer exists. Thanks to Miller the 2nd Amendment is only instructive as to what the "people" can't do and what they MIGHT be able to do if someone can come up with a definition of what is a militia.

I like you suddenly. You have done a damn fine job of arguing the legal aspects of the case law. But won't you admit that the 2nd amendment, thanks to the courts and as it now stands, has no real meaning? Was the framers intent really so difficult to assertain? Could you give me a scenario in which the 2nd Amendment could be used to protect the "peoples" right to keep and bear arms?

[RandFan]

Originally posted by Suddenly
I don't think the law is confusing...[/b]Really????

This certainly does not come through from your posts. I don't think you could tell me definitively who does and does not enjoy 2nd Amendment protection.

My guess from my reading of legal history is that the present reading of the 2nd amendment is a correct measure of how it was intended to read. To be so vague as to be all but meaningless and to be only used to decide when "people" can't keep and bear arms. Your understanding is quite different from mine.

I don't think it was intended to protect private gun ownership, regardless of the fact that the founders were advocates of such ownership. How is this possible? How something so straight forward could be turned on its head is beyond me.

The framers intended the federal government to be one of quite limited power. I don't think they thought a federal law restricting private gun ownership was at all a possibility, so they didn't put a real strong statement of a private gun right in the constitution. Once the commerce clause exploded in the early part of this century, things changed. So while I think the effect of the second amendment is consistent with the framers' intent for that particular amendment, I would also say that they did not intend for the federal government to be able to restrict those rights, so if the framers could be aware of how the commerce power would explode, they would have likely included a specific private right in the constitution similar to that contained in state constitutions. I understand and appreciate your argument but I find that it does not illuminate the framers thinking as it pertains to the 2nd Amendment. The "people" have the right to keep and bear arms. They didn't define "people" to mean something other than what it meant in the rest of the Bill of Rights.

Other than that I think the second amendment would become important again were a state to decide to require or officially and specifically encourage private ownership of firearms. The state? And if the state is interested. It is up to the state. Sorry if I find your idea less than persuasive. I think that if the framers truly meant the "state" they would have said the "state". They didn't, they said "people" and specifically said the right of the people. Not the right of the state to grant citizens rights to use guns. Not, if the state has any interest the peoples rights shall not be infringed. Again, what is not said is important.

[Suddenly]

Originally posted by RandFan
Really????

This certainly does not come through from your posts. I don't think you could tell me definitively who does and does not enjoy 2nd Amendment protection. You are mistaking confusion with certainty. I can lay out pretty clearly the state of the law and the areas still to be decided. It is true that I cannot with certainty spell out details of when something applies and when it does not, and to some extent that is the case with all areas of law. However, I'm not confused by it. I just can't be certain. I see how it can be confusing to those less familiar with the legal system, but that has more to do with the system than with the particular area of law.

To be so vague as to be all but meaningless and to be only used to decide when "people" can't keep and bear arms. Your understanding is quite different from mine.

How something so straight forward could be turned on its head is beyond me.

I understand and appreciate your argument but I find that it does not illuminate the framers thinking as it pertains to the 2nd Amendment. The "people" have the right to keep and bear arms. They didn't define "people" to mean something other than what it meant in the rest of the Bill of Rights. The defintion of people is clear. It means the same that it does everywhere else in the document, no big difference. What is contingent is the right itself. It exists only in relation to a militia.

For that matter the freedom of speech doesn't apply when the purpose of the speech is to defraud. Rights aren't absolute. It is just that the 2nd amendment puts some of the limitations in black and white.

The state? And if the state is interested. It is up to the state. Sorry if I find your idea less than persuasive. I think that if the framers truly meant the "state" they would have said the "state". They didn't, they said "people" and specifically said the right of the people. Not the right of the state to grant citizens rights to use guns. Not, if the state has any interest the peoples rights shall not be infringed. Again, what is not said is important.

They said the people. They meant the people. It is the right that has contingencies attatched. Those contingencies happen to deal with the state.

[RandFan]

Originally posted by Suddenly
You are mistaking confusion with certainty. I can lay out pretty clearly the state of the law and the areas still to be decided. It is true that I cannot with certainty spell out details of when something applies and when it does not, and to some extent that is the case with all areas of law. Sorry, I'm not buying it. I hope you will not think me obtuse. I think you can perhaps lay out what the status of the law is now. I don't think the case law has much to do with the 2nd Amendment. It seems much more political and speaks of a desire on the part of judges of what the 2nd Amendment should say and not what it does say.

However, I'm not confused by it. I just can't be certain. Distinction without much difference. I don't think the framers intended for the 2nd Amendment to only be clear to lawyers. Furthermore I don't think they intended that there be a leverl of uncertainty. Hell, I could have written a better statement than they did if that was their intent. Again, I think the notion that the 2nd Amendment is for some odd reason esoteric is simply wrong.

The framers went to great length to make the language clear and unambiguous. When they said people they meant "people" and they did not mean when interpreted by guys in black robes. If they had thought that the Amendment needed interpretation they would have spelled it out.

No, the ambiguity has come from courts who did not want the 2nd Amendment to mean what the framers wanted it to mean. I can live with that but I'm not going to pretend the framers sat down to write a cypher that needed pointy headed intellectuals to sort out (not that you are a pointy headed intellectual).

I see how it can be confusing to those less familiar with the legal system, but that has more to do with the system than with the particular area of law. The 2nd Amendment is not at all confusing to me. Reams of opinion as to what someone thinks it means is what is confusion.

The defintion of people is clear. It means the same that it does everywhere else in the document, no big difference. Thank you.

What is contingent is the right itself. It exists only in relation to a militia. Come on, you can say it. It is interpreted to be contingent. There is no language that says that it is contingent. The language is clear and unambiguous. The right of the people to keep and bear arms shall not be infringed.

For that matter the freedom of speech doesn't apply when the purpose of the speech is to defraud. Rights aren't absolute. I agree.

It is just that the 2nd amendment puts some of the limitations in black and white. Like hell it does. SHALL NOT BE INFRINGED. That is black and white. The purpose of that right is spelled out in the first part of the amendment.

Fact: The amendment makes NO declarations as to limits. On the contrary it states plainly that the right shall not be infringed.

What you keep dodging is that by turning the first part into a limit you make it possible for the federal government to do just that. Infringe upon that right. The proof is in the pudding. You yourself are unable to articulate just how the Amendment would or could be used to protect anyone's right. The Federal appeals court get's to add that little limitation and thus infringe upon the right anyway they see fit.

They said the people. They meant the people. It is the right that has contingencies attached. Those contingencies happen to deal with the state. Yes, they said the people. Please note that there are no "ifs ands or buts". Be straight with me here. The framers did not put in any specific language to limit the 2nd Amendment.

Let's look at it again.

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.

The Amendment is comprised of 2 parts.[list=1] 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.[/list=1] The first part tells us the purpose of the Amendment. It could stand as a complete sentence, correct?

That militia as envisioned by the framers is not possible without the right of the people to keep and bear arms. The framers could have but did not include specific language stating when and or if the right was applicable.

A well regulated militia is necessary to the security of a free state. It does not say "absent a well regulated Militia there exists no such right". It does not say that "only individuals who are active in a Militia possess this right." It does not say that "only specific weapons or types of arms". No, there is no such language. Perhaps the framers assumed that "the right of the people to keep and bear arms" was pretty straight forward and would not require esoteric logic, pretzel twisted reason and "uncertainty" and a law degree to deduce what the hell they were trying to say.

[Checkmite]

Originally posted by epepke


Maybe, maybe not.

But there is an official militia; it's called the National Guard, and it was used somewhat effectively during the Civil Rights era, somewhat less so at Kent State. In those kinds of situations, it's still preferable to the US Army.

I don't know that a State militia matters so much since the Civil War. However, I do know of instances where private firearm ownership provided a check on abuses by governmental bodies. The best I know of happened in Orlando, Florida a few years ago; widespread use of no-knock warrants and fishing expeditions on the part of the police were curtailed as a result of some cops getting shot.

The instances are few and far between, but I think there is still good symbolic value to the notions that states can have militias and are not simply vassals of the US. There is also some practical value. Here in Florida, we get environmental disasters from time to time, and they are usually accompanied by civil disturbances. I'd like to maintain at least the possibility of a state being able to call upon able-bodied citizens to intervene.

The National Guard is fine - but once again: it is standing, and it issues weapons, and personal weapons are not permitted to be used while Guardsmen are deployed. Therefore, the "Personal weapons are necessary for national defense" clause remains invalid.

[Suddenly]

Originally posted by RandFan
Sorry, I'm not buying it. I hope you will not think me obtuse. I think you can perhaps lay out what the status of the law is now. I don't think the case law has much to do with the 2nd Amendment. It seems much more political and speaks of a desire on the part of judges of what the 2nd Amendment should say and not what it does say. It seems you only think that way because you disagree with the result. Would you make such a dismissal if they agreed with you? The problem you have with it is that you can't see why in context the "Miller" court's take on the 2nd amendment is reasonable.

Distinction without much difference. I don't think the framers intended for the 2nd Amendment to only be clear to lawyers. Furthermore I don't think they intended that there be a leverl of uncertainty. Hell, I could have written a better statement than they did if that was their intent. Again, I think the notion that the 2nd Amendment is for some odd reason esoteric is simply wrong.

You missed my point. I'll try again. If we were to have a detailed discussion such as the present one regarding almost any area of law, at some point we would reach this same situation, where we can identify the general principle governing a hypothetical situation but not be able to be sure how a court would rule. That is just a product of a system that guides itself mainly by court decisions.

In Second Amendment analysis we reach this point more quickly than we would in something like a search and seizure analysis, because there just isn't a whole lot of caselaw.

Every right in the constitution is subject to interpretation. Right to free speech does not include the right to scream fire in a public theatre. Freedom of religion doesn't include the right to torture animals. Subjecting a nonviolent felon to prison where he stands a strong chance of physical and sexual abuse somehow isn't "cruel or unusual." Then we have "Unreasonable search and seizure," "Right to Counsel" and so on.

I don't think there is any constitutional right whose full application can be obvious simply by a reading of the text. The framers, being lawyers, understood this and used the constitution to voice general principles that could be later refined by court precident as situations came up.

Even if we say Miller is hogwash and ignore the whole first clause of the Second Amendment, the bounds would still not be clear, unless you are claiming an absolute right to own any weapon for any purpose. As soon as you admit the appropriateness of any regulation on weapon ownership whatsoever you are back into the caselaw and running afoul of the "confusion" objection you cite above. Then when you fully contemplate a world where anyone can own any weapon perhaps the reasoning behind the framers placing a limited right in the 2nd amendment may become a bit clearer. They wanted to ensure that the federal government would not prevent people from having weapons so they could serve in their state militia. They didn't want to ensure that bandits and criminals would have full access and rightful ownership of all weapons. That is a matter they wanted to leave to the states to hash out for themselves, as a state's internal security wasn't a matter for the limited federal government.

The framers went to great length to make the language clear and unambiguous. When they said people they meant "people" and they did not mean when interpreted by guys in black robes. If they had thought that the Amendment needed interpretation they would have spelled it out. All Amendments require interpretation, as I spell out above. Is "cruel and unusual punishment" spelled out? There is a reason the constitution isn't thousands of pages long, as the framers voiced general principles and tried to stay away from micromanagement. Part of this is the wisdom to know that they couldn't predict the future, and part of this is political compromise. The framers didn't agree on everything, and were a little more savvy than to believe that "the accused shall enjoy the right to a speedy and public trial" said everything it needed to say without further application to specific situations. However we have neither a time schedule nor a explict note that further interpretation is needed. How long? A week? A month? What if a witness is ill or there is a blizzard? What if the crime went undiscovered for a decade? Does speedy refer to the time from the crime or the arrest? And so on.

No, the ambiguity has come from courts who did not want the 2nd Amendment to mean what the framers wanted it to mean. I can live with that but I'm not going to pretend the framers sat down to write a cypher that needed pointy headed intellectuals to sort out (not that you are a pointy headed intellectual). You are stuck on a unnecessary dichotomy. The Constitution is not a fully detailed instruction manual, nor is it a "cypher." For the most part it is a statement of general principles. Like any general principle, people will disagree as to specific application. That happens with everything.

Plus, I think disregarding the entire phrase "A well regulated Militia, being necessary to the security of a free State" is a weirder twisting of language than to find that the following "the right of the people to keep and bear Arms, shall not be infringed" must in some way relate "to the security of a free State."

I think the plain language is on Miller's side. The second is unique among the bill of rights in that the purpose for the right is spelled out. Unless you believe that the exacting framers put in a meaningless clause, I can't see how we get to the conclusion that the security of a "State" does not inform or modify the right. To get there we are subject to a bunch of grammatical and historical arguments that seem to run afoul of the simplicity position you are pushing.

The 2nd Amendment is not at all confusing to me. Reams of opinion as to what someone thinks it means is what is confusion.

Welcome to Constitutional Law. I agree it can be confusing, but such a criticism reflects the system as a whole, not just the way the 2nd is treated.

Come on, you can say it. It is interpreted to be contingent. There is no language that says that it is contingent. The language is clear and unambiguous. The right of the people to keep and bear arms shall not be infringed. You are missing part: "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." It only becomes unambiguous if you convince yourself to ignore the first clause. If you decide that the framers didn't mean that phrase as a throwaway Miller becomes a heck of a lot more reasonable.

Like hell it does. SHALL NOT BE INFRINGED. That is black and white. The purpose of that right is spelled out in the first part of the amendment.

Fact: The amendment makes NO declarations as to limits. On the contrary it states plainly that the right shall not be infringed.

What you keep dodging is that by turning the first part into a limit you make it possible for the federal government to do just that. Infringe upon that right. The proof is in the pudding. You yourself are unable to articulate just how the Amendment would or could be used to protect anyone's right. The Federal appeals court get's to add that little limitation and thus infringe upon the right anyway they see fit. How does a statement of purpose of why a right is given not considered to be part of the statement of that right? What you suggest is only reasonable if we convince ourselves that the framers meant the first clause, "A well regulated Militia, being necessary to the security of a free State" to have no legal effect. But yet you object if others suggest that the 2nd in present day context has no present legal effect.

As an aside I will repeat how the second would become operative. If the states required or specifically encouraged private arms ownership in a militia stature, I would think the second would operate to invalidate all federal gun laws that restricted the ability of the individual to arm himself. The fact that the second amendment has little or no present application has nothing to do with it being interpreted to do so, rather it has to do with the changes in how a state sees the militia.

The irony here is that you accuse Miller of ignoring Framer's intent, when all it does is believe that under present conditions the second amendment has little application. Meanwhile, you seem to want to completely ignore an entire clause of the second amendment and declare it to be legally inoperative.

Yes, they said the people. Please note that there are no "ifs ands or buts". Be straight with me here. The framers did not put in any specific language to limit the 2nd Amendment. Except for the first clause. The strong language about shall not be infringed just means that the right to bear arms to contribute to the security of a free State shall not be infringed.


The Amendment is comprised of 2 parts.[list=1] 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.[/list=1] The first part tells us the purpose of the Amendment. It could stand as a complete sentence, correct? That it could but doesn't isn't the best argument for your position given your strong reliance on the exacting precision of the framers. Are we to believe that such precise draftsmen included a phrase in the very sentence that gives a right that was to have no bearing whatsover on the nature of that right? Who exactly is twisting the language here?

That militia as envisioned by the framers is not possible without the right of the people to keep and bear arms. The framers could have but did not include specific language stating when and or if the right was applicable. And they could have just said "the right of the people to keep and bear Arms, shall not be infringed" but they didn't. They put in a qualifier as to the nature of the right that was not to be infringed. This logic cuts both ways.


A well regulated militia is necessary to the security of a free state. It does not say "absent a well regulated Militia there exists no such right". It does not say that "only individuals who are active in a Militia possess this right." It does not say that "only specific weapons or types of arms". No, there is no such language. Perhaps the framers assumed that "the right of the people to keep and bear arms" was pretty straight forward and would not require esoteric logic, pretzel twisted reason and "uncertainty" and a law degree to deduce what the hell they were trying to say.

I've already adressed your confusion argument above, as well as the "they could have made it clearer if" argument. They don't really give any specific insight as to the question at issue and likely would still apply if what you propose were to replace the Miller interpretation. There would still be pockets of uncertainty in the law as well as those that would make similar arguments about the plain language and ignoring the whole first clause of the amendment.

[DavidJames]

Perhaps the framers assumed that "the right of the people to keep and bear arms" was pretty straight forward and would not require esoteric logic, pretzel twisted reason and "uncertainty" and a law degree to deduce what the hell they were trying to say. Then they could have omitted the milita part, but they didn't. So it's you (kodiak and others) that need to apply "pretzel twisted reason" to explain the plain language they used. I like how you break out the single sentence, even using a blank line to separate it to make it appear to say what you want it to say. It's very clear language as written, unless of course you don't like what it says. Damn those framers and their very clear language :)

Edit to add...Damn Suddenly, this is why a rarely post in threads you are in. I agree with a lot of your opinions but you do a much better job expressing and supporting your thoughts than my feeble words. So in conclusion...what Suddenly said :)

[Suddenly]

Originally posted by Joshua Korosi


The National Guard is fine - but once again: it is standing, and it issues weapons, and personal weapons are not permitted to be used while Guardsmen are deployed. Therefore, the "Personal weapons are necessary for national defense" clause remains invalid.

Now if one of these organizations made it a policy that the members were required or even pehaps allowed to bring their own weapons, the 2nd would clearly apply to that ownership. That's the historical difference that all of this caselaw suggests.

[The Central Scrutinizer]

Originally posted by Suddenly


Is it OK for people to have a different opinion than you w/r/t the second amendment or any other issue? Are you going to trot out Dred Scott every time the court makes a decision w/r/t a right that you disagree with, or just on guns? It is quite tired and borders on the sort of thing "Goodwins Law" is meant to address.

Let me explain what I am getting at:

Your whole battle with CS isn't a new concept. CS is approaching this from a legal positivist point of view and you are holding a more "natural rights" theory. There is room for both points of view, but ultimately neither can stand alone.

Natural Rights theory holds that rights exist. Originally it was argued they came from a creator, but a more modern attitude would seem that these rights are a fact of existence or something along those lines. Rights just are and there is nothing that can be done to eliminate them. The "Natural Law" controlls over any contrary positive or judicial action.

Legal Positivism is in a nutshell the idea that rights only exist when recognized by government. It rejects the idea that there is a "Natural Law" that trumps all earthly manifestations of same.

The problem with LP is that it does nothing to avoid situations where laws are passsed that are simply unjust. Slavery is an example of this. LP would dictate that something like Dred Scott indeed is the law, but would not prevent criticism or desire to change those laws. NR would simply claim slavery as illegal. Either way, there is an element of NR reasoning behind legal positivism that leads us to want to ignore and reject laws that conflict with our absolute rights.

The problems with NR theory are a little more profound. First of all, it can't really be defined. People will have different opinions as to what these "Natural Laws" are, so either have anarchy absent universal agreement, or the NR people have to let a little LP into their lives to settle disagreements. Second, is that since it is not well defined, it can be used for any purpose. The early 20th century is lousy with supreme court cases tossing out labor laws based more or less on a NR theory centering around the right to contract.

Slavery makes a nice little package for NR proponents when Dred Scott, fugitive slave laws and etc. are brought up. However, this is largely post hoc reasoning. There were at that time a lot of people that viewed the NR aspect of slavery differently, that whites had a natural right to enslave blacks. General public opinion as to this has changed. NR would claim this is the process of people "discovering the real rights," while a legal positivist would describe it as changing of attitudes brought about by evolving moral principles and so forth.

Today, people can argue over abortion, animal rights, drugs, or whatever, and argue that "there is a right to an abortion" or that "the unborn have rights" or "animals have rights" or "animals are part of my natural property rights" or whatever on to infinity. Perhaps someday one side or another will prevail, and no matter what that side is NR theory will point towards the continued discovery of rights while LP will try to uncover the economic, social and political reasons for the change in attitudes.

While the idea of basic rights that law cannot touch has it's positive aspects, and is a good thing to have as an ideal, it breaks down almost immediately if put into practice. People have different ideas as to what exactly those rights are, so for any government to work it has to be able to make decisions as to practical application that are respected by the people. Otherwise, we have nothing but confusion.

Thus, as a practical matter the law is what the legislature and courts say it is. That is the LP aspect of our system. However, we do recognize NR theory in that we are not simple positivists. Statutes are judged by the NR principles as identified in the constitution, and the Constitution is interpreted in light of various factors, including general principles of justice and the founders intent. As a practical matter, it comes back to the courts.

This is why it is important to make distictions between what the law is as a practical matter and opinions as to what the law "should be" (LP) or "really is" (NR). In this thread I speak of the former, what a judge will likely buy if you wind up in a court of law. Failure to make this distinction is where we get legal cranks, people that are convinced of the unconstitutionality of income tax, that there is sooper seekrit constitutional amendment forbidding lawyers from holding public office, and so on and so forth. Sadly, I put the "Second Amendment is an absolute individual right to own weaponry" position in this category. There is a big difference between the caselaw and many people's perception of what "should be" or "really is."

It is interesting how people switch from LP to NR and back again when it suits their politics. I'm curious how many NR screamers w/r/t gun rights condemned that San Francisco mayor for granting marriage licenses because "he broke the law." It isn't that simple, as those positions do not completelt contradict each other, but there are those for which the argument is that simple.

Wow. Extremely well stated.

My problem with Natural Rights, is that it tends toward a belief in the invisible man who lives in the sky. Because if we just have these rights floating around in the air, inevitably it seems to lead to the sky fairy "bestowing" them upon us. Doesn't have to, but often does.

And I side with LP because, well, I'm a practical person and live in the real world.

[The Central Scrutinizer]

Originally posted by RandFan
So I take it your just going to play obtuse?

But your answer flies in the face of reason. Oh well. I guess your "answer" can just be ignored. Thanks anyway.

:s2:

[The Central Scrutinizer]

Originally posted by RandFan
The framers were very specific in their wording

Yes they were. So why can't you understand it? :p

[Checkmite]

Originally posted by The Central Scrutinizer


Yes they were. So why can't you understand it? :p

YOU can't understand it, you dork!

:p

[epepke]

Originally posted by Joshua Korosi


The National Guard is fine - but once again: it is standing, and it issues weapons, and personal weapons are not permitted to be used while Guardsmen are deployed. Therefore, the "Personal weapons are necessary for national defense" clause remains invalid.

However, even Suddenly has admitted that in the cases cited, membership in a militia outside the National Guard is recognized, and has been pointed out, the Federal government acknowledges the existence of a non-standing militia with non-issued weapons.

The statement that they are not necessary for national defense is a red herring, as state militias are primarily responsible for state defense and internal affairs within the state.

While it may be argued that since the Civil War, actual warfare between the states is unlikely, I can think of many instances where a non-standing state militia would be useful. State militias don't seem like they'd be necessary to repel a foreign invader (though it can't be ruled out), but disasters such as a hurricane are frequently followed by everything from a large population of feral dogs to human looting. I can easily see portions of a non-standing militia being called to serve in such instances. In most instances I can imagine, this would probably involve some sort of deputization process.

Edited for bad grammar and missing parts of sentences.

[RandFan]

Originally posted by DavidJames
Then they could have omitted the milita part, but they didn't. So it's you (kodiak and others) that need to apply "pretzel twisted reason" to explain the plain language they used. I like how you break out the single sentence, even using a blank line to separate it to make it appear to say what you want it to say. It's very clear language as written, unless of course you don't like what it says. Damn those framers and their very clear language Sorry but you are wrong. You are making the first clause to say something that it doesn't. There is no need for adding to or taking away anything. To ensure a well regulated militia the people must have the right to keep and bear arms.

It's really that simple. I have not added or taken away anything. It is others who twist the first clause to be some limit when it in no way puts a limit on the right.

[RandFan]

Originally posted by The Central Scrutinizer
Yes they were. So why can't you understand it? I do understand it. The framers thought a well regulated militia was esential to the security of the state. The right to keep and bear arms was fundamental to that security.

Why don't you understand it? :p

[The Central Scrutinizer]

Originally posted by Joshua Korosi


YOU can't understand it, you dork!

:p


Oh yeah?? Well you're a DORK. And you have big ears!!

[Suddenly]

Originally posted by RandFan
Sorry but you are wrong. You are making the first clause to say something that it doesn't. There is no need for adding to or taking away anything. To ensure a well regulated militia the people must have the right to keep and bear arms. So to keep a militia for the security of the State it is required that there is an absolute right to keep and bear weaponry that bears no relation to that purpose? Why the extra verbage?

It's really that simple. I have not added or taken away anything. It is others who twist the first clause to be some limit when it in no way puts a limit on the right.

Yes it is that simple. The right is held by the individual for the benefit of the state, as the framers put a clear statement of purpose for the right: "A well regulated Militia, being necessary to the security of a free State."

[epepke]

Originally posted by Suddenly
Use is a good way to determine purpose of ownership. You are correct that it is not in issue, strictly speaking, but rather decent evidence of the purpose of ownership.

Again, I'm enjoying our exchange, and I don't want you to get the impression of personal attacks. You just have the best American legal mind to which I have access right now.

Why is the purpose of ownership a factor? We've just gotten through a debate on Australian sword ownership in which I asked the same question and did not get a straight answer. Whether or not I get a straight answer here, I'm asking again. Is it becaue "keep and bear" are close together in the Second Amendment? And if so, why then are restrictions on bearing firearms so much tighter than restrictions on owning them?

You identify a question of law and fact that I can only speculate about and give only a general answer:

That's fair. I'm trying to understand the situation, and I'm well aware that parts of it can't be answered easily. I just want to know which parts.

First is a legal question, that I think I can answer. If a weapon is owned for militia purposes, does other use in effect invalidate the second amendment protection for that weapon?

I would say no, that as long as it can be connected to the militia, the inquiry ends, and the Second Amendment applies. However, misuse of such a weapon could be punished.

This would seem to have bearing on the "robbing a liquor store" argument, too. I pointed out that robbing a liquor store with a weapon was already prohibited and could be punished. As I recall, you told me that was missing the point. So I'm back to not understanding what the point is. So I ask again, what is it?

As a factual matter on the other hand, other uses could affect the right when they lead a finder of fact to believe that the real purpose of ownership is not for militia purposes.

Would this indicate some sort of "preponderance of evidence" decision?

[RandFan]

Originally posted by Suddenly
It seems you only think that way because you disagree with the result.[/b] No, it seems that way because I can read.

Would you make such a dismissal if they agreed with you? I only make such a dismissal when a body goes out of its way to alter the intent of the framers.

The problem you have with it is that you can't see why in context the "Miller" court's take on the 2nd amendment is reasonable. Since Miller allows for the infringement of the rights of the people to keep and bear arms then I find it unreasonable.

You missed my point. I'll try again. If we were to have a detailed discussion such as the present one regarding almost any area of law, at some point we would reach this same situation, where we can identify the general principle governing a hypothetical situation but not be able to be sure how a court would rule. That is just a product of a system that guides itself mainly by court decisions. All well and good but this is not rocket science and the intent of the framers is quite clear. The only way to get around that is to make the amendment oblique.

In Second Amendment analysis we reach this point more quickly than we would in something like a search and seizure analysis, because there just isn't a whole lot of case law. This is based on the assumption that we need case law to understand the intent of the framers.

Every right in the constitution is subject to interpretation. Right to free speech does not include the right to scream fire in a public theatre. Freedom of religion doesn't include the right to torture animals. Subjecting a nonviolent felon to prison where he stands a strong chance of physical and sexual abuse somehow isn't "cruel or unusual." Then we have "Unreasonable search and seizure," "Right to Counsel" and so on. Yes, but we usually err on the side of the right when there is any ambiguity, perceived or otherwise, RIGHT?

I don't think there is any constitutional right whose full application can be obvious simply by a reading of the text. I picture a couple of guys scratching their heads. "So what do you think this "free speech" means? Come on this is disingenuous. There needs be exceptions to any constitutional right. But in this case it is the right that is the exception. The Amendment is used to show why the "people" can't keep and bear arms. The occasional exception being that in certain circumstances when the moon is full and on the third Tuesday of the month the "people" have the right to keep and bear arms.

The framers, being lawyers, understood this and used the constitution to voice general principles that could be later refined by court precedent as situations came up. I accept this. I don't think they envisioned a time when the Amendment would limit the "people's" rights to if and when the state wanted to give them those rights.

Even if we say Miller is hogwash and ignore the whole first clause of the Second Amendment, the bounds would still not be clear, unless you are claiming an absolute right to own any weapon for any purpose. I think the first Clause is very important. It spells out why the second clause is so important.

As soon as you admit the appropriateness of any regulation on weapon ownership whatsoever you are back into the case law and running afoul of the "confusion" objection you cite above. As long as the amendment is used to protect the rights of people to keep and bear arms as opposed to infringing on those rights then exceptions can be made. It is when the Amendment itself is used to exclude the rights than it is inappropriate. "Come back when the state decide to let you have gun rights".

Then when you fully contemplate a world where anyone can own any weapon perhaps the reasoning behind the framers placing a limited right in the 2nd amendment may become a bit clearer. This presupposes a limit. No one has yet highlighted any language that specifically says "limit". Such must be deduced.

They wanted to ensure that the federal government would not prevent people from having weapons so they could serve in their state militia. Agreed.

They didn't want to ensure that bandits and criminals would have full access and rightful ownership of all weapons. Agreed.

That is a matter they wanted to leave to the states to hash out for themselves, as a state's internal security wasn't a matter for the limited federal government. Agreed. But when the Amendment is turned on its head and used primarily to limit gun ownership then there is a problem.

All Amendments require interpretation, as I spell out above. Is "cruel and unusual punishment" spelled out? There is a reason the constitution isn't thousands of pages long, as the framers voiced general principles and tried to stay away from micromanagement. Part of this is the wisdom to know that they couldn't predict the future, and part of this is political compromise. The framers didn't agree on everything, and were a little more savvy than to believe that "the accused shall enjoy the right to a speedy and public trial" said everything it needed to say without further application to specific situations. However we have neither a time schedule nor a explict note that further interpretation is needed. How long? A week? A month? What if a witness is ill or there is a blizzard? What if the crime went undiscovered for a decade? Does speedy refer to the time from the crime or the arrest? And so on. You are stuck on a unnecessary dichotomy. The Constitution is not a fully detailed instruction manual, nor is it a "cypher." For the most part it is a statement of general principles. Like any general principle, people will disagree as to specific application. That happens with everything. That there are necessarily instances where there requires interpretation is not a reason to make the law into something it was never intended to be.

Plus, I think disregarding the entire phrase "A well regulated Militia, being necessary to the security of a free State" is a weirder twisting of language than to find that the following "the right of the people to keep and bear Arms, shall not be infringed" must in some way relate "to the security of a free State." Straw man. I have never disregarded the phrase.

I think the plain language is on Miller's side. The second is unique among the bill of rights in that the purpose for the right is spelled out. Unless you believe that the exacting framers put in a meaningless clause... Absolutely not!

I can't see how we get to the conclusion that the security of a "State" does not inform or modify the right. Inform NOT modify.

As an aside I will repeat how the second would become operative. If the states required or specifically encouraged private arms ownership in a militia stature, I would think the second would operate to invalidate all federal gun laws that restricted the ability of the individual to arm himself. The fact that the second amendment has little or no present application has nothing to do with it being interpreted to do so, rather it has to do with the changes in how a state sees the militia. So the SECOND Amendment (not the 20th or 200th) only has validity if states care enough to do something about it. I can only shake my head.

The irony here is that you accuse Miller of ignoring Framer's intent, when all it does is believe that under present conditions the second amendment has little application. And if a court believed that under present conditions the first amendment has little application?

I really don't think that was the intent of the framers. Perhaps they should have put in a footnote Please disregard this bill of rights if it is deemed non-applicable. Perhaps this have helped?

Meanwhile, you seem to want to completely ignore an entire clause of the second amendment and declare it to be legally inoperative. False, the first clause is important. It shouldn't however be used to invalidate the second clause.

Well, I'll give you this. You (the courts) have found an out to the bill of rights. We just need to find them non-applicable to current times.

[epepke]

Originally posted by Suddenly
So to keep a militia for the security of the State it is required that there is an absolute right to keep and bear weaponry that bears no relation to that purpose? Why the extra verbage?[/B]

Simple and plausible answer, though not necessarily correct. The verbage was agreed to by a committee. Some members of the committee wanted an absolute right to own firearms, some didn't. It got argued a lot. Then they came up with some verbage. Which causes us to argue endlessly about the intentions of a committee.

We can play these games forever. Here's the wording:

"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."

I could as easily ask, if your interpretation is so clear, why it wasn't as follows:

"The right of the People to keep and bear Arms in the service of the Militia of a free State shall not be infringed."

The framers of the Constitution and the Bill of Rights were many things, but they were not bad writers. Yet my writing here is way better, presuming that is the correct interpretation, and it only took me five seconds to come up with it.

[RandFan]

Originally posted by Suddenly
So to keep a militia for the security of the State it is required that there is an absolute right to keep and bear weaponry that bears no relation to that purpose? Why the extra verbage?[/b] I did not add any verbige. Pornography has no relation to the purpose of the First Amendment. We don't toss out the baby with the bathwater.

Yes it is that simple. The right is held by the individual for the benefit of the state, as the framers put a clear statement of purpose for the right: "A well regulated Militia, being necessary to the security of a free State." Which is for the benifit of the "people". I think you forget that sometimes.

[Suddenly]

Originally posted by epepke


Again, I'm enjoying our exchange, and I don't want you to get the impression of personal attacks. You just have the best American legal mind to which I have access right now.

Why is the purpose of ownership a factor? We've just gotten through a debate on Australian sword ownership in which I asked the same question and did not get a straight answer. Whether or not I get a straight answer here, I'm asking again. Is it becaue "keep and bear" are close together in the Second Amendment? And if so, why then are restrictions on bearing firearms so much tighter than restrictions on owning them? "Purpose" would go to not only ownership but also to use as well. The context of how the 2nd would be used is tricky, as in one context it could be used to try to "strike down" a federal gun statute. On the other hand I imagine it could also be used as an affirmative defense to a criminal prosecution.

I hadn't really looked at "bear" and "keep" as two seperate concepts yet in the process of the debate here, but you bring up a good point.

My best guess as to why "bearing" can rightly be restricted more than "ownership" would be that it doesn't reflect the internal construction of the 2nd as much as it is a product of the reality that one's "bearing" a weapon is more likely to intrude on other rights of other people than would mere ownership.


This would seem to have bearing on the "robbing a liquor store" argument, too. I pointed out that robbing a liquor store with a weapon was already prohibited and could be punished. As I recall, you told me that was missing the point. So I'm back to not understanding what the point is. So I ask again, what is it?

I think we are passed it, but my point was that the courts have rejected the idea that mere status as a militia member acted to give blanket protection to ownership of a weapon. The "robbing a liquor store" was an exaggerated example. When dealing with law exaggerated examples are helpful to try to seperate questions of fact from law.

So, in other words, the I was illustrating that the membership status of the owner was not in and of itself enough under the Miller test.



Would this indicate some sort of "preponderance of evidence" decision?

Yes. The exact nature of which depends greatly on the context of the challenge.

[epepke]

Originally posted by Suddenly
"Purpose" would go to not only ownership but also to use as well. The context of how the 2nd would be used is tricky, as in one context it could be used to try to "strike down" a federal gun statute. On the other hand I imagine it could also be used as an affirmative defense to a criminal prosecution.[/b]

I'm not so much worried about use, quite frankly. I'm aware of the laws for transporting and using firearms and consider them largely reasonable.

I am, however, concerned with the cases I see on Cops every day, where someone is asked to open a trunk, and a cop finds a .22 long rifle in the trunk and then waves it in the "perp's" face, saying, "Hey, what's this?"

There was a time when I was perpetually on the road and de facto homeless, and I kept all my weapons in the trunk of my car. I only recently removed them. Unfortunately, all of them now have rust on them. But I digress.

I hadn't really looked at "bear" and "keep" as two seperate concepts yet in the process of the debate here, but you bring up a good point.

Admittedly, my understanding may be poor, but my understanding is that great debates have been conducted over why the "militia" and the "people" clauses are connected by a comma rather than a semicolon. (If, indeed, they are; my source is the Web, and the Web is not without errors.)

My best guess as to why "bearing" can rightly be restricted more than "ownership" would be that it doesn't reflect the internal construction of the 2nd as much as it is a product of the reality that one's "bearing" a weapon is more likely to intrude on other rights of other people than would mere ownership.

That's fine, but it colors my perception of how court arguments about use relate to court arguments about ownership. I see a distinction between use and ownership, but when I look at the Second Amendment, ownership seems tightly connected to bearing, which is a kind of use.

I'm trying to probe what, if anything, stops the slippery slope from use to ownership.

I think we are passed it, but my point was that the courts have rejected the idea that mere status as a militia member acted to give blanket protection to ownership of a weapon.[quote]

I understood that point many postings ago. I'm trying to probe how, given that the courts so far have upheld a militia connection, how that connection is established. Membership in a militia is not sufficient. Got that. Maybe we can move on. What, then, is sufficient? And if the answer is "it has yet to be determined," that's an OK answer. But if that is the answer, it is still informative.

[quote]The "robbing a liquor store" was an exaggerated example. When dealing with law exaggerated examples are helpful to try to seperate questions of fact from law.

Despite the illustrative purpose, they also have the disadvantage of making distinctions appear less fine than they really are.

[Suddenly]

Originally posted by RandFan
No, it seems that way because I can read. Do you really think this makes you special w/r/t this subject, or are you just expressing frustration at not being able to relate to the position the other side is taking?

I mean, do you really believe this is some sort of conspiracy against truth, justice, and the True Meaning Of The Framers Words?

I only make such a dismissal when a body goes out of its way to alter the intent of the framers. In other words, when they disagree with what you think that is. Otherwise you are claiming some sort of infallability at determining framers intent. If so, what makes you so special that your opinion is fact while others are just people screwing up the obvious?

Since Miller allows for the infringement of the rights of the people to keep and bear arms then I find it unreasonable. Sounds like an ends based reasoning process. You reject any argument simply because it fails to deliver the result you want.

All well and good but this is not rocket science and the intent of the framers is quite clear. The only way to get around that is to make the amendment oblique. You keep saying that, but yet the best you can offer is that it just is. Others disagree. Are they being stupid and/or malicious in some way or is it possible it isn't quite as clear as you say?

This is based on the assumption that we need case law to understand the intent of the framers.We need caselaw to interpret the constitution. The framers' intent is never a binding factor, as the text controls. When the text is not clear, the framers' intent is but one of the available tools to help a court reach a resolution.

The court acts to interpret the general law to specific circumstance. We then keep the caselaw as a guide to ensure consistancy and efficency, to both give an idea as to future application as well as avoid having the same arguments every time a situation comes up.

Yes, but we usually err on the side of the right when there is any ambiguity, perceived or otherwise, RIGHT? No.

I picture a couple of guys scratching their heads. "So what do you think this "free speech" means? Come on this is disingenuous. You are saying there are no such debates? Huh? There needs be exceptions to any constitutional right. But in this case it is the right that is the exception. Nukes for everyone? The Amendment is used to show why the "people" can't keep and bear arms. No. The amendment does nothing of the sort. It just doesn't prevent the government from passing laws w/r/t gun ownership and use. People have the right to bear arms all they want in absence of a constiutionally passed law to the contrary.The occasional exception being that in certain circumstances when the moon is full and on the third Tuesday of the month the "people" have the right to keep and bear arms. Just that the "keep and bear" must relate to the militia and the security of the State that the founders went out of their way to mention.

I accept this. I don't think they envisioned a time when the Amendment would limit the "people's" rights to if and when the state wanted to give them those rights. This amendment limits no right. It just doesn't grant the broad level of protection you wish it did. Miller doesn't take a single gun out of anyone's hand. It still takes an act of law from Congress before that happens.


Agreed. But when the Amendment is turned on its head and used primarily to limit gun ownership then there is a problem. How does it act to limit gun ownership? It isn't like you go to the store and they won't sell you a gun because Miller says the second amendment doesn't contain an absolute right. There is this little thing called Congress that has to step in first.

That there are necessarily instances where there requires interpretation is not a reason to make the law into something it was never intended to be. You are being circular in that you reject the analysis based on it's not reaching your chosen conclusion.

Straw man. I have never disregarded the phrase.

Absolutely not!

Inform NOT modify.

So, the Framers took a break from drafting technical and terse statements of legal principle to add in a short civics lesson that has no practical bearing on the right being described? Weird.

I really don't think that was the intent of the framers. Perhaps they should have put in a footnote Please disregard this bill of rights if it is deemed non-applicable. Perhaps this have helped?

That would be understood. The right to not have soldiers quarter in your house hasn't been raised much in the last hundred years. At present it really has no application to our lives, but that could change. Does that mean we must be reading it wrong?

This seems to be the argument you are forwarding here.


Well, I'll give you this. You (the courts) have found an out to the bill of rights. We just need to find them non-applicable to current times.

Uh huh. We just need an out to absolutists that reject the concept of ambiguity in language and declare their own idea of what things mean to be "obvious."

[Suddenly]

Originally posted by epepke


Simple and plausible answer, though not necessarily correct. The verbage was agreed to by a committee. Some members of the committee wanted an absolute right to own firearms, some didn't. It got argued a lot. Then they came up with some verbage. Which causes us to argue endlessly about the intentions of a committee.

We can play these games forever. Here's the wording:

"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."

I could as easily ask, if your interpretation is so clear, why it wasn't as follows:

"The right of the People to keep and bear Arms in the service of the Militia of a free State shall not be infringed."

The framers of the Constitution and the Bill of Rights were many things, but they were not bad writers. Yet my writing here is way better, presuming that is the correct interpretation, and it only took me five seconds to come up with it.

Right. The language really isn't clear by modern standards. I don't think the interpretation I am advocating is either completely "clear" or obvious, only that it is the most reasonable one in my opinion, considering the whole text of the constitution and the historical circumstances. When I suggested it was clear I was mainly suggesting that it is just as "clear" as the other suggested alternative.

[Suddenly]

Originally posted by RandFan


Which is for the benifit of the "people". I think you forget that sometimes.

:confused:

[Suddenly]

Originally posted by epepke


I'm not so much worried about use, quite frankly. I'm aware of the laws for transporting and using firearms and consider them largely reasonable.

I am, however, concerned with the cases I see on Cops every day, where someone is asked to open a trunk, and a cop finds a .22 long rifle in the trunk and then waves it in the "perp's" face, saying, "Hey, what's this?" In a lot of cases a stronger 2nd wouldn't matter as this is more of a search and seizure issue w/r/t possible instruments or fruits of a crime. The same would occur if the citizen had a wad of $100 bills.

Admittedly, my understanding may be poor, but my understanding is that great debates have been conducted over why the "militia" and the "people" clauses are connected by a comma rather than a semicolon. (If, indeed, they are; my source is the Web, and the Web is not without errors.) There likely are. Sounds familiar to me, but Second Amendment analysis is far from my specialty. It seems when you have a lack of caselaw people need to argue about something. In my opinion these debates are basically pointless as I don't put a whole lot of weight into such fine points of grammatical analysis.

That's fine, but it colors my perception of how court arguments about use relate to court arguments about ownership. I see a distinction between use and ownership, but when I look at the Second Amendment, ownership seems tightly connected to bearing, which is a kind of use.

I'm trying to probe what, if anything, stops the slippery slope from use to ownership. I have no idea. I can't even put forward a theory, or even a guess for that matter.

I understood that point many postings ago. I'm trying to probe how, given that the courts so far have upheld a militia connection, how that connection is established. Membership in a militia is not sufficient. Got that. Maybe we can move on. What, then, is sufficient? And if the answer is "it has yet to be determined," that's an OK answer. But if that is the answer, it is still informative. It has yet to be fully determined.

[epepke]

Originally posted by Suddenly
Right. The language really isn't clear by modern standards. I don't think the interpretation I am advocating is either completely "clear" or obvious, only that it is the most reasonable one in my opinion, considering the whole text of the constitution and the historical circumstances. When I suggested it was clear I was mainly suggesting that it is just as "clear" as the other suggested alternative.

I was reacting mostly to your comment, to wit: "Why the extra verbage?"

I think I came up with a less-verbage example that easily shows a "Why the extra verbage?" argument for the other suggested alternative.

I don't think it's really a conflict between modern standards and 18th century standard, except for the hotly debated word "regulated."

As far as I can tell, the Second Amendment is a bit of a chimera. My preference would be to interpret it as an individual right. This is probably more venial than ideological: I like shooting pistols at paper targets and rotten oranges. "Save the Embassy" is a fun game.

However, here I'm mostly interested in finding out what the current status is.

[Mr Manifesto]

Originally posted by epepke

As far as I can tell, the Second Amendment is a bit of a chimera. My preference would be to interpret it as an individual right. This is probably more venial than ideological: I like shooting pistols at paper targets and rotten oranges. "Save the Embassy" is a fun game.


What's 'Save the Embassy'?

[epepke]

Originally posted by Mr Manifesto


What's 'Save the Embassy'?

Well, you get a bunch of inedible oranges or tangerines. You put them in a line. An amount away from them, you put a marker, which is The Embassy.

From a fair distance behind The Embassy, usually around ten meters for pistols, the players fire five .22 rounds each at the oranges.

If an orange is broken by a .22 round such that the seeds show, it it considered dead and is out of the game. If the orange is broken by a .22 round, but the seeds do not show, it is wounded and cannot be moved that turn and has to wait for the next. All citrus fruit not wounded that turn are advanced half a meter toward The Embassy.

The distances can vary from game to game and are adapted to the number of oranges and players, so long as they are all agreed to beforehand.

It's very silly, but it is a lot of fun.

[RandFan]

Originally posted by Suddenly
Do you really think this makes you special w/r/t this subject, or are you just expressing frustration at not being able to relate to the position the other side is taking?

I mean, do you really believe this is some sort of conspiracy against truth, justice, and the True Meaning Of The Framers Words?[/b] No conspiracy just wrong. You do allow that it is possible right?

In other words, when they disagree with what you think that is. Otherwise you are claiming some sort of infallability at determining framers intent. If so, what makes you so special that your opinion is fact while others are just people screwing up the obvious? I claim no such infallibility. If we were arguing whether or not the sky was blue and my position was that it was blue I would not hold any "special" position only that I was certain the individual who was arguing whether or not the sky was blue was wrong.

What is it that you want me to do? Accept your position because others are opposed to my position? Your argument here sounds fallacious. Am I not entitled to an opinion and argue that opinion? Is it not possible that the courts are wrong?

] Sounds like an ends based reasoning process. You reject any argument simply because it fails to deliver the result you want. No, just that it fails to deliver the result that the framers would have wanted. IMO. God I hope I'm still entitled to an opinion. Next your going to tell me that the courts have ruled against any opinion that deviates from that of the courts.

You keep saying that, but yet the best you can offer is that it just is. Others disagree. Are they being stupid and/or malicious in some way or is it possible it isn't quite as clear as you say? Humans have contradictory goals and priorities. To many the right to own a gun is not a priority and it conflicts with other seemingly far more important goals. It serves a purpose to make oblique that which is clear. I see it on this forum every day.

We need caselaw to interpret the constitution. The framers' intent is never a binding factor, as the text controls. When the text is not clear, the framers' intent is but one of the available tools to help a court reach a resolution.

The court acts to interpret the general law to specific circumstance. We then keep the caselaw as a guide to ensure consistency and efficiency, to both give an idea as to future application as well as avoid having the same arguments every time a situation comes up. I accept case law and precedent. I thought that I had made that clear. If I have not then let me take this opportunity to say that I respect our system and am willing to abide by the decisions of the judiciary.

That being said, I reserve the right to think that the individuals who go to great lengths to obscure that which is clear are butt heads. I hope you can allow yourself to respect that.

RandFan
Yes, but we usually err on the side of the right when there is any ambiguity, perceived or otherwise, RIGHT?

Suddenly
No. Aside from the 2nd Amendment can you give me an example.

You are saying there are no such debates? Huh? There is currently a debate as to whether we went to the moon or not. Do you think that such debates are rational?

RandFan
There needs be exceptions to any constitutional right. But in this case it is the right that is the exception.

Suddenly
Nukes for everyone? I know you better than that. This does not follow from my statement. In fact I state plainly that there are exceptions.

RandFan
The Amendment is used to show why the "people" can't keep and bear arms.

Suddenly
No. The amendment does nothing of the sort. It just doesn't prevent the government from passing laws w/r/t gun ownership and use. People have the right to bear arms all they want in absence of a constiutionally passed law to the contrary.Please note that the sentence structure of my statement. I do not claim, in this case, what the Amendment does or doesn't do. Instead I claim how it is used.

Just that the "keep and bear" must relate to the militia and the security of the State that the founders went out of their way to mention. Which is easily brushed aside by those with other priorities.

This amendment limits no right. It just doesn't grant the broad level of protection you wish it did. It doesn't take away it just doesn't give. Please don't take this too personally but this sounds like legal speak. A distinction without any difference.

Miller doesn't take a single gun out of anyone's hand. It still takes an act of law from Congress before that happens.

How does it act to limit gun ownership? It isn't like you go to the store and they won't sell you a gun because Miller says the second amendment doesn't contain an absolute right. There is this little thing called Congress that has to step in first. "It" doesn't! Again, please look at my sentence. It is "used". And there are laws right now to limit guns. (see New York)

You are being circular in that you reject the analysis based on it's not reaching your chosen conclusion.No, I reject the analysis because it fails to achieve WHAT I BELIEVE is the intent of the framers.

So, the Framers took a break from drafting technical and terse statements of legal principle to add in a short civics lesson that has no practical bearing on the right being described? Weird. No, the framers knew that the day could very possibly come when there would be others who would not see the value of this right. The explained why it should not be infringed. They did not forsee that it would be used in this manner.

That would be understood. The right to not have soldiers quarter in your house hasn't been raised much in the last hundred years. At present it really has no application to our lives, but that could change. Does that mean we must be reading it wrong?

This seems to be the argument you are forwarding here. No one is trying to make anyone quarter soldiers. States are at this very moment barring some from gun ownership.


Uh huh. We just need an out to absolutists that reject the concept of ambiguity in language and declare their own idea of what things mean to be "obvious." Assuming that person were an absolutist, and I am not, then we could be certain that the rights would be maintained. This would present problems though. That is why I am NOT an absolutist. I just recognize that the courts erred in this instance.

[RandFan]

Originally posted by RandFan


Which is for the benifit of the "people". I think you forget that sometimes.

Originally posted by Suddenly
:confused: My apologies. You rattle of the state so frequently that it seems that you forget that the state is there for the people and not the other way around. There is nothing intrinsic to the state that transcends the good of the people.

[TillEulenspiegel]

True story ..a little off topic but funny none the less.
A few years ago when Florida passed a right to bear arms ( concealed and evident) there was a loophole that allowed people to walk around with sidearms in holsters.I did it once not to be an ass but just because I wanted to experience it. There were signs on 7-11s and grocery stores that said no firearms allowed or check guns an front desk. This is no BS story it happened. You never saw politicians work so fast to get a piece of legislation so fast ( to close the loophole)

[epepke]

Originally posted by TillEulenspiegel
True story ..a little off topic but funny none the less.
A few years ago when Florida passed a right to bear arms ( concealed and evident) there was a loophole that allowed people to walk around with sidearms in holsters.I did it once not to be an ass but just because I wanted to experience it. There were signs on 7-11s and grocery stores that said no firearms allowed or check guns an front desk. This is no BS story it happened. You never saw politicians work so fast to get a piece of legislation so fast ( to close the loophole)

I remember that.

I also remember that there was no reported crime associated with the loophole.

It was in place for about a week. I remember supercilious reporters talking about how Florida was Dodge City.

Of course, even Dodge City wasn't Dodge City. Back in the 19th century, Dodge City averaged two (2) (count them, t-w-o) murders per year.

[Suddenly]

Originally posted by RandFan


What is it that you want me to do? Accept your position because others are opposed to my position? Your argument here sounds fallacious. Am I not entitled to an opinion and argue that opinion? Is it not possible that the courts are wrong?

This isn't rocket science, but it isn't 2+2=4 either. People disagree and being told that "It is clear that you don't want to admit that which is plain to see" really doesn't add much to the debate. I can say the same thing back. Joy.

My main goal in this area is not so much that I'd expect you to agree with me. I just like to see some kind of recognition that the other position is a reasonable one.

No, just that it fails to deliver the result that the framers would have wanted. IMO. Read that again. Now ask yourself what the arguments presented here are about. They are largely attempting to establish the intended meaning of a particular passage. I have accused you of rejecting an argument simply because it fails to reach the conclusion you want. An example is when you explained why you disagree with the Miller analysis:

Since Miller allows for the infringement of the rights of the people to keep and bear arms then I find it unreasonable.

As far as I can see from the above you agree. You reject an argument about the intended meaning because it fails to deliver what you think that meaning is, not because of some fault with the argument itself.

Aside from the 2nd Amendment can you give me an example. An example of a rule that doesn't exist? You said it is a rule, you go get the examples. I can't prove a negative. Ambiguity just isn't as a rule contrued in favor of a right. You may be confusing it with the rule of lenity where ambiguity in a criminal statute is construed against the state. Different deal.

I will point out in general that recent federal decisions dealing with search and seizure don't exactly bend over backwards to construe "unreasonable search and seizure" in favor of that right.

There is currently a debate as to whether we went to the moon or not. Do you think that such debates are rational? No, but there can be debates about the details of the moon missions. What exactly "freedom of speech" means is an ongoing debate. To suggest that there is no such debate and that I am being "disingenuous" to suggest such a debate occurs seems very odd.

No one is trying to make anyone quarter soldiers. States are at this very moment barring some from gun ownership.

Yes. No one is trying to quarter soldiers. Thus under current conditions that right really has no application. This can change.

Just like currently no state (as far as I know) wants it's residents to arm themselves for militia purposes. Thus, under current conditions that right really has no application. This can change.

You seemed to place some sort of sinister significance to reading a right in such a way that it has no present significance in the second case. In fact you went on and on about it, about how the courts could make any right to be not applicable under the circumstances and so forth.

I really don't think that was the intent of the framers. Perhaps they should have put in a footnote Please disregard this bill of rights if it is deemed non-applicable. Perhaps this have helped?

Since they don't have such a note in the bit about quartering soldiers should we re-construe that right so that it applies to something?

Well, I'll give you this. You (the courts) have found an out to the bill of rights. We just need to find them non-applicable to current times.

That a right is read in such a way that it has no present significance is not in and of itself proof that right is not being read properly. That was the point.

[RandFan]

Originally posted by Suddenly
This isn't rocket science, but it isn't 2+2=4 either. People disagree and being told that "It is clear that you don't want to admit that which is plain to see" really doesn't add much to the debate. I can say the same thing back. Joy.

My main goal in this area is not so much that I'd expect you to agree with me. I just like to see some kind of recognition that the other position is a reasonable one. I can admit that I could be wrong. Why should I acknowledge that the position is reasonable? I don't think that it is reasonable.

Read that again. Now ask yourself what the arguments presented here are about. They are largely attempting to establish the intended meaning of a particular passage. I have accused you of rejecting an argument simply because it fails to reach the conclusion you want. An example is when you explained why you disagree with the Miller analysis: If I think the sky is blue and others are arguing that it is not blue then I can only state my opinion and the reasons why I think the sky is blue. This is what I have done.

As far as I can see from the above you agree. You reject an argument about the intended meaning because it fails to deliver what you think that meaning is, not because of some fault with the argument itself. I have stated plainly that the argument relies on putting into the clause what is not there. You don't like this argument so you try to make a straw man.

RandFan
Yes, but we usually err on the side of the right when there is any ambiguity, perceived or otherwise, RIGHT?

[quote]Suddenly
No.

RandFan
Aside from the 2nd Amendment can you give me an example.

Suddenly
An example of a rule that doesn't exist? You said it is a rule, you go get the examples. I can't prove a negative. Ambiguity just isn't as a rule contrued in favor of a right. You may be confusing it with the rule of lenity where ambiguity in a criminal statute is construed against the state. Different deal. No that is not what I was meaning. Sorry if I don't understand the proper language to use. Please don't hold that against me.

You are right and I will think of some specific examples. My point is drawn from my understanding of the defense of the First Amendment and others like it.

I will point out in general that recent federal decisions dealing with search and seizure don't exactly bend over backwards to construe "unreasonable search and seizure" in favor of that right. I will point out that decisions dealing with first Amendment do. But that is fine I will try and refine my point. Until then I will withdraw it.

No, but there can be debates about the details of the moon missions. What exactly "freedom of speech" means is an ongoing debate. To suggest that there is no such debate and that I am being "disingenuous" to suggest such a debate occurs seems very odd. You clearly do not understand my meaning. Debating freedom of speech in general is ridiculous. Debating the subtleties of it are not.

Yes. No one is trying to quarter soldiers. Thus under current conditions that right really has no application. This can change.

Just like currently no state (as far as I know) wants it's residents to arm themselves for militia purposes. Thus, under current conditions that right really has no application. This can change.

You seemed to place some sort of sinister significance to reading a right in such a way that it has no present significance in the second case. In fact you went on and on about it, about how the courts could make any right to be not applicable under the circumstances and so forth. It was the founders who worried about the sinister motives of those in power. It was the founders who gave the "people" rights to protect them from those powers. Now there is a mechanism to neuter the very rights the founders sought to protect. I don't claim any sinister motive. I believe at this time there is simply conflicting priorities and the courts have sought a way to achieve their priorities in this instance.

AGAIN I will tell you that I will accept the decision. I just don't have to like it. Do you have a problem with that?

Since they don't have such a note in the bit about quartering soldiers should we re-construe that right so that it applies to something? Since no one is complaining about the soldiers then no. But since "people" are complaining about their rights being infringed then I think it is something that I am concerned about. It's a free country. I would hope that you could at least respect my right to have an opinion contrary to the prevailing opinion of the courts.

That a right is read in such a way that it has no present significance is not in and of itself proof that right is not being read properly. That was the point. I make no such claim. Just that there is now a mechanism to obviate rights that conflict with the goals of some judges.

I apologize for accusing you of being disingenuous. My disagreement with you should not have caused me to make such a statement. I honestly thought it at the time.

[RandFan]

Suddenly
My main goal in this area is not so much that I'd expect you to agree with me. I just like to see some kind of recognition that the other position is a reasonable one. Do you accept that the contrary position is reasonable?

[Suddenly]

Originally posted by RandFan

I have stated plainly that the argument relies on putting into the clause what is not there. You don't like this argument so you try to make a straw man.

Strawman? How is pointing out that you are rejecting other arguments based only on their conclusions a strawman?

You are right and I will think of some specific examples. My point is drawn from my understanding of the defense of the First Amendment and others like it.

I will point out that decisions dealing with first Amendment do. But that is fine I will try and refine my point. Until then I will withdraw it.
Keep in mind that what you are dealing with is an area of law that is obscure even to most lawyers, that is what are called "canons of construction." These are small rules of thumb about how a piece of positive law is to be consrued narrowly or broadly depending on a circumstance. There are many that contradict one another, and for the most part the practice is fading away outside of the rule of lenity, and even that is often ignored.

One such canon is that "Statutes will be construed narrowly to avoid constitutional problems." This of course, could run into other problems like "remedial statutes are to be construed broadly" (most statutes remedy something).

These kinds of construction rules are at heart rhetorical devices and guides rather than hard and fast rules. One of the more classically applied Constitutional construction canons is that the whole text of a provision should be read to have legal effect. For every canon there is a countrer-canon, and to the most extent canons are to law what astrology is to predicting the weather.

I'm just giving you the heads up that even finding some instance where a court actually voiced such a rule is a first step into a dark legal forest like no other. When people complain that legal reasoning is just a shell game of latin phrases and big words twisted out of all recognition usually they are for the most part showing a lack of understanding, but w/r/t the idea of "canons of construction" they hit the nail squarely on the head.



It was the founders who worried about the sinister motives of those in power. It was the founders who gave the "people" rights to protect them from those powers. Now there is a mechanism to neuter the very rights the founders sought to protect. I don't claim any sinister motive. I believe at this time there is simply conflicting priorities and the courts have sought a way to achieve their priorities in this instance. You are making arguments about the framers' intent using the framers' intent as a starting point. This is the crux of my criticism of your opinion.


AGAIN I will tell you that I will accept the decision. I just don't have to like it. Do you have a problem with that?
Sigh. No. I don't. I don't care for being told I am being willfully obtuse about the obvious. I have already said that and will say it no more. I also will argue about questions of what the law actually is at present. This is not such an arguement. I am fully aware of that.

As far as I can tell this is an argument about whether Miller should be the law. Any reference in that context to you "rejecting" Miller means that you reject the reasoning behind the opinion, not the legitimacy of the opinion.

Like I said before, this is more a question of opinion than fact, and that is what this discussion is meant to address, examination of opinion. Mainly, your opinion that it is "clear" that the second amendment should be read to give an unrestricted right to keep and bear arms. I am trying to attack that opinion in an academic sense. If you would rather not expose that opinion to scrutiny simply advise me of that fact and that will be the end of it.



Since no one is complaining about the soldiers then no. But since "people" are complaining about their rights being infringed then I think it is something that I am concerned about. That someone complains about an alleged right has nothing to do, logically speaking, with whether such a right actually exists, does it?

I apologize for accusing you of being disingenuous. My disagreement with you should not have caused me to make such a statement. I honestly thought it at the time.

I understand and accept your apology although none is necessary. I don't view this as a personal injury of any sort whatsoever. If anything I'm a bit interested by the thought process w/r/t the progression of a debate.

When I think something is simple, and someone disagrees with me I have the same initial thought you seem to have, that the other can't possibly not understand what seems so simple to me. This results in five possiblities that I can identify:

1) The other person is an idiot beyond all hope.
2) The other person is f*ck*ng with me.
3) The matter isn't quite so simple and perhaps more explanation is appropriate so that the other person can see the simple truth.
4) It just isn't that simple and I could be wrong.
5) We are not really talking about the same thing.

In my experience the mind wants to go through these more or less in order.

However, as a practical matter in a debate it is necessary to explore these in the reverse order as the earlier ones are both hard to resolve and usually derail a debate. Unfortunately, many people can never get beyond 1 and 2. I myself find that I often get stuck on 3.

All too often a debate gets derailed by 1 2 or 3 when 4 or 5 is really what is going on. When I complain about responses that appear to indicate someone is stuck in 1 or 2 I'm not whining about some insult as much as I am being pissy about a debate being mired down.

[RandFan]

Suddenly
Yes. No one is trying to quarter soldiers. Thus under current conditions that right really has no application. This can change.But my rights do not change. The quartering of soldiers is not a good analogy because my right not to quarter soldiers is static. I don't have to quarter soldiers. Period.

According to you (the courts) my right to keep and bear arms is not static. It is dynamic depending upon conditions.

[Suddenly]

Originally posted by RandFan
Do you accept that the contrary position is reasonable?
I think it is reasonable to believe that the right discussed in the 2nd Amendment is not restricted by the first clause.

In fact until I started debating this I held that opinion myself. I'm starting to develop some serious doubts about it though.

I often try to take the side contrary to my opinion. It does make me smile when I get implications that I am some sort of unthinking shill for what I am arguing. (Not that you have done that here, but I'm guessing the thought crossed your mind :) )

[RandFan]

Originally posted by Suddenly
Strawman? How is pointing out that you are rejecting other arguments based only on their conclusions a strawman? Because I don't reject other arguments based solely on their conclusions. I take into account what the framers have said and note that the conclusion is a non sequitur. It doesn't follow from the statement.

You are making arguments about the framers' intent using the framers' intent as a starting point. ??? This seems like a pretty good starting point.

That someone complains about an alleged right has nothing to do, logically speaking, with whether such a right actually exists, does it? I didn't say that it did only that there is a reason to address issues of the 2nd Amendment and there are none for quartering soldiers. Correct?

[RandFan]

Originally posted by Suddenly

I think it is reasonable to believe that the right discussed in the 2nd Amendment is not restricted by the first clause.

In fact until I started debating this I held that opinion myself. I'm starting to develop some serious doubts about it though.

I often try to take the side contrary to my opinion. It does make me smile when I get implications that I am some sort of unthinking shill for what I am arguing. (Not that you have done that here, but I'm guessing the thought crossed your mind :) ) Oh sure, I have often taken a position contrary to mine in an argument.

Though I very much wanted to slap my friends and family on the back at family gatherings when they were clamining Clinton killed Vince Foster or sold secrets to the Chinese I had to challenge them on the assumptions.

[Suddenly]

Originally posted by RandFan
But my rights do not change. The quartering of soldiers is not a good analogy because my right not to quarter soldiers is static. I don't have to quarter soldiers. Period.

Not quite so simple. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

What kind of consent is necessary? Fine print? Mildly ambiguous verbal declaration? Clear statement of consent with proof such consent was knowing and intellegent? Can the waiver be revoked?

Does time of war require a declaration? If not are we at war now, like the president likes to say? If so does that give congress free reign to make us all quarter all military personel so to help cut spending?

So, if Congress tommorow passed such a law allowing military personel traveling stateside to just pick a house instead of a hotel the Third Amendment and the precise meaning therof would become quite important. Note that the right didn't change, rather the circumstances surrounding that right changed likely bringing about a case where the courts would have to answer some of the above questions about the existence of a right that hasn't had application for quite some time.



According to you (the courts) my right to keep and bear arms is not static. It is dynamic depending upon conditions.

The right itself is static. Whether is has any application depends on factors outside the constitution which are not static.

If the whole world eventually adopted atheism and religion became a thing of the past large sections of the 1st amendment would also not really have any application anymore. That is until someone picked up religion again. That doesn't make the 1st "dynamic," rather it would be a situation where the problem it addressed was mooted by the progress of humanity.

[Suddenly]

Originally posted by RandFan


I didn't say that it did only that there is a reason to address issues of the 2nd Amendment and there are none for quartering soldiers. Correct?

There may be more reason to discuss it at present, but that has no bearing whatsoever on the outcome of such a discussion.

Just wanting to make that point clear.

[crimresearch]

Citing Miller as definitive of the intent of the Framers strikes me as interesting, since that Court saw fit to conduct the case without either Miller, or his attornies, being present...only the prosecution was afforded the opportunity to present their case.

If Miller does indeed set the ironclad and binding precedent on all other courts that some have claimed, then you would think that at least one prosecutor would have cited it in order to try suspects without allowing them or their attornies to be present.
But in reality, the Miller ruling Miller was so inconclusive on several levels, that even the lower courts to which the USSC returned Miller for a retrial (the actual finding), wouldn't touch it.
Miller himself was never found guilty of interstate transportation of a shotgun in violation of the National Firearms act. (The original federal charge).

Currently, it IS accepted that ownership of flamethrowers, bazookas, and small missiles may be restricted for individuals,
but that is a construct, not a given interpretation of the 2nd amendment. The USSC pronounced themselves 'unable to take judicial notice', they did not issue a finding as to whether or not a shotgun had any status on the 2nd.
(Note that when the amendment was crafted, the Framers were quite aware of the difference between weapons of war, such as chain shot, grape shot, cannister shot, bayonets, etc. and civilian weapons. Yet they deliberated and chose to record the right of the people to have 'arms', without making any limitation, such as those imposed later).

Paul

[Suddenly]

Originally posted by crimresearch
Citing Miller as definitive of the intent of the Framers strikes me as interesting, since that Court saw fit to conduct the case without either Miller, or his attornies, being present...only the prosecution was afforded the opportunity to present their case.

Miller was dead. His co-defendant was alive, but chose to neither attend nor send counsel. You imply that the defense was not allowed to bring a case. That is both misleading and incorrect.

I a different thread (http://www.randi.org/vbulletin/showthread.php?s=&threadid=29373&perpage=40&highlight=Miller&pagenumber=3) Xouper raised a similar objection and I responded to it.

Xouper asked:

Since Miller died and did not show up to argue his case before the Supreme Court, the case was decided by default. Can anyone say for certain that case would not have been decided the other way if Miller had actually presented his case?

I responded: Only the named defendant died. His co-defendant was still alive. At that point in time the right to counsel was a different story, with the Gideon case still in the future. The co-defendent could have been there or sent counsel. He didn't.

Appeals are a completely different kettle of fish than a trial. If you do not show up for trial, as a defendant, you still do not lose by default. In most states the case is stayed until you can be brought in by force. In some juristictions there is a trial without a defendant, but the state must still meet their burden.

Default happens only in civil cases.

Miller was not decided by default. The only difference is that Miller and Layton (the co-defendant) did not present an argument. This in practice doesn't mean a whole lot. The Court decides the case based on what they think the law is, not based on which argument they like better. The government's brief in Miller painted a much more restrictive picture than did the court's opinion.

The court found that there must be a relationship between the gun ownership and membership in the militia. Since they right off the bat found that the sawed off shotgun was not the type of weapon used in a militia, they didn't go any further.

The point a brief would have been most helpful with for Miller is w/r/t the finding of law that . However, if this would have been successful this would have likely meant the court would then move on to decide if anything further must be shown w/r/t a militia. It could have went either way. The court could have gone on to be quite specific that the gun must be owned for purposes of actual state militia membership.

Or, they could have said that only type is important. Nobody knows. All we are left with is a general principle and a finding.

A brief from Miller's side may have changed things, but there is a chance that the changes would have made Miller more restrictive than it currently is.

Later Xouper pointed out that there was no particular finding that " a sawed off shotgun is not a weapon commonly associated with militia membership," and he was correct. The court merely found that it could not find that such a shotgun was associated with militia membership as there was no evidence to support such a conclusion. A small distinction, but important.


If Miller does indeed set the ironclad and binding precedent on all other courts that some have claimed, then you would think that at least one prosecutor would have cited it in order to try suspects without allowing them or their attornies to be present.
Caselaw doesn't work that way. The issue in Miller was the proper interpretation of the Second Amendment. It turns out one side decided not to show up, a fact not analyzed or even considered by the court. A court decision only is considered authority when it deals with the subject in controversy.

A party not showing up for an appellate argument is not really a big deal, as I illustrated above. Furthermore, since that issue was not the issue on which the court decided the case, this case has no impact on that area of law.
But in reality, the Miller ruling Miller was so inconclusive on several levels, that even the lower courts to which the USSC returned Miller for a retrial (the actual finding), wouldn't touch it.
Miller himself was never found guilty of interstate transportation of a shotgun in violation of the National Firearms act. (The original federal charge). Maybe that has something to do with Miller being dead. Normally, prosecutors don't waste resources convicting dead people.

[crimresearch]

So the USSC ordered the lower courts to retry a dead person?
Did they read him his 6th amendment rights?
:D


Actually it is likely that Miller was a fugitive, but again his counsel was neither dead, nor in hiding, and the right to have counsel argue the defendant's case was not the anomaly you make it out to be.
(Gideon of course being about counsel for the indigent, not about star chambers, and the 6th amendment being upheld as recently as 1938...Johnson v Zerbst was pre Miller)

Bottom line, Miller was a tap dance around rendering any significant precedent on 2nd amendment matters, and as such is mostly useful as debate fodder. Citing it to support either point of view in 2nd amendment discussions is, as I said, interesting, but hardly definitive, which is why we are left with a legal construct cobbled together to presume the current restrictions on the issue of arms.

[Suddenly]

Originally posted by crimresearch
So the USSC ordered the lower courts to retry a dead person?
Did they read him his 6th amendment rights?
:D
There was a co-defendant. This was the only reason this case wasn't mooted. The case could have just as well been styled "U.S. v. Layton." Miller's death is nothing but a red herring w/r/t the legal issues in the case.

Actually it is likely that Miller was a fugitive, but again his counsel was neither dead, nor in hiding, and the right to have counsel argue the defendant's case was not the anomaly you make it out to be. They had the right to argue. You are mistaken about the facts. Miller's counsel didn't show up because Miller was dead, and thus the case was moot as far as Miller was concerned. The reason Layton nor his counsel failed to show are not known. There is no evidence to suggest that he or his counsel did not have the right to appear.

Bottom line, Miller was a tap dance around rendering any significant precedent on 2nd amendment matters, and as such is mostly useful as debate fodder. Citing it to support either point of view in 2nd amendment discussions is, as I said, interesting, but hardly definitive, which is why we are left with a legal construct cobbled together to presume the current restrictions on the issue of arms.

Miller is a United States Supreme Court Case, that when presented with a question of analyzing the 2nd Amendment held that the first clause of that Amendment was to be given some legal effect. 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.

This isn't a tapdance. This is a clear statement that "some reasonable relationship to the preservation or efficiency of a well regulated militia" must be found before the Second Amendment applies. As Epepke and I discussed, the details of what exactly it means to have "a reasonable relationship" is not clear.

It does make clear that the there must be a "reasonable relationship," and the Court going on to cite older state laws regarding militia duty like this one...

By an Act passed April 4, 1786 (Laws 1786, c. 25), the New York Legislature directed: 'That every able-bodied Male Person, be- [307 U.S. 174, 181] ing a Citizen of this State, or of any of the United States, and residing in this State, (except such Persons as are herein after excepted) and who are of the Age of Sixteen, and under the Age of Forty-five Years, shall, by the Captain or commanding Officer of the Beat in which such Citizens shall reside, within four Months after the passing of this Act, be enrolled in the Company of such Beat. ... That every Citizen so enrolled and notified, shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack; ....'

requiring male residents to belong to the militia and arm themselves gives a general impression of what they thought was going on.

[Kodiak]

I think this sort of sums it up, doesn't it?

Originally posted by Kodiak: "Well, Suddenly, it seems you have Miller, and I have history and the founder's intent..."


Posted in response by Suddenly: "Considering my whole point is the state of the law at present, that is just fine."

[Suddenly]

Originally posted by Kodiak
I think this sort of sums it up, doesn't it?

Originally posted by Kodiak: "Well, Suddenly, it seems you have Miller, and I have history and the founder's intent..."


Posted in response by Suddenly: "Considering my whole point is the state of the law at present, that is just fine."

I would disagree as to the certainty of you "having" history and the founder's intent. I can see how such a position is reasonable. However, that is a seperate debate and one I usually try to avoid mixing up with the question of what the law is at present.

When faced with claims that there somehow is no strong legal precident making the first clause of the second amendment legally operative I'm going to point out the likely incorrectness of such a claim.

Also, when told that this reading is somehow against the obvious intent of the framers I'm going to disagree. I think there may be a good case to be had in that regard, and perhaps even somewhat persuasive, but it is one that is neither watertight nor as logically obvious as it may seem to be to many. That is kind of what the exchange was between RandFan and I, that I have some doubts that it is really that simple.