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I'm here for the moneuy Red Tides Plague Gulf Beaches Tucker Carlson calls out Nikki Haley, Ben Shapiro, and every other person calling for war: Status: Not Logged In; Sign In U.S. Constitution See other U.S. Constitution Articles Title: Here’s How The Supreme Court Already Repealed The Second Amendment Source: The Federalist URL Source: http://thefederalist.com/2018/05/09 ... ady-repealed-second-amendment/ Published: May 9, 2018 Author: Mark Overstreet Post Date: 2018-05-09 11:31:39 by Deckard Keywords: None Views: 44400 Comments: 421 The Supreme Court effectively repealed the Second Amendment in District of Columbia v. Heller by restricting the amendment to common arms. In March, retired Supreme Court justice John Paul Stevens called for repealing the Second Amendment, implicitly admitting that it does what, in his dissent in District of Columbia v. Heller (2008), he pretended it does not: prohibit laws infringing the right to keep and bear arms. Why Stevens called for repeal and dissented in Heller is a mystery, however. The Second Amendment was repealed, in effect, by Heller’s majority opinion. The opinion went beyond questions raised in the case and laid out a rationale by which Congress, states, and courts could ban the private possession of many offensive and defensive arms today and all such arms of the future. Heller asked the court to decide whether Washington DC’s bans on handguns, having a loaded firearm at home, and carrying a firearm at home without a permit violated the Second Amendment. Although on imperfect grounds, the court correctly ruled that the first two bans were unconstitutional. It also said if DC required a permit to carry a gun at home, it had to issue permits to qualified applicants. But, the court added, “[w]e may as well consider at this point . . . what types of weapons [the Court’s decision in U.S. v. Miller (1939)] permits.” The Court Turned Stare Decisis On Its Head Miller asked whether the National Firearms Act of 1934 violated the Second Amendment by requiring that a short-barreled shotgun be registered with the federal government. Oddly, before the court heard the case, one defendant died and the other disappeared, so their lawyer didn’t go to Washington to present evidence on their behalf. The court thus concluded, “[i]n the absence of any evidence tending to show that possession and use of a [short-barreled shotgun] 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” (emphasis added). For the right to “ordinary military equipment” and other arms that “could contribute to the common defense,” the court cited the decision of the Tennessee Supreme Court in Aymette v. State (1840), that “the arms, the right to keep which is secured [by Tennessee’s constitution] are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.” Heller said, “We think that Miller’s ‘ordinary military equipment’ language must be read in tandem with what comes after: ‘[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’” However, that mischaracterizes Miller. The arms to which Miller said people have the right are those that have a “relationship to a well regulated militia.” “Ordinary military equipment” is the first example of arms the court said have that relationship, and “what comes after” is a second example: other arms that “could contribute to the common defense.” It was three paragraphs later that the court stated the obvious: people commonly possessed “common” arms. Moreover, Heller didn’t read Miller “in tandem.” It gave weight only to Miller’s comment about “common” arms, while rejecting Miller’s and Aymette’s endorsement of the right to arms relating to militia purposes, “ordinary military equipment,” and other arms that “could contribute to the common defense.” Why ‘Common’ Can’t Be the Standard for Owning Arms Heller’s mischaracterization of Miller is the first reason why “common” cannot be the standard for arms to which people have the right. “Common” is also vulnerable to deliberate misinterpretation. For example, while the percentage of gun owners who own an AR-15 is about the same as the percentage of drivers who own a Mercedes, judges who oppose the right to arms would likely rule that only Mercedeses are “common.” A second reason “common” cannot be the standard was noted by Justice Stephen Breyer in his dissent in Heller. He explained, “[T]he majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.” Breyer had in mind the majority’s argument that fully automatic rifles, common in the military, could be banned because they aren’t common among private individuals. The circularity is that they aren’t common among private individuals because they have been prohibitively taxed since 1934, banned in about half the states for almost as long, prohibited from importation since 1968, and banned from domestic manufacture since 1986. A third reason is that the U.S. Framers didn’t limit the right to “common” arms. For example, cannons, though not as common as handheld arms, weren’t excluded from the Second Amendment. In protecting the right to arms for defense against tyranny, the Framers intended for the people to win. Several quotations from them illustrate the point. James Madison: “Let a regular army . . . be at the devotion of the federal government. . . . [T]he State governments, with the people on their side, would be able to repel the danger.” Alexander Hamilton: “[The] army cannot be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.” Richard Henry Lee: “To preserve liberty it is essential that the whole body of people always possess arms.” Tench Coxe: “As the military . . . might pervert their power to the injury of their fellow citizens, the people are confirmed by the [Second Amendment] in their right to keep and bear their private arms.” Noah Webster: “[T]he whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.” You Can’t Protect Freedom With a Slingshot A fourth, and the most important, reason was pointed out, but rejected by Heller’s majority opinion, written by the late Justice Antonin Scalia, an originalist from whom we might have expected faithfulness to the Framers’ intent. Referring to fully-automatic rifles, Scalia wrote: It may be objected that if weapons that are most useful in military service . . . may be banned, then the Second Amendment right is completely detached from the [amendment’s] prefatory clause. . . . But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. Although some laud Heller for recognizing an individual right to some arms, its false standard allows Congress and the states to ban arms they and the courts claim are not “common” or that are useful “in military service.” As Breyer put it, “On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the authority to do so.” Breyer was mocking his colleagues, but “tomorrow” is important because firearms are near the end of their 500-year era of usefulness for the military purpose the Framers intended. Notwithstanding gun-control supporters’ complaints about the supposed new-fangledness of this or that firearm or firearm accessory, firearms are glorified slingshots. Three thousand years ago, David slew Goliath with a rock ballistically comparable to a .45 caliber pistol bullet. Gunpowder propels a bullet more predictably than a whirling leather thong, but bullets, like rocks, are inert projectiles. Sometime this century, the government will be equipped with offensive and defensive handheld arms and even more futuristic arms that will render firearms as obsolete for defense against tyranny as bows and arrows are today. While our troops should be equipped with the best equipment possible when fighting America’s enemies, it requires little imagination to envision how extraordinary technologies, such as those developed by the Pentagon’s Defense Advanced Research Projects Agency, could be misused against the American people. Of course, regardless of Heller and whether the Second Amendment is repealed, Americans have the right to keep and bear arms, including for defense against tyranny. As a wiser Supreme Court recognized in U.S. v. Cruikshank (1876), the right, which existed before the Constitution, is “not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” But rights are a concept. Laws that are enforced have tangible effect. In early April, U.S. District Court judge William Young ruled that Heller’s endorsement of restrictions on fully automatic firearms permits Massachusetts to ban semi-automatic firearms and ammunition magazines that many firearms use. Other courts have upheld similar bans. If Americans allow their rights to be choked in this manner, they could find themselves no longer in control of government, but rather at its mercy. Mark Overstreet is a firearm instructor and author in central Texas. He retired in 2016 as the senior research coordinator of the National Rifle Association’s Institute for Legislative Action, after 25 years with the organization. His views do not necessarily reflect those of the NRA. Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 406. #1. To: Deckard (#0) https://supreme.justia.com/cases/federal/us/554/570/opinion.html http://www.supremecourt.gov/opinions/boundvolumes/554bv.pdf District of Columbia v Heller, 554 US 570 (2008) From Heller at 581: Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar). Heller at 582: Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. Heller at 584: At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. Heller at 620: We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ” Heller at 624-25: “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra. We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. Heller at 626: Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Heller at 627-28: It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. Black's Law Dictionary, 6 Ed. Arms. Anything that a man wears for his defense, or takes in his hands as a weapon. The "right to keep and bear arms" existed in the colonies, was brought forth into the states before the union, and was protected by the 2nd Amendment. The right which existed in the colonies came from the English common law. The Framers saw no need to explain to themselves what that right to keep and bear arms was. http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp Blackstone's Commentaries on the Laws of England Book the First - Chapter the First: Of the Absolute Rights of Individuals 5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. Heller at 593-95: By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833). There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause. Heller at 626-28: Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874). It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. nolu chan  posted on  2018-05-09   13:00:54 ET  Reply   Untrace   Trace   Private Reply   #2. To: nolu chan (#1) (Edited) "... by restricting the amendment to common arms." They had to ... if they were going to rule that the second amendment protected an individual right. You can't have ordinary citizens with tanks, SAMs, flame throwers and machine guns. As I said at the time, this is what happens when trying to fit a square peg into a round hole. You destroy the square peg. The second amendment doesn't protect arms for ordinary citizens. It protects state militias and the arms of state militia members from federal infringement. What are those arms? They are the arms selected by the state militia as necessary for the protection of the state. Round peg. Round hole. So what protects the individual right to keep and bear arms? State constitutions. misterwhite  posted on  2018-05-09   14:45:59 ET  Reply   Untrace   Trace   Private Reply   #4. To: misterwhite, nolu chan (#2) You can't have ordinary citizens with tanks, SAMs, flame throwers and machine guns. As I said at the time, this is what happens when trying to fit a square peg into a round hole. You destroy the square peg. Yes, you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns. Title 10 Section 311 Part (b) 2 says this quite clearly http://uscode.house.gov/view.xht...ort&fq=true&num=5&hl=true People out there have this strong hatred for the Second Amendment, and to deliberately dismantle the meaning of "militia" and who they are comprised of, for the sole purpose of depriving the ordinary citizen that lawful Right which has long been recognized in our law books as a personal right. The statute I pointed out is recognized as part of the positive law already in our United States Codes in the Table of Contents as the original positive law. State Constitutions must be concomitant with the original federal constitution, chiefly the Bill of Rights. The purpose of invoking boiler plate case law in this matter is to confuse the issue thus clouding what the reasonable intent of the Second Amendment was intended to be for. The statute I referenced (Title 10 USC. Sec 311 (b) (2) makes it quite clear who the militia are. Unlike the professional standing army, the Class (b) (2) militia is comprised of those like you and me. The professional standing army is controlled by the federal government which includes your State Governors who use their own armies to be deployed when necessary to establish the peace. Contrary to this, We as the general member of the public, represent that second class of being the unprofessional army in that the purpose of having those cannons, tanks, SAMs, and flamethrowers, is to maintain these tools in a safe manner and teach our children about them. Our militia serves for the purpose of protecting not our homeland and overseas but to protect our home and personal property from professional standing armies being used by rogue governments who desire to override our rights as a free people. goldilucky  posted on  2018-05-09   16:39:57 ET  Reply   Untrace   Trace   Private Reply   #23. To: goldilucky (#4) Yes, you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns. Title 10 Section 311 Part (b) 2 says this quite clearly Title 10 Section 311 Part(b)2 refers to the "unorganized militia" of a state. Currently, 21 States have State Defense Forces (also called State Military, State Guards, or State Military Reserves), authorized by state and federal law and under the command of the governor of each state. State Defense Forces are distinct from their state's National Guard in that they cannot become federal entities. I am not aware that any State Defense Force allows their personnel to own SAMs, machine guns, or flamethrowers. misterwhite  posted on  2018-05-11   9:43:01 ET  Reply   Untrace   Trace   Private Reply   #30. To: misterwhite, goldilucky (#23) I am not aware that any State Defense Force allows their personnel to own SAMs, machine guns, or flamethrowers. I am unaware of any military base that allows active duty military living on base to have their own private SAMs, machine guns, or flamethrowers. Except for authorized persons with authorized weapons, on base personnel are not authorized to be armed, concealed carry or otherwise. One cannot transport their private gun onto a base in their vehicle either. nolu chan  posted on  2018-05-11   15:04:49 ET  Reply   Untrace   Trace   Private Reply   #32. To: nolu chan (#30) I believe he's thinking private paramilitary groups like the Michigan Militia (Wolverines) qualify as the "unorganized militia" and are protected by the second amendment. misterwhite  posted on  2018-05-11   15:19:37 ET  Reply   Untrace   Trace   Private Reply   #39. To: misterwhite (#32) I believe he's thinking private paramilitary groups like the Michigan Militia (Wolverines) qualify as the "unorganized militia" and are protected by the second amendment. The 2nd Amendment protects the RKBA of individuals and is not restricted to militia or any other group. Individuals in the Wolverines are protected by the 2nd Amendment. However, the RKBA has never protected some imaginary right to bear RPGs, SAMs, machine guns, or flamethrowers. That was not the right enjoyed under English common law by the colonists, and is not the right they brought forward with them into the United States. nolu chan  posted on  2018-05-11   21:18:40 ET  Reply   Untrace   Trace   Private Reply   #41. To: nolu chan (#39) "The 2nd Amendment protects the RKBA of individuals and is not restricted to militia or any other group." That's how the Heller court ruled, yes. They were wrong, but that's their ruling. "However, the RKBA has never protected some imaginary right to bear RPGs, SAMs, machine guns, or flamethrowers." Not even for the well-regulated and organized State militias? I seem to recall that Article 1, Section 8, Clause 16 calls for "organizing, arming, and disciplining the Militia." We're going to have a dificult time protecting ourselves from an out-of-control Federal government with just the handguns protected by Heller. misterwhite  posted on  2018-05-12   10:36:23 ET  Reply   Untrace   Trace   Private Reply   #45. To: misterwhite (#41) That's how the Heller court ruled, yes. They were wrong, but that's their ruling. The Supreme court determines the law. You are entitled to your opinion, but that does not change the law. Individuals in and out of the militia have the rights to keep and bear arms brought forward by the colonists into America, and the right is protected by the 2nd Amendment. The ancient right came from English common law and predates the Constitution. Not even for the well-regulated and organized State militias? I seem to recall that Article 1, Section 8, Clause 16 calls for "organizing, arming, and disciplining the Militia." What arms meant in 1792 is amply described below. It does not expand to any weapon imaginable. The right was not defined in the Constitution because it was well-defined in English common law. The Militia Act of May 8, 1792 (repealed and replaced 1795). SECOND CONGRESS. Sess. I. Ch. 33. 1792. 1 Stat. 271 May 8, 1792. Chap. XXXIII.—An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States.(a) Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That and by whom each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citi­zen shall reside, and that within twelve months after the passing of this act. And it shall at all times hereafter be the duty of every such cap­tain or commanding officer of a company to enrol every such citizen, as aforesaid, and also those who shall, from time to time, arrive at the age of eighteen years, or being of the age of eighteen years and under the age of forty-five years (except as before excepted) shall come to re­side within his bounds; and shall without delay notify such citizen of the said enrolment, by a proper non-commissioned officer of the company, by whom such notice may be proved. That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, 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 to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned officers shall severally be armed with a sword or hanger and espontoon, and that from and after five years from the passing of this act, all muskets for arming the militia as herein required, shall be of bores sufficient for __________ (a) The acts for the establishment of an uniform system for the government of the militia, are: An act more effectually to provide for the national defence by establishing an uniform militia throughout the United States, May 8, 1792, chap. 33; an act providing arms for the militia throughout the United States. July 6, 1798, chap. 65; an act in addition to an act entitled, “An act more effectually to provide for the national defence, by establishing an uniform militia throughout the United States,” March 2, 1803, chap. 15; an act more effectually to provide for the organizing of the militia of the District of Columbia, March 3, 1803, chap. 20; an act establishing rules and articles for the government of the armies of the United States, April 10, 1806, chap. 20; an act in addition to the act entitled, “An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and to repeal the act now in force for those purposes,” April 18. 1814, chap. 82; an act concerning field officers of the militia, April 20, 1816, chap. 64; an act to establish an uniform mode of discipline and field exercise for the militia of the United States, May 12, 1820, chap. 96; an act to reduce and fix the military peace establishment of the United States, March 2, 1821, chap. 12, sec. 14. 272 SECOND CONGRESS. Sess. I. Ch. 33. 1792. balls of the eighteenth part of a pound. And every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid, shall hold the same exempted from all suits, dis­tresses, executions or sales, for debt or for the payment of taxes. [snip] nolu chan  posted on  2018-05-14   15:21:28 ET  Reply   Untrace   Trace   Private Reply   #51. To: nolu chan (#45) That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock Do you know why they had to get a musket? Because they didn't have one. They had rifles for hunting because smoothbore muskets were not accurate. Now, muskets were fine for volley fire used by the militia, they were cheap, and they were fast reloading. But above the fireplace in the home, proudly displayed, was an expensive rifle. So what is it? Does the second amendment protect arms in common use at the time (rifles) or does it protect the arms used by the militia (muskets)? misterwhite  posted on  2018-05-14   16:04:13 ET  Reply   Untrace   Trace   Private Reply   #54. To: misterwhite (#51) So what is it? Does the second amendment protect arms in common use at the time (rifles) or does it protect the arms used by the militia (muskets)? The 2nd Amdt protects the ancient right to keep and bear arms. It does not protect and alleged right to keep Surface to Air Missiles (SAMs). It protects the right to keep and bear arms which are lawful to possess. nolu chan  posted on  2018-05-14   22:12:44 ET  Reply   Untrace   Trace   Private Reply   #62. To: nolu chan (#54) The 2nd Amdt protects the ancient right to keep and bear arms ... ... for Militia members only. Which it why it mentions a Militia. Prior to the ratification of the Bill of Rights, at least 4 of the 13 states had state constitutions which protected the individual right of their citizens to keep and bear arms. But their "second amendment" language used the phrase, "... the right of the citizens to bear arms in defence of themselves and the State ..." "Citizens", not "the people". In defense of themselves. Your individual right to keep and bear arms is, and has always been, protected by your state constitution. Which is why gun laws vary from state to state. misterwhite  posted on  2018-05-15   10:05:24 ET  Reply   Untrace   Trace   Private Reply   #64. To: misterwhite (#62) The 2nd Amdt protects the ancient right to keep and bear arms ... ... for Militia members only. Which it why it mentions a Militia. Hosreshit repeated is still horseshit. District of Columbia v. Heller, S. Ct. 26 June 2008, Syllabus: Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53. (a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22. - - - - - - - - - - District of Columbia v Heller, S. Ct. (2008) From Heller at 581: Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar). Heller at 582: Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. Heller at 584: At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. Heller at 620: We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ” Heller at 624-25: “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra. We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. Heller at 626: Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Heller at 627-28: It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. Black's Law Dictionary, 6 Ed. Arms. Anything that a man wears for his defense, or takes in his hands as a weapon. The "right to keep and bear arms" existed in the colonies, was brought forth into the states before the union, and was protected by the 2nd Amendment. The right which existed in the colonies came from the English common law. The Framers saw no need to explain to themselves what that right to keep and bear arms was. Heller at 593-95: By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833). There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause. Heller at 626-28: Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874). It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp Blackstone's Commentaries on the Laws of England Book the First - Chapter the First: Of the Absolute Rights of Individuals 5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. nolu chan  posted on  2018-05-15   13:08:19 ET  Reply   Untrace   Trace   Private Reply   #65. To: nolu chan (#64) Don't bother citing Heller. I told you the court got it wrong. And for future reference, don't cite Roe v Wade, Kelo, or Obamacare (the penalty is a tax). They got it wrong there, too. misterwhite  posted on  2018-05-15   15:12:22 ET  Reply   Untrace   Trace   Private Reply   #68. To: misterwhite (#65) [misterwhite #65] Don't bother citing Heller. I told you the court got it wrong. You got it wrong and Heller (and McDonald) are current Supreme Court precedent. By contrast you want to keeep digging up the corpses of Cruickshank, Presser and Miller, three very old cases that you happen to like. I will continue to cite and quote current Supreme Court precedent and you are welcome to dig up the corpses of 19th century post civil war cases and drag them before the forum. [misterwhite #66] I never said they didn't have the right. They do. Just that the second amendment doesn't protect it. The 2nd Amendment does protect the individual right to keep and bear arms, as explicitly expressed and held by current Supreme Court precedent. [misterwhite #67] Yeah. In common use by the militia. According to Miller: [...] The question before the Miller court was whether or not a sawed-off shotgun had "any reasonable relation to the preservation or efficiency of a well regulated militia". If it did, then the second amendment protected it. There ya go, digging up that corpse again. This claptrap was crushed in Heller. District of Columbia v Heller, 554 US 570 (2008) [595] 2. Prefatory Clause. The prefatory clause reads: "A well regulated Militia, being necessary to the security of a free State .... " a. "Well-Regulated Militia." In United States v. Miller, 307 U. S. 174, 179 (1939), we explained that "the Militia comprised all males physically capable of acting in concert for the common defense." That definition comports with founding-era sources. - - - - - - - - - - [596] Petitioners take a seemingly narrower view of the militia, stating that "[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, § 8, cls. 15-16)." Brief for Petitioners 12. Although we agree with petitioners' interpretive assumption that "mi­litia" means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and na­vies, which Congress is given the power to create ("to raise . . . Armies"; "to provide . . . a Navy," Art. I, § 8, cls. 12-13), the militia is assumed by Article I already to be in existence. Congress is given the power to "provide for call­ing forth the Militia," § 8, cl. 15; and the power not to create, but to "organiz[e]" it—and not to organize "a" militia, which is what one would expect if the militia were to be a federal creation, but to organize "the" militia, connoting a body al­ready in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first Militia Act, which specified that "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia." Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them. - - - - - - - - - - [598] 3. Relationship Between Prefatory Clause and Opera­tive Clause. We reach the question, then: Does the preface it with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had elimi­nated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the peo­ple's arms, enabling a select militia or standing army to sup­press political opponents. This is what had occurred in Eng­land that prompted codification of the right to have arms in the English Bill of Rights. The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. - - - - - - - - - - [599] It is therefore entirely sensible that the Second Amend­ment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. JUSTICE BREYER's assertion that individual self-defense is merely a "subsidiary interest" of the right to keep and bear arms, see post, at 714 (dissenting opinion), is profoundly mis­taken. He bases that assertion solely upon the prologue— but that can only show that self-defense had little to do with the right's codification; it was the central component of the right itself. - - - - - - - - - - [619] United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right "is not a right granted by the Con­stitution [or] in any manner dependent upon that instrument for its existence. The second amendment... means no more 620 than that it shall not be infringed by Congress." Id., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had dis­banded the local militia unit the year before the mob's attack, see C. Lane, The Day Freedom Died 62 (2008). We de­scribed the right protected by the Second Amendment as " 'bearing arms for a lawful purpose' " and said that "the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes" to the States' police power. 92 U. S., at 553. That discussion makes little sense if it is only a right to bear arms in a state militia. Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade "bodies of men to associate together as military organiza­tions, or to drill or parade with arms in cities and towns unless authorized by law." Id., at 264-265. This does not refute the individual-rights interpretation of the Amend­ment; no one supporting that interpretation has contended that States may not ban such groups. 621 JUSTICE STEVENS presses Presser into service to support his view that the right to bear arms is limited to service in the militia by join­ing Presser's brief discussion of the Second Amendment with a later portion of the opinion making the seemingly relevant (to the Second Amendment) point that the plaintiff was not a member of the state militia. Unfortunately for JUSTICE STEVENS' argument, that later portion deals with the Four­teenth Amendment; it was the Fourteenth Amendment to which the plaintiff's nonmembership in the militia was rele­vant. Thus, JUSTICE STEVENS' statement that Presser "suggested that . . . nothing in the Constitution protected the use of arms outside the context of a militia," post, at 674-675, is simply wrong. - - - - - - - - - - [621] JUSTICE STEVENS places overwhelming reliance upon this Court's decision in Miller, 307 U. S. 174. "[H]undreds of judges," we are told, "have relied on the view of the Amend­ment we endorsed there," post, at 638, and "[e]ven if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law," post, at 639. And what is, according to JUSTICE STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons." Post, at 637. Nothing so clearly demonstrates the weakness of JUSTICE STEVENS' case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men's federal indictment for transporting an unregistered short-barreled 622 shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not "for . . . military purposes" but for "nonmilitary use," post, at 637. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: "In the ab­sence of any evidence tending to show that the possession or use of a [short-barreled shotgun] 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." 307 U. S., at 178 (emphasis added). "Cer­tainly," the Court continued, "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." Ibid. Beyond that, the opinion provided no expla­nation of the content of the right. This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. JUSTICE STEVENS can say again and again that Miller did not "turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns," post, at 677, but the words of the opinion prove otherwise. The most JUSTICE STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General's argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, 623 No. 696, pp. 4-5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. - - - - - - - - - - [623] It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. JUS­TICE STEVENS claims, post, at 676-677, that the opinion reached its conclusion "[a]fter reviewing many of the same sources that are discussed at greater length by the Court today." Not many, which was not entirely the Court's fault. The defendants made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court's consideration of the Second Amendment). See Frye, The Peculiar Story of United States v. Miller, 3N. Y. U. J. L. & Liberty 48, 65-68 (2008). The Government's brief spent two pages discussing English legal sources, concluding " that at least the carrying of weapons without lawful occa­sion or excuse was always a crime" and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) "the early Eng­lish law did not guarantee an unrestricted right to bear arms." Brief for United States, O. T. 1938, No. 696, at 9-11. It then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United States, O. T. 1938, No. 696, at 12-18. The final section of the brief recognized that "some courts have said that the right to bear arms in­cludes the right of the individual to have them for the protec­tion of his person and property," and launched an alternative argument that "weapons which are commonly used by crimi­nals," such as sawed-off shotguns, are not protected. See id., at 18-21. The Government's Miller brief thus provided 624 scant discussion of the history of the Second Amendment— and the Court was presented with no counter discussion. As for the text of the Court's opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U. S., at 178 (which we do not dispute), and then reviews some historical materials dealing with the na­ture of the militia, and in particular with the nature of the arms their members were expected to possess, id., at 178­182. Not a word (not a word) about the history of the Sec­ond Amendment. This is the mighty rock upon which the dissent rests its case. = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = McDonald v Chicago, 561 US 742 (2010) [Syllabus at 1] The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U. S. 542, Presser v. Illinois, 116 U. S. 252, and Miller v. Texas, 153 U. S. 535— which were decided in the wake of this Court's interpretation of the Fourteenth Amendment's Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36. Held: The judgment is reversed, and the case is remanded. - - - - - - - - - - [Syllabus at 2] (b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War's aftermath fundamentally altered the federal system. Four years after the adop­tion of the Fourteenth Amendment, this Court held in the Slaughter­ House Cases, that the Privileges or Immunities Clause protects only those rights "which owe their existence to the Federal government, its National character, its Constitution, or its laws," 16 Wall., at 79, and that the fundamental rights predating the creation of the Fed­eral Government were not protected by the Clause, id., at 76. Under this narrow reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79-80. Subse­quently, the Court held that the Second Amendment applies only to the Federal Government in Cruikshank, 92 U. S. 542, Presser, 116 U. S. 252, and Miller, 153 U. S. 535, the decisions on which the Sev­enth Circuit relied in this case. Pp. 5-9. - - - - - - - - - - [Syllabus at 3] (d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19-33. - - - - - - - - - - [9] The Court reversed all of the convictions, including those relating to the deprivation of the victims' right to bear arms. Cruikshank, 92 U. S., at 553, 559. The Court wrote that the right of bearing arms for a lawful purpose "is not a right granted by the Constitution" and is not "in any manner dependent upon that instrument for its exis­tence." Id., at 553. "The second amendment," the Court continued, "declares that it shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress." Ibid. "Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government." Heller, 554 U. S., at_, n. 23 (slip op., at 48, n. 23). - - - - - - - - - - [10] As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners' claims at the Court of Appeals level. Petitioners argue, however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the "privi­leges or immunities of citizens of the United States." In petitioners' view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15-21, but petitioners are unable to identify the Clause's full scope, Tr. of Oral Arg. 5-6, 8-11. Nor is there any consen­sus on that question among the scholars who agree that the Slaughter-House Cases' interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting). We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter­ House holding. At the same time, however, this Court's decisions in Cruikshank, Presser, and Miller do not preclude us from considering whether the Due Process Clause of the Fourteenth Amendment makes the Second Amendment right binding on the States. See Heller, 554 U. S., at_, n. 23 (slip op., at 48, n. 23). None of those cases "engage[d] in the sort of Fourteenth Amendment inquiry required by our later cases." Ibid. As explained more fully below, Cruikshank, Presser, and Miller all preceded the era in which the Court began the process of "selective incorpo­ration" under the Due Process Clause, and we have never previously addressed the question whether the right to keep and bear arms applies to the States under that theory. 11 Indeed, Cruikshank has not prevented us from holding that other rights that were at issue in that case are bind­ing on the States through the Due Process Clause. In Cruikshank, the Court held that the general "right of the people peaceably to assemble for lawful purposes," which is protected by the First Amendment, applied only against the Federal Government and not against the States. See 92 U. S., at 551-552. Nonetheless, over 60 years later the Court held that the right of peaceful assembly was a "fun­damental righ[t] . . . safeguarded by the due process clause of the Fourteenth Amendment." De Jonge v. Oregon, 299 U. S. 353, 364 (1937). We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause. - - - - - - - - - - [13] An alternative theory regarding the relationship be- 14 tween the Bill of Rights and §1 of the Fourteenth Amend­ment was championed by Justice Black. This theory held that §1 of the Fourteenth Amendment totally incorporated all of the provisions of the Bill of Rights. See, e.g., Adamson, supra, at 71-72 (Black, J., dissenting); Duncan, supra, at 166 (Black, J., concurring). As Justice Black noted, the chief congressional proponents of the Four­teenth Amendment espoused the view that the Amend­ment made the Bill of Rights applicable to the States and, in so doing, overruled this Court's decision in Barron. Adamson, 332 U. S., at 72 (dissenting opinion). None- 15 theless, the Court never has embraced Justice Black's "total incorporation" theory. While Justice Black's theory was never adopted, the Court eventually moved in that direction by initiating what has been called a process of "selective incorporation," i.e., the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments. See, e.g., Gideon v. Wainwright, 372 U. S. 335, 341 (1963); Malloy v. Hogan, 378 U. S. 1, 5-6 16 (1964); Pointer v. Texas, 380 U. S. 400, 403-404 (1965); Washington v. Texas, 388 U. S. 14, 18 (1967); Duncan, 391 U. S., at 147-148; Benton v. Maryland, 395 U. S. 784, 794 (1969). The decisions during this time abandoned three of the previously noted characteristics of the earlier period.11 The Court made it clear that the governing standard is not whether any "civilized system [can] be imagined that would not accord the particular protection." Duncan, 391 U. S., at 149, n. 14. Instead, the Court inquired whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice. Id., at 149, and n. 14; see also id., at 148 (referring to those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions" (empha­sis added; internal quotation marks omitted)). The Court also shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights. Only a handful of the Bill of Rights pro- 17 tections remain unincorporated. Finally, the Court abandoned "the notion that the Four­teenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights," stating that it would be "incongruous" to apply different standards "depending on whether the claim was asserted in a state or federal court." Malloy, 378 U. S., at 10-11 (internal quotation marks omitted). Instead, the Court decisively held that incorporated Bill of 18 Rights protections "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment." Id., at 10; see also Mapp v. Ohio, 367 U. S. 643, 655-656 (1961); Ker v. California, 374 U. S. 23, 33-34 (1963); Aguilar v. Texas, 378 U. S. 108, 110 (1964); Pointer, 380 U. S., at 406; Duncan, supra, at 149, 157-158; Benton, 395 U. S., at 794-795; Wallace v. Jaffree, 472 U. S. 38, 48-49 (1985). Employing this approach, the Court overruled earlier decisions in which it had held that particular Bill of Rights 19 guarantees or remedies did not apply to the States. See, e.g., Mapp, supra (overruling in part Wolf, 338 U. S. 25); Gideon, 372 U. S. 335 (overruling Betts, 316 U. S. 455); Malloy, supra (overruling Adamson, 332 U. S. 46, and Twining, 211 U. S. 78); Benton, supra, at 794 (overruling Palko, 302 U. S. 319). III With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U. S., at 149, or as we have said in a related context, whether this right is "deeply rooted in this Nation's his­tory and tradition," Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). A Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right. 554 U. S., at_(slip op., at 26); see also id., at_(slip op., at 56) (stating that the "inherent right of self-defense has been central to the Second Amendment right"). - - - - - - - - - - [31] In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. - - - - - - - - - - nolu chan  posted on  2018-05-16   15:52:31 ET  Reply   Untrace   Trace   Private Reply   #70. To: nolu chan (#68) Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. Correct. Those used by a militia. The Miller court was unsure whether a sawed-off, double-barrel shotgun was a militia weapon. misterwhite  posted on  2018-05-16   16:14:48 ET  Reply   Untrace   Trace   Private Reply   #75. To: misterwhite (#70) Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. [misterwhite #70] Correct. Those used by a militia. The Miller court was unsure whether a sawed-off, double-barrel shotgun was a militia weapon. The Court opined, 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. There was no brief or appearance for Miller. No evidence was provided except by the government. The court can only consider evidence that is before it. With no relevant evidence before the court whether a short barrel shotgun bore, "some reasonable relationship to the preservation or efficiency of a well regulated militia," the court could not "say that the Second Amendment guarantees the right to keep and bear such an instrument." You cite that as precedent for what? nolu chan  posted on  2018-05-18   18:23:26 ET  Reply   Untrace   Trace   Private Reply   #81. To: nolu chan (#75) You cite that as precedent for what? That the type of weapon protected by the second amendment was relevent to its usefulness to a militia. Useful? Protected. Not useful? Not protected. Meaning, the second amendment has nothing to do with protecting some handgun for self-defense in the home. It's a restriction on the federal government to leave the state militias (and their weapons) alone. Your right to self-defense with a firearm is protected by your state constitution. Always has been. The Heller court got it wrong. misterwhite  posted on  2018-05-18   19:31:13 ET  Reply   Untrace   Trace   Private Reply   #88. To: misterwhite (#81) You cite that as precedent for what? That the type of weapon protected by the second amendment was relevent to its usefulness to a militia. - - - - - - - - - - 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. Presser In the absence of evidence, the court could not say whether the a short barrel shotgun was a weapon in any part of the ordinary military equipment. What a precedent. In the absence of evidence, the court could not say. The District of Columbia argues that the prefatory clause declares the Amendment’s only purpose—to shield the state militias from federal encroachment—and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right. In other words, according to the District, the operative clause is not just limited by the prefatory clause, but instead both clauses share an explicitly civic character. The District claims that the Second Amendment “protects private possession of weapons only in connection with performance of civic duties as part of a well-regulated citizens militia organized for the security of a free state.” Individuals may be able to enforce the Second Amendment right, but only if the law in question “will impair their participation in common defense and law enforcement when called to serve in the militia.” But because the District reads “a well regulated Militia” to signify only the organized militias of the founding era—institutions that the District implicitly argues are no longer in existence today—invocation of the Second Amendment right is conditioned upon service in a defunct institution. Tellingly, we think, the District did not suggest what sort of law, if any, would violate the Second Amendment today—in fact, at oral argument, appellees’ counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District’s position to be that the Second Amendment is a dead letter. [...] We are told by the District that the Second Amendment was written in response to fears that the new federal government would disarm the state militias by preventing men from bearing arms while in actual militia service, or by preventing them from keeping arms at home in preparation for such service. Thus the Amendment should be understood to check federal power to regulate firearms only when federal legislation was directed at the abolition of state militias, because the Amendment’s exclusive concern was the preservation of those entities. At first blush, it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as “Congress shall make no law disarming the state militias” or “States have a right to a well-regulated militia.” [...] Both the collective and sophisticated collective theories assert that the Second Amendment was written for the exclusive purpose of preserving state militias, and both theories deny that individuals qua individuals can avail themselves of the Second Amendment today. The latter point is true either because, as the District appears to argue, the “Militia” is no longer in existence, or, as others argue, because the militia’s modern analogue, the National Guard, is fully equipped by the federal government, creating no need for individual ownership of firearms. It appears to us that for all its nuance, the sophisticated collective right model amounts to the old collective right theory giving a tip of the hat to the problematic (because ostensibly individual) text of the Second Amendment. [...] In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right—“the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”—indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights. The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all—e.g., “the states.” See Emerson, 270 F.3d at 227. These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions. Indeed, the Supreme Court has recently endorsed a uniform reading of “the people” across the Bill of Rights. [...] In sum, the phrase “the right of the people,” when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual. Parker v District of Columbia, 478 F3d 372 (DC Cir 2007), Affirmed U.S. Supreme Court, 554 U.S. 570 (2008) nolu chan  posted on  2018-05-18   20:06:21 ET  Reply   Untrace   Trace   Private Reply   #91. To: nolu chan (#88) In short, we take the District’s position to be that the Second Amendment is a dead letter. Well, does the Distict of Columbia have a militia? If not, then the second amendment doesn't apply. I wouldn't call it a dead letter. misterwhite  posted on  2018-05-18   20:27:35 ET  Reply   Untrace   Trace   Private Reply   #94. To: misterwhite (#91) Well, does the Distict of Columbia have a militia? If not, then the second amendment doesn't apply. The District of Columbia is not a state. It is a Federal district. There was no need for incorporation for the 2nd amendment to apply to the District of Columbia. The District indicated the 2nd Amendment was a dead letter. The court disagreed and found the District to be in violation of the 2nd Amendment. nolu chan  posted on  2018-05-18   23:22:42 ET  Reply   Untrace   Trace   Private Reply   #101. To: nolu chan (#94) The District of Columbia is not a state. It is a Federal district. There was no need for incorporation for the 2nd amendment to apply to the District of Columbia. Which is the main problem with the Heller decision. Had, say, Ohio banned handguns in the home for self-defense, the ruling would have been different because the court would have referred to Ohio's state constitution. So the Heller court felt compelled to twist and distort the second amendment to make it applicable to DC residents. Which it is not. misterwhite  posted on  2018-05-19   9:14:59 ET  Reply   Untrace   Trace   Private Reply   #108. To: misterwhite (#101) The District of Columbia is not a state. It is a Federal district. There was no need for incorporation for the 2nd amendment to apply to the District of Columbia. Which is the main problem with the Heller decision. Had, say, Ohio banned handguns in the home for self-defense, the ruling would have been different because the court would have referred to Ohio's state constitution. So the Heller court felt compelled to twist and distort the second amendment to make it applicable to DC residents. Which it is not. Once again, you do not know what the hell you are talking about and just blather. Heller only applied to the District of Columbia, not to the States. McDonald took up the issue regarding thd States and decided that the 2nd Amendment had been incorporated into the 14th Amendment and was fully applicable to all the States. Heller did not have to twist or distort anything to make it applicable to the District. It is a Federal district, under the control of the U.S. Congress. Congress has the power "to to exercise exclusive Legislation in all Cases whatsoever, over such District...." Art. 1, Sec. 8, Cl. 17. The 2nd Amendment automatically applied to the Federal district. nolu chan  posted on  2018-05-22   1:03:19 ET  Reply   Untrace   Trace   Private Reply   #115. To: nolu chan (#108) Heller only applied to the District of Columbia, not to the States. And that's where it should have stayed. "Heller did not have to twist or distort anything to make it applicable to the District." Sure it did. It applied the second amendment protection of a militia to an individual ... because D.C. residents weren't protected by their own constitution. misterwhite  posted on  2018-05-22   10:39:24 ET  Reply   Untrace   Trace   Private Reply   #120. To: misterwhite (#115) Heller only applied to the District of Columbia, not to the States. And that's where it should have stayed. It didn't. McDonald v City of Chicago, "Heller did not have to twist or distort anything to make it applicable to the District." Sure it did. It applied the second amendment protection of a militia to an individual ... because D.C. residents weren't protected by their own constitution. You are out of your damn mind if you think the Federal Constitution did not apply directly to the Federal District of Columbia. You are equally out of your mind if you think the Federal District of Columbia is a sovereign state. D.C. has no sovereignty to exercise. nolu chan  posted on  2018-05-22   17:06:52 ET  Reply   Untrace   Trace   Private Reply   #123. To: nolu chan (#120) "You are out of your damn mind if you think the Federal Constitution did not apply directly to the Federal District of Columbia." Federal Constitution? Whatever. I'm not referring to the U.S. Constitution. I'm referring to the second amendment which protects state militias. D.C. is not a state. It has no state militia. So the U.S. Supreme Court twisted the second amendment saying it protected an individual right, and therefore Mr. Heller's right to keep a handgun in the home for self-defense was preserved. Look. Let's say you're right -- the second amendment protects an individual right to keep and bear arms which are in common civilian use. What protects state militias and/or the National Guard? What's to prevent the Federal government from disbanding the National Guard and organizing a standing Federal military? misterwhite  posted on  2018-05-22   17:24:01 ET  Reply   Untrace   Trace   Private Reply   #125. To: misterwhite (#123) I'm not referring to the U.S. Constitution. I'm referring to the second amendment which protects state militias. D.C. is not a state. It has no state militia. Your continued militia argument is just horseshit. I have patiently explained to you that the 2nd amendment right is an individual right, it has been incorporated into the 14th Amendment, and it applies to the District of Columbia (Heller) and to the States (McDonald). That you do not personally approve of SCOTUS in Heller and McDonald changes nothing. nolu chan  posted on  2018-05-23   0:42:22 ET  Reply   Untrace   Trace   Private Reply   #128. To: nolu chan (#125) Second request. If you're right, then what protects state militias and/or the National Guard from federal infringement? What's to prevent the Federal government from disbanding the National Guard and organizing a standing Federal military? misterwhite  posted on  2018-05-23   9:18:01 ET  Reply   Untrace   Trace   Private Reply   #132. To: misterwhite (#128) Second request. If you're right, then what protects state militias and/or the National Guard from federal infringement? What's to prevent the Federal government from disbanding the National Guard and organizing a standing Federal military? A second response. The 2nd Amendment protects the individual right to keep and bear arms. It has been incorporated into the 14th Amendment and applies to all the states. The First Request and Response is repeated below at the end of this post. The actual dingbat request was, [nolu chan #97] "Where did you find the constitutional right of a State to form and maintain a militia?" [misterwhite #104] I would think you would know, being an expert in common law. The authority comes from posse comitatus and pre-dates the U.S. Constitution. The second amendment says the Federal Government can't infringe on this common law. You hilariously asserted that 2nd Amendment forbids Federal infringement on something or other in the common law regarding posse comitatus. If that is what the 2nd Amendment says, quote that part of the 2nd amendment. The nonsense at your #104 was answered at my #111. https://law.justia.com/codes/us/2016/title-32/chapter-1/ United States Code, 2012 Edition, Supplement 4, Title 32 - NATIONAL GUARD Sec. 101 - Definitions Sec. 102 - General policy Sec. 103 - Branches and organizations Sec. 104 - Units: location; organization; command Sec. 105 - Inspection Sec. 106 - Annual appropriations Sec. 107 - Availability of appropriations Sec. 108 - Forfeiture of Federal benefits Sec. 109 - Maintenance of other troops Sec. 110 - Regulations Sec. 111 - Suspension of certain provisions of this title Sec. 112 - Drug interdiction and counter-drug activities Sec. 113 - Federal financial assistance for support of additional duties assigned to the Army National Guard Sec. 114 - Funeral honors functions at funerals for veterans Sec. 115 - Funeral honors duty performed as a Federal function https://www.scribd.com/document/380029027/32-Stat-775-1903-the-Dick-Act-The-Militia-Act-of-1903 - - - - - - - - - - - - - - - - - - - - [nolu chan #97] "Where did you find the constitutional right of a State to form and maintain a militia?" [misterwhite #104] I would think you would know, being an expert in common law. The authority comes from posse comitatus and pre-dates the U.S. Constitution. The second amendment says the Federal Government can't infringe on this common law. The nonsense at your #104 was answered at my #111. You're blowing it out of your ass. https://www.law.cornell.edu/constitution/articlei#section8 Article 1, Section 8: The Congress shall have power ... To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; For your cited State Defense Forces, which may be comprised of fat 65-year old men with no military experience, they are authorized by Federal statute. https://law.justia.com/codes/us/2016/title-32/chapter-1/sec.-109/ [nolu chan #97] "Where did you find the constitutional right of a State to form and maintain a militia?" [misterwhite #104] I would think you would know, being an expert in common law. The authority comes from posse comitatus and pre-dates the U.S. Constitution. The second amendment says the Federal Government can't infringe on this common law. [nolu chan #111] You're blowing it out of your ass. https://www.law.cornell.edu/constitution/articlei#section8 Article 1, Section 8: The Congress shall have power ... To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; For your cited State Defense Forces, which may be comprised of fat 65-year old men with no military experience, they are authorized by Federal statute. https://law.justia.com/codes/us/2016/title-32/chapter-1/sec.-109/ 2016 US Code Title 32 - National Guard Chapter 1 - Organization Sec. 109 - Maintenance of other troops 32 U.S.C. § 109 (2016) (a) In time of peace, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may maintain no troops other than those of its National Guard and defense forces authorized by subsection (c). (b) Nothing in this title limits the right of a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands to use its National Guard or its defense forces authorized by subsection (c) within its borders in time of peace, or prevents it from organizing and maintaining police or constabulary. (c) In addition to its National Guard, if any, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces. (d) A member of a defense force established under subsection (c) is not, because of that membership, exempt from service in the armed forces, nor is he entitled to pay, allowances, subsistence, transportation, or medical care or treatment, from funds of the United States. (e) A person may not become a member of a defense force established under subsection (c) if he is a member of a reserve component of the armed forces. Source Credit (Aug. 10, 1956, ch. 1041, 70A Stat. 600; Pub. L. 85–861, §2(2), Sept. 2, 1958, 72 Stat. 1542; Pub. L. 100–456, div. A, title XII, §1234(b)(1), Sept. 29, 1988, 102 Stat. 2059; Pub. L. 109–163, div. A, title X, §1057(b)(3), Jan. 6, 2006, 119 Stat. 3441; Pub. L. 111–383, div. A, title X, §1075(h)(4)(B), Jan. 7, 2011, 124 Stat. 4377.) The Second Amendment says The Federal Government shall not infringe a RIGHT OF THE PEOPLE. By incorporation into the 14th Amendment, the restriction applies equally to the several States. Common law. As distinguished from statutory law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England. In general, it is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments. The "common law" is all the statutory and case law background of England and the American colonies before the American revolution. Black's Law Dictionary 6th Ed. Take your childish argument to your nearest pre-revolutionary colonial court. There have never been common law courts in the United States. nolu chan  posted on  2018-05-24   0:43:30 ET  Reply   Untrace   Trace   Private Reply   #138. To: nolu chan (#132) The Second Amendment says The Federal Government shall not infringe a RIGHT OF THE PEOPLE. Did they give a reason? I mean, they didn't need to give a reason. But wait. Yes they did. It's written there in the same amendment. They said that a well regulated Militia was necessary to the security of a free State. Couldn't be any clearer. But the Heller court, defying the precedent of Cruikshank, Presser AND Miller, totally ignored the Militia part and decided for the very first time in 200+ years that the second amendment really protected an individual right to keep a handgun in the home for self-defense. Only the Heller court was smart enough to see that. misterwhite  posted on  2018-05-24   9:37:59 ET  Reply   Untrace   Trace   Private Reply   #147. To: misterwhite (#138) The Second Amendment says The Federal Government shall not infringe a RIGHT OF THE PEOPLE. Did they give a reason? I mean, they didn't need to give a reason. But wait. Yes they did. It's written there in the same amendment. They said that a well regulated Militia was necessary to the security of a free State. Couldn't be any clearer. Yes they gave a reason. The 2nd Amendment says "the right of the people, to keep and bear arms, shall not be infringed." But the Heller court, defying the precedent of Cruikshank, Presser AND Miller, totally ignored the Militia part and decided for the very first time in 200+ years that the second amendment really protected an individual right to keep a handgun in the home for self-defense. Nonsense, directly refuted by the content of Heller. WHAT precedent do you claim was defied by the Heller court? Heller, 554 U.S. 619-20, concerning Cruickshank: We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment. United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right “is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment... means no more than that it shall not be infringed by Congress.” Id., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob’s attack, see C. Lane, The Day Freedom Died 62 (2008). Heller, 554 U.S. 620, concerning Presser: Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.” Id., at 264–265. This does not refute the individual-rights interpretation of the Amendment; no one supporting that interpretation has contended that States may not ban such groups. Heller, 554 U.S. 622, concerning Miller: This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Heller, 554 U.S. 623, concerning Miller: Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. Heller, 554 U.S. 625, concerning Miller: We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra. We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. The issue of whether the 2nd Amendment applied to the states was not at issue in Heller. Heller arose from a Federal district, not a state. nolu chan  posted on  2018-05-25   0:04:53 ET  Reply   Untrace   Trace   Private Reply   #155. To: nolu chan (#147) You keep referring to the Heller case as if it was the only case ever brought before the Supreme Court of the U.S. I suggest you get a hold of a reader entitled, That Every Man Be Armed written by this guy stephenhalbrook.com/everyman.html In it, he delves into the sole purpose of it being a necessity for every citizen, whether regulated or not, to keep and bear arms, whether they be long or short-barreled, for the purpose of protecting themselves from enemy invasions and rogue governments. goldilucky  posted on  2018-05-25   15:26:32 ET  Reply   Untrace   Trace   Private Reply   #156. To: goldilucky (#155) "he delves into the sole purpose of it being a necessity for every citizen, whether regulated or not, to keep and bear arms, whether they be long or short-barreled, for the purpose of protecting themselves from enemy invasions and rogue governments." I agree with that. I'm sure most do. I believe it is every citizen's right and duty to keep and bear arms. But what makes you think the second amendment protects that right? That's what the debate is all about. misterwhite  posted on  2018-05-25   17:27:16 ET  Reply   Untrace   Trace   Private Reply   #158. To: misterwhite (#156) (Edited) There is no debate about the rights of the people of the United States of America. The only question that is really at issue is who are the people that this right protects. The original framers of our Constitution made that clear who those people they were referring to (the general john q. public}. They did not trust a federalized army after what they endured in fighting the British Redcoats that burned down our White House. goldilucky  posted on  2018-05-25   22:52:05 ET  Reply   Untrace   Trace   Private Reply   #159. To: goldilucky (#158) (Edited) The original framers of our Constitution made that clear who those people they were referring to (the general john q public.}. Article 1, Section 2, Clause 1 of the United States Constitution reads: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." When this was ratified in 1788, who were "the people" referenced in the above? Everyone? Every citizen? Women? Children? Non-land owners? Slaves? Illegals? Visitors? You say "the general john q public" so I assume you mean everyone walking around. All of them were "the people" and could vote in 1788? Here's an uncomfortable fact for you. In 1788, "the people" were the rich, white guys who had something to lose. No one else -- not women, not children, not slaves, not non-citizens ... no one. In 1788, only "the people" had full rights as citizens. Their right to vote, run for office, own land, and keep and bear arms as part of a militia were protected. Their right to peaceably assemble, petition the government, and be secure against unreasonable searches were protected. No one else. Granted, over the years that's changed. But in 1788, that's who "the people" were. The U.S. Constitution needs to be interpreted with that in mind. misterwhite  posted on  2018-05-26   9:43:29 ET  Reply   Untrace   Trace   Private Reply   #172. To: misterwhite, goldilucky (#159) Here's an uncomfortable fact for you. In 1788, "the people" were the rich, white guys who had something to lose. No one else -- not women, not children, not slaves, not non-citizens ... no one. In 1788, only "the people" had full rights as citizens. Their right to vote, run for office, own land, and keep and bear arms as part of a militia were protected. Their right to peaceably assemble, petition the government, and be secure against unreasonable searches were protected. No one else. Granted, over the years that's changed. But in 1788, that's who "the people" were. The U.S. Constitution needs to be interpreted with that in mind. "The people" and "citizens" were synonymous terms. Your screed is nonsense. Women and children were citizens. Voting was not a right of citizenship. Slaves had no municipal rights or status and were neither citizens nor aliens. Well before women had a right to vote, they had the right to run for office, and multiple times ran for President of the United States, appeared on the ballot, and won votes. In 1879, a woman attorney was admitted to practice before the U.S. Supreme Court. Minor v. Happersett, 88 U.S. 162 (1875) If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the constitution and laws of Missouri confining it to men are in violation of the Constitution of the United States, as amended, and consequently void. The direct question is, therefore, presented whether all citizens are necessarily voters. The Constitution does not define the privileges and immunities of citizens. For that definition we must look elsewhere. In this case we need not determine what they are, but only whether suffrage is necessarily one of them. There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are expressly declared to be "citizens of the United States and of the State wherein they reside." But, in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance. [...] As early as 1804 it was enacted by Congress that when any alien who had declared his intention to become a citizen in the manner provided by law died before he was actually naturalized, his widow and children should be considered as citizens of the United States, and entitled to all rights and privileges as such upon taking the necessary oath; and in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws, married, or who should be married to a citizen of the United States, should be deemed and taken to be a citizen. [...] From this it is apparent that from the commencement of the legislation upon this subject alien women and alien minors could be made citizens by naturalization, and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizens by birth. [...] It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be assumed. [...] Being unanimously of the opinion that the Constitution of the United States does not confer the right of sufrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we AFFIRM THE JUDGMENT. nolu chan  posted on  2018-05-29   16:50:44 ET  Reply   Untrace   Trace   Private Reply   #174. To: nolu chan (#172) "The people" and "citizens" were synonymous terms. "The people" were citizens, but not all citizens were "the people". If what you say is true, then all citizens could vote -- which was not the case back then. As you proved with your court case. Women citizens and children citizens and non-land- owning citizens (in some states) could not vote. Now, maybe there were some exceptions in some states, but they were few and far between. The rich white guys were "the people" and had the power and the full constitutional protections. And who served in the militias? misterwhite  posted on  2018-05-29   17:18:16 ET  Reply   Untrace   Trace   Private Reply   #176. To: misterwhite (#174) If what you say is true, then all citizens could vote -- which was not the case back then. This is just dumb obstinancy. Minor v. Happersett clearly held that suffrage was not a right conferred by citizenship. That one could vote did not mean one was a citizen, and that one could not vote did not signify a lack of citizenship. Notice that about half the able-bodied men in the state of Wisconsin in 1862 were foreigners, had not been naturalized, and yet they enjoyed the right to vote under the state constitution. At that time, there was no federal equirement that one needed to be a citizen to vote in elections for federal office. Male aliens could vote; women citizens born in the United States could not. Voting rights are conferred by law, not citizenship. https://babel.hathitrust.org/cgi/pt?id=coo.31924079575241;view=1up;seq=381 OFFICIAL RECORDS: Series 3, vol 2, Part 1 (Union Letters, Orders, Reports) Page 369 UNION AUTHORITIES. MADISON, WIS., August 12, 1862. Honorable E. M. STANTON: About one-half of the able-bodied men between eighteen and forty- five years in this State are foreign born. They have declared their intention to become citizens of the United States. Have the right to vote under our State constitution if twenty-one years old. Have enjoyed and are enjoying all the privileges of citizens. Are they liable to be drafted? They should be liable. Great injustice will be done to our State if they are exempt, and our quota would be too large if they are exempt. Cannot those who are not willing to subject themselves to draft be ordered to leave the country? Answer this immediately. I must have the time for volunteering extended, as asked for by my dispatches of Saturday and yesterday. Please answer them. E. SALOMON, Governor of Wisconsin. - - - - - WAR DEPARTMENT, Washington City, D. C., August 12, 1862. Governor SALOMON, Madison, Wis.: Foreigners who have voted at our elections are regarded as having exercised a franchise that subjects them to military duty. Declaration of intention to become naturalized is not of itself sufficient to prevent their taking advantage of their alienage, but a man who votes must bear arms. Your telegram respecting extension of time for volunteering cannot be answered until tomorrow, some information from different States being required. EDWIN M. STANTON, Secretary of War. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - As you proved with your court case. Women citizens and children citizens and non-land- owning citizens (in some states) could not vote. As proved by Minor v. Happersett, after the 14th Amendment, 1. The word "citizen" is often used to convey the idea of membership in a nation. 2. In that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment to the Constitution as since. 3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had. 4. At the time of the adoption of that amendment, suffrage was not coextensive with the citizenship of the States; nor was it at the time of the adoption of the Constitution. 5. Neither the Constitution nor the fourteenth amendment made all citizens voters. 6. A provision in a State constitution which confines the right of voting to "male citizens of the United States," is no violation of the Federal Constitution. In such a State women have no right to vote. Syllabus at 88 U.S. 162. In 1875, after the 14th Amendment, Virginia Minor was held to be a natural born citizen who did not have a right to vote because her state law said so. Suffrage was held to not be a privilege of citizenship. Your continued attempt to conflate voting rights with citizenship remains misplaced. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Now, maybe there were some exceptions in some states, but they were few and far between. The rich white guys were "the people" and had the power and the full constitutional protections. According to the law, as expounded by the U.S. Supreme Court, voting is not a right conferred by citizenship. And, "women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States." Your personal misinterpretation of the law is irrelevant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - And who served in the militias? Who were members of that militia has varied according to which Militia Act was effective. Generally, it was the able-bodied male population between 18-45 years of age. Originally, it was exclusively white male citizens. The age range is now 17-45, and some females are included, and non-citizens are included. Those who served in the militia comprise that subset of the members of the militia who were in the militia while called to service. Those who served may include persons who were ineligible due to sex, age, race, or alienage. nolu chan  posted on  2018-05-31   19:30:08 ET  Reply   Untrace   Trace   Private Reply   #179. To: nolu chan (#176) half the able-bodied men in the state of Wisconsin in 1862 were foreigners, That was 1862. Minor v. Happersett was an 1874 ruling. I'm talking about 1791 when the Bill of Rights was ratified. Who were "the people" (in Article I, S I, Section 2) who were allowed to vote? Rich, white, land-owning adult males. So then, who were "the people" in the second amendment at that time? Rich, white, land-owning adult males. Who were the militia? Rich, white, adult males. Only their RKBA was protected because they were the militia. misterwhite  posted on  2018-06-01   10:24:38 ET  Reply   Untrace   Trace   Private Reply   #181. To: misterwhite (#179) half the able-bodied men in the state of Wisconsin in 1862 were foreigners, [had not been naturalized, and yet they enjoyed the right to vote under the state constitution. At that time, there was no federal requirement that one needed to be a citizen to vote in elections for federal office.] That was 1862. Minor v. Happersett was an 1874 ruling. That sure is an irrelevant observation with no point whatever. Half the able bodied men were aliens who had the right to vote. That is absolute proof that having the right to vote was not a mark of citizenship Women were citizens who did not have the right to vote. And Minor v. Happersett made the issue clear: It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be assumed. [...] Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we AFFIRM THE JUDGMENT. That is the way it was from the beginning of the constitutional republic. There is no constitutional right to vote. To this day, the individual citizen has no federal constitutional right to vote for electors for the President of the United States. I'm talking about 1791 when the Bill of Rights was ratified. Who were "the people" (in Article I, S I, Section 2) who were allowed to vote? Rich, white, land-owning adult males. The people were the men and women who were citizens. For constitutional purposes, the definition of the people has not changed since 1789. Voting rights did not have shit to do with defining who were the people. So then, who were "the people" in the second amendment at that time? Rich, white, land-owning adult males. The people were men and women who were citizens. For constitutional purposes, the definition of the people has not changed since 1789. Who were the militia? Rich, white, adult males. Only their RKBA was protected because they were the militia. RKBA was and is an INDIVIDUAL right. It has never made a shit if one was in the militia or not. If your premise were true, RKBA did not apply to anyone over 45. For constitutional purposes, the definition of the people has not changed since 1789. The militia originally included ALL the poor, dumb white men between 18 and 45. If the militia only included rich, white, adult males, we would still be British. As ever, the vast majority were poor, not rich. You would have had a small militia indeed. The country did not have enough rich, white, adult males to fill an army. Keep repeating something really, really dumb, and it just stays dumb. nolu chan  posted on  2018-06-02   2:25:10 ET  Reply   Untrace   Trace   Private Reply   #184. To: nolu chan (#181) (Edited) If your premise were true, RKBA did not apply to anyone over 45. The second amendment protected the right of the states to form and maintain a militia consisting of armed militiamen. Taking away their arms would be an infringement and, therefore, unconstitutional. According to the Militia Act of 1792, white male citizens between the ages of 18 and 45 were conscripted into a local militia company. Those over the age of 45 were not excluded -- meaning, if they volunteered for the militia, their RKBA was protected by the second amendment. For those not in the militia, their RKBA was protected by their state constitution. misterwhite  posted on  2018-06-02   11:56:36 ET  Reply   Untrace   Trace   Private Reply   #188. To: misterwhite (#184) The second amendment protected the right of the states to form and maintain a militia consisting of armed militiamen. The Second Amendment protected the INDIVIDUAL right to keep and bear arms, not the right of states to form and maintain a militia. The Federal Congress was empowered to "call forth the militia" and "to provide for organizing, arming, and disciplining, the Militia...." McDonald at 561 U.S. 780: Fifth, the 39th Congress’ response to proposals to disband and disarm the Southern militias is instructive. Despite recognizing and deploring the abuses of these militias, the 39th Congress balked at a proposal to disarm them. See 39th Cong. Globe 914; Halbrook, Freedmen 20–21. Disarmament, it was argued, would violate the members’ right to bear arms, and it was ultimately decided to disband the militias but not to disarm their members. See Act of Mar. 2, 1867, § 6, 14 Stat. 487; Halbrook, Freedmen 68–69; Cramer 858–861. It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner. IV Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause. Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. The members of the militia enjoyed an individual right to keep and bear arms, and the militia did not have a right to exist, and was disbanded. SCOTUS rejected your argument to return to a bygone era. According to the Militia Act of 1792, white male citizens between the ages of 18 and 45 were conscripted into a local militia company. The Militia Act of 1792 did not conscript anyone. (Neither does registration under the Selective Service Act.) It defined who was included in the UNORGANIZED militia. Current law states, 10 U.S.C. § 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, 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." It still defines who are included in the UNORGANIZED militia and conscripts nobody. And the individual right to keep and bear arms, protected by the Second Amendment, does not expire at age 45, a fact you seem utterly incapable of confronting. nolu chan  posted on  2018-06-04   1:39:30 ET  Reply   Untrace   Trace   Private Reply   #195. To: nolu chan (#188) And the individual right to keep and bear arms, protected by the Second Amendment, does not expire at age 45, a fact you seem utterly incapable of confronting. The second amendment protect the arms of militia members, no matter their age. misterwhite  posted on  2018-06-04   11:54:46 ET  Reply   Untrace   Trace   Private Reply   #199. To: misterwhite (#195) The second amendment protect the arms of militia members, no matter their age. The Second Amendment protects the INDIVIDUAL right to keep and bear arms OF ALL AMERICANS. As the Second Amendment protects the INDIVIDUAL right to keep and bear arms OF ALL AMERICANS, it it would protect the right of militia members, if there were any, to keep and bear arms. It would equally protect te INDIVIDUAL right to keep and bear arms of non-members of any militia. Whether the individual is, or is not, a member of a militia is irrelevant to the individual's right to keep and bear arms. Militia members, no matter what their age, are between 17 and 45 years old, mandated by Federal statute. The INDIVIDUAL right to keep and bear arms does not end at 45 because it has nothing to do with being a member of a militia. By Federal law, membership in the militia ends at 45. Heller, at 554 U.S. 580-81 What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990): “‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people." We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans. nolu chan  posted on  2018-06-04   12:34:02 ET  Reply   Untrace   Trace   Private Reply   #202. To: nolu chan (#199) Whether the individual is, or is not, a member of a militia is irrelevant to the individual's right to keep and bear arms. It makes a HUGE difference as to the types of arms protected. If we accept that the second amendment only protects those arms that are commonly used by individuals for self-defense in the home, that's going to eliminate protections for a lot of weapons. If the second amendment protects the arms used by a State Militia, however ... misterwhite  posted on  2018-06-04   12:49:18 ET  Reply   Untrace   Trace   Private Reply   #207. To: misterwhite (#202) Whether the individual is, or is not, a member of a militia is irrelevant to the individual's right to keep and bear arms. It makes a HUGE difference as to the types of arms protected. The second Amendment offers an individual right to keep and bear arms. The right is the same in or out of the militia. As no RKBA right is gained by being in the militia, no RKBA right is lost when the individual turns 45 years old and leaves the militia. His individual right is unaffected by passing the maximum age for the miltia. There is no huge difference as to the types of arms protected it the individual leaves the militia. There is no difference at all. Gramps has the same RKBA rights at 46 as he had at 45. nolu chan  posted on  2018-06-05   12:50:43 ET  Reply   Untrace   Trace   Private Reply   #211. To: nolu chan (#207) There is no huge difference as to the types of arms protected it the individual leaves the militia. There is no difference at all. So "in common use at the time" means nothing? misterwhite  posted on  2018-06-05   13:13:58 ET  Reply   Untrace   Trace   Private Reply   #213. To: misterwhite (#211) There is no huge difference as to the types of arms protected it the individual leaves the militia. There is no difference at all. So "in common use at the time" means nothing? It means nothing at all regarding the INDIVIDUAL right to keep and bear arms, and membership or non-membership in the militia. Gramps at 46, ineligible to be a member of the militia, has the same, precise right to the same precise weapons as he had at 45 when he was a member of the militia. nolu chan  posted on  2018-06-06   16:20:00 ET  Reply   Untrace   Trace   Private Reply   #215. To: nolu chan (#213) Gramps at 46, ineligible to be a member of the militia, has the same, precise right to the same precise weapons as he had at 45 when he was a member of the militia. That's not what the Heller court said. Mr. Heller can't have a military weapon. What made you think he did? Prior to Heller you could make that case. misterwhite  posted on  2018-06-06   17:16:19 ET  Reply   Untrace   Trace   Private Reply   #218. To: misterwhite (#215) Gramps at 46, ineligible to be a member of the militia, has the same, precise right to the same precise weapons as he had at 45 when he was a member of the militia. That's not what the Heller court said. Identify a weapon that a member of the militia has a right to possess under the Second Amendment individual right to keep and bear arms, that he does not have the right, at age 46, to possess under the Second Amendment individual right to keep and bear arms. You will have to read Heller for the first time before lecturing about what is in it. Mr. Heller can't have a military weapon. What made you think he did? My comment you quote made no reference to Mr. Heller or what weapon he had, or might have had. You confuse the military and the militia. The members of the military get to bear all nature of arms. It has nothing to do with their 2nd Amendment individual right to keep and bear arms. When did you stop beating your dog? nolu chan  posted on  2018-06-07   16:32:23 ET  Reply   Untrace   Trace   Private Reply   #221. To: nolu chan (#218) Identify a weapon that a member of the militia has a right to possess under the Second Amendment individual right to keep and bear arms, that he does not have the right, at age 46, to possess under the Second Amendment individual right to keep and bear arms. A brand-new machine gun, for starters. Or a brand-new full-auto battle rifle. You know, like the ones federalized troops will have when they come-a-knockin'? You gonna use your court-approved self-defense handgun to keep them at bay? misterwhite  posted on  2018-06-07   18:30:37 ET  Reply   Untrace   Trace   Private Reply   #225. To: misterwhite (#221) Identify a weapon that a member of the militia has a right to possess under the Second Amendment individual right to keep and bear arms, that he does not have the right, at age 46, to possess under the Second Amendment individual right to keep and bear arms. A brand-new machine gun, for starters. Or a brand-new full-auto battle rifle. You know, like the ones federalized troops will have when they come-a-knockin'? You gonna use your court-approved self-defense handgun to keep them at bay? Federalized troops are NOT the militia cited in the 2nd Amendment. The are the ORGANIZED militia, as opposed to the UNORGANIZED militia. Heller at 624. We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra. Under what imaginary theory of imaginary law does a member of the militia have a 2nd Amendment right to keep and bear a brand new machine gun? Who may lawfully manufacture a brand new machine gun? Who sells brand new machine guns? 18 USC § 921 et seq. (23) The term "machinegun" has the meaning given such term in section 5845(b) of the National Firearms Act (26 U.S.C. 5845(b)). 26 U.S.C. § 5845(b) (b) Machinegun The term "machinegun" means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. National Firearms Act Handbook (ATF) 1.1.3 Firearm Owners’ Protection Act. In 1986, this Act amended the NFA definition of “silencer” by adding combinations of parts for silencers and any part intended for use in the assembly or fabrication of a silencer.6 The Act also amended the GCA to prohibit the transfer or possession of machineguns.7 Exceptions were made for transfers of machineguns to, or possession of machineguns by, government agencies, and those lawfully possessed before the effective date of the prohibition, May 19, 1986. 6 Firearm Owners’ Protection Act, Public Law 99-308, approved May 19, 1986. 7 18 U.S.C. 922(o) https://law.justia.com/codes/us/2016/title-18/part-i/chapter-44/sec.-922/ 18 U.S.C. § 922(o) (o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun. (2) This subsection does not apply with respect to— (A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect. The above text was the result of Public Law 99-308 of May 19, 1986, 100 Stat. 453, under section 102(9). The effective date was May 19, 1986. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by section 102(1)–(8) of Pub. L. 99–308 effective 180 days after May 19, 1986, and amendment by section 102(9) of Pub. L. 99–308 effective May 19, 1986, see section 110(a), (c) of Pub. L. 99–308, set out as a note under section 921 of this title. Other than the "transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof," the only possible lawful transfer or possession of a machinegun is, "any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect," i.e., May 19, 1986. Note that the militia is not the military, and the UNORGANIZED militia of the 2nd Amendment are just ordinary people going about their business in civilian life. http://law.justia.com/codes/us/2012/title-10/subtitle-a/part-i/chapter-13/section-311/ THE MILITIA - 10 U.S.C. § 311 (2012) §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. As the only lawful possession of a machinegun pertains to a machinegun that was possessed before May 19, 1986, please explain your ridiculous claim that the 2nd Amendment right to keep and bear arms provides a member of the militia the right to possess a brand new machinegun. As "the traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense," whatever makes you think that a machinegun is in common use for lawful purposes like self-defense? nolu chan  posted on  2018-06-07   19:51:47 ET  Reply   Untrace   Trace   Private Reply   #231. To: nolu chan (#225) As "the traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense," whatever makes you think that a machinegun is in common use for lawful purposes like self-defense? Well, that's the Catch-22. The National Firearms Act of 1934 banned the private ownership of the Thompson submachine gun, a weapon used by the military in WWII. So how can it ever be "in common use" by civilians if it's banned? It was "in common use" by the military. So it should be protected under the second amendment. misterwhite  posted on  2018-06-08   11:25:02 ET  Reply   Untrace   Trace   Private Reply   #236. To: misterwhite (#231) It was "in common use" by the military. So it should be protected under the second amendment. A machinegun cannot be in common use by the people. This would only present a problem for your delusional interpretation of the 2nd Amendment. This is not a problem for the actual 2nd Amendment which applies to weapons in common use by the people in their civilian life for purposes such as hunting and self-defense which can also serve a use in the militia. It is what civilians show up with when called upon to serve. You can repeat your horseshit all you want and it will still be in direct conflict with the prevailing SCOTUS opinion. whatever makes you think that a machinegun is in common use for lawful purposes like self-defense? Whatever makes you think you emit rainbows from your arse for purposes like self-defense? nolu chan  posted on  2018-06-08   22:09:18 ET  Reply   Untrace   Trace   Private Reply   #244. To: nolu chan (#236) "A machinegun cannot be in common use by the people.' Of course not. As I already told you, it's banned. How can it be in common use by the people when you can't buy a new one? If a full-auto AR-15 was legal, you can bet your ass there'd be 2 million buyers by next week and it would be more "in common use" than a microwave oven. "This would only present a problem for your delusional interpretation of the 2nd Amendment." It would present a problem for your misquided interpretation. Under my interpretation (the correct one) a machine gun is protected by the second amendment for state militia members. The state decides if he takes the machine gun home or stores it in an armory. For those not in the state militia, their State Constitution spells out their personal RKBA. See how simple this is? See how this keeps with the concept of federalism? You want a one-size-fits-all federal mandate on guns. I don't. misterwhite  posted on  2018-06-09   9:11:18 ET  Reply   Untrace   Trace   Private Reply   #281. To: misterwhite (#244) MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 4 [misterwhite #244] Under my interpretation (the correct one) a machine gun is protected by the second amendment for state militia members. The state decides if he takes the machine gun home or stores it in an armory. For those not in the state militia, their State Constitution spells out their personal RKBA. The 2nd Amendment protects the individual right of the people to keep and bear arms. It protects the right of civilians to keep and bear arms. It is not to protect the right of the active duty organized militia to carry machineguns while on duty. As unlicensed possession of a machinegun is a federal crime, no state law can authorized possession of such a weapon by an off-duty member of the militia at home. An off duty military member caught running around in the woods with his M-16 would be court-martialed by the military, and may be prosecuted by the civilian authorities. Federal law is supreme and prohibits a state from authorizing machinegun possession at home of military weapons. Weapons provided to the National Guard are provided by the Federal government. Members of the State National Guard are also enlisted or commissioned in the United States National Guard. From United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008), quoted in full below. The final jury instructions included, at the government's request, the following instruction: A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record. And, The Supreme Court's recent decision in District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), holding that the Second Amendment protects a limited individual right to possess a firearm — unconnected with service in a militia — does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., 128 S.Ct. at 2802. Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison. Keith Gilbert was sentenced to eight years in prison. The court did not permit him to testify as to his bullshit about the Second Amendment. Pleading bullshit in court is not allowed. In court, you cannot argue your personal belief of what the law is. The court determines what the law is and so instructs the jury. https://casetext.com/case/us-v-gilbert-35 United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008) U.S. v. GILBERT United States Court of Appeals, Ninth Circuit, Jul 14, 2008, 286 Fed. Appx. 383 (9th Cir. 2008) MEMORANDUM This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. - - - - - - - - - - Keith Gilbert appeals his jury conviction on one count of conspiracy to manufacture unregistered firearms in violation of 18 U.S.C. § 371, one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), seven counts of possession of a machinegun in violation of 18 U.S.C. § 922(o), and two counts of possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). Gilbert challenges the refusal of a requested jury instruction, the propriety of a given jury instruction, and the court's exclusion of testimony regarding his beliefs about the Second Amendment. We have jurisdiction under 28 U.S.C. § 1291. We affirm. Gilbert's criminal history includes felony convictions which prevent him from possessing firearms, including two separate 1966 convictions, one for receiving stolen property and unlawful possession of explosives, and another for assault with a deadly weapon. Between 2003 and 2004, a police informant made four controlled purchases of AK rifles from Gilbert. Portions of all of the transactions were recorded and agents conducted surveillance during the last three transactions. In 2005, a search of Gilbert's residence yielded approximately 70 firearms, multiple firearm parts, over 23,000 rounds of ammunition, and books and videos about firearms. At trial, Gilbert admitted to participating in each of the four controlled purchases and testified that he knew the buyer was acting as an informant. Gilbert maintains that he sold the guns to the informant intentionally, to challenge the constitutionality of firearms laws. Gilbert attempted several times to testify, twice successfully, that he believed the Second Amendment gave an individual the right to bear arms. Each time, the court sustained government counsel's objections and instructed the jury to disregard Gilbert's answers. The court also denied Gilbert's request for an additional jury instruction to the effect that the Second Amendment affords an individual right to possess firearms for personal use. The final jury instructions included, at the government's request, the following instruction: A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record. I. Jury Instructions Gilbert argues that the district court erred by giving this instruction and refusing to instruct the jury that the Second Amendment affords an individual right to possess firearms for personal use. We review de novo the district court's refusal to give a defendant's jury instructions when that decision is based on a question of law. See United States v. Eshkol, 108 F.3d 1025, 1028 (9th Cir. 1997). A district court's formulation of jury instructions is reviewed for an abuse of discretion. See United States v. Shipsey, 363 F.3d 962, 966 n. 3 (9th Cir. 2004); United States v. Garcia-Rivera, 353 F.3d 788, 791-92 (9th Cir. 2003) ("In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury's deliberation."). Although a defendant is entitled to have the judge instruct the jury on his theory of defense, that theory must be supported by law and have some foundation in the evidence. United States v. Kayser, 488 F.3d 1070, 1073 (9th Cir. 2007). We conclude that the challenged instruction did not make the instructions as a whole misleading or inadequate to guide the jury's deliberation. Garcia-Rivera, 353 F.3d at 792. The district court's instructions were particularly appropriate to rebut inferences created by Gilbert's counsel's statements that Gilbert believed the Second Amendment allowed him to possess, sell, and manufacture firearms, Gilbert's stricken statements about his beliefs regarding the Second Amendment, and his statement that he was challenging the constitutionality of the law. The Supreme Court's recent decision in District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), holding that the Second Amendment protects a limited individual right to possess a firearm — unconnected with service in a militia — does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., 128 S.Ct. at 2802. II. Exclusion of Testimony Gilbert also argues that the district court erred by preventing him from testifying as to his understanding and beliefs concerning the Second Amendment. Gilbert maintains that by sustaining the government's objections to his attempt to testify to that effect, the court prevented him from presenting a defense. We review a district court's ruling excluding evidence for abuse of discretion. See United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir. 2004). In firearms prosecutions, the government is not required to prove that a defendant knew that his possession of the firearms at issue was unlawful. United States v. Freed, 401 U.S. 601, 607, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). Accordingly, the charges against Gilbert did not require, as an element of proof, evidence that Gilbert knowingly broke the law, only that he knowingly possessed weapons and knew the characteristics of those weapons. The only elements of proof which required inquiry into Gilbert's mental state were met: the government proved that Gilbert joined the conspiracy knowing its object and intending to accomplish it, and that he knowingly possessed machineguns and a rifle with a barrel less than 16 inches in length. Thus we conclude that the district court acted well within its discretion to exclude Gilbert's testimony regarding his beliefs about the Second Amendment as inadmissible under Fed.R.Evid. 402. For the same reason, we conclude that the district court's exclusion of Gilbert's testimony did not violate his right to present a witness in his own defense. AFFIRMED. nolu chan  posted on  2018-06-14   10:31:09 ET  Reply   Untrace   Trace   Private Reply   #285. To: nolu chan (#281) It is not to protect the right of the active duty organized militia to carry machineguns while on duty. Then who or what protects their right to keep and bear those arms? You continue to refuse to answer that question. misterwhite  posted on  2018-06-14   10:56:16 ET  Reply   Untrace   Trace   Private Reply   #289. To: misterwhite (#285) [nolu chan #281] It is not to protect the right of the active duty organized militia to carry machineguns while on duty. [misterwhite #285] Then who or what protects their right to keep and bear those arms? You continue to refuse to answer that question. The 2nd Amendment to the U.S. Constitution still protects the individual right of the people to keep and bear arms. You keep mumbling some bullshit about how states protect the right to keep and bear arms through their constitutions, but your are absolute crickets about how they do it. Anything in a state constitution which is contrary to the Federal Constitution, any Federal law or treaty, falls to the Federal provision which is the law of the land, and is supreme over all state laws. It is called the Supremacy Clause. See Article VI, § 2: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. Your most profound legal claim thus far is in your #282: Screw the National Guard … the "organized" and "unorganized" militia … the "active" and "inactive" militia. Weasel words used because you're trying to fit a round peg into a square hole with your stupid Heller and McDonald decisions. Yeah, you should stick with blaming the transition from State Militia to the National Guard (in 1903) on the stupid Heller decision in 2008. And Supreme Court decisions are just to be dismissed as stupid. The same with Federal laws. At least it is a true statement of your legal reasoning, such as it is. nolu chan  posted on  2018-06-14   22:36:51 ET  Reply   Untrace   Trace   Private Reply   #293. To: nolu chan (#289) You keep mumbling some bullshit about how states protect the right to keep and bear arms through their constitutions, but your are absolute crickets about how they do it. How? It's written in their state constitution. Alabama, for example, has this: "That the great, general and essential principles of liberty and free government may be recognized and established, we declare.... That every citizen has a right to bear arms in defense of himself and the state. (Ala. Const. art. I, § 26) (1819)." Each state is different, of course. Here's a summary: https://www.nraila.org/articles/20140703/guarantees-of-the-right-to- arms-in- stat&sa=U&ved=0ahUKEwjv_4yk0dXbAhWFv1MKHWwuCSoQFgggMAI&usg=AOvVaw1W5NrmjvNiodO8M F-QerxD If the second amendment protects the individual RKBA, why do we need these state constitutions? You don't know. Heller has completely fucked you up. misterwhite  posted on  2018-06-15   8:17:06 ET  Reply   Untrace   Trace   Private Reply   #326. To: misterwhite (#293) [nolu chan #289] You keep mumbling some bullshit about how states protect the right to keep and bear arms through their constitutions, but your are absolute crickets about how they do it. [misterwhite #293] How? It's written in their state constitution. Alabama, for example, has this: "That the great, general and essential principles of liberty and free government may be recognized and established, we declare.... That every citizen has a right to bear arms in defense of himself and the state. (Ala. Const. art. I, § 26) (1819)." - - - - - - - - - - [misterwhite #318] I said state constitutions protect an individual right to keep and bear arms, subject to constitutional federal laws (as per the Supremacy Clause). MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 7 The 11th Circuit and the District Court for the District of Alabama Protect 2nd Amendment Rights in Alabama United States v. White, 593 F.3d 1199 (11th Cir., 2010) 593 F.3d 1199 (2010) UNITED STATES of America, Plaintiff-Appellee, v. Ludivic WHITE, Jr., Defendant-Appellant. No. 08-16010. United States Court of Appeals, Eleventh Circuit. January 11, 2010. *1200 Daniel L. McCleave (Court-Appointed), McCleave, Denson, Shields, LLC, Mobile, AL, for White. Richard H. Loftin, Steven E. Butler, Mobile, AL, for U.S. Laura Moranchek Hussain, Wilmer, Cutler, Pickering, Hale & Dorr, LLP, Washington, DC, for Amici Curiae. Before DUBINA, Chief Judge, and BIRCH and SILER,[*] Circuit Judges. SILER, Circuit Judge: INTRODUCTION Ludivic White, Jr., appeals his conviction for possession of a firearm by a person convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9). For the following reasons, we affirm. *1201 I. At around 2:00 a.m. on April 21, 2007, Police Officers Brad Latham and Otha Lee Hargrove received a complaint about loud music coming from a vehicle parked in a high-crime area of Mobile, Alabama. Upon arriving at the scene, the officers saw a vehicle that matched dispatch's description. As Officer Hargrove drove by the vehicle with his windows partially open, he smelled a "strong" odor of marijuana and heard music emanating from the car. The vehicle contained four occupants: two females in the front seat and two males in the back seat. Latham approached the driver and asked for identification, which she was unable to provide. The officers then questioned the occupants about whether they had been smoking marijuana. The occupants denied possessing or using any drugs. Latham asked the driver to exit the vehicle and requested her name and social security number to perform a background check. Latham then requested that White step out of the car. Shortly thereafter, Hargrove, who was busy performing a background check on the other male passenger, heard Latham say "gun," at which point he saw Latham remove a black handgun from White's person. The officers arrested White after he failed to produce a permit for the pistol. No drugs were found in the car. Latham filed two police reports detailing the incident, neither of which mentioned the smell of marijuana. Hargrove did not file any written reports. White was indicted for possession of a firearm by a person convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9). Before trial, he filed a motion to suppress the firearm found on his person during the search, arguing that the officers had violated his Fourth Amendment rights. Hargrove testified to the facts stated above at the suppression hearing. On the motion to suppress, the court found that he was a credible witness, and it held that the smell of marijuana gave the officers reasonable suspicion to detain and question the passengers and to pat them down for officer safety. Both officers testified at trial. Hargrove's testimony remained the same. Latham stated that he responded to a loud noise complaint; when he arrived on the scene, a car matching the description in the complaint contained four occupants and only the dome light was on; and the occupants, when questioned, could not produce identification. He stated that he and Hargrove asked all the occupants if there were any weapons or illegal items in the vehicle, to which each responded in the negative. After recognizing White as having "given [him] problems in the past to where [sic] I stopped him before," he "patted him down for weapons . . . for officer safety," which was "standard [department] practice." As he was patting White down, he noticed the gun's magazine protruding from White's pocket. He could not remember whether there had been any music playing in the car, although he testified that if there had been, it was not loud. He stated that his report had not mentioned marijuana, because he had not smelled any. Marcus Carothers and Tequila Ward Prince, two of the occupants of the car, later testified that they had been smoking marijuana prior to the stop. They stated that they had not been playing loud music, and that they believed that the loud noise complaint had been filed by a disgruntled neighbor. They were unsure whether the smell of marijuana had lingered in the air, but they estimated that they had ceased smoking marijuana between five to twenty minutes before the officers arrived. *1202 To prove the predicate offense, the government offered a certified copy of White's previous misdemeanor conviction for domestic violence, which stated that he was convicted on January 11, 2005, of domestic violence in the third degree, harassment, in violation of Alabama Code §§ 13A-11-8A and 13A-6-132.[1] According to his conviction, on June 22, 2003, he tried to choke his then live-in girlfriend. The district court overruled his objection that this conviction did not qualify as a predicate offense under 18 U.S.C. § 922(g)(9). After the government rested, White moved for a judgment of acquittal and renewed his motion to suppress the gun. The district court denied both motions. The jury found White guilty, and he was sentenced to forty-six months' imprisonment. The trial court also denied his subsequent motion to dismiss based upon District of Columbia v. Heller, ___ U.S. ___, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). White now appeals pursuant to 28 U.S.C. § 1291. II. A. 1. White first contests the district court's denial of his motion to suppress the gun found during the pat-down search. "Rulings on motions to suppress evidence constitute mixed questions of law and fact." United States v. LeCroy, 441 F.3d 914, 925 (11th Cir.2006). We accept the district court's findings of fact, including the district court's credibility determinations, unless they are clearly erroneous. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.2002). We review the application of law to those facts de novo. LeCroy, 441 F.3d at 925. Because the pat-down search to preserve officer safety was not unreasonable given the totality of the circumstances, we affirm the district court's denial of the motion to suppress. 2. "Our analysis [of the legality of the pat-down search] is governed by the principles of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), under which the police may stop and briefly detain a person to investigate a reasonable suspicion that he is involved in criminal activity, even though probable cause is lacking." United States v. Williams, 876 F.2d 1521, 1523 (11th Cir.1989). To justify a Terry stop, the officers must "have a reasonable, articulable suspicion based on objective facts that the person has engaged in, or is about to engage in, criminal activity." United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir.2007) (quoting United States v. Powell, 222 F.3d 913, 917 (11th Cir.2000)), cert. denied 552 U.S. 974, 128 S. Ct. 438, 169 L. Ed. 2d 305 (2007). In connection with a Terry stop, an officer may conduct a pat-down search if he has reason to believe that his own safety or the safety of others is at risk. Terry, 392 U.S. at 27, 88 S.Ct. at 1883. "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his *1203 safety or that of others was in danger." Id. (emphasis added). The district court found that (1) Hargrove was credible, and (2) he smelled marijuana. We "must accept [these factual findings] unless [they are] so inconsistent or improbable on [their] face that no reasonable factfinder could accept [them]." Ramirez-Chilel, 289 F.3d at 749. Also, we must construe the facts in the light most favorable to the party that prevailed below (here, the government). United States v. Nunez, 455 F.3d 1223, 1225 (11th Cir. 2006). White focuses on the inconsistencies in the officers' testimony—namely, that Hargrove remembered the marijuana smell, while Latham did not recollect it. However, it is not inconceivable that two busy police officers testifying about an incident that occurred over a year prior remembered the existence of the smell of marijuana differently. It is also not unbelievable that the district court found that Hargrove's testimony about the marijuana smell was credible. Accepting these findings of fact, we hold that both the brief detention of the vehicle and its occupants and the limited pat-down of White were reasonable. "Reasonable suspicion is determined from the totality of the circumstances, and from the collective knowledge of all the officers involved in the stop." Williams, 876 F.2d at 1524 (citing United States v. Cotton, 721 F.2d 350 (11th Cir.1983)); see also United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740 (2002) (upholding detention when the totality of the circumstances created reasonable suspicion). Given that the smell of marijuana alone may provide a basis for reasonable suspicion for further investigation of possible criminal conduct, the initial stop was valid. Bryan v. Spillman, 217 Fed.Appx. 882, 885 (11th Cir.2007) (citing United States v. Garcia, 592 F.2d at 259 (5th Cir.1979) (holding that smell of marijuana emanating from vehicle established reasonable suspicion for search)). Additionally, even without considering Hargrove's testimony regarding marijuana, the totality of the circumstances indicates that the pat-down was reasonable.[2] "[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. at 27, 88 S.Ct. at 1883 (emphasis added). Here, several factors support the objective reasonableness of the search: Latham responded to a loud music complaint in a high-crime area late at night, see United States v. Gordon, 231 F.3d 750, 755-56 (11th Cir.2000) (noting an area's reputation for criminal activity is a factor that may be considered when determining whether reasonable suspicion exists.); the officers were outnumbered two-to-one; none of the occupants could provide identification; and Latham recognized White as someone who had given him trouble in the past. For these reasons, the limited pat-down search of White did not violate the Fourth Amendment, and we affirm the district court's denial of White's motion to suppress the gun. B. 1. White next argues that the district court erroneously denied his motion for a judgment of acquittal based on its conclusion that his previous domestic violence conviction was a predicate offense for purposes of § 922(g)(9). We review de novo a district court's denial of a motion for a *1204 judgment of acquittal on sufficiency of evidence grounds. United States v. Yates, 438 F.3d 1307, 1311-12 (11th Cir. 2006) (en banc). We affirm the district court's decision, because White's underlying domestic violence offense is a predicate offense for purposes of § 922(g). 2. Section 922(g)(9) makes it illegal for a person "convicted in any court of a misdemeanor crime of domestic violence" to possess "any firearm or ammunition" that has been in or affects interstate commerce. Section 921(a)(33)(A) defines a "misdemeanor crime of violence" as an offense that "(1) has, as an element, the use [of force],[3] and (2) is committed by a person who has a specified domestic relationship with the victim." United States v. Hayes, ___ U.S. ___, 129 S. Ct. 1079, 1087, 172 L. Ed. 2d 816 (2009) (alteration in original). While the government must establish that the underlying offense was committed against a person with a specified domestic relationship beyond a reasonable doubt, § 922(g)(9) does not require the predicate offense to have the specified domestic relationship as an element. Id. at 1082-83. Accord United States v. Chavez, 204 F.3d 1305, 1313-14 (11th Cir. 2000) (holding that while the domestic nature of the relationship must be a fact, it need not be an element of the prior offense); United States v. Griffith, 455 F.3d 1339, 1346 (11th Cir.2006) ("Therefore, as we held in Chavez, a domestic relationship must exist as part of the facts giving rise to the prior offense, but it need not be an element of that offense."). To meet the definition of a "misdemeanor crime of domestic violence," the offense must be committed by (1) "a current or former spouse," (2) "a person with whom the victim shares a child in common," (3) "a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian," or (4) "by a person similarly situated to a spouse, parent, or guardian of the victim." § 921(a)(33)(a)(ii). At trial the government introduced a certified copy of the underlying conviction, which contained identical addresses of both the victim and White. In addition, White was convicted in a "domestic dispute" during which he pushed his girlfriend down and then tried to choke her. Finally, White concedes that a live-in girlfriend would meet the domestic relationship requirement of § 921(a)(33)(a). The victim was in a specified domestic relationship with White: she lived with him, was his "girlfriend," and the dispute was a "domestic" one. Several of our sister circuits have held that a "'live-in' girlfriend qualifies as a domestic relationship for purposes of [§§ 922 and 921(a)(33)(a)]." Buster v. United States, 447 F.3d 1130, 1133 (8th Cir. 2006). See also United States v. Shelton, 325 F.3d 553, 563 (5th Cir. 2003) (holding defendant's admission that he lived with his girlfriend was sufficient to qualify the relationship under §§ 922 and 921(a)(33)(a)); United States v. Denis, 297 F.3d 25, 31 (1st Cir. 2002) (assuming defendant's "'live-in girlfriend'" was similarly situated for purposes of §§ 922 and 921(a)(33)(a)). Viewing, as we must, the evidence in the light most favorable to the government, United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005), there is sufficient evidence to *1205 show that a "domestic relationship . . . exist[ed] as part of the facts giving rise to the prior offense" and that the trier of fact could have so found beyond a reasonable doubt. Griffith, 455 F.3d at 1346. Therefore, the district court did not err in determining that White's previous domestic violence conviction was a predicate offense for purposes of § 922(g). C. 1. White's last argument on appeal focuses on the constitutionality of § 922(g)(9). "We review de novo the legal question of whether a statute is constitutional." United States v. Tinoco, 304 F.3d 1088, 1099 (11th Cir. 2002) (citation omitted). Under our interpretation of Heller, 128 S.Ct. at 2783, we affirm his conviction. 2. Although prior to Heller we upheld the constitutionality of § 922(g)(9), our decision did not rest on Second Amendment grounds. See Hiley v. Barrett, 155 F.3d 1276 (11th Cir.1998) (affirming the district court's decision upholding § 922(g)(9)'s constitutionality against commerce clause, equal protection, substantive due process, ex post facto, bill of attainder, and Tenth Amendment attacks). Today we limit our holding to deciding whether § 922(g)(9) may be properly included as a presumptively lawful "longstanding prohibition[] on the possession of firearms," a category of prohibitions the Supreme Court has implied survives Second Amendment scrutiny. Heller, 128 S.Ct. at 2816-17. The Second Amendment provides as follows: "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." U.S. Const. amend. II. Last year, in Heller, the Supreme Court interpreted this language to "guarantee [an] individual right to possess and carry weapons in case of confrontation." 128 S.Ct. at 2797. In Heller, the Court held that the District of Columbia's ban on handgun possession in the home by law-abiding citizens violated the Second Amendment. Id. In dictum, the Court qualified the right to bear arms: "[l]ike most rights, [it] is not unlimited." Id. at 2816. "[N]othing in [Heller] should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings. . . ." Id. at 2816-17. While the Court did not specifically mention § 922(g)(9), it included a footnote to clarify that the enumerated "presumptively lawful regulatory measures [are] only examples; [this] list does not purport to be exhaustive." Id. at 2817 n. 26. We are called upon to decide whether the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence, § 922(g)(9), warrants inclusion on Heller's list of presumptively lawful longstanding prohibitions. As the Supreme Court recently noted, § 922(g)(9) was passed in 1996 in response to Congress's concern that "[e]xisting felon-in-possession laws . . . were not keeping firearms out of the hands of domestic abusers, because 'many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.'" Hayes, 129 S.Ct. at 1087 (quoting 142 Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg)). Section 922(g)(9) was designed to "'close this dangerous loophole.'" Id. By way of example, the federal ban on felons-in-possession in § 922(g)(1)—a statute characterized in the Heller dictum as a presumptively lawful *1206 longstanding prohibition—does not distinguish between the violent and non-violent offender. Thus, both an armed robber and tax evader lose their right to bear arms on conviction under § 922(g)(1). In contrast, a person convicted under § 922(g)(9) must have first acted violently toward a family member or domestic partner, a predicate demonstrated by his conviction for a misdemeanor crime of violence. Thus, although passed relatively recently, § 922(g)(9) addresses the thorny problem of domestic violence, a problem Congress recognized was not remedied by "longstanding" felon-in-possession laws. We see no reason to exclude § 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast doubt. See In re United States, 578 F.3d 1195 (10th Cir. 2009) (order) ("Nothing suggests that the Heller dictum, which we must follow, is not inclusive of § 922(g)(9) involving those convicted of misdemeanor domestic violence."). We now explicitly hold that § 922(g)(9) is a presumptively lawful "longstanding prohibition[] on the possession of firearms." Heller, 128 S.Ct. at 2816-17. Given that Heller does not cast doubt on the constitutionality of § 922(g)(9), we affirm White's conviction. AFFIRMED. NOTES [*] Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation. [1] Under Alabama Code § 13A-6-8A, harassment occurs "if, with intent to harass, annoy, or alarm another person, [he] . . . [s]trikes, shoves, kicks, or otherwise touches a person or subjects [him] to physical contact . . . [or][d]irects abusive or obscene language or makes an obscene gesture towards another person." Id. A person commits domestic violence in the third degree if he commits the crime of harassment under § 13A-6-8A and "the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant." § 13A-6-132. [2] Thus, we decline to reach the question of whether the smell of marijuana, which Latham failed to articulate but the district court held was present, can be considered in determining the legality of the pat-down search. [3] White does not argue that the Alabama statute does not contain the use of physical force as an element of the offense. Consequently, he has abandoned this argument on appeal. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.1998) ("Because [defendant] has offered no argument on [an] issue on appeal, we find that he has abandoned it."). nolu chan  posted on  2018-06-18   11:36:04 ET  Reply   Untrace   Trace   Private Reply   #328. To: nolu chan (#326) MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 7 I said federal law trumps state law, though it looks like states may be able to ignore the Supremacy Clause if they want to. misterwhite  posted on  2018-06-18   12:38:11 ET  Reply   Untrace   Trace   Private Reply   #330. To: misterwhite, tpaine (#328) [tpaine #327] Bobbie actually hopes that people go to jail for machine guns. -- He is actually an anti-gun nut who believes a State can ban ANY gun. Just ask him... Oh hell, why not. Are you actually an anti-gun nut who believes a State can ban ANY gun? nolu chan  posted on  2018-06-18   17:40:46 ET  Reply   Untrace   Trace   Private Reply   #333. To: nolu chan (#330) Are you actually an anti-gun nut who believes a State can ban ANY gun? Don't believe that asshole. He lies. I'm pro-gun and pro-constitution -- state and federal. Prior to Heller, if a state constitution did not protect an individual RKBA, of course a state could ban the individual ownership of guns -- as long as it didn't interfere with maintaining a state militia. States ban certain products (eg., dangerous toys) for health and safety reasons, certainly they could ban guns for the same reason. And if the majority of citizens of some state, acting through their state representatives, wanted to do that, who am I to tell them how to live? But states would never get the votes. misterwhite  posted on  2018-06-18   18:23:37 ET  Reply   Untrace   Trace   Private Reply   #337. To: misterwhite (#333) Are you actually an anti-gun nut who believes a State can ban ANY gun? [misterwhite #333] Don't believe that asshole. He lies. I'm pro-gun and pro-constitution -- state and federal. [misterwhite #2] The second amendment doesn't protect arms for ordinary citizens. It protects state militias and the arms of state militia members from federal infringement. What are those arms? They are the arms selected by the state militia as necessary for the protection of the state. Round peg. Round hole. So what protects the individual right to keep and bear arms? State constitutions. You have repeatly declared Heller not to be the law, and have repeatedly stated that the 2nd Amendment does not protect an individual's right to keep and bear arms. You have stated that if a state constitution allows it, cities and towns can enact and enforce gun bans. [misterwhite #46] Seems to me the only reason you like the Heller decision is because it supports your view. I guess those justices never heard of stare decisis. [misterwhite #48] When you examine it (as I have) it only protected the right for those eligible to participate in a state militia. What a coincidence, huh? And the second amendment references a militia! Another coincidence! Yet you expect me to believe it applies to all individuals. The fundamental individual right of the people belongs to the people, not the militia. [misterwhite #65] Don't bother citing Heller. I told you the court got it wrong. [misterwhite #66] Book the First - Chapter the First: Of the Absolute Rights of Individuals I never said they didn't have the right. They do. Just that the second amendment doesn't protect it. [misterwhite #79] True. And before the Bill of Rights was selectively incorporated, states banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion. "That is what you blather you want to return to?" You bet! You have a strange way of expressing your "pro-constitution" views. [misterwhite #81] Meaning, the second amendment has nothing to do with protecting some handgun for self-defense in the home. It's a restriction on the federal government to leave the state militias (and their weapons) alone. Note: The Federal government OWNS all of the National Guard weapons, not the State. The National Guard weapons are provided by the Federal governent and remain the property of the Federal government. In case of a war, or threatened war, the Federal government can requisition all of its weapons back for Federal use as it sees fit. [misterwhite #85] I'm saying the right is NOT protected by the second amendment and IS protected by state constitutions. [misterwhite #100] You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns." Only if the state constitution allows it and the people want it. The American people, in their great wisdom, added a 2nd Amendment to their Constitution. Cities and towns are not empowered to disarm their inhabitants. If cities and towns wanted it, and the State constitution allowed it, could cities and towns either permit or ban all abortions? The Illinois case in point in point is Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983). Quilici involved Ordinance No. 81-11. It was held to not violate the 2nd Amendment because the Amendment had not then been incorporated into the 14th Amendment and therefore did not then apply to the states. You voiced your support for a time when one's 2nd Amendment right to keep and bear arms could be taken away by a village council adopting a village ordinance. McDonald v. City of Chicago, 561 U.S. 742 (2010) incorporated the 2nd Amendment into the 14th Amendment and held that the 2nd Amendment was fully enforceable against the states. It struck down all laws such as Village of Morton Grove, Ilinois Ordinance No. 81-11 and the Chicago and Oak Park ban on citizen possession of handguns. While you would prefer to cling to a time when the majority vote of a village council could take away the 2nd Amendment fundamental individual right of the people to keep and bear arms, that is now blessedly unconstitutional. If a state constitutional provision authorizes a municipality to ban handgun possession, such provision of the state constitution is null and void, as are any municipal ordinances flowing from such provision. The American system was not set up as a democracy where a majority decides for all which rights apply. By its design, it was meant to protect the rights of the minority. The right to free speech is not the right to say what meets with majority approval, but to say that which is greeted with overwhelming disapproval. Illinois, Chicago, Oak Park, and Morton Grove are sterling examples of how states do not protect the 2nd Amendment fundamental individual right of people to keep and bear arms. [misterwhite #318] I said state constitutions protect an individual right to keep and bear arms, subject to constitutional federal laws (as per the Supremacy Clause). Unless enough people simply ignore federal law and start buying illegal machine guns on the black market. States Rights! Power to the people! Tenth amendment! As we all know, and as this thread documents, what you accept as constitutional laws is determined by your own personal legal system, rejecting the opinions of the U.S. Supreme Court and the other Federal courts. [misterwhite #328] I said federal law trumps state law, though it looks like states may be able to ignore the Supremacy Clause if they want to. And you hold that it looks like states may be able to ignore the Supremacy Clause if they want to. Prior to Heller, if a state constitution did not protect an individual RKBA, of course a state could ban the individual ownership of guns -- as long as it didn't interfere with maintaining a state militia. "Of course," you say, the state (and even towns and villages) had the lawfully delegated power to take away the fundamental individual right of the people to keep and bear arms. Also note yet again, even after Heller (2008), the 2nd Amendment had not been incorporated into the 14th Amendment and could not be enforced against the states. It was McDonald v. City of Chicago, 561 U.S. 742 (2010) which incorporated the 2nd Amendment into the 14th Amendment and held that the 2nd Amendment was fully enforceable against the states. nolu chan  posted on  2018-06-19   11:22:17 ET  Reply   Untrace   Trace   Private Reply   #341. To: nolu chan (#337) The fundamental individual right of the people belongs to the people, not the militia. The fundamental individual right of the people protected by the second amendment belongs to the people of the militia. That's according to the clear language of the second amendment as interpreted for over 200 years. misterwhite  posted on  2018-06-19   13:23:14 ET  Reply   Untrace   Trace   Private Reply   #345. To: misterwhite (#341) The fundamental individual right of the people belongs to the people, not the militia. The fundamental individual right of the people protected by the second amendment belongs to the people of the militia. That's according to the clear language of the second amendment as interpreted for over 200 years. Recycling this bullshit over and over does not change the fact that it was emphatically and explicitly REJECTED BY THE U.S. SUPREME COURT in Heller and McDonald. That is according to the clear language of the U.S. Supreme Court. Self-defense was the central component of the right itself. McDonald at 561 U.S. 787: (boldface added) In Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. 554 U. S., at 598–599. On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.” nolu chan  posted on  2018-06-19   16:36:13 ET  Reply   Untrace   Trace   Private Reply   #352. To: nolu chan (#345) "Self-defense was the central component of the right itself." Not in the second amendment. It was in state constitutions. The second amendment refers to the security of a free State. Most state constitutions read "that every citizen has a right to bear arms in defense of himself and the state". misterwhite  posted on  2018-06-19   17:47:48 ET  Reply   Untrace   Trace   Private Reply   #353. To: misterwrong strikes again, making a fool of himself. --- 101 (#352) nolu chan (#345) ---- "Self-defense was the central component of the right itself." Not in the second amendment. It was in state constitutions. ---- mrwrong "Self-defense was the central component of the right itself." ---- Exemplified by the words of the document.. This thread is proof positive that you cannot reason with a wrong-headed idiot. tpaine  posted on  2018-06-19   18:57:29 ET  Reply   Untrace   Trace   Private Reply   #362. To: tpaine (#353) This thread is proof positive that you cannot reason with a wrong-headed idiot. This thread, with the assistance of a wrong-headed idiot, is a one-stop shopping center with sources to document the falsity and vacuity of his arguments. All it needs is a bookmark for future use. nolu chan  posted on  2018-06-20   11:14:20 ET  Reply   Untrace   Trace   Private Reply   #364. To: nolu chan, misterwhite (#362) Can you kindly abbreviate the crux of this ongoing debate? At its core was it Feral vs. State authoritah vis a vis gun "rights" and limitations on certain arms? Thanks... Liberator  posted on  2018-06-20   11:21:10 ET  Reply   Untrace   Trace   Private Reply   #377. To: Liberator (#364) Can you kindly abbreviate the crux of this ongoing debate? misterwhite is a persistent purveyor of fake law. When the legal whore gets caught streetwalking, he moves to a new corner and starts over as a virgin. At its core was it Feral vs. State authoritah vis a vis gun "rights" and limitations on certain arms? At its core, state laws inconsistent with federal laws are null and void, and of no effect. That whole matter is a fake law argument, a dead letter under the Supremacy Clause of the Constitution. nolu chan  posted on  2018-06-21   10:52:02 ET  Reply   Untrace   Trace   Private Reply   #389. To: nolu chan, misterwhite (#377) (nolu chan) "At its [the debate] core, state laws inconsistent with federal laws are null and void, and of no effect. That whole matter is a fake law argument, a dead letter under the Supremacy Clause of the Constitution." (misterwhite) "When asked what protects state militias and their arms from federal infringement, he [Nolu] says nothing does. I maintain...that state constitutions protect the individual citizen's right to keep and bear arms in their state, that the second amendment protects state militias and their arms from federal infringement, and that most federal laws against guns are unconstitutional." Thank you both for responding and clarifying your respective perspective/opinion. Now I can try and make some sense out of the thread debate. Perhaps my impression of this debate did apply ("Feral vs. State authoritah vis a vis gun "rights") in the strictest sense. The Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. We run into potential trouble here as many might see it. One problem is concern that original intent of the Founders might be mis-interpretated by contemporary federalists. We also have another problem with constitutional interpretation of those 9 Black Robed SCOTUS (who may believe in a "living, breathing document") -- but that may be another argument for another day. IF the Supremacy Clause is considered THE final authority of judicial arbitration in the strictest sense, and end-all of debate between Fed vs State Law, then wouldn't (or couldn't) it theoretically render ALL State Law as either irrelevant or un-necessary? Liberator  posted on  2018-06-21   15:57:31 ET  Reply   Untrace   Trace   Private Reply   #390. To: Liberator (#389) IF the Supremacy Clause is considered THE final authority of judicial arbitration in the strictest sense, and end-all of debate between Fed vs State Law, then wouldn't (or couldn't) it theoretically render ALL State Law as either irrelevant or un-necessary? Yes. But ONLY if the federal government has the constitutional power to write the law. misterwhite  posted on  2018-06-21   16:28:18 ET  Reply   Untrace   Trace   Private Reply   #392. To: misterwhite, nolu chan, Y'ALL (#390) Liberator (#389) ----- IF the Supremacy Clause is considered THE final authority of judicial arbitration in the strictest sense, and end-all of debate between Fed vs State Law, then wouldn't (or couldn't) it theoretically render ALL State Law as either irrelevant or un-necessary? Yes. But ONLY if the federal government has the constitutional power to write the law. ----- misterwhite And in this case, the Constitution does NOT give Congress the power to write laws that infringe on our right to bear arms.. In fact, given the principles inherent in all our founding documents, it stands to reason that this right cannot be abriged, -- it cannot be amended away.. tpaine  posted on  2018-06-21   17:01:15 ET  Reply   Untrace   Trace   Private Reply   #394. To: tpaine (#392) And in this case, the Constitution does NOT give Congress the power to write laws that infringe on our right to bear arms.. Congress does not claim any such power. The right to keep and bear arms is not absolute, and never has been. It has never applied to weapons not lawful to possess, and is subject to regulation, just as are other rights. The right to free speech is not the right to utter falsehoods under oath or to commit libel or slander with impunity. You simply adopt a false definition of the right, then attack your straw man. The 2nd Amendment right to keep and bear arms does not mean that everyone has a right to keep and bear an illegal-to-possess M-16 or a nuclear bomb. nolu chan  posted on  2018-06-21   17:50:37 ET  Reply   Untrace   Trace   Private Reply   #398. To: nolu chan (#394) The 2nd Amendment right to keep and bear arms does not mean that everyone has a right to keep and bear an illegal-to-possess M-16 or a nuclear bomb. Not everyone, no. But if M-16's and nuclear weapons existed in 1790, the federal government could not prevent the state militias from having them. misterwhite  posted on  2018-06-21   19:07:18 ET  Reply   Untrace   Trace   Private Reply   #402. To: misterwhite (#398) But if M-16's and nuclear weapons existed in 1790, the federal government could not prevent the state militias from having them. What an incredibly ignorant fuck you are. At Article 1, Sec. 8, Cl. 16, the FEDERAL CONGRESS IS EMPOWERED "to provide for organizing, ARMING, and disciplining the Militia." The FEDERAL CONGRESS has exercised its constitutional power to ORGANIZE THE MILITIA into the National Guard. The FEDERAL CONGRESS has exercised its constitutional power to ARM THE MILITIA. The FEDERAL GOVERNMENT provides all the arms, and the FEDERAL GOVERNMENT retains ownership of all the arms. The Constitution did not empower the states to organize or arm the militia. Heller at 554 U.S. 627 It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. nolu chan  posted on  2018-06-21   22:51:08 ET  Reply   Untrace   Trace   Private Reply   #406. To: nolu chan (#402) The Constitution did not empower the states to organize or arm the militia. Which is why the second amendment was written. George Mason … argued that there was a danger that Congress could render the militia useless ... "... by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them &c." The desire to prevent enfeebling state militias, which provided a check to a standing army, prompted the ratifying conventions to call for an amendment guaranteeing the right of citizens to bear arms. The First Congress responded, but the Second Amendment did not remove national control over armed forces or the state militias. -- https://www.heritage.org/constitution/articles/1/essays/68/emoluments- clause#!/articles/1/essays/56/organizing-the-militia misterwhite  posted on  2018-06-22   9:32:36 ET  Reply   Untrace   Trace   Private Reply   Replies to Comment # 406. #409. To: misterwhite (#406) The Constitution did not empower the states to organize or arm the militia. Which is why the second amendment was written. Incredible bullshit. Under the militia law, Congress retains plenary authority to say who will belong to the organized militia, or who will be excluded. Heller at 554 U.S. 599-600 Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petitioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee—it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force. That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 521–525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation. nolu chan  posted on  2018-06-22 23:48:52 ET  Reply   Untrace   Trace   Private Reply   End Trace Mode for Comment # 406. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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