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Title: Here’s How The Supreme Court Already Repealed The Second Amendment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 ady-repealed-second-amendment/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: 55754
Comments: 421
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 The Second Amendment was repealed, in effect, by Heller’s majority opinion.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.” 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.” 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.” 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. The Supreme Court effectively repealed the Second Amendment in District of Columbia v. Heller by restricting the amendment to common arms.
The Court Turned Stare Decisis On Its Head
Why ‘Common’ Can’t Be the Standard for Owning Arms
You Can’t Protect Freedom With a Slingshot
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#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: Heller at 582: Heller at 584: Heller at 620: Heller at 624-25: We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. Heller at 626: Heller at 627-28: Black's Law Dictionary, 6 Ed. 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 Heller at 593-95: 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: 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.
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.
The second amendment doesn't protect arms for ordinary citizens. The second amendment protects arms for ordinary citizens. Ordinary arms are the means used by citizens to obtain tanks, SAMs, flame throwers and machine guns etc, --- from their enemies...
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.
If those ordinary citizens are part of a state militia, then those weapons are protected by the second amendment. Each state, however, decides how and where those weapons will be kept.
The Federal Constitution. The 2nd Amendment created no right. It protected a right already existing in the people who chose to become part of the constitutional union. That right to keep and bear arms belonged to the colonists as English citizens under English common law. The Bill of Rights had no application but to the Federal government when written. The BOR was applied to the states by the 14th Amendment. Some original states did not adopt the common law in their constitution, but all either did in their constitution or by statute. The 2nd Amendment prohibits the Federal government from infringing upon the right. It explicitly identifies a power that has not been delegated. The right was defined in English common law and carried forward into the American union. 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
No, the statute clearly states those classifications of the militia. This is where the deceit in the law has been pushed by the anti-gun lobbyists. They know exactly what they are doing because it is they who are aiding and abetting terrorists by pushing for open borders and allowing all these third world people; many of which are terrorists, into this country. They are the ones bringing in the chaos to disrupt and overthrow this government. Furthermore, it is not our government that is protecting the John Q. Public but rather the John Q. Public comprised of those able-bodied citizens who are being demonized for trying to protect their property and family from a rogue government that does not give a damn about them let alone safety for the American people.
No, it does not. It says nothing about ordinary citizens with tanks, SAMs, flame throwers, or machine guns. http://law.justia.com/codes/us/2012/title-10/subtitle-a/part-i/chapter-13/section-311/ §311. Militia: composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. (Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85–861, §1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103–160, div. A, title V, §524(a), Nov. 30, 1993, 107 Stat. 1656.) The RKBA, as defined in English common law, and brought forth into the American union, never applied to weapons other than those which were lawful to possess. What is lawful to possess is determined by law. The part of a statute you reference [10 USC § 311(b)(2)] does nothing more than define one class of the militia designated as the "unorganized militia." It does not state that this class may possess weapons or arms that the law has determined are unlawful to possess, or which require a license to possess. Citizens may possess tanks, SAMs, flame throwers and machine guns if they have a proper license to possess them.
It does not state that this class may possess weapons or arms that the law has determined are unlawful to possess, or which require a license to possess. Citizens may possess tanks, SAMs, flame throwers and machine guns if they have a proper license to possess them. And that class of the unorganized militia is what our founding fathers stood for. They did not believe in a federal militia which is why that Class (b)(2) applies. The Other classifications of the militia apply to the federal militias and those organized and deployed by the Governors of each State of the union. Those are the ones you invoke are the "lawful" militia in accordance with your case law. But the statute I just posted clearly addresses who those unprofessional class of militias are. They are, indeed, a member of our militias who have the right to own cannnons, flamethrowers, and etc. And this is what all the big fuss is about when there really is no need for any at all. When you cannot trust your own government to protect you, it becomes the dire duty of those very citizens to buckle down and take back their government even if by means of arms. We see this happen in Russia where the citizens are protesting against their government. And boy do they. We see this happen in Egypt where the people of Cairo protest against unruly leaders unfit to lead. But in this great country of America, we have those who tells us the law does not imply the right for citizens to bear arms. This is not only false in its entirety, but unAmerican and falls under seditious speech doctrine! You people want your war... well then bring it on.
- - - - - - - - - - That is your misguided interpretation of a constitutional provision which has no such content. No only does the cited provision not say it clearly, it does not say it at all.
So you're sayng the Founders trusted the newly-formed Federal government so much that they were willing to rely on them to protect the right of ordinary citizens to keep and bear arms? Hah! As you said, the Federal government was not given the power to interfere with State militias or the arms of their members -- yet the Founders wrote the second amendment anyways. Because they didn't trust the newly-formed Federal government, and the states refused to support the U.S. Constitution unless it contained a Bill of Rights.
No, it is your case law you posted that completely misinterprets who the lawful members of the militia are. Your case law never details those two classifications of the militia. Not once did you even make reference to Title 10 of the armed forces and the militia. What you referenced is some case law designed to override and diminish the importance of the classifications of the militia. The two classifications serve as an important reminder of what this country was founded under. Your case law generalized and misguided the reader which is actually very deceitful. And in law, I'm sure you were taught that deceit is legal but not lawful.
What the heck do think I quoted at #8 ??? I did not quote case law, I quoted the Federal statute, Title 10 United States Code Section 311. You had stated at #4 that, "Title 10 Section 311 Part (b) 2 says this quite clearly...." You quoted nothing. I quoted the section of law [10 USC § 311] which you claimed says quite clearly that you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns. In fully quoting your claimed source, I readily demonstrated that it does not say a mumbling word about tanks, SAMs, flame throwers or machine guns, neither quite clearly, nor even opaquely. Now that I have told you what it is, perhaps you will recognize it is what you cited but failed to quote. http://law.justia.com/codes/us/2012/title-10/subtitle-a/part-i/chapter-13/section-311/ §311. Militia: composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. (Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85–861, §1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103–160, div. A, title V, §524(a), Nov. 30, 1993, 107 Stat. 1656.)
No, those are your words. I did not say that. I definitely did not say that either. The Founders were the guys around at the revolution and the founding. The Framers were those who crafted the original Constitution at a constitutional convention. The Bill of Rights was introduced in the first Congress of the United States. Representative James Madison first introduced amendments on June 8, 1789, as recorded in: The Congressional Register; or History of the Proceedings and Debates of the First House of Representatives of the United States of America, Namely, New-Hampshire, Massachusetts, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, South-Carolina and Georgia Being the ELEVEN STATES that have Ratified the Constitution of the Government of the United States. https://www.scribd.com/doc/271187763/Congressional-Register-Volume-1-aka-Lloyd-s-Debates-1789 See Madison, on June 8, 1789, at page 414. At the time that the matter of the amendments to the Constitution were taken up in the Congress, there were ELEVEN states in the union, Rhode Island and North Carolina having not ratified the Constitution. The amendments, later called the Bill of Rights, were not introduced at a Constitutional Convention of Framers, but at a congressional committee of the then eleven states of the union. The Constitution had been ratified and the new government had been formed before the amendments to become the Bill of Rights were introduced in the first House of Representatives by Representative Madison on June 8, 1789.
When citizens have to get permission from their governments to possess tanks, SAMs, flamethrowers and machine guns, they do not have rights but instead as you are plainly stating it, they have privileges...not rights. And this is also wrong. In a society where only a privileged few can possess such artillery and machine guns, the rest of those citizens are not free. You don't get the government to grant you a privilege for something you already have ...and that is a personal Right. You do not license rights....only privileges. Either that Right exist or it doesn't.
If I was your neighbor. You can bet your ass I'd have a cannon pointed at your house 247!
Assuming all your "imagination" came to fruition, I think you would load the cannon with another Pant load; worthless bullshit in other words.
That's why you can't have one. When they do a background check on you it states, "No cannon for you!"
The federal government cannot prevent states from possessing such armament. You're free if you trust your state. The Founders did.
No, those are your words. I did not say that. Yeah, you did. When I asked and answered my question, "So what protects the individual right to keep and bear arms? State constitutions", you replied, "The Federal Constitution."
More correctly, "The Constitution had been ratified and the new government had been formed because the amendments to become the Bill of Rights were promised by Representative Madison".
I definitely did not say that either. The Founders were the guys around at the revolution and the founding. Oh, please. It that your argument? Nitpicking wordplay? You acknowledged that the second amendment "identifies a power that has not been delegated". Meaning, the U.S. Constitution did not give the Federal government the power to disband the State militias and confiscate their arms. Yet James Madison wrote the second amendment anyways and the Founders/Framers signed it.
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.
You are not free if you trust your state. The founders did not create states for people to depend on If this were the case, we'd be living under Communism.
That's because you are not aware that Title 10 Section 311 (b) (2) applies to the John Q. Public in general. And you should be aware of its existence because it has been in the books for a long time. You state the following: 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. What you are referring to is Title 10 Section 311 (a) in reference to the professional standing army. This section is reserved for the professional standing army only. In our Bill of Rights, the purpose of referring to Title 10 Section 311 (b)(2) is to prevent violations of the Third Amendment from happening on private property. We see this happening a lot but the US Supreme Court does not discuss the importance of the Third Amendment regarding quartering of US troops and professional standing armies on private property. No, the founding fathers did not want for professional standing armies to be used on private property. An example of this was the 1992 Ruby Ridge case.
The Constitution, as ratified, flatly did not contain a Bill of Rights. Neither the Founders nor Framers wrote the Second Amendment. It was a product of the first U.S. Congress. It was not an initiative of the people, as was the Constitution written at a convention, it was an initiative of the Federal legislature. The Second Amendment to the Federal Constitution protects the individual right to keeep and bear arms. I documented that they relied on the United States legislature to draft the Bill of Rights and offer it to the States for ratification.
No. Title 10 Section 311 (a) refers to the members of the militia. Title 10 Section 311(b)(1) refers to the National Guard. Title 10 Section 311(b)(2) refers to the unorganized militia (e.g., State Defense Forces).
Did I say they did? I think we all know James Madison (a Founding Father) wrote the second amendment and introduced it to Congress. Because the Federal government wasn't to be trusted. Which was my point.
You state the following: 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. What you are referring to is Title 10 Section 311 (a) in reference to the professional standing army. This section is reserved for the professional standing army only. You do not know what you are talking about. 10 U.S.C. § 311 pertains to the militia. And no, the militia is not the regular troops or standing army. No part of 10 U.S.C. § 311 pertains to the regular troops or standing army. Black's Law Dictionary, 6th Ed. To become a member of the active duty U.S. Armed Forces, one must sign up to join. To become a member of the militia, one must be the requisite age. Regular army. The permanent military establishment, which is maintained both in peace and war according to law. Compare Militia. Black's Law Dictionary, 6th Ed. Black's Law Dictionary, 6th Ed The regular armed forces consists of persons who have been commissioned (officers) or who have enlisted (members). To become part of the regular armed forces, you obtain a commission or enlist. To become part of the militia, or to cease being part of the militia, you have a birthday.
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.
Did I say they did? Yeah, you did, and I quoted you saying it. I'll quote you again and bold face it so you can see it. Neither the Founders, nor the Framers, wrote the Bill of Rights. It was written in the U.S. Congress. The states ratified the Constitution and Washington was inaugurated, and the new government was formed without a Bill of Rights in existence.
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.
Fine. Yet the Founders And it wasn't written in the U.S. Congress. It was written by Founding Father James Madison, modified, and passed by the U.S. Congress.
So? Madison promised that one would follow. They believed him and he delivered.
And it wasn't written in the U.S. Congress. It was written by Founding Father James Madison, modified, and passed by the U.S. Congress. The Founders held a revolution. They did not include the second amendment in the Declaration of Independence or Articles of Confederation. The Framers attended a Constitutional Convention and crafted the text of the original Constitution, as ratified, with NO amendments. Representative Madison, as a member of Congress, initiated the process of calling for drafting of amendments by the Congress. Madison's congressional campaign pledge to introduce amendments to the Constitution came after ratification. He was not running for Congress before there was a Constitution. Madison was the primary author of most of the amendments that were adopted as the Bill of Rights, but what Madison proposed is not what came out of the congressional sausage machine. His draft was amended in the House, further amended in the Senate, further amended by the House-Senate Conference Committee, and the Committee issued a report with their final draft. It was written in the Congress. https://en.wikipedia.org/wiki/United_States_Bill_of_Rights Anticipating amendments James Madison, primary author and chief advocate for the Bill of Rights in the First Congress The 1st United States Congress, which met in New York City's Federal Hall, was a triumph for the Federalists. The Senate of eleven states contained 20 Federalists with only two Anti-Federalists, both from Virginia. The House included 48 Federalists to 11 Anti-Federalists, the latter of whom were from only four states: Massachusetts, New York, Virginia and South Carolina.[34] Among the Virginia delegation to the House was James Madison, Patrick Henry's chief opponent in the Virginia ratification battle. In retaliation for Madison's victory in that battle at Virginia's ratification convention, Henry and other Anti-Federalists, who controlled the Virginia House of Delegates, had gerrymandered a hostile district for Madison's planned congressional run and recruited Madison's future presidential successor, James Monroe, to oppose him.[35] Madison defeated Monroe after offering a campaign pledge that he would introduce constitutional amendments forming a bill of rights at the First Congress.[36] Originally opposed to the inclusion of a bill of rights in the Constitution, Madison had gradually come to understand the importance of doing so during the often contentious ratification debates. By taking the initiative to propose amendments himself through the Congress, he hoped to preempt a second constitutional convention that might, it was feared, undo the difficult compromises of 1787, and open the entire Constitution to reconsideration, thus risking the dissolution of the new federal government. Writing to Jefferson, he stated, "The friends of the Constitution, some from an approbation of particular amendments, others from a spirit of conciliation, are generally agreed that the System should be revised. But they wish the revisal to be carried no farther than to supply additional guards for liberty."[37] He also felt that amendments guaranteeing personal liberties would "give to the Government its due popularity and stability".[38] Finally, he hoped that the amendments "would acquire by degrees the character of fundamental maxims of free government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion".[39] Historians continue to debate the degree to which Madison considered the amendments of the Bill of Rights necessary, and to what degree he considered them politically expedient; in the outline of his address, he wrote, "Bill of Rights—useful—not essential—".[40] On the occasion of his April 30, 1789 inauguration as the nation's first president, George Washington addressed the subject of amending the Constitution. He urged the legislators, - - - - - - - - - - First. That there be prefixed to the constitution a declaration that all power is originally vested in, and consequently derived from the people. That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution. Secondly. That in article 1st, section 2, clause 3, these words be struck out, to wit: "The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made;" and in place thereof be inserted these words, to wit: "After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to—, after which the proportion shall be so regulated by Congress, that the number shall never be less than—, nor more than—, but each State shall, after the first enumeration, have at least two Representatives; and prior thereto." Thirdly. That in article 2nd, section 6, clause 1, there be added to the end of the first sentence, these words, to wit, "But no law varying the compensation last ascertained shall operate before the next ensuing election of representatives." Fourthly. That in article 2nd, section 9, between clauses 3 and 4, be inserted these clauses, to wit, The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions, or remonstrances for redress of their grievances. The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person. No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law. No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same office; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution. Fifthly. That in article 2nd, section 10, between clauses 1 and 2, be inserted this clause, to wit: No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases Sixthly. That article 3rd, section 2, be annexed to the end of clause 2nd, these words to wit: but no appeal to such court shall be allowed where the value in controversy shall not amount to — dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law. Seventhly. That in article 3rd, section 2, the third clause be struck out, and in its place be inserted the classes following, to wit: The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same State, as near as may be to the seat of the offence. In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate. Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit: The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments. The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively. Ninthly. That article 7th, be numbered as article 8th. - - - - - - - - - - The eleven-member committee made some significant changes to Madison's nine proposed amendments, including eliminating most of his preamble and adding the phrase "freedom of speech, and of the press".[54] The House debated the amendments for eleven days. Roger Sherman of Connecticut persuaded the House to place the amendments at the Constitution's end so that the document would "remain inviolate", rather than adding them throughout, as Madison had proposed.[55][56] The amendments, revised and condensed from twenty to seventeen, were approved and forwarded to the Senate on August 24, 1789.[57] The Senate edited these amendments still further, making 26 changes of its own. Madison's proposal to apply parts of the Bill of Rights to the states as well as the federal government was eliminated, and the seventeen amendments were condensed to twelve, which were approved on September 9, 1789.[58] The Senate also eliminated the last of Madison's proposed changes to the preamble.[59] On September 21, 1789, a House–Senate Conference Committee convened to resolve the numerous differences between the two Bill of Rights proposals. On September 24, 1789, the committee issued this report, which finalized 12 Constitutional Amendments for House and Senate to consider. This final version was approved by joint resolution of Congress on September 25, 1789, to be forwarded to the states on September 28.[60][61]
Madison's promise came as a campaign pledge while running for Congress against James Monroe. That is after the Constitution was ratified. https://en.wikipedia.org/wiki/United_States_Bill_of_Rights Anticipating amendments James Madison, primary author and chief advocate for the Bill of Rights in the First Congress The 1st United States Congress, which met in New York City's Federal Hall, was a triumph for the Federalists. The Senate of eleven states contained 20 Federalists with only two Anti-Federalists, both from Virginia. The House included 48 Federalists to 11 Anti-Federalists, the latter of whom were from only four states: Massachusetts, New York, Virginia and South Carolina.[34] Among the Virginia delegation to the House was James Madison, Patrick Henry's chief opponent in the Virginia ratification battle. In retaliation for Madison's victory in that battle at Virginia's ratification convention, Henry and other Anti-Federalists, who controlled the Virginia House of Delegates, had gerrymandered a hostile district for Madison's planned congressional run and recruited Madison's future presidential successor, James Monroe, to oppose him.[35] Madison defeated Monroe after offering a campaign pledge that he would introduce constitutional amendments forming a bill of rights at the First Congress.[36]
My point was that they did not trust the federal government. The BOR is proof of that.
In your dreams. The Congressional Register, on the amendments, holds otherwise. Congressional Register, Vol. 2, p. 107 July 21, 1789 Mr. GERRY "A perfect reliance on the congress." "A perfect reliance on the congress." One more time. "A perfect reliance on the congress." Or, as you put it at #11,
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.
As I said, they didn't like it but they trusted Madison to add a Bill of Rights.
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.
You're going to have a difficult time period with just the fact that right now there are millions of seriously armed people in this country that are absolutely not members of the organized professional standing army. And I can tell you this, that for those like yourselves and others who stand only for an organized trained militia, there will come a time when you will need the backing of those "untrained" ones. I see that coming soon because this country is long overdue for a revolution.
What happens when some future U.S. Supreme Court rules that the second amendment doesn't protect hanguns? Or assault rifles? Do you trust them or your own state to protect your gun rights?
It took both houses of Congress and 3/4th of the states to add any amendment. Madison had one vote in the House and no say in the Senate.
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. 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). 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]
The Heller Supreme court determines the law? Or the Cruikshank Supreme court? Or the Presser Supreme Court? Or the Miller Supreme court? 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.
I'm sorry you must make believe you do not know.
The second amendment protected the right of the people to keep and bear arms, not all individuals. The second amendment didn't protect the right for non-citizens, children, women, slaves, or illegals. 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.
You're going to have a difficult time period with just the fact that right now there are millions of seriously armed people in this country that are absolutely not members of the organized professional standing army. And I can tell you this, that for those like yourselves and others who stand only for an organized trained militia, there will come a time when you will need the backing of those "untrained" ones. I see that coming soon because this country is long overdue for a revolution. ---- goldilucky Well done, Goldilucky.. ---- You're one of the many here that have come to realize how our resident closet communitarian, misterwhite, spreads his anti- constitutional agitprop.. Keep up the good work.. This guy is (and has been since the early days of FR) a ringer troll, a near perfect example of 'deep state' thinking.
As I said. That's how the Heller court ruled, but I don't agree. Those three cases support my view.
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)?
And yet ...
And Plessy v. Ferguson supports the view that separate but equal is lawful, proving the Plessy was overturned Brown.
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.
If you say so. http://law.justia.com/codes/us/2012/title-10/subtitle-a/part-i/chapter-13/section-311/ §311. Militia: composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. (Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85–861, §1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103–160, div. A, title V, §524(a), Nov. 30, 1993, 107 Stat. 1656.) You get your RKBA, if you are an able male, when you turn 17 years of age, and are a citizen or have made a declaration of intention to become a citizen of the United States. You lose your RKBA when you turn 45 years of age. If you are female, you get your RKBA if you are a citizen who is a member of the National Guard, and lose your RKBA if you leave the Guard. Your logic is a marvel to behold.
Chan - You have always inferred that individual rights are subject to government regulation. FUCK OFF AND DIE!
Fuck off and read some history rather than just speak from ignorance. One needs to determine what was intended by the term "the right of the people to keep and bear arms" to determine what shall not be infringed. As stated in 1802 and quoted in Lynch v. Clarke in 1844, "The constitution is unintelligible without reference, to the common law." By the interpretation of some, one must find the Framers intended to protect, and did protect, a right that did not then exist and had never existed in the colonies, the several states or the United States. It was the colonial common law right to keep and bear arms that was carried forth into the union. Lynch v. Clarke, New York Legal Observer, Vol 3, 236, 245 (1844) Quotes from State Constitutions Paragraph 1. Be it enacted and declared by the Governor, and Council, and House of Representatives, in General Court assembled, That the ancient Form of Civil Government, contained in the Charter from Charles the Second, King of England, and adopted by the People of this State, shall be and remain the Civil Constitution of this State, under the sole authority of the People thereof, independent of any King or Prince whatever. - - - - - Delaware 1776 Art. 25. The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention. - - - - - Maryland, 1776 III. That the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which, by experience, have been found applicable to their local and other circumstances, and of such others as have been since made in England, or Great Britain, and have been introduced, used and practised by the courts of law or equity; and also to acts of Assembly, in force on the first of June seventeen hundred and seventy-four, except such as may have since expired, or have been or may be altered by acts of Convention, or this Declaration of Rights—subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State: and the inhabitants of Maryland are also entitled to all property, derived to them, from or under the Charter, granted by his Majesty Charles I. to Cæcilius Calvert, Baron of Baltimore. - - - - - New Jersey, 1776 XXI. That all the laws of this Province, contained in the edition lately published by Mr. Allinson, shall be and remain in full force, until altered by the Legislature of this Colony (such only excepted, as are incompatible with this Charter) and shall be, according as heretofore, regarded in all respects, by all civil officers, and others, the good people of this Province. XXII. That the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter; and that the inestimable right of trial by jury shall remain confirmed as a part of the law of this Colony, without repeal, forever. - - - - - New York, 1777 XXXV. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the state law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. That such of the said acts, as are temporary, shall expire at the times limited for their duration respectively. That all such parts of the said common law, and all such of the said statutes and acts aforesaid, or parts thereof, as may be construed to establish or maintain any particular denomination of Christians or their ministers, or concern the allegiance heretofore yielded to, and the supremacy, sovereignty, government, or prerogatives claimed or exercised by, the King of Great Britain and his predecessors, over the colony of New York and its inhabitants, or are repugnant to this constitution, be, and they hereby are, abrogated and rejected. And this convention doth further ordain, that the resolves or resolutions of the congresses of the colony of New York, and of the convention of the State of New York, now in force, and not repugnant to the government established by this constitution, shall be considered as making part of the laws of this State; subject, nevertheless, to such alterations and provisions as the legislature of this State may, from time to time, make concerning the same. 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 (1765)
I don't know about you but England's concept of "individual rights" was kicked out of the USA about 250 years ago. Sorry concerning your ignorance, but you are a loser.
If you are female, you get your RKBA if you are a citizen who is a member of the National Guard, and lose your RKBA if you leave the Guard. Your logic is a marvel to behold. nolu chan The above 'logic' was addressed to misterwhite. --- It proves my point..
Sorry concerning your ignorance, but you are a loser. Sorry, all of the original states adopted the English Common law, eiter by the Constitution or by statute for such portions not inconsistent with the Constitution. Sorry to ave to correct your ignorance yet again.
Mine? You're presenting the current definition of a militia and using that to interpret the meaning of the second amendment when it was written. The second amendment mentions a militia, refers to "the people" (not all citizens) and, like the rest of the Bill of Rights, only was a restriction on the federal government. From that, how do you define the second amendment as protecting an individual right to keep a handgun in the home for self defense? That wasn't the ruling given in the Cruikshank, Presser and Miller courts.
... 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.
From that, how do you define the second amendment as protecting an individual right to keep a handgun in the home for self defense? That's some horseshit you made up, not something I said. It is an individual right. It was necessary that the individual right be protected so that individuals could protect themselves, and when called up to the militia, that they be armed and ready. The right is an individual right, not a right belonging to members of the militia only. Your asiten nonsense would mean that nobody would have a right to keep and bear arms until they were 17, and they would all lost their right to keep and bear arms when they reach 45. 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 (1765) Under the ruling from the Dred Scott court, Blacks could never become citizens. And under the 18th Amendment, the sale, transportation, importation, or exportation of booze was prohibited. Heller directly adddressed Cruickshank, Presser, and Miller. District of Columbia v. Heller, S. Ct. 26 June 2008, Syllabus: (b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved. Pp. 22-28. (c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28-30. (d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30-32. (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court's conclusion. Pp. 32-47. (f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264-265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47-54. 2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not 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. Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54-56. 3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56-64. 478 F. 3d 370, affirmed.
... 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: - - - - - - - - - - District of Columbia v Heller, S. Ct. (2008) From Heller at 581: Heller at 582: Heller at 584: Heller at 620: Heller at 624-25: We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. Heller at 626: Heller at 627-28: Black's Law Dictionary, 6 Ed. 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: 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: 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
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.
I never said they didn't have the right. They do. Just that the second amendment doesn't protect it. So you can stop citing Blackstone, too.
Yeah. In common use by the militia. According to Miller: "... when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Meaning, they were to show up with weapons supplied by themselves and commonly used by the militia. They were not expected to show up with a revolver. 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.
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. The 2nd Amendment does protect the individual right to keep and bear arms, as explicitly expressed and held by current Supreme Court precedent. [...] 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] 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] - - - - - - - - - - [598] 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] - - - - - - - - - - [619] 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] 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] 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] Held: The judgment is reversed, and the case is remanded. - - - - - - - - - - [Syllabus at 2] - - - - - - - - - - [Syllabus at 3] - - - - - - - - - - [9] - - - - - - - - - - [10] 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] 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] - - - - - - - - - -
Which replaced the Cruikshank/Presser/Miller precedent. What good is precedent if the courts ignore precedent? "three very old cases that you happen to like." They're old?? How about your citations of English common law?
Correct. Those used by a militia. The Miller court was unsure whether a sawed-off, double-barrel shotgun was a militia weapon.
Right. States shall not infringe the right of a state to form a state militia. When you start distorting the meaning of the second amendment, you end up looking foolish.
Uh-huh. And now 5 justices will tell every citizen the type of weapon they may have for individual self-defense, where they may carry it (if at all), how they may carry it, and when and where they may use it. Some basic right.
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. ------ 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 Uh-huh. And now 5 justices will tell every citizen the type of weapon they may have for individual self-defense, where they may carry it (if at all), how they may carry it, and when and where they may use it. Some basic right. --- misterwrong It is clear that the Framers protected us from a Supreme Court that can infringe upon the 2nd. Our resident troll tries to tell us different.. Ignore his bullshit..
[misterwhite #69] Which replaced the Cruikshank/Presser/Miller precedent. What good is precedent if the courts ignore precedent? Your claimed abject ignorance of the legal system is amusing. There is no Cruickshank/Presser/Miller precedent on whether the right to keep and bear arms is an individual right. Cruickshank/Presser/Miller held that the 2nd Amendment had not been incorporated into the 14th Amendment, and therefore did not apply to the states, and only applied to the Federal government. Under the bullshit you misunderstand, but ignorantly defend, it was held that States, or municipalities in States, could ban ownership of entire classes of weapons, such as handguns. That was held not to be a violation of the 2nd Amendment RKBA because under Cruickshank/Presser/Miller the 2nd Amendment did not apply to them. Cruickshank/Presser/Miller did not establish a precedent regarding whether the right to keep and bear arms is an individual right or not. In those case, the Court did not directly adddress, or decide, that matter. Dicta does not establish precedent. You claim ignorance that a precedent established by a court cannot bind itself. It only binds lower courts. No precedent is ever binding upon the U.S. Supreme Court. [misterwhite #69] They're old?? How about your citations of English common law? The English common law was cited as the original source of the 2nd Amendment right to keep and bear arms. It was not cited as precedent. Statute law always takes precedent over common law. No federal common law has been created in the United States since the Constitutional government was formed, nor can it be.
[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, 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?
[misterwhite #71] Right. States shall not infringe the right of a state to form a state militia. When you start distorting the meaning of the second amendment, you end up looking foolish. No blockhead. SCOTUS was considering whether the 2nd Amendment was incorporated into the 14th Amendment and, therefore, applied against the States. SCOTUS decided it was incorporated and did apply against the States. Previously, your vaunted 2nd Amendment RKBA had no defense against State action as the 2nd Amendment was not applied to states. You would choose to march boldly back into the era where States could ban ownership of handguns, or other categories of weapons, and you had no legal recourse. [...] Appellants concede that municipalities may, under the Illinois Constitution, exercise their police power to enact regulations which prohibit "possession of items legislatively found to be dangerous ...", Quilici br. at 9. They draw a distinction, however, between the exercise of the police power in general and the exercise of police power with respect to a constitutionally protected right. Indeed, they vehemently insist that a municipality may not exercise its police power to completely prohibit a constitutional guarantee. [...] We agree that the state may not exercise its police power to violate a positive constitutional mandate, People v. Warren, 11 Ill. 2d 420, 143 N.E.2d 28 (1957), but we reiterate that section 22 simply prohibits an absolute ban on all firearms. Since Ordinance No. 81-11 does not prohibit all firearms, it does not prohibit a constitutionally protected right. There is no right under the Illinois Constitution to possess a handgun, nor does the state have an overriding state interest in gun control which requires it to retain exclusive control in order to prevent home rule units from adopting conflicting enactments. See City of Evanston v. Create, Inc., 85 Ill. 2d 101, 51 Ill.Dec. 688, 421 N.E.2d 196 (1981). Accordingly, Morton Grove may exercise its police power to prohibit handguns even though this prohibition interferes with an individual's liberty or property. People v. Warren, 11 Ill. 2d 420, 143 N.E.2d 28 (1957). [...] As we have noted, the parties agree that Presser is controlling, but disagree as to what Presser held. It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate when the Presser decision plainly states that "[t]he Second Amendment declares that it shall not be infringed, but this ... means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government ...." Presser v. Illinois, 116 U.S. 252, 265, 6 S. Ct. 580, 584, 29 L. Ed. 615 (1886). As the district court explained in detail, appellants' claim that Presser supports the proposition that the second amendment guarantee of the right to keep and bear arms is not subject to state restriction is based on dicta quoted out of context. Quilici v. Village of Morton Grove, 532 F. Supp. at 1181-82. This argument borders on the frivolous and does not warrant any further consideration. [...] Since we hold that the second amendment does not apply to the states, we need not consider the scope of its guarantee of the right to bear arms. For the sake of completeness, however, and because appellants devote a large portion of their briefs to this issue, we briefly comment on what we believe to be the scope of the second amendment. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982) cert denied 464 U.S. 863 (1983). Your Presser (former) precedent in action. Yeah, you like that one and want to march boldly right back to it. Three cheers for Presser and your advocacy of it. Why do you so zealously advocate for the idea of going back to when states, cities and villages could ban handguns, or other classes of weapons, and it was NOT considered a violation of the 2nd Amendment? The good old days when only a Federal law could violate the 2nd Amendment. You knew the legal significance of the holding in Presser because you stayed at a Holiday Inn Express, right?
[misterwhite #72] Uh-huh. And now 5 justices will tell every citizen the type of weapon they may have for individual self-defense, where they may carry it (if at all), how they may carry it, and when and where they may use it. Some basic right. And you are just too dumb to realize that, under your misinterpreted post-civil war opinions, a State or municipality could and did tell citizens exactly what type or class of weapon they may carry or possess. A ban on handguns by a municipality in Illinois was upheld as not infringing the 2nd Amendment because the 2nd Amendment did not apply to anything but the Federal government. Only a law issued by the Federal legislature could violate the 2nd Amendment. A state law, or local ordinance, could not violate any 2nd Amendment right, as the 2nd Amendment was inapplicable to the states. That is what you blather you want to return to? The U.S. Supreme Court is established as the ultimate arbiter of what the law is. If that does not satisfy you, you should seek out some place where the ultimate arbiter is some blogger.
Yes it is. We are in agreement. BUT, self-defense with a weapon may be restricted, limited, or even prohibited. Can a violent, psychotic felon carry around a machine gun for self-defense? "we held that individual self- defense is "the central component" of the Second Amendment right." Why? Why the second amendment? Why can't state constitutions protect the right to individual self-defense? And isn't that preferable?
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! I believe in state's rights because I don't believe in one-size-fits-all government. Get the federal government out of my life so MY state can reflect the will of it's citizens. That's known as a republic -- a form of government Benjamin Franklin challenged us to keep from people like you.
A right protected by the 2nd Amendment cannot be dependent upon the states to choose whether or not they will recognize it. As the 2nd Amendment RKBA has been incorporated into the 14th Amendment, the states may no longer enforce laws that violate the individual RKBA. Psychotic felons have no RKBA to carry around a machine gun or any other gun, or flame thrower, or surface to air missile. The RKBA is subject to regulation, just as the right to free speech is subject to regulation. Quilici speaks loudly to why our constitutional rights cannot be subjected to unchecked state or municipal government. The people did not give such unchecked power to the Federal government. They retained it for themselves. Heller and McDonald protect against state overreach.
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] You bet! So you admit you want to return to when the state constitutionally "banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion." If you just repeal the Bill of Rights, or make it inapplicable to the States, you can have what you want.
Look at how well that worked in Illinois. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
The RKBA is an individual right. Deal with it. Heller and McDonald. The RKBA is not a restriction on the federal government to leave the state militias (and their weapons) alone. What sort of right would that be? There are no more State militias. There is the National Guard.
Circular reasoning. I'm saying the right is NOT protected by the second amendment and IS protected by state constitutions. "As the 2nd Amendment RKBA has been incorporated into the 14th Amendment, the states may no longer enforce laws that violate the individual RKBA." True, but only because recent courts ruled that way. Rulings with which I don't agree. "The RKBA is subject to regulation, just as the right to free speech is subject to regulation." Well, you had me worried there with all your talk about "basic rights which can't be infringed" and "common law going back centuries". "Heller and McDonald protect against state overreach." Why oh why do you assume the federal government will protect your RKBA better than your own state? Heller and McDonald now give the federal government the exclusive power to decide what firearms are protected by the second amendment, for who, the meaning of "to keep", the meaning of "to bear" -- and their decision will now apply to every citizen in every state. Five justices will now control your right. What will happen when we have five liberal, gun-grabbing justices who conclude that your RKBA does not include "assault rifles"? That "to bear" only means "to transport unloaded" and "to keep" means locked in a state armory? You're not only an idiot, you're a traitor.
I want to return back to when the citizens of the states had the power to make those decisions. "If you just repeal the Bill of Rights, or make it inapplicable to the States, you can have what you want." When the Bill of Rights was written it did not apply to the states. That bullshit started in the 1960's.
If that's what the citizens of Morton Grove wanted, who the fuck are you to tell them how to live? Who died and made you King?
That the type of weapon protected by the second amendment was relevent to its usefulness to a militia. - - - - - - - - - - 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. [...] 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)
That's how those courts ruled. I disagree. "The RKBA is not a restriction on the federal government to leave the state militias (and their weapons) alone. What sort of right would that be?" That would be the right of a state to form and maintain a well-regulated militia consisting of armed citizens. "There are no more State militias. There is the National Guard." 21 states have State Defense Forces in addition to the National Guard. If the other 29 wish to have them, the second amendment protects their right to organize them.
Just the fact that the court connected the weapon to a state militia speaks volumes as to the meaning of the second amendment. "The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals" They were. They were citizens with full rights -- to own property, run for office, vote, bear arms in the militia. For example, Article I, Section 2 says "the people" vote for House members. Not "the citizens" vote for House members.
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.
So you admit you want to return to when the state constitutionally "banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion." If you just repeal the Bill of Rights, or make it inapplicable to the States, you can have what you want. nolu chan Good work Chan.. --- You've finally got misterwrong to admit what I've been telling this forum since we all got here.. This guy is an anti-constitutional troll.. As robertpausen, we argued these same points over 15 years ago, on FR, until we were both banned by JR for 'disruption '.
Removed by poster. Will repost.
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.
Yes. You should write SCOTUS a sternly worded letter about it. The meaning of the 2nd Amendment is not the definition of the right to keep and bear arms. Here is what a unanimous Supreme Court said in 2016 about such blather. Caetano v. Massachusetts, 14-10078, 577 US ____ (2016) per curiam This is a UNANIMOUS opinion in which the author is not identified. 1 Per Curiam SUPREME COURT OF THE UNITED STATES JAIME CAETANO v. MASSACHUSETTS ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS No. 14-10078. Decided March 21, 2016 PER CURIAM. The Court has held that "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," District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this "Second Amendment right is fully applicable to the States," McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining "whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment." 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015). The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they "were not in common use at the time of the Second Amendment's enactment." Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller's clear statement that the Second Amendment "extends . . . to . . . arms . . . that were not in existence at the time of the founding." 554 U. S., at 582. The court next asked whether stun guns are "dangerous per se at common law and unusual," 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one "important limitation on the right to keep and carry arms," Heller, 554 U. S., at 627; see ibid. (referring to "the historical tradition of prohibiting the carrying of 'dangerous and 2 CAETANO v. MASSACHUSETTS Per Curiam unusual weapons' "). In so doing, the court concluded that stun guns are "unusual" because they are "a thoroughly modern invention." 470 Mass., at 781, 26 N. E. 3d, at 693-694. By equating "unusual" with "in common use at the time of the Second Amendment's enactment," the court's second explanation is the same as the first; it is inconsistent with Heller for the same reason. Finally, the court used "a contemporary lens" and found "nothing in the record to suggest that [stun guns] are readily adaptable to use in the military." 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposition "that only those weapons useful in warfare are protected." 554 U. S., at 624-625. For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court's precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. - - - - - - - - - - And here is the concurring opinion which accompanied the per curiam opinion. 1 ALITO, J., concurring in judgment SUPREME COURT OF THE UNITED STATES JAIME CAETANO v. MASSACHUSETTS ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS No. 14-10078. Decided March 21, 2016 Justice Alito, with whom Justice Thomas joins, concurring in the judgment. After a "bad altercation" with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and "in fear for [her] life." Tr. 31, 38 (July 10, 2013). She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun "for self-defense against [her] former boy friend," 470 Mass. 774, 776, 26 N. E. 3d 688, 690 (2015), Caetano accepted the weapon. It is a good thing she did. One night after leaving work, Caetano found her ex-boyfriend "waiting for [her] outside." Tr. 35. He "started screaming" that she was "not gonna [expletive deleted] work at this place" any more because she "should be home with the kids" they had together. Ibid. Caetano's abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn't need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: "I'm not gonna take this anymore. . . . I don't wanna have to [use the stun gun on] you, but if you don't leave me alone, I'm gonna have to." Id., at 35-36. The gambit worked. The ex-boyfriend "got scared and he left [her] alone." Id., at 36. It is settled that the Second Amendment protects an individual right to keep and bear arms that applies against both the Federal Government and the States. District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010). That right 2 CAETANO v. MASSACHUSETTS ALITO, J., concurring in judgment vindicates the "basic right" of "individual self-defense." Id., at 767; see Heller, supra, at 599, 628. Caetano's encounter with her violent ex-boyfriend illustrates the connection between those fundamental rights: By arming herself, Caetano was able to protect against a physical threat that restraining orders had proved useless to prevent. And, commendably, she did so by using a weapon that posed little, if any, danger of permanently harming either herself or the father of her children. Under Massachusetts law, however, Caetano's mere possession of the stun gun that may have saved her life made her a criminal. See Mass. Gen. Laws, ch. 140, §131J (2014). When police later discovered the weapon, she was arrested, tried, and convicted. The Massachusetts Supreme Judicial Court affirmed the conviction, holding that a stun gun "is not the type of weapon that is eligible for Second Amendment protection" because it was "not in common use at the time of [the Second Amendment's] enactment." 470 Mass., at 781, 26 N. E. 3d, at 693. This reasoning defies our decision in Heller, which rejected as "bordering on the frivolous" the argument "that only those arms in existence in the 18th century are protected by the Second Amendment." 554 U. S., at 582. The decision below also does a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not. The events leading to Caetano's prosecution occurred sometime after the confrontation between her and her ex-boyfriend. In September 2011, police officers responded to a reported shoplifting at an Ashland, Massachusetts, supermarket. The store's manager had detained a suspect, but he identified Caetano and another person in the parking lot as potential accomplices. Police approached the two and obtained Caetano's consent to search her Cite as: 577 U. S._(2016) 3 ALITO, J., concurring in judgment purse. They found no evidence of shoplifting, but saw Caetano's stun gun. Caetano explained to the officers that she had acquired the weapon to defend herself against a violent ex-boyfriend. The officers believed Caetano, but they arrested her for violating Mass. Gen. Laws, ch. 140, §131J, "which bans entirely the possession of an electrical weapon," 470 Mass., at 775, 26 N. E. 3d, at 689.1 When Caetano moved to dismiss the charge on Second Amendment grounds, the trial court denied the motion. A subsequent bench trial established the following undisputed facts. The parties stipulated that Caetano possessed the stun gun and that the weapon fell within the statute's prohibition.2 The Commonwealth also did not challenge Caetano's testimony that she possessed the weapon to defend herself against the violent ex-boyfriend. Indeed, the prosecutor urged the court "to believe the defendant." Tr. 40. The trial court nonetheless found __________ 1 Specifically, the statute prohibits the possession of any "portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is designed to incapacitate temporarily, injure or kill." Mass. Gen. Laws, ch. 140, §131J (2014). The statute includes exceptions for law-enforcement officers and weapon suppliers, who may possess electrical weapons "designed to incapacitate temporarily." Ibid. Violations are punishable by a fine of $500 to $1,000, imprisonment of 6 months to 2% years, or both. Ibid. 2 Stun guns like Caetano's "are designed to stun a person with an electrical current" by running a current between two metal prongs on the device and placing the prongs in direct contact with the person. 470 Mass. 774, 775, n. 2, 26 N. E. 3d 688, 689, n. 2 (2015). A similar device, popularly known by the brand name "Taser," shoots out wires tipped with electrodes that can deliver an electrical current from a distance. Tr. 25-26. Tasers can also be used like a stun gun without deploying the electrodes—a so-called "dry stun." Id., at 26. As the Commonwealth's witness testified at trial, these sorts of electrical weapons are "non-lethal force" "designed to incapacitate"—"not kill"—a target. Id., at 27. 4 CAETANO v. MASSACHUSETTS ALITO, J., concurring in judgment Caetano guilty, and she appealed to the Massachusetts Supreme Judicial Court. The Supreme Judicial Court rejected Caetano's Second Amendment claim, holding that "a stun gun is not the type of weapon that is eligible for Second Amendment protection." 470 Mass., at 775, 26 N. E. 3d, at 689. The court reasoned that stun guns are unprotected because they were "not 'in common use at the time' of enactment of the Second Amendment," id., at 781, 26 N. E. 3d, at 693 (quoting Heller, supra, at 627), and because they fall within the "traditional prohibition against carrying dangerous and unusual weapons," 470 Mass., at 779, 26 N. E. 3d, at 692 (citing Heller, supra, at 627). Although the Supreme Judicial Court professed to apply Heller, each step of its analysis defied Heller's reasoning. The state court repeatedly framed the question before it as whether a particular weapon was " 'in common use at the time' of enactment of the Second Amendment." 470 Mass., at 781, 26 N. E. 3d, at 693; see also id., at 779, 780, 781, 26 N. E. 3d, at 692, 693, 694. In Heller, we emphatically rejected such a formulation. We found the argument "that only those arms in existence in the 18th century are protected by the Second Amendment" not merely wrong, but "bordering on the frivolous." 554 U. S., at 582. Instead, we held that "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." Ibid. (emphasis added).3 It is hard to __________ 3 Stun guns are plainly "bearable arms." As Heller explained, the term includes any "[w]eapo[n] of offence" or "thing that a man wears for his defence, or takes into his hands," that is "carr[ied] . . . for the purpose of offensive or defensive action." 554 U. S., at 581, 584 (inter- Cite as: 577 U. S._(2016) 5 ALITO, J., concurring in judgment imagine language speaking more directly to the point. Yet the Supreme Judicial Court did not so much as mention it. Instead, the court seized on language, originating in United States v. Miller, 307 U. S. 174 (1939), that "'the sorts of weapons protected were those "in common use at the time."'" 470 Mass., at 778, 26 N. E. 3d, at 692 (quoting Heller, supra, at 627, in turn quoting Miller, supra, at 179). That quotation does not mean, as the court below thought, that only weapons popular in 1789 are covered by the Second Amendment. It simply reflects the reality that the founding-era militia consisted of citizens "who would bring the sorts of lawful weapons that they possessed at home to militia duty," Heller, 554 U. S., at 627, and that the Second Amendment accordingly guarantees the right to carry weapons "typically possessed by law-abiding citizens for lawful purposes," id., at 625. While stun guns were not in existence at the end of the 18th century, the same is true for the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols. Revolvers were virtually unknown until well into the 19th century,4 and semiautomatic pistols were not invented until near the end of that century.5 Electronic stun guns are no more exempt from the Second Amendment's protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment. Id., at 582 (citing Reno v. American Civil Liberties Union, 521 __________ nal quotation marks omitted). 4 See J. Bilby, A Revolution in Arms: A History of the First Repeating Rifles 23 (2006). Samuel Colt did not patent his famous revolver until 1836. Ibid. 5 See Firearms: An Illustrated History 166 (2014); see also W. Greener, The Gun and Its Development 524-529, 531-534 (9th ed. 1910) (discussing revolvers and self-loading semiautomatic pistols as "modern pistols"). 6 CAETANO v. MASSACHUSETTS ALITO, J., concurring in judgment U. S. 844, 849 (1997), and Kyllo v. United States, 533 U. S. 27, 35-36 (2001)). As Heller aptly put it: "We do not interpret constitutional rights that way." 554 U. S., at 582. The Supreme Judicial Court's holding that stun guns may be banned as "dangerous and unusual weapons" fares no better. As the per curiam opinion recognizes, this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual. Because the Court rejects the lower court's conclusion that stun guns are "unusual," it does not need to consider the lower court's conclusion that they are also "dangerous." See ante, at 1-2. But make no mistake—the decision below gravely erred on both grounds. As to "dangerous," the court below held that a weapon is "dangerous per se" if it is " 'designed and constructed to produce death or great bodily harm' and 'for the purpose of bodily assault or defense.'" 470 Mass., at 779, 26 N. E. 3d, at 692 (quoting Commonwealth v. Appleby, 380 Mass. 296, 303, 402 N. E. 2d 1051, 1056 (1980)). That test may be appropriate for applying statutes criminalizing assault with a dangerous weapon. See ibid., 402 N. E. 2d, at 1056. But it cannot be used to identify arms that fall outside the Second Amendment. First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. See Heller, supra, at 627 (contrasting "'dangerous and unusual weapons' " that may be banned with protected "weapons . . . 'in common use at the time' "). Second, even in cases where dangerousness might be relevant, the Supreme Judicial Court's test sweeps far too broadly. Heller defined the "Arms" covered by the Second Amendment to include " 'any thing that a man wears for his defence, or takes into his Cite as: 577 U. S._(2016) 7 ALITO, J., concurring in judgment hands, or useth in wrath to cast at or strike another.'" 554 U. S., at 581. Under the decision below, however, virtually every covered arm would qualify as "dangerous." Were there any doubt on this point, one need only look at the court's first example of "dangerous per se" weapons: "firearms." 470 Mass., at 779, 26 N. E. 3d, at 692. If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous. 554 U. S., at 636. A fortiori, stun guns that the Commonwealth's own witness described as "non-lethal force," Tr. 27, cannot be banned on that basis. 2 The Supreme Judicial Court's conclusion that stun guns are "unusual" rested largely on its premise that one must ask whether a weapon was commonly used in 1789. See 470 Mass., at 780-781, 26 N. E. 3d, at 693-694. As already discussed, that is simply wrong. See supra, at 4-6. The court also opined that a weapon's unusualness depends on whether "it is a weapon of warfare to be used by the militia." 470 Mass., at 780, 26 N. E. 3d, at 693. It asserted that we followed such an approach in Miller and "approved its use in Heller." 470 Mass., at 780, 26 N. E. 3d, at 693. But Heller actually said that it would be a "startling reading" of Miller to conclude that "only those weapons useful in warfare are protected." 554 U. S., at 624. Instead, Miller and Heller recognized that militia members traditionally reported for duty carrying "the sorts of lawful weapons that they possessed at home," and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon's suitability for military use. 554 U. S., at 627; see id., at 624-625. Indeed, Heller acknowledged that advancements in military technology might render many commonly owned weapons ineffective in warfare. Id., at 627-628. But such "modern developments . . . cannot change our 8 CAETANO v. MASSACHUSETTS ALITO, J., concurring in judgment interpretation of the right." Ibid. In any event, the Supreme Judicial Court's assumption that stun guns are unsuited for militia or military use is untenable. Section 131J allows law enforcement and correctional officers to carry stun guns and Tasers, presumably for such purposes as nonlethal crowd control. Subduing members of a mob is little different from "suppressing] Insurrections," a traditional role of the militia. U. S. Const., Art. I, §8, cl. 15; see also ibid. (militia may be called forth "to execute the Laws of the Union"). Additionally, several branches of the U. S. armed services equip troops with electrical stun weapons to "incapacitate a target without permanent injury or known side effects." U. S. Army, Project Manager Close Combat Systems, PD Combat Munitions: Launched Electrode Stun Device (LESD), http://www.pica.army.mil/pmccs/combatmunitions/nonlethalsys/taserx26e.html (all Internet materials as last visited Mar. 18, 2016); see U. S. Marine Corps Administrative Message 560/08 (Oct. 2, 2008) (Marine Corps guidance for use of Tasers), http://www.marines.mil/News/Messages/MessagesDisplay/tabid/13286/Article/1130 24/marine-corps-training-and-use-of-human-electro-muscular-incapacitation-hemi-dev.aspx; Joint Non-Lethal Weapons Directorate, Non-Lethal Weapons (NLW) Reference Book 3 (2012) (Department of Defense report stating that "[m]ultiple Services employ" Tasers), http://dtic.mil/dtic/tr/fulltext/u2/a565971.pdf. As the foregoing makes clear, the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today. The Supreme Judicial Court offered only a cursory discussion of that question, noting that the "'number of Tasers and stun guns is dwarfed by the number of firearms.'" 470 Mass., at 781, 26 N. E. 3d, at 693. This ob- Cite as: 577 U. S._(2016) 9 ALITO, J., concurring in judgment servation may be true, but it is beside the point. Otherwise, a State would be free to ban all weapons except handguns, because "handguns are the most popular weapon chosen by Americans for self-defense in the home." Heller, supra,at 629. The more relevant statistic is that "[h]undreds of thousands of Tasers and stun guns have been sold to private citizens," who it appears may lawfully possess them in 45 States. People v. Yanna, 297 Mich. App. 137, 144, 824 N. W. 2d 241, 245 (2012) (holding Michigan stun gun ban unconstitutional); see Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199, 244 (2009) (citing stun gun bans in seven States); Wis. Stat. §941.295 (Supp. 2015) (amended Wisconsin law permitting stun gun possession); see also Brief in Opposition 11 (acknowledging that "approximately 200,000 civilians owned stun guns" as of 2009). While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts' categorical ban of such weapons therefore violates the Second Amendment. The lower court's ill treatment of Heller cannot stand. The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense. The Supreme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. 470 Mass., at 783, 26 N. E. 3d, at 695. But the right to bear other weapons is "no answer" to a ban on the possession of protected arms. Heller, 554 U. S., at 629. Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should 10 CAETANO v. MASSACHUSETTS ALITO, J., concurring in judgment not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.6 Countless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons—or simply out of fear of killing the wrong person. See Brief for Arming Women Against Rape & Endanger-ment as Amicus Curiae 4-5. "Self-defense," however, "is a basic right." McDonald, 561 U. S., at 767. I am not prepared to say that a State may force an individual to choose between exercising that right and following her conscience, at least where both can be accommodated by a weapon already in widespread use across the Nation. * * * A State's most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court's grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense. See Pet. for Cert. 14. If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe. __________ 6 The court below also noted that Massachusetts no longer requires a license to possess mace or pepper spray. 470 Mass., at 783, 26 N. E. 3d, at 695. But the law was changed in 2014, after Caetano was convicted. A spray can also be foiled by a stiff breeze, while a stun gun cannot. In July 2016, Massachusetts dropped the charges.
21 states have State Defense Forces in addition to the National Guard. If the other 29 wish to have them, the second amendment protects their right to organize them. https://en.wikipedia.org/wiki/State_defense_force State defense forces are distinct from their state's National Guard in that they cannot become federal entities. All state National Guard personnel (to include the National Guard of the District of Columbia, the Commonwealth of Puerto Rico and the territories of Guam and the Virgin Islands) can be federalized under the National Defense Act Amendments of 1933 with the creation of the National Guard of the United States. This provides the basis for integrating units and personnel of the Army National Guard into the U.S. Army and, since 1947, units and personnel of the Air National Guard into the U.S. Air Force. The federal government recognizes state defense forces, as per the Compact Clause of the U.S. Constitution, under 32 U.S.C. § 109 which provides that state defense forces as a whole may not be called, ordered, or drafted into the armed forces of the United States, thus preserving their separation from the National Guard. However, under the same law, individual members serving in the state defense force are not exempt from service in the armed forces (i.e., they are not excluded from the draft). Under 32 USC § 109(e), "A person may not become a member of a defense force ... if he is a member of a reserve component of the armed forces." The defense forces are created pursuant to 32 U.S.C. 109. They are subject to being drafted into the U.S. armed forces. https://law.justia.com/codes/us/2016/title-32/chapter-1/sec.-109/ (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. https://en.wikipedia.org/wiki/Militia_(United_States) Organized militia – consisting of State militia forces; notably, the National Guard and Naval Militia. (Note: the National Guard is not to be confused with the National Guard of the United States.) Unorganized militia – composing the Reserve Militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the National Guard or Naval Militia. The state defense forces do not meet the definition of the organized or unorganized militia. You may stop making believe that they are the militia, resurrected.
That would be the right of a state to form and maintain a well-regulated militia consisting of armed citizens. Perhaps you missed it, but over a century ago the state militias were changed by Federal law into the National Guard. Where did you find the constitutional right of a State to form and maintain a militia? The Constitution says Congress shall have the power, - - - - - - - - - - 21 states have State Defense Forces in addition to the National Guard. If the other 29 wish to have them, the second amendment protects their right to organize them. The militia, resurrected, they ain't. https://en.wikipedia.org/wiki/State_defense_force State defense forces are distinct from their state's National Guard in that they cannot become federal entities. All state National Guard personnel (to include the National Guard of the District of Columbia, the Commonwealth of Puerto Rico and the territories of Guam and the Virgin Islands) can be federalized under the National Defense Act Amendments of 1933 with the creation of the National Guard of the United States. This provides the basis for integrating units and personnel of the Army National Guard into the U.S. Army and, since 1947, units and personnel of the Air National Guard into the U.S. Air Force. The federal government recognizes state defense forces, as per the Compact Clause of the U.S. Constitution, under 32 U.S.C. § 109 which provides that state defense forces as a whole may not be called, ordered, or drafted into the armed forces of the United States, thus preserving their separation from the National Guard. However, under the same law, individual members serving in the state defense force are not exempt from service in the armed forces (i.e., they are not excluded from the draft). Under 32 USC § 109(e), "A person may not become a member of a defense force ... if he is a member of a reserve component of the armed forces." [...] Other problems cited by the Inspector General's office were a lack of standardization in training and physical fitness, raising questions as to the ability of SDFs to work alongside their National Guard counterparts, and a lack of coordination with and support from the Department of Defense. During a survey conducted by the Inspector General of SDF commanders and adjutant generals, 18 of 19 considered their SDFs to be part of the organized militia and subject to the Code of Military Justice, 14 of 18 considered the members of SDFs to be "soldiers", 14 of 18 considered SDF personnel to be "lawful belligerents" under the rules of war, and only 4 of 19 authorized their personnel to conduct firearms training. Almost all of the missions reported to the IG's office were non-military in nature, including small-scale search and rescue, disaster management, and other unarmed, homeland security related-tasks. [...] Some state defense forces have minimal enlistment requirements, permitting virtually any citizen under a prescribed age (usually 66) to join, even if they have no previous military experience, or don't meet conventional military physical standards (California, for instance, requires no physical fitness test prior to entry and has weight/height standards significantly more relaxed than the U.S. military). Many state defense forces allow enlistment "at will" and personnel are under no termed service obligation, unlike most conventional military forces, meaning they can simply quit at any time without facing charges of desertion or Absence Without Leave. Training standards vary widely, but usually require 15 days of annual drill, compared to the absolute minimum of 38 days (if not more) required of most federal military reserve forces. Unlike the U.S. military, there is generally only a limited period of basic training, often as few as four days for persons with no prior military experience, significantly less than the ten weeks of basic training required, for instance, by the United States Army. [...] Weapons qualification and training is provided in some SDFs. However, most SDFs do not require weapons proficiency. A 2006 report by the U.S. Freedom Foundation, an organization affiliated with the State Guard Association of the United States, recommended minimum standards for state defense forces, including weapons training, but the report has been largely ignored. Some SDFs have laws that in the event of deployment by order of the state legislature and/or governor, they will become armed. The defense forces are created pursuant to 32 U.S.C. 109. They are subject to being drafted into the U.S. armed forces. https://law.justia.com/codes/us/2016/title-32/chapter-1/sec.-109/ (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. https://en.wikipedia.org/wiki/Militia_(United_States) Organized militia – consisting of State militia forces; notably, the National Guard and Naval Militia. (Note: the National Guard is not to be confused with the National Guard of the United States.) Unorganized militia – composing the Reserve Militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the National Guard or Naval Militia. The state defense forces do not meet the definition of the organized or unorganized militia. You may stop making believe that they are the militia, resurrected.
They were. They were citizens with full rights -- to own property, run for office, vote, bear arms in the militia. For example, Article I, Section 2 says "the people" vote for House members. Not "the citizens" vote for House members. When used in a constitutional sense, the citizens and the people are one and the same. This reduces your statement to gibberish. Black's Law Dictionary, 6th Ed.
If that's what the citizens of Morton Grove wanted, who the fuck are you to tell them how to live? Who died and made you King? You died of self-inflicted wounds. You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns. Talk about a surrender monkey. Hey hey, ho ho,
Only if the state constitution allows it and the people want it. Are you saying that people don't have the right to self-governance because you, nolu chan, disagree with the decisions they're making? Is your way the better way?
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.
The Massachusetts case came after the Heller decision, so you can expect weird, convoluted second amendment rulings from here on out. The Massachusetts Supreme Court was correct -- the second amendment does not protect stun guns or sawed-off shotguns or zip guns or any other weapon not suitable for a miliria. That's not to say citizens can't have them if their state constitution protects them. Just that they're not protected by the second amendment. Now, this case proves the point I've been making since Heller was decided. Five justices on the The U.S. Supreme Court now get to define the word "arms" in the second amendment for everyone. Not the people. Not the city. Not the state. Five unelected, appointed-for-life Federal judges. You bring up the Massachusetts ruling like it's a good thing because the U.S. Supreme Court forced Massachusetts to allow stun guns. The citizens of Massachusetts don't want civilians to have stun guns. Tough shit, citizens. BUT what happens when some future, liberal U.S. Supreme Court defines arms as not including "assault rifles" -- the very weapons needed for protection from an out-of-control government? Still a good idea when the ruling goes against you?
If State Defense Forces don't meet the definition of a modern day state militia, then I don't know what does. Next you'll be telling me that an AR-15 doesn't meet the definition of "arms" because it's not a muzzle-loader. (I will not be surprised when the U.S. Supreme Court defines it that way.)
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.
Not when the U.S. Constitution was written. And if we're looking for the meaning of the second amendment, that's what you go on. "People ... In a more restricted sense, and as generally used in constitutional law, the entire body of those citizens of a state or nation who are invested with the political power for political purposes." First of all, the term is "the people", not "people", not "persons", not "individuals, not "citizens". Each one had a different meaning in the U.S. Constitution. Second, were your "people" -- the the the entire body of those citizens -- allowed to vote? Children weren't. Women weren't. Non-property owners weren't. Could those groups run for office? (No.) So how can you possibly include them with those "who are invested with the political power for political purposes"?
nolu chan ------ "You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns. Talk about a surrender monkey". Misterwrong ------ Only if the state constitution allows it and the people want it. Are you saying that people don't have the right to self-governance because you, nolu chan, disagree with the decisions they're making? State constitutions or State/local 'laws' cannot infringe on 2nd amendment rights, -- (see the Supremacy Clause),....
Only if the state constitution allows it and the people want it. Are you saying that people don't have the right to self-governance because you, nolu chan, disagree with the decisions they're making? The Federal Constitution prohibits infringing upon the right of the people to keep and bear arms. The people reserved the right to themselves and neither the Federal government, nor a lawless, usurping State government has the lawful power to infringe upon this right of the people. This is true regardless of your mindless blatherings, or my astute observations of the actual law and current U.S. Supreme Court precedent.
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.
The Massachusetts case followed the precedent in Heller. Caetano v. Massachusetts was a UNANIMOUS decision of the U.S. Supreme Court. If you do not like the legally binding precedents of the U..S. Supreme Court, send them a sternly worded letter giving them the benefit of your wisdom. Yes, it has not changed. The U.S. Supreme Court is empowered by the people to issue a legally binding definition. You are not.
If State Defense Forces don't meet the definition of a modern day state militia, then I don't know what does. Finally, you made a statement that appears to be absolutely true.
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're blowing it out of your ass. Article 1, Section 8: 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/ 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. 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.
Not when the U.S. Constitution was written. Again, you are full of shit. That is the usage of the Framers. That is why it is applicable in constitutional usage. “ ‘[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.” Heller, 554 U.S. 570, 590 (2008)
In 1990 and in 2008, "the people" referred to a different class of citizens. But back when the U.S. Constitution and the second amendment were written, "the people" referred only to citizens with full rights -- the right to vote, to own property, to run for office. Only they were "part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” So when Article 1, Section 2 or the second amendment refers to "the people", that's who they're talking about. Not everyone. Not back then.
It does now, but only those "arms" defined as "arms" by the U.S. Supreme Court. And "keep" as defined by the U.S. Supreme Court. And "bear" as defined by the U.S. Supreme Court.
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.
Do you? You certainly don't like the precedents of Cruikshank, Presser or Miller. Those weren't legally binding precedents. They were mere suggestions, right? "The U.S. Supreme Court is empowered by the people to issue a legally binding definition." Which, in second amendment cases, would only bind the federal government. But that's now changed with Heller and McDonald. Now the court decides for everyone.
Then stop referencing common law in your posts. You can't have it both ways.
But back when the U.S. Constitution and the second amendment were written, "the people" referred only to citizens with full rights -- the right to vote, to own property, to run for office. Only they were "part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” So when Article 1, Section 2 or the second amendment refers to "the people", that's who they're talking about. Not everyone. Not back then. Quit just making shit up. The Constitution was not written in 1990 or 2008. Heller and McDonald interpreted the Constitution according to original intent at the time of the writing. Scalia [2008] and Alito [2010] were not applying your bastardized meaning of "the people."
It does now, but only those "arms" defined as "arms" by the U.S. Supreme Court. And "keep" as defined by the U.S. Supreme Court. And "bear" as defined by the U.S. Supreme Court. Yes, the Constitution only protects the right, as that right is defined by the U.S. Supreme Court. That is the system we have, where the U.S. Supreme Court is the ultimate arbiter of what the law is.
And that's where it should have stayed. It didn't. McDonald v City of Chicago, 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.
Then stop referencing common law in your posts. You can't have it both ways. Once again, your comment is asiten. Moore v. United States, 91 U.S. 270, 274 (1875) The Founders and Framers lived as colonials under English common law. The used the terminology of the common law when writing the Constitution. The Constitution is the Supreme Law of the United States. It cannot be properly understood without reference to the common law. U.S. Constitution, Article 6: The Constitution is the Supreme Law. It is legally IMPOSSIBLE for the Constitution to infringe upon common law, or any other law. No higher or equal law is recognized. All thirteen original states adopted the common law, such as did not conflict with the Constitution, either in their constitution or by statute. Common law, inconsistent with applicable written law, always falls to the written law. While the Framers used legal terminology derived from English common law when writing the Constitution, that did not make English common law the Supreme Law of the United States.
Do you? You certainly don't like the precedents of Cruikshank, Presser or Miller. Those weren't legally binding precedents. They were mere suggestions, right? You bullshittingly cited them as current precedent for all nature of silly bullshit. Current precedent of Heller (2008) and McDonald 2010 hold that the right to keep and bear arms is an individual right, that the 2nd Amendment was incorporated into the 14th Amendment, and that the 2nd Amendment applies fully to the states. Regarding that specific subject matter, your dredged up bullshit is not even a suggestion. Heller and McDonald are the law of the land. Which, in second amendment cases, would only bind the federal government. But that's now changed with Heller and McDonald. Now the court decides for everyone. Almost the entirety of the Bill of Rights has been incorporated against the states. The 2nd Amendment is no exception. - - - - - - - - - - Heller [2008] and McDonald [2010] The 2nd Amendment law that is. The Second Amendment right to keep and bear arms is an individual right. It has been oncorporated into the 14th Amendment and applies fully to the States. The States, as well as the Federal government, are restrained from infringing upon the right to keep and bear arms. - - - - - - - - - - https://www.scribd.com/document/379582277/Parker-v-District-of-Columbia-478-F3d-372-DC-Cir-2007 - - - - - - - - - - https://www.scribd.com/document/379582321/District-of-Columbia-v-Heller-554-US-570-2008 - - - - - - - - - - https://www.scribd.com/document/379582348/McDonald-v-Chicago-561-US-742-2010 - - - - - - - - - - https://www.scribd.com/document/379658141/Caetano-v-Massachusetts-14-10078-577-US-2016-Per-Curiam - - - - - - - - - - Cruickshank [1875], Presser [1886] and Miller [1939] Non-precedent for those, such as misterwhite, who yearn for the good old days when the 2nd Amendment provided no protection from states infringing the individual right to keep and bear arms. - - - - - - - - - - https://www.scribd.com/document/379702589/united-states-v-cruickshank-92-us-542-1875 - - - - - - - - - - https://www.scribd.com/document/379702620/Presser-v-Illinois-116-US-252-1886 - - - - - - - - - - https://www.scribd.com/document/379702733/United-States-v-Miller-307-US-174-1939 - - - - - - - - - - Quilici v. Morton Grove [1982] An example of the river of shit that flowed from Cruickshank [1875], Presser [1886] and Miller [1939] - - - - - - - - - - https://www.scribd.com/document/379658174/Quilici-v-Morton-Grove-532-F-Supp-1169-ND-Ill-1981 - - - - - - - - - - - - - - - - - - - -
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?
"In common law legal systems, a precedent is a rule established in a previous legal case that is binding on a court when deciding subsequent cases with similar issues or facts." (Wiki) Cruikshank, Presser and Miller were precedents. They were ignored by the Heller court. The Heller court made up a whole new definition of the second amendment in order to protect Mr. Heller. I say if the Heller court can ignore precedent, I can ignore Heller.
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.
Your argument that the Heller court lacked authority to issue its decision, due to some prior precedent, is just horseshit. I have already explained this to you. The doctrine of following precedent is stare decisis. A precedential holding only binds lower courts in the same jurisdiction. No precedent can bind the U.S. Supreme Court as there is no higher court to issue such a precedent. Under your lame, desperate grope, Roe v. Wade could never be overturned or reversed by the U.S. Supreme Court. It is notorious and blatantly obvious that the system does not work that way. In a new case, the U.S. Supreme Court can always revisit issues previously decided, and either uphold, overturn, or reverse a prior opinion. The Court can overturn Roe if it takes up a case and revisits the abortion issue.
Roe v Wade was decided on a "right to privacy" found in a penumbra of an emanation. That decision can be overturned by a court finding that no such right exists or has ever existed.
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?
The decision was correct. Just because you don't like the decision doesn't make it unconstitutional. A real river of shit was created by Heller. With the U.S. Supreme Court now in total control of defining "arms", "to keep" and "to bear" for everyone, we are totally screwed. Oh, we're ok now since conservatives control the court. And you're all shits and giggles because so far they've ruled your way. Once liberals control the U.S. Supreme Court, you might as well turn in your guns. There will be nothing to protect you.
Roe was a precedent setting decision by a U.S. Supreme court majority. It enjoys the same precedent setting authority other SCOTUS precedents. I see. Your version of the law is flexible to the extent that only the precedents you do not like can be overturned or reversed. When the SCOTUS acts to revisit an issue on the 2nd Amendment, that is beyond its authority, even though no precedent by SCOTUS or any other court can even be theoretically binding on SCOTUS. Keep twisting yourself in knots.
The decision was correct. Just because you don't like the decision doesn't make it unconstitutional. I did not say Quilici was unconstitutional. At the time it was issued by a majority of the U.S. Supreme Court, it was the law of the land. Just as when Plessy v. Ferguson was issued, separate but equal was the law of the land. When a subsequent holding overrules the holding of a prior holding, the old precedent is dead, and the new precedent is the law of the land. You are making a fool of yourself.
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, [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 https://www.scribd.com/document/380029027/32-Stat-775-1903-the-Dick-Act-The-Militia-Act-of-1903 - - - - - - - - - - - - - - - - - - - - [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. https://www.law.cornell.edu/constitution/articlei#section8 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/ [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: 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/ 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. 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.
If it enjoys the precedent setting authority of Cruikshank, Presser, or Heller, that ain't sayin' much, is it?
No. Only the "precedents" that are based on made up bullshit having nothing to do with the clear wording of the U.S. Constitution.
Not much of a precedent or a holding, is it, when it can be overturned by a court that just makes shit up.
I can agree with that. The constitution is made up of words that have fixed meanings. Case law is largely made up bullshit. I respect the law and constitution. Not "case law or precedent". And of course I am right.
Wrong. According to the Heller court, it protects the right of an individual to keep a handgun in the home for self-defense. That's all they ruled on. "You hilariously asserted that 2nd Amendment forbids Federal infringement on something or other in the common law regarding posse comitatus comitatus." You asked if there was some constitutional right to form a militia. I replied that the right to form a militia, posse comitatus, pre-dated the U.S. Constitution. The second amendment protects, not grants, that right. You cite all the legalese for forming a militia. Fine. But, third request, where's the legalese that says the federal government cannot disband the state militias entirely and switch to a standing federal military? Only the second amendment amigo.
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.
The constitution does protect the individual right to bear arms. "the right of the people... The people are the militia. You don't understand original intent or you are lying.
Note the wording. Words mean things. It doesn't say "the right of all citizens" or "the right of persons" or "the right of individuals", or "the right of residents" or anything else. The second amendment refers to the right of "the people" just as Article I, Section 2 refers to "... Members chosen every second Year by the People of the several States ..." Could every person vote in 1789? Every citizen? Non-land owners? No. "The people" were the citizens with full rights. Only THEY voted. Only THEY were members of a Militia. Only THEIR right to keep and bear arms as part of a Militia were protected by the second amendment. For everyone else, their RKBA was protected by their state constitution.
It is an individual right. That I have a right to defend by shooting you in the head if you try to take it away. Comprende?
I agree. I don't agree that the second amendment protects that individual right for the common citizen. That is not to say that you don't have that right. You do. Just that state constitutions, not the second amendment, protect that right.
Every SCOTUS precedent is the law of the land until overturned or reversed. You may not think that's saying much, but abortion still cannot be lawfully prohibited by any state, and the RKBA is an individual right that cannot lawfully be infringed by any state.
No. Only the "precedents" that are based on made up bullshit having nothing to do with the clear wording of the U.S. Constitution. SCOTUS precedents do not require your approval to be binding precedent. Whether your personal opinion is that SCOTUS "made up bullshit having nothing to do with the clear wording of the U.S. Constitution," is legally irrelevant. Much of the country disagrees with Roe v. Wade, but it is still unlawful for any state to prohibit abortions.
Not much of a precedent or a holding, is it, when it can be overturned by a court that just makes shit up. SCOTUS has the authority to accept a new case and revisit a relevant prior ruling, and to overturn the prior ruling if it sees fit. If it could not, there would never by any possibility of overturning Roe v. Wade. SCOTUS may find that a prior Court issued a ruling based on "made up bullshit having nothing to do with the clear wording of the U.S. Constitution." Whether your personal opinion is that SCOTUS "made up bullshit having nothing to do with the clear wording of the U.S. Constitution," is legally irrelevant. SCOTUS precedents do not require your approval to be binding precedent. Much of the country disagrees with Roe v. Wade, but it is still unlawful for any state to prohibit abortions.
Wrong. According to the Heller court, it protects the right of an individual to keep a handgun in the home for self-defense. That's all they ruled on. Heller, 554 U.S. 570: 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. 576–626. Heller, 554 U.S. 571: Heller, 554 U.S. 622, concerning Miller: Heller, 554 U.S. 627-28: - - - - - - - - - - - - - - - - - - - - Citing the non-existent, imaginary national common law of the United States? https://en.wikipedia.org/wiki/Posse_comitatus Posse Comitatus DOES NOT grant a right to form a militia. Posse Comitatus PROHIBITS the use of the military for law enforcement purposes. Posse Comitatus is not a matter of some imaginary non-existent national common law of the United States. Federally, it is subject to Federal statute law which prohibits using the military for law enforcement purposes. https://law.justia.com/codes/us/2016/title-18/part-i/chapter-67/sec.-1385/ 18 U.S.C. § 1385 (2016) §1385. Use of Army and Air Force as posse comitatus Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. (Added Aug. 10, 1956, ch. 1041, §18(a), 70A Stat. 626; amended Pub. L. 86–70, §17(d), June 25, 1959, 73 Stat. 144; Pub. L. 103–322, title XXXIII, §330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.) 20 Stat. 152 (1878) Sec. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person wilfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment. - - - - - - - - - - Only the second amendment amigo. Neither I, not the Court in Heller, nor the 2nd Amendment says anything about "a" militia, nor is there any mention of forming the militia. The Federal Government ALREADY DID extinguish the militia. By Federal law, the Federal government created and imposed the NATIONAL GUARD, amigo. The 2nd amendment speaks to a well-regulated militia, not a state militia. The reference of a free state is to the nation, the United States. Article 1, Section 8, Clauses 15 - 16 provides, 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; Heller, 554 U.S. 570, 595-97 (2008) 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. See, e. g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades...and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“the militia of the State, that is to say, of every man in it able to bear arms”). Petitioners take a seemingly narrower view of the militia, stating that “[m]ilitias are the state-and congressionallyregulated 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. Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights § 13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).
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." 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: 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: Heller, 554 U.S. 622, concerning Miller: Heller, 554 U.S. 623, concerning Miller: 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 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.
But that right will be defined by the U.S. Supreme Court for everyone in every state. That what you want? How about when the U.S. Supreme Court rules that citizens may own AR-15's, but because they're so lethal they must be kept at a shooting club or state armory?
Meaning what? If the majority of the country disagreed with Roe v Wade would the U.S. Supreme Court reverse it's decision? Suddenly discover there is no "right to privacy" in the U.S. Constitution? Is that what the U.S. Supreme Court is supposed to do -- wet their finger and stick it in the air to see which way the wind is blowing? Or are they to simply give you a call and ask how they should rule on a case?
Uh-huh. It only allows for the formation of armed private citizens to execute the laws of the Union, suppress insurrection and repel invasion. Hey, wait. That's what a militia does.
Once again, you've told me how these units were formed. Fourth request, what prevents the federal government from disbanding ALL state guard units and going with a federal standing military? After the ruling in Heller, the answer is NOTHING.
WHAT??? That wasn't in Miller!! In Miller the court said, "The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia". The second amendment specifically protects weapons not typically possessed by law abiding citizens for lawful purposes. It protects weapons of war used by a militia! The Miller court was unsure that "a shotgun having a barrel less than 18 inches long" was suitable for use by a militia and therefore protected. The Heller court, on the other hand, knows everything about weapons, who typically possesses them, and what is a lawful purpose and what isn't. So they plowed ahead and made their ruling.
That came in McDonald. So what? The two cases are tied together for purposes of discussion.
No. It says "A well regulated Militia is necessary to the security of a free State".
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.
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.
misterwrong asks: --- what makes you think the second amendment protects that right? That's what the debate is all about. The concept that our States protect the RKBA's is obviously NOT true, proved by the behaviour of States like California and New York.. Why misterwhite continues to flog this dead horse is only answerable by a mental health specialist.. --- Pity misterwrong, he's either funny in the head, or a troll.
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.
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.
Yes, I refer to the general public. Back then, it was only white people who could vote, own land, and even firearms. The black people were indentured slaves having been shipped over to New England from Africa. It was our forefathers who recognized these slaves as the biblical Hebrew Israelites. It was the President Teddy Roosevelt who gave the black slaves that opportunity to become free citizens, own land, and firearms on the condition that they served in the militia. Most people today would consider this a gross violation of the Thirteenth Amendment of those black people forced into slavery and having conditions like this as necessary to become a free member of society. In my opinion, Harriet B. Tubman did more for her people than what our government ever did for them. https://en.wikipedia.org/wiki/Harriet_Tubman Finally, it was President Lincoln who abolished slavery but would never view the black people as equal to the whites.
So, back then, the second amendment only protected the RKBA for white people who could vote and own land? Is it merely a coincidence that those are the same people who constituted a Militia and their arms were protected from federal infringement because of that?
The Second Amendment was written to apply to all free men. However, here is some interesting info to read up on why there is so much mixed controversy on this very issue. https://newrepublic.com/article/146190/brutal-origins-gun-rights Those (such as Roosevelt) who constituted the federalized militia and the enforcement of slaves into joining for purpose to be free turned this into a constitutional mess. What changed Teddy Roosevelt's infringement of the black slaves from being free people was the enactment of the first civil rights act of 1866 which is today referred to as The Civil Rights Act of 1866. More here on this https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866
That's the way it is. What I want is irrelevant. Whatever dingbat thing you want is also irrelevant. SCOTUS is empowered to expound the law.
Meaning what? If the majority of the country disagreed with Roe v Wade would the U.S. Supreme Court reverse it's decision? NO!!! Meaning that disagreement with a U.S. Supreme Court decision does not diminish its effect in any way. Roe v. Wade remains precedent, and any state law prohibiting abortion is subject to being struck down as inconsistent with that existing precedent. All courts inferior to the U.S. Supreme Court are bound by Roe and legally required to follow it.
Hey, wait. That's what a militia does. Link, cite and quote to something besides your spider infested mind. What is your source for that fictional bullshit? Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973) Appellants were found guilty of refusal to assist an officer in violation of Ark. Stat. Ann. 6 42-204 (Repl. 1964) and resisting an officer in violation of Ark. Stat. Ann. 41-2801 (Repl. 1964). They contend that Ark. Stat. Ann. 42-204 is void on its face, and as applied, in that it offends the Fourth, Fifth, Eighth, Ninth, Thirteenth and Fourteenth Amendments to the United States Constitution and that the evidence is not sufficient to show a violation of Ark. Stat. Ann. 41-2801. We do not agree with either argument. As will be noted, the appellants have assaulted 42-204 by firing a blunderbuss. Some of their arguments seem vague and illusional, but we shall treat them as best we can. The statute reads: [...] The posse comitatus has an ancient history. It has been defined as the power or force of the county, consisting of the entire population of the county over the age of 15, which a sheriff may summon to his assistance in certain cases, such as keeping the peace, pursuing and arresting felons, etc. Black's Law Dictionary, Fourth Edition, p. 1324. Its origins are believed to lie in the preconquest English statute of "hue and cry," a method then recognized for issuing and enforcing process to bring one committing a crime before the courts, under which one who came upon evidence of a crime was himself guilty of an offense if he failed to raise the "hue" to call out the neighbors to turn out with weapons they were bound to keep. See II History of English Law, Pollock Maitland, Second Edition, 578, et seq.; Babington v. Yellow Taxi Corporation, 250 N.Y. 14, 164 N.E. 726 (1928). From this practice, the right of the sheriff to call up the local male population to arrest criminals or prevent riots evolved, and became known as the posse comitatus, which in effect was a civil army to be used by the sheriff for these purposes, among others. Lorence, The Constitutionality of the Posse Comitatus Act, 8 U.M.K.C.L. Rev. 164 (1940). Refusal to render the aid sought by the sheriff was an offense punishable by fine and imprisonment. Commonwealth v. Martin, 7 Pa. Dist. Rep. 219 (1897); Annot. 44 Am. St. Rep. 136 (1895). See also, 4 Wharton's Criminal Law Procedure (Anderson) 223, Arrest 1582. The criminal nature of refusal to aid an officer in the execution of his duties was recognized in Regina v. Brown, 41 Eng. Common Law Reports 175 (1841). A constable, acting upon information he had received, discovered an illegal prize fight in progress but, being unable to arrest the participants without a warrant, charged Brown to assist him. It was there said that one duly called upon to render such assistance was not excused except for physical impossibility or lawful excuse. This case has been followed in many American cases, and the practice has been utilized in law enforcement throughout the history of this country, although the necessity for aid to law enforcement officers may have diminished over the years. See Annot., 44 Am. St. Rep. 136 (1895); Hooker v. Smith, 19 Vt. 151, 47 Am. Dec. 679 (1847); Babington v. Yellow Taxi Corporation, 250 N.Y. 14, 164 N.E. 726 (1928); 4 Wharton's Criminal Law Procedure (Anderson) 223, Arrest 1582. In Babington, a police officer jumped on the running board of a cab and ordered the driver to chase another cab in order that its driver might be arrested. In determining the duty of the driver in these circumstances the court relied upon an 1848 New York statute strikingly similar to Ark. Stat. Ann. 42-204 and reviewed the history of the duty of citizens in such cases. Mr. Justice Cardozo, speaking for the court, said: Without further elaboration, it is sufficient to say that Ark. Stat. Ann. 42-204 is, at most, an extension of the common law concept of posse comitatus, if not merely a codification thereof. Hooker v. Smith, 29 Vt. 151, 47 Am. Dec. 679 (1847). See also, Robinson v. State, 93 Ga. 77, 18 S.E. 1018, 44 Am. St. Rep. 127 (1893). In re Quarles, 158 U.S. 432 (1896) posse comitatus 158 US 535 158 US 535-36 Filarsky v. Delia, 564 U.S. 377, 388 (2012) Roberts, C. J., delivered the opinion for a unanimous Court. Ginsburg, J., post, p. 394, and Sotomayor, J., post, p. 397, filed concurring opinions. Excerpt at 564 U.S. 388 10 USC 331. When a state is unable to control domestic violence and they have requested federal assistance, the use of the militia or Armed Forces is authorized. 10 USC 332. When ordinary enforcement means are unworkable due to unlawful obstructions or rebellion against the authority of the United States, use of the militia or Armed Forces is authorized. 10 USC 333. When a state cannot or will not protect the constitutional rights of the citizens, due to domestic violence or conspiracy to hinder execution of State or Federal law, the use of the militia or Armed Forces is authorized. 18 USC 1835. Section 1385. Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. Military Law by Charles A. Shanor and L. Lynn Hogue, 1996, West Publishing, p. 39 Code of Federal Regulations] [Title 32, Volume 2] [Revised as of July 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 32CFR215.4] [Page 370-371] CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED) PART 215--EMPLOYMENT OF MILITARY RESOURCES IN THE EVENT OF CIVIL DISTURBANCES--Table of Contents Sec. 215.4 Legal considerations. (b) Aside from the constitutional limitations of the power of the Federal Government at the local level, there are additional legal limits upon the use of military forces within the United States. The most important of these from a civil disturbance standpoint is the Posse Comitatus Act (18 U.S.C. 1385), which prohibits the use of any part of the Army or the Air Force to execute or enforce the laws, except as authorized by the Constitution or Act of Congress. (c) The Constitution and Acts of Congress establish six exceptions, generally applicable within the entire territory of the United States, to which the Posse Comitatus Act prohibition does not apply. (1) The constitutional exceptions are two in number and are based upon the inherent legal right of the U.S. Government--a sovereign national entity under the Federal Constitution--to insure the preservation of public [Page 371] order and the carrying out of governmental operations within its territorial limits, by force if necessary. (i) The emergency authority. Authorities prompt and vigorous Federal action, including use of military forces, to prevent loss of life or wanton destruction of property and to restore governmental functioning and public order when sudden and unexpected civil disturbances, disasters, or calamities seriously endanger life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are unable to control the situations. (ii) Protection of Federal property and functions. Authorizes Federal action, including the use of military forces, to protect Federal property and Federal governmental functions when the need for protection exists and duly constituted local authorities are unable or decline to provide adequate protection. (2) There are four exceptions to the Posse Comitatus Act based on Acts of Congress. (i) In the cases of each of the first three of those described, paragraphs (c)(2)(i) (a), (b), and (c) of this section, personal Presidential action, including the issuance of a proclamation calling upon insurgents to disperse and retire peaceably within a limited time, is a prerequisite. (a) 10 U.S.C. 331. Authorizes use of the militia and Armed Forces when a State is unable to control domestic violence, and a request for Federal assistance has been made by the State legislature or governor to the President. Implements Article IV, section 4, of the Constitution. (b) 10 U.S.C. 332. Authorizes use of the militia and Armed Forces to enforce Federal law when unlawful obstructions or rebellion against the authority of the United States renders ordinary enforcement means unworkable. Implements Article II, section 3, of the Constitution. (c) 10 U.S.C. 333. Authorizes use of the militia and Armed Forces when domestic violence or conspiracy hinders execution of State or Federal law, and a State cannot or will not protect the constitutional rights of the citizens. Implements Article II, section 3, and the 14th Amendment of the Constitution. (d) House Joint Resolution 1292, June 6, 1968.1 Directs all departments of the Government, upon the request of the Secret Service, to assist that Service in carrying out its statutory duties to protect Government officials and major political candidates from physical harm. Assistance to the Secret Service is governed by DoD Directive 3025.13, ``Employment of Department of Defense Resources in Support of the United States Secret Service,'' July 15, 1968.2 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1 Although this resolution has been placed in the Statutes at Large as Public Law 90-331, 82 Stat. 170, it has not been codified; it is set out in the notes to 18 U.S.C. 3056. 2 Filed as part of original copies available from U.S. Naval Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 19120, Code: 300. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (ii) It should be noted that none of the above authorities, in and of itself, provides sufficient legal basis to order members of the Reserve components to active Federal service.
After the ruling in Heller, the answer is NOTHING. Since the dawn of the republic, the answer is NOTHING. There is no constitutional requirement to maintain a National Guard. There is a constitutional provision empowering the Congress "to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions." There is a constitutional provision empowering the Congress "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." Those provisions grant the power to do the things specified. They do not command that an organized militia be maintained. 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." The unorganized militia of the United States is still there, subject to being called up.
WHAT??? That wasn't in Miller!! As your interpretation of Miller disagrees with the majority of the U.S. Supreme Court, you should inform SCOTUS of this with a sternly worded letter.
That came in McDonald. So what? The two cases are tied together for purposes of discussion. [misterwhite #138] Only the Heller court was smart enough to see that. What precedent did Heller defy? It could not have been the issue of the 2nd Amendment applying to the states, as that had nothing to do with Heller.
No. It says "A well regulated Militia is necessary to the security of a free State". The prefacing clause, that "A well regulated Militia is necessary to the security of a free State," gave a reason for protecting the RKBA. It granted no power, it defined no right, it neither commanded nor proscribed anything. The operative clause, "the right of the people, to keep and bear arms, shall not be infringed," restrained the congress from infringing on the specified right of the people.
I have a copy of Halbrook , That Every Man Be Armed, 2013 Revised and Updated Edition. This edition cites and quotes Heller and McDonald as the reigning U.S. Supreme Court precedent. Any older opinions you can come up, and interpreted in a manner inconsistent with Heller and McDonald do not mean diddly squat. Note that the precedent setting McDonald cited two of Halbrook's books. At 228, in chapter "Update to New Edition": (footnotes omitted) At 230, in chapter "Update to New Edition": (footnotes omitted) McDonald followed a long-standing precedent that rights considered fundamental apply to both the federal and state governments. Noting that Blackstone's view of the fundamental nature of the right was "shared by the American colonists," the Court — citing this author's The Founders' Second Amendment as a source — continued: "The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights." And the Court relied in part on this author's Freedmen book in its history of Reconstruction, concluding 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." Because the Second Amendment is "a provision of the Bill of Rights that protects a right that is fundamental from an American perspective," it "applies equally to the federal Government and the States." Refusing "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," McDonald rejected the power "to allow state and local governments to enact any gun control law that they deem to be reasonable, including a complete ban on the possession of handguns in the home for self-defense." At 231, in chapter "Update to New Edition": (footnotes omitted) I also have Halbrook, The Founders' Second Amendment, Origin of the Right to Keep and Bear Arms, The Independent Institute, 2008 Freedmen, The Fourteenth Amendment and the Right to Bear Arms, 1866-1876, Praeger, 1998. I also have: David E. Young, The Founders View of the Right to Bear Arms, A Definitive History of the Second Amendment, Golden Oak Books, 2007. David E. Young, The Origin of the Second Amendment, A Documentary History of the Bill of Rights 1787-1792, Second Edition, Golden Oaks Books, 2001. Clayton E. Cramer, Concealed Weapon Law of the Early Republic, Dueling, Southern Violence, and Moral Reform, Praeger, 1999.
I figured if you could leave out the first part of the second amendment, I could leave out the second. My point was, the first part was placed there for a reason. If the second amendment was meant to protect the RKBA of all citizens (as you claim) there would have been no reason whatsoever to include the first part. No other amendments contain an explanation. So it was placed there for a reason.
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) 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.
It is noted that you disagree with the majority opinion of the U.S. Supreme Court. You should write them a sternly worded letter.
"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?
As I disagree with the majority opinion of the U.S. Supreme Court on Roe v Wade, Kelo, Obamacare, selective incorporation, and most of their rulings on the commerce clause. And I bet you do too.
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. 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. - - - - - 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 proved by Minor v. Happersett, after the 14th Amendment, 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. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 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. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 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.
And I bet you do too. The difference being that I do not project my personal opinion as being the law of the land. Whether one agrees with the Court or not, when SCOTUS issues a an opinion interpreting the Constitution, its holding is the law of the land and all inferior courts are bound by that opinion. Roe v. Wade, whatever one thinks of it, makes it unlawful for a state to prohibit abortion. Roe at 410 U.S. 153: The right of privacy, whatever exactly it is, and whether it is found in the 14th Amendment or 9th Amendment, "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." This is a legal fact of life, even if it emanates from a penumbra. This will remain so until SCOTUS revisits the issue and changes it, or the Constitution is amended to change it.
I am not aware that I ever denied nor disputed the fact that the rulings were the law of the land. Merely that I disagreed with the rulings. "This is a legal fact of life, even if it emanates from a penumbra." The legal fact of life being that murder is legal if done in private by the mother. But if the fetus is killed as a result of a violent act by another … it is murder. That's our U.S. Supreme Court in action. The same court that gave us Heller and McDonald.
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.
There you go again. Murder is a crime and is never legal. Well, at least you now recognize the Heller and McDonald are the law of the land and that the 2nd Amendment right to keep and bear arms is an INDIVIDUAL right, historically rooted in English common law, and that the Second Amendment applies to all the states, and that it does not include any right to keep and bear SAMs or atomic bombs. The Heller Supreme court determines the law? Or the Cruikshank Supreme court? Or the Presser Supreme Court? Or the Miller Supreme court? 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. Yes. The Heller court determined RKBA law for D.C. and the McDonald court determined RKBA law for the states. To the extent you feel Cruickshank, Presser and Miller are not in accord with Heller and McDonald, they are dead, despite your attempt make believe they overrule Heller or McDonald with some nebulous precedent. You have heard of stare decisis, but the difference is the justices know what it actually means.
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: [...] 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. 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. The people were men and women who were citizens. For constitutional purposes, the definition of the people has not changed since 1789. 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.
Provided they intended to become citizens. Wisconsin State Constitution (1848): "Every male person of the age of twenty-one years, or upwards, of the following classes, who shall have resided in this State for one year next preceding any election, shall be deemed a qualified elector at such election. 1st. White citizens of the United States 2d. White persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization (...)"; "No person shall be eligible to the legislature, who shall not not have resided one year within the state, and be a qualified elector in the district he may be chosen to represent."
According to Article I, Section 2 of the U.S. Constitution, only "the people" were allowed to vote. Granted, each state defined the requirements of suffrage, and there were differences between states. But in 1790, on the whole, only those born on U.S. soil, with a connection to the community, property- owning, adult, white males had suffrage. They were "the people". You say they didn't have to be citizens. True, it wasn't spelled out as a requirement, per se. It was assumed based on the other voting requirements.
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.
Wrong. According to the U.S. Constitution, Article I, Section 2, only "the people" voted. In 1790, women did not vote. They weren't allowed to vote. Ergo, they were not part of "the people".
Provided they intended to become citizens. The men were aliens AND they could lawfully vote. The fact that they intended to become citizens acts as proof that they were aliens and not citizens. The women were citizens and had no lawful right to vote. No matter what you choose to make believe, as firmly established by SCOTUS in v Minor v. Happersett, the right to vote was not conferred by citizenship. Virginia Minor was found to be a natural born U.S. citizen, and like all similarly situated women, had no right to vote. A state law denying her the right to vote was upheld as constitutional.
You say they didn't have to be citizens. True, it wasn't spelled out as a requirement, per se. It was assumed based on the other voting requirements. Same shit, different post. Alien men could vote, while natural born citizen women could not. No matter what you choose to make believe, as firmly established by SCOTUS in Minor v. Happersett, the right to vote was not conferred by citizenship. Virginia Minor was found to be a natural born U.S. citizen, and like all similarly situated women, had no right to vote. A state law denying her the right to vote was upheld as constitutional.
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: 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. 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.
Wrong. According to the U.S. Constitution, Article I, Section 2, only "the people" voted. In 1790, women did not vote. They weren't allowed to vote. Ergo, they were not part of "the people". Send a sternly worded letter of your dissent to the U.S. Supreme Court, informing them of their error. Heller, at 554 U.S. 580-81 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.
Really? That's your argument? You're reaching. One state made one exception (which was conditional) and you then generalize that non-citizens could vote. "the right to vote was not conferred by citizenship." I don't think I said that. I did say that those who voted were citizens (or about to be). But each state defined who could vote and I can't believe they would allow non-citizens to take over. Keep in mind -- Congress has the power to refuse to seat a Congressman and the power to de-certify the result of the electoral college’s vote in a Presidential election if they believe there was foul play by a state.
ONE state made ONE exception that allowed male non-citizens to vote PROVIDED THAT they were on a path to citizenship. States allow you to drive on temporary tags. Are you going to claim that means nobody needs license plates to drive around? "natural born citizen women could not." Correct. Neither could children citizens. Or non-land-owning citizens. Or those citizens who didn't live in the state for at least one year. Or those citizens who couldn't pass a literacy test or pay a poll tax. A lot of citizens couldn't vote. I'll say it again -- in 1790 when the second amendment was ratified, only the rich white guys voted. Adult, white, male citizens who owned property. They were "the people" described in Article I, Section 2. There were exceptions, of course. But they were exceptions. My point being, they were also "the people" protected by the second amendment. NOT everyone and not even every citizen.
Really? That's your argument? You're reaching. Cite an example of an alien, or anyone, who intends to become a citizen, who is thereby magically transformed into a citizen without going through the naturalization process. I linked, cited, and quoted the Official Records of the War of the Rebellion (Civil War) to show the Governor of Wisconsin making an official inquiry to the Secretary of War stating, "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?" I said it. Those who voted were aliens. They were not citizens. An expression of intent to become a citizen does not change one from an alien to a citizen. Give it up. BELIEVE. Read history, do not invent your own. Various states allowed aliens to vote until a Federal law was passed making it unlawful for aliens to vote in Federal elections. Wisconsin constitution, approved August 6, 1846. Note that the state constitutions had to be approved by the Federal government. Article III, Section I, 1st, gave White citizens the right to vote, and Article III, Section I, 2nd, gave White aliens, who have declared their intention to become citizens, the right to vote. SUFFRAGE. SECTION I. Every male person, of the age of twenty-one years or upward, belonging to either of the following classes, who shall have resided in the State for one year next preceding any election, shall be deemed a qualified elector at such election: 1st. White citizens of the United States.* 2d. White persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization.* 3d. Persons of Indian blood, who have once been declared by law of Congress to be citizens of the United States, any subsequent law of Congress to the contrary notwithstanding. 4th. Civilized persons of Indian descent, not members of any tribe: Provided, That the legislature may, at any time, extend by law the right of suffrage to persons not herein enumerated; but no such law shall be in force until the same shall have been submitted to a vote of the people at a general election, and approved by a majority of all the votes cast at such election. SEC. 2. No person under guardianship, non compos mentis, or insane shall be qualified to vote at any election; nor shall any person convicted of treason or felony be qualified to vote at any election unless restored to civil rights. SEC. 3. All votes shall be given by ballot, except for such township officers as may by law be directed or allowed to be otherwise chosen. __________ * By a decision of the Supreme Court, made during the year 1866, in case of Gillespie vs. Palmer, the right of suffrage was decided to have been extended to colored persons by vote of tlie people at the general election held November 6, 1849. - - - - - - - - - - - - - - - - - - - - SEC. 4. No person shall be deemed to have lost his residence in this State by reason of his absence on business of the United States or of this State. SEC. 5. No soldier, seaman, or marine in the Army or Navy of the United States shall be deemed a resident of this State in consequence of being stationed within the same. SEC. 6. Laws may be passed excluding from the right of suffrage all persons who have been or may be convicted of bribery or larceny, or of any infamous crime, and depriving every person who shall make, or become, directly, or indirectly, interested in, any bet or wager depending upon the result of any election, from the right to vote at such election. Various states allowed aliens to vote until a Federal law was passed making it unlawful for aliens to vote in Federal elections. https://en.wikipedia.org/wiki/Voting_rights_in_the_United_States Eligibility to vote in the United States is established both through the federal constitution and by state law. Several constitutional amendments (the 15th, 19th, and 26th specifically) require that voting rights cannot be abridged on account of race, color, previous condition of servitude, sex, or age for those above 21; the constitution as originally written did not establish any such rights during 1787–1870. In the absence of a specific federal law or constitutional provision, each state is given considerable discretion to establish qualifications for suffrage and candidacy within its own respective jurisdiction; in addition, states and lower level jurisdictions establish election systems, such as at-large or single member district elections for county councils or school boards. Between 1776 and 1807, women voted in New Jersey. The Constitution of New Jersey of 1776, at IV, stated, The legislature of New Jersey amended this constitution September 20, 1777, by substituting the words "State" and "States" for "colony" and "colonies."
I'm not claiming that. I'm saying that one state made an exception to allow a certain group of non-citizens to vote. "An expression of intent to become a citizen does not change one from an alien to a citizen." I'm not claiming that. I'm saying that one state made an exception to allow a certain group of non-citizens to vote.
If you choose not to own a gun, does that mean the second amendment no longer protects your right to own a gun? Of course not. Same thing with the State Militias. Most disbanded because they were no longer needed. That doesn't mean the second amendment no longer protects that right. Almost half the states still have State Defense Forces in addition to the National Guard.
The second amendment protect the arms of militia members, no matter their age.
FALSE. Stop making shit up. What is your evidence that is was ONLY ONE STATE? The New Jersey constitution of 1776, as amended September 20, 1777, allowed "all inhabitants of this State, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote...." In Wisconsin, the aliens were not on a path to citizenship. They had merely made a statement of intent. In Massachusetts, the constitution of 1780, Article IX provided, Not amended until 1822. What the hell does that have to do with states providing aliens the right to vote and doing so in their constitution??? You can say it again and again all you want. You can blow it out your ass. I can quote state constitution after state constitution proving, as a matter of fact, that you are just blowing it out your ass. Voting rights were solely dependent on State law. The Federal Constitution was silent on the question of who could vote. There was no Federal law on the matter. The States were free to choose as they please who was enfranchised within their State. Voting rights were determined by State law, not citizenship. Your point is bullshit, and as stated in McDonald, at war with the Supreme Court decision in Heller. And there is Heller. Heller, at 554 U.S. 580-81 “‘[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.
It was not ONE. You just made that part up. It was multiple states. They allowed ALIENS to vote. As with Wisconsin, they wrote it into their constitution. Not that it overly matters in proving your bullshit about voting and citizenship to be just bullshit. If one state authorized aliens to vote in elections, and the Federal government approved that constitutional provision, it is proof that the right to vote did not connote citizenship.
If you choose not to own a gun, does that mean the second amendment no longer protects your right to own a gun? Of course not. Same thing with the State Militias. Most disbanded because they were no longer needed. That doesn't mean the second amendment no longer protects that right. Almost half the states still have State Defense Forces in addition to the National Guard. The 2nd Amendment right to keep and bear arms is an INDIVIDUAL right that inheres to ALL AMERICANS. Heller, the law of the land. Americans have the right to keep and bear arms before, during, and after any connection to any militia. They do not obtain the right by belonging to a militia, and they do not lose it by leaving a militia. McDonald at 561 U.S. 780: 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. Your plea to return to a bygone era and argue that the 2nd Amendment RKBA derives from the militia has been rejected by SCOTUS and deposited in the trash heap of history. You can keep mumbling that shit all you want and it will remain at war with Heller, as stated in McDonald.
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 “‘[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.
"... for Representatives in Council & Assembly." Nice try. "What the hell does that have to do with states providing aliens the right to vote and doing so in their constitution???" It's called an analogy. License plates are required, but states will make an exception and allow you to drive with temporary tags. "Voting rights were solely dependent on State law. The Federal Constitution was silent on the question of who could vote. There was no Federal law on the matter. The States were free to choose as they please who was enfranchised within their State. Voting rights were determined by State law, not citizenship." I agree with all that. But the bottom line was that those who voted were citizens (with very few exceptions).
We're not discussing the right. We're discussing the protection of that right.
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 ...
Correct. And in 1790, "the people" were the white adult male citizens who owned property. And white adult male citizens were in the State Militia. And the RKBA of "the people" was protected by the second amendment. Because they were in the militia. Now, over the years since then, the definition of "the people" has changed and expanded.
Some arms for some Americans. From now on, five justices on the U.S. Supreme Court will tell you which arms for what Americans using God-knows-what for their standard. Probably popular opinion.
What the hell does that have to do with states providing aliens the right to vote and doing so in their constitution??? If license plates were a requirement of the state constitution, as with the voting requirements I have quoted, the legislature could not carve out any exception. It would require a constitutional amendment. If you know of any such constitutional amendment for an exception to the voting requirements in the state constitutions that I have quoted, cite and quote please. Until then, your analogy is pure garbage. "... for Representatives in Council & Assembly." Nice try. It was written 1776/1777. All inhabitants of th[e] State were allowed to vote until the law was changed. This provision was not changed until 1822. It was the NJ state constitution from 1789 to 1822 under the U.S. Constitution. Nice try yourself. It is a matter of public record that women were allowed to lawfully vote in New Jersey for its first few decades as a state. Back in the early Federal elections, the only ones for whom there was a popular vote were the members of the House of Representatives. Neither Senators nor members of the electoral college were chosen by popular vote. I can show where I get my information. You are merely showing your ass, which is where you are getting your information. This time, let's try New Hampshire. The list just keeps growing longer, like your nose. Constitution of New Hampshire 1784, Article XI: Constitution of New Hampshire 1792, Article 11:
The Second Amendment protects that individual right. The right is not protected by membership in the unorganized militia, or the organized militia. You are discussing the right, and you are discussnig the protection of that INDIVIDUAL right, in terms rejected by the U.S. Supreme Court. Write them a letter saying you want to return to a bygone era.
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.
Still bullshit, no matter how many times you pass this turd. You are at war with Heller ["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." McDonald at 561 U.S. 780] and SCOTUS rejects your plea to return to a bygone era. Heller, at 554 U.S. 580-81 “‘[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. McDonald at 561 U.S. 780: 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. You are living in a bygone era, citing nonsense.
Some arms for some Americans. From now on, five justices on the U.S. Supreme Court will tell you which arms for what Americans using God-knows-what for their standard. Probably popular opinion. The U.S. Supreme Court holdings in Heller and McDonald are the law of the land. That you disagree with the U.S. Supreme Court holdings, and are throwing a tantrum, is duly noted. Of course, it changes nothing. You may write a sternly worded letter to the U.S. Supreme Court and make your displeasure known. Since 1790, the U.S. Supreme Court has been expounding the laws. Article 3, "The judicial power shall extend to all cases, in law and equity, arising under the Constitution...." The Constitution empowers the U.S. Supreme Court to be the ultimate arbiter of what the Constitution says. The decide by majority vote. Except for the number of justices on the court varying from 5 to 10, it has not changed since 1790. You are at war with Heller ["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." McDonald at 561 U.S. 780] and SCOTUS rejects your plea to return to a bygone era. Heller, at 554 U.S. 580-81 “‘[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. McDonald at 561 U.S. 780: 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. You are living in a bygone era, citing nonsense.
That's what I've been saying. And in 1790, that "political community" excluded women, children, non-landowners, non-citizens, slaves. The point being, in 1790, "the people" referred to an elite subset of the population -- the rich, white, land-owning, enfranchised, adult males. Not everyone. The right of "the people" to keep and bear arms referred to them. Not everyone.
So "in common use at the time" means nothing?
The right of "the people" to keep and bear arms referred to them. Not everyone. Still bullshit, no matter how many times your mind squeezes out this turd of thought. Heller, at 554 U.S. 580-81 “‘[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.
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.
Correct. We agree. And in 1790, who were "the people"? For one, we know they were enfranchised because Article I, Section 2 said "the people" could vote. So, in 1790, who could vote?. We need to know that because the second amendment protects the right of "the people" to keep and bear arms. I guess another way to say it is the second amendment protected the right of "the voters" to keep and bear arms, right? Think about that then ask yourself, who was in the militia? Aren't they basically the same individuals?
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.
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. According to the Heller court: "Held. 2. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons." Meaning if a weapon is not "in common use" it may be banned. Say goodbye to "assault-style" weapons. Maybe not with this court, but certainly with some future liberal court. All because YOU wanted the second amendment to protect an individual right.
Only according to your creative imagining of your illusory but unquoted provision of Article I, Section 2. As has been repeatedly noted, and confirmed by SCOTUS, the Constitution did not give anyone the right to vote for anyone. Enfranchisement was solely a function of state government. I do not have to think about it and come up with some creative imagining. It is a matter of statute law.
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. 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?
"Held. 2. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons." Your quote is not from the Opinion of the Court in Heller but from the Syllabus which is not part of the Opinion of the Court. For the statement in context from the actual Opinion at 554 U.S. 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. The Miller holding has nothing to do with a 2nd Amendment individual right to keep and bear arms depending on some imaginary connection to being a member of the militia. What type of weapons are included in the 2nd Amendment right to keep and bear arms has nothing to do with WHO has the right to keep and bear arms under the 2nd Amendment. All because YOU wanted the second amendment to protect an individual right. Whether I want the 2nd Amendment to protect an individual right is irrelevant to whether it does or not. The U.S. Supreme Court clearly and definitively answered the question of whether the 2nd Amendment protects an individual right. It does. You do not like that. I don't care if you like that not. The right has never encompassed anything other than weapons, lawful to possess. Heller at 582: Heller at 626: Heller at 627-28: Review your bullshit at your #2: 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. The militia cited in the 2nd Amendment is the UNORGANIZED MILITIA. It is that mass of able-bodied persons between 17 and 45 years old, going about the business of their private lives. The 2nd Amendment right to keep and bear arms is an INDIVIDUAL right and has not one damned thing to do with whether someone is part of any ORGANIZED militia. Nobody is a membeer of the ORGANIZED MILITIA. The ORGANIZED MILITIA does not exist today. The 2nd Amendment right to keep and bear arms does. The 2nd amendment right to keep and bear arms exists independently of whether an ORGANIZED MILITIA exists, or not. It is a right of the individual, recognized but not conferred by the Constitution. The 2nd Amendment right to keep and bear arms belongs to individuals Your misconception of the 2nd Amendment right to keep and bear arms is noted.
Obviously, some of our State constitutions are NOT protecting the 2nd. Yet misterwrong keeps repeating this mantra, like an idiot. Will this thread ever end? --- Or will it go round a few more times, with both reiterating the same tired songs?
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?
Wrong, wrong, wrong. They weapons they possessed at home were expensive rifles -- used for hunting and self-defense. The militia used smooth- bore muskets -- cheap, quick to load, and suitable for volley fire. Not accurate, but deadly when fired in a volley. Read the Militia Act. It requires a musket not a rifle. The court is simply making shit up.
Then why did the Miller court ask if the shotgun was suitable for use in a militia? Why even bring it up?
When the second amendment was written, there was only ONE militia. The arms protected by the second amendment were the arms used by that ONE militia. All other arms for all other individuals were protected by state constitutions.
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. 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. 26 U.S.C. § 5845(b) 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) 6 Firearm Owners’ Protection Act, Public Law 99-308, approved May 19, 1986. https://law.justia.com/codes/us/2016/title-18/part-i/chapter-44/sec.-922/ 18 U.S.C. § 922(o) (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. 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/ §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?
That's the best you have? You have repeatly been proven to have pulled your non-facts straight out of your ass. As you stated at #2: In the case where there was no state constitution, what protected the right to keep and bear arms?
Then why did the Miller court ask if the shotgun was suitable for use in a militia? Why even bring it up? As Millier was not in a militia, why did that alone not settle the issue? Heller at 554 U.S. 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. The right only extends to certain types of weapons. What type of weapons the right extends to does not mean the right depends on membership in the militia. As the Court observed, "[i]t is particularly wrongheaded to read Miller for more than what it said." Heller at 554 U.S. 621: 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 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.
When the second amendment was written, there was only ONE militia. The arms protected by the second amendment were the arms used by that ONE militia. The United States militia. The militia has two classes, the organized militia and the unorganized militia. The militia cited in the 2nd Amendment was the unorganized militia. 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. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. Heller at 554 U.S. 595-596 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. See, e. g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades...and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“the militia of the State, that is to say, of every man in it able to bear arms”). 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. The Court firmly rejected the wrongheaded notion that the 2nd amendment referred to the organized militia, a subset of the unorganized militia. As with the petitioners in Heller, you adopt the notion that the 2nd Amendment refers to the unorganized militia. Having previously shown the wrongheadedness of your position, you now seek to make believe that you do not know that there is an organized and an unorganized militia being the two classes of the United States militia. The unorganized militia consists of all those enrolled in the United States militia who are not serving in the military under arms.
What if a state did not have a constitution for 50 years or so? How did THAT work?
When the second amendment was written, there was only one type of militia -- a state militia -- described in detail in the Militia Act of 1792. Those state militias could be federalized by the President to put down armed insurrections. "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." Infringing on the right of an individual in a state militia to possess a machine gun interferes with the effectiveness of the state militia and is therefore unconstitutional. Now, the state militia will probably insist that weapon remain in the state armory, but that's their decision to make, not the federal government's.
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.
In 1790, when the second amendment was ratified, there was no such thing as "The United States Militia". Now you're just making shit up. "you now seek to make believe that you do not know that there is an organized and an unorganized militia being the two classes of the United States militia." There are two classes of militia TODAY, yes. But not in 1790 when the second amendment was written. So if you want to interpret the true meaning of the second amendment, you have to go back to 1790 to see what the Framers were referring to.
Not well. But that was a decision the people of that state made. If they didn't want their state constitution to protect their RKBA, they didn't write one in. California still has no provision in their state constitution to protect arms. Yet people own them. Just because something is not protected doesn't mean it's illegal. It means they're not protected.
Because the Miller case was about the weapon, not whether or not he was in the militia. Let's say Miller and his friend transported a machine gun -- an obvious military weapon -- across state lines in violation of the 1934 National Firearms Act. As they did with the shotgun, let's say they challenged their arrest based on their claim that the second amendment protected military weapons. What would the U.S. Supreme Court have said? As it was, the court didn't know if a sawed-off, double-barreled shotgun had military use, so they couldn't rule on it.
When the second amendment was written, there was only one type of militia -- a state militia You excised who I said the militia 2nd Amendment made reference to, set up your own strawman, and argued your bullshit. In the vernacular of the Framing era, the ORGANIZED MILITIA and the UNORGANIZED MILITIA were the INACTIVE MILITIA and the ACTIVE MILITIA, with the distinction being no different than the more modern usage. Aristocrotis, April 15, 1788, Pamphlet: The Government of Nature Delineated or An Exact Picture of the New Federal Constitution, Carlisle, Pennsylvania. The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc. When the 2nd Amendment was written, there was only one militia, the United States militia. The militia was divided into two classes, the Active (Organized) Militia and the Inactive (Unorganized) Militia. By the time of the Militia Act of 1903, the terminology had changed some and was referred to as the ORGANIZED MILITIA and the INACTIVE MILITIA. [public, No . 33.] CHAP . 196 .-An Act To promote the efficiency of the militia, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes — the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia. Whether you prefer to refer to them as the Inactive Militia, the Reserve Militia, or the Unorganized Militia, that is militia to which the 2nd Amendment refers. Art. 2, Sec. 2: The President was given the power to call the militia into service, and when he did, he was the Commander-in-Chief of all of the ones called to service. Heller at 554 U.S. 580-81: We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans. Heller at 554 U.S. 589:
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 you emit rainbows from your arse for purposes like self-defense?
The Second Amendment was not ratified in 1790. It was December 1791. The first Militia Act followed shortly thereafter in May 1792. Art. 2, Sec. 2: Who's your daddy? In 1789, when the Constitution was ratified by nine states, the federal Congress was authorized to call forth the militia, and the federal Congress was authorized to provide for organizing, arming, and disciplining, the militia. Prior to the Constitution, the Articles of Confederation strictly limited states from keeping up any body of forces in time of peace, States could only keep up an unorganized (or Inactive [18th century] or Reserve [19th century]) militia during peacetime. The militia of the United States, pursuant to United States statute law: 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.... Heller at 554 U.S. 580-81: We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans. Whither goeth your state militias?
Not well. But that was a decision the people of that state made. If they didn't want their state constitution to protect their RKBA, they didn't write one in. California still has no provision in their state constitution to protect arms. Yet people own them. Just because something is not protected doesn't mean it's illegal. It means they're not protected. The idea of state constitutions being the primary defense against infringement of 2nd Amendment rights is obtuse. A state constitution can protect against nothing but intrusion by that state. Provisions of the federal constitution, federal law, or international treaty strike down any conflicting provision of state law. The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms. How amusing that you find that the people who ratified the Constitution ratified a document that left protection of the right to keep and bear arms to state constitutions, yet you do not find anything amiss about one of the original thirteen states having no constitution whatever for more than its first 50 years as a member of the constitutional union. The great state of Rhode Island adopted their first constitution in 1842. That constitution superseded the Charter of Rhode Island and Providence Plantations, issued under the rule of King Charles II in 1663. Your brainfart that the RKBA is protected only by state constitutions is meritless. All thirteen original states adopted provisions of the English Common Law by constitutional provision or statute law as they chose, and limited to those provisions that did not conflict with the Constitution. I would note that California was not a state in the era of the framing, and regardless of what its constitution says, or does not say, the people of California have a 2nd Amendment right to keep and bear arms, and the 2nd Amendment protects individuals from state infringement of their RKBA. No state constitution can infringe the 2nd Amendment right to keep and bear arms, or the Federal courts slap them down. Whether the states choose to say anything about the right to keep and bear arms or not, all Americans in all fifty states enjoy the same 2nd Amendment right to keep and bear arms, and the 2nd Amendment, incorporated into the 14th Amendment, acts to restrain the states.
The Miller case decided that the type of weapon was not protected by the Second Amendment. Learn to read the court opinion. The Court did rule on it unanimously and upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. Heller at 554 U.S. 621-22: https://www.oyez.org/cases/1900-1940/307us174 Does the Second Amendment protect an individual's right to keep and bear a sawed-off double-barrel shotgun? Conclusion The Supreme Court reversed the district court, holding that the Second Amendment does not guarantee an individual the right to keep and bear a sawed-off double-barrel shotgun. Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument. The Miller court stated, "We are unable to accept the conclusion of the court below, and the challenged judgment must be reversed. The cause will bee remanded for further proceedings." Jack Miller and Frank Layton were bank robbers and had an unregistered sawed-off shotgun. The Supreme Court reversed the District court, holding that the Second Amendment does not guarantee the right to keep and bear a sawed-off shotgun as a matter of law. Jack Miller was killed by multiple gunshots on April 3, 1939. Frank Layton pleaded guilty on January 8, 1940 to the National Fireams Act charge which was reinstated by the U.S. Supreme Court. There was no appearance by anyone for Miller and Layton. There was no presentation of evidence before the Court about whether a short barrelled shotgun was, or was not, common in military use. In the absence of evidence, the Court could not assume it was common in military use. In Miller, the government argued that, the Second Amendment “refers to the militia, a protective force of government; to the collective body and not individual rights.” Brief for the United States at 21. Heller established that the 2nd Amendment right is an individual right and not a collective right. Heller at 554 U.S. 592. Heller at 554 U.S. 623 - - - - - - - - - - - - - - - - - - - - Violation of National Firearms Act. There is no Second Amendment privilege to keep and bear a machinegun. As for the shotgun, it was a sawed-off or short barreled shotgun. Miller at 307 U.S. 179, Citizens, called to service, were expected to appear bearing arms of the kind in common use at the time by citizens going about their business. Citizens called to service were not expected to show up with machineguns.
State militias are the militia cited in the 2nd Amendment. Those state militias may be federalized (ie., placed under federal control) "to execute the laws of the Union, suppress insurrections, and repel invasions".
So what? That says nothing. That's like saying we have an "active" National Guard (those deployed overseas) and an "inactive" National Guard (those at home). OK. So? You have a point?
No, the state militias consisted of "the people", a subset of all U.S. citizens. The Heller court is implying that all U.S. Citizens were "the people". Wrong. As proof, only "the people" could vote. That's not everyone.
Again, the Heller court is selectively picking words. The phrase in the second amendment is "to keep and bear arms", a phrase which typically appeared in military contexts.
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.
So you think the federal government is better at protecting your RKBA than your state? You want the feds to decide if you can carry concealed or not? To set the legal age? To define "mentally fit" and all other requirements? To define the arms protected? To define "to keep" and "to bear"? You don't trust your own state?
No. They said they didn't know and didn't want to speculate and they remanded the case back to the lower court for clarification. They made no ruling on the case. But their statement implied that if the weapon served no military purpose it wasn't protected by the second amendment. "There is no Second Amendment privilege to keep and bear a machinegun." But the Miller court concluded the second amendment protected those weapons suitable for use by a militia, did it not?
In the War of 1812, many showed up with nothing. So your claim is meaningless. In a modern state militia, machine guns and other heavy weapons would more than likely be stored in the state armory. But if full-auto AR-15's were legal, citizens would show up with them.
He did not say that. He said there was an absence of evidence showing that the weapon had military use. Quote: "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." But here's the important take-away from Miller: The U.S. Supreme Court is saying the only weapons protected by the second amendment are those weapons used by a militia. You cannot dispute that.
What makes you think the federal government is interested in protecting your personal RKBA? Do you trust the federal government to protect the arms you need to defend yourself from the federal government?
You purport to respond to my #235. The quote you provide is from #225 and wrenched from context, as pointed out in my #235. If you had the intelligence and ambition to use the google, rather than just make shit up, you could easily find confirmation of the two classes of the militia. https://en.wikipedia.org/wiki/Militia_(United_States) The 2nd Amendment pertained to the UNORGANIZED, the Inactive, or the Reserve militia. As for the state National Guard, In the spider-infested mind of misterwhite, the state National Guard, when called out by a state governor to combat a natural disaster, such as a hurricane, flood, or earthquake, forms up into a huge firing line and shoots machineguns at it until it surrenders, and upon this need depends the 2nd Amendment right to keep and bear arms. My #235, which you seem unable to address, pointed out the bullshit piled upon bullshit you pulled and restored context and skewered your previous bullshit. When called to service to engage in action as a military force, those who respond are the UNORGANIZED (or Reserve or Inactive) militia. They are the ones who brought arms from home with them to use in the call to service. They are the ones referred to in the 2nd Amendment. Boldface and blue font IN ORIGINAL at #235. When the second amendment was written, there was only one type of militia -- a state militia You excised who I said the militia 2nd Amendment made reference to, set up your own strawman, and argued your bullshit. In the vernacular of the Framing era, the ORGANIZED MILITIA and the UNORGANIZED MILITIA were the INACTIVE MILITIA and the ACTIVE MILITIA, with the distinction being no different than the more modern usage. [snip] As I stated, "[y]ou excised who I said the militia 2nd Amendment made reference to, set up your own strawman, and argued your bullshit." The 2nd Amendment made reference to the UNORGANIZED militia, or the INACTIVE militia. I quoted a 1788 source for the 1788 terminology. The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc. Heller at 554 U.S. 580-81: We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans. "All Americans." Deal with it. Or are you confusing "all Americans" with a small subset of college football players? Heller at 554 U.S. 589: As the U.S. Supreme Court noted, your pretzel illogic is worthy of the Mad Hatter. Heller at 554 U.S. 596: The 2nd Amendment right is an invidividual right that belongs to the people. The militia cited in the 2nd Amendment is the UNORGANIZED (or Inactive or Reserve) militia. The U.S. Supreme Court ruled against your bastardized reading of the militia referring to the Organized militia. The UNORGANIZED MILITIA are CIVILIANS.
This time your bastardized half-quote attributes the words to me, rather than to the quoted article from 1788. As is typical of your methodology, [nolu chan #235] [the continuance you deliberately left out] The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc. And your horseshit comment: Bullshit is not an argument. Those stationed overseas are not the ACTIVE component, any more than those stationed at home are the INACTIVE component. It is painfully obvious that you have never served in the military, and have not the slightest clue what you are talking about. The ACTIVE component are those who serve in uniform. The INACTIVE component do not serve at all. I did 20 years ACTIVE DUTY in the military. I was on ACTIVE duty in the States and Overseas. I did 10 years in the Inactive Reserve. I was a CIVILIAN during those 10 years. Then I was transferred to the RETIRED list. I'm still a CIVILIAN. The UNORGANIZED, RESERVE, or INACTIVE militia are CIVILIANS. They have NOT been called to service. Until they are actually called to serve, and report and become part of the ORGANIZED militia, they continue to be CIVILIANS. Most CIVILIAN men spend their entire lives being CIVILIANS, even though all able-bodied men are enrolled in the militia from age 17 to 45. To be enrolled in the militia is analogous to being enrolled in the Selective Service System. Until you get drafted and get sworn in, you remain a CIVILIAN. The UNORGANIZED, RESERVE, or INACTIVE militia refers to CIVILIANS, you thick headed moron.
Nobody cares if you think the U.S. Supreme Court is wrong. The Court holds that you are full of shit. That unsourced, and unsourcable, bullshit is not proof of anything but your own ignorance. Only a subset of citizens could vote. Where state law permitted, aliens could vote. The right of suffrage was not a sign of citizenship. The lack of the right of suffrage was not a sign of alienage. You are just blowing it out of your ass.
Again, the Heller court is selectively picking words. Again, nobody cares if you disagree with the U.S. Supreme Court. The Court holds that you are full of shit.
Under Heller and McDonald, the 2nd Amendment is an INDIVIDUAL right, and you are full of shit. Again, nobody cares if you disagree with the U.S. Supreme Court. The Court holds that you are full of shit. The 2nd Amendment applies to the States and the States may not enact any law which in any way conflicts with the 2nd Amendment RKBA as interpreted by the U.S. Supreme Court. The state cannot grant or protect a right to keep and bear arms in violation of any Federal law. Where Federal law prohibits possession of a short barrel shotgun, a state may not authorize such possession. You are just blowing make believe bullshit out your ass.
So you think the federal government is better at protecting your RKBA than your state? You want the feds to decide if you can carry concealed or not? To set the legal age? To define "mentally fit" and all other requirements? To define the arms protected? To define "to keep" and "to bear"? You don't trust your own state? So, you want your BULLSHIT to be considered the law rather then the actual law, as interpreted by the U.S. Supreme Court? Also, the state is powerless to enforce any state law which conflicts with any Federal law. That is your bullshit argument? Again, nobody gives a good shit if you disagree with the U.S. Supreme Court. The Court holds that you are full of shit. You think the state of California has the slightest interest or intent to protect your right to keep and bear arms?
No. They said they didn't know and didn't want to speculate and they remanded the case back to the lower court for clarification. They made no ruling on the case. U.S. Supreme Court, as quoted in my #239 to which you purport to respond, emphasis as in my #239. Heller at 554 U.S. 621-22: No shithead, they REVERSED the District court and remanded. They did not ask for clarification of jack shit. From the Mandate: On consideration whereof, It is now here ordered and adjudged by this Court that the judgement of the said District Court, in this cause be, and the same is hereby, reversed. AND IT IS FURTHER ORDERED that this cause be, and the same is hereby, remanded to the said District Court for further proceedings in conformity with the opinion of this court. May 15, 1939 The U.S. Supreme Court did not ask for jack shit to be clarified. They REVERSED the judgment of the lower court, and ORDERED the District court to proceed in conformity with the opinion of the U.S. Supreme Court. Co-Defendant Frank Layton pleaded guilty to the charges reinstated by the U.S. Supreme Court. Defendant Miller was dead and just stayed that way.
In the War of 1812, many showed up with nothing. So your claim is meaningless. Upon being called up, civilians called to service were expected to show up with weapons in common civilian use at the time. That some may have showed up empty handed changed nothing. There is no modern state militia. Were there one, and had they full-auto weapons, such weapons would still be illegal for the UNORGANIZED militia (civilians). Such weapons could only be given to serving members of the ORGANIZED militia, those dressed in war suits, for use on duty only.
He did not say that. He said there was an absence of evidence showing that the weapon had military use. I quoted Oyez verbatim. https://www.oyez.org/cases/1900-1940/307us174 Oyez (pronounced oh-yay), a free law project from Cornell’s Legal Information Institute (LII), Chicago-Kent College of Law and Justia.com, is a multimedia archive devoted to making the Supreme Court of the United States accessible to everyone. [snip] Do write them a sternly worded letter informing them they do not know what they are talking about. Heller at 554 U.S. 621-22: Nobody gives a shit about your addle-brained bullshit. The District court initially DISMISSED the charges, based on a claimed 2nd Amendment right to possess the sawed-off shotgun. The U.S. Supreme Court REVERSED the judgment of the District court, holding that a sawed-off shotgun was not the type of weapon eligible for Second Amendment protection, and reinstated the charges. Defendant Miller was shot to death before the Supreme Court proceedings. His 2nd Amendment argument having been rejected by the U.S. Supreme Court, Co-Defendant Frank Layton pleaded guilty and was sentenced for unlawfully transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long without having registered it and without having in his possession a stamp-affixed written order for it, as required by the National Firearms Act. You may disagree with the U.S. Supreme Court in Heller, or wilfully misrepresent Miller, but nobody cares about your bullshit. You have proven over and over that you are incapable of reading and making sense of a court opinion, or that you simply choose to ignore what they say, and make up your own bullshit and present it as something other than bullshit.
What makes you think the federal government is interested in protecting your personal RKBA? The 2nd Amendment, and the rest of the Constitution, is an act of THE PEOPLE. It was not ratified by the Federal Government. What makes you think THE PEOPLE are not interested in protecting the INDIVIDUAL rights of THE PEOPLE? What makes you think that the great state of California has the slightest interest or intent to protect your individual right to keep and bear arms?
Uh-huh. It was. Now the fate of your RKBA is in the hands of five justices on the U.S. Supreme Court. "What makes you think that the great state of California has the slightest interest or intent to protect your individual right to keep and bear arms?" That's up to the people of the State of California. My state ptotects my rights.
I should. They're idiots. He never said that. "The U.S. Supreme Court REVERSED the judgment of the District court, holding that a sawed-off shotgun was not the type of weapon eligible for Second Amendment protection, and reinstated the charges." Wrong. The U.S. Supreme Court said they didn't know if the weapon was eligible for second amendment protection, reversed the District Court judgement, and remanded the case back to the District Court for clarification.
It demonstrates that muskets were not in common use by civilians, otherwise they would have brought them along. "There is no modern state militia." Sure there is. Today, about half the states have a State Defense Force. Keep in mind, a state militia (by definition) is not a standing army. People are brought together when needed. So how can you say there is none?
Again, in 1790 there was only ONE militia. The weapons possessed by the members of that ONE militia were protected by the second amendment.
Remand -- return a case to a lower court for reconsideration. The U.S. Supreme Supreme Supreme Court wanted the District Court to reconsider whether the weapon had any usefulness in a militia. The U.S. Supreme Court was not provided with any facts that said it did. "They REVERSED the judgment of the lower court, and ORDERED the District court to proceed in conformity with the opinion of the U.S. Supreme Court." Bullshit. You're just making things up. If that were the case, the U.S. Supreme Court would have simply reversed the lower court ruling saying that the weapon didn't qualify for second amendment protection. Period. They didn't do that because they didn't know that. And they said so.
How??? See United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008) The Constitution of the United States provides in part that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI. This necessarily makes the question presented by defendant's motion one of federal law. If the NFA is otherwise consistent with the U.S. Constitution and is a 3 - - - - - - - - - - valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary." The defendants argue that Kansas's adoption of the Second Amendment Protection Act (SAPA), K.S.A. § 50-1204, somehow rendered the National Firearms Act unconstitutional. Dkt. 63 at 6. This court has no authority to construe SAPA or to determine what it means; that is a task reserved to the Kansas courts. But the Constitution could not be clearer on one point: if the National Firearms Act is a valid exercise of Congressional taxing power, and if it does not infringe on rights granted in the U.S. Constitution, then it is the "supreme Law of the Land," regardless of what SAPA says.
Remand. To send back. The act of an appellate court when it sends a case back to the trial court and orders the trial court to conduct limited new hearings or an entirely new trial, or to take some further action. Black's Law Dictionary, 6th Ed. Law Dictionary, 2 Ed., Steven F. Gifis The U.S. Supreme Court reversed the lower court ruling and eliminated the 2nd Amendment defense accepted by the lower court, reversed its judgment, reinstated the charges, and issued a mandate ordering the lower court to conduct forther proceedings not inconsistent with the Supreme Court opinion. The defendant, having no 2nd Amendment defense, pleaded guilty. Miller found that there is no 2nd Amendment right to keep and bear weapons not typically possessed by law-abiding citizens for lawful purposes, such as sawed-off shotguns. Short barrel shotgun possession was illegal per the National Firearms Act. See U.S. v. Fincher, 538 F.3d 368 (2008)
[misterwhite #261] Wrong. The U.S. Supreme Court said they didn't know if the weapon was eligible for second amendment protection, reversed the District Court judgement, and remanded the case back to the District Court for clarification. - - - - - - - - - - [misterwhite #262] Sure there is. Today, about half the states have a State Defense Force. Keep in mind, a state militia (by definition) is not a standing army. People are brought together when needed. So how can you say there is none? Running around in the woods, thinking you are Patrick Swayze in Red Dawn, doesn't cut it. I can say it because court opinions say you are full of shit, and people dumb enough to take your arguments to court look like the march of the penguins on their way to prison. - - - - - - - - - - [misterwhite #263] Again, in 1790 there was only ONE militia. The weapons possessed by the members of that ONE militia were protected by the second amendment. - - - - - - - - - - MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 1 The Second Amendment protects those weapons possessed by law-abiding citizens for lawful purposes, ONLY. If the weapon is unlawfully possessed, it is not protected by the Second Amendment. Richard Hamblen reminds me of the sovereign citizens who tell the cop they are not violating the law about needing a license plate while driving, as they are not driving but traveling. http://volokh.com/2010/02/27/united-states-v-miller/ The comment below, by Richard Hamblen, is in response to the article, "Why United States v. Miller was so badly written," by David Kopel on February 27, 2010, at The Volokh Conspiracy. About David Kopel I am the petitioner in Hamblen vs. the United States. US V. Miller does not uphold the NFA. The USSC says it cannot say the Second Amendment protects such a weapon as a short barreled shotgun because there is no evidence in the trial record. The case was remanded for further evidentiary action since the USSC is not an evidentiary body. The surviving defendant, Frank Layton, after seeing the fate of his codefendant Jack Miller, chose not to introduce any evidence such as the purchase of short barreled shotguns by the US Army in the World War to show that such a weapon is part of the ordinary military equipment, but instead pled guilty in exchange for a sentence of probation, a plea he and Miller tried to entered when first indicted. Read the file of all the extant court documents on this case compiled by Patrick Aultice. Scalia in Heller is reduced to lying about Miller, a lie the Sixth Circuit perpetuates. Scalia cannot even get the facts of the case correct, for it was the government appealing the dismissal of the charges against the pair, not the other way around. Scalia is supposed to be one of the best legal minds in the country. He has battalions of law clerks. Do you honestly think not one of them brought this error to his attention? And if he gets the basic facts wrong, what does this say about his analysis? Heller is dicta as far as the NFA is concerned. In an exchange with Justice Scalia in the oral arguments, Solicitor General Paul Clement states the following: "***GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals' opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult -- I don't want to foreclose the possibility of the government, Federal Government making the argument some day -- but I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is. CHIEF JUSTICE ROBERTS: But this law didn't involve a restriction on machine guns.***" [emphasis added] Chief Justice Roberts cuts him off, because Heller has nothing to do legally with the NFA because the NFA was not under consideration. Scalia's remarks about Miller and the NFA in Heller are the very definition of a gratuitous remark. The Court is reduced to sustaining the Gun Laws by lying about its own decisions. It is apparent from the oral arguments in McDonald that the Court wants to go nowhere near Miller and my case. We are submitting our second and final petition for writ of certiorari with the USSC at the end of the month. If you have any interest at all in my case and in the protection of your constitutionally recognized RTKBA, please assist me. I can be contacted at rahamblen@gmail.com. My attorney, Jeffrey S. Frensley can be contacted at chipfrensley@yahoo.com. I have posted a good many of the case documents and background information at http://www.esnips.com/web/HamblenvsUnitedStates Hamblen was convicted and sentenced to 15 months in federal prison. His petition to the Supreme Court for writ of cert was denied. His motion to vacate was denied, see below. Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison. https://www.leagle.com/decision/infdco20081208529 No. 3:08-1034. RICHARD HAMBLEN v. UNITED STATES OF AMERICA. United States District Court, M.D. Tennessee, Nashville Division. December 8, 2008. MEMORANDUM TODD J. CAMPBELL, District Judge. I. Introduction Pending before the Court is a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside Or Correct Sentence (Docket No. 1), filed by counsel for the Movant/Petitioner (hereinafter "Petitioner"). The Government has filed Responses to the Motion (Docket No. 3, 7), and the Petitioner has filed a Memorandum In Support Of His Motion (Docket No. 6). The Court has reviewed the pleadings and briefs filed by both parties, the record of Petitioner's underlying conviction, and the entire record in this case. For the reasons set forth below, the Court concludes that Petitioner's Motion To Vacate is DENIED, and this action is DISMISSED. II. Procedural and Factual Background In the underlying criminal case, the Petitioner was charged in an Indictment with possession of certain machine guns, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) (Count One), and with possession of certain machine guns that were not registered, in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871 (Count Two). (Docket No. 1 in Case No. 3:05-00226). The charges were based on Petitioner's possession of nine machine guns and other firearms kept in a safe at the back of his place of business. (Transcript of Trial, Vol. I, at 23-92 (Docket No. 36)). At the conclusion of a two-day trial, the Defendant was convicted of both Count One and Count Two. (Docket Nos. 17, 18, 23 in Case No. 3:05-00226). At the subsequent sentencing hearing, the Court sentenced the Petitioner to a total term of 15 months of imprisonment. (Docket No. 28 in Case No. 3:05-00226). The Petitioner appealed his conviction to the Sixth Circuit (Docket No. 39 in Case No. 3:05-00226; United States v. Richard Hamblen, 239 Fed. Appx. 130, 2007 WL 1804393 (6th Cir. June 21, 2007)), and the Sixth Circuit affirmed. Id. The Petitioner then filed a Petition for Writ of Certiorari in the United States Supreme Court, but the Petition was subsequently denied. (Docket Nos. 41, 42 in Case No. 3:05-00226). III. Analysis A. The Petitioner's Claims Petitioner contends that his conviction should be vacated because the statutes under which he was convicted violate the Second Amendment. B. The Section 2255 Remedy/Evidentiary Hearing Not Required. Section 2255 provides federal prisoners with a statutory mechanism by which to seek to have their sentence vacated, set aside or corrected.1 The statute does not provide a remedy, however, for every error that may have been made in the proceedings leading to conviction. The statute contemplates constitutional errors, and violations of federal law when the error qualifies as a "fundamental defect which inherently results in a complete miscarriage of justice." Reed v. Faley, 512 U.S. 339, 114 S.Ct. 2291, 2296, 2299-2300, 129 L.Ed.2d 277 (1994); Grant v. United States, 72 F.3d 503, 505-06 (6th Cir. 1996). Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that the Court shall consider the "files, records, transcripts, and correspondence relating to the judgment under attack" in ruling on a petition or motion filed under Section 2255. In addition, where the same judge considering the Section 2255 motion also conducted the trial, he may rely on his recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996). An evidentiary hearing is not required if the record conclusively shows that the Petitioner is not entitled to relief. 28 U.S.C. § 2255; Rule 8 of the Rules Governing Section 2255 Proceedings For The United States District Courts; Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). No hearing is required "if the petitioner's allegations 'cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Id. (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)). In this case, the Petitioner does not seek an evidentiary hearing to introduce new evidence in support of his constitutional claim. (Docket No. 6). The Court agrees that an evidentiary hearing is not warranted in this case. C. Procedural Default The Government argues that the Court need not reach the Petitioner's constitutional claim because that claim has been procedurally defaulted. Petitioner defaulted the claim, according to the Government, because his Second Amendment argument to the appeals court focused on his collective rather than individual right to bear arms. In the trial court, Petitioner's primary, if only, defense rested in his belief that his firearm possession was protected by the Second Amendment. (Docket Nos. 16, 26, 29 and 38). The Court rejected the Petitioner's argument under the then-prevailing view that the Second Amendment guaranteed only a collective right to bear arms, and that collective right required that the Petitioner show his possession had some reasonable relationship to the preservation or efficiency of a well-regulated militia. (Transcript of Trial, Vol. II, at 273-74, 334-35 (Docket No. 37)). The Court also charged the jury to that effect. (Id.) In considering Petitioner's Second Amendment argument on appeal, the Sixth Circuit reiterated the state of the law at that time that the Second Amendment guarantees a collective rather than an individual right to bear arms, and that under United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 806 (1939), the Petitioner was required to show that his possession of machine guns had some reasonable relationship to the preservation or efficiency of a well-regulated militia. 239 Fed. Appx. at 134-35. Finding that the Petitioner had failed to make that showing, the Sixth Circuit rejected his Second Amendment argument. Id. As noted above, Petitioner then filed a Petition for Writ of Certiorari in the United States Supreme Court, which was denied. (Docket Nos. 41, 42 in Case No. 3:05-00226). Approximately one year after the Sixth Circuit affirmed Petitioner's conviction, on June 26, 2008, the Supreme Court issued its decision in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), recognizing for the first time an individual right to bear arms guaranteed by the Second Amendment. Relying primarily on Heller, Petitioner now argues that his conviction and sentence violate his Second Amendment rights. The Court is persuaded that the Petitioner fairly presented to this Court and the Sixth Circuit on direct appeal the Second Amendment argument he now raises in the pending motion to vacate. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed. 438 (1971)(In the context of a state prisoner habeas case, the Court explains that claims must first be "fairly presented" to state court); United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)(Procedural default rules developed in state habeas corpus cases apply in federal habeas corpus cases). The Petitioner clearly presented to the Sixth Circuit his claim that his conviction violated his Second Amendment rights. Picard, 404 U.S. at 277 (A mere variation in legal theory does not automatically indicate that the defendant has failed to fairly present a claim). See also Dye v. Hofbauer, 546 U.S. 1, 126 S.Ct. 5, 163 L.Ed.2d 1 (2005). Accordingly, the Court concludes that the Petitioner has not defaulted the claim by failing to raise it on direct appeal. D. Second Amendment In raising the Second Amendment claim here, Petitioner primarily relies on District of Columbia v. Heller. In Heller, the Court held that the District of Columbia's prohibition on the possession of handguns in one's home violates the Second Amendment. 128 S.Ct. at 2814-18. In reaching its decision, the Court held that the Second Amendment confers an individual right to keep and bear arms. Id. At the same time it recognized a Second Amendment right for an individual to bear arms, the Heller Court limited the scope of that right within the context of its own opinion: * * * 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 [United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939)] said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.' Heller, 128 S.Ct. at 2816-17 (footnote and citations omitted). Thus, the Heller Court made clear that the Second Amendment right it recognized did not include possession of weapons by certain categories of individuals, or possession of weapons in certain places, or possession of certain types of weapons. The Court specifically discussed the types of weapons that were not protected by the Second Amendment in distinguishing the Miller case: 128 S.Ct. at 2815-16. The conclusion that the Heller Court did not extend Second Amendment protection to machine guns, in particular, is supported by the lower federal courts that have addressed the issue. In United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008), the Eighth Circuit held that the defendant's possession of a machine gun was not protected by the Second Amendment under Heller: "Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use." In United States v. Gilbert, 286 Fed. Appx. 383, 2008 WL 2740453 (9th Cir. July 15, 2008), the Ninth Circuit approved a jury instruction that an individual does not have a Second Amendment right to possess a machine gun or a short-barreled rifle. The court explained that under Heller, "individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did . . ." 286 Fed. Appx. at 386.2 The Petitioner argues that the limitations placed on the Second Amendment right to bear arms by the majority opinion in Heller can not square with the Court's earlier decision in Miller. Whatever merit there is to that argument, however, this Court is bound by the Heller opinion as written. IV. Conclusion For the reasons set forth herein, the Court concludes that Petitioner is not entitled to relief under 28 U.S.C. § 2255. Therefore, the Petitioner's Motion Under § 2255 is denied, and this action is dismissed. Should the Petitioner give timely notice of an appeal from this Memorandum and Order, such notice shall be treated as an application for a certificate of appealability, 28 U.S.C. 2253(c). The Court concludes that Petitioner has made a substantial showing of the denial of a constitutional right as to his Second Amendment claim, and reasonable jurists could find the Court's assessment of the constitutional claim debatable. See, e.g., Castro v. United States, 310 F.3d 900 (6th Cir. 2002). Accordingly, the Court will issue a certificate of appealability on Petitioner's Second Amendment claim. It is so ORDERED. FootNotes 1. 28 U.S.C. § 2255 states, in part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. 2. The defendants in Fincher and Gilbert, like the Petitioner here, were charged with possession of machine guns in violation of 18 U.S.C. §§ 922(o) and 924(a)(2), and possession of unregistered firearms in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. See 538 F.3d at 870; 286 Fed. Appx. at 385.
Miller had a 12ga, sawed-off, double-barreled shotgun. Not even close to the actual WWI combat shotgun -- the Winchester Model 1897 trench gun, a 5-round, pump-action, 12ga shotgun with a 20" barrel, sling swivels, barrel shroud, and bayonet lug. "His motion to vacate was denied, see below." Yeah, because the idiot appealed based on his second amendment collective right to keep and bear arms (ie., had some reasonable relationship to the preservation or efficiency of a well-regulated militia). Which, of course, he couldn't demonstrate.
So I can order a brand-new, full-auto M-16 from Colt as long as I pay the tax?
No it didn't. Miller found that there is no 2nd Amendment right to keep and bear weapons not typically possessed by
Correct. And that opinion was that the second amendment only protected weapons suitable for use by a militia. Meaning, the District Court had to provide evidence that a sawed-off shotgun fell into this category.
- - - - - - - - - - [misterwhite #269] So I can order a brand-new, full-auto M-16 from Colt as long as I pay the tax? - - - - - - - - - - [misterwhite #270] Miller found that there is no 2nd Amendment right to keep and bear weapons not typically possessed - - - - - - - - - - [misterwhite #271] And that opinion was that the second amendment only protected weapons suitable for use by a militia. MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 2 Channel misterwhite, act accordingly, take your bullshit to court, go to prison. Hollis Wayne Fincher argued "that he has the right to possess these weapons [a machinegun and a sawed-off shotgun] under the Second Amendment of the United States Constitution because his possession has some reasonable relationship to the maintenance of a well regulated militia." As that was a matter a law, it was a matter for the judge to decide. The Court did not err in prohibiting Fincher from presenting such bullshit to the jury. Fincher presented his bullshit to the court, out of the presence of the jury, and the court found it to be bullshit. The court imposed concurrent sentences of 78 months imprisonment on each of two counts. Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison. https://www.leagle.com/decision/infco20080813073 Nos. 07-2514, 07-2888. 538 F.3d 868 (2008) UNITED STATES of America, Appellee, v. Hollis Wayne FINCHER, Appellant. United States Court of Appeals, Eighth Circuit. Submitted: March 10, 2008. Filed: August 13, 2008. Attorney(s) appearing for the Case Quentin M. Rhoades, argued, Missoula, MT, for appellant. Wendy L. Johnson, AUSA, argued, Fort Smith, AR, for appellee. Before WOLLMAN, BOWMAN, and MELLOY, Circuit Judges. WOLLMAN, Circuit Judge. Hollis Wayne Fincher was convicted by a jury on one count of possession of a machine gun, in violation of 18 U.S.C. §§ 922(o), 924(a)(2), and one count of possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Fincher does not dispute that he possessed these guns or that he did so without a license. He appeals his conviction, however, arguing that he has the right to possess these weapons under the Second Amendment of the United States Constitution because his possession has some reasonable relationship to the maintenance of a well regulated militia. Fincher also challenges the district court's determination that he is not eligible for court appointed counsel and challenges the district court's request to resentence him. We affirm the conviction and remand the issue of Fincher's eligibility for court appointed counsel to the district court for further inquiry. I. Second Amendment A. Background Before Fincher's trial began, the government became aware of Fincher's intention [538 F.3d 871] to argue to the jury that his possession of guns was protected under the Second Amendment. Because that issue is a matter of law, the government filed a motion in limine asking the district court to prevent Fincher from arguing matters of law to the jury. After hearing oral argument on the motion, the district court granted the motion in part and denied it in part. In doing so, the district court stated that matters of law are "quintessentially within the province of the judge and not matters to be addressed to the jury." Nevertheless, the district court stated that it would allow Fincher to present evidence outside the presence of the jury that under United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), and United States v. Hale, 978 F.2d 1016 (8th Cir.1992), his possession of the guns was reasonably related to a well regulated militia. At the close of the government's case, Fincher moved for judgment of acquittal. The district court denied the motion, stating that it was based on an attack on the law and not the evidence, and that under Hale, 978 F.2d 1016, the fact that a particular weapon may be susceptible to military use does not by itself establish a Second Amendment right to possess the weapon. During his case-in-chief, Fincher presented his own testimony, which the district court heard in camera. Fincher testified that he possessed the guns as part of his membership in the Washington County Militia ("WCM"), an organization he helped found in 1994. He testified that the purpose of the WCM is to ensure the militia can operate as effectively militarily as possible in a time of state emergency and that the WCM has regular meetings and training sessions for its members. Fincher testified that between seven and nine individuals attend any given meeting of the WCM, though it is not always the same individuals in attendance. The WCM does not maintain a roster of its members or an inventory of weapons. The WCM is not a secret organization. In fact, along with the other members of the WCM, Fincher wrote and sent letters to federal agencies via certified mail informing them of the WCM's existence and attempting to put them on notice that the WCM was lawful under state law. Fincher also sent at least one letter to the governor of Arkansas, informing him about the WCM, seeking approval, and stating that the governor's failure to object to the WCM's declaration would provide affirmation that the state of Arkansas did not object to the WCM. Fincher denied receiving a letter from the governor stating that the state records did not contain any reference to the WCM and that no such organization was registered with, or sanctioned by, the office of the governor or the state of Arkansas. In addition to sending written notice of the WCM to various governmental offices, Fincher invited local sheriffs to view the WCM facilities and weapons. Fincher also told state officials that the WCM possessed machine guns, which the public could observe at any one of the three annual picnics sponsored by the WCM, and he showed the machine guns to at least one sheriff. Fincher also testified about how the weapons used by the WCM were chosen and stored, some at the WCM facility and others at the individual members' residences. When asked about the procedures for activating the WCM in the case of an emergency, Fincher stated that if an emergency occurred while he was the commander of the WCM, he would contact "the sheriff if — if I was able, you know, depending on the emergency, or the governor, or probably any other — or maybe the mayor of a city or any — anyone or no one. If there was an emergency that had to be [538 F.3d 872] taken care of, we have the right to preserve life, liberty, and pursuit of happiness. We have the duty to. You don't stand around and wait for someone to tell you you can protect your life or perform emergency medical assistance or put out a fire. These are natural offices of the people." He also testified that the state could call up the militia at any point, and that even though the written notices that WCM sent to various governmental offices did not contain any phone numbers or other direct contact information, the governor would know how to contact them. The district court ruled that Fincher's proffered testimony would not be admitted because the WCM, despite its attempts to receive state recognition, was an unorganized and unregulated militia and therefore, as a matter of law, did not fall within the auspices of the Second Amendment. The district court also noted that even if the WCM was a state-sponsored or state-connected militia, there was no evidence that the person in charge of that militia would determine that possession of machine guns or sawed-off shotguns was necessary to the preservation of a well regulated militia. B. Discussion Fincher asserts that the district court erred by not allowing the jury to determine whether his possession of firearms was reasonably related to a well regulated militia and therefore protected by the Second Amendment. We review a district court's grant of a motion in limine for abuse of discretion, Robinson v. Potter, 453 F.3d 990, 995 (8th Cir.2006), and we accord it great deference on evidentiary rulings such as the admissibility of proffered testimony, United States v. Wilson, 103 F.3d 1402, 1406 (8th Cir.1997). We review de novo the district court's legal conclusions, such as whether possession of firearms in relation to membership in a non-state-sponsored militia is protected by the Second Amendment. United States v. Lippman, 369 F.3d 1039, 1043 (8th Cir. 2004). The role of the jury is to decide facts, not legal issues. United States v. Peck, 161 F.3d 1171, 1174 (8th Cir.1998). Accordingly, the district court did not err in prohibiting Fincher from arguing or presenting evidence regarding a question of law to the jury. We turn to the question whether the district court erred by concluding that Fincher's possession of the guns did not fall within the protection of the Second Amendment. We conclude that the district court's determination that the WCM was not affiliated with the state militia and therefore not subject to the protections of the Second Amendment under Miller and Hale is well supported by the record. Fincher contends that our decision in Hale, 978 F.2d 1016, established an affirmative defense to the charge of unlawful possession of firearms. In Hale, we stated that the possession of firearms is not protected unless the possession bears a reasonable relationship to a well regulated militia. 978 F.2d at 1020; see also United States v. Pfeifer, 371 F.3d 430, 438 (8th Cir.2004) (citing Hale); United States v. Farrell, 69 F.3d 891, 894 (8th Cir.1995) (same). Although the WCM is not a secretive organization and has held relatively regular training sessions and meetings over the years, we stated in Hale that "'[t]echnical' membership in a state militia (e.g., membership in an 'unorganized' state militia) or membership in a non-governmental military organization is not sufficient to satisfy the 'reasonable relationship' test." Hale, 978 F.2d at 1020 (citing United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977)). In Arkansas, the state militia is defined as: [538 F.3d 873] (a) The militia shall be divided into two (2) parts: the organized, consisting of the active and inactive Army National Guard and Air National Guard; and the unorganized, consisting of all those persons of the militia not in the active or inactive Army National Guard or the Air National Guard. (b) The militia shall consist of all able-bodied male residents of the state between the ages of seventeen (17) and forty-five (45) years who are, or intend to become, citizens of the United States, unless exempt by law, together with all other acceptable volunteers, waiving necessary requirements. Ark.Code. Ann. § 12-61-101 (emphasis added). Thus, despite WCM's attempts to contact the governor's office and become an organized state militia, the district court correctly concluded that Fincher's testimony, even if believed by the jury, would not support his Second Amendment argument because Fincher is not a member of an organized state militia. Rather, Fincher's testimony established that the WCM was an "unorganized" militia because it is not the Army National Guard or the Air National Guard and is not formally connected with the state of Arkansas. Therefore, under Hale, Fincher's possession of firearms is, as a matter of law, not reasonably related to a well regulated militia and is thus not protected by the Second Amendment. In reaching this conclusion, we have taken into account the Supreme Court's recent decision in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008),1 in which the Court held that the District of Columbia's complete prohibition on the possession of usable handguns in one's home violated the Second Amendment. Id. at 2817-18. In holding that the Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation," Id. at 2797,2 the Court also stated that the right to possess firearms is not beyond the reach of all government regulation. Id. at 2799, 2816 ("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."). In discussing the limitations the government can place on an individual's right to possess firearms, the Court noted that Miller does not protect "weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Heller, 128 S.Ct. at 2815-16. The Court also articulated a nonexclusive list of what it viewed to be acceptable government regulation of firearms: [T]he 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. 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 [538 F.3d 874] 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. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Id. at 2816-17 (internal citations and footnote omitted). Accordingly, under Heller, Fincher's possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller. Accordingly, because Fincher's possession of guns is not protected by the Second Amendment, the district court did not abuse its discretion in preventing him from arguing otherwise to the jury. II. Court Appointed Counsel A. Background The circumstances surrounding Fincher's court appointed counsel are fully recited in the district court's order, United States v. Fincher, No. 06-50064-001, 2007 WL 2177062 (W.D.Ark. July 27, 2007), and are largely undisputed by Fincher. For the purpose of our analysis, we will highlight the main facts. Fincher was arrested on November 9, 2006, for violating 18 U.S.C. § 922(o). When he made his initial appearance later that day, he requested the appointment of an attorney because of his financial inability to retain counsel. He executed a "Financial Affidavit In Support of Request For Attorney or Other Court Services Without Payment Of Fee" ("the financial affidavit"), which indicated that he had no personal income, that his wife made $10.50 an hour, that he had $2,000 in savings, that he owned two vehicles of unknown value, one on which he was still making payments, and that he owned his home and 120 acres of real estate in Fayetteville, Arkansas, which had unknown value. Based upon that information, the district court appointed counsel to represent Fincher pursuant to the Criminal Justice Act. On December 13, 2006, Fincher's appointed counsel withdrew because Fincher had retained other counsel. Thereafter, Fincher was convicted on both counts charged in the indictment. On March 8, 2007, Fincher informed the district court that he no longer had counsel and requested that counsel be appointed for him, which was done. Before Fincher was sentenced, he executed a quitclaim deed conveying the 120 acres of real estate to his daughters in exchange for consideration of "One dollar ($1.00) and other good and valuable consideration," and reserving a life estate in the property for himself and his wife. Thereafter, the district court imposed concurrent sentences of 78 months' imprisonment on each count. Fincher was also subject to a fine of up to $250,000. Although the guidelines range called for a fine of between $12,500 and $125,000, the district court imposed a fine of only $1,000 under the belief that Fincher had no significant assets. After sentencing, Fincher requested release on bond pending appeal. The district court conducted a hearing on the [538 F.3d 875] matter and agreed that Fincher could be released on $100,000 bond. Fincher indicated that he could not post bond in that amount. The district court noted that Fincher might be able to use his real estate to secure the bond, whereupon Fincher's daughters executed a mortgage for that purpose. As a result, the district court became aware that Fincher's property had significant value, and that Fincher had conveyed it to his daughters. As a result of these circumstances, on July 3, 2007, the district court held an evidentiary hearing to determine Fincher's financial eligibility for court appointed counsel. The district court received testimony from Fincher, his wife, and his two daughters. The district court also requested that Fincher provide supporting documents, such as his contract with retained counsel and the deed transferring the real estate. In addition, the district court ordered an independent appraisal of the property, which estimated that it had a value of $455,000. On July 27, 2007, the district court entered an order stating that Fincher "is not now, nor has he ever been at any time material to this proceeding, financially unable to obtain counsel to represent him in this proceeding and that appointments of counsel for him were improvidently made." Fincher, 2007 WL 2177062, at *10. Accordingly, the district court ordered Fincher to reimburse the United States Treasury $8,357.55 for the legal services provided to him by the attorneys appointed under the Criminal Justice Act. Id. B. Discussion Fincher asserts that the district court's July 27, 2007, order revoking his eligibility for court appointed counsel should be reversed because he did not misrepresent the value of his real estate when he stated that the value was unknown. He also challenges the appraised value of the property and the district court's conclusion that he owns the property free and clear. Fincher asserts that he was subjectively unaware of the value of the property when he filled out the affidavit, that the property is not worth nearly as much as the appraised value because it is landlocked, and that he owned it as a joint tenant with his wife. Fincher further contends that the transfer of the property to his daughters was legitimate because he informed the Assistant United States Attorney who was working on the case about the transfer. The Criminal Justice Act provides a framework for ensuring that individuals who are financially unable to afford defense counsel are provided counsel as required by the Sixth Amendment. United States v. Brockman, 183 F.3d 891, 897 (8th Cir.1999). The Act requires that each United States district court create "a plan for furnishing representation for any person financially unable to obtain adequate representation...." 18 U.S.C. § 3006A(a). A person is eligible for court appointed counsel if, after the United States magistrate judge or court conducts an "appropriate inquiry," the court is satisfied that "the person is financially unable to obtain counsel." 18 U.S.C. § 3006A(b). Financial inability to obtain counsel is not the same as being indigent or destitute, but the defendant has the burden of establishing that he or she is financially unable to obtain counsel. Brockman, 183 F.3d at 897; Museitef v. United States, 131 F.3d 714, 716 (8th Cir.1997). "If at any time after the appointment of counsel the United States magistrate judge or the court finds that the person is financially able to obtain counsel or to make partial payment for the representation, it may terminate the appointment of counsel or authorize payment as provided in subsection (f), as the interests of justice may dictate." 18 U.S.C. § 3006A(c); see also 18 U.S.C. § 3006A(f) ("Whenever the United States [538 F.3d 876] magistrate judge or the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid...."); Museitef, 131 F.3d at 715. Thus, our review of the district court's determination of financial eligibility for court appointed counsel is a three-step process. See United States v. Parker, 439 F.3d 81, 92 (2d Cir.2006) (reviewing district court's mid-case appointment of counsel). We must ask, (1) whether the district court conducted an "appropriate inquiry" into the defendant's financial eligibility, (2) whether the district court correctly determined the defendant's financial eligibility, and (3) whether the district court erred when it weighed the "interests of justice." Id. at 92-93. Because we ultimately remand this issue to the district court for further review, we reach only the first of these three questions. To determine a defendant's financial eligibility, the district court should make a "full inquiry" into the defendant's actual ability to retain counsel. Museitef, 131 F.3d at 716. A full-scale adversarial hearing is not required, however, before a district court may order repayment of attorney's fees under the Criminal Justice Act. United States v. Vale, 140 Fed.Appx. 302, 303 (2d Cir.2005) (unpublished opinion) (citing United States v. Crosby, 602 F.2d 24, 28 (2d Cir.1979)); see also Parker, 439 F.3d at 93 ("The task necessarily varies with the circumstances presented, and no one method or combination of methods is required." (internal quotation omitted)). We review de novo the adequacy of the district court's inquiry. Parker, 439 F.3d at 93 n. 12. In this case, the district court's initial inquiry was based upon the financial affidavit submitted by Fincher. See id. at 93 (noting that in some cases the court's inquiry may be limited to the defendant's statements on the financial affidavit). Based upon the limited information available at that time, the district court did not err in appointing counsel for Fincher. Brockman, 183 F.3d at 897 (any doubt about the defendant's eligibility for court appointed counsel should be resolved in the defendant's favor); United States v. Cohen, 419 F.2d 1124, 1127 (8th Cir.1969) (district court's determination that defendant was ineligible for court appointed counsel based upon the ownership of real estate with an unknown value and without a more searching inquiry was error). Although a district court should investigate information contained in an affidavit when the information provided renders the defendant's eligibility questionable, the district court's initial determination of eligibility can be amended when new information comes to light. See In re Boston Herald, Inc., 321 F.3d 174, 179 (1st Cir.2003) (erroneous eligibility determinations can be corrected at a later time). In this case, the district court became aware of the fact that Fincher's property had significant value when it was mortgaged to secure Fincher's $100,000 bond and Fincher testified that he knew that property in the same area had recently sold for between $2,000 and $4,000 an acre. This new information was sufficient to warrant a reexamination of Fincher's eligibility.3 [538 F.3d 877] Fincher argues that the district court erred in determining that he was not eligible for court appointed counsel because the district court did not take into consideration the fact that the property is landlocked and therefore is not as valuable as the appraisal indicates. Fincher testified at the hearing, however, that the property is located one mile off a public road and that there is an unpaved road that goes directly to the property. Fincher also informed the district court that the property has a right-of-way that, although not currently used, is attached to ownership of the property. Furthermore, it is undisputed that Fincher and his wife currently reside on the property, suggesting that the property is not in fact inaccessible. The appraisal acknowledges that any ingress and egress to the property would need to be improved, as the current road is not paved. Accordingly, we conclude that the district court did not err in accepting as accurate the appraiser's opinion that the property had a value of $455,000, which falls within Fincher's estimate that the property is worth between $2,000 and $4,000 an acre. Fincher argues for the first time on appeal that because he owned the property as a joint tenant with his wife, he did not own it free and clear, and that the district court therefore erred by concluding otherwise. This late-raised assertion is directly contradicted, however, by the testimony of Fincher's daughter, who testified that Fincher's name is the sole one on the title. Furthermore, Fincher's wife testified that she did not know if she had ever been deeded any portion of the property. Although the quit claim deed that transferred the property to Fincher's daughters in early 2007 recites that Fincher and his wife each owned an undivided one-half interest in the property as tenants in common, there is no evidence in the record that Fincher and his wife owned the property as joint tenants. Accordingly, the district court did not err when it found that Fincher owned the property free and clear because Fincher has not established that there are any mortgages or liens on the property. Regarding Fincher's transfer of the property to his daughters via quit claim deed, we conclude that Fincher's letter to the Assistant United States Attorney regarding the transfer of the property does not insulate the transfer from later question. Testimony at the evidentiary hearing from Fincher, his wife, and his two daughters, as well as the letter sent to the AUSA, all indicate that the property was transferred after Fincher's conviction to avoid the possibility of the property being sold to pay any fine imposed by the district court as part of Fincher's sentence. Accordingly, the district court did not err in concluding that the attempted transfer of the property should be considered when determining Fincher's eligibility for court appointed counsel. Despite these conclusions and the fact that the district court conducted a more thorough inquiry into Fincher's eligibility in July 2007 than it did initially, the district court's analysis leaves factual questions unanswered. Thus, we remand this issue to the district court for further consideration of whether Fincher's wife has any ownership in the property and, if so, whether that affects Fincher's ownership of the property or the application of the Arkansas Homestead Exemption. Specifically, the district court must consider whether the entire 120 acres of real estate is protected by the Homestead Exemption, making Fincher eligible for court appointed counsel despite his ownership of the property, or whether the exemption protects [538 F.3d 878] only a portion of the real estate. See Ark.Code Ann. § 16-66-210; see also United States v. Trevino, 679 F.Supp. 636, 636 (S.D.Tex.1987) (doubting that defendants should have to sell their homestead to appeal criminal conviction); Perry v. Chief of Police of City of Marianna, Ark., 660 F.Supp. 1546, 1552 (E.D.Ark.1987) (in determining indigency, defendant should not be required to sell his inexpensive car or his home).4 Additionally, the district court should consider whether Fincher has the current ability to reimburse the United States Treasury for the legal services he received in light of the transfer of the real estate to Fincher's daughters. III. IFP Status on Appeal We turn next to Fincher's request for in forma pauperis ("IFP") status on appeal. Because we remand to the district court for further review the issue of Fincher's eligibility for court appointed counsel, we do not reach this issue. Nevertheless, Fincher's IFP status on appeal is dependent upon his eligibility for court appointed counsel at the trial level. If the district court concludes that Fincher is eligible for court appointed counsel and therefore should not be required to reimburse the cost of the legal services he received, and Fincher's financial circumstances do not change between the time of the district court and the appellate court proceedings, he should be granted IFP status on appeal. See United States v. Danielson, 325 F.3d 1054, 1077 (9th Cir.2003) (court appointed counsel continues on appeal unless defendant's financial situation changes and he or she is no longer financially eligible). IV. Sentencing On the basis of its conclusion that Fincher misrepresented his financial eligibility for court appointed counsel, the district court seeks a remand for resentencing. In light of our conclusion that the district court must conduct a more searching inquiry into Fincher's eligibility for court appointed counsel, we decline the request for remand. Moreover, it is questionable whether we have jurisdiction to remand in the absence of an appeal or cross-appeal from the government, or whether the district court has jurisdiction to resentence a defendant in the absence of statutory authority to do so. See Greenlaw v. United States, ___ U.S. ___, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) (holding that a circuit court cannot increase a defendant's sentence without a government appeal or cross-appeal); United States v. Ross, 245 F.3d 577, 585-86 (6th Cir.2001) (district court may not resentence defendant without statutory authority); see also United States v. Sadler, 234 F.3d 368, 373-74 (8th Cir.2000) (a district court's "change of heart as to the appropriateness of the sentence, rather than a correction in the application of the guidelines," is not the type of "clear error" that can be corrected under Rule 35(c) (internal quotation and citation omitted)); cf. United States v. Fortino, No. 07-3476, 2008 WL 2388893, ___ Fed. [538 F.3d 879] Appx. ____ (8th Cir. June 13, 2008) (per curiam). V. Conclusion The conviction is affirmed. The order directing Fincher to reimburse the United States Treasury $8,357.55 for the legal services he received pursuant to the Criminal Justice Act is vacated and the case is remanded the district court for further proceedings consistent with the views set forth in this opinion. FootNotes 1. At trial, Fincher's Second Amendment argument focused on his claim of right to possess the guns because they are military weapons and he is a member of the militia and not a claim of an individual right to possess a machine gun or unregistered sawed-off shotgun. Nevertheless, we think it is clear that even if Fincher had made the latter argument at trial, his possession of the guns is not protected under Heller. 2. We note that the Supreme Court did not address the question whether the Second Amendment is incorporated through the Fourteenth Amendment and thus applicable to the states. 3. In its July 27, 2007, order, the district court noted that it should have conducted a investigation beyond Fincher's financial affidavit before it initially appointed him counsel. Fincher, 2007 WL 2177062, at *7. Nevertheless, the district court reasoned that the defendant has the burden of establishing financial eligibility for court appointed counsel and that Fincher did not meet this burden and in fact misrepresented his financial eligibility by listing the 120 acres as having an unknown value when, in fact, he knew that real estate in the same area had recently sold for between $2,000 and $4,000 an acre. See id. (citing United States v. Lefkowitz, 125 F.3d 608 (8th Cir.1997)). 4. Generally, cases in which a defendant's ineligibility for court appointed counsel has been affirmed are based upon the defendant's income and cash flow, not a requirement that the defendant sell his homestead to facilitate the payment of defense costs. See, e.g., Lefkowitz, 125 F.3d at 621 (defendant had recently spent several hundred thousand dollars on other attorney's fees and personal expenses and district court found defendant's own testimony of indigence to be lacking credibility); United States v. Harris, 707 F.2d 653, 661 (2d Cir. 1983) (district court found that defendant had "substantial income" in the past two years and might have had other undisclosed income); United States v. Wetzel, 488 F.2d 153, 157 (8th Cir. 1973) (affirming reimbursement order (for about $350) because defendant received $19,000 for the sale of cattle and owned real estate (the opinion provides no indication that the real estate was defendant's homestead)).
[misterwhite #269] So I can order a brand-new, full-auto M-16 from Colt as long as I pay the tax? The quote at #265 was correctly attributed by me to the opinion of the court in United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008). They are not my words, but those of the court, copied verbatim. Assuming you are neither a licensed firearms dealer, nor purchasing for a police department, regarding your purchase of a brand new machinegun, when you report to federal prison, I promise to make a donation to your commissary fund. https://law.justia.com/codes/us/2016/title-18/part-i/chapter-44/sec.-922/ (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 date that title took effect was May 29, 1986. https://www.gpo.gov/fdsys/pkg/STATUTE-100/pdf/STATUTE-100-Pg449.pdf Public Law 99-308, 100 Stat. 451 (29 May 1986) Section 102. Amendments to Section 922. [...] (9) by inserting after the subsection added by paragraph (8) of this section the following: "(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. Section 110. Effective Date. (c) MACHINEGUN PROHIBITION.—Section 102(9) shall take effect on the date of the enactment of this Act. Approved May 19, 1986. http://www.thefirearmblog.com/blog/2014/09/11/atf-approves-post-86-machine-gun-form-1/
MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 3 [misterwhite #244] 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. From United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), quoted in full below: [...] Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test. Oakes, 564 F.2d at 387. Membership in a hypothetical or "sedentary" militia is likewise insufficient. See Warin, 530 F.2d 103. Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison. https://law.justia.com/cases/federal/appellate-courts/F2/978/1016/183710/ 978 F.2d 1016 (8th Cir. 1992) U.S. Court of Appeals for the Eighth Circuit - 978 F.2d 1016 (8th Cir. 1992) Submitted June 10, 1992. Michael A. Skipper, Little Rock, Ark., argued, for defendant-appellant. Clarence Dan Stripling, Little Rock, Ark., argued (Charles A. Banks and Robert L. Roddey, on the brief), for plaintiff-appellee. Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge. JOHN R. GIBSON, Circuit Judge. Wilbur Hale appeals his conviction of thirteen counts of possession of a machine gun pursuant to 18 U.S.C.A. § 922(o) (West Supp. 1992) and three counts of possession of unregistered firearms pursuant to 26 U.S.C. § 5861(d) (1988). He argues that the statutes under which he was prosecuted have no nexus with interstate commerce, and are therefore beyond the constitutional power of Congress; that the indictment violates his Second Amendment right to bear arms; and that the trial court erred both in admitting affidavits as to the nonregistration of his weapons and in refusing to take judicial notice of material concerning the reliability of firearm registration records. We affirm the judgment of the district court.1 On March 8, 1991, agents of the Bureau of Alcohol, Tobacco and Firearms executed a search warrant on Hale's residence and seized numerous weapons and gun parts. These included one MAC-10 .45 caliber submachine gun, three "Sten-type" 9 millimeter fully automatic submachine guns, two M-1 carbines with kits for enabling fully automatic fire, one .22 caliber pistol with a silencer, and five .223 caliber assault rifles modified into "M-16 type" fully automatic machine guns. The agents also seized the principal components or "receivers" of one MAC-10, one Sten, and one "M-16 type" machine gun. Hale was charged in a sixteen-count indictment and a jury convicted him of all counts. Hale asserts pro se that there is no federal jurisdiction because the statutes under which Hale was prosecuted, 18 U.S.C. § 922(o) and 26 U.S.C. § 5861(d), assert no nexus with interstate commerce, and thus are beyond the power granted to Congress under the Constitution.2 The Supreme Court recognized the breadth of the commerce power in Perez v. United States, 402 U.S. 146, 91 S. Ct. 1357, 28 L. Ed. 2d 686 (1971), explaining that Congress could properly regulate a class of activities that affected interstate commerce without proof that any particular intrastate activity within that class had an effect on interstate commerce. Id. at 152 to 153, 91 S. Ct. at 1360 to 1361. "Where the class of activities is regulated, and that class is within the reach of federal power, the courts have no power to 'excise, as trivial, individual instances' of the class." Id. at 154, 91 S. Ct. at 1361 (emphasis in original) (citation omitted). 18 U.S.C. § 922(o) regulates the possession of machine guns. The legislative history of section 922(o) indicates that Congress considered the relationship between the availability of machine guns, violent crime, and narcotics trafficking. See H.R.Rep. No. 495, 99th Cong., 2d Sess., at 1-5, reprinted in 1986 U.S.C.C.A.N. 1327, 1327-31. When it first enacted section 922, Congress found facts indicating a nexus between the regulation of firearms and the commerce power. See Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, 225 (1968). The 1986 amendments to section 922 added sub-section (o) without substantially altering the findings of fact on this point. See Firearm Owner's Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986). We conclude, as did the Ninth Circuit on similar grounds, that 18 U.S.C. § 922(o) is within the authority granted to Congress by the Commerce Clause. See United States v. Evans, 928 F.2d 858, 862 (9th Cir. 1991). The same general argument is applicable to 26 U.S.C. § 5861(d). Furthermore, the Ninth Circuit has upheld § 5861(d) as a valid exercise of the taxing power of Congress. United States v. Tous, 461 F.2d 656, 657 (9th Cir. 1972) citing United States v. Giannini, 455 F.2d 147 (9th Cir. 1972). The Sixth Circuit has upheld section 5861 as a "reasonable regulation for the maintenance of public order." United States v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948, 96 S. Ct. 3168, 49 L. Ed. 2d 1185 (1976). Therefore, we reject Hale's arguments and conclude that both 18 U.S.C. § 922(o) and 26 U.S.C. § 5861(d) are within the authority granted to Congress under the Constitution. Hale next argues that the indictment violates his Second Amendment rights: "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. Relying on United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), Hale argues that the Second Amendment bars the federal government from regulating the particular weapons seized because the weapons are susceptible to military use and are therefore, by definition, related to the existence of "a well regulated militia". In Miller, the Supreme Court upheld a conviction under the National Firearms Act for transporting a sawed-off shotgun in interstate commerce. In so doing, the Court rejected the argument that the Second Amendment protected the possession of that weapon: Miller, 307 U.S. at 178, 59 S. Ct. at 818 (citation omitted). Hale wants to find in Miller the rule that individual possession of true military weapons is protected under the Second Amendment. When the Second Amendment was ratified in 1791, the state militias functioned as both the principal units of military organization and as an implicit check on federal power. See generally Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U.Dayton L.Rev. 5 (1989). These militias were comprised of ordinary citizens who typically were required to provide their own equipment and arms. The Second Amendment prevented federal laws that would infringe upon the possession of arms by individuals and thus render the state militias impotent. Over the next 200 years, state militias first faded out of existence and then later reemerged as more organized, semi-professional military units. The state provided the arms and the equipment of the militia members, and these were stored centrally in armories. With the passage of the Dick Act in 1903, the state militias were organized into the national guard structure, which remains in place today. Id. More recently, the Supreme Court in Perpich v. U.S. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110 L. Ed. 2d 312 (1990), has analyzed the early history of the militia, including the Act of 1792 which required militia members to provide themselves "with a good musket or firelock," as well as cartridges and other equipment. The Court observed that these requirements were virtually ignored for more than a century. Id. at 341, 110 S. Ct. at 2423. Perpich discusses in detail the relationship between the militia and the National Guard and recognizes that the "Federal Government provides virtually all of the funding, the materiel, and the leadership for the State Guard units." Id. at 351, 110 S. Ct. at 2428. While Perpich does not deal with the Second Amendment issue present here, its discussion of the militia gives further dimension to our analysis. Considering this history, we cannot conclude that the Second Amendment protects the individual possession of military weapons. In Miller, the Court simply recognized this historical residue. The rule emerging from Miller is that, absent a showing that the possession of a certain weapon has "some reasonable relationship to the preservation or efficiency of a well-regulated militia," the Second Amendment does not guarantee the right to possess the weapon. Miller, 307 U.S. at 178, 59 S. Ct. at 818. Miller simply "did not hold ... that the Second Amendment is an absolute prohibition against all regulation of the manufacture, transfer and possession of any instrument capable of being used in military action." Warin, 530 F.2d at 106. This court has on at least three occasions, citing and relying on Miller, denied challenges to the constitutionality of arms control legislation, because there was no evidence of a reasonable relationship to the maintenance of a militia. See United States v. Nelsen, 859 F.2d 1318 (8th Cir. 1988); Cody v. United States, 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S. Ct. 454, 34 L. Ed. 2d 303 (1972); United States v. Decker, 446 F.2d 164 (8th Cir. 1971). In Nelsen and Cody we also cited and relied on the decisions of other circuits discussed in this opinion.3 The Supreme Court has not addressed a Second Amendment issue since the Miller decision. Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770, 63 S. Ct. 1431, 87 L. Ed. 1718 (1943) remains one of the most illuminating circuit opinions on the subject of "military" weapons and the Second Amendment. Cases states that "under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual, as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia." Id. at 922. After carefully examining the principles and implications of the then recent Miller decision, the First Circuit concluded that the existence of any "reasonable relationship to the preservation of a well regulated militia" was best determined from the facts of each individual case. Id. Thus, it is not sufficient to prove that the weapon in question was susceptible to military use. Indeed, as recognized in Cases, most any lethal weapon has a potential military use.4 Id. Rather, the claimant of Second Amendment protection must prove that his or her possession of the weapon was reasonably related to a well regulated militia. See id. at 923. Where such a claimant presented no evidence either that he was a member of a military organization or that his use of the weapon was "in preparation for a military career", the Second Amendment did not protect the possession of the weapon. Id. Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test. Oakes, 564 F.2d at 387. Membership in a hypothetical or "sedentary" militia is likewise insufficient. See Warin, 530 F.2d 103. Applying these principles to the present case, we conclude that Hale's possession of the weapons in question was not reasonably related to the preservation of a well regulated militia. The allegation by Hale that these weapons are susceptible to military use is insufficient to establish such a relationship. Hale introduced no evidence and made no claim of even the most tenuous relationship between his possession of the weapons and the preservation of a well regulated militia. Citing dicta from United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S. Ct. 1056, 1060, 108 L. Ed. 2d 222 (1990), Hale argues that the Second Amendment protections apply to individuals and not to states or collective entities like militias. This argument is inapplicable to this case. The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia. See Miller, 307 U.S. at 178, 59 S. Ct. at 818; United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926, 98 S. Ct. 1493, 55 L. Ed. 2d 521 (1978); Cody, 460 F.2d 34. Whether the "right to bear arms" for militia purposes is "individual" or "collective" in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia. Hale next argues that the trial court's acceptance of affidavits as to the non-registration of his weapons violated his rights as guaranteed by the confrontation clause of the Sixth Amendment. The government introduced two affidavits signed by a Bureau of Alcohol, Tobacco and Firearms specialist stating that, after a diligent search of the its National Firearms Registration Branch records from 1934 to the present, the Bureau had located no record of any application by Hale to register his weapons. The court admitted the affidavits over hearsay objections by Hale's trial counsel. The Federal Rules of Evidence provide for an exclusion from the hearsay rule: Fed.R.Evid. 803(10). The trial judge correctly admitted the affidavits under this rule. Numerous cases have held that the admission of "negative records" under Rule 803(10) does not violate the constitutional right of confrontation. United States v. Metzger, 778 F.2d 1195 (6th Cir. 1985), cert. denied, 477 U.S. 906, 106 S. Ct. 3279, 91 L. Ed. 2d 568 (1986); United States v. Neff, 615 F.2d 1235 (9th Cir. 1980), cert. denied, 447 U.S. 925, 100 S. Ct. 3018, 65 L. Ed. 2d 1117 (1980); United States v. Harris, 551 F.2d 621 (5th Cir.), cert. denied, 434 U.S. 836, 98 S. Ct. 125, 54 L. Ed. 2d 98 (1977). At oral argument, Hale's counsel admitted that Rule 803(10) is "firmly rooted" in the common law as an exception to the hearsay rule and that the affidavits complied with the self-authentication standard of Federal Rule of Evidence 902(1). Hale's reliance on Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) is misplaced. The trial court's ruling discussed records regularly made and preserved by a public agency; Brown addressed the admissibility at trial of testimony given in a preliminary hearing by a declarant unavailable to give live testimony at trial. Id. at 58-62, 100 S. Ct. at 2535-2537. The availability of the declarant is immaterial under Fed.R.Evid. 803. Hale further argues that the trial court erred in failing to admit or take judicial notice of material regarding the reliability of Bureau firearm registration records. Hale attempted to introduce portions of a transcript of hearings held before a Senate subcommittee in 1979. These excerpts included material which Hale alleged would show that the recordkeeping system used by the Bureau for firearm registration records was unreliable. The trial court denied admission because the transcripts were hearsay and were too old to be deemed reliable. The trial court also declined to take judicial notice of the transcript's contents. Hale has failed to demonstrate that the district judge abused her discretion in making either of these determinations. Hale raises numerous other arguments, particularly in his pro se brief, but these do not merit discussion. The judgment of the district court is affirmed. BEAM, Circuit Judge, concurring specially. I concur in the result reached in Judge John R. Gibson's opinion in this matter. I agree completely with the portions dealing with Hale's hearsay and confrontation contentions. I also agree that Hale's possession of the particular weapons at issue in this case is not protected by the Second Amendment. I disagree, however, that Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); United States v. Oakes, 564 F.2d 384 (10th Cir. 1977) and United States v. Nelson, 859 F.2d 1318 (8th Cir. 1988) properly interpret the Constitution or the Supreme Court's holding in United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939) insofar as they say that Congress has the power to prohibit an individual from possessing any type of firearm, even when kept for lawful purposes. Judge Gibson's opinion seems to adopt that premise and with that holding, I disagree. 1 The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas 2 Where a party is represented by counsel, our court policy is to refuse to consider pro se briefs. However, as the issue raised here questions our jurisdiction, which we must independently ascertain, we consider Hale's argument 3 The concurrence flies in the face of stare decisis in arguing that this court did not properly interpret the Second Amendment or Miller in Nelsen, which is consistent with our earlier decisions in Cody and Decker. The concurrence would also flout uniform precedent from other circuits, particularly since Nelsen cites and relies on Oakes and Warin, and Cody on Cases 4 It is evident that Hale's weapons were of a military nature and most undoubtedly of them possessed the capability of killing or maiming groups of persons
Fincher's "militia" did not meet the criteria of a "well-regulated state militia with officers appointed by the state". Horrible case example. I would call it a "posse" at best.
Using what as their authority? Because they're scary? How are ordinary citizens supposed to gather and form an effective state militia without fucking machine guns?
The entity to challenge a second amendment violation should be the state itself. And I bet they'd win. Local police departments have machine guns. Why not local militiamen? Police machine guns are kept at the police department. Militiamen machine guns can be kept at an armory.
Convicted. 78 months. Only enlistment or commission in the National Guard would meet the requisite militia definition. The court opined Fincher would have lost on an individual right argument as well. Civilians, to include those enrolled in the unorganized militia, have no right to possess an unlicensed machinegun. From Fincher, supra. [...] In Arkansas, the state militia is defined as: (a) The militia shall be divided into two (2) parts: the organized, consisting of the active and inactive Army National Guard and Air National Guard; and the unorganized, consisting of all those persons of the militia not in the active or inactive Army National Guard or the Air National Guard. [...] Accordingly, under Heller, Fincher's possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller. Accordingly, because Fincher's possession of guns is not protected by the Second Amendment, the district court did not abuse its discretion in preventing him from arguing otherwise to the jury. [...] FootNotes 1. At trial, Fincher's Second Amendment argument focused on his claim of right to possess the guns because they are military weapons and he is a member of the militia and not a claim of an individual right to possess a machine gun or unregistered sawed-off shotgun. Nevertheless, we think it is clear that even if Fincher had made the latter argument at trial, his possession of the guns is not protected under Heller.
[misterwhite #276] Using what as their authority? Because they're scary? How are ordinary citizens supposed to gather and form an effective state militia without fucking machine guns? The Firearm Owners' Protection Act of 1986 (FOPA) is federal law, upheld as constitutional power of Congress. It is the law of the land, supreme over anything the state may say. Everyone in a State National Guard is also enlisted or commissioned in the U.S. National Guard. The Federal Government provides virtually all of the funding, materiel, and leadership for the state Guard units. The unorganized militia (CIVILIANS) is prohibited, by law, from running around with unlicensed machine guns, or machine guns manufactured after May 19, 1986. Ordinary citizens are not expected to gather and form a militia with machine guns. The authority to provide for organizing, arming, and disciplining, the militia was granted to the Federal Congress by the U.S. Constitution. The Federal Government reorganized the militia as the National Guard.
Keep your bet. The Federal gun regulations have been held to be constitutional. They are the supreme law of the land because the U.S. Supreme Court has repeatedly said so. Federal law regulates civilian possession of machineguns. Membership in the Wolverines, and running around in woods playing Patrick Swayze in Red Dawn does not count. Such "patriots" have no right to possess a machinegun. Members of a police department may be authorized to possess a brand spanking new machinegun. It's the law. Hale broke the law and was convicted. Everyone who goes to court and argues your silly crap gets convicted. The unorganized militia, that great mass of people meeting certain qualifications between ages 17 to 45 are CIVILIANS. Civilian possession of machineguns is strictly regulated. The organized militia are in the National Guard. Their machineguns, for on duty use, are provided by the Federal government. From Hale, supra, Applying these principles to the present case, we conclude that Hale's possession of the weapons in question was not reasonably related to the preservation of a well regulated militia. The allegation by Hale that these weapons are susceptible to military use is insufficient to establish such a relationship. The former state militias are now organized as the National Guard. Joining the State National Guard means also enlisting or being commissioned in the U.S. National Guard. When federalized, the members of a state National Guard are considered discharged from that organization. Members of the National Guard of the United States may be ordered to active federal duty for purposes of training outside the United States without either the consent of a state governor or the declaration of a national emergency. During such periods, the second Militia clause is no longer applicable. This merely recognizes the supremacy of federal power in the military affairs area.
MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 4 [misterwhite #244] 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. And, 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) 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: 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.
Again, we have to go back. What was the original intent of the second amendment? It was added to the Bill of Rights to protect state militias from federal infringement. Anything the federal government did that interfered with or obstructed the state from organizing and arming their citizen militia was unconstitutional. Period. End of story. That's the way it was for hundreds of years. Until, of course, Heller. 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.
If they had machine guns back in 1790 they would have been. You disagree? You are depriving ordinary Americans of the very weapons they need to form a citizen's militia to defend against a foreign invasion or a rogue government. Worse, you're saying it's constitutional.
Uh-huh. Is that what the Founding Fathers wanted -- to write a constitution that gave supreme military power to this newly formed federal government? The Founders were scared to death of what they were creating. Which is why the U.S. Constitution was written such that the states gave only certain, defined, limited powers to it and kept the rest of the powers to themselves. You're not only misreading the second amendment. You're ignoring the intent.
Then who or what protects their right to keep and bear those arms? You continue to refuse to answer that question.
[misterwhite #282] It was added to the Bill of Rights to protect state militias from federal infringement. Anything the federal government did that interfered with or obstructed the state from organizing and arming their citizen militia was unconstitutional. Period. End of story. That's the way it was for hundreds of years. Until, of course, Heller. 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. Once again, a lot of truly ignorant noise with no research or knowledge of the subject matter. In Heller' fault, because — Benghazi. The militia was reorganized into the National Guard in 1903, 105 years before Heller. And Heller and McDonald are the law of the land. 32 Stat. 775, The Dick Act of 21 January 1903, an Act to promote the efficiency of the militia, and for other purposes. Be it enacted by the Senate and House ofRepresentatives of the United States of America in Congress assembled, That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes—the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia. The National Guard was Federalized in 1916, 92 years before Heller. 39 Stat. 188, 211; National Defense Act of 3 Jun 1916 § 111,
[misterwhite #283] If they had machine guns back in 1790 they would have been. You disagree? You are depriving ordinary Americans of the very weapons they need to form a citizen's militia to defend against a foreign invasion or a rogue government. Worse, you're saying it's constitutional. I'm not depriving anybody of anything. The Congress was empowered by the Constitution "to provide for organizing, arming, and disciplining, the militia...." The Congress has provided for organizing and arming the militia. You don't seem to like the way they have done it. I am not concerned with your personal problems. It is not 1790 and personal possession of unlicensed machineguns is a violation of Federal law. The law has been upheld as constitutional on multiple occasions. It is the law of the land. Your pretending otherwise is insane bullshit. When your bullshit is taken to court, sovereign morons get convicted and sent to a well regulated prison.
[misterwhite #284] Uh-huh. Is that what the Founding Fathers wanted -- to write a constitution that gave supreme military power to this newly formed federal government? That was a fishhook for your dumbass to bite on. It is taken from a unanimous opinion of the U.S. Supreme Court. - - - - - - - - - - Tell it to the unanimous U.S. Supreme Court.
[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: Your most profound legal claim thus far is in your #282: 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.
Supreme Court decisions are just to be dismissed as stupid Damn few are in compliance with the Constitution, so you're full of it! That's correct. Disregard most of them since they're not in compliance with the US Constitution either. You're a STUPID scofflaw copy & paste wanabe SCOTUS tyrant! Nolu Chump has spoken
Perpich v. DOD, 496 U.S. 334 (1990) was a ruling limited to the federalization of state militias. I agree with the ruling. Had you been honest with your quote, rather than trying to pull a "Gotcha", I wouldn't have to waste my time with you.
Then who or what protects the right of the active duty organized militia to carry machineguns while on duty? The 2nd Amendment to the U.S. Constitution still protects the individual right of the people to keep and bear arms. Machine guns? We're discussing machine guns. Who or what protects the right of the active duty organized militia to carry machineguns while on duty? I'm sure Heller has the answer. Go spend a week trying to find 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.
I don't. The Heller court tried to muddy the waters with their "State Militias no longer exist" bullshit argument. The real problem with Heller was this fact -- he lived in the District of Columbia, not in one of the 50 states. As such, his RKBA had no constitutional protection. The Heller court should have simply ruled that way. Tought shit, Heller. Move. But they saw this as an opportunity for the federal government to take over gun rights, and they wrapped their decision in the "individal rights" flag. You bought it, hook, line, and sinker, thinking this was a good thing. You're a fool.
[nolu chan #289] It is called the Supremacy Clause. See Article VI, § 2: Your [nc - misterwhite] most profound legal claim thus far is in your #282: 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. Hondo68 version, deleting all context: And the Hondo68 comment which does not address the issue, but just excretes more bullshit: That's correct. Disregard most of them since they're not in compliance with the US Constitution either. How do states protect individual the 2nd Amendment right to keep and bear arms through the state constitution? Do you have an answer? The Federal Constitution, law, or treaty strikes down any inconsistent provision of any state constitution or state law. See U.S. Const., Article 6, § 2. Some people possess unlicensed machineguns in violation of Federal law. Some get caught. I have documented some who have argued misterwhite's bullshit in court. They have been convicted and sent to federal prison.
Ah, you agree with it now. At #284, you commenting differently: [misterwhite #284] Uh-huh. Is that what the Founding Fathers wanted -- to write a constitution that gave supreme military power to this newly formed federal government? The Founders were scared to death of what they were creating. Which is why the U.S. Constitution was written such that the states gave only certain, defined, limited powers to it and kept the rest of the powers to themselves. You're not only misreading the second amendment. You're ignoring the intent. When you a hit over the head with the fact that you said that of a comment by a unanimous U.S. Supreme Court, you try to make believe you didn't say it. Good try. The quote was perfectly honest and in context. Your bullshit answer was just a typical example of your bullshit, detached from reality.
Then who or what protects the right of the active duty organized militia to carry machineguns while on duty? Active duty organized militia do NOT have a RIGHT to carry machineguns on duty. If they are required by their job to carry a machinegun, one is issued to them. Some are not allowed to carry a machinegun or otherwise be armed, for example, medics. The Lautenberg Amendment supplements the Gun Control Act of 1968, and became law on September 30, 1996. It is a felony for anyne convicted of a misdemeanor crime of domestic violence to possess or receive firearms or ammunition. The law applies to soldiers throughout the world who have been convicted of a misdemeanor crime of domestic violence. The soldier should be detailed to duties that do not require bearing or arms or ammunition. The Congress is empowered by the Constitution, Article 1, § 8. Clause 16, "To provide for organizing, arming, and disciplining, the militia...." The active duty organized militia is provided with arms by the Federal government. Members of the organized militia are enlisted or commissioned in the United States National Guard. Machine guns? We're discussing machine guns. Who or what protects the right of the active duty organized militia to carry machineguns while on duty? On duty, they are provided with whatever arms are deemed necessary, to include new M-16 machineguns. On duty members of the organized militia are enlisted or commissioned in the United States National Guard. Civilian possession of unlicensed machineguns is a Federal crime.
How? It's written in their state constitution. Alabama, for example, has this: That does not permit a citizen in Alabama to possess an unlicensed machinegun. If you think that is what it says, then it is null and void as contrary to Federal law. In a Federal court, it offers no defense to the poor dumb bastard who reads your bullshit, believes it, and gets caught in possession of an unlicensed machinegun. U.S. v. Cox and Kettler just happened to be my case of the day which I will provide in full. See United States v. Cox and Kettler, 235 F. Supp. 3d 1221 (D. Kan. 2017), at pages 3-4: The Constitution of the United States provides in part that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI. This necessarily makes the question presented by defendant's motion one of federal law. If the NFA is otherwise consistent with the U.S. Constitution and is a 3 - - - - - - - - - - valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary." The defendants argue that Kansas's adoption of the Second Amendment Protection Act (SAPA), K.S.A. § 50-1204, somehow rendered the National Firearms Act unconstitutional. Dkt. 63 at 6. This court has no authority to construe SAPA or to determine what it means; that is a task reserved to the Kansas courts. But the Constitution could not be clearer on one point: if the National Firearms Act is a valid exercise of Congressional taxing power, and if it does not infringe on rights granted in the U.S. Constitution, then it is the "supreme Law of the Land," regardless of what SAPA says. When defendants try your bullshit arguments in court, they get brushed aside and the defendant gets sent to a well-regulated prison. Why is that? Just as an aside, the 1819 Alabama constitution that you quoted is quite dead and buried, many times over, including the provision that reads: Section 1. The general assembly shall have no power to pass laws for the emancipation of slaves, without the consent of their owners, previous to such emancipation, a full equivalent in money for the slaves so emancipated. ... There is the Alabama constitution of 1819, 1861, 1865, 1867, 1875, and 1901. The current Alabama constitution, as amended, states, Right to bear arms. That every citizen has a right to bear arms in defense of himself and the state. Nowhere does it claim that Alabama citizens have the right to possess unlicensed machineguns in defiance of Federal law.
[nolu chan #289] 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. Or as you abbreviated it in your #294: I don't. Ah, but the text of your #282 demonstrates that you did. The U.S. National Guard and the State National Guard exists. Joining the State National Guard requires enlisting or being commissioned in the United States National Guard. The decision in Heller is the supreme law of the land. The real problem with your insane, infantile argument is that Heller lived in a Federal district upon which the 2nd Amendment applied directly and did not need any application via incorporation into the 14th Amendment. As is your typical interpretation, you interpret the legal effect backwards. Heller did not recognize an individual right that was applicable against the states. It was applicable in the District of Columbia because it was a Federal district. McDonald incorporated the 2nd Amendment into the 14th Amendment and made it fully applicable to the states. Just because you believe your own insane, infantile bullshit does not mean the U.S. Supreme Court is wrong or invalidated. Heller and McDonald are the supreme law of the land, your insane, infantile bullshit nothwithstanding. Why you want to deny an individual right to keep and bear arms is your personal problem.
So what protects the individual right to keep and bear arms? State constitutions. - - - - - - - - - - [misterwhite #221] A brand-new machine gun, for starters. Or a brand-new full-auto battle rifle. - - - - - - - - - - - - - - - - - - - - MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 5 Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison. https://www.leagle.com/decision/infdco20170131g61 United States v. Cox and Kettler, 235 F. Supp. 3d 1221 (D. Kan. 2017) Case No. 15-10150-01,02-JTM UNITED STATES OF AMERICA, MEMORANDUM AND ORDER This matter is before the court on defendant Shane Cox's motion to dismiss (Dkt. 63). Defendant Jeremy Kettler joins in the motion. The motion argues that the National Firearms Act (NFA) is unconstitutional because it amounts to "regulatory punishment" rather than imposition and enforcement of a valid federal tax. Defendants further argue that the NFA violates the Second and Tenth Amendments to the U.S. Constitution. Dkts. 63, 78. This case has generated significant interest within the District of Kansas and beyond. Many concerned persons have written emails or called the court's chambers to express their views. Judges are not allowed to publicly comment on pending cases, but I believe it is important to give a clear explanation of the court's decision and the reasons behind it to all who are interested. In order to do that, I begin with a summary of the court's obligations, the relevant law, and how the law applies to the facts of the case. 1 - - - - - - - - - - Before assuming office, every justice or judge of the United States courts must take the following oath: I [name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [a judge] under the Constitution and laws of the United States. So help me God. 28 U.S.C. § 453. This oath requires a judge to uphold the Constitution and laws of the United States, as interpreted by the United States Supreme Court and the Tenth Circuit Court of Appeals. Where there is a decision on any point of law from the Supreme Court or the Tenth Circuit, or both, I am bound to follow those decisions. This is true whether the decision is absolutely identical, or whether it sets out a principle of law that applies equally to different facts. As a district court judge, I am not empowered to do what I think is most fair - I am bound to follow the law. The U.S. Constitution provides in part that the Constitution and laws of the United States "shall be the supreme Law of the Land," binding all judges in every state, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." In other words, United States District Courts are bound by federal law, even if a state law says something to the contrary. The National Firearms Act (26 U.S.C. § 5861 et seq.) is a federal law that imposes a tax and licensing requirement on firearms dealers. It includes silencers among the items subject to registration and taxation. Eighty years ago, the Supreme Court upheld the NFA as a valid exercise of Congressional taxing power. Sonzinsky v. United States, 2 - - - - - - - - - - 300 U.S. 506 (1937). The Supreme Court reaffirmed this point in Nat'l. Fed'n of Indep. Bus. Women v. Sebelius, 132 S.Ct. 2566 (2012). Further, the Supreme Court has held that if Congress has exercised a valid power, such as its taxing power, then the Tenth Amendment "expressly disclaims any reservation of that power to the States." New York v. United States, 505 U.S. 144, 156 (1992). This leaves the Second Amendment. The Supreme Court, while recently recognizing that individuals have a right to "keep and bear Arms," also said that the Second Amendment is not absolute, and that nothing in its decision should be interpreted "to cast doubt on ... laws imposing conditions and qualifications on the commercial sale of arms." Dist. of Columbia v. Heller, 128 S.Ct. 2783, 2816-17. The National Firearms Act is such a law. As is more fully set out below, the Constitution and Supreme Court decisions discussed in this opinion compel the result this court reaches in upholding the constitutionality of the National Firearms Act and in denying the defendants' motion to dismiss. I. Supremacy Clause. The Constitution of the United States provides in part that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI. This necessarily makes the question presented by defendant's motion one of federal law. If the NFA is otherwise consistent with the U.S. Constitution and is a 3 - - - - - - - - - - valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary." The defendants argue that Kansas's adoption of the Second Amendment Protection Act (SAPA), K.S.A. § 50-1204, somehow rendered the National Firearms Act unconstitutional. Dkt. 63 at 6. This court has no authority to construe SAPA or to determine what it means; that is a task reserved to the Kansas courts. But the Constitution could not be clearer on one point: if the National Firearms Act is a valid exercise of Congressional taxing power, and if it does not infringe on rights granted in the U.S. Constitution, then it is the "supreme Law of the Land," regardless of what SAPA says. II. Is the NFA a valid exercise of Congress's taxing authority? The Constitution gives the Congress certain enumerated powers. Among those is the authority to impose and collect taxes, and to enact laws for carrying out the taxing regimen. See U.S. Const., art. I, § 8 (The Congress shall have Power to lay and collect Taxes,. to pay the Debts and provide for the common Defence and general welfare of the United States" [and] "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers"). In 1937, the Supreme Court of the United States addressed "whether section 2 of the National Firearms Act which imposes a $200 annual license tax on dealers in firearms, is a constitutional exercise of the legislative power of Congress." Sonzinsky v. United States, 300 U.S. 506, 511 (1937). The case involved the criminal conviction of a 4 - - - - - - - - - - man charged with unlawfully carrying on a business as a dealer in firearms without having registered or paid the tax required by the NFA. The defendant argued "that the present levy is not a true tax, but a penalty imposed for the purpose of suppressing traffic in a certain noxious type of firearms, the local regulation of which is reserved to the state because [it is] not granted to the national government." Id. at 512. He argued that the cumulative effect of imposing taxes on the manufacturer, dealer, and buyer of a covered firearm was "prohibitive in effect and disclose[s] unmistakably the legislative purpose to regulate rather than to tax." Id. at 512-13. The Supreme Court flatly rejected the argument, finding that because the NFA "is not attended by an offensive regulation, and since it operates as a tax, it is within the national taxing power." Id. at 513. Sonzinsky has never been reversed, vacated or modified by the Supreme Court. Only recently, in Nat'l Fed'n Of Indep. Bus. Women v. Sebelius, 132 S.Ct. 2566 (2012), where the Supreme Court upheld the Affordable Care Act's "individual mandate" as a valid exercise of Congress's taxing power, the Court cited Sonzinsky for the proposition that a tax is not invalid merely because it seeks to influence behavior, noting "we have upheld such obviously regulatory measures as taxes on selling sawed-off shotguns," and observing that "[e]very tax is in some measure regulatory" because it "interposes an economic impediment to the activity...." Nat'l Fed'n of Indep. Bus. Women, 132 S.Ct. at 2596 (citing Sonzinsky, 300 U.S. at 506, 513)). Because Sonzinsky remains a valid Supreme Court decision, it is "the supreme Law of the Land" on this issue. 5 - - - - - - - - - - Defendant urges the court to find the NFA invalid based on the observation in Nat'l Fed'n of Indep. Bus. Women that "there comes a time in the extension of the penalizing features of [a] so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment." Id., 132 S.Ct. at 2599-2600. That argument, however, is precisely the one rejected by the Supreme Court in Sonzinsky. Unless or until the Supreme Court decides otherwise, this court is bound by Sonzinky's conclusion that the NFA represents a valid exercise of Congress's constitutional power to levy taxes. See also United States v. Houston, 103 Fed.Appx. 346, 349-50 (10th Cir. 2004) ("Mr. Houston fails to establish 26 U.S.C. § 5861(d) and its parent act are beyond Congress's enumerated power to either regulate commerce through firearms registration requirements, or impose a tax thereon."); United States v. Roots, 124 F.3d 218 (Table), 1997 WL 465199 (10th Cir. 1997) ("Lopez does not undermine the constitutionality of § 5861(d) because that provision was promulgated pursuant to Congress's power to tax"). The same conclusion has been reached by every federal court of appeals to have addressed the issue since adoption of the NFA. 6 - - - - - - - - - - Defendant cites the Tenth Amendment and argues that the NFA is invalid because it has "invaded an area of law that has traditionally been reserved to the States." Dkt. 63 at 6. But if the NFA is otherwise consistent with the Constitution and constitutes a valid exercise of Congress's taxing power - as the Supreme Court said it did in Sonzinsky - then it does not run afoul of the Tenth Amendment. See New York v. United States, 505 U.S. 144, 156 (1992) ("If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States."). Again, the Supreme Court in Sonzinsky specifically rejected the defendant's claim that the NFA was invalid because it regulated on a matter that was reserved to the states. Sonzinsky, 300 U.S. at 512. III. Is the NFA consistent with the Second Amendment? Defendant's original motion to dismiss did not argue that the NFA violates the Second Amendment. See Dkt. 63. His response to the State of Kansas's brief, however, relies almost exclusively on the Second Amendment. Dkt. 78. Be that as it may, a review of case law shows that defendant's Second Amendment argument is also foreclosed by Supreme Court precedent. The Second Amendment provides that "the right of the people to keep and bear Arms shall not be infringed." U.S. Const. amend II. In striking down a District of Columbia statute that essentially prohibited the possession of useable handguns in the home, the Supreme Court held that the Second Amendment "confer[s] an individual 7 - - - - - - - - - - right to keep and bear arms." Dist. of Columbia v. Heller, 128 S.Ct. 2783 (2008). This amendment protects the right of law-abiding citizens to keep and bear arms that are in common use for traditionally lawful purposes, such as self-defense. See also McDonald v. City of Chicago, Ill., 561 U.S. 742, 767 (2010) ("in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right.") (citing Heller, emphasis in original). "Like most rights, the right secured by the Second Amendment is not unlimited." Id. at 2816. Heller noted the amendment did not confer a right to keep and carry any weapon for any purpose whatsoever. For example, the Court observed that prohibitions on carrying concealed weapons had long been upheld under the Second Amendment and under similar state laws. Id. Without defining the precise scope of the right to keep and bear arms, the Supreme Court pointed out that "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." Id. at 2816-17 (emphasis added). In United States v. Miller, 307 U.S. 174 (1939), two defendants were criminally charged with violating the NFA by transporting a short-barreled shotgun in interstate commerce without paying the tax and obtaining the approval required by the NFA. A U.S. District Court dismissed the charge, finding that it violated the Second Amendment. But the Supreme Court reversed that ruling because "we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." Id. 8 - - - - - - - - - - at 178. In Heller, the Supreme Court reviewed Miller and indicated that it remains good law, stating: "We therefore read Miller to say ... 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 Second Amendment right. Heller, 128 S.Ct. at 281516. So, as Miller holds, the Second Amendment protects the sorts of weapons "in common use" but does not extend to "the carrying of 'dangerous and unusual weapons.'" Heller, 128 S.Ct. at 2817. Defendant Cox was convicted of three different types of NFA violations. The first (Count 3) was for possessing a short-barreled rifle without registering it and paying the tax required by the NFA. Such a weapon is clearly comparable to the short-barreled shotgun at issue in Miller. No suggestion or showing is made that short-barreled rifles have been in common use by law-abiding citizens for lawful purposes. The court must therefore conclude under Miller that they fall outside the scope of the Second Amendment. See Heller, 128 S.Ct. at 2814 ("Miller stands ... for the proposition that the Second Amendment right extends only to certain types of weapons."); United States v. Thompson/Center Arms Co., 504 U.S. 505, 517 (1992) ("It is clear ... that the [NFA's] object was to regulate certain weapons likely to be used for criminal purposes, just as 9 - - - - - - - - - - the regulation of short-barreled rifles, for example, addresses a concealable weapon likely to be so used"); United States v. Gonzales, 2011 WL 5288727 (D. Utah Nov. 2, 2011) (short-barreled rifle was not a constitutionally protected arm under Heller); United States v. Barbeau, 2016 WL 1046093, *4 (W.D. Wash. Mar. 16, 2016) (defendant's possession of a short-barreled rifle was not protected by the Second Amendment); United States v. Gilbert, 286 F.App'x 383, 386, 2008 WL 2740453 (9th Cir. 2008) ("Under Heller, individuals still do not have a right to possess [machine guns] or short-barreled rifles"). The second type of violation at issue here was making, possessing, or transferring silencers without registering or paying the tax required by the NFA. While it is certainly possible to possess silencers for lawful purposes, no showing is made that they are a type of arm "in common use" covered by the Second Amendment. See United States v. McCartney, 357 F.App'x 73, 77, 2009 WL 4884336, *3 (9th Cir. 2009) ("Silencers, grenades, and directional mines are not 'typically possessed by law-abiding citizens for lawful purposes' . and are less common than either short-barreled shotguns or machine guns."); United States v. Perkins, 2008 WL 4372821, *4 (D. Neb. Sept. 23, 2008) ("silencers/suppressors 'are not in common use by law abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use'"); United States v. Garnett, 2008 WL 2796098, *4 (E.D. Mich. July 18, 2008) ("Nothing in [Heller] ... casts doubt on the constitutionality of federal regulations over [machine guns] and silencers at issue in this case."). Because the foregoing arms are outside the scope of Second Amendment 10 - - - - - - - - - - protection, the application of the NFA to persons possessing, transferring or making such items does not infringe on Second Amendment rights. Finally, defendant Cox's third type of conviction was for engaging in business as a dealer or manufacturer of silencers without paying the appropriate federal tax and registering. Defendant's motion does not address this charge specifically, but it is clearly one of the federal "laws imposing conditions and qualifications on the commercial sale of arms" that Heller said were permissible under the Second Amendment. Regardless of the level of scrutiny applied, a long-standing NFA regulation requiring a commercial firearms dealer to obtain a federal license and pay the federal tax required by the NFA before engaging in the firearms business would clearly pass muster under the Second Amendment. See United States v. Hosford, 843 F.3d 161, 166 (4th Cir. 2016) ("the prohibition against unlicensed firearm dealing is a longstanding condition or qualification on the commercial sale of arms and is thus facially constitutional"). In sum, binding Supreme Court precedent - i.e., Sonzinsky, Miller, and Heller - shows that the NFA, both on its face and as applied, is a valid and constitutional exercise of Congress's authority to levy taxes. 11 - - - - - - - - - - IV. Congress's authority to regulate interstate commerce. The U.S. Constitution also gives Congress the power "To regulate Commerce ... among the several States...." U.S. Const., art. I, § 8. The Supreme Court has held that this clause does not permit Congress to regulate purely local activities. See United States v. Lopez, 514 U.S. 549 (1995). But Supreme Court case law also "firmly establishes Congress's power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce." Gonzales v. Raich, 545 U.S. 1, 17 (2005). Thus, "[w]hen Congress decides that the 'total incidence' of a practice poses a threat to a national market, it may regulate the entire class." Id. The court's conclusion that the NFA is a valid exercise of Congress's taxing power makes it unnecessary to decide whether the NFA is also a valid exercise of Congress's power to regulate interstate commerce. Cf. Montana Shooting Sports Ass'n. v. Holder, 727 F.3d 975, 982 (9th Cir. 2013), cert. denied, 134 S.Ct. 955 (Jan. 13, 2014) (finding that under Raich, Congress can exercise its commerce power to validly regulate manufacture of firearms made within the State of Montana, notwithstanding Montana 12 - - - - - - - - - - Firearms Freedom Act declaring otherwise). Accordingly, the court does not address that issue. V. Conclusion. The Supreme Court cases cited above establish that the NFA provisions under which defendants were convicted are valid and constitutional acts adopted by Congress pursuant to its authority to levy and enforce the collection of taxes. As such, they constitute the "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary." U.S. Const., art. VI. IT IS THEREFORE ORDERED this 31st day of January, 2017, that the defendants' motion to dismiss (Dkt. 63) is DENIED. s/ J. Thomas Marten 13 - - - - - - - - - -
They really don't need to, but redundancy when dealing with tyrants seems like a good idea. If you understood the Supremacy Clause you'd acknowledge that the Second Amendment being a part of the Constitution applies to all States, illegal legislation and bad court decisions to the contrary notwithstanding. You & teh Donald ain't taking our guns, so F' off!
Two words for that. Bull and Shit. Your quote made no reference to federalizing State Militias and sending them overseas. It was a generalized statement, out of context, with no reference to the case itself.
They really don't need to, but redundancy when dealing with tyrants seems like a good idea. If you understood the Supremacy Clause you'd acknowledge that the Second Amendment being a part of the Constitution applies to all States, illegal legislation and bad court decisions to the contrary notwithstanding. I see you can't help your partner in crime, Dumb, explain how the states protect the individual right to keep and bear arms through the state constitution. As for your blather, if you understood the law surrounding the Bill of Rights, you would know that it did not apply to the States at all until provisions were incorporated into the 14th Amendment piecemeal by the judicial branch. McDonald at 754: "The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government." The Second Amendment was incorporated into the 14th Amendment, making it enforceable against the states, by McDonald v. Chicago, 561 U.S. 742 (28 June 2010). Some of the Bill of Rights has yet to be incorporated and is not applied to the States. This is fact, hondo68 bullshit notwithstanding. If you pulled your head out of your ass, you would realize the Supremacy Clause did not make any part of the Bill of Rights applicable to the states, or it would all now apply to the states. It does not so apply. If you opened your eyes, you would realize that some parts of the Bill of Rights still have no application to the states. The 5th Amendment is part of the Bill of Rights. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.... That has not been incorporated into the Fourteenth Amendment and does not apply to the states. Many, many cases are brought in state court on presentment of an information. Function of an "information" is to inform defendant of the nature of the charge made against him and the act constituting such charge so that he can prepare for trial and to prevent him from being tried again for the same offense. While the Fifth Amendment of the U.S. Constitution requires federal government to prosecute infamous crimes only upon presentment of grand jury indictment, in most states the information may be used in place of grand jury indictment to bring person to trial. Black's Law Dictionary, 6th Ed., case citations omitted. I'm not taking any of your guns. If you have an unlicensed machinegun or short-barrel shotgun and get caught with it, the Federal government will take your illegal weapons and throw your ass in prison.
You're talking about federalized troops. What if the Governor of the state deploys his armed National Guard to keep the peace during a riot? Who or what protects the right of his National Guard to keep and bear machine guns?
I never said it did. I said state laws protect the individual RKBA. Alabama does protect the right of an individual private citizen to possess a licensed machinegun. Or concealed carry with a license. Or open carry without a license. Or a semi-auto "assault rifle" without a license. Alabama can't violate federal law, but more and more states are starting to violate federal marijuana laws, so I don't see why they can't start violating federal gun laws.
It was applicable in the District of Columbia to members of a militia, which Mr. Heller was not. He could not seek protection under the second amendment because it did not apply to private citizens who weren't part of a state militia. That's the way the Heller court should have ruled.
It figures you would quote a judge who believes the U.S. Constitution "grants" rights.
Oh, really? Are you too dumb, stupid, and lazy to read what I posted? I guess you are. [nolu chan #280] Members of the National Guard of the United States may be ordered to active federal duty for purposes of training outside the United States without either the consent of a state governor or the declaration of a national emergency. During such periods, the second Militia clause is no longer applicable. This merely recognizes the supremacy of federal power in the military affairs area. Suck on this. Perpych, unanimous U.S. Supreme Court This conclusion is unaffected by the fact that, prior to 1952, Guard members were traditionally not ordered into active service in peacetime or for duty abroad. That tradition is at least partially the product of political debate and political 496 U. S. 349 compromise, but, even if the tradition were compelled by the text of the Constitution, its constitutional aspect is related only to service by state Guard personnel who retain their state affiliation during their periods of service. There now exists a wholly different situation, in which the state affiliation is suspended in favor of an entirely federal affiliation during the period of active duty. This view of the constitutional issue was presupposed by our decision in the Selective Draft Law Cases, 245 U. S. 366 (1918). Although the Governor is correct in pointing out that those cases were decided in the context of an actual war, the reasoning in our opinion was not so limited. After expressly noting that the 1916 Act had incorporated members of the National Guard into the National Army, the Court held that the Militia Clauses do not constrain the powers of Congress "to provide for the common Defence," to "raise and support Armies," to "make Rules for the Government and Regulation of the land and naval Forces," or to enact such laws as "shall be necessary and proper" for executing those powers. 245 U.S. at 245 U. S. 375, 245 U. S. 377. The Court instead held that, far from being a limitation on those powers, the Militia Clauses are -- as the constitutional text plainly indicates -- additional grants of power to Congress. The first empowers Congress to call forth the militia "to execute the Laws of the Union, suppress Insurrections and repel Invasions." We may assume that Attorney General Wickersham was entirely correct in reasoning that, when a National Guard unit retains its status as a state militia, Congress could not "impress" the entire unit for any other purpose. Congress did, however, authorize the President to call forth the entire membership of the Guard into federal service during World War I, even though the soldiers who fought in France were not engaged in any of the three specified purposes. Membership in the Militia did not exempt 496 U. S. 350 them from a valid order to perform federal service, whether that service took the form of combat duty or training for such duty. [Footnote 20] The congressional power to call forth the militia may in appropriate cases supplement its broader power to raise armies and provide for the common defense and general welfare, but it does not limit those powers. [Footnote 21] The second Militia Clause enhances federal power in three additional ways. First, it authorizes Congress to provide for "organizing, arming and disciplining the Militia." It is by congressional choice that the available pool of citizens has been formed into organized units. Over the years, Congress has exercised this power in various ways, but its current choice of a dual enlistment system is just as permissible as the 1792 choice to have the members of the militia arm themselves. Second, the Clause authorizes Congress to provide for governing such part of the militia as may be employed in the service of the United States. Surely this authority encompasses continued training while on active duty. Finally, although the appointment of officers "and the Authority of training the Militia" is reserved to the States respectively, that limitation is, in turn, limited by the words "according to the discipline prescribed by the Congress." If the discipline required for effective service in the Armed Forces of a global power requires training in distant lands or distant skies, Congress has the authority to provide it. The subordinate 496 U. S. 351 authority to perform the actual training prior to active duty in the federal service does not include the right to edit the discipline that Congress may prescribe for Guard members after they are ordered into federal service. The Governor argues that this interpretation of the Militia Clause has the practical effect of nullifying an important State power that is expressly reserved in the Constitution. We disagree. It merely recognizes the supremacy of federal power in the area of military affairs. [Footnote 22] The Federal Government provides virtually all of the funding, the materiel, and the leadership for the state Guard units. And, The Montgomery Amendment deprives the Governors of the power to veto participation in a National Guard of the United States training mission on the basis of any objection to "the location, purpose, type, or schedule of such active duty." 10 U.S.C. § 672(f). Governors may withhold their consent on other grounds. The Governor and the United States agree that, if the federalization of the Guard would interfere with the State Guard's ability to address a local emergency, that circumstance would be a valid basis for a gubernatorial veto. Brief for Petitioner 41; Brief for Respondents 9. - - - - - - - - - - It was not a generalized statement at all. I was quite specific. It was all firmly based on Perpych, indeed quoting the court, but you are correct that I did not reference the case itself. I waited for you to make a fool yourself yet again, and you did not disappoint.
Fine. I agree. I said that. But you're talking about federalized militias being sent overseas. WTF does that have to do with anything? Zip.
Look at your question in your #292. It refers only to active duty organized militia. [nolu chan #297] On duty, they are provided with whatever arms are deemed necessary, to include new M-16 machineguns. On duty members of the organized militia are enlisted or commissioned in the United States National Guard. Civilian possession of unlicensed machineguns is a Federal crime. Your question specified "Who or what protects the right of the active duty organized militia to carry machineguns while on duty?" 10 U.S.C. 246: (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. Members of the organized militia are not those who are between 17 and 45. The Guard members are only those who have enlisted or been commissioned the United States National Guard. The unorganized militia includes zero members of the National Guard. All the weapons for the U.S. National Guard and the State National Guard are provided by the Federal government. Nobody and nothing. The National Guard as an entity does not have any "rights." Membership in the National Guard does not confer any right for anyone to possess arms. Being allowed or required to possess arms as part of your duties does not establish a legal "right" to possess those arms, either on or off duty. The members of the National Guard do not have a "right" to possess arms, other than their 2nd amendment individual right which they do not exercise while on duty. If you have a duty to possess a machinegun, they will tell you so and issue it to you. You will not obtain one by exercising some imaginary "right" to a machinegun. You will be sent to a medical clinic to spend the rest of the day filling out an MMPI. Whatever "right" you imagine, if an individual has a misdemeanor domestic violence conviction, they are legally prohibited from possessing arms. That includes members of the regular U.S. Armed Forces and the National Guard. Neither are arms issued to medical personnel. No "right" to possess machineguns is bestowed upon you because you enlist or get commissioned in the National Guard. The Governor's armed National Guard are armed with federally assigned equipment. Assuming you are not speaking of activation subject to Title 10 or Title 32, the state National Guard, as directed by the Governor in specified circumstances, can use the Guard's federally assigned equipment so long as the federal government is reimbursed by the state for the use of fungible equipment and supplies. It is not seen often because the state pays the freight.
I never said it did. I said state laws protect the individual RKBA. Alabama does protect the right of an individual private citizen to possess a licensed machinegun. Or concealed carry with a license. Or open carry without a license. Or a semi-auto "assault rifle" without a license. What your are saying is that the 2nd Amendment protects an individual right to keep and bear arms, subject to federal laws and regulations, and the state of Alabama says "me too," in conformance to federal laws and regulations. The Federal government is the only one empowered to interpret the 2nd Amendment. Alabama can go along for the ride. You can take your chances that the Federal government will not bother enforce Federal gun laws. Good luck with that. I don't see why the Federal government cannot just violate due process laws and just execute you. Yeah, why not? They did it to U.S. citizens with drone strikes, so there's precedent.
Same old bullshit. The 2nd Amendment protects the same individual right in D.C. as it does elsewhere. It is just enforced against the states via the 14th Amendment due process clause. But Mr. Heller won and you are full of shit. Being a part of the state militia did not make any difference. Bullshit repeated is still just bullshit. The 2nd Amendment protects an imdividual right, Heller was an individual, and his individual right was recognized and upheld by the U.S. Supreme Court. You infantile bullshit does not change the fact. Heller at 554 U.S. 580-81: We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans. Your infantile bullshit was weighed, measured, and found wanting. The court did not rule that way, so tough shit. You lost your bid to be king.
It figures you would quote a judge who believes the U.S. Constitution "grants" rights. You have an unerring instinct to go for the capillaries. The judge's word choice was flawed. His legal reasoning throughout the opinion reduces your inane bullshit to the nonsense that it is. I guess your desperate situation called for desperate measures. I rate your attempt "pathetic."
Fine. I agree. I said that. But you're talking about federalized militias being sent overseas. WTF does that have to do with anything? The organized militia is the National Guard and the Naval Militia. [misterwhite #277] Local police departments have machine guns. Why not local militiamen? Police machine guns are kept at the police department. Militiamen machine guns can be kept at an armory. - - - - - - - - - - Black's Law Distionary, 6th Ed. To whom do you refer as militiamen? [misterwhite #292] Machine guns? We're discussing machine guns. Who or what protects the right of the active duty organized militia to carry machineguns while on duty? Active duty organized militia refers to those enlisted or commissioned in the United States National Guard. Local yahoos who run about in the woods playing Patrick Swayze in Red Dawn are not in the organized militia. Issuance of a federally supplied machinegun from a National Guard armory does not apply to the Red Dawn Patrol. The state is also prohibited by federal law from providing unlicensed machineguns to civilians. Those who have joined the State National Guard also, as a matter of federal law, enlist or are commissioned in the United States National Guard. I observed, as a matter of fact, that such persons may be ordered to duty overseas by the President without the consent of the Governor. Get over it. The unorganized militia are those able bodied persons between 17 and 45 who meet the criteria for the militia, but are not members of the National Guard. They are civilians. They may neither possess an unlicensed machinegun, nor be issued a machinegun which was funded and provided by the federal government for National Guard use. The National Guard armory does not issue machineguns to your local yahoos running about in the woods. Their possession of such a weapon would be a federal criminal offense. Those who are members of the State National Guard (and also, by necessity, the United States National Guard) are enlisted or commissioned. They are told by their military superiors whether they may have a machinegun for on duty purposes.
[ROTFLMAO] - - - - - - - - - - [misterwhite #282] Again, we have to go back. What was the original intent of the second amendment? It was added to the Bill of Rights to protect state militias from federal infringement. Anything the federal government did that interfered with or obstructed the state from organizing and arming their citizen militia was unconstitutional. Period. End of story. That's the way it was for hundreds of years. Until, of course, Heller. 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. MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 6 The history and straight skinny on how the U.S. National Guard and State National Guards are organized. https://supreme.justia.com/cases/federal/us/496/334/case.html Perpich v. DOD, 496 US 334 (1990) UNANIMOUS 9-0 Perpich v. Department of Defense, 496 U.S. 334 (1990) No. 89-542 Argued March 27, 542 Decided June 11, 1990 496 U.S. 334 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus Since 1933, federal law has provided that persons enlisting in a state National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army. The enlistees retain their status as state Guard members unless and until ordered to active federal duty, and revert to state status upon being relieved from federal service. The authority to order the Guard to federal duty was limited to periods of national emergency until 1952, when Congress broadly authorized orders "to active duty or active duty for training" without any emergency requirement, but provided that such orders could not be issued without the consent of the governor of the State concerned. After two State Governors refused to consent to federal training missions abroad for their Guard units, the gubernatorial consent requirement was partially repealed in 1986 by the "Montgomery Amendment," which provides that a governor cannot withhold consent with regard to active duty outside the United States because of any objection to the location, purpose, type, or schedule of such duty. Petitioner, Governor of Minnesota, filed a complaint for injunctive relief, alleging, inter alia, that the Montgomery Amendment had prevented him from withholding his consent to a 1987 federal training mission in Central America for certain members of the state Guard, and that the Amendment violates the Militia Clauses of Article I, § 8, of the Constitution, which authorize Congress to provide for (1) calling forth the militia to execute federal law, suppress insurrections, and repel invasions, and (2) organizing, arming, disciplining, and governing such part of the militia as may be employed in the federal service, reserving to the States the appointment of officers and the power to train the militia according to the discipline prescribed by Congress. The District Court rejected the Governor's challenge, holding that the federal Guard was created pursuant to Congress' Article I, § 8, power to raise and support armies; that the fact that Guard units also have an identity as part of the state militia does not limit Congress' plenary authority to train the units as it sees fit when the Guard is called to active federal service; and that, accordingly, the Constitution neither required the gubernatorial veto nor prohibited its withdrawal. The Court of Appeals affirmed. 496 U. S. 335 Held: Article I's plain language, read as a whole, establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a state governor or the declaration of a national emergency. Pp. 496 U. S. 347-355. (a) The unchallenged validity of the dual enlistment system means that Guard members lose their state status when called to active federal duty, and, if that duty is a training mission, the training is performed by the Army. During such periods, the second Militia Clause is no longer applicable. Pp. 496 U. S. 347-349. (b) This view of the constitutional issue was presupposed by the Selective Draft Law Cases, 245 U. S. 366, 245 U. S. 375, 245 U. S. 377, 245 U. S. 381-384, which held that the Militia Clauses do not constrain Congress' Article I, § 8, powers to provide for the common defense, raise and support armies, make rules for the governance of the Armed Forces, and enact necessary and proper laws for such purposes, but in fact provide additional grants of power to Congress. Pp. 496 U. S. 349-351. (c) This interpretation merely recognizes the supremacy of federal power in the military affairs area, and does not significantly affect either the State's basic training responsibility or its ability to rely on its own Guard in state emergency situations. Pp. 496 U. S. 351-352. (d) In light of the exclusivity of federal power over many aspects of military affairs, See Tarble's Case, 13 Wall. 397, the powers allowed to the States by existing statutes are significant. Pp. 496 U. S. 353-354. (e) Thus, the Montgomery Amendment is not inconsistent with the Militia Clauses. Since the original gubernatorial veto was not constitutionally compelled, its partial repeal by the Amendment is constitutionally valid. Pp. 496 U. S. 354-355. 880 F.2d 11 (CA 8 1989), affirmed. STEVENS, J., delivered the opinion for a unanimous Court. 496 U. S. 336 Justice STEVENS delivered the opinion of the Court. The question presented is whether the Congress may authorize the President to order members of the National Guard to active duty for purposes of training outside the United States during peacetime without either the consent of a state governor or the declaration of a national emergency. A gubernatorial consent requirement that had been enacted in 1952 [Footnote 1] was partially repealed in 1986 by the "Montgomery Amendment," which provides: 496 U. S. 337 "The consent of a Governor described in subsections (b) and (d) may not be withheld (in whole or in part) with regard to active duty outside the United States, its territories, and its possessions, because of any objection to the location, purpose, type, or schedule of such active duty. [Footnote 2]" In this litigation, the Governor of Minnesota challenges the constitutionality of that Amendment. He contends that it violates the Militia Clauses of the Constitution. [Footnote 3] 496 U. S. 338 In his complaint, the Governor alleged that, pursuant to a state statute, the Minnesota National Guard is the organized militia of the State of Minnesota, and that, pursuant to a federal statute, members of that militia "are also members of either the Minnesota unit of the Air National Guard of the United States or the Minnesota unit of the Army National Guard of the United States (hereinafter collectively referred to as the 'National Guard of the United States')." App. 5. The complaint further alleged that the Montgomery Amendment had prevented the Governor from withholding his consent to a training mission in Central America for certain members of the Minnesota National Guard in January, 1987, and prayed for an injunction against the implementation of any similar orders without his consent. The District Judge rejected the Governor's challenge. He explained that the National Guard consists of "two overlapping, but legally distinct, organizations. Congress, under its constitutional authority to 'raise and support armies' has created the National Guard of the United States, a federal organization comprised of state national guard units and their members." 666 F.Supp. 1319, 1320 (Minn.1987). [Footnote 4] The fact that these units also maintain an identity as 496 U. S. 339 state national guards, part of the militia described in Art. I, § 8, of the Constitution, does not limit Congress' plenary authority to train the Guard "as it sees fit when the Guard is called to active federal service." Id. at 1324. He therefore concluded that "the gubernatorial veto found in §§ 672(b) and 672(d) is not constitutionally required. Having created the gubernatorial veto as an accommodation to the states, rather than pursuant to a constitutional mandate, the Congress may withdraw the veto without violating the Constitution." Ibid. A divided panel of the Court of Appeals for the Eighth Circuit reached a contrary conclusion. It read the Militia Clause as preserving state authority over the training of the National Guard and its membership unless and until Congress "determined that there was some sort of exigency or extraordinary need to exert federal power." App. to Pet. for Cert. A92. Only in that event could the Army Power dissipate the authority reserved to the States under the Militia Clauses. In response to a petition for rehearing en banc, the Court of Appeals vacated the panel decision and affirmed the judgment of the District Court. Over the dissent of two judges, the en banc court agreed with the District Court's conclusion that "Congress' army power is plenary and exclusive" and that the State's authority to train the militia did not conflict with congressional power to raise armies for the common defense and to control the training of federal reserve forces. 880 F.2d 11, 17-18 (1989). Because of the manifest importance of the issue, we granted the Governor's petition for certiorari. 493 U.S. 1017 (1990). In the end, we conclude that the plain language 496 U. S. 340 of Article I of the Constitution, read as whole, requires affirmance of the Court of Appeals' judgment. We believe, however, that a brief description of the evolution of the present statutory scheme will help to explain that holding. I Two conflicting themes, developed at the Constitutional Convention and repeated in debates over military policy during the next century, led to a compromise in the text of the Constitution and in later statutory enactments. On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States, [Footnote 5] while, on the other hand, there was a recognition of the danger of relying on inadequately trained soldiers as the primary means of providing for the common defense. [Footnote 6] Thus, Congress was authorized both to raise and support a national army and also to organize "the Militia." 496 U. S. 341 In the early years of the Republic, Congress did neither. In 1792, it did pass a statute that purported to establish "an Uniform Militia throughout the United States," but its detailed command that every able-bodied male citizen between the ages of 18 and 45 be enrolled therein and equip himself with appropriate weaponry [Footnote 7] was virtually ignored for more than a century, during which time the militia proved to be a decidedly unreliable fighting force. [Footnote 8] The statute was finally repealed in 1901. [Footnote 9] It was in that year that President Theodore Roosevelt declared, "Our militia law is obsolete and worthless." [Footnote 10] The process of transforming "the National 496 U. S. 342 Guard of the several States" into an effective fighting force then began. The Dick Act divided the class of able-bodied male citizens between 18 and 45 years of age into an "organized militia" to be known as the National Guard of the several States, and the remainder of which was then described as the "reserve militia," and which later statutes have termed the "unorganized militia." The statute created a table of organization for the National Guard conforming to that of the Regular Army, and provided that federal funds and Regular Army instructors should be used to train its members. [Footnote 11] It is undisputed that Congress was acting pursuant to the Militia Clauses of the Constitution in passing the Dick Act. Moreover, the legislative history of that Act indicates that Congress contemplated that the services of the organized militia would "be rendered only upon the soil of the United States or of its Territories." H.R.Rep.No. 1094, 57th Cong., 1st Sess., 22 (1902). In 1908, however, the statute was amended to provide 496 U. S. 343 expressly that the Organized Militia should be available for service "either within or without the territory of the United States." [Footnote 12] When the Army made plans to invoke that authority by using National Guard units south of the Mexican border, Attorney General Wickersham expressed the opinion that the Militia Clauses precluded such use outside the Nation's borders. [Footnote 13] In response to that opinion and to the widening conflict in Europe, in 1916 Congress decided to "federalize" the National Guard. [Footnote 14] In addition to providing for greater federal control and federal funding of the Guard, the statute required every guardsman to take a dual oath -- to support the Nation as well as the States, and to obey the President as well as the Governor -- and authorized the President to draft members of the Guard into federal service. The statute expressly provided that the Army of the United States should include not only "the Regular Army" but also "the National 496 U. S. 344 Guard while in the service of the United States," [Footnote 15] and that, when drafted into federal service by the President, members of the Guard so drafted should "from the date of their draft, stand discharged from the militia, and shall from said date be subject to" the rules and regulations governing the Regular Army. § 111, 39 Stat. 211. During World War I, the President exercised the power to draft members of the National Guard into the Regular Army. That power, as well as the power to compel civilians to render military service, was upheld in the Selective Draft Law Cases, 245 U. S. 366 (1918). [Footnote 16] Specifically, in that case, and in Cox v. Wood, 247 U. S. 3 (1918), the Court held that the plenary power to raise armies was "not qualified or restricted by the provisions of the militia clause." [Footnote 17] 496 U. S. 345 The draft of the individual members of the National Guard into the Army during World War I virtually destroyed the Guard as an effective organization. The draft terminated the members' status as militiamen, and the statute did not provide for a restoration of their prewar status as members of the Guard when they were mustered out of the Army. This problem was ultimately remedied by the 1933 amendments to the 1916 Act. Those amendments created the "two overlapping but distinct organizations" described by the District Court -- the National Guard of the various States and the National Guard of the United States. Since 1933, all persons who have enlisted in a state National Guard unit have simultaneously enlisted in the National Guard of the United States. In the latter capacity, they became a part of the Enlisted Reserve Corps of the Army, but, unless and until ordered to active duty in the Army, they retained their status as members of a separate state Guard unit. Under the 1933 Act, they could be ordered into active service whenever Congress declared a national emergency and authorized the use of troops in excess of those in the Regular Army. The statute plainly described the effect of such an order: "All persons so ordered into the active military service of the United States shall from the date of such order stand relieved from duty in the National Guard of their respective States, Territories, and the District of Columbia so long as they shall remain in the active military service of the United States, and during such time shall be subject 496 U. S. 346 to such laws and regulations for the government of the Army of the United States as may be applicable to members of the Army whose permanent retention in active military service is not contemplated by law. The organization of said units existing at the date of the order into active Federal service shall be maintained intact insofar as practicable." § 18, 48 Stat. 160-161. "Upon being relieved from active duty in the military service of the United States all individuals and units shall thereupon revert to their National Guard status." Id. at 161. Thus, under the "dual enlistment" provisions of the statute that have been in effect since 1933, a member of the Guard who is ordered to active duty in the federal service is thereby relieved of his or her status in the state Guard for the entire period of federal service. Until 1952, the statutory authority to order National Guard units to active duty was limited to periods of national emergency. In that year, Congress broadly authorized orders to "active duty or active duty for training" without any emergency requirement, but provided that such orders could not be issued without gubernatorial consent. The National Guard units have under this plan become a sizeable portion of the Nation's military forces; for example, "the Army National Guard provides 46 percent of the combat units and 28 percent of the support forces of the Total Army." [Footnote 18] Apparently, gubernatorial consents to training missions were routinely obtained until 1985, when the Governor of California refused to consent to a training mission for 450 members of the California National Guard in Honduras, and the Governor of Maine shortly thereafter refused to consent to a similar mission. Those incidents led to the enactment of the Montgomery Amendment, and this litigation ensued. 496 U. S. 347 II The Governor's attack on the Montgomery Amendment relies in part on the traditional understanding that "the Militia" can only be called forth for three limited purposes that do not encompass either foreign service or nonemergency conditions, and in part on the express language in the Militia Clause reserving to the States "the Authority of training the Militia." The Governor does not, however, challenge the authority of Congress to create a dual enlistment program. [Footnote 19] Nor does the Governor claim that membership in a state Guard unit -- or any type of state militia -- creates any sort of constitutional immunity from being drafted into the federal armed forces. Indeed, it would be ironic to claim such immunity when every member of the Minnesota National Guard has voluntarily enlisted, or accepted a commission as an officer, in the National Guard of the United States, and thereby become a member of the reserve corps of the Army. The unchallenged validity of the dual enlistment system means that the members of the National Guard of Minnesota who are ordered into federal service with the National Guard of the United States lose their status as members of the State militia during their period of active duty. If that duty is a training mission, the training is performed by the Army in which the trainee is serving, not by the militia from which the member has been temporarily disassociated. "Each member of the Army National Guard of the United States or the Air National Guard of the United States who is ordered to active duty is relieved from duty in the National Guard of his State or Territory, or of Puerto Rico or the District of Columbia, as 496 U. S. 348 the case may be, from the effective date of his order to active duty until he is relieved from that duty." 32 U.S.C. § 325(a). This change in status is unremarkable in light of the traditional understanding of the militia as a part-time, nonprofessional fighting force. In Dunne v. People, 94 Ill. 120 (1879), the Illinois Supreme Court expressed its understanding of the term "militia" as follows: "Lexicographers and others define militia, and so the common understanding is, to be 'a body of armed citizens trained to military duty, who may be called out in certain cases, but may not be kept on service like standing armies, in time of peace.' That is the case as to the active militia of this State. The men comprising it come from the body of the militia, and when not engaged at stated periods in drilling and other exercises, they return to their usual avocations, as is usual with militia, and are subject to call when the public exigencies demand it." Id. at 138. Notwithstanding the brief periods of federal service, the members of the state Guard unit continue to satisfy this description of a militia. In a sense, all of them now must keep three hats in their closets -- a civilian hat, a state militia hat, and an army hat -- only one of which is worn at any particular time. When the state militia hat is being worn, the "drilling and other exercises" referred to by the Illinois Supreme Court are performed pursuant to "the Authority of training the Militia according to the discipline prescribed by Congress," but, when that hat is replaced by the federal hat, the Militia Clause is no longer applicable. This conclusion is unaffected by the fact that, prior to 1952, Guard members were traditionally not ordered into active service in peacetime or for duty abroad. That tradition is at least partially the product of political debate and political 496 U. S. 349 compromise, but, even if the tradition were compelled by the text of the Constitution, its constitutional aspect is related only to service by state Guard personnel who retain their state affiliation during their periods of service. There now exists a wholly different situation, in which the state affiliation is suspended in favor of an entirely federal affiliation during the period of active duty. This view of the constitutional issue was presupposed by our decision in the Selective Draft Law Cases, 245 U. S. 366 (1918). Although the Governor is correct in pointing out that those cases were decided in the context of an actual war, the reasoning in our opinion was not so limited. After expressly noting that the 1916 Act had incorporated members of the National Guard into the National Army, the Court held that the Militia Clauses do not constrain the powers of Congress "to provide for the common Defence," to "raise and support Armies," to "make Rules for the Government and Regulation of the land and naval Forces," or to enact such laws as "shall be necessary and proper" for executing those powers. 245 U.S. at 245 U. S. 375, 245 U. S. 377. The Court instead held that, far from being a limitation on those powers, the Militia Clauses are -- as the constitutional text plainly indicates -- additional grants of power to Congress. The first empowers Congress to call forth the militia "to execute the Laws of the Union, suppress Insurrections and repel Invasions." We may assume that Attorney General Wickersham was entirely correct in reasoning that, when a National Guard unit retains its status as a state militia, Congress could not "impress" the entire unit for any other purpose. Congress did, however, authorize the President to call forth the entire membership of the Guard into federal service during World War I, even though the soldiers who fought in France were not engaged in any of the three specified purposes. Membership in the Militia did not exempt 496 U. S. 350 them from a valid order to perform federal service, whether that service took the form of combat duty or training for such duty. [Footnote 20] The congressional power to call forth the militia may in appropriate cases supplement its broader power to raise armies and provide for the common defense and general welfare, but it does not limit those powers. [Footnote 21] The second Militia Clause enhances federal power in three additional ways. First, it authorizes Congress to provide for "organizing, arming and disciplining the Militia." It is by congressional choice that the available pool of citizens has been formed into organized units. Over the years, Congress has exercised this power in various ways, but its current choice of a dual enlistment system is just as permissible as the 1792 choice to have the members of the militia arm themselves. Second, the Clause authorizes Congress to provide for governing such part of the militia as may be employed in the service of the United States. Surely this authority encompasses continued training while on active duty. Finally, although the appointment of officers "and the Authority of training the Militia" is reserved to the States respectively, that limitation is, in turn, limited by the words "according to the discipline prescribed by the Congress." If the discipline required for effective service in the Armed Forces of a global power requires training in distant lands or distant skies, Congress has the authority to provide it. The subordinate 496 U. S. 351 authority to perform the actual training prior to active duty in the federal service does not include the right to edit the discipline that Congress may prescribe for Guard members after they are ordered into federal service. The Governor argues that this interpretation of the Militia Clause has the practical effect of nullifying an important State power that is expressly reserved in the Constitution. We disagree. It merely recognizes the supremacy of federal power in the area of military affairs. [Footnote 22] The Federal Government provides virtually all of the funding, the materiel, and the leadership for the state Guard units. The Minnesota unit, which includes about 13,000 members, is affected only slightly when a few dozen, or at most a few hundred, soldiers are ordered into active service for brief periods of time. [Footnote 23] Neither the State's basic training responsibility nor its ability to rely on its own Guard in state emergency situations is significantly affected. Indeed, if the federal training mission were to interfere with the State Guard's capacity to respond to local emergencies, the Montgomery Amendment would permit the Governor to veto the proposed mission. [Footnote 24] Moreover, 496 U. S. 352 Congress has provided by statute that, in addition to its National Guard, a State may provide and maintain at its own expense a defense force that is exempt from being drafted into the Armed Forces of the United States. See 32 U.S.C. § 109(c). As long as that provision remains in effect, there is no basis for an argument that the federal statutory scheme deprives Minnesota of any constitutional entitlement to a separate militia of its own. [Footnote 25] 496 U. S. 353 In light of the Constitution's more general plan for providing for the common defense, the powers allowed to the States by existing statutes are significant. As has already been mentioned, several constitutional provisions commit matters of foreign policy and military affairs to the exclusive control of the National Government. [Footnote 26] This Court, in Tarble's Case, 13 Wall. 397 (1871), had occasion to observe that the constitutional allocation of powers in this realm gave rise to a presumption that federal control over the armed forces was exclusive. [Footnote 27] Were it not for the Militia Clauses, it might be 496 U. S. 354 possible to argue on like grounds that the constitutional allocation of powers precluded the formation of organized state militia. [Footnote 28] The Militia Clauses, however, subordinate any such structural inferences to an express permission, while also subjecting State militia to express federal limitations. [Footnote 29] We thus conclude that the Montgomery Amendment is not inconsistent with the Militia Clauses. In so doing, we of course do not pass upon the relative virtues of the various political choices that have frequently altered the relationship between the Federal Government and the States in the field of military affairs. This case does not raise any question concerning the wisdom of the gubernatorial veto established 496 U. S. 355 in 1952, or of its partial repeal in 1986. We merely hold that, since the former was not constitutionally compelled, the Montgomery Amendment is constitutionally valid. The judgment of the Court of Appeals is affirmed. - - - - - - - - - - [Footnote 1] The Armed Forces Reserve Act of 1952, provided in part: "Sec. 101. When used in this Act -- " "* * * *" "(c) 'Active duty for training' means full-time duty in the active military service of the United States for training purposes." 66 Stat. 481. "[Section 233] (c) At any time, any unit and the members thereof, or any member not assigned to a unit organized for the purpose of serving as such, in an active status in any reserve component may, by competent authority, be ordered to and required to perform active duty or active duty for training, without his consent, for not to exceed fifteen days annually: Provided, That units and members of the National Guard of the United States or the Air National Guard of the United States shall not be ordered to or required to serve on active duty in the service of the United States pursuant to this subsection without the consent of the Governor of the State or Territory concerned, or the Commanding General of the District of Columbia National Guard." "(d) A member of a reserve component may, by competent authority, be ordered to active duty or active duty for training at any time with his consent: Provided, That no member of the National Guard of the United States or Air National Guard of the United States shall be so ordered without the consent of the Governor or other appropriate authority of the State Territory, or District of Columbia concerned." Id. at 490. These provisions, as amended, are now codified at 10 U.S.C. §§ 672(b) and 672(d). [Footnote 2] The Montgomery Amendment was enacted as § 522 of the National Defense Authorization Act for Fiscal Year 1987, Pub.L. 99-661, § 522, 100 Stat. 3871. [Footnote 3] Two clauses of Article I -- clauses 15 and 16 of § 8 -- are commonly described as "the Militia Clause" or "the Militia Clauses." They provide: "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, . . ." U.S. Const., Art. I, § 8, cl. 15, 16. [Footnote 4] In addition to the powers granted by the Militia Clauses, supra, n 3, Congress possesses the following powers conferred by Art. I, § 8: "The Congress shall have Power . . . to pay the Debts and provide for the common Defence and general Welfare of the United States; . . ." "* * * *" "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;" "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;" "To provide and maintain a Navy;" "To make Rules for the Government and Regulation of the land and naval Forces; . . ." "* * * *" "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Moreover, Art. IV, § 4, provides: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." [Footnote 5] At the Virginia ratification convention, Edmund Randolph stated that "there was not a member in the federal Convention, who did not feel indignation" at the idea of a standing Army. 3 J. Elliot, Debates on the Federal Constitution 401 (1863). [Footnote 6] As Alexander Hamilton argued in the Federalist Papers: "Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defence. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice." The Federalist No. 25, pp. 156-157 (E. Earle ed. 1938). [Footnote 7] "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." 1 Stat. 271. [Footnote 8] Weiner, The Militia Clause of the Constitution, 54 Harv.L.Rev. 181, 187-194 (1940). [Footnote 9] See 31 Stat. 748, 758. [Footnote 10] "Action should be taken in reference to the militia and to the raising of volunteer forces. Our militia law is obsolete and worthless. The organization and armament of the National Guard of the several States, which are treated as militia in the appropriations by the Congress, should be made identical with those provided for the regular forces. The obligations and duties of the Guard in time of war should be carefully defined, and a system established by law under which the method of procedure of raising volunteer forces should be prescribed in advance. It is utterly impossible in the excitement and haste of impending war to do this satisfactorily if the arrangements have not been made long beforehand. Provision should be made for utilizing in the first volunteer organizations called out the training of those citizens who have already had experience under arms, and especially for the selection in advance of the officers of any force which may be raised; for careful selection of the kind necessary is impossible after the outbreak of war." First Annual Message to Congress, Dec. 3, 1901, 14 Messages and Papers of the Presidents 6672. [Footnote 11] The Act of January 21, 1903, 32 Stat. 775, provided in part: "That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes -- the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia." Section 3 provided, in part: "That the regularly enlisted, organized, and uniformed active militia in the several States and Territories and the District of Columbia who have heretofore participated or shall hereafter participate in the apportionment of the annual appropriation provided by section sixteen hundred and sixty-one of the Revised Statutes of the United States, as amended, whether known and designated as National Guard, militia, or otherwise, shall constitute the organized militia." Ibid. Section 4 of the 1903 Act authorized the President to call forth the militia for a period of not exceeding nine months. Id. at 776. [Footnote 12] § 4, 35 Stat. 400. [Footnote 13] "It is certain that it is only upon one or more of these three occasions -- when it is necessary to suppress insurrections, repeal invasions, or to execute the laws of the United States -- that even Congress can call this militia into the service of the United States, or authorize it to be done." 29 Op.Atty.Gen. 322, 323-324 (1912). "The plain and certain meaning and effect of this constitutional provision is to confer upon Congress the power to call out the militia 'to execute the laws of the Union' within our own borders where, and where only, they exist, have any force, or can be executed by anyone. This confers no power to send the militia into a foreign country to execute our laws, which have no existence or force there and can not be there executed." Id. at 327. Under Attorney General Wickersham's analysis, it would apparently be unconstitutional to call forth the militia for training duty outside the United States, even with the consent of the appropriate Governor. Of course, his opinion assumed that the militia units so called forth would retain their separate status in the state militia during their period of federal service. [Footnote 14] See Weiner, 54 Harv.L.Rev. at 199-203. [Footnote 15] The National Defense Act of June 3, 1916, 39 Stat. 166, provided in part: "That the Army of the United States shall consist of the Regular Army, the Volunteer Army, the Officers' Reserve Corps, the Enlisted Reserve Corps, the National Guard while in the service of the United States, and such other land forces as are now or may hereafter be authorized by law." [Footnote 16] "The possession of authority to enact the statute must be found in the clauses of the Constitution giving Congress power 'to declare war; . . . to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; . . . to make rules for the government and regulation of the land and naval forces.' Article I, § 8. And of course the powers conferred by these provisions, like all other powers given, carry with them as provided by the Constitution the authority 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.' Article I, § 8." 245 U.S. at 245 U. S. 377. [Footnote 17] "This result is apparent since, on the face of the opinion delivered in those cases, the constitutional power of Congress to compel the military service which the assailed law commanded was based on the following propositions: (a) That the power of Congress to compel military service and the duty of the citizen to render it when called for were derived from the authority given to Congress by the Constitution to declare war and to raise armies. (b) That those powers were not qualified or restricted by the provisions of the militia clause, and hence the authority in the exercise of the war power to raise armies and use them when raised was not subject to limitations as to use of the militia, if any, deduced from the militia clause. And (c) that, from these principles, it also follows that the power to call for military duty under the authority to declare war and raise armies and the duty of the citizen to serve when called were coterminous with the constitutional grant from which the authority was derived, and knew no limit deduced from a separate, and for the purpose of the war power, wholly incidental, if not irrelevant and subordinate, provision concerning the militia, found in the Constitution. Our duty to affirm is therefore made clear." 247 U.S. at 247 U. S. 6. [Footnote 18] App. 12 (Testimony of James H. Webb, Assistant Secretary of Defense for Reserve Affairs, before a subcommittee of the Senate Armed Services Committee on July 15, 1986). [Footnote 19] "The dual enlistment system requires state National Guard members to simultaneously enroll in the National Guard of the United States (NGUS), a reserve component of the national armed forces. 10 U.S.C. §§ 101(11) and (13) 591(a), 3261, 8261; 32 U.S.C. § 101(5) and (7). It is an essential aspect of traditional military policy of the United States. 32 U.S.C. § 102. The State of Minnesota fully supports dual enlistment, and has not challenged the concept in any respect." Reply Brief for Petitioner 9 (footnote omitted). [Footnote 20] See Selective Draft Law Cases, 245 U.S. at 245 U. S. 382-389; Cox v. Wood, 247 U. S. 3, 247 U. S. 6 (1918). [Footnote 21] Congress has by distinct statutes provided for activating the National Guard of the United States and for calling forth the militia, including the National Guards of the various States. See 10 U.S.C. §§ 672-675 (authorizing executive officials to order reserve forces, including the National Guard of the United States and the Air National Guard of the United States, to active duty); 10 U.S.C. §§ 331-333 (authorizing executive officials to call forth the militia of the States); 10 U.S.C. §§ 35OO, 8500 (authorizing executive officials to call forth the National Guards of the various States). When the National Guard units of the States are called forth, the orders "shall be issued through the governors of the States." 10 U.S.C. § 3500. [Footnote 22] This supremacy is evidenced by several constitutional provisions, especially the prohibition in Art. I, § 10, of the Constitution, which states: "No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." [Footnote 23] According to the Governor, at most "only several hundred" of Minnesota's National Guard members "will be in federal training at any one time." Brief for Petitioner 41. [Footnote 24] The Montgomery Amendment deprives the Governors of the power to veto participation in a National Guard of the United States training mission on the basis of any objection to "the location, purpose, type, or schedule of such active duty." 10 U.S.C. § 672(f). Governors may withhold their consent on other grounds. The Governor and the United States agree that, if the federalization of the Guard would interfere with the State Guard s ability to address a local emergency, that circumstance would be a valid basis for a gubernatorial veto. Brief for Petitioner 41; Brief for Respondents 9. The Governor contends that the residual veto power is of little use. He predicates this argument, however, on a claim that the federal training program has so minimal an impact upon the State Guard that the veto is never necessary: "Minnesota has approximately 13,000 members of the National Guard. At most, only several hundred will be in federal training at any one time. To suggest that a governor will ever be able to withhold consent under the Montgomery Amendment assumes (1) local emergencies can be adequately predicted in advance, and (2) a governor can persuade federal authorities that National Guard members designated for training are needed for state purposes when the overwhelming majority of the National Guard remains at home." Brief for Petitioner 41. Under the interpretation of the Montgomery Amendment advanced by the United States, it seems that a governor might also properly withhold consent to an active duty order if the order were so intrusive that it deprived the State of the power to train its forces effectively for local service: "Under the current statutory scheme, the States are assured of the use of their National Guard units for any legitimate state purpose. They are simply forbidden to use their control over the state National Guard to thwart federal use of the NGUS for national security and foreign policy objectives with which they disagree." Brief for Respondents 13. [Footnote 25] The Governor contends that the state defense forces are irrelevant to this case because they are not subject to being called forth by the National Government, and therefore cannot be militia within the meaning of the Constitution. We are not, however, satisfied that this argument is persuasive. First, the immunity of those forces from impressment into the national service appears -- if indeed they have any such immunity -- to be the consequence of a purely statutory choice, and it is not obvious why that choice should alter the constitutional status of the forces allowed the States. Second, although we do not believe it necessary to resolve the issue, the Governor's construction of the relevant statute is subject to question. It is true that the state defense forces "may not be called, ordered, or drafted into the armed forces." 32 U.S.C. § 109(c). It is nonetheless possible that they are subject to call under 10 U.S.C. §§ 331-333, which distinguish the "militia" from the "armed forces," and which appear to subject all portions of the "militia" -- organized or not -- to call if needed for the purposes specified in the Militia Clauses. See n. 21 supra. [Footnote 26] See, e.g., Art. I, § 8, cl. 11 (Congress's power to declare war); Art. I, § 10, cl. 1 (States forbidden to enter into treaties); Art. I, § 10, cl. 3 (States forbidden to keep troops in time of peace, enter into agreements with foreign powers, or engage in War absent imminent invasion); Art. II, § 3 (President shall receive ambassadors). [Footnote 27] In the course of holding that a Wisconsin court had no jurisdiction to issue a writ of habeas corpus to inquire into the validity of a soldier's enlistment in the United States Army, we observed: "Now, among the powers assigned to the National government, is the power 'to raise and support armies,' and the power 'to provide for the government and regulation of the land and naval forces.' The execution of these powers falls within the line of its duties, and its control over the subject is plenary and exclusive. It can determine, without question from any State authority, how the armies shall be raised, whether by voluntary enlistment or forced draft, the age at which the soldier shall be received, and the period for which he shall be taken, the compensation he shall be allowed, and the service to which he shall be assigned. And it can provide the rules for the government and regulation of the forces after they are raised, define what shall constitute military offences, and prescribe their punishment. No interference with the execution of this power of the National government in the formation, organization, and government of its armies by any State officials could be permitted without greatly impairing the efficiency, if it did not utterly destroy, this branch of the public service." 13 Wall. at 408. [Footnote 28] See United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 299 U. S. 318 (1936) ("The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality"); The Federalist No. 23, p. 143 (E. Earle ed. 1938) ("[I]t must be admitted . . . that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy -- that is, in any matter essential to the formation, direction, or support of the NATIONAL FORCES"); L. Henkin, Foreign Affairs and the Constitution 234-244 (1972) (discussing implied constitutional restrictions upon State policies related to foreign affairs); Comment, The Legality of Nuclear Free Zones, 55 U.Chi.L. Rev. 965, 991-997 (1988) (discussing implied constitutional restrictions upon State policies related to foreign affairs or the military). [Footnote 29] The powers allowed by statute to the States make it unnecessary for us to examine that portion of the Selective Draft Law Cases, 245 U. S. 366 (1918), in which we stated: "[The Constitution left] under the sway of the States undelegated the control of the militia to the extent that such control was not taken away by the exercise by Congress of its power to raise armies. This did not diminish the military power or curb the full potentiality of the right to exert it, but left an area of authority requiring to be provided for (the military area) unless and until, by the exertion of the military power of Congress, that area had been circumscribed or totally disappeared." Id. at 245 U. S. 383.
And yet the Militia Act of 1792 reads (in part): "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 …" If machine guns had been invented, the Militia Act would have required an enrolled citizen to show up with that.
But your response was specific to a federalized militia being deployed overseas. "Who or what protects the right of his National Guard to keep and bear machine guns? That's telling. That's EXACTLY what the second amendment protects. Without that protection, the federal government can disarm state militias -- precisely what the Founders feared and why they wrote it. See what you gave up in return for being allowed to have a handgun in the home for self-defense?
No. 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!
The judge's word choice was flawed as was his legal reasoning.
The ONLY Constitutional Federal Law that pertains to firearms is the 2nd Amendment. Anything else is a poser,and un-Constitional.
In the entire history of the world,the only nations that had to build walls to keep their own citizens from leaving were those with leftist governments.
The current year is 2018. Wrong. The unorganized militia never had a right to possess weapons which were unlawful to possess. The Second Amendment right to keep and bar arms only pertains to weapons legal to possess. Unlicensed machineguns are unlawful to possess. Your claim, taken to its logical conclusion, would mean that if a nuclear bomb had been invented, the Militia Act would have required an enrolled civilian to show up with a nuclear bomb. Your logic leads to absurd results.
Nobody and nothing." That's telling. That's EXACTLY what the second amendment protects. The RKBA is an individual right of the people. The National Guard is not a person. It is incapable, as an entity, of bearing arms. The RKBA is a right of individuals, not groups or organizations. The people in the National Guard have an individual right to keep and bear arms shared with all the other people. The 2nd Amendment does not protect the right of the National Guard to bear arms. The 2nd Amendment protection of the individual right of the people to keep and bear arms is what the 2nd Amendment does. The prefacing clause pertains to WHY it does it. The mental burden of that is too much for you and you should stop trying to make a mess of it. The National Guard shall, as far as practicable*, be uniformed, armed, and equipped with the same type of uniforms, arms and equipments as are or shall be provided for the Regular Army. There is no option to provide the National Guard with arms different from thost provided for the Regular Army. * Practicable is that which may be done, practiced, or accomplished; that which is performable, feasible, possible. Black's Law Dictionary. The Federal government provides, such number of United States service arms, with all accessories, field-artillery materiel, engineer, coast artillery, signal, and sanitary materiel, accouterments, field uniforms, clothing, equipage, publications, and military stores of all kinds, including public animals, as are necessary to arm, uniform, and equip for field service the National Guard in the several States, Territories, and the District of Columbia. All the states take the free stuff. All accept the conditions it comes with. All the stuff is provided at no charge to the state for National Guard use. All military property, issued to the National Guard remains the property of the United States. In time of actual or threatened war, the Federal government can take it all back. National Defense Act of June 3, 1916, 39 Stat. 166, 203-05, National Guard Armament and Equipment SEC. 83. The Secretary of War is hereby authorized to procure, under such regulations as the President may prescribe, by purchase or manufacture, within the limits of available appropriations made by Congress, and to issue from time to time to the National Guard, upon requisition of the governors of the several States and Territories or the commanding general of the National Guard of the District of Columbia, such number of United States service arms, with all accessories, field-artillery materiel, engineer, coast artillery, signal, and sanitary materiel, accouterments, field uniforms, clothing, equipage, publications, and military stores of all kinds, including public animals, as are necessary to arm, uniform, and equip for field service the National Guard in the several States, Territories, and the District of Columbia: Provided That as a condition precedent to the issue of any property as provided for by this Act, the State, Territory, or the District of Columbia desiring such issue shall make adequate provision, to the satisfaction of the Secretary of War, for the protection and care of such property: Provided further, That, whenever it shall be shown to the satisfaction of the Secretary of War that the National Guard of any State Territory, or the District of Columbia, is properly organized, armed, and equipped for field service, funds allotted to that State, Territory, or District for the support of its National Guard maybe used for the purchase, from the War Department, of any article issued by any of the supply departments of the Army. 84. Under such regulations as the President may prescribe, whenever a new type of equipment, small arm, or field gun shall have been issued to the National Guard of the several States, Territories, and the District of Columbia, such equipment, small arms, and field guns, including all accessories, shall be furnished without charging the cost or value thereof or any expense connected therewith against the appropriations provided for the support of the National Guard. SEC. 85. Each State, Territory, and the District of Columbia shall, on the receipt of new property issued to replace obsolete or condemned prior issues, turn in to the War Department or otherwise dispose of, in accordance with the directions of the Secretary of War, all property so replaced or condemned, and shall not receive any money credit therefor. SEC. 86. Any State, Territory, or the District of Columbia may, with the approval of the Secretary of War, purchase for cash from the War Department for the use of the National Guard, including the officers thereof, any stores, supplies, material of war, and military publications furnished to the Army, in addition to those issued under the provisions of this Act, at the price at which they shall be listed to the Army, with cost of transportation added. The funds received from such sale shall be credited to the appropriation to which they shall belong, shall not be covered into the Treasury, and shall be available until expended to replace therewith the supplies sold to the States in the marnner herein authorized: Provided, That supplies, and materiel of war so purchased by a State, Territory, or the District of Columbia may, in time of actual or threatened war, be requisitioned by the United States for use in the military service thereof, and when so requisitioned by the United States and delivered credit for the ultimate return of such property in kind shall be allowed to such State, Territory, or the District of Columbia. SEC. 87. DISPOSITION AND REPLACEMENT OF DAMAGED PROPERTY, AND SO FORTH. All military property, issued to the National Guard as herein provided shall remain the property of the United States. Whenever any such property issued to the National Guard in any State or Territory or the District of Columbia shall have been lost, damaged, or destroyed, or, become unserviceable or unsuitable by use in service or from any other cause, it shall be examined by a disinterested surveying officer of the Regular Army or the National Guard, detailed by the Secretary of War, and the report of such surveying officer shall be forwarded to the Secretary of War, or to such officer as he shall designate to receive such reports; and if it shall appear to the Secretary of War from the record of survey that the property was lost, damaged, or destroyed through unavoidable causes, he is hereby authorized to relieve the State or Territory or the District of Columbia from further accountability therefor. If it shall appear that the loss, damage, or destruction of property was due to carelessness or neglect, or that its loss, damage, or destruction could have been avoided by the exercise of reasonable care, the money value of such property shall be charged to the accountable State, Territory, or District of Columbia, to be paid from State, Territory, or District funds, or any funds other than Federal. If the articles so surveyed are found to be unserviceable or unsuitable, the Secretary of War shall direct what disposition, by sale or otherwise, shall be made of them; and if sold, the proceeds of such sale, as well as stoppages against officers and enlisted men, and the net proceeds of collections made from any person or from any State, Territory, or District to reimburse the Government for the loss, damage, or destruction of any property, shall be deposited in the Treasury of the United States as a credit to said State, Territory, or the District of Columbia, accountable for said property, and as a part of and in addition to that portion of its allotment set aside for the purchase of similar supplies, stores, or material of war: Provided further, That if any State, Territory, or the District of Columbia shall neglect or refuse to pay, or to cause to be paid, the money equivalent of any loss, damage, or destruction of property charged against such State, Territory, or the District of Columbia by the Secretary of War after survey by a disinterested officer appointed as hereinbefore provided, the Secretary of War is hereby authorized to debar such State, Territory, or the District of Columbia from further participation in any and all appropriations for the National Guard until such payment shall have been made. SEC. 88. The net proceeds of the sale of condemned stores issued to the National Guard and not charged to State allotments shall be covered into the Treasury of the United States, as shall also stoppages against officers and enlisted men, and the net proceeds of collections made from any person to reimburse the Government for the loss, damage, or destruction of said property not charged against the State allotment issued for the use of the National Guard.
The Congress in empowered to make Federal laws pursuant to the Constitution, and the Judicial Branch is empowered to expound the law and make a binding decision of whether a law is pursuant to the Constitution or not. The Courts have decided certain federal laws are constitutional, and people in violation of such laws regarding unlawful possession of weapons are sent to prison pursuant to those constitutional laws. Per the Supremacy Clause, each and every such Federal law strikes down any and all conflicting provisions of any state constitution or law. States Rights! Power to the people! Tenth amendment! Indictment! Trial! Conviction! Federal Prison!
The judge's legal reasoning was just fine. Defendants trying to assert your bullshit in court go to federal prison. Why is that? Asserting your misguided bullshit in court is a life choice that is really flawed.
[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 593 F.3d 1199 (2010) UNITED STATES of America, Plaintiff-Appellee, 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.").
No. 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! ---- misterwhite Nolu, what misterwrong replied is as close to 'winning' as you'll ever get.. --- ,And being the troll he is, --- 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...
I said federal law trumps state law, though it looks like states may be able to ignore the Supremacy Clause if they want to.
Actually, you said this: As we all know, you have your own legal system which determines what federal laws are constitutional, the opinions of the courts of the United States notwithstanding. Cite the case in gun possession law to which your comment applies. Can you give a single example of a state ignoring Federal gun laws and openly permitting the sale and/or possession of illegal weapons? In United States v. White, 593 F.3d 1199 (11th Cir., 2010), White was convicted of a crime in Alabama and his conviction, with a sentence of 46 months imprisonment, was upheld by the 11th Circuit. Bureau of Prisons record: I am sure Mister White will be pleased to know that the Alabama constitution protected his right to keep and bear arms. Exactly what protecting did it do? Perhaps the state persuaded the federal prison to issue Mister White short sleeve shirts so he could exercise his right to bare arms. How does a state constitution protect against a federal prosecution? How does a state constitution protect against a federal regulatory gun law, such as the Lautenberg Amendment? If the states can ignore the Supremacy Clause of the Constitution if they want to, may they ignore any other clauses or provisions if they want to? Can the federal government ignore any clauses or provisions of the Constitution, if it wants to? Can the federal government ignore the due process clause, if it wants to? The free speech clause? The Second Amendment RKBA clause? Surely, if states can ignore the Supremacy Clause if they want to, states can ignore the whole Second Amendment if they want, can't they? One could make them all powerful in the hope that they act as a benevolent dictator to protect against federal encroachment upon gun rights. History suggests some state governments would prefer to eliminate gun rights altogether. If the Second Amendment is absolute, and all have a right to bear any weapon, is the First Amendment equally absolute? Do all have a First Amendment right to make false utterances under oath (aka perjury), or in malicious gossip (aka libel or slander)? Are the perjury, libel and slander laws an unconstitutional encroachment upon the First Amendment right to free speech? There is some precedent for ignoring a substance ban. Once upon a time, the men went off to war and women got the vote. Soon enough, the sale and transportation of alcoholic beverages was prohibited. The men returned from war and said, "you prohibited what? Speakeasys were born, then the 18th Amendment was repealed, Joe Kennedy got rich, and then they all lived happily ever after. Alas, it was an act of the people, not the states.
Just ask him... Oh hell, why not. Are you actually an anti-gun nut who believes a State can ban ANY gun?
Nope. But I can cite plenty of examples of states ignoring Federal marijuana laws and openly permitting the sale and/or possession of illegal drugs. Is there a constitutional difference?
Federal law trumps state law ... or so they say. "If the states can ignore the Supremacy Clause of the Constitution if they want to, may they ignore any other clauses or provisions if they want to?" I don't see why not. It's a slippery slope when states start ignoring the U.S. Constitution. "There is some precedent for ignoring a substance ban." Ummm, no there isn't. You can change the law. Or pass a constitutional amendment. That's about it.
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.
Just ask miisterwrong if he's an actually an anti-gun nut who believes a State can ban ANY gun. --- He'll tell you. Trust me ---- I don't lie..
Nope. But I can cite plenty of examples of states ignoring Federal marijuana laws and openly permitting the sale and/or possession of illegal drugs. Is there a constitutional difference? The difference is in whether the Federal government wants to spend the effort and money to rigorously enforce marijuana laws. To the feds, individual possession and use of small amounts of marijuana is sort of like littering is to the city. Some genius espoused a way to make the entire judicial system crash and burn. The method was for everyone to stop taking plea agreements and to require a trial in every criminal case. He correctly observed that there would not be enough courts and lawyers to process all those trials. All he needed was to start the movement. Who wants to go first? What concerns the government more — a few million stoned out dopers, or a few million untrained people running about with M-16's? And if the people have easy access to fully automatic M-16's and AK-47's and the like, what will law enforcement officers be equipped with? Pot yields taxes and potted plants. Military weapons yield a military grade law enforcement problem. Neither the feds, nor any state, wants military weapons readily accessible to the public. Ignoring the gun laws would bring immediate and severe government reaction. Which state wants to go first?
How does a state constitution protect against a federal regulatory gun law, such as the Lautenberg Amendment? Federal law trumps state law ... or so they say. They do say Federal law trumps state law, they being the U.S. Constitution and the U.S. Supreme Court, and all the inferior courts, federal and state. Your comment does not answer the question. You have repeatedly claimed that the 2nd Amendment does not protect an individual right to keep and bear arms, but that state constitutions do. How do state constitutions perform this miracle of restraining an infringing federal government? If state constitutions do not protect from an infringing federal government, what do they protect against? An infringing state or municipal government? - - - - - - - - - - Ummm, no there isn't. You can change the law. Or pass a constitutional amendment. That's about it. My comment before truncation was, "There is some precedent for ignoring a substance ban. Once upon a time, the men went off to war and women got the vote. Soon enough, the sale and transportation of alcoholic beverages was prohibited. The men returned from war and said, "you prohibited what? Speakeasys were born, then the 18th Amendment was repealed, Joe Kennedy got rich, and then they all lived happily ever after. Alas, it was an act of the people, not the states." You think the 18th Amendment was not widely ignored? The mob got rich supplying what the people wanted and were willing to pay for. It was not legal, but the people did it in great numbers. The fact of it is notorious. I don't see why not. It's a slippery slope when states start ignoring the U.S. Constitution. So you advocate for entering upon a slippery slope which could lead to all of the Constitution being ignored. Why, dagnabbit, the gubmint could ignore the 2nd Amendment and take all your guns away. I guess tpaine may have had a point.
[misterwhite #333] Don't believe that asshole. He lies. I'm pro-gun and pro-constitution -- state and federal. [misterwhite #2] 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] [misterwhite #48] 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] [misterwhite #66] I never said they didn't have the right. They do. Just that the second amendment doesn't protect it. [misterwhite #79] You bet! You have a strange way of expressing your "pro-constitution" views. [misterwhite #81] 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] [misterwhite #100] 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] 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] And you hold that it looks like states may be able to ignore the Supremacy Clause if they want to. "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.
Constitutionality is defined as whether or not the Federal government wants to spend the effort and money to rigorously enforce the laws? If you were taking a test on the U.S. Constitution, I would not put that down as an answer. The federal government only needs to prosecute the legislators of one state for sedition and the rest will fall in line.
Where does the federal government get the power to infringe the gun rights of citizens? The answer is, they don't have that power. Meaning, the states never thought they'd have to deal with it. The federal government initially seized that power using the Commerce Clause and furthered their control with the Heller decision.
My "views" are consistent with the language and the intent of the constitutions I cited. "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." If the state does not protect the right they may infringe it. "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." What I accept as constitutional laws is determined by the language and original intent of the constitution. Sometimes the courts get it wrong. This is one of them.
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.
I did not say that. If you think that, it is your personal problem. I am not interested in your personal problems. Murder is a crime and mopery is a crime. When apprehended, one is more likely to result in prosecution than the other. They would probably die from laughing. Sedition is illegal action tending to cause the disruption and overthrow of the government. Who is trying to overthrow the government, other than yourself?
You claim that state constitutions protect the fundamental individual right to keep and bear arms. Now you claim the states never thought they would have to deal with the matter. The question is not whether some federal act is infringement, but how does a state constitution protect the fundamental individual right to keep and bear arms. I know you don't have an answer, and will never admit it, but I enjoy reading your word salad attempts to change the question to anything but how a state constitution protects the fundamental individual right to keep and bear arms. State constitutions only apply to the state. The only way to legally contest a federal law is in federal court. As for the states never having thought of the Federal government as a usurper of rights, that is just more bullshit. It was adddressed and published in Federalist 46 by James Madison. Madison, Federalist 46, re the Militia
The United States has one Constitution. All state constitutions must conform to it. How many currently effective constitutions did you cite? If the state does not protect the right they may infringe it. Only in bizarro world. McDonald, Syllabus at 561 U.S. 744 The Second Amendment protects the fundamental right to keep and bear arms in every state and territory of the union, and in the District of Columbia. Observance of the right is not optional for the states or municipalities. McDonald at 561 U.S. 767: (boldface added) McDonald at 561 U.S. 787: (boldface added)
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)
Murder and mopery are on opposite ends of the crime spectrum. I'm talking about a state legalizing a recreational drug in violation of federal law vs. a state legalizing the ownership of a weapon banned under federal law. I don't see a constitutional difference. They both violate the Supremacy Clause.
Sedition is overt conduct … that tends toward insurrection against the established order (and) often includes subversion of a constitution and incitement of discontent towards, or resistance against lawful authority. Arrest the legislators, give them a trial, and hang 'em high. That should put an end to the bullshit.
I claim that state constitutions protect
Correct. They never envisioned the federal government banning weapons under the Commerce Clause. If a state wanted certain weapons banned, they would ban them. "The question is not whether some federal act is infringement, but how does a state constitution protect the fundamental individual right to keep and bear arms." Well, that IS the question. But let's say the federal government did not act on guns. Then each state would decide, under their state constitution, how they would handle the issue -- as they did for 200 years.
I cited the U.S. Constitution, the Alabama state constitution, and provided a link to the constitutions of all 50 states. "If the state does not protect the right they may infringe it. Only in bizarro world." I'm referring to pre-Heller/McDonald. The way it was for 200 years. The way the U.S. Constitution was written and interpreted by all courts through the centuries.
Yes it was. And I reject their activist opinion for all the reasons I cited. Your argument consists of simply repeating "It's the law" and citing, ad nauseum, excerpts from the rulings.
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".
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.
I see your libtarded socialist kookifornia shithole is planning on splitting in 3 parts. Communist North Kookifornia, Socialist Kookifornia and RINO Southern Mexifornia. Don’t you proudly live in Communist North Kookifornia? lol
I'm the infidel... Allah warned you about. كافر المسلح
Mopery is measured on the stupidity spectrum. Malicious mopery, committed against a woman on Sunday, is especially heinous (and stupid). A state may decriminalize marijuana possession under state law. They simply repeal any state law that made it a state crime. No state can make marijuana possession legal. A state law saying marijuana possession is legal conflicts with federal law and is null and void, and of no effect. A transgressor is still subject to federal prosecution. If you register or acquire a state permit or license to purchase marijuana, you forfeit your right to possess a gun. You piss away your Second Amendment fundamental individual right to keep and bear arms. A state law saying automatic weapon possession was legal in the state would be null and void, and of no effect. Walk into the federal courthouse carrying a doobie and an M-16 and you will learn the difference. One is a minor misdemeanor and the other is a major felony. Congress has given the Department of Justice no funding to prosecute marijuana possession cases, so you won't face federal prosecution for the doobie unless they get funding. Neither violates the Supremacy Clause. You misconstrue the Supremacy Clause just as you misconstrue the 2nd Amendment. The Supremacy Clause is a statement of which law prevails, federal or state. States which merely decriminalize marijuana possession under state law do not violate the Supremacy Clause. Just because the federal government enacts a law making marijuana possession unlawful does not mean that a state must have such a law. The nonexistence of such a state law does not make marijuana possession lawful in the state, it just makes it non-prosecutable under state law. A state law which purports that small amount marijuana possession is legal in the state does not violate the Supremacy Clause. It violates the applicable Federal law. States may similarly repeal all state gun control laws without violating the Supremacy Clause. That does not make the Federal law any less applicable.
Arrest the legislators, give them a trial, and hang 'em high. That should put an end to the bullshit. It is your definition of sedition, and your allusion to it being a capital crime, which are bullshit. For a criminal conviction, you need proof beyond a reasonable doubt of the commission of a violation of the actual criminal statute. That puts an end to your bullshit. https://law.justia.com/codes/us/2016/title-18/part-i/chapter-115/sec.-2383/ Sec. 2383 - Rebellion or insurrection 18 U.S.C. § 2383 (2016) Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. https://law.justia.com/codes/us/2016/title-18/part-i/chapter-115/sec.-2384/ Sec. 2384 - Seditious conspiracy 18 U.S.C. § 2384 (2016) If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both. https://law.justia.com/codes/us/2016/title-18/part-i/chapter-115/sec.-2385/ Sec. 2385 - Advocating overthrow of Government 18 U.S.C. § 2385 (2016) Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof— Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. As used in this section, the terms "organizes" and "organize", with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons.
Who gives a shit what you claim? You repetitively claim all nature of silly bullshit. The Constitution has not yet been amended to empower you to take over the functions of the Judicial Branch. The U.S. Supreme Court has ruled in Heller and McDonald that the 2nd Amendment right to keep and bear arms is fundamental and an individual right. Heller, at 554 U.S. 579-80: a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body. Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. 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): This contrasts markedly with the phrase “the militia” in the prefatory clause. McDonald Syllabus at 561 U.S. 744: (boldface added) A right protected by the Bill of Rights, only qualifies for selective incorporation via the Due Process Clause if it is determined to be fundamental. The 2nd Amendment right to keep and bear arms is a fundamental right. It was also clearly held to be an individual right. McDonald at 561 U.S. 767: (boldface added) 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 599; see also id., at 628 (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at 628–629 (some internal quotation marks omitted); see also id., at 628 (noting that handguns are “overwhelmingly chosen by American society for [the] lawful purpose” of self-defense); id., at 629 (“[T]he American people have considered the handgun to be the quintessential self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at 630. McDonald at 561 U.S. 768: (boldface added) McDonald at 561 U.S. 787: (boldface added)
Well, that IS the question. [misterwhite #85] You're the one who said the RKBA is not protected by the 2nd Amendment, but is protected by state constitutions. When asked how state constitutions perform this miracle, you say that is the question. Apparently you never had, and still do not have, a clue as to how your state constitutions protect the 2nd Amendment RKBA. In other words, you have been caught bullshitting again. The question is why did you claim that the RKBA is not protected by the Seconnd Amendment, but is protected by state constitutions, if your are unable to state how state constitutions accomplish this miracle. Let's say the Federal government DID act on guns, because IT DID. A Federal law is the Supreme Law of the land and strikes down all conflicting state law as null and void, and of no effect, let's not talk about your wet dreams.
I cited the U.S. Constitution, the Alabama state constitution, and provided a link to the constitutions of all 50 states. So the correct answer to my question is that you cited ONE CURRENTLY EFFECTIVE CONSTITUTION. That would be the U.S. Constitution. You cited the first Alabama constitution of 1819 which has now passed through multiple editions. Other constitutions were in 1865, 1867, 1875, and 1901. The current constitution at section 256 states: Duty of legislature to establish and maintain public school system; apportionment of public school fund; separate schools for white and colored children. The legislature shall establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years. The public school fund shall be apportioned to the several counties in proportion to the number of school children of school age therein, and shall be so apportioned to the schools in the districts or townships in the counties as to provide, as nearly as practicable, school terms of equal duration in such school districts or townships. Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race. Apparently you did not reject the ruling of the U.S. Supreme Court in Brown v. Topeka Board of Education, and permitted the schools to be desegregated to comply with the Court ruling. https://en.wikipedia.org/wiki/Stand_in_the_Schoolhouse_Door In response, President John F. Kennedy issued Executive Order 11111, which federalized the Alabama National Guard, and Guard General Henry Graham then commanded Wallace to step aside, saying, "Sir, it is my sad duty to ask you to step aside under the orders of the President of the United States." Wallace then spoke further, but eventually moved, and Malone and Hood completed their registration. A link identifies no specific information and provides nothing to support any brain droppings you may have been muttering about. I'm referring to pre-Heller/McDonald. The way it was for 200 years. The way the U.S. Constitution was written and interpreted by all courts through the centuries. Your argument is insane bullshit. We are not living in pre-Heller and McDonald. You may even be surprised to learn we are not living in pre-Plessy v. Ferguson or pre-Brown v. Topeka Board of Education. We are not even discussing your weird notions about what the law used to be.
Yes it was. And I reject their activist opinion for all the reasons I cited. And nobody gives a shit it you reject the rulings of the U.S. Supreme Court. Their interpretations of the Constitution in Heller and McDonald are the supreme law of the land, and all inconsistent laws were struck down as null and void, and of no effect. I cite and provide the actual law that prevails in this country. You blather your personal bullshit which, if blathered in court, gets people sent to prison as amply demonstrated by the court opinions I provided where real people tried to argue your insane bullshit.
Not in the second amendment. It was in state constitutions. You are still full of shit. McDonald at 561 U.S. 767: (boldface added) The 2nd Amendment refers to the security of a free state in the prefacing clause, not in the operative clause. Pursuant to Heller and McDonald, individual self-defense is “the central component” of the Second Amendment right, and the right itself is a fundamental individual right. That is the supreme law of the land.
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.
They cannot do it without congressional consent, which may be difficult to obtain as it would give current California six senators.
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...
I don't have a problem with it...other than the proposal conveniently making Frisco and Oakland part of "Northern" CA, polluting the north.
Most reports indicate that the most liberal part of kookifornia is the north. Then central kookifornia is found to be almost as left as north... leaving the most conservative part of kookifornia in the Sounth.
I'm the infidel... Allah warned you about. كافر المسلح
The north is the hotbed of lefties and kooks? Right, I knew central CA was the hotbed of loons. The problems with the south -- as you note that its where most of the conservatives hold down the fort -- is that it is inundated by La Razan invaders. CA is in a No-Win situation. The Left has all but annexed it.
Nolu ---- 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. A bookmark, and an index, without which it would be almost impossible to find the constitutional cites needed, because they are buried by your compulsion to post unneeded 'lost in the weeds' legal cites. Nevertheless, you've made a good effort, (congrats), but be prepared for the idiot to ignore you and find someone else to target with his agitprop. ---- That is his pattern, along with using other 'personalities' (grandisland, roscoe, etc) for disruptive purposes..
If he doesn't he'll move there.
Federal laws trump state laws to the contrary -- whether we're talking about illegal drugs or guns. Period. Don't try to weasel your way out by citing the "type" of violation or whether or not the government funds prosecution. And I'm not talking about decriminalization. I'm talking about a state LEGALIZING a federally controlled substance for medical or recreational use. That violates federal laws to the contrary. That violates the Supremacy Clause. That's what the U.S. Supreme Court concluded in Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005). So again I ask. How is that any different than a state legalizing the possession of a weapon banned by the federal government? If you were fucking honest for a fucking change, you'd reply, "There is no difference, misterwhite. None at all."
Either they're full of shit or you are. The right may be "fundamental" to some goal, but it's not a fundamental right. As proof, there's this. Any law infringing on a fundamental right must pass strict scrutiny by a court. Heller was not decided under strict scrutiny.
Let's try again. You said the question is NOT whether some federal act is infringement. Well, federal laws ARE an infringement on the individual RKBA. The protection of the individual RKBA falls under state constitutions, not the federal government or the second amendment. So when the federal government passes a law that infringes on the individual RKBA, the state is powerless to protect that right. So the real question IS whether or not the federal government laws are an infringement on the individual RKBA. I say they are because the federal government was not given the power to ban guns. That's what I meant.
True. But you said, "The question is not whether some federal act is infringement." Well, how do you wish to proceed? You say the Federal government DID infringe on guns ... but that's not the question. I say it IS the question. A big one. Where did the federal government get the power to ban the individual ownership of guns? And where does that power stop? And what stops that power? Because once the federal government starts passing laws that infringe on the individual RKBA, the states can't stop that. The states can't shield their citizens from those laws.
So we can't debate Roe v Wade, or Kelo, or any other U.S. Supreme Court decision because shut up?
Only because Heller and McDonald said that individual self- defense is “the central component” of the Second Amendment right. Circular reasoning. It is because they said it is. They made it up. They referenced … … nothing. They said it so that means it's true. Well, the second amendment says NOTHING about individual self defense. It does, however, refer to the security of a free State. STATE constitutions are very specific. THEY refer to "defense of self and the state".
Our ongoing debate is about which document protects the individual citizen's right to keep and bear arms. Subsequent to the Heller ruling, nolu chan says it's the second amendment. When asked what protects state militias and their arms from federal infringement, he says nothing does. I maintain the Heller decision was wrong, 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.
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, 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.
Subsequent to the Heller ruling, nolu chan says it's the second amendment. nolu chan says it is the 2nd Amendment since 1791. The 2nd Amendment protects the individual right of the people to keep and bear arms. That includes those civilians enrolled in the unorganized militia. The Federal Congress at Art. 1, §8, Cl. 16, was empowered "[t]o provide for organizing, arming, and disciplining the Militia." The Federal government has organized the militia as the National Guard and provides ALL the weapons for the National Guard. The weapons remain the property of the Federal government. Being on active duty in the National Guard (or Regular Armed Forces) brings no "right" to keep and bear arms. Medics and clerics are prohibited from keeping and bearing arms, as are those previously convicted of misdemeanor domestic violence. For the umpteenth time, Heller did NOT protect the individual citizen's right to keep and bear arms in their state. Dick Heller was a resident of the federal District of Columbia. Heller (2008) did NOT incorporate the 2nd Amendment into the 14th Amendment. McDonald (2010), a case arising in Illinois, incorporated the 2nd Amendment into the 14th Amendment and made its protections fully enforceable against the 50 states. It is legally impossible for a state constitution to protect against a federal law. The federal law must be challenged in federal court. This is directly contrary to Heller and McDonald. The fact is that federal courts have held such laws to be constitutional, and inconsistent provisions of state constitutions are null and void, and of no effect.
That does not violate the Supremacy Clause, it violates the inconsistent Federal law. As such, the state law is null and void ab initio, of no effect. Try to buy a gun, fill out ATF Form 4473, Firearms Transaction Report, which asks and warns at 11(e): [emphasis as in original] The warning above the signature block reads in relevant part: (emphasis added) Register to obtain marijuana under an invalid state law and you are considered a drug user. Lie about on your AFT-4473 and commit a felony. That is not any conclusion of Raich which stated: A federal law prevails over an inconsistent state law. The state law is struck down by the federal law, not for being unconstitutional.
Recycled sewage.
Recycled sewage.
Therefore, the states cannot hypothetically protect the 2nd Amendment fundamental individual right to keep and bear arms from hypothetical Federal infringement. Arguments that it can or does are fake law.
You can debate Roe or Kelo or even Dred Scott v. Sandford. What you cannot do is pronounce your misconceived personal bullshit as the actual law, replacing the opinion of SCOTUS.
Recycled sewage.
Good question, which you haven't addressed. -- Can you? -- In your own words, please..
If he doesn't he'll move there. ---- misterwhite Here we have two kooky 'personas' responding to itself, making idiotic comments about a previously great state where Governor Reagan began his climb to the Presidency.. After the army, I moved to San Mateo Co. (Bay Area) in 1958, and five years ago retired to Plumas Co. -- Both are considered to be in Northern California, but only the coastal areas are now infested with communistic types who distain our Constitution.. --- As do our two fascistic clowns above. Strange bedfellows, fascists and communists, who have a special hate for conservatives --- like most of us here on LF..
Where did your get the legal authority to beat your wife, where does that authority end, and when are you going to stop beating your wife?
Good question, which you haven't addressed. -- Can you? --- tpaine Nolu Spam --- Where did your get the legal authority to beat your wife, where does that authority end, and when are you going to stop beating your wife? Mr.Wrong and I applaud your idiotic response to a valid question... Got any smarts?
(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?
Yes. But ONLY if the federal government has the constitutional power to write the law.
The big misconception here, made by nearly everyone, is that SCOTUS opinions change the Constitution and/or constitutional laws.. They do strike down unconstitutional laws, both fed and state. Otherwise, these opinions only apply to the case at hand/lesser courts, --- they also serve as advisory opinions to guide the legislative/executive branches of fed and state governments on lawmaking and enforcement.
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..
As for the militia, the Constitution gives the unilateral power to the Congress to, "provide for organizing, arming, and disciplining, the Militia...." The operative clause of the 2nd Amendment states, "the right of the people to keep and bear arms, shall not be infringed." It was a pre-existing right of the people, and the people did not delegate it to either the Federal government or the State government. It is still the right of the people. The Second Amendment was an act of the people, not the government. The 2nd Amendment neither created the right, nor bestowed it upon anyone. The 2nd Amendment was a restriction placed by the people on the federal government, in protection of their right to keep and bear arms. The right to keep and bear arms was the English common law right of the colonists under British rule. Heller notes that, "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." The Due Process clause of the 14th Amendment reads, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law...." Originally, the Bill of Rights only restrained the federal government. The Due Process Clause of the 14th Amendment reads, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law...." This post-war Amendment applied to the states. For many years, the Supreme Court has acted on the provisions of the Bill of Rights piecemeal, and holdinng that the Due Process Clause incorporates particular rights contained in the first eight Amendments, making them enforceable against the states. McDonald found that the 2nd Amendment right to keep and bear arms is fundamental to our scheme of ordered liberty and system of justice. McDonald also observed that, "The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights," and gives voluminous citation to those early Americans. Heller found, and McDonald affirmed, that "individual self-defense is the central component of the Second Amendment right." I am not arguing the law that ought to be, but that law that is. One may readily argue that Roe is wrongly decided, and abortion will still be legal in all 50 states, and may not be banned by any state. Arguing that a SCOTUS opinion is wrongly decided does not change it. They are the ultimate arbiter of the law.
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.
That is complete bullshit, as I have informed you many times over. SCOTUS interpret constitutional provisions. Those interpretations may change. Plessy v. Ferguson found seperate but equal to be constitutional. Brown v. Board of Education found seperate but equal to be inherently unequal and unconstitutional. There were segregated schools, and then there were not. If Roe only applied to the case at hand, why is abortion lawful in all 50 states, and cannot be prohibited by any of the 50 states? Federal courts are prohibited from issuing advisory opinions. The opinions they do issue are anything but advisory. Black's Law Dictionary, 6th Ed. https://www.law.cornell.edu/wex/advisory_opinion A court's nonbinding interpretation of law. It states the opinion of a court upon a legal question submitted by a legislature, government official, or another court. Federal courts cannot issue advisory opinions because of the Constitution's case-or-controversy requirement. https://founders.archives.gov/documents/Washington/05-13-02-0263 George Washington requested an advisory opinion from the U.S. Supreme Court. In a letter signed by Chief Justice John Jay and four associate justices, the Court politely refused. From Supreme Court Justices Philadelphia 8 Augt 1793 Sir We have considered the previous Question stated in a Letter written to us by your Direction, by the Secretary of State, on the 18th of last month.1 The Lines of Separation drawn by the Constitution between the three Departments of Government—their being in certain Respects checks on each other—and our being Judges of a court in the last Resort—are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments. we exceedingly regret every Event that may cause Embarrassment to your administration; but we derive Consolation from the Reflection, that your Judgment will discern what is Right, and that your usual Prudence, Decision and Firmness will surmount every obstacle to the Preservation of the Rights, Peace, and Dignity of the united States. We have the Honor to be, with perfect Respect, Sir, your most obedient and most h’ble servants John Jay
So? You can't cite a portion of the second amendment, call it "The Operative Clause", pretend it stands alone, then sit back like that explains everything. Worse, claim things that aren't there -- like "self-defense is the central component of the right itself". Huh? What if I claimed that hunting is the central component of the right itself? You buy that? I think you'd ask me to support such a claim. Anyways, you can't omit the first part -- "A well regulated Militia, being necessary to the security of a free State" -- because that part explains your "operative clause". Why else put in in the second amendment? You don't like it because it totally fucks up your individual rights theory. Lastly, the phrase "to keep and bear arms" is a military phrase. The Founders intentionally used that phrase because that is what they wished to protect from federal infringement.
It IS absolute if you read the second amendment the way you should -- protecting state Militias and the RKBA of those who are a part of them from federal infringement. No militia arms may be banned, regulated, registered, or even taxed by the federal governent. Shall not be infringed. Put there for a reason.
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.
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 Nolu Sham ---- 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. Your opinion that The right to keep and bear arms is not absolute, and has never applied to weapons not lawful to possess, --- is absolute bull that you've made up, or worse, have plagiarized from some bullshit 'legal source'. You also make the point of that not everyone has a right to keep and bear an illegal-to-possess M-16 or a nuclear bomb. Full auto rifles are arguably 'illegal', and that opinion will hopefully be re- addressed someday by a more rational Court.. --- Nukes really aren't really bearable arms, as perhaps even a nitpicker like you will admit..
SCOTUS interpret constitutional provisions. Those interpretations may change. --- If Roe only applied to the case at hand, why is abortion lawful in all 50 states, and cannot be prohibited by any of the 50 states --- Federal courts are prohibited from issuing advisory opinions. SCOTUS opines on constitutional provisions. Those opinions may change. -- Roe applied to the case at hand and lesser courts, thus abortion is lawful in all 50 states because the lesser courts agree that it cannot be prohibited by any of the 50 states. Federal courts are prohibited from issuing advisory opinions by the opinions you cited. This opinion is not written in the Constitution itself, and may change..
It IS absolute if you read the second amendment the way you should -- protecting state Militias and the RKBA of those who are a part of them from federal infringement. What an incredibly ignorant fuck you are. Heller at 554 U.S. 592-95 Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed ....” [...] 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 selfpreservation 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) (reprinted 1970); see also, e. g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1904) (reprinted 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. 285 (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 554 U.S. 598-600 We reach the question, then: Does the preface fit 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. During the 1788 ratification debates, the fear that the Federal Government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e. g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e. g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia (Feb. 22, 1788), in id., at 280, 281; A Citizen of America (Oct. 10, 1787), in id., at 38, 40; Foreign Spectator, Remarks on the Amendments to the Federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down. 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 selfdefense 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. 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.
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
A Supreme Court opinion is not bullshit that I made up, nor is it a bullshit legal source. Heller at 554 U.S. 595 Heller at 554 U.S. 625 Heller at 554 U.S. 627 Heller at 554 U.S. 627-28
Roe applied equally to any applicable case pending at SCOTUS and to all states, territories, and the District of Columbia, and is binding precedent on all lower courts. The lower courts need not agree, they just are obligated to follow the binding precedent. The interpretation is automatically applicable to all the states without the lower courts doing anything. When Obergefell came down, it did not be only that Obergefell could get married in Kentucky, it meant that you and your boyfriend misterwhite could get married in any state of the union, as soon as the ruling came down. Advisory opinions are prohibited by the limitations imposed by the Constitution, as cited by the five justices denying the George Washington request for an advisory opinion. Article 3, Section 2, limits the judicial power to cases and controversies. Federal courts were not empowered by the Constitution to issue advisory opinions.
Roe applied equally to any applicable case pending at SCOTUS and to all states, territories, and the District of Columbia, and is binding precedent on all lower courts. (When Obergefell came down, it did not be only that Obergefell could get married in Kentucky, it meant that you and your boyfriend misterwhite could get married in any state of the union, as soon as the ruling came down.) (Weird aside) In the spirit of your own words: ----'What an incredibly ignorant nitpicking f-- - you are.' I wrote PRIOR to your response above: --- Roe applied to the case at hand and lesser courts, thus abortion is lawful in all 50 states because the lesser courts agree that it cannot be prohibited by any of the 50 states. Certainly, you can, and will, obsess about the legal niceties, being the silly person you are, but any rational person won't care about the differences in our views. You really should stop pretending to be some sort of 'barrister'. -- You're making a fool of yourself.
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.
It's become obvious that you are confusing "the right the keep and bear arms" wi with "the protection of the right to keep and bear arms". It also appears that you believe if the right is not protected it means you don't have the right. Third, you believe the only document that protects your right to keep and bear arms is the second amendment. Lastly, you are woefully ignorant of why the second amendment was added to the Bill of Rights -- it had nothing to do with self-defense and everything to do with defense of the State. It is absolutely painful to see you twist and distort the words and meaning of the second amendment in order to fit your definition. You redefine "the people" to mean everyone. You redefine "arms" to mean common arms -- whatever they are. You remove the protection of state militias. And you give the federal government powers they don't have in order to regulate all that garbage.
What an incredibly ignorant fuck you are. Heller at 554 U.S. 577 - - - - - - - - - - Heller at 554 U.S. 579 a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body. - - - - - - - - - - Heller at 554 U.S. 592-95 Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed ....” [...] 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 selfpreservation 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) (reprinted 1970); see also, e. g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1904) (reprinted 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. 285 (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 554 U.S. 595-97 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. See, e. g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades...and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“the militia of the State, that is to say, of every man in it able to bear arms”). 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. Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights § 13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”). Heller at 554 U.S. 598-603 We reach the question, then: Does the preface fit 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. During the 1788 ratification debates, the fear that the Federal Government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e. g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e. g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia (Feb. 22, 1788), in id., at 280, 281; A Citizen of America (Oct. 10, 1787), in id., at 38, 40; Foreign Spectator, Remarks on the Amendments to the Federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down. 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 selfdefense 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. 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. B Our interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment. Four States adopted analogues to the Federal Second Amendment in the period between independence and the ratification of the Bill of Rights. Two of them—Pennsylvania and Vermont—clearly adopted individual rights unconnected to militia service. Pennsylvania’s Declaration of Rights of 1776 said: “That the people have a right to bear arms for the defence of themselves and the state ....” § XIII, in 5 Thorpe 3082, 3083 (emphasis added). In 1777, Vermont adopted the identical provision, except for inconsequential differences in punctuation and capitalization. See Vt. Const., ch. 1, § XV, in 6 id., at 3741. North Carolina also codified a right to bear arms in 1776: “That the people have a right to bear arms, for the defence of the State . . . .” Declaration of Rights § XVII, in 5 id., at 2787, 2788. This could plausibly be read to support only a right to bear arms in a militia—but that is a peculiar way to make the point in a constitution that elsewhere repeatedly mentions the militia explicitly. See N. C. Const., §§ XIV, XVIII, XXXV, in id., at 2789, 2791, 2793. Many colonial statutes required individual arms bearing for public-safety reasons—such as the 1770 Georgia law that “for the security and defence of this province from internal dangers and insurrections” required those men who qualified for militia duty individually “to carry fire arms” “to places of public worship.” 19 Colonial Records of the State of Georgia 137–139 (A. Candler ed. 1911 (pt. 1)) (emphasis added). That broad public-safety understanding was the connotation given to the North Carolina right by that State’s Supreme Court in 1843. See State v. Huntly, 25 N. C. 418, 422–423. The 1780 Massachusetts Constitution presented another variation on the theme: “The people have a right to keep and to bear arms for the common defence. . . . ” Pt. First, Art. XVII, in 3 Thorpe 1888, 1892. Once again, if one gives narrow meaning to the phrase “common defence” this can be thought to limit the right to the bearing of arms in a state-organized military force. But once again the State’s highest court thought otherwise. Writing for the court in an 1825 libel case, Chief Justice Parker wrote: “The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.” Commonwealth v. Blanding, 20 Mass. 304, 313–314. The analogy makes no sense if firearms could not be used for any individual purpose at all. See also Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 244 (1983) (19th century courts never read “common defence” to limit the use of weapons to militia service). We therefore believe that the most likely reading of all four of these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other States did not include rights to bear arms in their pre-1789 constitutions—although in Virginia a Second Amendment analogue was proposed (unsuccessfully) by Thomas Jefferson. (It read: “No freeman shall ever be debarred the use of arms [within his own lands or tenements].” 18 1 The Papers of Thomas Jefferson 344 (J. Boyd ed. 1950).) Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” See n. 8, supra. Another three States—Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid. Finally, two States— Tennessee and Maine—used the “common defence” language of Massachusetts. See Tenn. Const., Art. XI, § 26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, § 16 (1819), in 3 id., at 1646, 1648. That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II–D–2, 19thcentury courts and commentators interpreted these state constitutional provisions to protect an individual right to use arms for self-defense. See n. 9, supra; Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833). The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an overreading of the prefatory clause. I would you tell you to get your your head out of your ass and read Heller and McDonald. Affirming Heller, McDonald 561 U.S. at 767 stated, "in Heller we held that individual self-defense is 'the central component of the Second Amendment right. 554 U.S. at 599; see also id. at 628 (stating that the 'inherent right of self-defensehas been central to the Second Amendment right')."
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
It also appears that you believe if the right is not protected it means you don't have the right. It has become obvious that you are simply confused. Your are just wilfully ignorant. Read Heller and McDonald. Affirming Heller, McDonald 561 U.S. at 767 stated, "in Heller we held that individual self-defense is 'the central component of the Second Amendment right. 554 U.S. at 599; see also id. at 628 (stating that the 'inherent right of self-defense has been central to the Second Amendment right')." - - - - - - - - - - Heller at 554 U.S. 577 - - - - - - - - - - Heller at 554 U.S. 579 a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body. - - - - - - - - - - Heller at 554 U.S. 592-95 Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed ....” [...] 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 selfpreservation 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) (reprinted 1970); see also, e. g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1904) (reprinted 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. 285 (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 554 U.S. 595-97 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. See, e. g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades...and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“the militia of the State, that is to say, of every man in it able to bear arms”). 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. Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights § 13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”). Heller at 554 U.S. 598-603 We reach the question, then: Does the preface fit 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. During the 1788 ratification debates, the fear that the Federal Government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e. g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e. g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia (Feb. 22, 1788), in id., at 280, 281; A Citizen of America (Oct. 10, 1787), in id., at 38, 40; Foreign Spectator, Remarks on the Amendments to the Federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down. 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 selfdefense 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. 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. B Our interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment. Four States adopted analogues to the Federal Second Amendment in the period between independence and the ratification of the Bill of Rights. Two of them—Pennsylvania and Vermont—clearly adopted individual rights unconnected to militia service. Pennsylvania’s Declaration of Rights of 1776 said: “That the people have a right to bear arms for the defence of themselves and the state ....” § XIII, in 5 Thorpe 3082, 3083 (emphasis added). In 1777, Vermont adopted the identical provision, except for inconsequential differences in punctuation and capitalization. See Vt. Const., ch. 1, § XV, in 6 id., at 3741. North Carolina also codified a right to bear arms in 1776: “That the people have a right to bear arms, for the defence of the State . . . .” Declaration of Rights § XVII, in 5 id., at 2787, 2788. This could plausibly be read to support only a right to bear arms in a militia—but that is a peculiar way to make the point in a constitution that elsewhere repeatedly mentions the militia explicitly. See N. C. Const., §§ XIV, XVIII, XXXV, in id., at 2789, 2791, 2793. Many colonial statutes required individual arms bearing for public-safety reasons—such as the 1770 Georgia law that “for the security and defence of this province from internal dangers and insurrections” required those men who qualified for militia duty individually “to carry fire arms” “to places of public worship.” 19 Colonial Records of the State of Georgia 137–139 (A. Candler ed. 1911 (pt. 1)) (emphasis added). That broad public-safety understanding was the connotation given to the North Carolina right by that State’s Supreme Court in 1843. See State v. Huntly, 25 N. C. 418, 422–423. The 1780 Massachusetts Constitution presented another variation on the theme: “The people have a right to keep and to bear arms for the common defence. . . . ” Pt. First, Art. XVII, in 3 Thorpe 1888, 1892. Once again, if one gives narrow meaning to the phrase “common defence” this can be thought to limit the right to the bearing of arms in a state-organized military force. But once again the State’s highest court thought otherwise. Writing for the court in an 1825 libel case, Chief Justice Parker wrote: “The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.” Commonwealth v. Blanding, 20 Mass. 304, 313–314. The analogy makes no sense if firearms could not be used for any individual purpose at all. See also Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 244 (1983) (19th century courts never read “common defence” to limit the use of weapons to militia service). We therefore believe that the most likely reading of all four of these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other States did not include rights to bear arms in their pre-1789 constitutions—although in Virginia a Second Amendment analogue was proposed (unsuccessfully) by Thomas Jefferson. (It read: “No freeman shall ever be debarred the use of arms [within his own lands or tenements].” 18 1 The Papers of Thomas Jefferson 344 (J. Boyd ed. 1950).) Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” See n. 8, supra. Another three States—Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid. Finally, two States— Tennessee and Maine—used the “common defence” language of Massachusetts. See Tenn. Const., Art. XI, § 26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, § 16 (1819), in 3 id., at 1646, 1648. That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II–D–2, 19thcentury courts and commentators interpreted these state constitutional provisions to protect an individual right to use arms for self-defense. See n. 9, supra; Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833). The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an overreading of the prefatory clause. It is absolutely painful to see you so confused that you cannot comprehend the clear words of the U.S. Supreme Court, and in your dotage cling to imaginary nonsense.
What good what it do to take away the arms of women, children and old men? That would have zero effect on the militia. So why would the second amendment protect their RKBA? Well, it doesn't. The second amendment protects the RKBA of "all the able-bodied men" who comprise the militia in order to protect the militia from federal infringement.
Gobbledygook. In 1790 there was only ONE militia. There was no "organized miltia" or "disorganized miltia" or "active militia" or "inactive militia". The Second Amendment protected the right to keep and use weapons as a member of THE militia. The Heller court takes the clear meaning of the second amendment and twists and distorts it to fit their notion of what they think it should say. What a bunch of bullshit.
Yes. That's why the second amendment was written. If Congress excluded them from the militia, or if Congress refused to organize a militia, or if Congress refused to arm the militia, the second amendment still protected their RKBA so they could organize and arm themselves as part of a state militia.
At the time of the Second Amendment’s ratification, which weapons were unlawful? I can't think of any. So why make the distinction?
Once again, the Heller court sets up a strawman and knocks it down. They pick the phrase "right of the people” then search the U.S. Constitution for an exact match, finding limited references, none of which refer to a select group, and conclude the phrase must be referring to individuals. How about they search for "the people" in the operative clause? Well, then they would find that "the people" IS a select group consisting only of adult, white, male, enfranchized citizens -- the same group that formed the militias found in the prefatory clause. What a fucking coincidence, huh?
So self-defense is already contained in the RKBA. As a matter of fact, it's the "central component" of the RKBA. No need to codify it. It's understood. Then why do most state constitutions read, "The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired"? Don't bother asking the Heller court. They don't have a clue. But you blindly accept their decision.
Wrong, wrong, wrong. That's confusing the right with the protection of the right. You have the pre-existing right to keep and bear arms for many purposes -- collecting, self-defense, hunting, target shooting, competition, defense of home and property, defense of country, etc. That's "THE RIGHT". You have it. It contains ALL those things. Now, who or what PROTECTS THAT RIGHT from being infringed? Well, the second amendment protects the right of militia members to keep and bear arms as part of a state militia. And states protect the right of their citizens to keep and bear arms for self-defense, defense of the state, hunting, or other reasons, as specfiied in their state constitutions. So we have the right and we have the protection of the right.
Recycled sewage, directly contrary to the U.S. Supreme Court, and unworthy of another response.
Recycled sewage unworthy of another response.
Two excellent points that you can't refute. So you call them garbage. Coward.
Refuted multiple times. Your reposting of absurd garbage merits no substantive response.
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).
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.
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.
We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ”
“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.
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).
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.
Arms. Anything that a man wears for his defense, or takes in his hands as a weapon.
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.
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.
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.
#2. To: nolu chan (#1)
(Edited)
"... by restricting the amendment to common arms."
#3. To: Y'ALL (#2)
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.
#4. To: misterwhite, nolu chan (#2)
You can't have ordinary citizens with tanks, SAMs, flame throwers and machine guns.
#5. To: goldilucky (#4)
Yes, you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns.
#6. To: misterwhite (#2)
So what protects the individual right to keep and bear arms? State constitutions.
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.
#7. To: misterwhite (#5)
Each state, however, decides how and where those weapons will be kept.
#8. 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
THE MILITIA - 10 U.S.C. § 311 (2012)
The statute I referenced (Title 10 USC. Sec 311 (b) (2) makes it quite clear who the militia are.
#9. To: nolu chan (#8)
The part of a statute you reference [10 USC § 311(b)(2)] does nothing more than define one class of the militia designated as the "unorganized militia."
#10. To: goldilucky (#9)
[goldilucky #7] 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
[goldilucky #] But the statute I just posted clearly addresses who those unprofessional class of militias are. They are, indeed, a member of our militias who have the right to own cannnons, flamethrowers, and etc.
#11. To: nolu chan (#6)
So what protects the individual right to keep and bear arms? State constitutions.
The Federal Constitution.
#12. To: nolu chan (#10)
(Edited)
#13. To: goldilucky (#4)
No, it is your case law you posted that completely misinterprets who the lawful members of the militia are. Your case law never details those two classifications of the militia. Not once did you even make reference to Title 10 of the armed forces and the militia.
THE MILITIA - 10 U.S.C. § 311 (2012)
#14. To: misterwhite (#11)
So you're sayng the Founders trusted the newly-formed Federal government so much that they were willing to rely on them to protect the right of ordinary citizens to keep and bear arms? Hah!
As you said, the Federal government was not given the power to interfere with State militias or the arms of their members -- yet the Founders wrote the second amendment anyways.
Because they didn't trust the newly-formed Federal government, and the states refused to support the U.S. Constitution unless it contained a Bill of Rights.
#15. To: nolu chan (#8)
Citizens may possess tanks, SAMs, flame throwers and machine guns if they have a proper license to possess them.
#16. To: misterwhite (#2)
#17. To: A K A Stone (#16)
If I was your neighbor. You can bet your ass I'd have a cannon pointed at your house 247!
#18. To: A K A Stone (#16)
If I was your neighbor. You can bet your ass I'd have a cannon pointed at your house 247!
#19. To: goldilucky (#15)
In a society where only a privileged few can possess such artillery and machine guns, the rest of those citizens are not free.
#20. To: nolu chan (#14)
So you're sayng the Founders trusted the newly-formed Federal government so much that they were willing to rely on them to protect the right of ordinary citizens to keep and bear arms? Hah!
#21. To: nolu chan (#14)
The Constitution had been ratified and the new government had been formed before the amendments to become the Bill of Rights were introduced in the first House of Representatives by Representative Madison on June 8, 1789.
#22. To: nolu chan (#14)
(Edited)
As you said, the Federal government was not given the power to in interfere with State militias or the arms of their members -- yet the Founders wrote the second amendment anyways.
#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
#24. To: misterwhite (#19)
The federal government cannot prevent states from possessing such armament. You're free if you trust your state. The Founders did.
#25. To: misterwhite (#23)
I am not aware that any State Defense Force allows their personnel to own SAMs, machine guns, or flamethrowers.
#26. To: misterwhite (#22)
Because they didn't trust the newly-formed Federal government, and the states refused to support the U.S. Constitution unless it contained a Bill of Rights.
As you said, the Federal government was not given the power to interfere with State militias or the arms of their members -- yet the Founders wrote the second amendment anyways.
So you're sayng the Founders trusted the newly-formed Federal government so much that they were willing to rely on them to protect the right of ordinary citizens to keep and bear arms? Hah!
#27. To: goldilucky (#25)
What you are referring to is Title 10 Section 311 (a) in reference to the professional standing army.
#28. To: nolu chan (#26)
Neither the Founders nor Framers wrote the Second Amendment.
#29. To: goldilucky, misterwhite (#25)
That's because you are not aware that Title 10 Section 311 (b) (2) applies to the John Q. Public in general. And you should be aware of its existence because it has been in the books for a long time.
Militia. The body of citizens in a state, enrolled for discipline as a military force, but not engaged in actual service except in emergencies, as distinguished from regular troops or a standing army.
Army. Armed forces of a nation intended for military service on land.
Navy. A fleet of ships; the aggregate of vessels of war belonging to a nation. In a broader sense, and as the equivalent to "naval forces," the entire corps of officers and men enlisted in the naval service and who man the public ships of war, including in this sense, the officers and men of the Marine Corps.
#30. To: misterwhite, goldilucky (#23)
I am not aware that any State Defense Force allows their personnel to own SAMs, machine guns, or flamethrowers.
#31. To: misterwhite (#28)
(Edited)
Neither the Founders nor Framers wrote the Second Amendment.
[misterwhite #11] As you said, the Federal government was not given the power to interfere with State militias or the arms of their members -- yet the Founders wrote the second amendment anyways. Because they didn't trust the newly-formed Federal government, and the states refused to support the U.S. Constitution unless it contained a Bill of Rights.
#32. To: nolu chan (#30)
#33. To: nolu chan (#31)
yet the Founders wrote the second amendment anyways.
wrote included the second amendment anyways.
#34. To: nolu chan (#31)
and the new government was formed without a Bill of Rights in existence.
#35. To: misterwhite (#33)
Yet the Founders
wrote included the second amendment anyways. Proposal and ratification
whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience; a reverence for the characteristic rights of freemen, and a regard for public harmony, will sufficiently influence your deliberations on the question, how far the former can be impregnably fortified or the latter be safely and advantageously promoted.[41][42]
James Madison's proposed amendments to the Constitution:[49]
Federalist representatives were quick to attack Madison's proposal, fearing that any move to amend the new Constitution so soon after its implementation would create an appearance of instability in the government.[50] The House, unlike the Senate, was open to the public, and members such as Fisher Ames warned that a prolonged "dissection of the constitution" before the galleries could shake public confidence.[51] A procedural battle followed, and after initially forwarding the amendments to a select committee for revision, the House agreed to take Madison's proposal up as a full body beginning on July 21, 1789.[52][53]
#36. To: misterwhite (#34)
So? Madison promised that one would follow. They believed him and he delivered.
Proposal and ratification
#37. To: nolu chan (#35)
#38. To: misterwhite (#37)
My point was that they did not trust the federal government. The BOR is proof of that.
He wished gentlemen to consider the situation of the states—seven out of thirteen had thought the constitution very defective, yet five of them has adopted it with a perfect reliance on congress for its improvement....
the states refused to support the U.S. Constitution unless it contained a Bill of Rights.
#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.
#40. To: nolu chan (#38)
He wished gentlemen to consider the situation of the states—seven out of thirteen had thought the constitution very defective, yet five of them has adopted it with a perfect reliance on congress for its improvement....
#41. To: nolu chan (#39)
"The 2nd Amendment protects the RKBA of individuals and is not restricted to militia or any other group."
#42. To: misterwhite (#41)
We're going to have a dificult time protecting ourselves from an out-of-control Federal government with just the handguns protected by Heller.
#43. To: goldilucky (#42)
You're going to have a difficult time period with just the fact that right now there are millions of seriously armed people in this country that are absolutely not members of the organized professional standing army.
#44. To: misterwhite (#40)
As I said, they didn't like it but they trusted Madison to add a Bill of Rights.
#45. To: misterwhite (#41)
That's how the Heller court ruled, yes. They were wrong, but that's their ruling.
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."
SECOND CONGRESS. Sess. I. Ch. 33. 1792.
#46. To: nolu chan (#45)
The Supreme court determines the law. You are entitled to your opinion, but that does not change the law.
#47. To: misterwhite (#46)
The Heller Supreme court determines the law? Or the Cruikshank Supreme court? Or the Presser Supreme Court? Or the Miller Supreme court?
#48. To: nolu chan (#45)
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.
#49. To: goldilucky, Y'ALL (#42)
misterwhite (#41) ---- We're going to have a dificult time protecting ourselves from an out-of-control Federal government with just the handguns protected by Heller.
#50. To: nolu chan (#47)
I'm sorry you must make believe you do not know.
#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
#52. To: nolu chan (#44)
Madison had one vote in the House and no say in the Senate.
#53. To: misterwhite (#50)
That's how the Heller court ruled, but I don't agree. Those three cases support my view.
#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)?
#55. To: misterwhite (#48)
When you examine it (as I have) it only protected the right for those eligible to participate in a state militia.
THE MILITIA - 10 U.S.C. § 311 (2012)
#56. To: nolu chan (#54)
The 2nd Amdt protects the ancient right to keep and bear arms
#57. To: buckeroo (#56)
You have always inferred that individual rights are subject to government regulation. FUCK OFF AND DIE!
In 1795, Judge Wilson, of the Supreme Court of the United States, in delivering his charge to the grand jury, in the Virginia Circuit, went into an elaborate dissertation on the jurisdiction of the federal courts over crimes, and after enumerating such as he deemed cognizable by the circuit court, he continued as follows: "In the foregoing catalogue, murder, man slaughter, robbery, piracy, forgery, perjury, bribery and extortion, are mentioned as crimes and offences; but they are neither defined nor described. For this reason we must refer to some pre-existing law for their definition or description. To what pre-existing law should this reference be made? This is a question of immence importance and extent. It must receive an answer, but I cannot, in this address, assign my reasons for the answer which I am about to give. The reference should be made to the common law. To the common law then let us resort for the definition or description of the crimes and offences which in the laws of the United States have been named, but have not been described or defined. You will in this manner, gentlemen, be furnished with a legal standard, by the judicious application of which you may ascertain with precision the true nature and qualities of such facts and transactions as shall become the objects of your consideration and research." (3 Wilson's Works, 357, 371.) And in the debates on the judiciary in 1802, to which I have before alluded, Mr. Bayard, of Delaware, in an able speech in the House of Representatives, said on this subject, (what was not disputed, so far as facts were concerned,) that "the judges of the United States have held generally that the Constitution of the United States was predicated upon an existing common law. Of the soundness of that opinion I never had a doubt. I should scarcely go too far were I to say, that stript of the common law, there would be neither constitution nor government. The constitution is unintelligible without reference, to the common law. And were we to go into our courts of justice with the mere statutes of the United States, not a step could be taken, not even a contempt could be punished. There would be no form of pleading, no principles of evidence, no rule of property. Without this law the constitution becomes a dead letter. For ten years it has been the doctrine of our courts that the common law was in force." (Debates on the Judiciary, 1802, p. 372. And see 1 Story's Comm. on the Const., 140, 141,; § 157, 158, and note 2; 2 ibid, 262 to 267 ; § 794 to 797 ; Rawle on the Const. 258.)
Connecticut - 1776
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.
#58. To: nolu chan (#57)
#59. To: Y'ALL, are both nolu chan and misterwhite logical? I say neither... (#55)
You get your RKBA, if you are an able male, when you turn 17 years of age, and are a citizen or have made a declaration of intention to become a citizen of the United States. You lose your RKBA when you turn 45 years of age.
#60. To: buckeroo (#58)
I don't know about you but England's concept of "individual rights" was kicked out of the USA about 250 years ago.
#61. To: nolu chan (#55)
Your logic is a marvel to behold.
#62. To: nolu chan (#54)
The 2nd Amdt protects the ancient right to keep and bear arms ...
#63. To: misterwhite (#61)
The second amendment mentions a militia, refers to "the people" (not all citizens) and, like the rest of the Bill of Rights, only was a restriction on the federal government.
The English common law right spoke to, "the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
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.
That wasn't the ruling given in the Cruikshank, Presser and Miller courts.
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.
#64. To: misterwhite (#62)
The 2nd Amdt protects the ancient right to keep and bear arms ...
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.
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).
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.
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.
We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ”
“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.
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).
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.
Arms. Anything that a man wears for his defense, or takes in his hands as a weapon.
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.
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.
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.
#65. To: nolu chan (#64)
#66. To: nolu chan (#64)
Book the First - Chapter the First: Of the Absolute Rights of Individuals
#67. To: nolu chan (#64)
"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.”
#68. To: misterwhite (#65)
[misterwhite #65] Don't bother citing Heller. I told you the court got it wrong.
[misterwhite #66] I never said they didn't have the right. They do. Just that the second amendment doesn't protect it.
[misterwhite #67] Yeah. In common use by the militia. According to Miller:
2. Prefatory Clause.
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.
3. Relationship Between Prefatory Clause and Operative Clause.
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.
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
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.
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
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.
(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.
(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19-33.
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).
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).
An alternative theory regarding the relationship be-
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.
#69. To: nolu chan (#68)
and Heller (and McDonald) are current Supreme Court precedent.
#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.
#71. To: nolu chan (#68)
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.
#72. To: nolu chan (#68)
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.
#73. To: misterwrong strikes again, making a fool of himself. (#72)
The Court:-----
#74. To: misterwhite (#69)
and Heller (and McDonald) are current Supreme Court precedent.
"three very old cases that you happen to like."
#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.
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.
#76. To: misterwhite (#71)
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.
While we recognize that this case raises controversial issues which engender strong emotions, our task is to apply the law as it has been interpreted by the Supreme Court, regardless of whether that Court's interpretation comports with various personal views of what the law should be.
#77. To: misterwhite (#72)
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.
#78. To: nolu chan (#77)
Self-defense is a basic right,
#79. To: nolu chan (#77)
"... a State or municipality could and did tell citizens exactly what type or class of weapon they may carry or possess."
#80. To: misterwhite (#78)
Why the second amendment? Why can't state constitutions protect the right to individual self-defense? And isn't that preferable?
#81. To: nolu chan (#75)
You cite that as precedent for what?
#82. To: misterwhite (#79)
[misterwhite] 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?"
#83. To: misterwhite (#81)
Your right to self-defense with a firearm is protected by your state constitution.
#84. To: 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.
#85. To: nolu chan (#80)
A right protected by the 2nd Amendment cannot be dependent upon the states to choose whether or not they will recognize it.
#86. To: nolu chan (#82)
So you admit you want to return to when the state constitutionally "banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion."
#87. To: nolu chan (#83)
Look at how well that worked in Illinois. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
#88. To: misterwhite (#81)
You cite that as precedent for what?
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.
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.
#89. To: nolu chan (#84)
The RKBA is an individual right. Deal with it. Heller and McDonald.
#90. To: nolu chan (#88)
What a precedent. In the absence of evidence, the court could not say.
#91. To: nolu chan (#88)
In short, we take the District’s position to be that the Second Amendment is a dead letter.
#92. To: nolu chan, Y'ALL (#82)
misterwhite] 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?" [misterwhite] You bet!
#93. To: misterwhite (#90)
(Edited)
#94. To: misterwhite (#91)
Well, does the Distict of Columbia have a militia? If not, then the second amendment doesn't apply.
#95. To: misterwhite (#90)
Just the fact that the court connected the weapon to a state militia speaks volumes as to the meaning of the second amendment.
Cite as: 577 U. S._(2016)
Cite as: 577 U. S. __ (2016)
#96. To: misterwhite (#89)
"There are no more State militias. There is the National Guard."
State defense forces (SDF; also known as state military, state guards, or state military reserves) in the United States are military units that operate under the sole authority of a state government. State defense forces are authorized by state and federal law and are under the command of the governor of each state.
2016 US Code
Title 32 - National Guard
Chapter 1 - Organization
Sec. 109 - Maintenance of other troops Today, as defined by the Militia Act of 1903, the term "militia" is primarily used to describe two groups within the United States:
#97. To: misterwhite (#89)
"The RKBA is not a restriction on the federal government to leave the state militias (and their weapons) alone. What sort of right would that be?"
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;
"There are no more State militias. There is the National Guard."
State defense forces (SDF; also known as state military, state guards, or state military reserves) in the United States are military units that operate under the sole authority of a state government. State defense forces are authorized by state and federal law and are under the command of the governor of each state.
2016 US Code
Title 32 - National Guard
Chapter 1 - Organization
Sec. 109 - Maintenance of other troops Today, as defined by the Militia Act of 1903, the term "militia" is primarily used to describe two groups within the United States:
#98. To: misterwhite (#90)
"The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals"
People ... In a more restricted sense, and as generally used in constitutional law, the entire body of those citizens of a state or nation who are invested with the political power for political purposes.
#99. To: misterwhite (#87)
Look at how well that worked in Illinois. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
Whitey's rights have got to go!
#100. To: nolu chan (#99)
"You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns."
#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.
#102. To: nolu chan (#95)
#103. To: nolu chan (#96)
The state defense forces do not meet the definition of the organized or unorganized militia.
#104. To: nolu chan (#97)
"Where did you find the constitutional right of a State to form and maintain a militia?"
#105. To: nolu chan (#98)
When used in a constitutional sense, the citizens and the people are one and the same.
#106. To: misterwhite, surrender monkey... (#100)
#107. To: misterwhite (#100)
"You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns."
#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.
#109. To: misterwhite (#102)
The Massachusetts case came after the Heller decision, so you can expect weird, convoluted second amendment rulings from here on out.
Five justices on the The U.S. Supreme Court now get to define the word "arms" in the second amendment for everyone.
#110. To: misterwhite (#103)
The state defense forces do not meet the definition of the organized or unorganized militia.
#111. To: misterwhite (#104)
"Where did you find the constitutional right of a State to form and maintain a militia?"
https://www.law.cornell.edu/constitution/articlei#section8
The Congress shall have power ... To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
2016 US Code
Title 32 - National Guard
Chapter 1 - Organization
Sec. 109 - Maintenance of other troops 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.
#112. To: misterwhite (#105)
When used in a constitutional sense, the citizens and the people are one and the same.
As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):
#113. To: nolu chan (#112)
(Edited)
#114. To: nolu chan (#107)
The Federal Constitution prohibits infringing upon the right of the people to keep and bear arms.
#115. To: nolu chan (#108)
Heller only applied to the District of Columbia, not to the States.
#116. To: nolu chan (#109)
If you do not like the legally binding precedents of the U..S. Supreme Court,
#117. To: nolu chan (#111)
There have never been common law courts in the United States.
#118. To: misterwhite (#113)
In 1990 and in 2008, "the people" referred to a different class of citizens.
#119. To: misterwhite (#114)
The Federal Constitution prohibits infringing upon the right of the people to keep and bear arms.
#120. To: misterwhite (#115)
Heller only applied to the District of Columbia, not to the States.
"Heller did not have to twist or distort anything to make it applicable to the District."
#121. To: misterwhite (#117)
There have never been common law courts in the United States.
The language of the Constitution and of many acts of Congress could not be understood without reference to the common law.
[misterwhite #111] The second amendment says the Federal Government can't infringe on this common law.
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.
#122. To: misterwhite (#116)
If you do not like the legally binding precedents of the U..S. Supreme Court,
"The U.S. Supreme Court is empowered by the people to issue a legally binding definition."
#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."
#124. To: nolu chan (#122)
Current precedent of Heller (2008) and McDonald 2010
#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.
#126. To: misterwhite (#124)
I say if the Heller court can ignore precedent, I can ignore Heller.
#127. To: nolu chan (#126)
Under your lame, desperate grope, Roe v. Wade could never be overturned or reversed by the U.S. Supreme Court.
#128. To: nolu chan (#125)
#129. To: nolu chan (#122)
Quilici v. Morton Grove [1982]
An example of the river of shit that flowed from Cruickshank [1875], Presser [1886] and Miller [1939]
#130. To: misterwhite (#127)
Roe v Wade was decided on a "right to privacy" found in a penumbra of an emanation.
That decision can be overturned by a court finding that no such right exists or has ever existed.
#131. To: misterwhite (#129)
Quilici v. Morton Grove [1982]
#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?
[nolu chan #97] "Where did you find the constitutional right of a State to form and maintain a militia?"
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 [nolu chan #97] "Where did you find the constitutional right of a State to form and maintain a militia?"
You're blowing it out of your ass.
Article 1, Section 8:
[nolu chan #97] "Where did you find the constitutional right of a State to form and maintain a militia?"
The Congress shall have power ... To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
2016 US Code
Title 32 - National Guard
Chapter 1 - Organization
Sec. 109 - Maintenance of other troops 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.
#133. To: nolu chan (#130)
It enjoys the same precedent setting authority other SCOTUS precedents.
#134. To: nolu chan (#130)
Your version of the law is flexible to the extent that only the precedents you do not like can be overturned or reversed.
#135. To: nolu chan (#131)
When a subsequent holding overrules the holding of a prior holding, the old precedent is dead, and the new precedent is the law of the land.
#136. To: misterwhite (#134)
No. Only the "precedents" that are based on made up bullshit having nothing to do with the clear wording of the U.S. Constitution.
#137. To: nolu chan (#132)
The 2nd Amendment protects the individual right to keep and bear arms.
#138. To: nolu chan (#132)
The Second Amendment says The Federal Government shall not infringe a RIGHT OF THE PEOPLE.
#139. To: misterwhite (#138)
#140. To: A K A Stone (#139)
"the right of the people... The people are the militia."
#141. To: misterwhite (#140)
#142. To: A K A Stone (#141)
It is an individual right.
#143. To: misterwhite (#133)
If it enjoys the precedent setting authority of Cruikshank, Presser, or Heller, that ain't sayin' much, is it?
#144. To: misterwhite (#134)
Your version of the law is flexible to the extent that only the precedents you do not like can be overturned or reversed.
#145. To: misterwhite (#135)
When a subsequent holding overrules the holding of a prior holding, the old precedent is dead, and the new precedent is the law of the land.
#146. To: misterwhite (#137)
The 2nd Amendment protects the individual right to keep and bear arms.
Held:
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i. e., those in common use for lawful purposes. Pp. 619–626.
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.
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.
I replied that the right to form a militia, posse comitatus, pre-dated the U.S. Constitution. The second amendment protects, not grants, that right.
Posse comitatus is the common-law or statute law authority of a county sheriff, or other law officer, to conscript any able-bodied man to assist him in keeping the peace or to pursue and arrest a felon, similar to the concept of the "hue and cry." Originally found in English common law, it is generally obsolete; however, it survives in the United States, where it is the law enforcement equivalent of summoning the militia for military purposes.
2016 US Code
Title 18 - Crimes and Criminal Procedure
Part I - Crimes
Chapter 67 - Military and Navy
Sec. 1385 - Use of Army and Air Force as posse comitatus Army as Posse Comitatus
You cite all the legalese for forming a militia. Fine. But, third request, where's the legalese that says the federal government cannot disband the state militias entirely and switch to a standing federal military?
A well regulated militia, being necessary to the security of a free state....
The Congress shall have power...
2. Prefatory Clause.
#147. To: misterwhite (#138)
The Second Amendment says The Federal Government shall not infringe a RIGHT OF THE PEOPLE.
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.
We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment.
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.
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.
Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.
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.
#148. To: nolu chan (#143)
and the RKBA is an individual right that cannot lawfully be infringed by any state.
#149. To: nolu chan (#145)
Much of the country disagrees with Roe v. Wade,
#150. To: nolu chan (#147)
Posse Comitatus DOES NOT grant a right to form a militia.
#151. To: nolu chan (#146)
#152. To: nolu chan (#147)
(Edited)
"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."
#153. To: nolu chan (#147)
The issue of whether the 2nd Amendment applied to the states was not at issue in Heller.
#154. To: nolu chan (#147)
The 2nd Amendment says "the right of the people, to keep and bear arms, shall not be infringed."
#155. To: nolu chan (#147)
#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."
#157. To: goldilucky, Y'ALL, misterwrong (#155)
You (nolu) 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 ----
#158. To: misterwhite (#156)
(Edited)
#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.}.
#160. To: misterwhite (#159)
(Edited)
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?
#161. To: goldilucky (#160)
Back then, it was only white people who could vote, own land, and even firearms.
#162. To: misterwhite (#161)
(Edited)
#163. To: misterwhite (#148)
But that right will be defined by the U.S. Supreme Court for everyone in every state. That what you want?
#164. To: misterwhite (#149)
Much of the country disagrees with Roe v. Wade,
#165. To: misterwhite (#150)
Posse Comitatus DOES NOT grant a right to form a militia.
Uh-huh. It only allows for the formation of armed private citizens to execute the laws of the Union, suppress insurrection and repel invasion. Posse comitatus Lat. The power of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to has assistance in certain cases, as to aid him in keeping the peace, in pursuing and arresting felons, etc. Williams v. State, 253 Ark. 973, 490 S.W.2d 117, 121.
JOHN A. FOGLEMAN, Justice.
Every person commanded by a public officer to assist him in the execution of process, who, without lawful cause, refuses or neglects to obey the command, is guilty of a misdemeanor and contempt of the court from which the process issued.
The horse has yielded to the motorcar as an instrument of pursuit and flight. The ancient ordinance abides as an interpreter of present duty. Still, as in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand. The incorporeal being, the Yellow Taxi Corporation, would have been bound to respond in that spirit to the summons of the officer if it had been sitting in the driver's seat. In sending Babington upon the highway, it knew or is chargeable with knowledge that man and car alike would have to answer to the call.
The United States are a nation, whose powers of government, legislative, executive and judicial, within the sphere of action confided to it by the Constitution, are supreme and paramount. Every right, created by, arising under, or dependent upon the Constitution, may be protected and enforced by such means and in such manner as Congress, in the exercise of the correlative duty of protection, or of the legislative powers conferred upon it by the Constitution, may in its discretion deem most eligible and best adapted to attain the object. United States v. Logan, 144 U. S. 293.
It is the duty and the right, not only of every peace officer of the United States, but of every citizen, to assist in prosecuting, and in securing the punishment of, any breach of the peace of the United States. It is the right, as well as the duty, of every citizen, when called upon by the proper officer, to act as part of the posse comitatus in upholding the laws of his country. It is likewise his right and his duty to communicate to the executive officers any information which he has of the commission of an offence against those laws; and such information, given by a private citizen, is a privileged and confidential communication, for which no action of libel or slander will lie, and the disclosure of which cannot be compelled without the assent of the government. Vogel v. Gruaz, 110 U. S. 311; United States v. Moses, 4 Wash. C. C. 726; Worthington v. Scribner, 109 Mass. 487.
Sheriffs executing a warrant were empowered by the common law to enlist the aid of the able-bodied men of the community in doing so. See 1 W. Blackstone, Commentaries on the Laws of England 332 (1765); In re Quarles, 158 U. S. 532, 535 (1895). While serving as part of this “posse comitatus,” a private individual had the same authority as the sheriff, and was protected to the same extent. See, e.g., Robinson v. State, 93 Ga. 77, 18 S. E. 1018, 1019 (1893) (“A member of a posse comitatus summoned by the sheriff to aid in the execution of a warrant for a felony in the sheriff ’s hands is entitled to the same protection in the discharge of his duties as the sheriff himself ”); State v. Mooring, 115 N. C. 709, 20 S. E. 182 (1894) (considering it “well settled by the courts” that a sheriff may break open the doors of a house to execute a search warrant and that “if he act in good faith in doing so, both he and his posse comitatus will be protected”); North Carolina v. Gosnell, 74 F. 734, 738–739 (CC WDNC 1896) (“Both judicial and ministerial officers, in the execution of the duties of their office, are under the strong protection of the law; and their legally summoned assistants, for such time as in service, are officers of the law”); Reed v. Rice, 25 Ky. 44, 46–47 (App. 1829) (private individuals summoned by a constable to execute a search warrant were protected from a suit based on the invalidity of the warrant).
Use of Army and Air Force as posse comitatus
The direct participation by members of the armed forces in 'search, seizure, arrest or other similar activity' is forbidden. Instead, members of the armed forces can provide assistance to lw enforcement through such means as providing information collected in military training activities and operations, providing military equipment and facilities, providing training and advice to civilian law enforcement officials, and operatng detection and monitoring equipment, conducting aerial reconnaissance, transporting personnel and providing communications.
TITLE 32--NATIONAL DEFENSE
(a) Under the Constitution and laws of the United States, the protection of life and property and the maintenance of public order are primarily the responsibilities of State and local governments, which have the necessary authority to enforce the laws. The Federal Government may assume this responsibility and this authority only in certain limited instances.
#166. To: misterwhite (#151)
Fourth request, what prevents the federal government from disbanding ALL state guard units and going with a federal standing military?
#167. To: misterwhite (#152)
"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."
#168. To: misterwhite (#153)
The issue of whether the 2nd Amendment applied to the states was not at issue in Heller.
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.
#169. To: misterwhite (#154)
The 2nd Amendment says "the right of the people, to keep and bear arms, shall not be infringed."
#170. To: goldilucky (#155)
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.
[The] blockbuster opinion in District of Columbia v. Heller (2008) held that the Second Amendment guarantees the right of individuals to possess firearms for self-defense, hunting, and militia service. The decision invalidated D.C.'s handgun ban. The 5-4 opinion, authored by Justice Antonin Scalia, held that "the right of the people to keep and bar arms" means what it literally says, and that this liberty to have arms for protection is a natural right recognized in the English tradition. It was considered fundamental by our Founders and was consistently regarded as an individual right in the nineteenth century.
Finally, in McDonald v. Chicago (20I0), the U.S. Supreme Court, in a 5-4 decision, ruled that the Second Amendment applies to the states through the Fourteenth Amendment because "the right to keep and bear arms is fundamental to our scheme of ordered liberty," and is "deeply rooted in this Nation's history and tradition...." The opinion of the Court — written by Justice Alito, representing a plurality of four Justices — held that the right was incorporated through the Due Process Clause, while Justice Thomas would have incorporated it through the Privileges-or-Immunities Clause.
Similarly, Heller held that the Second Amendment protects possession of the types of arms commonly possessed by law-abiding persons for lawful purposes such as self-defense and hunting, including handguns and long guns, i.e., rifles and shotguns.
#171. To: nolu chan (#169)
#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.
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.
#173. To: misterwhite (#171)
My point was, the first part was placed there for a reason. If the second amendment was meant to protect the RKBA of all citizens (as you claim) there would have been no reason whatsoever to include the first part.
#174. To: nolu chan (#172)
"The people" and "citizens" were synonymous terms.
#175. To: nolu chan (#173)
It is noted that you disagree with the majority opinion of the U.S. Supreme Court.
#176. To: misterwhite (#174)
If what you say is true, then all citizens could vote -- which was not the case back then.
MADISON, WIS., August 12, 1862.
WAR DEPARTMENT,
As you proved with your court case. Women citizens and children citizens and non-land- owning citizens (in some states) could not vote.
1. The word "citizen" is often used to convey the idea of membership in a nation.
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?
#177. To: misterwhite (#175)
As I disagree with the majority opinion of the U.S. Supreme Court on Roe v Wade, ... [et al.]
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
#178. To: nolu chan (#177)
The difference being that I do not project my personal opinion as being the law of the land.
#179. To: nolu chan (#176)
half the able-bodied men in the state of Wisconsin in 1862 were foreigners,
#180. To: misterwhite (#178)
The legal fact of life being that murder is legal if....
I am not aware that I ever denied nor disputed the fact that the rulings were the law of the land. Merely that I disagreed with the rulings.
[misterwhite #46]
#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.]
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.
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.
#182. To: nolu chan (#181)
Half the able bodied men were aliens who had the right to vote.
#183. To: nolu chan (#181)
Voting rights did not have shit to do with defining who were the people.
#184. To: nolu chan (#181)
(Edited)
If your premise were true, RKBA did not apply to anyone over 45.
#185. To: nolu chan (#181)
The people were the men and women who were citizens.
#186. To: misterwhite (#182)
Half the able bodied men were aliens who had the right to vote.
#187. To: misterwhite (#183)
Voting rights did not have shit to do with defining who were the people.
#188. To: misterwhite (#184)
The second amendment protected the right of the states to form and maintain a militia consisting of armed militiamen.
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.
According to the Militia Act of 1792, white male citizens between the ages of 18 and 45 were conscripted into a local militia company.
#189. To: misterwhite (#185)
The people were the men and women who were citizens.
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.”
#190. To: nolu chan (#186)
The fact that they intended to become citizens acts as proof that they were aliens and not citizens.
#191. To: nolu chan (#187)
Alien men could vote, while natural born citizen women could not.
#192. To: misterwhite (#190)
The fact that they intended to become citizens acts as proof that they were aliens and not citizens.
I don't think I said that. I did say that those who voted were citizens (or about to be).
But each state defined who could vote and I can't believe they would allow non-citizens to take over.
ARTICLE III.
The issue of voting rights in the United States, specifically the enfranchisement and disenfranchisement of different groups, has been contested throughout United States history.
That all inhabitants of this Colony, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote for Representatives in Council and Assembly; and also for all other public officers, that shall be elected by the people of the county at large.
#193. To: nolu chan (#192)
Cite an example of an alien, or anyone, who intends to become a citizen, who is thereby magically transformed into a citizen without going through the naturalization process.
#194. To: nolu chan (#188)
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.
#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.
#196. To: misterwhite (#190)
ONE state made ONE exception that allowed male non-citizens to vote PROVIDED THAT they were on a path to citizenship.
All elections ought to be free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.
States allow you to drive on temporary tags. Are you going to claim that means nobody needs license plates to drive around?
I'll say it again -- in 1790 when the second amendment was ratified, only the rich white guys voted. Adult, white, male citizens who owned property. They were "the people" described in Article I, Section 2. There were exceptions, of course. But they were exceptions.
My point being, they were also "the people" protected by the second amendment. NOT everyone and not even every citizen.
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):
#197. To: misterwhite (#193)
I'm not claiming that. I'm saying that one state made an exception to allow a certain group of non-citizens to vote.
#198. To: misterwhite (#194)
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.
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.
#199. To: misterwhite (#195)
The second amendment protect the arms of militia members, no matter their age.
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):
#200. To: nolu chan (#196)
The New Jersey constitution of 1776, as amended September 20, 1777, allowed "all inhabitants of this State, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote...."
#201. To: nolu chan (#198)
Americans have the right to keep and bear arms before, during, and after any connection to any militia. They do not obtain the right by belonging to a militia, and they do not lose it by leaving a militia.
#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.
#203. To: nolu chan (#199)
"the people" … 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.”
#204. To: nolu chan (#199)
The Second Amendment protects the INDIVIDUAL right to keep and bear arms OF ALL AMERICANS.
#205. To: misterwhite (#200)
States allow you to drive on temporary tags. Are you going to claim that means nobody needs license plates to drive around?
It's called an analogy. License plates are required, but states will make an exception and allow you to drive with temporary tags.
The New Jersey constitution of 1776, as amended September 20, 1777, allowed "all inhabitants of this State, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote...."
All elections ought to be free, and every inhabitant of the state having the proper qualifications, has equal right to elect, and be elected to office.
All elections ought to be free, and every inhabitant of the state having the proper qualifications, has equal right to elect, and be elected to office.
#206. To: misterwhite (#201)
We're not discussing the right. We're discussing the protection of that right.
#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.
#208. To: misterwhite (#203)
Correct. And in 1790, "the people" were the white adult male citizens who owned property. And white adult male citizens were in the State Militia. And the RKBA of "the people" was protected by the second amendment. Because they were in the militia.
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):
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.
#209. To: misterwhite (#204)
The Second Amendment protects the INDIVIDUAL right to keep and bear arms OF ALL AMERICANS.
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):
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.
#210. To: nolu chan (#209)
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.
#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.
#212. To: misterwhite (#210)
And in 1790, that "political community" excluded women, children, non-landowners, non-citizens, slaves. The point being, in 1790, "the people" referred to an elite subset of the population -- the rich, white, land-owning, enfranchised, adult males. Not everyone.
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):
#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.
#214. To: nolu chan (#212)
“the people,” the term unambiguously refers to all members of the political community
#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.
#216. To: nolu chan (#213)
(Edited)
#217. To: misterwhite (#214)
For one, we know they were enfranchised because Article I, Section 2 said "the people" could vote.
Think about that then ask yourself, who was in the militia?
#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.
Mr. Heller can't have a military weapon. What made you think he did?
#219. To: misterwhite (#216)
According to the Heller court:
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).
Meaning if a weapon is not "in common use" it may be banned. Say goodbye to "assault-style" weapons. Maybe not with this court, but certainly with some future liberal court.
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.
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).
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.
You can't have ordinary citizens with tanks, SAMs, flame throwers and machine guns.
#220. To: nolu chan, Y'ALL (#219)
what protects the individual right to keep and bear arms? State constitutions.--- misterwrong
#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.
#222. To: nolu chan (#219)
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
#223. To: nolu chan (#219)
The Miller holding has nothing to do with a 2nd Amendment individual right to keep and bear arms depending on some imaginary connection to being a member of the militia.
#224. To: nolu chan (#219)
(Edited)
The militia cited in the 2nd Amendment is the UNORGANIZED MILITIA.
#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.
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.
(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)).
(b) Machinegun
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.
7 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.
EFFECTIVE DATE OF 1986 AMENDMENT
THE MILITIA - 10 U.S.C. § 311 (2012)
#226. To: misterwhite (#222)
The court is simply making shit up.
The second amendment doesn't protect arms for ordinary citizens. It protects state militias and the arms of state militia members from federal infringement.
#227. To: misterwhite (#223)
The Miller holding has nothing to do with a 2nd Amendment individual right to keep and bear arms depending on some imaginary connection to being a member of the militia.
Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.
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.
#228. To: misterwhite (#224)
The militia cited in the 2nd Amendment is the UNORGANIZED MILITIA.
§311. Militia: composition and classes
2. Prefatory Clause.
#229. To: misterwhite (#224)
All other arms for all other individuals were protected by state constitutions.
#230. To: nolu chan (#225)
Federalized troops are NOT the militia cited in the 2nd Amendment.
#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?
#232. To: nolu chan (#228)
The United States militia.
#233. To: nolu chan (#229)
What if a state did not have a constitution for 50 years or so? How did THAT work?
#234. To: nolu chan (#227)
As Millier was not in a militia, why did that alone not settle the issue?
#235. To: misterwhite (#230)
Federalized troops are NOT the militia cited in the 2nd Amendment. [The[y] are the ORGANIZED militia, as opposed to the UNORGANIZED militia.]
... see article 1 st sect. 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 organising, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the united states." By this clause the militia is divided into two classes, viz. active and inactive; the active militia will be those employed "in the service of the united states," ....
January 21,1903.
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States....
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.”
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the Mad Hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.
#236. To: misterwhite (#231)
It was "in common use" by the military. So it should be protected under the second amendment.
whatever makes you think that a machinegun is in common use for lawful purposes like self-defense?
#237. To: misterwhite (#232)
In 1790, when the second amendment was ratified....
...there was no such thing as "The United States Militia".
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States....
No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
SECOND CONGRESS. Sess. I. Ch. 33. 1792.
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.”
#238. To: misterwhite (#233)
What if a state did not have a constitution for 50 years or so? How did THAT work?
#239. To: misterwhite (#234)
Because the Miller case was about the weapon, not whether or not he was in the militia.
As it was, the court didn't know if a sawed-off, double-barreled shotgun had military use, so they couldn't rule on it.
The judgment in the case upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled 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).
Question
c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment.
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.
Let's say Miller and his friend transported a machine gun -- an obvious military weapon -- across state lines in violation of the 1934 National Firearms Act. As they did with the shotgun, let's say they challenged their arrest based on their claim that the second amendment protected military weapons. What would the U.S. Supreme Court have said?
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
#240. To: nolu chan (#235)
Federalized troops are NOT the militia cited in the 2nd Amendment. [
#241. To: nolu chan (#235)
By this clause the militia is divided into two classes, viz. active and inactive; the active militia will be those employed "in the service of the united states," ....
#242. To: nolu chan (#235)
As we will describe below, the “militia” in colonial America consisted of a subset of “the people”
#243. To: nolu chan (#235)
Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.
#244. To: nolu chan (#236)
"A machinegun cannot be in common use by the people.'
#245. To: nolu chan (#238)
(Edited)
The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms.
#246. To: nolu chan (#239)
The Miller case decided that the type of weapon was not protected by the Second Amendment.
#247. To: nolu chan (#239)
(Edited)
Citizens called to service were not expected to show up with machineguns.
#248. To: nolu chan (#239)
"Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument."
#249. To: nolu chan (#238)
The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms.
#250. To: misterwhite (#240)
[nolu chan #225] Federalized troops are NOT the militia cited in the 2nd Amendment. The[y] are the ORGANIZED militia, as opposed to the UNORGANIZED militia.
Today, as defined by the Militia Act of 1903, the term "militia" is primarily used to describe two groups within the United States:
The state National Guard is divided up into units stationed in each of the 50 states and the U.S. territories and operates under their respective state governor or territorial government. The National Guard may be called up for active duty by the state governors or territorial commanding generals to help respond to domestic emergencies and disasters, such as those caused by hurricanes, floods, and earthquakes.
#235. To: misterwhite (#230)
Federalized troops are NOT the militia cited in the 2nd Amendment. [The[y] are the ORGANIZED militia, as opposed to the UNORGANIZED militia.]
Aristocrotis, April 15, 1788, Pamphlet: The Government of Nature Delineated or An Exact Picture of the New Federal Constitution, Carlisle, Pennsylvania.
... see article 1 st sect. 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 organising, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the united states." By this clause the militia is divided into two classes, viz. active and inactive; the active militia will be those employed "in the service of the united states," ....
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.”
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the Mad Hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.
Petitioners take a seemingly narrower view of the militia, stating that “[m]ilitias are the state-and congressionallyregulated 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.
#251. To: misterwhite (#241)
[nolu chan #235] [quoting article from 1788] By this clause the militia is divided into two classes, viz. active and inactive; the active militia will be those employed "in the service of the united states," ....
[misterwhite #241] So what? That says nothing. That's like saying we have an "active" National Guard (those deployed overseas) and an "inactive" National Guard (those at home). OK. So? You have a point?
#252. To: misterwhite (#242)
The Heller court is implying that all U.S. Citizens were "the people". Wrong.
As proof, only "the people" could vote. That's not everyone.
#253. To: misterwhite (#243)
Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.
#254. To: 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.
#255. To: misterwhite (#245)
The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms.
#256. To: misterwhite (#246)
The Miller case decided that the type of weapon was not protected by the Second Amendment.
The judgment in the case upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled 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).
And whereas, in the present term if October, in the year of our Lord one thousand nine hundred and thirty-eight, the said cause came on to be heard before the said SUPREME COURT, on the said transcript of record, and was argued by counsel:
#257. To: misterwhite (#247)
Citizens called to service were not expected to show up with machineguns.
In a modern state militia, machine guns and other heavy weapons would more than likely be stored in the state armory.
#258. To: misterwhite (#248)
"Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument."
The Supreme Court reversed the district court, holding that the Second Amendment does not guarantee an individual the right to keep and bear a sawed-off double-barrel shotgun. Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.
About Oyez
The judgment in the case upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled 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).
#259. To: misterwhite (#249)
The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms.
#260. To: nolu chan (#259)
(Edited)
The 2nd Amendment, and the rest of the Constitution, is an act of THE PEOPLE.
#261. To: nolu chan (#258)
Do write them a sternly worded letter informing them they do not know what they are talking about.
#262. To: nolu chan (#257)
That some may have showed up empty handed changed nothing.
#263. To: nolu chan (#257)
Were there one, and had they full-auto weapons, such weapons would still be illegal for the UNORGANIZED militia (civilians). Such weapons could only be given to serving members of the ORGANIZED militia, those dressed in war suits, for use on duty only.
#264. To: nolu chan (#256)
they REVERSED the District court and remanded. They did not ask for clarification of jack shit.
#265. To: misterwhite (#260)
[misterwhite #260] My state ptotects my rights.
I. Supremacy Clause.
#266. To: misterwhite (#264)
[misterwhite #264] Remand -- return a case to a lower court for reconsideration.
Reverse. To reverse a judgment means to overthrow it by contrary decision, make it void, undo or annul it for error.
Reversal. as used in opinions, judgments, and mandates, the setting aside, annulling, vacating, or changing to the contrary the decision of a lower court or other body. [italics added]
Remand. to send back, as for further deliberation; to send back a matter to the tribunal [or body] from which it was appealed or move. When a judgment is reversed, the appellate court usually remands the matter for a new trial to be carried out consistent with the principles announced in its opinion. Often, the court will simply direct that "the matter remanded [to the lower court] for further proceedings not inconsistent with this opinion."
[misterwhite #264] You're just making things up. If that were the case, the U.S. Supreme Court would have simply reversed the lower court ruling saying that the weapon didn't qualify for second amendment protection. Period.
In discussing the limitations the government can place on an individual's right to possess firearms, the Court noted that Miller does not protect "weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Heller, 128 S.Ct. at 2815-16.
#267. To: misterwhite (#261)
"The U.S. Supreme Court REVERSED the judgment of the District court, holding that a sawed-off shotgun was not the type of weapon eligible for Second Amendment protection, and reinstated the charges." [Verbatim quote from Oyez https://www.oyez.org/cases/1900-1940/307us174]
"There is no modern state militia."
Were there one, and had they full-auto weapons, such weapons would still be illegal for the UNORGANIZED militia (civilians). Such weapons could only be given to serving members of the ORGANIZED militia, those dressed in war suits, for use on duty only.
Research Director, Independence Institute. Associate Policy Analyst, Cato Institute. Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law.
Richard A. Hamblen • 8 years ago
HAMBLEN v. UNITED STATES
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.
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 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. . . .
#268. To: nolu chan (#267)
"chose not to introduce any evidence such as the purchase of short barreled shotguns by the US Army in the World War to show that such a weapon is part of the ordinary military equipment"
#269. To: nolu chan (#265)
If the NFA is otherwise consistent with the U.S. Constitution and is a valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary."
#270. To: nolu chan (#266)
Miller found that there is no 2nd Amendment right to keep and bear weapons not typically possessed by law-abiding citizens for lawful purposes, such as sawed-off shotguns
law-abiding citizens for lawful purposes the militia, such as sawed-off shotguns, unless it could be shown that sawed-off shotguns were useful to a militia.
#271. To: nolu chan (#266)
The U.S. Supreme Court reversed the lower court ruling and eliminated the 2nd Amendment defense accepted by the lower court, reversed its judgment, reinstated the charges, and issued a mandate ordering the lower court to conduct forther proceedings not inconsistent with the Supreme Court opinion.
#272. To: misterwhite (#270)
[misterwhite #268] Yeah, because the idiot appealed based on his second amendment collective right to keep and bear arms (ie., had some reasonable relationship to the preservation or efficiency of a well-regulated militia). Which, of course, he couldn't demonstrate.
by law-abiding citizens for lawful purposes the militia, such as sawed-off shotguns, unless it could be shown that sawed-off shotguns were useful to a militia. U.S. v. FINCHER
#273. To: misterwhite (#269)
[nolu chan #265] If the NFA is otherwise consistent with the U.S. Constitution and is a valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary."
(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
Section 922 of Title 18, United States Code, is amended—
[...]
There are 186,619 transferable machine guns in the USA, and this number is as fixed as fixed gets. The 1986 FOPA banned the new production of fully automatic firearms for civilians, and that’s that. What is perceived as a loophole by addressing a technicality, will not undo this act of congress.
#274. To: 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.
Relying on United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), Hale argues that the Second Amendment bars the federal government from regulating the particular weapons seized because the weapons are susceptible to military use and are therefore, by definition, related to the existence of "a well regulated militia".
United States of America, Plaintiff-appellee,
v.
Wilbur Hale, Defendant-appellant
Decided Oct. 20, 1992.
Rehearing Denied Nov. 20, 1992 In the absence of any evidence tending to show that the 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.
To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
#275. To: nolu chan (#272)
#276. To: nolu chan (#273)
The 1986 FOPA banned the new production of fully automatic firearms for civilians, and that’s that.
#277. To: nolu chan (#274)
#278. To: misterwhite (#275)
[misterwhite #275] Fincher's "militia" did not meet the criteria of a "well-regulated state militia with officers appointed by the state". Horrible case example.
Hollis Wayne Fincher was convicted by a jury on one count of possession of a machine gun, in violation of 18 U.S.C. §§ 922(o), 924(a)(2), and one count of possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Fincher does not dispute that he possessed these guns or that he did so without a license. He appeals his conviction, however, arguing that he has the right to possess these weapons under the Second Amendment of the United States Constitution because his possession has some reasonable relationship to the maintenance of a well regulated militia.
#279. To: misterwhite (#276)
[The Firearm Blog] The 1986 FOPA banned the new production of fully automatic firearms for civilians, and that’s that.
#280. To: misterwhite (#277)
[misterwhite #277] The entity to challenge a second amendment violation should be the state itself. And I bet they'd win.
[misterwhite #277] Local police departments have machine guns. Why not local militiamen?
[misterwhite #277] Police machine guns are kept at the police department. Militiamen machine guns can be kept at an armory.
Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test. Oakes, 564 F.2d at 387. Membership in a hypothetical or "sedentary" militia is likewise insufficient. See Warin, 530 F.2d 103.
#281. To: 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.
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.
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.
U.S. v. GILBERT
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.
#282. To: nolu chan (#278)
Only enlistment or commission in the National Guard would meet the requisite militia definition.
#283. To: nolu chan (#279)
Ordinary citizens are not expected to gather and form a militia with machine guns.
#284. To: nolu chan (#280)
This merely recognizes the supremacy of federal power in the military affairs area.
#285. To: nolu chan (#281)
It is not to protect the right of the active duty organized militia to carry machineguns while on duty.
#286. To: misterwhite (#282)
Again, we have to go back. What was the original intent of the second amendment?
CHAP. 196.—An Act To promote the efficiency of the militia, and for other purposes.
SEC. 111. NATIONAL GUARD WHEN DRAFTED INTO FEDERAL SERVICE.—When Congress shall have authorized the use of the armed forces of the United States, for any purpose requiring the use of troops in excess of those of the Regular Army, the President may, under such regulations, including such physical examination, as he may prescribe, draft into the military service of the United States, to serve therein for the period of the war unless sooner discharged, any or all members of the National Guard and of the National Guard Reserve. All persons so drafted shall, from the date of their draft, stand discharged from the militia, and shall from said date be subject to such laws and regulations for the government of the Army of the United States as may be applicable to members of the Volunteer Army, and shall be embodied in organizations corresponding as far as practicable to those of the Regular Army or shall be otherwise assigned as the President may direct. The commissioned officers of said organizations shall be appointed from among the members thereof, officers with rank not above that of colonel to be appointed by the President alone, and all, other officers to be appointed by the President by and with the advice and consent of the Senate. Officers and enlisted men in the service of the United States under the terms of this section shall have the same pay and allowances as officers and enlisted men of the Regular Army of the same grades and the same prior service.
#287. To: misterwhite (#283)
[nolu chan #279] Ordinary citizens are not expected to gather and form a militia with machine guns.
#288. To: misterwhite (#284)
[nolu chan #280] This merely recognizes the supremacy of federal power in the military affairs area.
The Governor argues that this interpretation of the Militia Clause has the practical effect of nullifying an important State power that is expressly reserved in the Constitution. We disagree. It merely recognizes the supremacy of federal power in the area of military affairs.
You're not only misreading the second amendment. You're ignoring the intent.
#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.
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.
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.
#290. To: nolu chan, undercover Deep State SCOTUS Tyrant, Walter Mitty (#289)
This Constitution, and the laws of the United States which shall be made in pursuance thereof;
#291. To: nolu chan (#288)
It is taken from a unanimous opinion of the U.S. Supreme Court.
#292. To: nolu chan (#289)
It is not to protect the right of the active duty organized militia to carry machineguns while on duty.
#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.
#294. To: nolu chan (#289)
Yeah, you should stick with blaming the transition from State Militia to the National Guard (in 1903) on the stupid Heller decision in 2008.
#295. To: hondo68 (#290)
You [nc - misterwhite] 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.
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.
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.
This Constitution, and the laws of the United States which shall be made in pursuance thereof;
Supreme Court decisions are just to be dismissed as stupid
Damn few are in compliance with the Constitution, so you're full of it!
#296. To: misterwhite (#291)
Perpich v. DOD, 496 U.S. 334 (1990) was a ruling limited to the federalization of state militias. I agree with the ruling.
[nolu chan #280] This merely recognizes the supremacy of federal power in the military affairs area.
Had you been honest with your quote, rather than trying to pull a "Gotcha", I wouldn't have to waste my time with you.
#297. To: misterwhite (#292)
It is not to protect the right of the active duty organized militia to carry machineguns while on duty.
The 2nd Amendment to the U.S. Constitution still protects the individual right of the people to keep and bear arms.
#298. To: misterwhite (#293)
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.
"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)."
I. Supremacy Clause.
SLAVES.
SECTION 26
#299. To: misterwhite (#294)
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.
The Heller court tried to muddy the waters with their "State Militias no longer exist" bullshit argument.
The real problem with Heller was this fact -- he lived in the District of Columbia, not in one of the 50 states. As such, his RKBA had no constitutional protection.
The Heller court should have simply ruled that way. Tought shit, Heller. Move. But they saw this as an opportunity for the federal government to take over gun rights, and they wrapped their decision in the "individal rights" flag.
#300. To: misterwhite (#221)
[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.
[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.
[misterwhite #230] Infringing on the right of an individual in a state militia to possess a machine gun interferes with the effectiveness of the state militia and is therefore unconstitutional. Now, the state militia will probably insist that weapon remain in the state armory, but that's their decision to make, not the federal government's.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
Plaintiff,
v.
SHANE COX and JEREMY KETTLER,
Defendants.
J. THOMAS MARTEN, JUDGE
#301. To: nolu chan, Molon Labe (#295)
(Edited)
How do states protect individual the 2nd Amendment right to keep and bear arms through the state constitution?
#302. To: nolu chan (#296)
The quote was perfectly honest and in context.
#303. To: hondo68 (#301)
How do states protect [the individual] 2nd Amendment right to keep and bear arms through the state constitution?
Amendment V
Information. An accusation exhibited against a person for some criminal offense, without an indictment. An accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath. A written accusation made by a public prosecutor, without the intervention of a grand jury.
You & teh Donald ain't taking our guns, so F' off!
#304. To: nolu chan (#297)
On duty, they are provided with whatever arms are deemed necessary, to include new M-16 machineguns. On duty members of the organized militia are enlisted or commissioned in the United States National Guard.
#305. To: nolu chan (#298)
(Edited)
That does not permit a citizen in Alabama to possess an un unlicensed machinegun.
#306. To: nolu chan (#299)
"It was applicable in the District of Columbia because it was a Federal district."
#307. To: nolu chan (#300)
"... and if it does not infringe on rights granted in the U.S. Constitution, then it is the "supreme Law of the Land," regardless of what SAPA says."
#308. To: misterwhite (#302)
Your quote made no reference to federalizing State Militias and sending them overseas.
The former state militias are now organized as the National Guard. Joining the State National Guard means also enlisting or being commissioned in the U.S. National Guard. When federalized, the members of a state National Guard are considered discharged from that organization.
Notwithstanding the brief periods of federal service, the members of the state Guard unit continue to satisfy this description of a militia. In a sense, all of them now must keep three hats in their closets -- a civilian hat, a state militia hat, and an army hat -- only one of which is worn at any particular time. When the state militia hat is being worn, the "drilling and other exercises" referred to by the Illinois Supreme Court are performed pursuant to "the Authority of training the Militia according to the discipline prescribed by Congress," but, when that hat is replaced by the federal hat, the Militia Clause is no longer applicable.
[Footnote 24]
It was a generalized statement, out of context, with no reference to the case itself.
#309. To: nolu chan (#308)
It was all firmly based on Perpych,
#310. To: misterwhite (#304)
You're talking about federalized troops.
[misterwhite #292] Machine guns? We're discussing machine guns. Who or what protects the right of the active duty organized militia to carry machineguns while on duty?
(b) The classes of the militia are—
What if the Governor of the state deploys his armed National Guard to keep the peace during a riot? Who or what protects the right of his National Guard to keep and bear machine guns?
#311. To: misterwhite (#305)
That does not permit a citizen in Alabama to possess an unlicensed machinegun.
more and more states are starting to violate federal marijuana laws, so I don't see why they can't start violating federal gun laws
#312. To: misterwhite (#306)
It [the 2nd Amdt.] was applicable in the District of Columbia to members of a militia,
which Mr. Heller was not.
He could not seek protection under the second amendment because it did not apply to private citizens who weren't part of a state militia.
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.”
That's the way the Heller court should have ruled.
#313. To: misterwhite (#307)
"... and if it does not infringe on rights granted in the U.S. Constitution, then it is the "supreme Law of the Land," regardless of what SAPA says."
#314. To: misterwhite (#309)
It was all firmly based on Perpych,
The entity to challenge a second amendment violation should be the state itself. And I bet they'd win.
Militiamen. Comprehends every temoorary citizen-soldier who in time of war or emergency enters active military service of the country.
#315. To: misterwhite (#282)
[misterwhite #241] That's like saying we have an "active" National Guard (those deployed overseas) and an "inactive" National Guard (those at home).
[nolu chan #278] Only enlistment or commission in the National Guard would meet the requisite militia definition.
U.S. Supreme Court
#316. To: nolu chan (#287)
(Edited)
The Congress was empowered by the Constitution "to provide for organizing, arming, and disciplining, the militia...."
#317. To: nolu chan (#310)
Look at your question in your #292. It refers only to active duty organized militia.
Nobody and nothing."
#318. To: nolu chan (#311)
What your are saying is that the 2nd Amendment protects an individual right to keep and bear arms, subject to federal laws and regulations
#319. To: nolu chan (#313)
The judge's word choice was flawed. His legal reasoning ...
#320. To: misterwhite (#318)
No. I said state constitutions protect an individual right to keep and bear arms, subject to constitutional federal laws (as per the Supremacy Clause).
#321. To: misterwhite (#316)
And yet the Militia Act of 1792 reads (in part):
If machine guns had been invented, the Militia Act would have required an enrolled citizen to show up with that.
#322. To: misterwhite (#317)
"Who or what protects the right of his National Guard to keep and bear machine guns?
SEC. 82. ARMAMENT, EQUIPMENT, AND UNIFORM OF THE NATIONAL GUARD —The National Guard of the United States shall, as far as practicable, be uniformed, armed, and equipped with the same type of uniforms, arms, and equipments as are or shall be provided for the Regular Army.
#323. To: 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.
#324. To: misterwhite (#319)
The judge's word choice was flawed as was his legal reasoning.
#325. To: 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).
#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.
United States v. White, 593 F.3d 1199 (11th Cir., 2010)
v.
Ludivic WHITE, Jr., Defendant-Appellant.
#327. To: nolu chan, Y'ALL (#323)
nolu chan (#311 ----- What your are saying is that the 2nd Amendment protects an individual right to keep and bear arms, subject to federal laws and regulations
#328. To: nolu chan (#326)
MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 7
#329. To: misterwhite (#328)
[misterwhite #328] I said federal law trumps state law
[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 #328] though it looks like states may be able to ignore the Supremacy Clause if they want to.
LUDIVIC WHITE
Register Number: 10224-003
Age: 41
Race: Black
Sex: Male
Released On: 03/27/2014
#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.
#331. To: nolu chan (#329)
Can you give a single example of a state ignoring Federal gun laws and openly permitting the sale and/or possession of illegal weapons?
#332. To: nolu chan (#329)
How does a state constitution protect against a federal prosecution?
How does a state constitution protect against a federal regulatory gun law, such as the Lautenberg Amendment?
#333. To: nolu chan (#330)
Are you actually an anti-gun nut who believes a State can ban ANY gun?
#334. To: misterwrong strikes again, making a fool of himself. (#333)
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?
#335. To: misterwhite (#331)
Can you give a single example of a state ignoring Federal gun laws and openly permitting the sale and/or possession of illegal weapons?
#336. To: misterwhite (#332)
How does a state constitution protect against a federal prosecution?
"There is some precedent for ignoring a substance ban."
"If the states can ignore the Supremacy Clause of the Constitution if they want to, may they ignore any other clauses or provisions if they want to?"
#337. To: misterwhite (#333)
Are you actually an anti-gun nut who believes a State can ban ANY gun?
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.
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.
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!
Don't bother citing Heller. I told you the court got it wrong.
Book the First - Chapter the First: Of the Absolute Rights of Individuals
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?"
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.
I'm saying the right is NOT protected by the second amendment and IS protected by state constitutions.
You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns."
I said state constitutions protect an individual right to keep and bear arms, subject to constitutional federal laws (as per the Supremacy Clause).
I said federal law trumps state law, though 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.
#338. To: nolu chan (#335)
The difference is in whether the Federal government wants to spend the effort and money to rigorously enforce marijuana laws.
#339. To: nolu chan (#336)
How do state constitutions perform this miracle of restraining an infringing federal government?
#340. To: nolu chan (#337)
You have a strange way of expressing your "pro-constitution" views.
#341. To: nolu chan (#337)
The fundamental individual right of the people belongs to the people, not the militia.
#342. To: misterwhite (#338)
Constitutionality is defined as whether or not the Federal government wants to spend the effort and money to rigorously enforce the laws?
The federal government only needs to prosecute the legislators of one state for sedition and the rest will fall in line.
#343. To: misterwhite (#339)
Where does the federal government get the power to infringe the gun rights of citizens? The answer is, they don't have that power.
Meaning, the states never thought they'd have to deal with it.
The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.
#344. To: misterwhite (#340)
My "views" are consistent with the language and the intent of the constitutions I cited.
"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."
The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States.
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 599; see also id., at 628 (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at 628–629 (some internal quotation marks omitted); see also id., at 628 (noting that handguns are “overwhelmingly chosen by American society for [the] lawful purpose” of self-defense); id., at 629 (“[T]he American people have considered the handgun to be the quintessential self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at 630.
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.”
#345. To: misterwhite (#341)
The fundamental individual right of the people belongs to the people, not the militia.
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.”
#346. To: nolu chan (#342)
Murder is a crime and mopery is a crime.
#347. To: nolu chan (#342)
"Sedition is illegal action tending to cause the disruption and overthrow of the government."
#348. To: nolu chan (#343)
You claim that state constitutions protect the fundamental individual right to keep and bear arms.
the fundamental an individual right to keep and bear arms. The individual right to keep and bear arms is not a fundamental right.
#349. To: nolu chan (#343)
Now you claim the states never thought they would have to deal with the matter.
#350. To: nolu chan (#344)
How many currently effective constitutions did you cite?
#351. To: nolu chan (#345)
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.
#352. To: nolu chan (#345)
"Self-defense was the central component of the right itself."
#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."
#354. To: tpaine (#353)
#355. To: misterwhite (#346)
Murder and mopery are on opposite ends of the crime spectrum.
I'm talking about a state legalizing a recreational drug in violation of federal law vs. a state legalizing the ownership of a weapon banned under federal law.
I don't see a constitutional difference. They both violate the Supremacy Clause.
#356. To: misterwhite (#347)
Sedition is overt conduct … that tends toward insurrection against the established order (and) often includes subversion of a constitution and incitement of discontent towards, or resistance against lawful authority.
2016 US Code
Title 18 - Crimes and Criminal Procedure
Part I - Crimes
Chapter 115 - Treason, Sedition, and Subversive Activities 2016 US Code
Title 18 - Crimes and Criminal Procedure
Part I - Crimes
Chapter 115 - Treason, Sedition, and Subversive Activities Title 18 - Crimes and Criminal Procedure
Part I - Crimes
Chapter 115 - Treason, Sedition, and Subversive Activities
#357. To: misterwhite (#348)
I claim that state constitutions protect
the fundamental an individual right to keep and bear arms. The individual right to keep and bear arms is not a fundamental right. 1. Operative Clause.
“ ‘[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.”
The Court eventually moved in the direction advocated by Justice Black, by adopting a theory of selective incorporation by which the Due Process Clause incorporates particular rights contained in the first eight Amendments. See, e. g., Gideon v. Wainwright, 372 U. S. 335, 341. These decisions abandoned three of the characteristics of the earlier period. The Court clarified that the governing standard is whether a particular Bill of Rights protection is fundamental to our Nation’s particular scheme of ordered liberty and system of justice. Duncan, supra, at 149, n. 14. The Court eventually held that almost all of the Bill of Rights’ guarantees met the requirements for protection under the Due Process Clause.
III
The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights.
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.”
#358. To: misterwhite (#349)
"The question is not whether some federal act is infringement, but how does a state constitution protect the fundamental individual right to keep and bear arms."
I'm saying the right is NOT protected by the second amendment and IS protected by state constitutions.
But let's say the federal government did not act on guns. Then each state would decide, under their state constitution, how they would handle the issue -- as they did for 200 years.
#359. To: misterwhite (#350)
How many currently effective constitutions did you cite?
SECTION 256
The Stand in the Schoolhouse Door took place at Foster Auditorium at the University of Alabama on June 11, 1963. George Wallace, the Democratic Governor of Alabama, in a symbolic attempt to keep his inaugural promise of "segregation now, segregation tomorrow, segregation forever" and stop the desegregation of schools, stood at the door of the auditorium to try to block the entry of two African American students, Vivian Malone and James Hood.
"If the state does not protect the right they may infringe it.
Only in bizarro world."
#360. To: misterwhite (#351)
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.
Your argument consists of simply repeating "It's the law" and citing, ad nauseum, excerpts from the rulings.
#361. To: misterwhite (#352)
"Self-defense was the central component of the right itself."
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 599; see also id., at 628 (stating that the “inherent right of self-defense has been central to the Second Amendment right”).
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".
#362. To: tpaine (#353)
This thread is proof positive that you cannot reason with a wrong-headed idiot.
#363. To: GrandIsland, tpaine (#354)
I see your libtarded socialist kookifornia shithole is planning on splitting in 3 parts. Communist North Kookifornia, Socialist Kookifornia and RINO Southern Mexifornia.
#364. To: nolu chan, misterwhite (#362)
#365. To: GrandIsland, tpaine (#354)
I see your libtarded socialist kookifornia shithole is planning on splitting in 3 parts. Communist North Kookifornia, Socialist Kookifornia and RINO Southern Mexifornia.
#366. To: Liberator (#365)
#367. To: GrandIsland (#366)
#368. To: nolu chan, grandisland, Y'ALL (#362)
tpaine ---- This thread is proof positive that you cannot reason with a wrong-headed idiot, who previously called himself robertpaulsen.
#369. To: GrandIsland (#354)
Don’t you proudly live in Communist North Kookifornia?
#370. To: nolu chan (#355)
You misconstrue the Supremacy Clause
#371. To: nolu chan (#357)
The U.S. Supreme Court has ruled in Heller and McDonald that the 2nd Amendment right to keep and bear arms is fundamental and an individual right.
#372. To: nolu chan (#358)
"The question is not whether some federal act is infringement, but how does a state constitution protect the fundamental individual right to keep and bear arms."
#373. To: nolu chan (#358)
Let's say the Federal government DID act on guns, because IT DID.
#374. To: nolu chan (#360)
And nobody gives a shit it you reject the rulings of the U.S. Supreme Court. Their interpretations of the Constitution in Heller and McDonald are the supreme law of the land,
#375. To: nolu chan (#361)
Pursuant to Heller and McDonald, individual self-defense is “the central component” of the Second Amendment right,
#376. To: Liberator (#364)
#377. To: Liberator (#364)
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?
#378. To: misterwhite, Liberator (#376)
Our ongoing debate is about which document protects the individual citizen's right to keep and bear arms.
When asked what protects state militias and their arms from federal infringement, he says nothing does.
I maintain the Heller decision was wrong, 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.
#379. To: misterwhite (#370)
I'm talking about a state LEGALIZING a federally controlled substance for medical or recreational use. That violates federal laws to the contrary. That violates the Supremacy Clause.
e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, njazrcotic drug, or any other controlled substance?
Warning: The use pr possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside. I certify that my answers in Section A are true, correct, and complete. I have read and understand the Notices, Instructions, and Definitions on ATF Form 4473. ... I understand that a person who answers "yes" to any of the questions 11.b. through 11.i and/or 12.b. through 12.c. is prohibited from purchasing or receiving a firearm. ... I also understand that making any false oral or written statement, or exhibiting any false or misrepresented identification with respect to this transaction, is a crime punishable as a felony under Federal law, and may also violate State and/or local law.
That violates the Supremacy Clause. That's what the U.S. Supreme Court concluded in Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005).
The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.
#380. To: misterwhite (#371)
Either they're full of shit or you are. The right may be "fundamental" to some goal, but it's not a fundamental right.
#381. To: misterwhite (#372)
The protection of the individual RKBA falls under state constitutions, not the federal government or the second amendment.
#382. To: misterwhite (#373)
once the federal government starts passing laws that infringe on the individual RKBA, the states can't stop that. The states can't shield their citizens from those laws.
#383. To: misterwhite (#374)
So we can't debate Roe v Wade, or Kelo, or any other U.S. Supreme Court decision because shut up?
#384. To: misterwhite (#375)
Only because Heller and McDonald said that individual self- defense is “the central component” of the Second Amendment right.
#385. To: nolu chan, Y'ALL (#382)
At #373, mrwrong asks: --- Where did the federal government get the power to ban the individual ownership of guns? And where does that power stop? And what stops that power?
#386. To: Grandiose, misterwrong, Y'ALL (#354)
GrandIsland (#354) ---- Don’t you proudly live in Communist North Kookifornia?
#387. To: tpaine (#385)
Where did the federal government get the power to ban the individual ownership of guns? And where does that power stop? And what stops that power?
#388. To: nolu chan, Y'ALL (#387)
At #373, mrwrong asks: --- Where did the federal government get the power to ban the individual ownership of guns? And where does that power stop? And what stops that power?
#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."
#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?
#391. To: Liberator, Y'ALL (#389)
(Edited)
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
#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?
#393. To: Liberator (#389)
“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”.
#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..
#395. To: tpaine, Liberator (#391)
The big misconception here, made by nearly everyone, is that SCOTUS opinions change the Constitution and/or constitutional laws.. They do strike down unconstitutional laws, both fed and state.
Otherwise, these opinions only apply to the case at hand/lesser courts,
--- they also serve as advisory opinions to guide the legislative/executive branches of fed and state governments on lawmaking and enforcement.
Advisory opinion. Such may be rendered ay a court at the request of the government or an interested party indicating how the court would rule on a matter should adversary litigation develop. An advisory opinion is thus an interpretation of the law without binding effect. While the International Court of Law and Justice and some state courts will render advisory opinions the federal courts will not; their jurisdiction being restricted to cases or controversies.
Advisory Opinion
To George Washington from Supreme Court Justices, 8 August 1793
James Wilson
John Blair
Ja. Iredell
Wm Paterson
#396. To: nolu chan (#393)
"The operative clause of the 2nd Amendment states, "the right of the people to keep and bear arms, shall not be infringed."
#397. To: nolu chan (#394)
The right to keep and bear arms is not absolute, and never has been.
#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.
#399. To: nolu chan, Y'ALL (#394)
ONLY if the federal government has the constitutional power to write the law. ----- misterwhite
#400. To: nolu chan, Y'ALL (#395)
The big misconception here, made by nearly everyone, is that SCOTUS opinions change the Constitution and/or constitutional laws.. They do strike down unconstitutional laws, both fed and state. ----- Otherwise, these opinions only apply to the case at hand/lesser courts, --- they also serve as advisory opinions to guide the legislative/executive branches of fed and state governments on lawmaking and enforcement. ---- tpaine
#401. To: misterwhite (#397)
The right to keep and bear arms is not absolute, and never has been.
c. Meaning of the Operative Clause.
3. Relationship Between Prefatory Clause and Operative Clause.
#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.
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.
#403. To: tpaine (#399)
Your opinion that The right to keep and bear arms is not absolute, and has never applied to weapons not lawful to possess, --- is absolute bull that you've made up, or worse, have plagiarized from some bullshit 'legal source'.
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. 285 (2008).
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
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.
#404. To: tpaine (#400)
Roe applied to the case at hand and lesser courts, thus abortion is lawful in all 50 states because the lesser courts agree that it cannot be prohibited by any of the 50 states.
Federal courts are prohibited from issuing advisory opinions by the opinions you cited. This opinion is not written in the Constitution itself, and may change..
#405. To: nolu sham, Y'ALL (#404)
#406. To: nolu chan (#402)
The Constitution did not empower the states to organize or arm the militia.
-- https://www.heritage.org/constitution/articles/1/essays/68/emoluments- clause#!/articles/1/essays/56/organizing-the-militia
#407. To: nolu chan (#401)
(Edited)
#408. To: misterwhite (#396)
(Edited)
So? You can't cite a portion of the second amendment, call it "The Operative Clause", pretend it stands alone, then sit back like that explains everything.
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
1. Operative Clause.
c. Meaning of the Operative Clause.
2. Prefatory Clause.
3. Relationship Between Prefatory Clause and Operative Clause.
Huh? What if I claimed that hunting is the central component of the right itself? You buy that? I think you'd ask me to support such a claim.
#409. To: misterwhite (#406)
The Constitution did not empower the states to organize or arm the militia.
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.
#410. To: misterwhite (#407)
It's become obvious that you are confusing "the right the keep and bear arms" wi with "the protection of the right to keep and bear arms".
Lastly, you are woefully ignorant of why the second amendment was added to the Bill of Rights -- it had nothing to do with self-defense and everything to do with defense of the State.
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
1. Operative Clause.
c. Meaning of the Operative Clause.
2. Prefatory Clause.
3. Relationship Between Prefatory Clause and Operative Clause.
It is absolutely painful to see you twist and distort the words and meaning of the second amendment in order to fit your definition. You redefine "the people" to mean everyone. You redefine "arms" to mean common arms -- whatever they are. You remove the protection of state militias. And you give the federal government powers they don't have in order to regulate all that garbage.
#411. To: nolu chan (#401)
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,
#412. To: nolu chan (#401)
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 ... 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.
#413. To: nolu chan (#401)
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.
#414. To: nolu chan (#402)
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.
#415. To: nolu chan (#408)
The first salient feature of the operative clause is that it codifies a “right of the people.”
#416. To: nolu chan (#410)
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.
#417. To: nolu chan (#410)
That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right.
#418. To: misterwhite (#411)
#419. To: misterwhite (#412)
#420. To: nolu chan (#419)
#421. To: misterwhite (#420)
Two excellent points that you can't refute. So you call them garbage. Coward.
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