Here’s How The Supreme Court Already Repealed The Second Amendment

Source: The Federalist
Published: May 9, 2018
Author: Mark Overstreet
Post Date: 2018-05-09 11:31:39 by Deckard
Views: 99874

The Supreme Court effectively repealed the Second Amendment in District of Columbia v. Heller by restricting the amendment to common arms.

In March, retired Supreme Court justice John Paul Stevens called for repealing the Second Amendment, implicitly admitting that it does what, in his dissent in District of Columbia v. Heller (2008), he pretended it does not: prohibit laws infringing the right to keep and bear arms.

Why Stevens called for repeal and dissented in Heller is a mystery, however. The Second Amendment was repealed, in effect, by Heller’s majority opinion. The opinion went beyond questions raised in the case and laid out a rationale by which Congress, states, and courts could ban the private possession of many offensive and defensive arms today and all such arms of the future.

Heller asked the court to decide whether Washington DC’s bans on handguns, having a loaded firearm at home, and carrying a firearm at home without a permit violated the Second Amendment. Although on imperfect grounds, the court correctly ruled that the first two bans were unconstitutional. It also said if DC required a permit to carry a gun at home, it had to issue permits to qualified applicants. But, the court added, “[w]e may as well consider at this point . . . what types of weapons [the Court’s decision in U.S. v. Miller (1939)] permits.”

The Court Turned Stare Decisis On Its Head

Miller asked whether the National Firearms Act of 1934 violated the Second Amendment by requiring that a short-barreled shotgun be registered with the federal government. Oddly, before the court heard the case, one defendant died and the other disappeared, so their lawyer didn’t go to Washington to present evidence on their behalf.

The court thus concluded, “[i]n the absence of any evidence tending to show that possession and use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense” (emphasis added).

For the right to “ordinary military equipment” and other arms that “could contribute to the common defense,” the court cited the decision of the Tennessee Supreme Court in Aymette v. State (1840), that “the arms, the right to keep which is secured [by Tennessee’s constitution] are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.”

Heller said, “We think that Miller’s ‘ordinary military equipment’ language must be read in tandem with what comes after: ‘[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’”

However, that mischaracterizes Miller. The arms to which Miller said people have the right are those that have a “relationship to a well regulated militia.” “Ordinary military equipment” is the first example of arms the court said have that relationship, and “what comes after” is a second example: other arms that “could contribute to the common defense.” It was three paragraphs later that the court stated the obvious: people commonly possessed “common” arms.

Moreover, Heller didn’t read Miller “in tandem.” It gave weight only to Miller’s comment about “common” arms, while rejecting Miller’s and Aymette’s endorsement of the right to arms relating to militia purposes, “ordinary military equipment,” and other arms that “could contribute to the common defense.”

Why ‘Common’ Can’t Be the Standard for Owning Arms

Heller’s mischaracterization of Miller is the first reason why “common” cannot be the standard for arms to which people have the right. “Common” is also vulnerable to deliberate misinterpretation. For example, while the percentage of gun owners who own an AR-15 is about the same as the percentage of drivers who own a Mercedes, judges who oppose the right to arms would likely rule that only Mercedeses are “common.”

A second reason “common” cannot be the standard was noted by Justice Stephen Breyer in his dissent in Heller. He explained, “[T]he majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.”

Breyer had in mind the majority’s argument that fully automatic rifles, common in the military, could be banned because they aren’t common among private individuals. The circularity is that they aren’t common among private individuals because they have been prohibitively taxed since 1934, banned in about half the states for almost as long, prohibited from importation since 1968, and banned from domestic manufacture since 1986.

A third reason is that the U.S. Framers didn’t limit the right to “common” arms. For example, cannons, though not as common as handheld arms, weren’t excluded from the Second Amendment. In protecting the right to arms for defense against tyranny, the Framers intended for the people to win. Several quotations from them illustrate the point.

James Madison: “Let a regular army . . . be at the devotion of the federal government. . . . [T]he State governments, with the people on their side, would be able to repel the danger.”

Alexander Hamilton: “[The] army cannot be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”

Richard Henry Lee: “To preserve liberty it is essential that the whole body of people always possess arms.”

Tench Coxe: “As the military . . . might pervert their power to the injury of their fellow citizens, the people are confirmed by the [Second Amendment] in their right to keep and bear their private arms.”

Noah Webster: “[T]he whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.”

You Can’t Protect Freedom With a Slingshot

A fourth, and the most important, reason was pointed out, but rejected by Heller’s majority opinion, written by the late Justice Antonin Scalia, an originalist from whom we might have expected faithfulness to the Framers’ intent. Referring to fully-automatic rifles, Scalia wrote:

It may be objected that if weapons that are most useful in military service . . . may be banned, then the Second Amendment right is completely detached from the [amendment’s] prefatory clause. . . . But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Although some laud Heller for recognizing an individual right to some arms, its false standard allows Congress and the states to ban arms they and the courts claim are not “common” or that are useful “in military service.” As Breyer put it, “On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the authority to do so.”

Breyer was mocking his colleagues, but “tomorrow” is important because firearms are near the end of their 500-year era of usefulness for the military purpose the Framers intended. Notwithstanding gun-control supporters’ complaints about the supposed new-fangledness of this or that firearm or firearm accessory, firearms are glorified slingshots.

Three thousand years ago, David slew Goliath with a rock ballistically comparable to a .45 caliber pistol bullet. Gunpowder propels a bullet more predictably than a whirling leather thong, but bullets, like rocks, are inert projectiles.

Sometime this century, the government will be equipped with offensive and defensive handheld arms and even more futuristic arms that will render firearms as obsolete for defense against tyranny as bows and arrows are today. While our troops should be equipped with the best equipment possible when fighting America’s enemies, it requires little imagination to envision how extraordinary technologies, such as those developed by the Pentagon’s Defense Advanced Research Projects Agency, could be misused against the American people.

Of course, regardless of Heller and whether the Second Amendment is repealed, Americans have the right to keep and bear arms, including for defense against tyranny. As a wiser Supreme Court recognized in U.S. v. Cruikshank (1876), the right, which existed before the Constitution, is “not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”

But rights are a concept. Laws that are enforced have tangible effect. In early April, U.S. District Court judge William Young ruled that Heller’s endorsement of restrictions on fully automatic firearms permits Massachusetts to ban semi-automatic firearms and ammunition magazines that many firearms use. Other courts have upheld similar bans.

If Americans allow their rights to be choked in this manner, they could find themselves no longer in control of government, but rather at its mercy.

Mark Overstreet is a firearm instructor and author in central Texas. He retired in 2016 as the senior research coordinator of the National Rifle Association’s Institute for Legislative Action, after 25 years with the organization. His views do not necessarily reflect those of the NRA.

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#122: nolu chan    To: misterwhite (#116)

If you do not like the legally binding precedents of the U..S. Supreme Court,

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.

"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.

Almost the entirety of the Bill of Rights has been incorporated against the states. The 2nd Amendment is no exception.

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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.

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https://www.scribd.com/document/379582277/Parker-v-District-of-Columbia-478-F3d-372-DC-Cir-2007

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https://www.scribd.com/document/379582321/District-of-Columbia-v-Heller-554-US-570-2008

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https://www.scribd.com/document/379582348/McDonald-v-Chicago-561-US-742-2010

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https://www.scribd.com/document/379658141/Caetano-v-Massachusetts-14-10078-577-US-2016-Per-Curiam

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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.

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https://www.scribd.com/document/379702589/united-states-v-cruickshank-92-us-542-1875

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https://www.scribd.com/document/379702620/Presser-v-Illinois-116-US-252-1886

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https://www.scribd.com/document/379702733/United-States-v-Miller-307-US-174-1939

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Quilici v. Morton Grove [1982]

An example of the river of shit that flowed from Cruickshank [1875], Presser [1886] and Miller [1939]

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https://www.scribd.com/document/379658174/Quilici-v-Morton-Grove-532-F-Supp-1169-ND-Ill-1981

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https://www.scribd.com/document/379658197/Quilici-v-Morton-Grove-695-F2d-261-7th-Cir-1982-Cert-Denied

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nolu chan posted on 2018-05-22 17:18:58   Reply   Private Reply

#123: misterwhite    To: nolu chan (#120)

"You are out of your damn mind if you think the Federal Constitution did not apply directly to the Federal District of Columbia."

Federal Constitution? Whatever.

I'm not referring to the U.S. Constitution. I'm referring to the second amendment which protects state militias. D.C. is not a state. It has no state militia.

So the U.S. Supreme Court twisted the second amendment saying it protected an individual right, and therefore Mr. Heller's right to keep a handgun in the home for self-defense was preserved.

Look. Let's say you're right -- the second amendment protects an individual right to keep and bear arms which are in common civilian use. What protects state militias and/or the National Guard? What's to prevent the Federal government from disbanding the National Guard and organizing a standing Federal military?

misterwhite posted on 2018-05-22 17:24:01   Reply   Private Reply

#124: misterwhite    To: nolu chan (#122)

Current precedent of Heller (2008) and McDonald 2010

"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.

misterwhite posted on 2018-05-22 17:34:24   Reply   Private Reply

#125: nolu chan    To: misterwhite (#123)

I'm not referring to the U.S. Constitution. I'm referring to the second amendment which protects state militias. D.C. is not a state. It has no state militia.

Your continued militia argument is just horseshit.

I have patiently explained to you that the 2nd amendment right is an individual right, it has been incorporated into the 14th Amendment, and it applies to the District of Columbia (Heller) and to the States (McDonald).

That you do not personally approve of SCOTUS in Heller and McDonald changes nothing.

nolu chan posted on 2018-05-23 00:42:22   Reply   Private Reply

#126: nolu chan    To: misterwhite (#124)

I say if the Heller court can ignore precedent, I can ignore Heller.

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.

nolu chan posted on 2018-05-23 00:44:51   Reply   Private Reply

#127: misterwhite    To: nolu chan (#126)

Under your lame, desperate grope, Roe v. Wade could never be overturned or reversed by the U.S. Supreme Court.

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.

misterwhite posted on 2018-05-23 09:08:24   Reply   Private Reply

#128: misterwhite    To: nolu chan (#125)

Second request. If you're right, then what protects state militias and/or the National Guard from federal infringement? What's to prevent the Federal government from disbanding the National Guard and organizing a standing Federal military?

misterwhite posted on 2018-05-23 09:18:01   Reply   Private Reply

#129: misterwhite    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]

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.

misterwhite posted on 2018-05-23 09:28:53   Reply   Private Reply

#130: nolu chan    To: misterwhite (#127)

Roe v Wade was decided on a "right to privacy" found in a penumbra of an emanation.

Roe was a precedent setting decision by a U.S. Supreme court majority. It enjoys the same precedent setting authority other SCOTUS precedents.

That decision can be overturned by a court finding that no such right exists or has ever existed.

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.

nolu chan posted on 2018-05-24 00:41:02   Reply   Private Reply

#131: nolu chan    To: misterwhite (#129)

Quilici v. Morton Grove [1982]

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.

nolu chan posted on 2018-05-24 00:42:10   Reply   Private Reply

#132: nolu chan    To: misterwhite (#128)

Second request. If you're right, then what protects state militias and/or the National Guard from federal infringement? What's to prevent the Federal government from disbanding the National Guard and organizing a standing Federal military?

A second response. The 2nd Amendment protects the individual right to keep and bear arms. It has been incorporated into the 14th Amendment and applies to all the states.

The First Request and Response is repeated below at the end of this post. The actual dingbat request was,

[nolu chan #97] "Where did you find the constitutional right of a State to form and maintain a militia?"

[misterwhite #104] I would think you would know, being an expert in common law. The authority comes from posse comitatus and pre-dates the U.S. Constitution.

The second amendment says the Federal Government can't infringe on this common law.

You hilariously asserted that 2nd Amendment forbids Federal infringement on something or other in the common law regarding posse comitatus.

If that is what the 2nd Amendment says, quote that part of the 2nd amendment.

The nonsense at your #104 was answered at my #111.

https://law.justia.com/codes/us/2016/title-32/chapter-1/

United States Code, 2012 Edition, Supplement 4, Title 32 - NATIONAL GUARD

Sec. 101 - Definitions
Sec. 102 - General policy
Sec. 103 - Branches and organizations
Sec. 104 - Units: location; organization; command
Sec. 105 - Inspection
Sec. 106 - Annual appropriations
Sec. 107 - Availability of appropriations
Sec. 108 - Forfeiture of Federal benefits
Sec. 109 - Maintenance of other troops
Sec. 110 - Regulations
Sec. 111 - Suspension of certain provisions of this title
Sec. 112 - Drug interdiction and counter-drug activities
Sec. 113 - Federal financial assistance for support of additional duties assigned to the Army National Guard
Sec. 114 - Funeral honors functions at funerals for veterans
Sec. 115 - Funeral honors duty performed as a Federal function

https://www.scribd.com/document/380029027/32-Stat-775-1903-the-Dick-Act-The-Militia-Act-of-1903

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[nolu chan #97] "Where did you find the constitutional right of a State to form and maintain a militia?"

[misterwhite #104] I would think you would know, being an expert in common law. The authority comes from posse comitatus and pre-dates the U.S. Constitution.

The second amendment says the Federal Government can't infringe on this common law.

The nonsense at your #104 was answered at my #111.

You're blowing it out of your ass.

https://www.law.cornell.edu/constitution/articlei#section8

Article 1, Section 8:

The Congress shall have power ... To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

For your cited State Defense Forces, which may be comprised of fat 65-year old men with no military experience, they are authorized by Federal statute.

https://law.justia.com/codes/us/2016/title-32/chapter-1/sec.-109/

[nolu chan #97] "Where did you find the constitutional right of a State to form and maintain a militia?"

[misterwhite #104] I would think you would know, being an expert in common law. The authority comes from posse comitatus and pre-dates the U.S. Constitution.

The second amendment says the Federal Government can't infringe on this common law.

[nolu chan #111] You're blowing it out of your ass.

https://www.law.cornell.edu/constitution/articlei#section8

Article 1, Section 8:

The Congress shall have power ... To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

For your cited State Defense Forces, which may be comprised of fat 65-year old men with no military experience, they are authorized by Federal statute.

https://law.justia.com/codes/us/2016/title-32/chapter-1/sec.-109/

2016 US Code
Title 32 - National Guard
Chapter 1 - Organization
Sec. 109 - Maintenance of other troops

32 U.S.C. § 109 (2016)

(a) In time of peace, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may maintain no troops other than those of its National Guard and defense forces authorized by subsection (c).

(b) Nothing in this title limits the right of a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands to use its National Guard or its defense forces authorized by subsection (c) within its borders in time of peace, or prevents it from organizing and maintaining police or constabulary.

(c) In addition to its National Guard, if any, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces.

(d) A member of a defense force established under subsection (c) is not, because of that membership, exempt from service in the armed forces, nor is he entitled to pay, allowances, subsistence, transportation, or medical care or treatment, from funds of the United States.

(e) A person may not become a member of a defense force established under subsection (c) if he is a member of a reserve component of the armed forces. Source Credit

(Aug. 10, 1956, ch. 1041, 70A Stat. 600; Pub. L. 85–861, §2(2), Sept. 2, 1958, 72 Stat. 1542; Pub. L. 100–456, div. A, title XII, §1234(b)(1), Sept. 29, 1988, 102 Stat. 2059; Pub. L. 109–163, div. A, title X, §1057(b)(3), Jan. 6, 2006, 119 Stat. 3441; Pub. L. 111–383, div. A, title X, §1075(h)(4)(B), Jan. 7, 2011, 124 Stat. 4377.)

The Second Amendment says The Federal Government shall not infringe a RIGHT OF THE PEOPLE. By incorporation into the 14th Amendment, the restriction applies equally to the several States.

Common law. As distinguished from statutory law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England. In general, it is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments. The "common law" is all the statutory and case law background of England and the American colonies before the American revolution.

Black's Law Dictionary 6th Ed.

Take your childish argument to your nearest pre-revolutionary colonial court.

There have never been common law courts in the United States.

nolu chan posted on 2018-05-24 00:43:30   Reply   Private Reply

#133: misterwhite    To: nolu chan (#130)

It enjoys the same precedent setting authority other SCOTUS precedents.

If it enjoys the precedent setting authority of Cruikshank, Presser, or Heller, that ain't sayin' much, is it?

misterwhite posted on 2018-05-24 09:07:39   Reply   Private Reply

#134: misterwhite    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.

No. Only the "precedents" that are based on made up bullshit having nothing to do with the clear wording of the U.S. Constitution.

misterwhite posted on 2018-05-24 09:10:47   Reply   Private Reply

#135: misterwhite    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.

Not much of a precedent or a holding, is it, when it can be overturned by a court that just makes shit up.

misterwhite posted on 2018-05-24 09:13:06   Reply   Private Reply

#136: A K A Stone    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.

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.

A K A Stone posted on 2018-05-24 09:21:38   Reply   Private Reply

#137: misterwhite    To: nolu chan (#132)

The 2nd Amendment protects the individual right to keep and bear arms.

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.

misterwhite posted on 2018-05-24 09:25:17   Reply   Private Reply

#138: misterwhite    To: nolu chan (#132)

The Second Amendment says The Federal Government shall not infringe a RIGHT OF THE PEOPLE.

Did they give a reason? I mean, they didn't need to give a reason. But wait. Yes they did. It's written there in the same amendment. They said that a well regulated Militia was necessary to the security of a free State.

Couldn't be any clearer.

But the Heller court, defying the precedent of Cruikshank, Presser AND Miller, totally ignored the Militia part and decided for the very first time in 200+ years that the second amendment really protected an individual right to keep a handgun in the home for self-defense.

Only the Heller court was smart enough to see that.

misterwhite posted on 2018-05-24 09:37:59   Reply   Private Reply

#139: A K A Stone    To: misterwhite (#138)

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.

A K A Stone posted on 2018-05-24 09:40:26   Reply   Private Reply

#140: misterwhite    To: A K A Stone (#139)

"the right of the people... The people are the militia."

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.

misterwhite posted on 2018-05-24 12:26:50   Reply   Private Reply

#141: A K A Stone    To: misterwhite (#140)

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?

A K A Stone posted on 2018-05-24 12:32:16   Reply   Private Reply

#142: misterwhite    To: A K A Stone (#141)

It is an individual right.

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.

misterwhite posted on 2018-05-24 15:08:39   Reply   Private Reply

#143: nolu chan    To: misterwhite (#133)

If it enjoys the precedent setting authority of Cruikshank, Presser, or Heller, that ain't sayin' much, is it?

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.

nolu chan posted on 2018-05-24 23:37:22   Reply   Private Reply

#144: nolu chan    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.

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.

nolu chan posted on 2018-05-24 23:38:55   Reply   Private Reply

#145: nolu chan    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.

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.

nolu chan posted on 2018-05-24 23:40:00   Reply   Private Reply

#146: nolu chan    To: misterwhite (#137)

The 2nd Amendment protects the individual right to keep and bear arms.

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:

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. 576–626.

Heller, 554 U.S. 571:

(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.

Heller, 554 U.S. 622, concerning Miller:

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.

Heller, 554 U.S. 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.

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

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.

Citing the non-existent, imaginary national common law of the United States?

https://en.wikipedia.org/wiki/Posse_comitatus

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.

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/

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

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)

Army as Posse Comitatus

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.

- - - - - - - - - -

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.

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.

A well regulated militia, being necessary to the security of a free state....

The reference of a free state is to the nation, the United States.

Article 1, Section 8, Clauses 15 - 16 provides,

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;

Heller, 554 U.S. 570, 595-97 (2008)

2. Prefatory Clause.

The prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State ....”

a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. 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”).

nolu chan posted on 2018-05-24 23:59:56   Reply   Private Reply

#147: nolu chan    To: misterwhite (#138)

The Second Amendment says The Federal Government shall not infringe a RIGHT OF THE PEOPLE.

Did they give a reason? I mean, they didn't need to give a reason. But wait. Yes they did. It's written there in the same amendment. They said that a well regulated Militia was necessary to the security of a free State.

Couldn't be any clearer.

Yes they gave a reason. The 2nd Amendment says "the right of the people, to keep and bear arms, shall not be infringed."

But the Heller court, defying the precedent of Cruikshank, Presser AND Miller, totally ignored the Militia part and decided for the very first time in 200+ years that the second amendment really protected an individual right to keep a handgun in the home for self-defense.

Nonsense, directly refuted by the content of Heller.

WHAT precedent do you claim was defied by the Heller court?

Heller, 554 U.S. 619-20, concerning Cruickshank:

We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment.

United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right “is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment... means no more than that it shall not be infringed by Congress.” Id., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob’s attack, see C. Lane, The Day Freedom Died 62 (2008).

Heller, 554 U.S. 620, concerning Presser:

Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.” Id., at 264–265. This does not refute the individual-rights interpretation of the Amendment; no one supporting that interpretation has contended that States may not ban such groups.

Heller, 554 U.S. 622, concerning Miller:

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.

Heller, 554 U.S. 623, concerning Miller:

Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.

Heller, 554 U.S. 625, concerning Miller:

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.

We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment.

The issue of whether the 2nd Amendment applied to the states was not at issue in Heller. Heller arose from a Federal district, not a state.

nolu chan posted on 2018-05-25 00:04:53   Reply   Private Reply

#148: misterwhite    To: nolu chan (#143)

and the RKBA is an individual right that cannot lawfully be infringed by any 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?

misterwhite posted on 2018-05-25 10:01:45   Reply   Private Reply

#149: misterwhite    To: nolu chan (#145)

Much of the country disagrees with Roe v. Wade,

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?

misterwhite posted on 2018-05-25 10:10:40   Reply   Private Reply

#150: misterwhite    To: nolu chan (#147)

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.

Hey, wait. That's what a militia does.

misterwhite posted on 2018-05-25 10:16:53   Reply   Private Reply

#151: misterwhite    To: nolu chan (#146)

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.

misterwhite posted on 2018-05-25 10:49:39   Reply   Private Reply

#152: misterwhite    To: nolu chan (#147)

"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."

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.

misterwhite posted on 2018-05-25 11:01:40   Reply   Private Reply

#153: misterwhite    To: nolu chan (#147)

The issue of whether the 2nd Amendment applied to the states was not at issue in Heller.

That came in McDonald. So what? The two cases are tied together for purposes of discussion.

misterwhite posted on 2018-05-25 11:09:46   Reply   Private Reply

#154: misterwhite    To: nolu chan (#147)

The 2nd Amendment says "the right of the people, to keep and bear arms, shall not be infringed."

No. It says "A well regulated Militia is necessary to the security of a free State".

misterwhite posted on 2018-05-25 11:37:24   Reply   Private Reply

#155: goldilucky    To: nolu chan (#147)

You keep referring to the Heller case as if it was the only case ever brought before the Supreme Court of the U.S. I suggest you get a hold of a reader entitled, That Every Man Be Armed written by this guy stephenhalbrook.com/everyman.html In it, he delves into the sole purpose of it being a necessity for every citizen, whether regulated or not, to keep and bear arms, whether they be long or short-barreled, for the purpose of protecting themselves from enemy invasions and rogue governments.

goldilucky posted on 2018-05-25 15:26:32   Reply   Private Reply

#156: misterwhite    To: goldilucky (#155)

"he delves into the sole purpose of it being a necessity for every citizen, whether regulated or not, to keep and bear arms, whether they be long or short-barreled, for the purpose of protecting themselves from enemy invasions and rogue governments."

I agree with that. I'm sure most do. I believe it is every citizen's right and duty to keep and bear arms.

But what makes you think the second amendment protects that right? That's what the debate is all about.

misterwhite posted on 2018-05-25 17:27:16   Reply   Private Reply

#157: tpaine    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 ----

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.

tpaine posted on 2018-05-25 20:15:32   Reply   Private Reply

#158: goldilucky    To: misterwhite (#156)

There is no debate about the rights of the people of the United States of America.

The only question that is really at issue is who are the people that this right protects. The original framers of our Constitution made that clear who those people they were referring to (the general john q. public}. They did not trust a federalized army after what they endured in fighting the British Redcoats that burned down our White House.

goldilucky posted on 2018-05-25 22:52:05   Reply   Private Reply

#159: misterwhite    To: goldilucky (#158)

The original framers of our Constitution made that clear who those people they were referring to (the general john q public.}.

Article 1, Section 2, Clause 1 of the United States Constitution reads:

"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."

When this was ratified in 1788, who were "the people" referenced in the above? Everyone? Every citizen? Women? Children? Non-land owners? Slaves? Illegals? Visitors?

You say "the general john q public" so I assume you mean everyone walking around. All of them were "the people" and could vote in 1788?

Here's an uncomfortable fact for you. In 1788, "the people" were the rich, white guys who had something to lose. No one else -- not women, not children, not slaves, not non-citizens ... no one.

In 1788, only "the people" had full rights as citizens. Their right to vote, run for office, own land, and keep and bear arms as part of a militia were protected. Their right to peaceably assemble, petition the government, and be secure against unreasonable searches were protected. No one else.

Granted, over the years that's changed. But in 1788, that's who "the people" were. The U.S. Constitution needs to be interpreted with that in mind.

misterwhite posted on 2018-05-26 09:43:29   Reply   Private Reply

#160: goldilucky    To: misterwhite (#159)

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?

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.

goldilucky posted on 2018-05-26 10:17:26   Reply   Private Reply

#161: misterwhite    To: goldilucky (#160)

Back then, it was only white people who could vote, own land, and even firearms.

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?

misterwhite posted on 2018-05-26 10:55:18   Reply   Private Reply

#162: goldilucky    To: misterwhite (#161)

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

goldilucky posted on 2018-05-26 11:53:49   Reply   Private Reply

#163: nolu chan    To: misterwhite (#148)

But that right will be defined by the U.S. Supreme Court for everyone in every state. That what you want?

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.

nolu chan posted on 2018-05-29 16:15:42   Reply   Private Reply

#164: nolu chan    To: misterwhite (#149)

Much of the country disagrees with Roe v. Wade,

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.

nolu chan posted on 2018-05-29 16:16:20   Reply   Private Reply

#165: nolu chan    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.

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?

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.

Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973)

JOHN A. FOGLEMAN, Justice.

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:

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 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:

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.

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

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.

158 US 535-36

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.

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

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).

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.

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.

Military Law by Charles A. Shanor and L. Lynn Hogue, 1996, West Publishing, p. 39

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.

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]

TITLE 32--NATIONAL DEFENSE

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.

(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.

(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

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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.

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(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.

nolu chan posted on 2018-05-29 16:20:07   Reply   Private Reply

#166: nolu chan    To: misterwhite (#151)

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.

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.

nolu chan posted on 2018-05-29 16:22:17   Reply   Private Reply

#167: nolu chan    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."

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.

nolu chan posted on 2018-05-29 16:23:43   Reply   Private Reply

#168: nolu chan    To: misterwhite (#153)

The issue of whether the 2nd Amendment applied to the states was not at issue in Heller.

That came in McDonald. So what? The two cases are tied together for purposes of discussion.

[misterwhite #138]

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.

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.

nolu chan posted on 2018-05-29 16:28:12   Reply   Private Reply

#169: nolu chan    To: misterwhite (#154)

The 2nd Amendment says "the right of the people, to keep and bear arms, shall not be infringed."

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.

nolu chan posted on 2018-05-29 16:29:32   Reply   Private Reply

#170: nolu chan    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.

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)

[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.

At 230, in chapter "Update to New Edition": (footnotes omitted)

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.

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)

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.

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.

nolu chan posted on 2018-05-29 16:34:01   Reply   Private Reply

#171: misterwhite    To: nolu chan (#169)

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.

misterwhite posted on 2018-05-29 16:48:57   Reply   Private Reply