Here’s How The Supreme Court Already Repealed The Second Amendment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: 99793

The Supreme Court effectively repealed the Second Amendment in District of Columbia v. Heller by restricting the amendment to common arms.

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

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 The Second Amendment was repealed, in effect, by Heller’s majority opinion.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

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

The Court Turned Stare Decisis On Its Head

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You Can’t Protect Freedom With a Slingshot

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

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

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

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

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

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

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

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

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

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

Post Comment   Private Reply

#303: nolu chan    To: hondo68 (#301)

How do states protect [the individual] 2nd Amendment right to keep and bear arms through the state constitution?

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.

Amendment V

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.

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.

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.

You & teh Donald ain't taking our guns, so F' off!

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.

nolu chan posted on 2018-06-15 16:35:44   Reply   Private Reply

#304: misterwhite    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.

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?

misterwhite posted on 2018-06-15 16:37:42   Reply   Private Reply

#305: misterwhite    To: nolu chan (#298)

That does not permit a citizen in Alabama to possess an un unlicensed machinegun.

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.

misterwhite posted on 2018-06-15 16:57:46   Reply   Private Reply

#306: misterwhite    To: nolu chan (#299)

"It was applicable in the District of Columbia because it was a Federal district."

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.

misterwhite posted on 2018-06-15 17:03:46   Reply   Private Reply

#307: misterwhite    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."

It figures you would quote a judge who believes the U.S. Constitution "grants" rights.

misterwhite posted on 2018-06-15 17:10:44   Reply   Private Reply

#308: nolu chan    To: misterwhite (#302)

Your quote made no reference to federalizing State Militias and sending them overseas.

Oh, really? Are you too dumb, stupid, and lazy to read what I posted? I guess you are.

[nolu chan #280]

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.

Suck on this.

Perpych, unanimous U.S. Supreme Court

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.

And,

[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.

- - - - - - - - - -

It was a generalized statement, out of context, with no reference to the case itself.

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.

nolu chan posted on 2018-06-15 17:21:56   Reply   Private Reply

#309: misterwhite    To: nolu chan (#308)

It was all firmly based on Perpych,

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.

misterwhite posted on 2018-06-16 09:18:35   Reply   Private Reply

#310: nolu chan    To: misterwhite (#304)

You're talking about federalized troops.

Look at your question in your #292. It refers only to active duty organized militia.

[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?

[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:

(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.

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.

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?

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.

nolu chan posted on 2018-06-16 15:13:03   Reply   Private Reply

#311: nolu chan    To: misterwhite (#305)

That does not permit a citizen in Alabama to possess an unlicensed machinegun.

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.

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

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.

nolu chan posted on 2018-06-16 15:13:36   Reply   Private Reply

#312: nolu chan    To: misterwhite (#306)

It [the 2nd Amdt.] was applicable in the District of Columbia to members of a militia,

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.

which Mr. Heller was not.

But Mr. Heller won and you are full of shit.

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.

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:

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.

Your infantile bullshit was weighed, measured, and found wanting.

That's the way the Heller court should have ruled.

The court did not rule that way, so tough shit. You lost your bid to be king.

nolu chan posted on 2018-06-16 15:14:17   Reply   Private Reply

#313: nolu chan    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."

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."

nolu chan posted on 2018-06-16 15:15:01   Reply   Private Reply

#314: nolu chan    To: misterwhite (#309)

It was all firmly based on Perpych,

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]

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.

- - - - - - - - - -

Militiamen. Comprehends every temoorary citizen-soldier who in time of war or emergency enters active military service of the country.

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.

nolu chan posted on 2018-06-16 15:16:54   Reply   Private Reply

#315: nolu chan    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).

[ROTFLMAO]

- - - - - - - - - -

[nolu chan #278] Only enlistment or commission in the National Guard would meet the requisite militia definition.

[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

U.S. Supreme Court

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.

nolu chan posted on 2018-06-16 15:20:15   Reply   Private Reply

#316: misterwhite    To: nolu chan (#287)

The Congress was empowered by the Constitution "to provide for organizing, arming, and disciplining, the militia...."

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.

misterwhite posted on 2018-06-16 19:50:28   Reply   Private Reply

#317: misterwhite    To: nolu chan (#310)

Look at your question in your #292. It refers only to active duty organized militia.

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?
Nobody and nothing."

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?

misterwhite posted on 2018-06-16 20:01:12   Reply   Private Reply

#318: misterwhite    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

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 posted on 2018-06-16 20:07:48   Reply   Private Reply

#319: misterwhite    To: nolu chan (#313)

The judge's word choice was flawed. His legal reasoning ...

The judge's word choice was flawed as was his legal reasoning.

misterwhite posted on 2018-06-16 20:09:25   Reply   Private Reply

#320: sneakypete    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).

The ONLY Constitutional Federal Law that pertains to firearms is the 2nd Amendment. Anything else is a poser,and un-Constitional.

sneakypete posted on 2018-06-17 09:09:08   Reply   Private Reply

#321: nolu chan    To: misterwhite (#316)

And yet the Militia Act of 1792 reads (in part):

The current year is 2018.

If machine guns had been invented, the Militia Act would have required an enrolled citizen to show up with that.

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.

nolu chan posted on 2018-06-18 11:12:07   Reply   Private Reply

#322: nolu chan    To: misterwhite (#317)

"Who or what protects the right of his National Guard to keep and bear machine guns?

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. 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.

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.

nolu chan posted on 2018-06-18 11:13:01   Reply   Private Reply

#323: nolu chan    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).

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.

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!

Indictment! Trial! Conviction! Federal Prison!

nolu chan posted on 2018-06-18 11:15:14   Reply   Private Reply

#324: nolu chan    To: misterwhite (#319)

The judge's word choice was flawed as was his legal reasoning.

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.

nolu chan posted on 2018-06-18 11:15:40   Reply   Private Reply

#325: nolu chan    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).

CRS Report - Firearms Prohibitions and Domestic Violence Convictions - The Lautenberg Amendment (October 1, 2001)

nolu chan posted on 2018-06-18 11:18:10   Reply   Private Reply

#326: nolu chan    To: misterwhite (#293)

[nolu chan #289] You keep mumbling some bullshit about how states protect the right to keep and bear arms through their constitutions, but your are absolute crickets about how they do it.

[misterwhite #293] How? It's written in their state constitution. Alabama, for example, has this:

"That the great, general and essential principles of liberty and free government may be recognized and established, we declare.... That every citizen has a right to bear arms in defense of himself and the state. (Ala. Const. art. I, § 26) (1819)."

- - - - - - - - - -

[misterwhite #318] I said state constitutions protect an individual right to keep and bear arms, subject to constitutional federal laws (as per the Supremacy Clause).

MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 7

The 11th Circuit and the District Court for the District of Alabama Protect 2nd Amendment Rights in Alabama

United States v. White, 593 F.3d 1199 (11th Cir., 2010)

593 F.3d 1199 (2010)

UNITED STATES of America, Plaintiff-Appellee,
v.
Ludivic WHITE, Jr., Defendant-Appellant.

No. 08-16010.

United States Court of Appeals, Eleventh Circuit.

January 11, 2010.

*1200 Daniel L. McCleave (Court-Appointed), McCleave, Denson, Shields, LLC, Mobile, AL, for White.

Richard H. Loftin, Steven E. Butler, Mobile, AL, for U.S.

Laura Moranchek Hussain, Wilmer, Cutler, Pickering, Hale & Dorr, LLP, Washington, DC, for Amici Curiae.

Before DUBINA, Chief Judge, and BIRCH and SILER,[*] Circuit Judges.

SILER, Circuit Judge:

INTRODUCTION

Ludivic White, Jr., appeals his conviction for possession of a firearm by a person convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9). For the following reasons, we affirm.

*1201

I.

At around 2:00 a.m. on April 21, 2007, Police Officers Brad Latham and Otha Lee Hargrove received a complaint about loud music coming from a vehicle parked in a high-crime area of Mobile, Alabama. Upon arriving at the scene, the officers saw a vehicle that matched dispatch's description. As Officer Hargrove drove by the vehicle with his windows partially open, he smelled a "strong" odor of marijuana and heard music emanating from the car. The vehicle contained four occupants: two females in the front seat and two males in the back seat.

Latham approached the driver and asked for identification, which she was unable to provide. The officers then questioned the occupants about whether they had been smoking marijuana. The occupants denied possessing or using any drugs. Latham asked the driver to exit the vehicle and requested her name and social security number to perform a background check. Latham then requested that White step out of the car. Shortly thereafter, Hargrove, who was busy performing a background check on the other male passenger, heard Latham say "gun," at which point he saw Latham remove a black handgun from White's person. The officers arrested White after he failed to produce a permit for the pistol. No drugs were found in the car. Latham filed two police reports detailing the incident, neither of which mentioned the smell of marijuana. Hargrove did not file any written reports.

White was indicted for possession of a firearm by a person convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9). Before trial, he filed a motion to suppress the firearm found on his person during the search, arguing that the officers had violated his Fourth Amendment rights. Hargrove testified to the facts stated above at the suppression hearing. On the motion to suppress, the court found that he was a credible witness, and it held that the smell of marijuana gave the officers reasonable suspicion to detain and question the passengers and to pat them down for officer safety.

Both officers testified at trial. Hargrove's testimony remained the same. Latham stated that he responded to a loud noise complaint; when he arrived on the scene, a car matching the description in the complaint contained four occupants and only the dome light was on; and the occupants, when questioned, could not produce identification. He stated that he and Hargrove asked all the occupants if there were any weapons or illegal items in the vehicle, to which each responded in the negative. After recognizing White as having "given [him] problems in the past to where [sic] I stopped him before," he "patted him down for weapons . . . for officer safety," which was "standard [department] practice." As he was patting White down, he noticed the gun's magazine protruding from White's pocket. He could not remember whether there had been any music playing in the car, although he testified that if there had been, it was not loud. He stated that his report had not mentioned marijuana, because he had not smelled any.

Marcus Carothers and Tequila Ward Prince, two of the occupants of the car, later testified that they had been smoking marijuana prior to the stop. They stated that they had not been playing loud music, and that they believed that the loud noise complaint had been filed by a disgruntled neighbor. They were unsure whether the smell of marijuana had lingered in the air, but they estimated that they had ceased smoking marijuana between five to twenty minutes before the officers arrived.

*1202

To prove the predicate offense, the government offered a certified copy of White's previous misdemeanor conviction for domestic violence, which stated that he was convicted on January 11, 2005, of domestic violence in the third degree, harassment, in violation of Alabama Code §§ 13A-11-8A and 13A-6-132.[1] According to his conviction, on June 22, 2003, he tried to choke his then live-in girlfriend. The district court overruled his objection that this conviction did not qualify as a predicate offense under 18 U.S.C. § 922(g)(9).

After the government rested, White moved for a judgment of acquittal and renewed his motion to suppress the gun. The district court denied both motions. The jury found White guilty, and he was sentenced to forty-six months' imprisonment. The trial court also denied his subsequent motion to dismiss based upon District of Columbia v. Heller, ___ U.S. ___, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). White now appeals pursuant to 28 U.S.C. § 1291.

II.

A.

1.

White first contests the district court's denial of his motion to suppress the gun found during the pat-down search. "Rulings on motions to suppress evidence constitute mixed questions of law and fact." United States v. LeCroy, 441 F.3d 914, 925 (11th Cir.2006). We accept the district court's findings of fact, including the district court's credibility determinations, unless they are clearly erroneous. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.2002). We review the application of law to those facts de novo. LeCroy, 441 F.3d at 925. Because the pat-down search to preserve officer safety was not unreasonable given the totality of the circumstances, we affirm the district court's denial of the motion to suppress.

2.

"Our analysis [of the legality of the pat-down search] is governed by the principles of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), under which the police may stop and briefly detain a person to investigate a reasonable suspicion that he is involved in criminal activity, even though probable cause is lacking." United States v. Williams, 876 F.2d 1521, 1523 (11th Cir.1989). To justify a Terry stop, the officers must "have a reasonable, articulable suspicion based on objective facts that the person has engaged in, or is about to engage in, criminal activity." United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir.2007) (quoting United States v. Powell, 222 F.3d 913, 917 (11th Cir.2000)), cert. denied 552 U.S. 974, 128 S. Ct. 438, 169 L. Ed. 2d 305 (2007). In connection with a Terry stop, an officer may conduct a pat-down search if he has reason to believe that his own safety or the safety of others is at risk. Terry, 392 U.S. at 27, 88 S.Ct. at 1883. "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his

*1203

safety or that of others was in danger." Id. (emphasis added).

The district court found that (1) Hargrove was credible, and (2) he smelled marijuana. We "must accept [these factual findings] unless [they are] so inconsistent or improbable on [their] face that no reasonable factfinder could accept [them]." Ramirez-Chilel, 289 F.3d at 749. Also, we must construe the facts in the light most favorable to the party that prevailed below (here, the government). United States v. Nunez, 455 F.3d 1223, 1225 (11th Cir. 2006). White focuses on the inconsistencies in the officers' testimony—namely, that Hargrove remembered the marijuana smell, while Latham did not recollect it. However, it is not inconceivable that two busy police officers testifying about an incident that occurred over a year prior remembered the existence of the smell of marijuana differently. It is also not unbelievable that the district court found that Hargrove's testimony about the marijuana smell was credible.

Accepting these findings of fact, we hold that both the brief detention of the vehicle and its occupants and the limited pat-down of White were reasonable. "Reasonable suspicion is determined from the totality of the circumstances, and from the collective knowledge of all the officers involved in the stop." Williams, 876 F.2d at 1524 (citing United States v. Cotton, 721 F.2d 350 (11th Cir.1983)); see also United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740 (2002) (upholding detention when the totality of the circumstances created reasonable suspicion). Given that the smell of marijuana alone may provide a basis for reasonable suspicion for further investigation of possible criminal conduct, the initial stop was valid. Bryan v. Spillman, 217 Fed.Appx. 882, 885 (11th Cir.2007) (citing United States v. Garcia, 592 F.2d at 259 (5th Cir.1979) (holding that smell of marijuana emanating from vehicle established reasonable suspicion for search)). Additionally, even without considering Hargrove's testimony regarding marijuana, the totality of the circumstances indicates that the pat-down was reasonable.[2] "[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. at 27, 88 S.Ct. at 1883 (emphasis added). Here, several factors support the objective reasonableness of the search: Latham responded to a loud music complaint in a high-crime area late at night, see United States v. Gordon, 231 F.3d 750, 755-56 (11th Cir.2000) (noting an area's reputation for criminal activity is a factor that may be considered when determining whether reasonable suspicion exists.); the officers were outnumbered two-to-one; none of the occupants could provide identification; and Latham recognized White as someone who had given him trouble in the past. For these reasons, the limited pat-down search of White did not violate the Fourth Amendment, and we affirm the district court's denial of White's motion to suppress the gun.

B.

1.

White next argues that the district court erroneously denied his motion for a judgment of acquittal based on its conclusion that his previous domestic violence conviction was a predicate offense for purposes of § 922(g)(9). We review de novo a district court's denial of a motion for a

*1204

judgment of acquittal on sufficiency of evidence grounds. United States v. Yates, 438 F.3d 1307, 1311-12 (11th Cir. 2006) (en banc). We affirm the district court's decision, because White's underlying domestic violence offense is a predicate offense for purposes of § 922(g).

2.

Section 922(g)(9) makes it illegal for a person "convicted in any court of a misdemeanor crime of domestic violence" to possess "any firearm or ammunition" that has been in or affects interstate commerce. Section 921(a)(33)(A) defines a "misdemeanor crime of violence" as an offense that "(1) has, as an element, the use [of force],[3] and (2) is committed by a person who has a specified domestic relationship with the victim." United States v. Hayes, ___ U.S. ___, 129 S. Ct. 1079, 1087, 172 L. Ed. 2d 816 (2009) (alteration in original).

While the government must establish that the underlying offense was committed against a person with a specified domestic relationship beyond a reasonable doubt, § 922(g)(9) does not require the predicate offense to have the specified domestic relationship as an element. Id. at 1082-83. Accord United States v. Chavez, 204 F.3d 1305, 1313-14 (11th Cir. 2000) (holding that while the domestic nature of the relationship must be a fact, it need not be an element of the prior offense); United States v. Griffith, 455 F.3d 1339, 1346 (11th Cir.2006) ("Therefore, as we held in Chavez, a domestic relationship must exist as part of the facts giving rise to the prior offense, but it need not be an element of that offense.").

To meet the definition of a "misdemeanor crime of domestic violence," the offense must be committed by (1) "a current or former spouse," (2) "a person with whom the victim shares a child in common," (3) "a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian," or (4) "by a person similarly situated to a spouse, parent, or guardian of the victim." § 921(a)(33)(a)(ii). At trial the government introduced a certified copy of the underlying conviction, which contained identical addresses of both the victim and White. In addition, White was convicted in a "domestic dispute" during which he pushed his girlfriend down and then tried to choke her. Finally, White concedes that a live-in girlfriend would meet the domestic relationship requirement of § 921(a)(33)(a). The victim was in a specified domestic relationship with White: she lived with him, was his "girlfriend," and the dispute was a "domestic" one. Several of our sister circuits have held that a "'live-in' girlfriend qualifies as a domestic relationship for purposes of [§§ 922 and 921(a)(33)(a)]." Buster v. United States, 447 F.3d 1130, 1133 (8th Cir. 2006). See also United States v. Shelton, 325 F.3d 553, 563 (5th Cir. 2003) (holding defendant's admission that he lived with his girlfriend was sufficient to qualify the relationship under §§ 922 and 921(a)(33)(a)); United States v. Denis, 297 F.3d 25, 31 (1st Cir. 2002) (assuming defendant's "'live-in girlfriend'" was similarly situated for purposes of §§ 922 and 921(a)(33)(a)). Viewing, as we must, the evidence in the light most favorable to the government, United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005), there is sufficient evidence to

*1205

show that a "domestic relationship . . . exist[ed] as part of the facts giving rise to the prior offense" and that the trier of fact could have so found beyond a reasonable doubt. Griffith, 455 F.3d at 1346. Therefore, the district court did not err in determining that White's previous domestic violence conviction was a predicate offense for purposes of § 922(g).

C.

1.

White's last argument on appeal focuses on the constitutionality of § 922(g)(9). "We review de novo the legal question of whether a statute is constitutional." United States v. Tinoco, 304 F.3d 1088, 1099 (11th Cir. 2002) (citation omitted). Under our interpretation of Heller, 128 S.Ct. at 2783, we affirm his conviction.

2.

Although prior to Heller we upheld the constitutionality of § 922(g)(9), our decision did not rest on Second Amendment grounds. See Hiley v. Barrett, 155 F.3d 1276 (11th Cir.1998) (affirming the district court's decision upholding § 922(g)(9)'s constitutionality against commerce clause, equal protection, substantive due process, ex post facto, bill of attainder, and Tenth Amendment attacks). Today we limit our holding to deciding whether § 922(g)(9) may be properly included as a presumptively lawful "longstanding prohibition[] on the possession of firearms," a category of prohibitions the Supreme Court has implied survives Second Amendment scrutiny. Heller, 128 S.Ct. at 2816-17.

The Second Amendment provides as follows: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. Last year, in Heller, the Supreme Court interpreted this language to "guarantee [an] individual right to possess and carry weapons in case of confrontation." 128 S.Ct. at 2797. In Heller, the Court held that the District of Columbia's ban on handgun possession in the home by law-abiding citizens violated the Second Amendment. Id. In dictum, the Court qualified the right to bear arms: "[l]ike most rights, [it] is not unlimited." Id. at 2816. "[N]othing in [Heller] should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings. . . ." Id. at 2816-17. While the Court did not specifically mention § 922(g)(9), it included a footnote to clarify that the enumerated "presumptively lawful regulatory measures [are] only examples; [this] list does not purport to be exhaustive." Id. at 2817 n. 26.

We are called upon to decide whether the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence, § 922(g)(9), warrants inclusion on Heller's list of presumptively lawful longstanding prohibitions. As the Supreme Court recently noted, § 922(g)(9) was passed in 1996 in response to Congress's concern that "[e]xisting felon-in-possession laws . . . were not keeping firearms out of the hands of domestic abusers, because 'many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.'" Hayes, 129 S.Ct. at 1087 (quoting 142 Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg)). Section 922(g)(9) was designed to "'close this dangerous loophole.'" Id. By way of example, the federal ban on felons-in-possession in § 922(g)(1)—a statute characterized in the Heller dictum as a presumptively lawful

*1206

longstanding prohibition—does not distinguish between the violent and non-violent offender. Thus, both an armed robber and tax evader lose their right to bear arms on conviction under § 922(g)(1). In contrast, a person convicted under § 922(g)(9) must have first acted violently toward a family member or domestic partner, a predicate demonstrated by his conviction for a misdemeanor crime of violence. Thus, although passed relatively recently, § 922(g)(9) addresses the thorny problem of domestic violence, a problem Congress recognized was not remedied by "longstanding" felon-in-possession laws. We see no reason to exclude § 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast doubt. See In re United States, 578 F.3d 1195 (10th Cir. 2009) (order) ("Nothing suggests that the Heller dictum, which we must follow, is not inclusive of § 922(g)(9) involving those convicted of misdemeanor domestic violence.").

We now explicitly hold that § 922(g)(9) is a presumptively lawful "longstanding prohibition[] on the possession of firearms." Heller, 128 S.Ct. at 2816-17. Given that Heller does not cast doubt on the constitutionality of § 922(g)(9), we affirm White's conviction.

AFFIRMED.

NOTES

[*] Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation.

[1] Under Alabama Code § 13A-6-8A, harassment occurs "if, with intent to harass, annoy, or alarm another person, [he] . . . [s]trikes, shoves, kicks, or otherwise touches a person or subjects [him] to physical contact . . . [or][d]irects abusive or obscene language or makes an obscene gesture towards another person." Id. A person commits domestic violence in the third degree if he commits the crime of harassment under § 13A-6-8A and "the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant." § 13A-6-132.

[2] Thus, we decline to reach the question of whether the smell of marijuana, which Latham failed to articulate but the district court held was present, can be considered in determining the legality of the pat-down search.

[3] White does not argue that the Alabama statute does not contain the use of physical force as an element of the offense. Consequently, he has abandoned this argument on appeal. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.1998) ("Because [defendant] has offered no argument on [an] issue on appeal, we find that he has abandoned it.").

nolu chan posted on 2018-06-18 11:36:04   Reply   Private Reply

#327: tpaine    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

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...

tpaine posted on 2018-06-18 11:41:36   Reply   Private Reply

#328: misterwhite    To: nolu chan (#326)

MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 7

I said federal law trumps state law, though it looks like states may be able to ignore the Supremacy Clause if they want to.

misterwhite posted on 2018-06-18 12:38:11   Reply   Private Reply

#329: nolu chan    To: misterwhite (#328)

[misterwhite #328] I said federal law trumps state law

Actually, you said this:

[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).

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.

[misterwhite #328] though it looks like states may be able to ignore the Supremacy Clause if they want to.

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:

LUDIVIC WHITE
Register Number: 10224-003
Age: 41
Race: Black
Sex: Male
Released On: 03/27/2014

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.

nolu chan posted on 2018-06-18 17:29:58   Reply   Private Reply

#330: nolu chan    To: misterwhite, tpaine (#328)

[tpaine #327] Bobbie actually hopes that people go to jail for machine guns. -- He is actually an anti-gun nut who believes a State can ban ANY gun.

Just ask him...

Oh hell, why not.

Are you actually an anti-gun nut who believes a State can ban ANY gun?

nolu chan posted on 2018-06-18 17:40:46   Reply   Private Reply

#331: misterwhite    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?

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?

misterwhite posted on 2018-06-18 17:47:35   Reply   Private Reply

#332: misterwhite    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?

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.

misterwhite posted on 2018-06-18 17:53:08   Reply   Private Reply

#333: misterwhite    To: nolu chan (#330)

Are you actually an anti-gun nut who believes a State can ban ANY gun?

Don't believe that asshole. He lies. I'm pro-gun and pro-constitution -- state and federal.

Prior to Heller, if a state constitution did not protect an individual RKBA, of course a state could ban the individual ownership of guns -- as long as it didn't interfere with maintaining a state militia. States ban certain products (eg., dangerous toys) for health and safety reasons, certainly they could ban guns for the same reason.

And if the majority of citizens of some state, acting through their state representatives, wanted to do that, who am I to tell them how to live?

But states would never get the votes.

misterwhite posted on 2018-06-18 18:23:37   Reply   Private Reply

#334: tpaine    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?

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..

tpaine posted on 2018-06-18 19:12:52   Reply   Private Reply

#335: nolu chan    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?

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?

nolu chan posted on 2018-06-19 11:09:29   Reply   Private Reply

#336: nolu chan    To: misterwhite (#332)

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?

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?

- - - - - - - - - -

"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.

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.

"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.

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.

nolu chan posted on 2018-06-19 11:10:56   Reply   Private Reply

#337: nolu chan    To: misterwhite (#333)

Are you actually an anti-gun nut who believes a State can ban ANY gun?

[misterwhite #333] Don't believe that asshole. He lies. I'm pro-gun and pro-constitution -- state and federal.

[misterwhite #2]

The second amendment doesn't protect arms for ordinary citizens. It protects state militias and the arms of state militia members from federal infringement. What are those arms? They are the arms selected by the state militia as necessary for the protection of the state. Round peg. Round hole.

So what protects the individual right to keep and bear arms? State constitutions.

You have repeatly declared Heller not to be the law, and have repeatedly stated that the 2nd Amendment does not protect an individual's right to keep and bear arms. You have stated that if a state constitution allows it, cities and towns can enact and enforce gun bans.

[misterwhite #46]

Seems to me the only reason you like the Heller decision is because it supports your view. I guess those justices never heard of stare decisis.

[misterwhite #48]

When you examine it (as I have) it only protected the right for those eligible to participate in a state militia. What a coincidence, huh? And the second amendment references a militia! Another coincidence!

Yet you expect me to believe it applies to all individuals.

The fundamental individual right of the people belongs to the people, not the militia.

[misterwhite #65]

Don't bother citing Heller. I told you the court got it wrong.

[misterwhite #66]

Book the First - Chapter the First: Of the Absolute Rights of Individuals

I never said they didn't have the right. They do. Just that the second amendment doesn't protect it.

[misterwhite #79]

True. And before the Bill of Rights was selectively incorporated, states banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion.

"That is what you blather you want to return to?"

You bet!

You have a strange way of expressing your "pro-constitution" views.

[misterwhite #81]

Meaning, the second amendment has nothing to do with protecting some handgun for self-defense in the home. It's a restriction on the federal government to leave the state militias (and their weapons) alone.

Note: The Federal government OWNS all of the National Guard weapons, not the State. The National Guard weapons are provided by the Federal governent and remain the property of the Federal government. In case of a war, or threatened war, the Federal government can requisition all of its weapons back for Federal use as it sees fit.

[misterwhite #85]

I'm saying the right is NOT protected by the second amendment and IS protected by state constitutions.

[misterwhite #100]

You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns."

Only if the state constitution allows it and the people want it.

The American people, in their great wisdom, added a 2nd Amendment to their Constitution. Cities and towns are not empowered to disarm their inhabitants. If cities and towns wanted it, and the State constitution allowed it, could cities and towns either permit or ban all abortions?

The Illinois case in point in point is Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983). Quilici involved Ordinance No. 81-11. It was held to not violate the 2nd Amendment because the Amendment had not then been incorporated into the 14th Amendment and therefore did not then apply to the states. You voiced your support for a time when one's 2nd Amendment right to keep and bear arms could be taken away by a village council adopting a village ordinance.

McDonald v. City of Chicago, 561 U.S. 742 (2010) incorporated the 2nd Amendment into the 14th Amendment and held that the 2nd Amendment was fully enforceable against the states. It struck down all laws such as Village of Morton Grove, Ilinois Ordinance No. 81-11 and the Chicago and Oak Park ban on citizen possession of handguns.

While you would prefer to cling to a time when the majority vote of a village council could take away the 2nd Amendment fundamental individual right of the people to keep and bear arms, that is now blessedly unconstitutional. If a state constitutional provision authorizes a municipality to ban handgun possession, such provision of the state constitution is null and void, as are any municipal ordinances flowing from such provision.

The American system was not set up as a democracy where a majority decides for all which rights apply. By its design, it was meant to protect the rights of the minority. The right to free speech is not the right to say what meets with majority approval, but to say that which is greeted with overwhelming disapproval.

Illinois, Chicago, Oak Park, and Morton Grove are sterling examples of how states do not protect the 2nd Amendment fundamental individual right of people to keep and bear arms.

[misterwhite #318]

I said state constitutions protect an individual right to keep and bear arms, subject to constitutional federal laws (as per the Supremacy Clause).

Unless enough people simply ignore federal law and start buying illegal machine guns on the black market.

States Rights! Power to the people! Tenth amendment!

As we all know, and as this thread documents, what you accept as constitutional laws is determined by your own personal legal system, rejecting the opinions of the U.S. Supreme Court and the other Federal courts.

[misterwhite #328]

I said federal law trumps state law, though it looks like states may be able to ignore the Supremacy Clause if they want to.

And you hold that it looks like states may be able to ignore the Supremacy Clause if they want to.

Prior to Heller, if a state constitution did not protect an individual RKBA, of course a state could ban the individual ownership of guns -- as long as it didn't interfere with maintaining a state militia.

"Of course," you say, the state (and even towns and villages) had the lawfully delegated power to take away the fundamental individual right of the people to keep and bear arms.

Also note yet again, even after Heller (2008), the 2nd Amendment had not been incorporated into the 14th Amendment and could not be enforced against the states.

It was McDonald v. City of Chicago, 561 U.S. 742 (2010) which incorporated the 2nd Amendment into the 14th Amendment and held that the 2nd Amendment was fully enforceable against the states.

nolu chan posted on 2018-06-19 11:22:17   Reply   Private Reply

#338: misterwhite    To: nolu chan (#335)

The difference is in whether the Federal government wants to spend the effort and money to rigorously enforce marijuana laws.

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.

misterwhite posted on 2018-06-19 12:54:17   Reply   Private Reply

#339: misterwhite    To: nolu chan (#336)

How do state constitutions perform this miracle of restraining an infringing federal government?

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.

misterwhite posted on 2018-06-19 13:06:27   Reply   Private Reply

#340: misterwhite    To: nolu chan (#337)

You have a strange way of expressing your "pro-constitution" views.

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.

misterwhite posted on 2018-06-19 13:17:29   Reply   Private Reply

#341: misterwhite    To: nolu chan (#337)

The fundamental individual right of the people belongs to the people, not the militia.

The fundamental individual right of the people protected by the second amendment belongs to the people of the militia. That's according to the clear language of the second amendment as interpreted for over 200 years.

misterwhite posted on 2018-06-19 13:23:14   Reply   Private Reply

#342: nolu chan    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?

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.

The federal government only needs to prosecute the legislators of one state for sedition and the rest will fall in line.

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?

nolu chan posted on 2018-06-19 16:33:05   Reply   Private Reply

#343: nolu chan    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.

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.

Meaning, the states never thought they'd have to deal with it.

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 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.

nolu chan posted on 2018-06-19 16:34:24   Reply   Private Reply

#344: nolu chan    To: misterwhite (#340)

My "views" are consistent with the language and the intent of the constitutions I cited.

The United States has one Constitution. All state constitutions must conform to it.

How many currently effective constitutions did you cite?

"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.

Only in bizarro world.

McDonald, Syllabus at 561 U.S. 744

The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States.

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)

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. 787: (boldface added)

In Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. 554 U. S., at 598–599. On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.”

nolu chan posted on 2018-06-19 16:35:24   Reply   Private Reply

#345: nolu chan    To: misterwhite (#341)

The fundamental individual right of the people belongs to the people, not the militia.

The fundamental individual right of the people protected by the second amendment belongs to the people of the militia. That's according to the clear language of the second amendment as interpreted for over 200 years.

Recycling this bullshit over and over does not change the fact that it was emphatically and explicitly REJECTED BY THE U.S. SUPREME COURT in Heller and McDonald.

That is according to the clear language of the U.S. Supreme Court. Self-defense was the central component of the right itself.

McDonald at 561 U.S. 787: (boldface added)

In Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. 554 U. S., at 598–599. On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.”

nolu chan posted on 2018-06-19 16:36:13   Reply   Private Reply

#346: misterwhite    To: nolu chan (#342)

Murder is a crime and mopery is a crime.

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.

misterwhite posted on 2018-06-19 17:04:22   Reply   Private Reply

#347: misterwhite    To: nolu chan (#342)

"Sedition is illegal action tending to cause the disruption and overthrow of the government."

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.

misterwhite posted on 2018-06-19 17:08:19   Reply   Private Reply

#348: misterwhite    To: nolu chan (#343)

You claim that state constitutions protect the fundamental individual right to keep and bear arms.

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.

misterwhite posted on 2018-06-19 17:12:59   Reply   Private Reply

#349: misterwhite    To: nolu chan (#343)

Now you claim the states never thought they would have to deal with the matter.

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.

misterwhite posted on 2018-06-19 17:28:54   Reply   Private Reply

#350: misterwhite    To: nolu chan (#344)

How many currently effective constitutions did you cite?

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.

misterwhite posted on 2018-06-19 17:34:48   Reply   Private Reply

#351: misterwhite    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.

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.

misterwhite posted on 2018-06-19 17:40:51   Reply   Private Reply

#352: misterwhite    To: nolu chan (#345)

"Self-defense was the central component of the right itself."

Not in the second amendment. It was in state constitutions.

The second amendment refers to the security of a free State. Most state constitutions read "that every citizen has a right to bear arms in defense of himself and the state".

misterwhite posted on 2018-06-19 17:47:48   Reply   Private Reply