https://supreme.justia.com/cases/federal/us/554/570/opinion.html

http://www.supremecourt.gov/opinions/boundvolumes/554bv.pdf

District of Columbia v Heller, 554 US 570 (2008)

From Heller at 581:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

Heller at 582:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Heller at 584:

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

Heller at 620:

We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ”

Heller at 624-25:

“In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.

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

Heller at 626:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).

Heller at 627-28:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Black's Law Dictionary, 6 Ed.

Arms. Anything that a man wears for his defense, or takes in his hands as a weapon.

The "right to keep and bear arms" existed in the colonies, was brought forth into the states before the union, and was protected by the 2nd Amendment. The right which existed in the colonies came from the English common law. The Framers saw no need to explain to themselves what that right to keep and bear arms was.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

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

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

Heller at 593-95:

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.

And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833).

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.

Heller at 626-28:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

"... by restricting the amendment to common arms."

They had to ... if they were going to rule that the second amendment protected an individual right. You can't have ordinary citizens with tanks, SAMs, flame throwers and machine guns.

As I said at the time, this is what happens when trying to fit a square peg into a round hole. You destroy the square peg.

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

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

if they were going to rule that the second amendment protected an individual right. You can't have ordinary citizens with tanks, SAMs, flame throwers and machine guns.

The second amendment doesn't protect arms for ordinary citizens.

The second amendment protects arms for ordinary citizens.

Ordinary arms are the means used by citizens to obtain tanks, SAMs, flame throwers and machine guns etc, --- from their enemies...

You can't have ordinary citizens with tanks, SAMs, flame throwers and machine guns.

As I said at the time, this is what happens when trying to fit a square peg into a round hole. You destroy the square peg.

Yes, you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns. Title 10 Section 311 Part (b) 2 says this quite clearly

http://uscode.house.gov/view.xht...ort&fq=true&num=5&hl=true

People out there have this strong hatred for the Second Amendment, and to deliberately dismantle the meaning of "militia" and who they are comprised of, for the sole purpose of depriving the ordinary citizen that lawful Right which has long been recognized in our law books as a personal right. The statute I pointed out is recognized as part of the positive law already in our United States Codes in the Table of Contents as the original positive law. State Constitutions must be concomitant with the original federal constitution, chiefly the Bill of Rights. The purpose of invoking boiler plate case law in this matter is to confuse the issue thus clouding what the reasonable intent of the Second Amendment was intended to be for. The statute I referenced (Title 10 USC. Sec 311 (b) (2) makes it quite clear who the militia are. Unlike the professional standing army, the Class (b) (2) militia is comprised of those like you and me. The professional standing army is controlled by the federal government which includes your State Governors who use their own armies to be deployed when necessary to establish the peace. Contrary to this, We as the general member of the public, represent that second class of being the unprofessional army in that the purpose of having those cannons, tanks, SAMs, and flamethrowers, is to maintain these tools in a safe manner and teach our children about them. Our militia serves for the purpose of protecting not our homeland and overseas but to protect our home and personal property from professional standing armies being used by rogue governments who desire to override our rights as a free people.

Yes, you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns.

If those ordinary citizens are part of a state militia, then those weapons are protected by the second amendment. Each state, however, decides how and where those weapons will be kept.

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

The Federal Constitution.

The 2nd Amendment created no right. It protected a right already existing in the people who chose to become part of the constitutional union. That right to keep and bear arms belonged to the colonists as English citizens under English common law.

The Bill of Rights had no application but to the Federal government when written. The BOR was applied to the states by the 14th Amendment.

Some original states did not adopt the common law in their constitution, but all either did in their constitution or by statute.

The 2nd Amendment prohibits the Federal government from infringing upon the right. It explicitly identifies a power that has not been delegated. The right was defined in English common law and carried forward into the American union.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

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

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

Each state, however, decides how and where those weapons will be kept.

No, the statute clearly states those classifications of the militia. This is where the deceit in the law has been pushed by the anti-gun lobbyists. They know exactly what they are doing because it is they who are aiding and abetting terrorists by pushing for open borders and allowing all these third world people; many of which are terrorists, into this country. They are the ones bringing in the chaos to disrupt and overthrow this government. Furthermore, it is not our government that is protecting the John Q. Public but rather the John Q. Public comprised of those able-bodied citizens who are being demonized for trying to protect their property and family from a rogue government that does not give a damn about them let alone safety for the American people.

Yes, you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns. Title 10 Section 311 Part (b) 2 says this quite clearly

No, it does not. It says nothing about ordinary citizens with tanks, SAMs, flame throwers, or machine guns.

http://law.justia.com/codes/us/2012/title-10/subtitle-a/part-i/chapter-13/section-311/

THE MILITIA - 10 U.S.C. § 311 (2012)

§311. Militia: composition and classes

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

(b) The classes of the militia are—

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

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

(Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85–861, §1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103–160, div. A, title V, §524(a), Nov. 30, 1993, 107 Stat. 1656.)

The RKBA, as defined in English common law, and brought forth into the American union, never applied to weapons other than those which were lawful to possess. What is lawful to possess is determined by law.

The statute I referenced (Title 10 USC. Sec 311 (b) (2) makes it quite clear who the militia are.

The part of a statute you reference [10 USC § 311(b)(2)] does nothing more than define one class of the militia designated as the "unorganized militia."

It does not state that this class may possess weapons or arms that the law has determined are unlawful to possess, or which require a license to possess.

Citizens may possess tanks, SAMs, flame throwers and machine guns if they have a proper license to possess them.

The part of a statute you reference [10 USC § 311(b)(2)] does nothing more than define one class of the militia designated as the "unorganized militia."

It does not state that this class may possess weapons or arms that the law has determined are unlawful to possess, or which require a license to possess.

Citizens may possess tanks, SAMs, flame throwers and machine guns if they have a proper license to possess them.

And that class of the unorganized militia is what our founding fathers stood for. They did not believe in a federal militia which is why that Class (b)(2) applies. The Other classifications of the militia apply to the federal militias and those organized and deployed by the Governors of each State of the union. Those are the ones you invoke are the "lawful" militia in accordance with your case law. But the statute I just posted clearly addresses who those unprofessional class of militias are. They are, indeed, a member of our militias who have the right to own cannnons, flamethrowers, and etc. And this is what all the big fuss is about when there really is no need for any at all. When you cannot trust your own government to protect you, it becomes the dire duty of those very citizens to buckle down and take back their government even if by means of arms. We see this happen in Russia where the citizens are protesting against their government. And boy do they. We see this happen in Egypt where the people of Cairo protest against unruly leaders unfit to lead.

But in this great country of America, we have those who tells us the law does not imply the right for citizens to bear arms. This is not only false in its entirety, but unAmerican and falls under seditious speech doctrine! You people want your war... well then bring it on.

[goldilucky #7] Yes, you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns. Title 10 Section 311 Part (b) 2 says this quite clearly

- - - - - - - - - -

[goldilucky #] But the statute I just posted clearly addresses who those unprofessional class of militias are. They are, indeed, a member of our militias who have the right to own cannnons, flamethrowers, and etc.

That is your misguided interpretation of a constitutional provision which has no such content.

No only does the cited provision not say it clearly, it does not say it at all.

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

So you're sayng the Founders trusted the newly-formed Federal government so much that they were willing to rely on them to protect the right of ordinary citizens to keep and bear arms? Hah!

As you said, the Federal government was not given the power to interfere with State militias or the arms of their members -- yet the Founders wrote the second amendment anyways. Because they didn't trust the newly-formed Federal government, and the states refused to support the U.S. Constitution unless it contained a Bill of Rights.

No, it is your case law you posted that completely misinterprets who the lawful members of the militia are. Your case law never details those two classifications of the militia. Not once did you even make reference to Title 10 of the armed forces and the militia.

What the heck do think I quoted at #8 ???

I did not quote case law, I quoted the Federal statute, Title 10 United States Code Section 311.

You had stated at #4 that, "Title 10 Section 311 Part (b) 2 says this quite clearly...."

You quoted nothing.

I quoted the section of law [10 USC § 311] which you claimed says quite clearly that you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns. In fully quoting your claimed source, I readily demonstrated that it does not say a mumbling word about tanks, SAMs, flame throwers or machine guns, neither quite clearly, nor even opaquely.

Now that I have told you what it is, perhaps you will recognize it is what you cited but failed to quote.

http://law.justia.com/codes/us/2012/title-10/subtitle-a/part-i/chapter-13/section-311/

THE MILITIA - 10 U.S.C. § 311 (2012)

§311. Militia: composition and classes

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

(b) The classes of the militia are—

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

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

(Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85–861, §1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103–160, div. A, title V, §524(a), Nov. 30, 1993, 107 Stat. 1656.)

So you're sayng the Founders trusted the newly-formed Federal government so much that they were willing to rely on them to protect the right of ordinary citizens to keep and bear arms? Hah!

No, those are your words. I did not say that.

As you said, the Federal government was not given the power to interfere with State militias or the arms of their members -- yet the Founders wrote the second amendment anyways.

I definitely did not say that either. The Founders were the guys around at the revolution and the founding.

The Framers were those who crafted the original Constitution at a constitutional convention.

The Bill of Rights was introduced in the first Congress of the United States. Representative James Madison first introduced amendments on June 8, 1789, as recorded in:

The Congressional Register; or History of the Proceedings and Debates of the First House of Representatives of the United States of America, Namely,

New-Hampshire, Massachusetts, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, South-Carolina and Georgia

Being the ELEVEN STATES that have Ratified the Constitution of the Government of the United States.

https://www.scribd.com/doc/271187763/Congressional-Register-Volume-1-aka-Lloyd-s-Debates-1789

See Madison, on June 8, 1789, at page 414.

At the time that the matter of the amendments to the Constitution were taken up in the Congress, there were ELEVEN states in the union, Rhode Island and North Carolina having not ratified the Constitution.

The amendments, later called the Bill of Rights, were not introduced at a Constitutional Convention of Framers, but at a congressional committee of the then eleven states of the union.

Because they didn't trust the newly-formed Federal government, and the states refused to support the U.S. Constitution unless it contained a Bill of Rights.

The Constitution had been ratified and the new government had been formed before the amendments to become the Bill of Rights were introduced in the first House of Representatives by Representative Madison on June 8, 1789.

Citizens may possess tanks, SAMs, flame throwers and machine guns if they have a proper license to possess them.

When citizens have to get permission from their governments to possess tanks, SAMs, flamethrowers and machine guns, they do not have rights but instead as you are plainly stating it, they have privileges...not rights. And this is also wrong. In a society where only a privileged few can possess such artillery and machine guns, the rest of those citizens are not free.

You don't get the government to grant you a privilege for something you already have ...and that is a personal Right. You do not license rights....only privileges. Either that Right exist or it doesn't.

If I was your neighbor. You can bet your ass I'd have a cannon pointed at your house 247!

Assuming all your "imagination" came to fruition, I think you would load the cannon with another Pant load; worthless bullshit in other words.

If I was your neighbor. You can bet your ass I'd have a cannon pointed at your house 247!

That's why you can't have one. When they do a background check on you it states, "No cannon for you!"

In a society where only a privileged few can possess such artillery and machine guns, the rest of those citizens are not free.

The federal government cannot prevent states from possessing such armament. You're free if you trust your state. The Founders did.

So you're sayng the Founders trusted the newly-formed Federal government so much that they were willing to rely on them to protect the right of ordinary citizens to keep and bear arms? Hah!

No, those are your words. I did not say that.

Yeah, you did.

When I asked and answered my question, "So what protects the individual right to keep and bear arms? State constitutions", you replied, "The Federal Constitution."

The Constitution had been ratified and the new government had been formed before the amendments to become the Bill of Rights were introduced in the first House of Representatives by Representative Madison on June 8, 1789.

More correctly, "The Constitution had been ratified and the new government had been formed because the amendments to become the Bill of Rights were promised by Representative Madison".

As you said, the Federal government was not given the power to in interfere with State militias or the arms of their members -- yet the Founders wrote the second amendment anyways.

I definitely did not say that either. The Founders were the guys around at the revolution and the founding.

Oh, please. It that your argument? Nitpicking wordplay?

You acknowledged that the second amendment "identifies a power that has not been delegated". Meaning, the U.S. Constitution did not give the Federal government the power to disband the State militias and confiscate their arms. Yet James Madison wrote the second amendment anyways and the Founders/Framers signed it.

Yes, you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns. Title 10 Section 311 Part (b) 2 says this quite clearly

Title 10 Section 311 Part(b)2 refers to the "unorganized militia" of a state. Currently, 21 States have State Defense Forces (also called State Military, State Guards, or State Military Reserves), authorized by state and federal law and under the command of the governor of each state.

State Defense Forces are distinct from their state's National Guard in that they cannot become federal entities.

I am not aware that any State Defense Force allows their personnel to own SAMs, machine guns, or flamethrowers.

The federal government cannot prevent states from possessing such armament. You're free if you trust your state. The Founders did.

You are not free if you trust your state. The founders did not create states for people to depend on If this were the case, we'd be living under Communism.

I am not aware that any State Defense Force allows their personnel to own SAMs, machine guns, or flamethrowers.

That's because you are not aware that Title 10 Section 311 (b) (2) applies to the John Q. Public in general. And you should be aware of its existence because it has been in the books for a long time.

You state the following:

Title 10 Section 311 Part(b)2 refers to the "unorganized militia" of a state. Currently, 21 States have State Defense Forces (also called State Military, State Guards, or State Military Reserves), authorized by state and federal law and under the command of the governor of each state.

What you are referring to is Title 10 Section 311 (a) in reference to the professional standing army. This section is reserved for the professional standing army only.

In our Bill of Rights, the purpose of referring to Title 10 Section 311 (b)(2) is to prevent violations of the Third Amendment from happening on private property. We see this happening a lot but the US Supreme Court does not discuss the importance of the Third Amendment regarding quartering of US troops and professional standing armies on private property. No, the founding fathers did not want for professional standing armies to be used on private property. An example of this was the 1992 Ruby Ridge case.

Because they didn't trust the newly-formed Federal government, and the states refused to support the U.S. Constitution unless it contained a Bill of Rights.

The Constitution, as ratified, flatly did not contain a Bill of Rights.

As you said, the Federal government was not given the power to interfere with State militias or the arms of their members -- yet the Founders wrote the second amendment anyways.

Neither the Founders nor Framers wrote the Second Amendment. It was a product of the first U.S. Congress. It was not an initiative of the people, as was the Constitution written at a convention, it was an initiative of the Federal legislature.

The Second Amendment to the Federal Constitution protects the individual right to keeep and bear arms.

So you're sayng the Founders trusted the newly-formed Federal government so much that they were willing to rely on them to protect the right of ordinary citizens to keep and bear arms? Hah!

I documented that they relied on the United States legislature to draft the Bill of Rights and offer it to the States for ratification.

What you are referring to is Title 10 Section 311 (a) in reference to the professional standing army.

No. Title 10 Section 311 (a) refers to the members of the militia.

Title 10 Section 311(b)(1) refers to the National Guard.

Title 10 Section 311(b)(2) refers to the unorganized militia (e.g., State Defense Forces).

Neither the Founders nor Framers wrote the Second Amendment.

Did I say they did? I think we all know James Madison (a Founding Father) wrote the second amendment and introduced it to Congress. Because the Federal government wasn't to be trusted. Which was my point.

That's because you are not aware that Title 10 Section 311 (b) (2) applies to the John Q. Public in general. And you should be aware of its existence because it has been in the books for a long time.

You state the following:

Title 10 Section 311 Part(b)2 refers to the "unorganized militia" of a state. Currently, 21 States have State Defense Forces (also called State Military, State Guards, or State Military Reserves), authorized by state and federal law and under the command of the governor of each state.

What you are referring to is Title 10 Section 311 (a) in reference to the professional standing army. This section is reserved for the professional standing army only.

You do not know what you are talking about.

10 U.S.C. § 311 pertains to the militia. And no, the militia is not the regular troops or standing army. No part of 10 U.S.C. § 311 pertains to the regular troops or standing army.

Militia. The body of citizens in a state, enrolled for discipline as a military force, but not engaged in actual service except in emergencies, as distinguished from regular troops or a standing army.

Black's Law Dictionary, 6th Ed.

To become a member of the active duty U.S. Armed Forces, one must sign up to join. To become a member of the militia, one must be the requisite age.

Army. Armed forces of a nation intended for military service on land.

Regular army. The permanent military establishment, which is maintained both in peace and war according to law. Compare Militia.

Black's Law Dictionary, 6th Ed.

Navy. A fleet of ships; the aggregate of vessels of war belonging to a nation. In a broader sense, and as the equivalent to "naval forces," the entire corps of officers and men enlisted in the naval service and who man the public ships of war, including in this sense, the officers and men of the Marine Corps.

Black's Law Dictionary, 6th Ed

The regular armed forces consists of persons who have been commissioned (officers) or who have enlisted (members).

To become part of the regular armed forces, you obtain a commission or enlist. To become part of the militia, or to cease being part of the militia, you have a birthday.

I am not aware that any State Defense Force allows their personnel to own SAMs, machine guns, or flamethrowers.

I am unaware of any military base that allows active duty military living on base to have their own private SAMs, machine guns, or flamethrowers.

Except for authorized persons with authorized weapons, on base personnel are not authorized to be armed, concealed carry or otherwise. One cannot transport their private gun onto a base in their vehicle either.

Neither the Founders nor Framers wrote the Second Amendment.

Did I say they did?

Yeah, you did, and I quoted you saying it. I'll quote you again and bold face it so you can see it.

[misterwhite #11] As you said, the Federal government was not given the power to interfere with State militias or the arms of their members -- yet the Founders wrote the second amendment anyways. Because they didn't trust the newly-formed Federal government, and the states refused to support the U.S. Constitution unless it contained a Bill of Rights.

Neither the Founders, nor the Framers, wrote the Bill of Rights. It was written in the U.S. Congress.

The states ratified the Constitution and Washington was inaugurated, and the new government was formed without a Bill of Rights in existence.

yet the Founders wrote the second amendment anyways.

Fine. Yet the Founders wrote included the second amendment anyways.

And it wasn't written in the U.S. Congress. It was written by Founding Father James Madison, modified, and passed by the U.S. Congress.

and the new government was formed without a Bill of Rights in existence.

So? Madison promised that one would follow. They believed him and he delivered.

Yet the Founders wrote included the second amendment anyways.

And it wasn't written in the U.S. Congress. It was written by Founding Father James Madison, modified, and passed by the U.S. Congress.

The Founders held a revolution. They did not include the second amendment in the Declaration of Independence or Articles of Confederation.

The Framers attended a Constitutional Convention and crafted the text of the original Constitution, as ratified, with NO amendments.

Representative Madison, as a member of Congress, initiated the process of calling for drafting of amendments by the Congress.

Madison's congressional campaign pledge to introduce amendments to the Constitution came after ratification. He was not running for Congress before there was a Constitution.

Madison was the primary author of most of the amendments that were adopted as the Bill of Rights, but what Madison proposed is not what came out of the congressional sausage machine. His draft was amended in the House, further amended in the Senate, further amended by the House-Senate Conference Committee, and the Committee issued a report with their final draft.

It was written in the Congress.

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

Proposal and ratification

Anticipating amendments

James Madison, primary author and chief advocate for the Bill of Rights in the First Congress

The 1st United States Congress, which met in New York City's Federal Hall, was a triumph for the Federalists. The Senate of eleven states contained 20 Federalists with only two Anti-Federalists, both from Virginia. The House included 48 Federalists to 11 Anti-Federalists, the latter of whom were from only four states: Massachusetts, New York, Virginia and South Carolina.[34] Among the Virginia delegation to the House was James Madison, Patrick Henry's chief opponent in the Virginia ratification battle. In retaliation for Madison's victory in that battle at Virginia's ratification convention, Henry and other Anti-Federalists, who controlled the Virginia House of Delegates, had gerrymandered a hostile district for Madison's planned congressional run and recruited Madison's future presidential successor, James Monroe, to oppose him.[35] Madison defeated Monroe after offering a campaign pledge that he would introduce constitutional amendments forming a bill of rights at the First Congress.[36]

Originally opposed to the inclusion of a bill of rights in the Constitution, Madison had gradually come to understand the importance of doing so during the often contentious ratification debates. By taking the initiative to propose amendments himself through the Congress, he hoped to preempt a second constitutional convention that might, it was feared, undo the difficult compromises of 1787, and open the entire Constitution to reconsideration, thus risking the dissolution of the new federal government. Writing to Jefferson, he stated, "The friends of the Constitution, some from an approbation of particular amendments, others from a spirit of conciliation, are generally agreed that the System should be revised. But they wish the revisal to be carried no farther than to supply additional guards for liberty."[37] He also felt that amendments guaranteeing personal liberties would "give to the Government its due popularity and stability".[38] Finally, he hoped that the amendments "would acquire by degrees the character of fundamental maxims of free government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion".[39] Historians continue to debate the degree to which Madison considered the amendments of the Bill of Rights necessary, and to what degree he considered them politically expedient; in the outline of his address, he wrote, "Bill of Rights—useful—not essential—".[40]

On the occasion of his April 30, 1789 inauguration as the nation's first president, George Washington addressed the subject of amending the Constitution. He urged the legislators,

whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience; a reverence for the characteristic rights of freemen, and a regard for public harmony, will sufficiently influence your deliberations on the question, how far the former can be impregnably fortified or the latter be safely and advantageously promoted.[41][42]

- - - - - - - - - -

James Madison's proposed amendments to the Constitution:[49]

First. That there be prefixed to the constitution a declaration that all power is originally vested in, and consequently derived from the people.

That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

Secondly. That in article 1st, section 2, clause 3, these words be struck out, to wit: "The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made;" and in place thereof be inserted these words, to wit: "After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to—, after which the proportion shall be so regulated by Congress, that the number shall never be less than—, nor more than—, but each State shall, after the first enumeration, have at least two Representatives; and prior thereto."

Thirdly. That in article 2nd, section 6, clause 1, there be added to the end of the first sentence, these words, to wit, "But no law varying the compensation last ascertained shall operate before the next ensuing election of representatives."

Fourthly. That in article 2nd, section 9, between clauses 3 and 4, be inserted these clauses, to wit, The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same office; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Fifthly. That in article 2nd, section 10, between clauses 1 and 2, be inserted this clause, to wit: No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases

Sixthly. That article 3rd, section 2, be annexed to the end of clause 2nd, these words to wit: but no appeal to such court shall be allowed where the value in controversy shall not amount to — dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.

Seventhly. That in article 3rd, section 2, the third clause be struck out, and in its place be inserted the classes following, to wit:

The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same State, as near as may be to the seat of the offence.

In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit:

The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments.

The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.

Ninthly. That article 7th, be numbered as article 8th.

- - - - - - - - - -

Federalist representatives were quick to attack Madison's proposal, fearing that any move to amend the new Constitution so soon after its implementation would create an appearance of instability in the government.[50] The House, unlike the Senate, was open to the public, and members such as Fisher Ames warned that a prolonged "dissection of the constitution" before the galleries could shake public confidence.[51] A procedural battle followed, and after initially forwarding the amendments to a select committee for revision, the House agreed to take Madison's proposal up as a full body beginning on July 21, 1789.[52][53]

The eleven-member committee made some significant changes to Madison's nine proposed amendments, including eliminating most of his preamble and adding the phrase "freedom of speech, and of the press".[54] The House debated the amendments for eleven days. Roger Sherman of Connecticut persuaded the House to place the amendments at the Constitution's end so that the document would "remain inviolate", rather than adding them throughout, as Madison had proposed.[55][56] The amendments, revised and condensed from twenty to seventeen, were approved and forwarded to the Senate on August 24, 1789.[57]

The Senate edited these amendments still further, making 26 changes of its own. Madison's proposal to apply parts of the Bill of Rights to the states as well as the federal government was eliminated, and the seventeen amendments were condensed to twelve, which were approved on September 9, 1789.[58] The Senate also eliminated the last of Madison's proposed changes to the preamble.[59]

On September 21, 1789, a House–Senate Conference Committee convened to resolve the numerous differences between the two Bill of Rights proposals. On September 24, 1789, the committee issued this report, which finalized 12 Constitutional Amendments for House and Senate to consider. This final version was approved by joint resolution of Congress on September 25, 1789, to be forwarded to the states on September 28.[60][61]

So? Madison promised that one would follow. They believed him and he delivered.

Madison's promise came as a campaign pledge while running for Congress against James Monroe. That is after the Constitution was ratified.

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

Proposal and ratification

Anticipating amendments

James Madison, primary author and chief advocate for the Bill of Rights in the First Congress

The 1st United States Congress, which met in New York City's Federal Hall, was a triumph for the Federalists. The Senate of eleven states contained 20 Federalists with only two Anti-Federalists, both from Virginia. The House included 48 Federalists to 11 Anti-Federalists, the latter of whom were from only four states: Massachusetts, New York, Virginia and South Carolina.[34] Among the Virginia delegation to the House was James Madison, Patrick Henry's chief opponent in the Virginia ratification battle. In retaliation for Madison's victory in that battle at Virginia's ratification convention, Henry and other Anti-Federalists, who controlled the Virginia House of Delegates, had gerrymandered a hostile district for Madison's planned congressional run and recruited Madison's future presidential successor, James Monroe, to oppose him.[35] Madison defeated Monroe after offering a campaign pledge that he would introduce constitutional amendments forming a bill of rights at the First Congress.[36]

My point was that they did not trust the federal government. The BOR is proof of that.

In your dreams. The Congressional Register, on the amendments, holds otherwise.

Congressional Register, Vol. 2, p. 107

July 21, 1789

Mr. GERRY

He wished gentlemen to consider the situation of the states—seven out of thirteen had thought the constitution very defective, yet five of them has adopted it with a perfect reliance on congress for its improvement....

"A perfect reliance on the congress."

"A perfect reliance on the congress."

One more time.

"A perfect reliance on the congress."

Or, as you put it at #11,

the states refused to support the U.S. Constitution unless it contained a Bill of Rights.

I believe he's thinking private paramilitary groups like the Michigan Militia (Wolverines) qualify as the "unorganized militia" and are protected by the second amendment.

The 2nd Amendment protects the RKBA of individuals and is not restricted to militia or any other group. Individuals in the Wolverines are protected by the 2nd Amendment. However, the RKBA has never protected some imaginary right to bear RPGs, SAMs, machine guns, or flamethrowers. That was not the right enjoyed under English common law by the colonists, and is not the right they brought forward with them into the United States.

He wished gentlemen to consider the situation of the states—seven out of thirteen had thought the constitution very defective, yet five of them has adopted it with a perfect reliance on congress for its improvement....

As I said, they didn't like it but they trusted Madison to add a Bill of Rights.

"The 2nd Amendment protects the RKBA of individuals and is not restricted to militia or any other group."

That's how the Heller court ruled, yes. They were wrong, but that's their ruling.

"However, the RKBA has never protected some imaginary right to bear RPGs, SAMs, machine guns, or flamethrowers."

Not even for the well-regulated and organized State militias? I seem to recall that Article 1, Section 8, Clause 16 calls for "organizing, arming, and disciplining the Militia."

We're going to have a dificult time protecting ourselves from an out-of-control Federal government with just the handguns protected by Heller.

We're going to have a dificult time protecting ourselves from an out-of-control Federal government with just the handguns protected by Heller.

You're going to have a difficult time period with just the fact that right now there are millions of seriously armed people in this country that are absolutely not members of the organized professional standing army.

And I can tell you this, that for those like yourselves and others who stand only for an organized trained militia, there will come a time when you will need the backing of those "untrained" ones. I see that coming soon because this country is long overdue for a revolution.

You're going to have a difficult time period with just the fact that right now there are millions of seriously armed people in this country that are absolutely not members of the organized professional standing army.

What happens when some future U.S. Supreme Court rules that the second amendment doesn't protect hanguns? Or assault rifles?

Do you trust them or your own state to protect your gun rights?

As I said, they didn't like it but they trusted Madison to add a Bill of Rights.

It took both houses of Congress and 3/4th of the states to add any amendment. Madison had one vote in the House and no say in the Senate.

That's how the Heller court ruled, yes. They were wrong, but that's their ruling.

The Supreme court determines the law. You are entitled to your opinion, but that does not change the law.

Individuals in and out of the militia have the rights to keep and bear arms brought forward by the colonists into America, and the right is protected by the 2nd Amendment. The ancient right came from English common law and predates the Constitution.

Not even for the well-regulated and organized State militias? I seem to recall that Article 1, Section 8, Clause 16 calls for "organizing, arming, and disciplining the Militia."

What arms meant in 1792 is amply described below. It does not expand to any weapon imaginable. The right was not defined in the Constitution because it was well-defined in English common law.

The Militia Act of May 8, 1792 (repealed and replaced 1795).

SECOND CONGRESS. Sess. I. Ch. 33. 1792.

1 Stat. 271

May 8, 1792.

Chap. XXXIII.—An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States.(a)

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That and by whom each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citi­zen shall reside, and that within twelve months after the passing of this act. And it shall at all times hereafter be the duty of every such cap­tain or commanding officer of a company to enrol every such citizen, as aforesaid, and also those who shall, from time to time, arrive at the age of eighteen years, or being of the age of eighteen years and under the age of forty-five years (except as before excepted) shall come to re­side within his bounds; and shall without delay notify such citizen of the said enrolment, by a proper non-commissioned officer of the company, by whom such notice may be proved. That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cart­ridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned officers shall severally be armed with a sword or hanger and espontoon, and that from and after five years from the passing of this act, all muskets for arming the militia as herein required, shall be of bores sufficient for

__________

(a) The acts for the establishment of an uniform system for the government of the militia, are: An act more effectually to provide for the national defence by establishing an uniform militia throughout the United States, May 8, 1792, chap. 33; an act providing arms for the militia throughout the United States. July 6, 1798, chap. 65; an act in addition to an act entitled, “An act more effectually to provide for the national defence, by establishing an uniform militia throughout the United States,” March 2, 1803, chap. 15; an act more effectually to provide for the organizing of the militia of the District of Columbia, March 3, 1803, chap. 20; an act establishing rules and articles for the government of the armies of the United States, April 10, 1806, chap. 20; an act in addition to the act entitled, “An act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and to repeal the act now in force for those purposes,” April 18. 1814, chap. 82; an act concerning field officers of the militia, April 20, 1816, chap. 64; an act to establish an uniform mode of discipline and field exercise for the militia of the United States, May 12, 1820, chap. 96; an act to reduce and fix the military peace establishment of the United States, March 2, 1821, chap. 12, sec. 14.

272

SECOND CONGRESS. Sess. I. Ch. 33. 1792.

balls of the eighteenth part of a pound. And every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid, shall hold the same exempted from all suits, dis­tresses, executions or sales, for debt or for the payment of taxes.

[snip]

The Supreme court determines the law. You are entitled to your opinion, but that does not change the law.

The Heller Supreme court determines the law? Or the Cruikshank Supreme court? Or the Presser Supreme Court? Or the Miller Supreme court?

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

The Heller Supreme court determines the law? Or the Cruikshank Supreme court? Or the Presser Supreme Court? Or the Miller Supreme court?

I'm sorry you must make believe you do not know.

Individuals in and out of the militia have the rights to keep and bear arms brought forward by the colonists into America, and the right is protected by the 2nd Amendment.

The second amendment protected the right of the people to keep and bear arms, not all individuals. The second amendment didn't protect the right for non-citizens, children, women, slaves, or illegals.

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

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

misterwhite (#41) ---- We're going to have a dificult time protecting ourselves from an out-of-control Federal government with just the handguns protected by Heller.

You're going to have a difficult time period with just the fact that right now there are millions of seriously armed people in this country that are absolutely not members of the organized professional standing army.

And I can tell you this, that for those like yourselves and others who stand only for an organized trained militia, there will come a time when you will need the backing of those "untrained" ones. I see that coming soon because this country is long overdue for a revolution. ---- goldilucky

Well done, Goldilucky.. ---- You're one of the many here that have come to realize how our resident closet communitarian, misterwhite, spreads his anti- constitutional agitprop..

Keep up the good work.. This guy is (and has been since the early days of FR) a ringer troll, a near perfect example of 'deep state' thinking.

I'm sorry you must make believe you do not know.

As I said. That's how the Heller court ruled, but I don't agree. Those three cases support my view.

That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock

Do you know why they had to get a musket? Because they didn't have one. They had rifles for hunting because smoothbore muskets were not accurate.

Now, muskets were fine for volley fire used by the militia, they were cheap, and they were fast reloading. But above the fireplace in the home, proudly displayed, was an expensive rifle.

So what is it? Does the second amendment protect arms in common use at the time (rifles) or does it protect the arms used by the militia (muskets)?

Madison had one vote in the House and no say in the Senate.

And yet ...

That's how the Heller court ruled, but I don't agree. Those three cases support my view.

And Plessy v. Ferguson supports the view that separate but equal is lawful, proving the Plessy was overturned Brown.

So what is it? Does the second amendment protect arms in common use at the time (rifles) or does it protect the arms used by the militia (muskets)?

The 2nd Amdt protects the ancient right to keep and bear arms. It does not protect and alleged right to keep Surface to Air Missiles (SAMs). It protects the right to keep and bear arms which are lawful to possess.

When you examine it (as I have) it only protected the right for those eligible to participate in a state militia.

If you say so.

http://law.justia.com/codes/us/2012/title-10/subtitle-a/part-i/chapter-13/section-311/

THE MILITIA - 10 U.S.C. § 311 (2012)

§311. Militia: composition and classes

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

(b) The classes of the militia are—

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

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

(Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85–861, §1(7), Sept. 2, 1958, 72 Stat. 1439; Pub. L. 103–160, div. A, title V, §524(a), Nov. 30, 1993, 107 Stat. 1656.)

You get your RKBA, if you are an able male, when you turn 17 years of age, and are a citizen or have made a declaration of intention to become a citizen of the United States. You lose your RKBA when you turn 45 years of age.

If you are female, you get your RKBA if you are a citizen who is a member of the National Guard, and lose your RKBA if you leave the Guard.

Your logic is a marvel to behold.

The 2nd Amdt protects the ancient right to keep and bear arms

Chan -

You have always inferred that individual rights are subject to government regulation. FUCK OFF AND DIE!

You have always inferred that individual rights are subject to government regulation. FUCK OFF AND DIE!

Fuck off and read some history rather than just speak from ignorance.

One needs to determine what was intended by the term "the right of the people to keep and bear arms" to determine what shall not be infringed. As stated in 1802 and quoted in Lynch v. Clarke in 1844, "The constitution is unintelligible without reference, to the common law."

By the interpretation of some, one must find the Framers intended to protect, and did protect, a right that did not then exist and had never existed in the colonies, the several states or the United States.

It was the colonial common law right to keep and bear arms that was carried forth into the union.

Lynch v. Clarke, New York Legal Observer, Vol 3, 236, 245 (1844)

In 1795, Judge Wilson, of the Supreme Court of the United States, in delivering his charge to the grand jury, in the Virginia Circuit, went into an elaborate dissertation on the jurisdiction of the federal courts over crimes, and after enumerating such as he deemed cognizable by the circuit court, he continued as follows: "In the foregoing catalogue, murder, man slaughter, robbery, piracy, forgery, perjury, bribery and extortion, are mentioned as crimes and offences; but they are neither defined nor described. For this reason we must refer to some pre-existing law for their definition or description. To what pre-existing law should this reference be made? This is a question of immence importance and extent. It must receive an answer, but I cannot, in this address, assign my reasons for the answer which I am about to give. The reference should be made to the common law. To the common law then let us resort for the definition or description of the crimes and offences which in the laws of the United States have been named, but have not been described or defined. You will in this manner, gentlemen, be furnished with a legal standard, by the judicious application of which you may ascertain with precision the true nature and qualities of such facts and transactions as shall become the objects of your consideration and research." (3 Wilson's Works, 357, 371.) And in the debates on the judiciary in 1802, to which I have before alluded, Mr. Bayard, of Delaware, in an able speech in the House of Representatives, said on this subject, (what was not disputed, so far as facts were concerned,) that "the judges of the United States have held generally that the Constitution of the United States was predicated upon an existing common law. Of the soundness of that opinion I never had a doubt. I should scarcely go too far were I to say, that stript of the common law, there would be neither constitution nor government. The constitution is unintelligible without reference, to the common law. And were we to go into our courts of justice with the mere statutes of the United States, not a step could be taken, not even a contempt could be punished. There would be no form of pleading, no principles of evidence, no rule of property. Without this law the constitution becomes a dead letter. For ten years it has been the doctrine of our courts that the common law was in force." (Debates on the Judiciary, 1802, p. 372. And see 1 Story's Comm. on the Const., 140, 141,; § 157, 158, and note 2; 2 ibid, 262 to 267 ; § 794 to 797 ; Rawle on the Const. 258.)

Quotes from State Constitutions

Connecticut - 1776

Paragraph 1. Be it enacted and declared by the Governor, and Council, and House of Representatives, in General Court assembled, That the ancient Form of Civil Government, contained in the Charter from Charles the Second, King of England, and adopted by the People of this State, shall be and remain the Civil Constitution of this State, under the sole authority of the People thereof, independent of any King or Prince whatever.

- - - - -

Delaware 1776

Art. 25. The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention.

- - - - -

Maryland, 1776

III. That the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which, by experience, have been found applicable to their local and other circumstances, and of such others as have been since made in England, or Great Britain, and have been introduced, used and practised by the courts of law or equity; and also to acts of Assembly, in force on the first of June seventeen hundred and seventy-four, except such as may have since expired, or have been or may be altered by acts of Convention, or this Declaration of Rights—subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State: and the inhabitants of Maryland are also entitled to all property, derived to them, from or under the Charter, granted by his Majesty Charles I. to Cæcilius Calvert, Baron of Baltimore.

- - - - -

New Jersey, 1776

XXI. That all the laws of this Province, contained in the edition lately published by Mr. Allinson, shall be and remain in full force, until altered by the Legislature of this Colony (such only excepted, as are incompatible with this Charter) and shall be, according as heretofore, regarded in all respects, by all civil officers, and others, the good people of this Province.

XXII. That the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter; and that the inestimable right of trial by jury shall remain confirmed as a part of the law of this Colony, without repeal, forever.

- - - - -

New York, 1777

XXXV. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the state law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. That such of the said acts, as are temporary, shall expire at the times limited for their duration respectively. That all such parts of the said common law, and all such of the said statutes and acts aforesaid, or parts thereof, as may be construed to establish or maintain any particular denomination of Christians or their ministers, or concern the allegiance heretofore yielded to, and the supremacy, sovereignty, government, or prerogatives claimed or exercised by, the King of Great Britain and his predecessors, over the colony of New York and its inhabitants, or are repugnant to this constitution, be, and they hereby are, abrogated and rejected. And this convention doth further ordain, that the resolves or resolutions of the congresses of the colony of New York, and of the convention of the State of New York, now in force, and not repugnant to the government established by this constitution, shall be considered as making part of the laws of this State; subject, nevertheless, to such alterations and provisions as the legislature of this State may, from time to time, make concerning the same.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

Book the First - Chapter the First: Of the Absolute Rights of Individuals (1765)

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

Sorry concerning your ignorance, but you are a loser.

You get your RKBA, if you are an able male, when you turn 17 years of age, and are a citizen or have made a declaration of intention to become a citizen of the United States. You lose your RKBA when you turn 45 years of age.

If you are female, you get your RKBA if you are a citizen who is a member of the National Guard, and lose your RKBA if you leave the Guard.

Your logic is a marvel to behold.

nolu chan

The above 'logic' was addressed to misterwhite. --- It proves my point..

I don't know about you but England's concept of "individual rights" was kicked out of the USA about 250 years ago.

Sorry concerning your ignorance, but you are a loser.

Sorry, all of the original states adopted the English Common law, eiter by the Constitution or by statute for such portions not inconsistent with the Constitution. Sorry to ave to correct your ignorance yet again.

Your logic is a marvel to behold.

Mine? You're presenting the current definition of a militia and using that to interpret the meaning of the second amendment when it was written.

The second amendment mentions a militia, refers to "the people" (not all citizens) and, like the rest of the Bill of Rights, only was a restriction on the federal government.

From that, how do you define the second amendment as protecting an individual right to keep a handgun in the home for self defense? That wasn't the ruling given in the Cruikshank, Presser and Miller courts.

The 2nd Amdt protects the ancient right to keep and bear arms ...

... for Militia members only. Which it why it mentions a Militia.

Prior to the ratification of the Bill of Rights, at least 4 of the 13 states had state constitutions which protected the individual right of their citizens to keep and bear arms. But their "second amendment" language used the phrase, "... the right of the citizens to bear arms in defence of themselves and the State ..."

"Citizens", not "the people". In defense of themselves. Your individual right to keep and bear arms is, and has always been, protected by your state constitution. Which is why gun laws vary from state to state.

The second amendment mentions a militia, refers to "the people" (not all citizens) and, like the rest of the Bill of Rights, only was a restriction on the federal government.

From that, how do you define the second amendment as protecting an individual right to keep a handgun in the home for self defense?

That's some horseshit you made up, not something I said.

The English common law right spoke to, "the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

It is an individual right. It was necessary that the individual right be protected so that individuals could protect themselves, and when called up to the militia, that they be armed and ready.

The right is an individual right, not a right belonging to members of the militia only. Your asiten nonsense would mean that nobody would have a right to keep and bear arms until they were 17, and they would all lost their right to keep and bear arms when they reach 45.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

Book the First - Chapter the First: Of the Absolute Rights of Individuals (1765)

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

That wasn't the ruling given in the Cruikshank, Presser and Miller courts.

Under the ruling from the Dred Scott court, Blacks could never become citizens. And under the 18th Amendment, the sale, transportation, importation, or exportation of booze was prohibited. Heller directly adddressed Cruickshank, Presser, and Miller.

District of Columbia v. Heller, S. Ct. 26 June 2008, Syllabus:

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22.

(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved. Pp. 22-28.

(c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28-30.

(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30-32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court's conclusion. Pp. 32-47.

(f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264-265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47-54.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54-56.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56-64.

478 F. 3d 370, affirmed.

The 2nd Amdt protects the ancient right to keep and bear arms ...

... for Militia members only. Which it why it mentions a Militia.

Hosreshit repeated is still horseshit.

District of Columbia v. Heller, S. Ct. 26 June 2008, Syllabus:

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22.

- - - - - - - - - -

District of Columbia v Heller, S. Ct. (2008)

From Heller at 581:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

Heller at 582:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Heller at 584:

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

Heller at 620:

We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ”

Heller at 624-25:

“In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.

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

Heller at 626:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).

Heller at 627-28:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Black's Law Dictionary, 6 Ed.

Arms. Anything that a man wears for his defense, or takes in his hands as a weapon.

The "right to keep and bear arms" existed in the colonies, was brought forth into the states before the union, and was protected by the 2nd Amendment. The right which existed in the colonies came from the English common law. The Framers saw no need to explain to themselves what that right to keep and bear arms was.

Heller at 593-95:

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.

And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833).

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.

Heller at 626-28:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

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

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

And for future reference, don't cite Roe v Wade, Kelo, or Obamacare (the penalty is a tax). They got it wrong there, too.

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.

So you can stop citing Blackstone, too.

"We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”

Yeah. In common use by the militia. According to Miller:

"... when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Meaning, they were to show up with weapons supplied by themselves and commonly used by the militia. They were not expected to show up with a revolver.

The question before the Miller court was whether or not a sawed-off shotgun had "any reasonable relation to the preservation or efficiency of a well regulated militia". If it did, then the second amendment protected it.

[misterwhite #65] Don't bother citing Heller. I told you the court got it wrong.

You got it wrong and Heller (and McDonald) are current Supreme Court precedent.

By contrast you want to keeep digging up the corpses of Cruickshank, Presser and Miller, three very old cases that you happen to like.

I will continue to cite and quote current Supreme Court precedent and you are welcome to dig up the corpses of 19th century post civil war cases and drag them before the forum.

[misterwhite #66] I never said they didn't have the right. They do. Just that the second amendment doesn't protect it.

The 2nd Amendment does protect the individual right to keep and bear arms, as explicitly expressed and held by current Supreme Court precedent.

[misterwhite #67] Yeah. In common use by the militia. According to Miller:

[...]

The question before the Miller court was whether or not a sawed-off shotgun had "any reasonable relation to the preservation or efficiency of a well regulated militia". If it did, then the second amendment protected it.

There ya go, digging up that corpse again. This claptrap was crushed in Heller.

District of Columbia v Heller, 554 US 570 (2008)

[595]

2. Prefatory Clause.

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

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

- - - - - - - - - -

[596]

Petitioners take a seemingly narrower view of the militia, stating that "[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, § 8, cls. 15-16)." Brief for Petitioners 12. Although we agree with petitioners' interpretive assumption that "mi­litia" means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and na­vies, which Congress is given the power to create ("to raise . . . Armies"; "to provide . . . a Navy," Art. I, § 8, cls. 12-13), the militia is assumed by Article I already to be in existence. Congress is given the power to "provide for call­ing forth the Militia," § 8, cl. 15; and the power not to create, but to "organiz[e]" it—and not to organize "a" militia, which is what one would expect if the militia were to be a federal creation, but to organize "the" militia, connoting a body al­ready in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first Militia Act, which specified that "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia." Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them.

- - - - - - - - - -

[598]

3. Relationship Between Prefatory Clause and Opera­tive Clause.

We reach the question, then: Does the preface it with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had elimi­nated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the peo­ple's arms, enabling a select militia or standing army to sup­press political opponents. This is what had occurred in Eng­land that prompted codification of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution.

- - - - - - - - - -

[599]

It is therefore entirely sensible that the Second Amend­ment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. JUSTICE BREYER's assertion that individual self-defense is merely a "subsidiary interest" of the right to keep and bear arms, see post, at 714 (dissenting opinion), is profoundly mis­taken. He bases that assertion solely upon the prologue— but that can only show that self-defense had little to do with the right's codification; it was the central component of the right itself.

- - - - - - - - - -

[619]

United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right "is not a right granted by the Con­stitution [or] in any manner dependent upon that instrument for its existence. The second amendment... means no more

620

than that it shall not be infringed by Congress." Id., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had dis­banded the local militia unit the year before the mob's attack, see C. Lane, The Day Freedom Died 62 (2008). We de­scribed the right protected by the Second Amendment as " 'bearing arms for a lawful purpose' " and said that "the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes" to the States' police power. 92 U. S., at 553. That discussion makes little sense if it is only a right to bear arms in a state militia.

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

621

JUSTICE STEVENS presses Presser into service to support his view that the right to bear arms is limited to service in the militia by join­ing Presser's brief discussion of the Second Amendment with a later portion of the opinion making the seemingly relevant (to the Second Amendment) point that the plaintiff was not a member of the state militia. Unfortunately for JUSTICE STEVENS' argument, that later portion deals with the Four­teenth Amendment; it was the Fourteenth Amendment to which the plaintiff's nonmembership in the militia was rele­vant. Thus, JUSTICE STEVENS' statement that Presser "suggested that . . . nothing in the Constitution protected the use of arms outside the context of a militia," post, at 674-675, is simply wrong.

- - - - - - - - - -

[621]

JUSTICE STEVENS places overwhelming reliance upon this Court's decision in Miller, 307 U. S. 174. "[H]undreds of judges," we are told, "have relied on the view of the Amend­ment we endorsed there," post, at 638, and "[e]ven if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law," post, at 639. And what is, according to JUSTICE STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons." Post, at 637.

Nothing so clearly demonstrates the weakness of JUSTICE STEVENS' case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men's federal indictment for transporting an unregistered short-barreled

622

shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not "for . . . military purposes" but for "nonmilitary use," post, at 637. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: "In the ab­sence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." 307 U. S., at 178 (emphasis added). "Cer­tainly," the Court continued, "it is not within judicial notice that this weapon is any part of the ordinary military equip­ment or that its use could contribute to the common de­fense." Ibid. Beyond that, the opinion provided no expla­nation of the content of the right.

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. JUSTICE STEVENS can say again and again that Miller did not "turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns," post, at 677, but the words of the opinion prove otherwise. The most JUSTICE STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General's argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938,

623

No. 696, pp. 4-5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

- - - - - - - - - -

[623]

It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. JUS­TICE STEVENS claims, post, at 676-677, that the opinion reached its conclusion "[a]fter reviewing many of the same sources that are discussed at greater length by the Court today." Not many, which was not entirely the Court's fault. The defendants made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court's consideration of the Second Amendment). See Frye, The Peculiar Story of United States v. Miller, 3N. Y. U. J. L. & Liberty 48, 65-68 (2008). The Government's brief spent two pages discussing English legal sources, concluding " that at least the carrying of weapons without lawful occa­sion or excuse was always a crime" and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) "the early Eng­lish law did not guarantee an unrestricted right to bear arms." Brief for United States, O. T. 1938, No. 696, at 9-11. It then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United States, O. T. 1938, No. 696, at 12-18. The final section of the brief recognized that "some courts have said that the right to bear arms in­cludes the right of the individual to have them for the protec­tion of his person and property," and launched an alternative argument that "weapons which are commonly used by crimi­nals," such as sawed-off shotguns, are not protected. See id., at 18-21. The Government's Miller brief thus provided

624

scant discussion of the history of the Second Amendment— and the Court was presented with no counter discussion. As for the text of the Court's opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U. S., at 178 (which we do not dispute), and then reviews some historical materials dealing with the na­ture of the militia, and in particular with the nature of the arms their members were expected to possess, id., at 178­182. Not a word (not a word) about the history of the Sec­ond Amendment. This is the mighty rock upon which the dissent rests its case.

= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =

McDonald v Chicago, 561 US 742 (2010)

[Syllabus at 1]

The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U. S. 542, Presser v. Illinois, 116 U. S. 252, and Miller v. Texas, 153 U. S. 535— which were decided in the wake of this Court's interpretation of the Fourteenth Amendment's Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36.

Held: The judgment is reversed, and the case is remanded.

- - - - - - - - - -

[Syllabus at 2]

(b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War's aftermath fundamentally altered the federal system. Four years after the adop­tion of the Fourteenth Amendment, this Court held in the Slaughter­ House Cases, that the Privileges or Immunities Clause protects only those rights "which owe their existence to the Federal government, its National character, its Constitution, or its laws," 16 Wall., at 79, and that the fundamental rights predating the creation of the Fed­eral Government were not protected by the Clause, id., at 76. Under this narrow reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79-80. Subse­quently, the Court held that the Second Amendment applies only to the Federal Government in Cruikshank, 92 U. S. 542, Presser, 116 U. S. 252, and Miller, 153 U. S. 535, the decisions on which the Sev­enth Circuit relied in this case. Pp. 5-9.

- - - - - - - - - -

[Syllabus at 3]

(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19-33.

- - - - - - - - - -

[9]

The Court reversed all of the convictions, including those relating to the deprivation of the victims' right to bear arms. Cruikshank, 92 U. S., at 553, 559. The Court wrote that the right of bearing arms for a lawful purpose "is not a right granted by the Constitution" and is not "in any manner dependent upon that instrument for its exis­tence." Id., at 553. "The second amendment," the Court continued, "declares that it shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress." Ibid. "Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government." Heller, 554 U. S., at_, n. 23 (slip op., at 48, n. 23).

- - - - - - - - - -

[10]

As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners' claims at the Court of Appeals level. Petitioners argue, however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the "privi­leges or immunities of citizens of the United States." In petitioners' view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15-21, but petitioners are unable to identify the Clause's full scope, Tr. of Oral Arg. 5-6, 8-11. Nor is there any consen­sus on that question among the scholars who agree that the Slaughter-House Cases' interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting).

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter­ House holding.

At the same time, however, this Court's decisions in Cruikshank, Presser, and Miller do not preclude us from considering whether the Due Process Clause of the Fourteenth Amendment makes the Second Amendment right binding on the States. See Heller, 554 U. S., at_, n. 23 (slip op., at 48, n. 23). None of those cases "engage[d] in the sort of Fourteenth Amendment inquiry required by our later cases." Ibid. As explained more fully below, Cruikshank, Presser, and Miller all preceded the era in which the Court began the process of "selective incorpo­ration" under the Due Process Clause, and we have never previously addressed the question whether the right to keep and bear arms applies to the States under that theory.

11

Indeed, Cruikshank has not prevented us from holding that other rights that were at issue in that case are bind­ing on the States through the Due Process Clause. In Cruikshank, the Court held that the general "right of the people peaceably to assemble for lawful purposes," which is protected by the First Amendment, applied only against the Federal Government and not against the States. See 92 U. S., at 551-552. Nonetheless, over 60 years later the Court held that the right of peaceful assembly was a "fun­damental righ[t] . . . safeguarded by the due process clause of the Fourteenth Amendment." De Jonge v. Oregon, 299 U. S. 353, 364 (1937). We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause.

- - - - - - - - - -

[13]

An alternative theory regarding the relationship be-

14

tween the Bill of Rights and §1 of the Fourteenth Amend­ment was championed by Justice Black. This theory held that §1 of the Fourteenth Amendment totally incorporated all of the provisions of the Bill of Rights. See, e.g., Adamson, supra, at 71-72 (Black, J., dissenting); Duncan, supra, at 166 (Black, J., concurring). As Justice Black noted, the chief congressional proponents of the Four­teenth Amendment espoused the view that the Amend­ment made the Bill of Rights applicable to the States and, in so doing, overruled this Court's decision in Barron. Adamson, 332 U. S., at 72 (dissenting opinion). None-

15

theless, the Court never has embraced Justice Black's "total incorporation" theory.

While Justice Black's theory was never adopted, the Court eventually moved in that direction by initiating what has been called a process of "selective incorporation," i.e., the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments. See, e.g., Gideon v. Wainwright, 372 U. S. 335, 341 (1963); Malloy v. Hogan, 378 U. S. 1, 5-6

16

(1964); Pointer v. Texas, 380 U. S. 400, 403-404 (1965); Washington v. Texas, 388 U. S. 14, 18 (1967); Duncan, 391 U. S., at 147-148; Benton v. Maryland, 395 U. S. 784, 794 (1969).

The decisions during this time abandoned three of the previously noted characteristics of the earlier period.11 The Court made it clear that the governing standard is not whether any "civilized system [can] be imagined that would not accord the particular protection." Duncan, 391 U. S., at 149, n. 14. Instead, the Court inquired whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice. Id., at 149, and n. 14; see also id., at 148 (referring to those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions" (empha­sis added; internal quotation marks omitted)).

The Court also shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights. Only a handful of the Bill of Rights pro-

17

tections remain unincorporated.

Finally, the Court abandoned "the notion that the Four­teenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights," stating that it would be "incongruous" to apply different standards "depending on whether the claim was asserted in a state or federal court." Malloy, 378 U. S., at 10-11 (internal quotation marks omitted). Instead, the Court decisively held that incorporated Bill of

18

Rights protections "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment." Id., at 10; see also Mapp v. Ohio, 367 U. S. 643, 655-656 (1961); Ker v. California, 374 U. S. 23, 33-34 (1963); Aguilar v. Texas, 378 U. S. 108, 110 (1964); Pointer, 380 U. S., at 406; Duncan, supra, at 149, 157-158; Benton, 395 U. S., at 794-795; Wallace v. Jaffree, 472 U. S. 38, 48-49 (1985).

Employing this approach, the Court overruled earlier decisions in which it had held that particular Bill of Rights

19

guarantees or remedies did not apply to the States. See, e.g., Mapp, supra (overruling in part Wolf, 338 U. S. 25); Gideon, 372 U. S. 335 (overruling Betts, 316 U. S. 455); Malloy, supra (overruling Adamson, 332 U. S. 46, and Twining, 211 U. S. 78); Benton, supra, at 794 (overruling Palko, 302 U. S. 319).

III

With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U. S., at 149, or as we have said in a related context, whether this right is "deeply rooted in this Nation's his­tory and tradition," Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).

A

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right. 554 U. S., at_(slip op., at 26); see also id., at_(slip op., at 56) (stating that the "inherent right of self-defense has been central to the Second Amendment right").

- - - - - - - - - -

[31]

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.

- - - - - - - - - -

and Heller (and McDonald) are current Supreme Court precedent.

Which replaced the Cruikshank/Presser/Miller precedent. What good is precedent if the courts ignore precedent?

"three very old cases that you happen to like."

They're old?? How about your citations of English common law?

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

Correct. Those used by a militia. The Miller court was unsure whether a sawed-off, double-barrel shotgun was a militia weapon.

We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause.

Right. States shall not infringe the right of a state to form a state militia.

When you start distorting the meaning of the second amendment, you end up looking foolish.

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right.

Uh-huh. And now 5 justices will tell every citizen the type of weapon they may have for individual self-defense, where they may carry it (if at all), how they may carry it, and when and where they may use it.

Some basic right.

The Court:-----

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right. ------ In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty

Uh-huh. And now 5 justices will tell every citizen the type of weapon they may have for individual self-defense, where they may carry it (if at all), how they may carry it, and when and where they may use it.

Some basic right. --- misterwrong

It is clear that the Framers protected us from a Supreme Court that can infringe upon the 2nd.

Our resident troll tries to tell us different.. Ignore his bullshit..

and Heller (and McDonald) are current Supreme Court precedent.

[misterwhite #69] Which replaced the Cruikshank/Presser/Miller precedent. What good is precedent if the courts ignore precedent?

Your claimed abject ignorance of the legal system is amusing.

There is no Cruickshank/Presser/Miller precedent on whether the right to keep and bear arms is an individual right.

Cruickshank/Presser/Miller held that the 2nd Amendment had not been incorporated into the 14th Amendment, and therefore did not apply to the states, and only applied to the Federal government.

Under the bullshit you misunderstand, but ignorantly defend, it was held that States, or municipalities in States, could ban ownership of entire classes of weapons, such as handguns. That was held not to be a violation of the 2nd Amendment RKBA because under Cruickshank/Presser/Miller the 2nd Amendment did not apply to them.

Cruickshank/Presser/Miller did not establish a precedent regarding whether the right to keep and bear arms is an individual right or not. In those case, the Court did not directly adddress, or decide, that matter. Dicta does not establish precedent.

You claim ignorance that a precedent established by a court cannot bind itself. It only binds lower courts. No precedent is ever binding upon the U.S. Supreme Court.

"three very old cases that you happen to like."

[misterwhite #69] They're old?? How about your citations of English common law?

The English common law was cited as the original source of the 2nd Amendment right to keep and bear arms. It was not cited as precedent.

Statute law always takes precedent over common law. No federal common law has been created in the United States since the Constitutional government was formed, nor can it be.

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

[misterwhite #70] Correct. Those used by a militia. The Miller court was unsure whether a sawed-off, double-barrel shotgun was a militia weapon.

The Court opined,

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

There was no brief or appearance for Miller. No evidence was provided except by the government. The court can only consider evidence that is before it.

With no relevant evidence before the court whether a short barrel shotgun bore, "some reasonable relationship to the preservation or efficiency of a well regulated militia," the court could not "say that the Second Amendment guarantees the right to keep and bear such an instrument."

You cite that as precedent for what?

We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause.

[misterwhite #71] Right. States shall not infringe the right of a state to form a state militia.

When you start distorting the meaning of the second amendment, you end up looking foolish.

No blockhead. SCOTUS was considering whether the 2nd Amendment was incorporated into the 14th Amendment and, therefore, applied against the States.

SCOTUS decided it was incorporated and did apply against the States. Previously, your vaunted 2nd Amendment RKBA had no defense against State action as the 2nd Amendment was not applied to states.

You would choose to march boldly back into the era where States could ban ownership of handguns, or other categories of weapons, and you had no legal recourse.

While we recognize that this case raises controversial issues which engender strong emotions, our task is to apply the law as it has been interpreted by the Supreme Court, regardless of whether that Court's interpretation comports with various personal views of what the law should be.

[...]

Appellants concede that municipalities may, under the Illinois Constitution, exercise their police power to enact regulations which prohibit "possession of items legislatively found to be dangerous ...", Quilici br. at 9. They draw a distinction, however, between the exercise of the police power in general and the exercise of police power with respect to a constitutionally protected right. Indeed, they vehemently insist that a municipality may not exercise its police power to completely prohibit a constitutional guarantee.

[...]

We agree that the state may not exercise its police power to violate a positive constitutional mandate, People v. Warren, 11 Ill. 2d 420, 143 N.E.2d 28 (1957), but we reiterate that section 22 simply prohibits an absolute ban on all firearms. Since Ordinance No. 81-11 does not prohibit all firearms, it does not prohibit a constitutionally protected right. There is no right under the Illinois Constitution to possess a handgun, nor does the state have an overriding state interest in gun control which requires it to retain exclusive control in order to prevent home rule units from adopting conflicting enactments. See City of Evanston v. Create, Inc., 85 Ill. 2d 101, 51 Ill.Dec. 688, 421 N.E.2d 196 (1981). Accordingly, Morton Grove may exercise its police power to prohibit handguns even though this prohibition interferes with an individual's liberty or property. People v. Warren, 11 Ill. 2d 420, 143 N.E.2d 28 (1957).

[...]

As we have noted, the parties agree that Presser is controlling, but disagree as to what Presser held. It is difficult to understand how appellants can assert that Presser supports the theory that the second amendment right to keep and bear arms is a fundamental right which the state cannot regulate when the Presser decision plainly states that "[t]he Second Amendment declares that it shall not be infringed, but this ... means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government ...." Presser v. Illinois, 116 U.S. 252, 265, 6 S. Ct. 580, 584, 29 L. Ed. 615 (1886). As the district court explained in detail, appellants' claim that Presser supports the proposition that the second amendment guarantee of the right to keep and bear arms is not subject to state restriction is based on dicta quoted out of context. Quilici v. Village of Morton Grove, 532 F. Supp. at 1181-82. This argument borders on the frivolous and does not warrant any further consideration.

[...]

Since we hold that the second amendment does not apply to the states, we need not consider the scope of its guarantee of the right to bear arms. For the sake of completeness, however, and because appellants devote a large portion of their briefs to this issue, we briefly comment on what we believe to be the scope of the second amendment.

Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982) cert denied 464 U.S. 863 (1983). Your Presser (former) precedent in action.

Yeah, you like that one and want to march boldly right back to it. Three cheers for Presser and your advocacy of it.

Why do you so zealously advocate for the idea of going back to when states, cities and villages could ban handguns, or other classes of weapons, and it was NOT considered a violation of the 2nd Amendment? The good old days when only a Federal law could violate the 2nd Amendment.

You knew the legal significance of the holding in Presser because you stayed at a Holiday Inn Express, right?

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day and in Heller, we held that individual self-defense is "the central component" of the Second Amendment right.

[misterwhite #72] Uh-huh. And now 5 justices will tell every citizen the type of weapon they may have for individual self-defense, where they may carry it (if at all), how they may carry it, and when and where they may use it.

Some basic right.

And you are just too dumb to realize that, under your misinterpreted post-civil war opinions, a State or municipality could and did tell citizens exactly what type or class of weapon they may carry or possess. A ban on handguns by a municipality in Illinois was upheld as not infringing the 2nd Amendment because the 2nd Amendment did not apply to anything but the Federal government. Only a law issued by the Federal legislature could violate the 2nd Amendment. A state law, or local ordinance, could not violate any 2nd Amendment right, as the 2nd Amendment was inapplicable to the states. That is what you blather you want to return to?

The U.S. Supreme Court is established as the ultimate arbiter of what the law is. If that does not satisfy you, you should seek out some place where the ultimate arbiter is some blogger.

Self-defense is a basic right,

Yes it is. We are in agreement. BUT, self-defense with a weapon may be restricted, limited, or even prohibited. Can a violent, psychotic felon carry around a machine gun for self-defense?

"we held that individual self- defense is "the central component" of the Second Amendment right."

Why? Why the second amendment? Why can't state constitutions protect the right to individual self-defense? And isn't that preferable?

"... a State or municipality could and did tell citizens exactly what type or class of weapon they may carry or possess."

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

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

You bet! I believe in state's rights because I don't believe in one-size-fits-all government. Get the federal government out of my life so MY state can reflect the will of it's citizens.

That's known as a republic -- a form of government Benjamin Franklin challenged us to keep from people like you.

Why the second amendment? Why can't state constitutions protect the right to individual self-defense? And isn't that preferable?

A right protected by the 2nd Amendment cannot be dependent upon the states to choose whether or not they will recognize it.

As the 2nd Amendment RKBA has been incorporated into the 14th Amendment, the states may no longer enforce laws that violate the individual RKBA.

Psychotic felons have no RKBA to carry around a machine gun or any other gun, or flame thrower, or surface to air missile.

The RKBA is subject to regulation, just as the right to free speech is subject to regulation.

Quilici speaks loudly to why our constitutional rights cannot be subjected to unchecked state or municipal government. The people did not give such unchecked power to the Federal government. They retained it for themselves.

Heller and McDonald protect against state overreach.

You cite that as precedent for what?

That the type of weapon protected by the second amendment was relevent to its usefulness to a militia.

Useful? Protected. Not useful? Not protected.

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

Your right to self-defense with a firearm is protected by your state constitution. Always has been. The Heller court got it wrong.

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

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

[misterwhite] You bet!

So you admit you want to return to when the state constitutionally "banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion."

If you just repeal the Bill of Rights, or make it inapplicable to the States, you can have what you want.

Your right to self-defense with a firearm is protected by your state constitution.

Look at how well that worked in Illinois. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

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.

The RKBA is an individual right. Deal with it. Heller and McDonald.

The RKBA is not a restriction on the federal government to leave the state militias (and their weapons) alone. What sort of right would that be?

There are no more State militias. There is the National Guard.

A right protected by the 2nd Amendment cannot be dependent upon the states to choose whether or not they will recognize it.

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

"As the 2nd Amendment RKBA has been incorporated into the 14th Amendment, the states may no longer enforce laws that violate the individual RKBA."

True, but only because recent courts ruled that way. Rulings with which I don't agree.

"The RKBA is subject to regulation, just as the right to free speech is subject to regulation."

Well, you had me worried there with all your talk about "basic rights which can't be infringed" and "common law going back centuries".

"Heller and McDonald protect against state overreach."

Why oh why do you assume the federal government will protect your RKBA better than your own state? Heller and McDonald now give the federal government the exclusive power to decide what firearms are protected by the second amendment, for who, the meaning of "to keep", the meaning of "to bear" -- and their decision will now apply to every citizen in every state.

Five justices will now control your right. What will happen when we have five liberal, gun-grabbing justices who conclude that your RKBA does not include "assault rifles"? That "to bear" only means "to transport unloaded" and "to keep" means locked in a state armory?

You're not only an idiot, you're a traitor.

So you admit you want to return to when the state constitutionally "banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion."

I want to return back to when the citizens of the states had the power to make those decisions.

"If you just repeal the Bill of Rights, or make it inapplicable to the States, you can have what you want."

When the Bill of Rights was written it did not apply to the states. That bullshit started in the 1960's.

Look at how well that worked in Illinois. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

If that's what the citizens of Morton Grove wanted, who the fuck are you to tell them how to live? Who died and made you King?

You cite that as precedent for what?

That the type of weapon protected by the second amendment was relevent to its usefulness to a militia.

- - - - - - - - - -

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

Presser

In the absence of evidence, the court could not say whether the a short barrel shotgun was a weapon in any part of the ordinary military equipment.

What a precedent. In the absence of evidence, the court could not say.

The District of Columbia argues that the prefatory clause declares the Amendment’s only purpose—to shield the state militias from federal encroachment—and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right. In other words, according to the District, the operative clause is not just limited by the prefatory clause, but instead both clauses share an explicitly civic character. The District claims that the Second Amendment “protects private possession of weapons only in connection with performance of civic duties as part of a well-regulated citizens militia organized for the security of a free state.” Individuals may be able to enforce the Second Amendment right, but only if the law in question “will impair their participation in common defense and law enforcement when called to serve in the militia.” But because the District reads “a well regulated Militia” to signify only the organized militias of the founding era—institutions that the District implicitly argues are no longer in existence today—invocation of the Second Amendment right is conditioned upon service in a defunct institution. Tellingly, we think, the District did not suggest what sort of law, if any, would violate the Second Amendment today—in fact, at oral argument, appellees’ counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District’s position to be that the Second Amendment is a dead letter.

[...]

We are told by the District that the Second Amendment was written in response to fears that the new federal government would disarm the state militias by preventing men from bearing arms while in actual militia service, or by preventing them from keeping arms at home in preparation for such service. Thus the Amendment should be understood to check federal power to regulate firearms only when federal legislation was directed at the abolition of state militias, because the Amendment’s exclusive concern was the preservation of those entities. At first blush, it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as “Congress shall make no law disarming the state militias” or “States have a right to a well-regulated militia.”

[...]

Both the collective and sophisticated collective theories assert that the Second Amendment was written for the exclusive purpose of preserving state militias, and both theories deny that individuals qua individuals can avail themselves of the Second Amendment today. The latter point is true either because, as the District appears to argue, the “Militia” is no longer in existence, or, as others argue, because the militia’s modern analogue, the National Guard, is fully equipped by the federal government, creating no need for individual ownership of firearms. It appears to us that for all its nuance, the sophisticated collective right model amounts to the old collective right theory giving a tip of the hat to the problematic (because ostensibly individual) text of the Second Amendment.

[...]

In determining whether the Second Amendment’s guarantee is an individual one, or some sort of collective right, the most important word is the one the drafters chose to describe the holders of the right—“the people.” That term is found in the First, Second, Fourth, Ninth, and Tenth Amendments. It has never been doubted that these provisions were designed to protect the interests of individuals against government intrusion, interference, or usurpation. We also note that the Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”—indicates that the authors of the Bill of Rights were perfectly capable of distinguishing between “the people,” on the one hand, and “the states,” on the other. The natural reading of “the right of the people” in the Second Amendment would accord with usage elsewhere in the Bill of Rights.

The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals such as “the organized militia” or “the people who are engaged in militia service,” or perhaps not any individuals at all—e.g., “the states.” See Emerson, 270 F.3d at 227. These strained interpretations of “the people” simply cannot be squared with the uniform construction of our other Bill of Rights provisions. Indeed, the Supreme Court has recently endorsed a uniform reading of “the people” across the Bill of Rights.

[...]

In sum, the phrase “the right of the people,” when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual.

Parker v District of Columbia, 478 F3d 372 (DC Cir 2007), Affirmed U.S. Supreme Court, 554 U.S. 570 (2008)

The RKBA is an individual right. Deal with it. Heller and McDonald.

That's how those courts ruled. I disagree.

"The RKBA is not a restriction on the federal government to leave the state militias (and their weapons) alone. What sort of right would that be?"

That would be the right of a state to form and maintain a well-regulated militia consisting of armed citizens.

"There are no more State militias. There is the National Guard."

21 states have State Defense Forces in addition to the National Guard. If the other 29 wish to have them, the second amendment protects their right to organize them.

What a precedent. In the absence of evidence, the court could not say.

Just the fact that the court connected the weapon to a state militia speaks volumes as to the meaning of the second amendment.

"The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals"

They were. They were citizens with full rights -- to own property, run for office, vote, bear arms in the militia. For example, Article I, Section 2 says "the people" vote for House members. Not "the citizens" vote for House members.

In short, we take the District’s position to be that the Second Amendment is a dead letter.

Well, does the Distict of Columbia have a militia? If not, then the second amendment doesn't apply. I wouldn't call it a dead letter.

misterwhite] And before the Bill of Rights was selectively incorporated, states banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion. "That is what you blather you want to return to?" [misterwhite] You bet!

So you admit you want to return to when the state constitutionally "banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion."

If you just repeal the Bill of Rights, or make it inapplicable to the States, you can have what you want.

nolu chan

Good work Chan.. --- You've finally got misterwrong to admit what I've been telling this forum since we all got here.. This guy is an anti-constitutional troll..

As robertpausen, we argued these same points over 15 years ago, on FR, until we were both banned by JR for 'disruption '.

Well, does the Distict of Columbia have a militia? If not, then the second amendment doesn't apply.

The District of Columbia is not a state. It is a Federal district. There was no need for incorporation for the 2nd amendment to apply to the District of Columbia.

The District indicated the 2nd Amendment was a dead letter. The court disagreed and found the District to be in violation of the 2nd Amendment.

Just the fact that the court connected the weapon to a state militia speaks volumes as to the meaning of the second amendment.

Yes. You should write SCOTUS a sternly worded letter about it.

The meaning of the 2nd Amendment is not the definition of the right to keep and bear arms.

Here is what a unanimous Supreme Court said in 2016 about such blather.

Caetano v. Massachusetts, 14-10078, 577 US ____ (2016) per curiam

This is a UNANIMOUS opinion in which the author is not identified.

Cite as: 577 U. S._(2016)

1

Per Curiam

SUPREME COURT OF THE UNITED STATES

JAIME CAETANO v. MASSACHUSETTS

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

No. 14-10078. Decided March 21, 2016

PER CURIAM.

The Court has held that "the Second Amendment ex­tends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding," District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this "Second Amend­ment right is fully applicable to the States," McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Su­preme Judicial Court of Massachusetts upheld a Massa­chusetts law prohibiting the possession of stun guns after examining "whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment." 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they "were not in common use at the time of the Second Amendment's enactment." Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller's clear statement that the Second Amendment "extends . . . to . . . arms . . . that were not in existence at the time of the founding." 554 U. S., at 582.

The court next asked whether stun guns are "dangerous per se at common law and unusual," 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one "important limitation on the right to keep and carry arms," Heller, 554 U. S., at 627; see ibid. (referring to "the historical tradition of prohibiting the carrying of 'dangerous and

2

CAETANO v. MASSACHUSETTS

Per Curiam

unusual weapons' "). In so doing, the court concluded that stun guns are "unusual" because they are "a thoroughly modern invention." 470 Mass., at 781, 26 N. E. 3d, at 693-694. By equating "unusual" with "in common use at the time of the Second Amendment's enactment," the court's second explanation is the same as the first; it is inconsistent with Heller for the same reason.

Finally, the court used "a contemporary lens" and found "nothing in the record to suggest that [stun guns] are readily adaptable to use in the military." 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposi­tion "that only those weapons useful in warfare are pro­tected." 554 U. S., at 624-625.

For these three reasons, the explanation the Massachu­setts court offered for upholding the law contradicts this Court's precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

- - - - - - - - - -

And here is the concurring opinion which accompanied the per curiam opinion.

Cite as: 577 U. S. __ (2016)

1

ALITO, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

JAIME CAETANO v. MASSACHUSETTS

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

No. 14-10078. Decided March 21, 2016

Justice Alito, with whom Justice Thomas joins, concurring in the judgment. After a "bad altercation" with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and "in fear for [her] life." Tr. 31, 38 (July 10, 2013). She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun "for self-defense against [her] former boy friend," 470 Mass. 774, 776, 26 N. E. 3d 688, 690 (2015), Caetano accepted the weapon.

It is a good thing she did. One night after leaving work, Caetano found her ex-boyfriend "waiting for [her] outside." Tr. 35. He "started screaming" that she was "not gonna [expletive deleted] work at this place" any more because she "should be home with the kids" they had together. Ibid. Caetano's abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn't need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: "I'm not gonna take this anymore. . . . I don't wanna have to [use the stun gun on] you, but if you don't leave me alone, I'm gonna have to." Id., at 35-36. The gambit worked. The ex-boyfriend "got scared and he left [her] alone." Id., at 36.

It is settled that the Second Amendment protects an individual right to keep and bear arms that applies against both the Federal Government and the States. District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010). That right

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ALITO, J., concurring in judgment

vindicates the "basic right" of "individual self-defense." Id., at 767; see Heller, supra, at 599, 628. Caetano's en­counter with her violent ex-boyfriend illustrates the con­nection between those fundamental rights: By arming herself, Caetano was able to protect against a physical threat that restraining orders had proved useless to pre­vent. And, commendably, she did so by using a weapon that posed little, if any, danger of permanently harming either herself or the father of her children.

Under Massachusetts law, however, Caetano's mere possession of the stun gun that may have saved her life made her a criminal. See Mass. Gen. Laws, ch. 140, §131J (2014). When police later discovered the weapon, she was arrested, tried, and convicted. The Massachusetts Su­preme Judicial Court affirmed the conviction, holding that a stun gun "is not the type of weapon that is eligible for Second Amendment protection" because it was "not in common use at the time of [the Second Amendment's] enactment." 470 Mass., at 781, 26 N. E. 3d, at 693. This reasoning defies our decision in Heller, which rejected as "bordering on the frivolous" the argument "that only those arms in existence in the 18th century are pro­tected by the Second Amendment." 554 U. S., at 582. The decision below also does a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not.

The events leading to Caetano's prosecution occurred sometime after the confrontation between her and her ex-boyfriend. In September 2011, police officers responded to a reported shoplifting at an Ashland, Massachusetts, supermarket. The store's manager had detained a sus­pect, but he identified Caetano and another person in the parking lot as potential accomplices. Police approached the two and obtained Caetano's consent to search her

I

Cite as: 577 U. S._(2016)

3

ALITO, J., concurring in judgment

purse. They found no evidence of shoplifting, but saw Caetano's stun gun. Caetano explained to the officers that she had acquired the weapon to defend herself against a violent ex-boyfriend.

The officers believed Caetano, but they arrested her for violating Mass. Gen. Laws, ch. 140, §131J, "which bans entirely the possession of an electrical weapon," 470 Mass., at 775, 26 N. E. 3d, at 689.¹ When Caetano moved to dismiss the charge on Second Amendment grounds, the trial court denied the motion.

A subsequent bench trial established the following undisputed facts. The parties stipulated that Caetano possessed the stun gun and that the weapon fell within the statute's prohibition.² The Commonwealth also did not challenge Caetano's testimony that she possessed the weapon to defend herself against the violent ex-boyfriend. Indeed, the prosecutor urged the court "to believe the defendant." Tr. 40. The trial court nonetheless found

__________

¹ Specifically, the statute prohibits the possession of any "portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is de­signed to incapacitate temporarily, injure or kill." Mass. Gen. Laws, ch. 140, §131J (2014). The statute includes exceptions for law-enforcement officers and weapon suppliers, who may possess electrical weapons "designed to incapacitate temporarily." Ibid. Violations are punishable by a fine of $500 to $1,000, imprisonment of 6 months to 2% years, or both. Ibid.

² Stun guns like Caetano's "are designed to stun a person with an electrical current" by running a current between two metal prongs on the device and placing the prongs in direct contact with the person. 470 Mass. 774, 775, n. 2, 26 N. E. 3d 688, 689, n. 2 (2015). A similar device, popularly known by the brand name "Taser," shoots out wires tipped with electrodes that can deliver an electrical current from a distance. Tr. 25-26. Tasers can also be used like a stun gun without deploying the electrodes—a so-called "dry stun." Id., at 26. As the Common­wealth's witness testified at trial, these sorts of electrical weapons are "non-lethal force" "designed to incapacitate"—"not kill"—a target. Id., at 27.

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ALITO, J., concurring in judgment

Caetano guilty, and she appealed to the Massachusetts Supreme Judicial Court. The Supreme Judicial Court rejected Caetano's Second Amendment claim, holding that "a stun gun is not the type of weapon that is eligible for Second Amendment protec­tion." 470 Mass., at 775, 26 N. E. 3d, at 689. The court reasoned that stun guns are unprotected because they were "not 'in common use at the time' of enactment of the Second Amendment," id., at 781, 26 N. E. 3d, at 693 (quot­ing Heller, supra, at 627), and because they fall within the "traditional prohibition against carrying dangerous and unusual weapons," 470 Mass., at 779, 26 N. E. 3d, at 692 (citing Heller, supra, at 627).

II

Although the Supreme Judicial Court professed to apply Heller, each step of its analysis defied Heller's reasoning.

A

The state court repeatedly framed the question before it as whether a particular weapon was " 'in common use at the time' of enactment of the Second Amendment." 470 Mass., at 781, 26 N. E. 3d, at 693; see also id., at 779, 780, 781, 26 N. E. 3d, at 692, 693, 694. In Heller, we emphati­cally rejected such a formulation. We found the argument "that only those arms in existence in the 18th century are protected by the Second Amendment" not merely wrong, but "bordering on the frivolous." 554 U. S., at 582. In­stead, we held that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Ibid. (emphasis added).³ It is hard to

__________

³ Stun guns are plainly "bearable arms." As Heller explained, the term includes any "[w]eapo[n] of offence" or "thing that a man wears for his defence, or takes into his hands," that is "carr[ied] . . . for the purpose of offensive or defensive action." 554 U. S., at 581, 584 (inter-

Cite as: 577 U. S._(2016)

5

ALITO, J., concurring in judgment

imagine language speaking more directly to the point. Yet the Supreme Judicial Court did not so much as mention it.

Instead, the court seized on language, originating in United States v. Miller, 307 U. S. 174 (1939), that "'the sorts of weapons protected were those "in common use at the time."'" 470 Mass., at 778, 26 N. E. 3d, at 692 (quot­ing Heller, supra, at 627, in turn quoting Miller, supra, at 179). That quotation does not mean, as the court below thought, that only weapons popular in 1789 are covered by the Second Amendment. It simply reflects the reality that the founding-era militia consisted of citizens "who would bring the sorts of lawful weapons that they possessed at home to militia duty," Heller, 554 U. S., at 627, and that the Second Amendment accordingly guarantees the right to carry weapons "typically possessed by law-abiding citizens for lawful purposes," id., at 625. While stun guns were not in existence at the end of the 18th century, the same is true for the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols. Revolvers were virtually unknown until well into the 19th century,⁴ and semiautomatic pistols were not invented until near the end of that century.⁵ Electronic stun guns are no more exempt from the Second Amend­ment's protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment. Id., at 582 (citing Reno v. American Civil Liberties Union, 521

__________

nal quotation marks omitted).

⁴ See J. Bilby, A Revolution in Arms: A History of the First Repeating Rifles 23 (2006). Samuel Colt did not patent his famous revolver until 1836. Ibid.

⁵ See Firearms: An Illustrated History 166 (2014); see also W. Greener, The Gun and Its Development 524-529, 531-534 (9th ed. 1910) (dis­cussing revolvers and self-loading semiautomatic pistols as "modern pistols").

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ALITO, J., concurring in judgment

U. S. 844, 849 (1997), and Kyllo v. United States, 533 U. S. 27, 35-36 (2001)). As Heller aptly put it: "We do not inter­pret constitutional rights that way." 554 U. S., at 582.

B

The Supreme Judicial Court's holding that stun guns may be banned as "dangerous and unusual weapons" fares no better. As the per curiam opinion recognizes, this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual. Because the Court rejects the lower court's conclusion that stun guns are "unusual," it does not need to consider the lower court's conclusion that they are also "dangerous." See ante, at 1-2. But make no mistake—the decision below gravely erred on both grounds.

1

As to "dangerous," the court below held that a weapon is "dangerous per se" if it is " 'designed and constructed to produce death or great bodily harm' and 'for the purpose of bodily assault or defense.'" 470 Mass., at 779, 26 N. E. 3d, at 692 (quoting Commonwealth v. Appleby, 380 Mass. 296, 303, 402 N. E. 2d 1051, 1056 (1980)). That test may be appropriate for applying statutes criminalizing assault with a dangerous weapon. See ibid., 402 N. E. 2d, at 1056. But it cannot be used to identify arms that fall outside the Second Amendment. First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. See Heller, supra, at 627 (contrasting "'dangerous and unusual weap­ons' " that may be banned with protected "weapons . . . 'in common use at the time' "). Second, even in cases where dangerousness might be relevant, the Supreme Judicial Court's test sweeps far too broadly. Heller defined the "Arms" covered by the Second Amendment to include " 'any thing that a man wears for his defence, or takes into his

Cite as: 577 U. S._(2016)

7

ALITO, J., concurring in judgment

hands, or useth in wrath to cast at or strike another.'" 554 U. S., at 581. Under the decision below, however, virtually every covered arm would qualify as "dangerous."

Were there any doubt on this point, one need only look at the court's first example of "dangerous per se" weapons: "firearms." 470 Mass., at 779, 26 N. E. 3d, at 692. If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous. 554 U. S., at 636. A fortiori, stun guns that the Common­wealth's own witness described as "non-lethal force," Tr. 27, cannot be banned on that basis.

2

The Supreme Judicial Court's conclusion that stun guns are "unusual" rested largely on its premise that one must ask whether a weapon was commonly used in 1789. See 470 Mass., at 780-781, 26 N. E. 3d, at 693-694. As al­ready discussed, that is simply wrong. See supra, at 4-6.

The court also opined that a weapon's unusualness depends on whether "it is a weapon of warfare to be used by the militia." 470 Mass., at 780, 26 N. E. 3d, at 693. It asserted that we followed such an approach in Miller and "approved its use in Heller." 470 Mass., at 780, 26 N. E. 3d, at 693. But Heller actually said that it would be a "startling reading" of Miller to conclude that "only those weapons useful in warfare are protected." 554 U. S., at 624. Instead, Miller and Heller recognized that militia members traditionally reported for duty carrying "the sorts of lawful weapons that they possessed at home," and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon's suitability for military use. 554 U. S., at 627; see id., at 624-625. Indeed, Heller acknowledged that advancements in military technology might render many commonly owned weapons ineffective in warfare. Id., at 627-628. But such "modern developments . . . cannot change our

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CAETANO v. MASSACHUSETTS

ALITO, J., concurring in judgment

interpretation of the right." Ibid.

In any event, the Supreme Judicial Court's assumption that stun guns are unsuited for militia or military use is untenable. Section 131J allows law enforcement and correctional officers to carry stun guns and Tasers, pre­sumably for such purposes as nonlethal crowd control. Subduing members of a mob is little different from "sup­pressing] Insurrections," a traditional role of the militia. U. S. Const., Art. I, §8, cl. 15; see also ibid. (militia may be called forth "to execute the Laws of the Union"). Addition­ally, several branches of the U. S. armed services equip troops with electrical stun weapons to "incapacitate a target without permanent injury or known side effects." U. S. Army, Project Manager Close Combat Systems, PD Combat Munitions: Launched Electrode Stun Device (LESD),

http://www.pica.army.mil/pmccs/combatmunitions/nonlethalsys/taserx26e.html

(all Internet materials as last visited Mar. 18, 2016); see U. S. Marine Corps Admin­istrative Message 560/08 (Oct. 2, 2008) (Marine Corps guidance for use of Tasers),

http://www.marines.mil/News/Messages/MessagesDisplay/tabid/13286/Article/1130 24/marine-corps-training-and-use-of-human-electro-muscular-incapacitation-hemi-dev.aspx;

Joint Non-Lethal Weapons Directorate, Non-Lethal Weapons (NLW) Reference Book 3 (2012) (Department of Defense report stating that "[m]ultiple Services employ" Tasers),

http://dtic.mil/dtic/tr/fulltext/u2/a565971.pdf.

C

As the foregoing makes clear, the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today. The Supreme Judicial Court offered only a cursory discussion of that question, noting that the "'number of Tasers and stun guns is dwarfed by the number of fire­arms.'" 470 Mass., at 781, 26 N. E. 3d, at 693. This ob-

Cite as: 577 U. S._(2016)

9

ALITO, J., concurring in judgment

servation may be true, but it is beside the point. Other­wise, a State would be free to ban all weapons except handguns, because "handguns are the most popular weapon chosen by Americans for self-defense in the home." Heller, supra,at 629.

The more relevant statistic is that "[h]undreds of thou­sands of Tasers and stun guns have been sold to private citizens," who it appears may lawfully possess them in 45 States. People v. Yanna, 297 Mich. App. 137, 144, 824 N. W. 2d 241, 245 (2012) (holding Michigan stun gun ban unconstitutional); see Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199, 244 (2009) (citing stun gun bans in seven States); Wis. Stat. §941.295 (Supp. 2015) (amended Wisconsin law permitting stun gun possession); see also Brief in Opposi­tion 11 (acknowledging that "approximately 200,000 civil­ians owned stun guns" as of 2009). While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts' categorical ban of such weapons therefore violates the Second Amendment.

III

The lower court's ill treatment of Heller cannot stand. The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense. The Su­preme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. 470 Mass., at 783, 26 N. E. 3d, at 695. But the right to bear other weap­ons is "no answer" to a ban on the possession of protected arms. Heller, 554 U. S., at 629. Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should

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ALITO, J., concurring in judgment

not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.⁶

Countless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons—or simply out of fear of killing the wrong person. See Brief for Arming Women Against Rape & Endanger-ment as Amicus Curiae 4-5. "Self-defense," however, "is a basic right." McDonald, 561 U. S., at 767. I am not pre­pared to say that a State may force an individual to choose between exercising that right and following her con­science, at least where both can be accommodated by a weapon already in widespread use across the Nation.

* * *

A State's most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsi­est of grounds. This Court's grudging per curiam now sends the case back to that same court. And the conse­quences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense. See Pet. for Cert. 14.

If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.

__________

⁶ The court below also noted that Massachusetts no longer requires a license to possess mace or pepper spray. 470 Mass., at 783, 26 N. E. 3d, at 695. But the law was changed in 2014, after Caetano was convicted. A spray can also be foiled by a stiff breeze, while a stun gun cannot.

In July 2016, Massachusetts dropped the charges.

"There are no more State militias. There is the National Guard."

21 states have State Defense Forces in addition to the National Guard. If the other 29 wish to have them, the second amendment protects their right to organize them.

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

State defense forces (SDF; also known as state military, state guards, or state military reserves) in the United States are military units that operate under the sole authority of a state government. State defense forces are authorized by state and federal law and are under the command of the governor of each state.

State defense forces are distinct from their state's National Guard in that they cannot become federal entities. All state National Guard personnel (to include the National Guard of the District of Columbia, the Commonwealth of Puerto Rico and the territories of Guam and the Virgin Islands) can be federalized under the National Defense Act Amendments of 1933 with the creation of the National Guard of the United States. This provides the basis for integrating units and personnel of the Army National Guard into the U.S. Army and, since 1947, units and personnel of the Air National Guard into the U.S. Air Force.

The federal government recognizes state defense forces, as per the Compact Clause of the U.S. Constitution, under 32 U.S.C. § 109 which provides that state defense forces as a whole may not be called, ordered, or drafted into the armed forces of the United States, thus preserving their separation from the National Guard. However, under the same law, individual members serving in the state defense force are not exempt from service in the armed forces (i.e., they are not excluded from the draft). Under 32 USC § 109(e), "A person may not become a member of a defense force ... if he is a member of a reserve component of the armed forces."

The defense forces are created pursuant to 32 U.S.C. 109. They are subject to being drafted into the U.S. armed forces.

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

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

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

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

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

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

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

https://en.wikipedia.org/wiki/Militia_(United_States)

Today, as defined by the Militia Act of 1903, the term "militia" is primarily used to describe two groups within the United States:

Organized militia – consisting of State militia forces; notably, the National Guard and Naval Militia. (Note: the National Guard is not to be confused with the National Guard of the United States.)

Unorganized militia – composing the Reserve Militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the National Guard or Naval Militia.

The state defense forces do not meet the definition of the organized or unorganized militia.

You may stop making believe that they are the militia, resurrected.

"The RKBA is not a restriction on the federal government to leave the state militias (and their weapons) alone. What sort of right would that be?"

That would be the right of a state to form and maintain a well-regulated militia consisting of armed citizens.

Perhaps you missed it, but over a century ago the state militias were changed by Federal law into the National Guard.

Where did you find the constitutional right of a State to form and maintain a militia?

The Constitution says Congress shall have the power,

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

- - - - - - - - - -

"There are no more State militias. There is the National Guard."

21 states have State Defense Forces in addition to the National Guard. If the other 29 wish to have them, the second amendment protects their right to organize them.

The militia, resurrected, they ain't.

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

State defense forces (SDF; also known as state military, state guards, or state military reserves) in the United States are military units that operate under the sole authority of a state government. State defense forces are authorized by state and federal law and are under the command of the governor of each state.

State defense forces are distinct from their state's National Guard in that they cannot become federal entities. All state National Guard personnel (to include the National Guard of the District of Columbia, the Commonwealth of Puerto Rico and the territories of Guam and the Virgin Islands) can be federalized under the National Defense Act Amendments of 1933 with the creation of the National Guard of the United States. This provides the basis for integrating units and personnel of the Army National Guard into the U.S. Army and, since 1947, units and personnel of the Air National Guard into the U.S. Air Force.

The federal government recognizes state defense forces, as per the Compact Clause of the U.S. Constitution, under 32 U.S.C. § 109 which provides that state defense forces as a whole may not be called, ordered, or drafted into the armed forces of the United States, thus preserving their separation from the National Guard. However, under the same law, individual members serving in the state defense force are not exempt from service in the armed forces (i.e., they are not excluded from the draft). Under 32 USC § 109(e), "A person may not become a member of a defense force ... if he is a member of a reserve component of the armed forces."

[...]

Other problems cited by the Inspector General's office were a lack of standardization in training and physical fitness, raising questions as to the ability of SDFs to work alongside their National Guard counterparts, and a lack of coordination with and support from the Department of Defense. During a survey conducted by the Inspector General of SDF commanders and adjutant generals, 18 of 19 considered their SDFs to be part of the organized militia and subject to the Code of Military Justice, 14 of 18 considered the members of SDFs to be "soldiers", 14 of 18 considered SDF personnel to be "lawful belligerents" under the rules of war, and only 4 of 19 authorized their personnel to conduct firearms training. Almost all of the missions reported to the IG's office were non-military in nature, including small-scale search and rescue, disaster management, and other unarmed, homeland security related-tasks.

[...]

Some state defense forces have minimal enlistment requirements, permitting virtually any citizen under a prescribed age (usually 66) to join, even if they have no previous military experience, or don't meet conventional military physical standards (California, for instance, requires no physical fitness test prior to entry and has weight/height standards significantly more relaxed than the U.S. military).

Many state defense forces allow enlistment "at will" and personnel are under no termed service obligation, unlike most conventional military forces, meaning they can simply quit at any time without facing charges of desertion or Absence Without Leave.

Training standards vary widely, but usually require 15 days of annual drill, compared to the absolute minimum of 38 days (if not more) required of most federal military reserve forces. Unlike the U.S. military, there is generally only a limited period of basic training, often as few as four days for persons with no prior military experience, significantly less than the ten weeks of basic training required, for instance, by the United States Army.

[...]

Weapons qualification and training is provided in some SDFs. However, most SDFs do not require weapons proficiency. A 2006 report by the U.S. Freedom Foundation, an organization affiliated with the State Guard Association of the United States, recommended minimum standards for state defense forces, including weapons training, but the report has been largely ignored. Some SDFs have laws that in the event of deployment by order of the state legislature and/or governor, they will become armed.

The defense forces are created pursuant to 32 U.S.C. 109. They are subject to being drafted into the U.S. armed forces.

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

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

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

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

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

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

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

https://en.wikipedia.org/wiki/Militia_(United_States)

Today, as defined by the Militia Act of 1903, the term "militia" is primarily used to describe two groups within the United States:

Organized militia – consisting of State militia forces; notably, the National Guard and Naval Militia. (Note: the National Guard is not to be confused with the National Guard of the United States.)

Unorganized militia – composing the Reserve Militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the National Guard or Naval Militia.

The state defense forces do not meet the definition of the organized or unorganized militia.

You may stop making believe that they are the militia, resurrected.

"The District’s argument, on the other hand, asks us to read “the people” to mean some subset of individuals"

They were. They were citizens with full rights -- to own property, run for office, vote, bear arms in the militia. For example, Article I, Section 2 says "the people" vote for House members. Not "the citizens" vote for House members.

When used in a constitutional sense, the citizens and the people are one and the same. This reduces your statement to gibberish.

People ... In a more restricted sense, and as generally used in constitutional law, the entire body of those citizens of a state or nation who are invested with the political power for political purposes.

Black's Law Dictionary, 6th Ed.

Look at how well that worked in Illinois. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

If that's what the citizens of Morton Grove wanted, who the fuck are you to tell them how to live? Who died and made you King?

You died of self-inflicted wounds.

You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns. Talk about a surrender monkey.

Hey hey, ho ho,
Whitey's rights have got to go!

"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. Are you saying that people don't have the right to self-governance because you, nolu chan, disagree with the decisions they're making?

Is your way the better way?

The District of Columbia is not a state. It is a Federal district. There was no need for incorporation for the 2nd amendment to apply to the District of Columbia.

Which is the main problem with the Heller decision. Had, say, Ohio banned handguns in the home for self-defense, the ruling would have been different because the court would have referred to Ohio's state constitution.

So the Heller court felt compelled to twist and distort the second amendment to make it applicable to DC residents. Which it is not.

The Massachusetts Supreme Court was correct -- the second amendment does not protect stun guns or sawed-off shotguns or zip guns or any other weapon not suitable for a miliria. That's not to say citizens can't have them if their state constitution protects them. Just that they're not protected by the second amendment.

Now, this case proves the point I've been making since Heller was decided. Five justices on the The U.S. Supreme Court now get to define the word "arms" in the second amendment for everyone.

Not the people. Not the city. Not the state. Five unelected, appointed-for-life Federal judges.

You bring up the Massachusetts ruling like it's a good thing because the U.S. Supreme Court forced Massachusetts to allow stun guns. The citizens of Massachusetts don't want civilians to have stun guns. Tough shit, citizens.

BUT what happens when some future, liberal U.S. Supreme Court defines arms as not including "assault rifles" -- the very weapons needed for protection from an out-of-control government? Still a good idea when the ruling goes against you?

The state defense forces do not meet the definition of the organized or unorganized militia.

If State Defense Forces don't meet the definition of a modern day state militia, then I don't know what does. Next you'll be telling me that an AR-15 doesn't meet the definition of "arms" because it's not a muzzle-loader.

(I will not be surprised when the U.S. Supreme Court defines it that way.)

"Where did you find the constitutional right of a State to form and maintain a militia?"

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

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

When used in a constitutional sense, the citizens and the people are one and the same.

Not when the U.S. Constitution was written. And if we're looking for the meaning of the second amendment, that's what you go on.

"People ... In a more restricted sense, and as generally used in constitutional law, the entire body of those citizens of a state or nation who are invested with the political power for political purposes."

First of all, the term is "the people", not "people", not "persons", not "individuals, not "citizens". Each one had a different meaning in the U.S. Constitution.

Second, were your "people" -- the the the entire body of those citizens -- allowed to vote? Children weren't. Women weren't. Non-property owners weren't. Could those groups run for office? (No.)

So how can you possibly include them with those "who are invested with the political power for political purposes"?

nolu chan ------ "You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns. Talk about a surrender monkey".

Misterwrong ------ Only if the state constitution allows it and the people want it. Are you saying that people don't have the right to self-governance because you, nolu chan, disagree with the decisions they're making?

State constitutions or State/local 'laws' cannot infringe on 2nd amendment rights, -- (see the Supremacy Clause),....

"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. Are you saying that people don't have the right to self-governance because you, nolu chan, disagree with the decisions they're making?

The Federal Constitution prohibits infringing upon the right of the people to keep and bear arms.

The people reserved the right to themselves and neither the Federal government, nor a lawless, usurping State government has the lawful power to infringe upon this right of the people.

This is true regardless of your mindless blatherings, or my astute observations of the actual law and current U.S. Supreme Court precedent.

The District of Columbia is not a state. It is a Federal district. There was no need for incorporation for the 2nd amendment to apply to the District of Columbia.

Which is the main problem with the Heller decision. Had, say, Ohio banned handguns in the home for self-defense, the ruling would have been different because the court would have referred to Ohio's state constitution.

So the Heller court felt compelled to twist and distort the second amendment to make it applicable to DC residents. Which it is not.

Once again, you do not know what the hell you are talking about and just blather.

Heller only applied to the District of Columbia, not to the States.

McDonald took up the issue regarding thd States and decided that the 2nd Amendment had been incorporated into the 14th Amendment and was fully applicable to all the States.

Heller did not have to twist or distort anything to make it applicable to the District. It is a Federal district, under the control of the U.S. Congress. Congress has the power "to to exercise exclusive Legislation in all Cases whatsoever, over such District...." Art. 1, Sec. 8, Cl. 17. The 2nd Amendment automatically applied to the Federal district.

The Massachusetts case came after the Heller decision, so you can expect weird, convoluted second amendment rulings from here on out.

The Massachusetts case followed the precedent in Heller. Caetano v. Massachusetts was a UNANIMOUS decision of the U.S. Supreme Court.

If you do not like the legally binding precedents of the U..S. Supreme Court, send them a sternly worded letter giving them the benefit of your wisdom.

Five justices on the The U.S. Supreme Court now get to define the word "arms" in the second amendment for everyone.

Yes, it has not changed. The U.S. Supreme Court is empowered by the people to issue a legally binding definition. You are not.

The state defense forces do not meet the definition of the organized or unorganized militia.

If State Defense Forces don't meet the definition of a modern day state militia, then I don't know what does.

Finally, you made a statement that appears to be absolutely true.

"Where did you find the constitutional right of a State to form and maintain a militia?"

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

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

You're blowing it out of your ass.

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

Article 1, Section 8:

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

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

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

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

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

32 U.S.C. § 109 (2016)

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

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

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

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

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

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

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

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

Black's Law Dictionary 6th Ed.

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

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

When used in a constitutional sense, the citizens and the people are one and the same.

Not when the U.S. Constitution was written.

Again, you are full of shit.

That is the usage of the Framers. That is why it is applicable in constitutional usage.

As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

“ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

Heller, 554 U.S. 570, 590 (2008)

But back when the U.S. Constitution and the second amendment were written, "the people" referred only to citizens with full rights -- the right to vote, to own property, to run for office. Only they were "part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

So when Article 1, Section 2 or the second amendment refers to "the people", that's who they're talking about. Not everyone. Not back then.

The Federal Constitution prohibits infringing upon the right of the people to keep and bear arms.

It does now, but only those "arms" defined as "arms" by the U.S. Supreme Court. And "keep" as defined by the U.S. Supreme Court. And "bear" as defined by the U.S. Supreme Court.

Heller only applied to the District of Columbia, not to the States.

And that's where it should have stayed.

"Heller did not have to twist or distort anything to make it applicable to the District."

Sure it did. It applied the second amendment protection of a militia to an individual ... because D.C. residents weren't protected by their own constitution.

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

Do you? You certainly don't like the precedents of Cruikshank, Presser or Miller. Those weren't legally binding precedents. They were mere suggestions, right?

"The U.S. Supreme Court is empowered by the people to issue a legally binding definition."

Which, in second amendment cases, would only bind the federal government. But that's now changed with Heller and McDonald. Now the court decides for everyone.

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

Then stop referencing common law in your posts. You can't have it both ways.

In 1990 and in 2008, "the people" referred to a different class of citizens.

But back when the U.S. Constitution and the second amendment were written, "the people" referred only to citizens with full rights -- the right to vote, to own property, to run for office. Only they were "part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

So when Article 1, Section 2 or the second amendment refers to "the people", that's who they're talking about. Not everyone. Not back then.

Quit just making shit up. The Constitution was not written in 1990 or 2008.

Heller and McDonald interpreted the Constitution according to original intent at the time of the writing.

Scalia [2008] and Alito [2010] were not applying your bastardized meaning of "the people."

The Federal Constitution prohibits infringing upon the right of the people to keep and bear arms.

It does now, but only those "arms" defined as "arms" by the U.S. Supreme Court. And "keep" as defined by the U.S. Supreme Court. And "bear" as defined by the U.S. Supreme Court.

Yes, the Constitution only protects the right, as that right is defined by the U.S. Supreme Court. That is the system we have, where the U.S. Supreme Court is the ultimate arbiter of what the law is.

Heller only applied to the District of Columbia, not to the States.

And that's where it should have stayed.

It didn't. McDonald v City of Chicago,

"Heller did not have to twist or distort anything to make it applicable to the District."

Sure it did. It applied the second amendment protection of a militia to an individual ... because D.C. residents weren't protected by their own constitution.

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

You are equally out of your mind if you think the Federal District of Columbia is a sovereign state. D.C. has no sovereignty to exercise.

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

Then stop referencing common law in your posts. You can't have it both ways.

Once again, your comment is asiten.

The language of the Constitution and of many acts of Congress could not be understood without reference to the common law.

Moore v. United States, 91 U.S. 270, 274 (1875)

The Founders and Framers lived as colonials under English common law. The used the terminology of the common law when writing the Constitution.

[misterwhite #111] The second amendment says the Federal Government can't infringe on this common law.

The Constitution is the Supreme Law of the United States.

It cannot be properly understood without reference to the common law.

U.S. Constitution, Article 6:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Constitution is the Supreme Law. It is legally IMPOSSIBLE for the Constitution to infringe upon common law, or any other law. No higher or equal law is recognized.

All thirteen original states adopted the common law, such as did not conflict with the Constitution, either in their constitution or by statute.

Common law, inconsistent with applicable written law, always falls to the written law.

While the Framers used legal terminology derived from English common law when writing the Constitution, that did not make English common law the Supreme Law of the United States.

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

Do you? You certainly don't like the precedents of Cruikshank, Presser or Miller. Those weren't legally binding precedents. They were mere suggestions, right?

You bullshittingly cited them as current precedent for all nature of silly bullshit.

Current precedent of Heller (2008) and McDonald 2010 hold that the right to keep and bear arms is an individual right, that the 2nd Amendment was incorporated into the 14th Amendment, and that the 2nd Amendment applies fully to the states.

Regarding that specific subject matter, your dredged up bullshit is not even a suggestion. Heller and McDonald are the law of the land.

"The U.S. Supreme Court is empowered by the people to issue a legally binding definition."

Which, in second amendment cases, would only bind the federal government. But that's now changed with Heller and McDonald. Now the court decides for everyone.

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

- - - - - - - - - -

Heller [2008] and McDonald [2010]

The 2nd Amendment law that is.

The Second Amendment right to keep and bear arms is an individual right. It has been oncorporated into the 14th Amendment and applies fully to the States. The States, as well as the Federal government, are restrained from infringing upon the right to keep and bear arms.

- - - - - - - - - -

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

- - - - - - - - - -

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

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

- - - - - - - - - -

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

- - - - - - - - - -

Cruickshank [1875], Presser [1886] and Miller [1939]

Non-precedent for those, such as misterwhite, who yearn for the good old days when the 2nd Amendment provided no protection from states infringing the individual right to keep and bear arms.

- - - - - - - - - -

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

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

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

- - - - - - - - - -

Quilici v. Morton Grove [1982]

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

- - - - - - - - - -

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

- - - - - - - - - -

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

- - - - - - - - - -

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

Federal Constitution? Whatever.

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

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

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

Current precedent of Heller (2008) and McDonald 2010

"In common law legal systems, a precedent is a rule established in a previous legal case that is binding on a court when deciding subsequent cases with similar issues or facts." (Wiki)

Cruikshank, Presser and Miller were precedents. They were ignored by the Heller court. The Heller court made up a whole new definition of the second amendment in order to protect Mr. Heller.

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

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

Your continued militia argument is just horseshit.

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

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

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

Your argument that the Heller court lacked authority to issue its decision, due to some prior precedent, is just horseshit. I have already explained this to you.

The doctrine of following precedent is stare decisis. A precedential holding only binds lower courts in the same jurisdiction. No precedent can bind the U.S. Supreme Court as there is no higher court to issue such a precedent.

Under your lame, desperate grope, Roe v. Wade could never be overturned or reversed by the U.S. Supreme Court. It is notorious and blatantly obvious that the system does not work that way. In a new case, the U.S. Supreme Court can always revisit issues previously decided, and either uphold, overturn, or reverse a prior opinion. The Court can overturn Roe if it takes up a case and revisits the abortion issue.

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

Roe v Wade was decided on a "right to privacy" found in a penumbra of an emanation. That decision can be overturned by a court finding that no such right exists or has ever existed.

Quilici v. Morton Grove [1982]
An example of the river of shit that flowed from Cruickshank [1875], Presser [1886] and Miller [1939]

The decision was correct. Just because you don't like the decision doesn't make it unconstitutional.

A real river of shit was created by Heller. With the U.S. Supreme Court now in total control of defining "arms", "to keep" and "to bear" for everyone, we are totally screwed. Oh, we're ok now since conservatives control the court. And you're all shits and giggles because so far they've ruled your way.

Once liberals control the U.S. Supreme Court, you might as well turn in your guns. There will be nothing to protect you.

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

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

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

I see. Your version of the law is flexible to the extent that only the precedents you do not like can be overturned or reversed.

When the SCOTUS acts to revisit an issue on the 2nd Amendment, that is beyond its authority, even though no precedent by SCOTUS or any other court can even be theoretically binding on SCOTUS.

Keep twisting yourself in knots.

Quilici v. Morton Grove [1982]

The decision was correct. Just because you don't like the decision doesn't make it unconstitutional.

I did not say Quilici was unconstitutional. At the time it was issued by a majority of the U.S. Supreme Court, it was the law of the land. Just as when Plessy v. Ferguson was issued, separate but equal was the law of the land.

When a subsequent holding overrules the holding of a prior holding, the old precedent is dead, and the new precedent is the law of the land.

You are making a fool of yourself.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You're blowing it out of your ass.

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

Article 1, Section 8:

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

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

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

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

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

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

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

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

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

Article 1, Section 8:

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

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

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

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

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

32 U.S.C. § 109 (2016)

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

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

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

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

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

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

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

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

Black's Law Dictionary 6th Ed.

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

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

It enjoys the same precedent setting authority other SCOTUS precedents.

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

Your version of the law is flexible to the extent that only the precedents you do not like can be overturned or reversed.

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

When a subsequent holding overrules the holding of a prior holding, the old precedent is dead, and the new precedent is the law of the land.

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

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

I can agree with that. The constitution is made up of words that have fixed meanings. Case law is largely made up bullshit.

I respect the law and constitution. Not "case law or precedent". And of course I am right.

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

Wrong. According to the Heller court, it protects the right of an individual to keep a handgun in the home for self-defense. That's all they ruled on.

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

You asked if there was some constitutional right to form a militia. I replied that the right to form a militia, posse comitatus, pre-dated the U.S. Constitution. The second amendment protects, not grants, that right.

You cite all the legalese for forming a militia. Fine. But, third request, where's the legalese that says the federal government cannot disband the state militias entirely and switch to a standing federal military?

Only the second amendment amigo.

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

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

Couldn't be any clearer.

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

Only the Heller court was smart enough to see that.

"the right of the people...

The people are the militia.

You don't understand original intent or you are lying.

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

Note the wording. Words mean things. It doesn't say "the right of all citizens" or "the right of persons" or "the right of individuals", or "the right of residents" or anything else.

The second amendment refers to the right of "the people" just as Article I, Section 2 refers to "... Members chosen every second Year by the People of the several States ..."

Could every person vote in 1789? Every citizen? Non-land owners?

No. "The people" were the citizens with full rights. Only THEY voted. Only THEY were members of a Militia. Only THEIR right to keep and bear arms as part of a Militia were protected by the second amendment.

For everyone else, their RKBA was protected by their state constitution.

It is an individual right.

I agree.

I don't agree that the second amendment protects that individual right for the common citizen.

That is not to say that you don't have that right. You do. Just that state constitutions, not the second amendment, protect that right.

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

Every SCOTUS precedent is the law of the land until overturned or reversed. You may not think that's saying much, but abortion still cannot be lawfully prohibited by any state, and the RKBA is an individual right that cannot lawfully be infringed by any state.

Your version of the law is flexible to the extent that only the precedents you do not like can be overturned or reversed.

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

SCOTUS precedents do not require your approval to be binding precedent.

Whether your personal opinion is that SCOTUS "made up bullshit having nothing to do with the clear wording of the U.S. Constitution," is legally irrelevant.

Much of the country disagrees with Roe v. Wade, but it is still unlawful for any state to prohibit abortions.

When a subsequent holding overrules the holding of a prior holding, the old precedent is dead, and the new precedent is the law of the land.

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

SCOTUS has the authority to accept a new case and revisit a relevant prior ruling, and to overturn the prior ruling if it sees fit. If it could not, there would never by any possibility of overturning Roe v. Wade.

SCOTUS may find that a prior Court issued a ruling based on "made up bullshit having nothing to do with the clear wording of the U.S. Constitution."

Whether your personal opinion is that SCOTUS "made up bullshit having nothing to do with the clear wording of the U.S. Constitution," is legally irrelevant.

SCOTUS precedents do not require your approval to be binding precedent.

Much of the country disagrees with Roe v. Wade, but it is still unlawful for any state to prohibit abortions.

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

Wrong. According to the Heller court, it protects the right of an individual to keep a handgun in the home for self-defense. That's all they ruled on.

Heller, 554 U.S. 570:

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 576–626.

Heller, 554 U.S. 571:

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i. e., those in common use for lawful purposes. Pp. 619–626.

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

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

Heller, 554 U.S. 627-28:

It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

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I replied that the right to form a militia, posse comitatus, pre-dated the U.S. Constitution. The second amendment protects, not grants, that right.

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

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

Posse comitatus is the common-law or statute law authority of a county sheriff, or other law officer, to conscript any able-bodied man to assist him in keeping the peace or to pursue and arrest a felon, similar to the concept of the "hue and cry." Originally found in English common law, it is generally obsolete; however, it survives in the United States, where it is the law enforcement equivalent of summoning the militia for military purposes.

Posse Comitatus DOES NOT grant a right to form a militia.

Posse Comitatus PROHIBITS the use of the military for law enforcement purposes.

Posse Comitatus is not a matter of some imaginary non-existent national common law of the United States. Federally, it is subject to Federal statute law which prohibits using the military for law enforcement purposes.

https://law.justia.com/codes/us/2016/title-18/part-i/chapter-67/sec.-1385/

2016 US Code
Title 18 - Crimes and Criminal Procedure
Part I - Crimes
Chapter 67 - Military and Navy
Sec. 1385 - Use of Army and Air Force as posse comitatus

18 U.S.C. § 1385 (2016)

§1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

(Added Aug. 10, 1956, ch. 1041, §18(a), 70A Stat. 626; amended Pub. L. 86–70, §17(d), June 25, 1959, 73 Stat. 144; Pub. L. 103–322, title XXXIII, §330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)

20 Stat. 152 (1878)

Army as Posse Comitatus

Sec. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person wilfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.

- - - - - - - - - -

You cite all the legalese for forming a militia. Fine. But, third request, where's the legalese that says the federal government cannot disband the state militias entirely and switch to a standing federal military?

Only the second amendment amigo.

Neither I, not the Court in Heller, nor the 2nd Amendment says anything about "a" militia, nor is there any mention of forming the militia.

The Federal Government ALREADY DID extinguish the militia. By Federal law, the Federal government created and imposed the NATIONAL GUARD, amigo.

The 2nd amendment speaks to a well-regulated militia, not a state militia.

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

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

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

The Congress shall have power...

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

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

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

2. Prefatory Clause.

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

a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. See, e. g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades...and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“the militia of the State, that is to say, of every man in it able to bear arms”).

Petitioners take a seemingly narrower view of the militia, stating that “[m]ilitias are the state-and congressionallyregulated military forces described in the Militia Clauses (art. I, § 8, cls. 15–16).” Brief for Petitioners 12. Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (“to raise . . . Armies”; “to provide . . . a Navy,” Art. I, §8, cls. 12–13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for calling forth the Militia,” § 8, cl. 15; and the power not to create, but to “organiz[e]” it—and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first Militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them.

Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights § 13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).

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

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

Couldn't be any clearer.

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

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

Nonsense, directly refuted by the content of Heller.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How about when the U.S. Supreme Court rules that citizens may own AR-15's, but because they're so lethal they must be kept at a shooting club or state armory?

Much of the country disagrees with Roe v. Wade,

Meaning what? If the majority of the country disagreed with Roe v Wade would the U.S. Supreme Court reverse it's decision? Suddenly discover there is no "right to privacy" in the U.S. Constitution?

Is that what the U.S. Supreme Court is supposed to do -- wet their finger and stick it in the air to see which way the wind is blowing?

Or are they to simply give you a call and ask how they should rule on a case?

Posse Comitatus DOES NOT grant a right to form a militia.

Uh-huh. It only allows for the formation of armed private citizens to execute the laws of the Union, suppress insurrection and repel invasion.

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

After the ruling in Heller, the answer is NOTHING.

"We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

WHAT??? That wasn't in Miller!!

In Miller the court said, "The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia".

The second amendment specifically protects weapons not typically possessed by law abiding citizens for lawful purposes. It protects weapons of war used by a militia! The Miller court was unsure that "a shotgun having a barrel less than 18 inches long" was suitable for use by a militia and therefore protected.

The Heller court, on the other hand, knows everything about weapons, who typically possesses them, and what is a lawful purpose and what isn't. So they plowed ahead and made their ruling.

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

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

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

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

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

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

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

You (nolu) keep referring to the Heller case as if it was the only case ever brought before the Supreme Court of the U.S. I suggest you get a hold of a reader entitled, That Every Man Be Armed written by this guy stephenhalbrook.com/everyman.html ----

misterwrong asks: --- what makes you think the second amendment protects that right? That's what the debate is all about.

The concept that our States protect the RKBA's is obviously NOT true, proved by the behaviour of States like California and New York..

Why misterwhite continues to flog this dead horse is only answerable by a mental health specialist.. --- Pity misterwrong, he's either funny in the head, or a troll.

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

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

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

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

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

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

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

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

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

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

Yes, I refer to the general public. Back then, it was only white people who could vote, own land, and even firearms. The black people were indentured slaves having been shipped over to New England from Africa. It was our forefathers who recognized these slaves as the biblical Hebrew Israelites. It was the President Teddy Roosevelt who gave the black slaves that opportunity to become free citizens, own land, and firearms on the condition that they served in the militia. Most people today would consider this a gross violation of the Thirteenth Amendment of those black people forced into slavery and having conditions like this as necessary to become a free member of society. In my opinion, Harriet B. Tubman did more for her people than what our government ever did for them. https://en.wikipedia.org/wiki/Harriet_Tubman

Finally, it was President Lincoln who abolished slavery but would never view the black people as equal to the whites.

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

So, back then, the second amendment only protected the RKBA for white people who could vote and own land?

Is it merely a coincidence that those are the same people who constituted a Militia and their arms were protected from federal infringement because of that?

Those (such as Roosevelt) who constituted the federalized militia and the enforcement of slaves into joining for purpose to be free turned this into a constitutional mess.

What changed Teddy Roosevelt's infringement of the black slaves from being free people was the enactment of the first civil rights act of 1866 which is today referred to as The Civil Rights Act of 1866. More here on this https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866

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

That's the way it is. What I want is irrelevant. Whatever dingbat thing you want is also irrelevant. SCOTUS is empowered to expound the law.

Much of the country disagrees with Roe v. Wade,

Meaning what? If the majority of the country disagreed with Roe v Wade would the U.S. Supreme Court reverse it's decision?

NO!!!

Meaning that disagreement with a U.S. Supreme Court decision does not diminish its effect in any way.

Roe v. Wade remains precedent, and any state law prohibiting abortion is subject to being struck down as inconsistent with that existing precedent. All courts inferior to the U.S. Supreme Court are bound by Roe and legally required to follow it.

Posse Comitatus DOES NOT grant a right to form a militia.

Uh-huh. It only allows for the formation of armed private citizens to execute the laws of the Union, suppress insurrection and repel invasion.

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

Link, cite and quote to something besides your spider infested mind. What is your source for that fictional bullshit?

Posse comitatus Lat. The power of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to has assistance in certain cases, as to aid him in keeping the peace, in pursuing and arresting felons, etc. Williams v. State, 253 Ark. 973, 490 S.W.2d 117, 121.

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

JOHN A. FOGLEMAN, Justice.

Appellants were found guilty of refusal to assist an officer in violation of Ark. Stat. Ann. 6 42-204 (Repl. 1964) and resisting an officer in violation of Ark. Stat. Ann. 41-2801 (Repl. 1964). They contend that Ark. Stat. Ann. 42-204 is void on its face, and as applied, in that it offends the Fourth, Fifth, Eighth, Ninth, Thirteenth and Fourteenth Amendments to the United States Constitution and that the evidence is not sufficient to show a violation of Ark. Stat. Ann. 41-2801. We do not agree with either argument.

As will be noted, the appellants have assaulted 42-204 by firing a blunderbuss. Some of their arguments seem vague and illusional, but we shall treat them as best we can. The statute reads:

Every person commanded by a public officer to assist him in the execution of process, who, without lawful cause, refuses or neglects to obey the command, is guilty of a misdemeanor and contempt of the court from which the process issued.

[...]

The posse comitatus has an ancient history. It has been defined as the power or force of the county, consisting of the entire population of the county over the age of 15, which a sheriff may summon to his assistance in certain cases, such as keeping the peace, pursuing and arresting felons, etc. Black's Law Dictionary, Fourth Edition, p. 1324. Its origins are believed to lie in the preconquest English statute of "hue and cry," a method then recognized for issuing and enforcing process to bring one committing a crime before the courts, under which one who came upon evidence of a crime was himself guilty of an offense if he failed to raise the "hue" to call out the neighbors to turn out with weapons they were bound to keep. See II History of English Law, Pollock Maitland, Second Edition, 578, et seq.; Babington v. Yellow Taxi Corporation, 250 N.Y. 14, 164 N.E. 726 (1928). From this practice, the right of the sheriff to call up the local male population to arrest criminals or prevent riots evolved, and became known as the posse comitatus, which in effect was a civil army to be used by the sheriff for these purposes, among others. Lorence, The Constitutionality of the Posse Comitatus Act, 8 U.M.K.C.L. Rev. 164 (1940). Refusal to render the aid sought by the sheriff was an offense punishable by fine and imprisonment. Commonwealth v. Martin, 7 Pa. Dist. Rep. 219 (1897); Annot. 44 Am. St. Rep. 136 (1895). See also, 4 Wharton's Criminal Law Procedure (Anderson) 223, Arrest 1582.

The criminal nature of refusal to aid an officer in the execution of his duties was recognized in Regina v. Brown, 41 Eng. Common Law Reports 175 (1841). A constable, acting upon information he had received, discovered an illegal prize fight in progress but, being unable to arrest the participants without a warrant, charged Brown to assist him. It was there said that one duly called upon to render such assistance was not excused except for physical impossibility or lawful excuse. This case has been followed in many American cases, and the practice has been utilized in law enforcement throughout the history of this country, although the necessity for aid to law enforcement officers may have diminished over the years. See Annot., 44 Am. St. Rep. 136 (1895); Hooker v. Smith, 19 Vt. 151, 47 Am. Dec. 679 (1847); Babington v. Yellow Taxi Corporation, 250 N.Y. 14, 164 N.E. 726 (1928); 4 Wharton's Criminal Law Procedure (Anderson) 223, Arrest 1582. In Babington, a police officer jumped on the running board of a cab and ordered the driver to chase another cab in order that its driver might be arrested. In determining the duty of the driver in these circumstances the court relied upon an 1848 New York statute strikingly similar to Ark. Stat. Ann. 42-204 and reviewed the history of the duty of citizens in such cases. Mr. Justice Cardozo, speaking for the court, said:

The horse has yielded to the motorcar as an instrument of pursuit and flight. The ancient ordinance abides as an interpreter of present duty. Still, as in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand. The incorporeal being, the Yellow Taxi Corporation, would have been bound to respond in that spirit to the summons of the officer if it had been sitting in the driver's seat. In sending Babington upon the highway, it knew or is chargeable with knowledge that man and car alike would have to answer to the call.

Without further elaboration, it is sufficient to say that Ark. Stat. Ann. 42-204 is, at most, an extension of the common law concept of posse comitatus, if not merely a codification thereof. Hooker v. Smith, 29 Vt. 151, 47 Am. Dec. 679 (1847). See also, Robinson v. State, 93 Ga. 77, 18 S.E. 1018, 44 Am. St. Rep. 127 (1893).

In re Quarles, 158 U.S. 432 (1896) posse comitatus

158 US 535

The United States are a nation, whose powers of government, legislative, executive and judicial, within the sphere of action confided to it by the Constitution, are supreme and paramount. Every right, created by, arising under, or dependent upon the Constitution, may be protected and enforced by such means and in such manner as Congress, in the exercise of the correlative duty of protection, or of the legislative powers conferred upon it by the Constitution, may in its discretion deem most eligible and best adapted to attain the object. United States v. Logan, 144 U. S. 293.

158 US 535-36

It is the duty and the right, not only of every peace officer of the United States, but of every citizen, to assist in prosecuting, and in securing the punishment of, any breach of the peace of the United States. It is the right, as well as the duty, of every citizen, when called upon by the proper officer, to act as part of the posse comitatus in upholding the laws of his country. It is likewise his right and his duty to communicate to the executive officers any information which he has of the commission of an offence against those laws; and such information, given by a private citizen, is a privileged and confidential communication, for which no action of libel or slander will lie, and the disclosure of which cannot be compelled without the assent of the government. Vogel v. Gruaz, 110 U. S. 311; United States v. Moses, 4 Wash. C. C. 726; Worthington v. Scribner, 109 Mass. 487.

Filarsky v. Delia, 564 U.S. 377, 388 (2012)

Roberts, C. J., delivered the opinion for a unanimous Court. Ginsburg, J., post, p. 394, and Sotomayor, J., post, p. 397, filed concurring opinions.

Excerpt at 564 U.S. 388

Sheriffs executing a warrant were empowered by the common law to enlist the aid of the able-bodied men of the community in doing so. See 1 W. Blackstone, Commen­taries on the Laws of England 332 (1765); In re Quarles, 158 U. S. 532, 535 (1895). While serving as part of this “posse comitatus,” a private individual had the same authority as the sheriff, and was protected to the same extent. See, e.g., Robinson v. State, 93 Ga. 77, 18 S. E. 1018, 1019 (1893) (“A member of a posse comitatus sum­moned by the sheriff to aid in the execution of a warrant for a felony in the sheriff ’s hands is entitled to the same protection in the discharge of his duties as the sheriff himself ”); State v. Mooring, 115 N. C. 709, 20 S. E. 182 (1894) (considering it “well settled by the courts” that a sheriff may break open the doors of a house to execute a search warrant and that “if he act in good faith in doing so, both he and his posse comitatus will be protected”); North Carolina v. Gosnell, 74 F. 734, 738–739 (CC WDNC 1896) (“Both judicial and ministerial officers, in the execu­tion of the duties of their office, are under the strong protection of the law; and their legally summoned assis­tants, for such time as in service, are officers of the law”); Reed v. Rice, 25 Ky. 44, 46–47 (App. 1829) (private indi­viduals summoned by a constable to execute a search warrant were protected from a suit based on the invalidity of the warrant).

10 USC 331. When a state is unable to control domestic violence and they have requested federal assistance, the use of the militia or Armed Forces is authorized.

10 USC 332. When ordinary enforcement means are unworkable due to unlawful obstructions or rebellion against the authority of the United States, use of the militia or Armed Forces is authorized.

10 USC 333. When a state cannot or will not protect the constitutional rights of the citizens, due to domestic violence or conspiracy to hinder execution of State or Federal law, the use of the militia or Armed Forces is authorized.

18 USC 1835. Section 1385.

Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

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

The direct participation by members of the armed forces in 'search, seizure, arrest or other similar activity' is forbidden. Instead, members of the armed forces can provide assistance to lw enforcement through such means as providing information collected in military training activities and operations, providing military equipment and facilities, providing training and advice to civilian law enforcement officials, and operatng detection and monitoring equipment, conducting aerial reconnaissance, transporting personnel and providing communications.

Code of Federal Regulations] [Title 32, Volume 2] [Revised as of July 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 32CFR215.4]

[Page 370-371]

TITLE 32--NATIONAL DEFENSE

CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED)

PART 215--EMPLOYMENT OF MILITARY RESOURCES IN THE EVENT OF CIVIL DISTURBANCES--Table of Contents

Sec. 215.4 Legal considerations.

(a) Under the Constitution and laws of the United States, the protection of life and property and the maintenance of public order are primarily the responsibilities of State and local governments, which have the necessary authority to enforce the laws. The Federal Government may assume this responsibility and this authority only in certain limited instances.

(b) Aside from the constitutional limitations of the power of the Federal Government at the local level, there are additional legal limits upon the use of military forces within the United States. The most important of these from a civil disturbance standpoint is the Posse Comitatus Act (18 U.S.C. 1385), which prohibits the use of any part of the Army or the Air Force to execute or enforce the laws, except as authorized by the Constitution or Act of Congress.

(c) The Constitution and Acts of Congress establish six exceptions, generally applicable within the entire territory of the United States, to which the Posse Comitatus Act prohibition does not apply.

(1) The constitutional exceptions are two in number and are based upon the inherent legal right of the U.S. Government--a sovereign national entity under the Federal Constitution--to insure the preservation of public

[Page 371]

order and the carrying out of governmental operations within its territorial limits, by force if necessary.

(i) The emergency authority. Authorities prompt and vigorous Federal action, including use of military forces, to prevent loss of life or wanton destruction of property and to restore governmental functioning and public order when sudden and unexpected civil disturbances, disasters, or calamities seriously endanger life and property and disrupt normal governmental functions to such an extent that duly constituted local authorities are unable to control the situations.

(ii) Protection of Federal property and functions. Authorizes Federal action, including the use of military forces, to protect Federal property and Federal governmental functions when the need for protection exists and duly constituted local authorities are unable or decline to provide adequate protection.

(2) There are four exceptions to the Posse Comitatus Act based on Acts of Congress.

(i) In the cases of each of the first three of those described, paragraphs (c)(2)(i) (a), (b), and (c) of this section, personal Presidential action, including the issuance of a proclamation calling upon insurgents to disperse and retire peaceably within a limited time, is a prerequisite.

(a) 10 U.S.C. 331. Authorizes use of the militia and Armed Forces when a State is unable to control domestic violence, and a request for Federal assistance has been made by the State legislature or governor to the President. Implements Article IV, section 4, of the Constitution.

(b) 10 U.S.C. 332. Authorizes use of the militia and Armed Forces to enforce Federal law when unlawful obstructions or rebellion against the authority of the United States renders ordinary enforcement means unworkable. Implements Article II, section 3, of the Constitution.

(c) 10 U.S.C. 333. Authorizes use of the militia and Armed Forces when domestic violence or conspiracy hinders execution of State or Federal law, and a State cannot or will not protect the constitutional rights of the citizens. Implements Article II, section 3, and the 14th Amendment of the Constitution.

(d) House Joint Resolution 1292, June 6, 1968.1 Directs all departments of the Government, upon the request of the Secret Service, to assist that Service in carrying out its statutory duties to protect Government officials and major political candidates from physical harm. Assistance to the Secret Service is governed by DoD Directive 3025.13, ``Employment of Department of Defense Resources in Support of the United States Secret Service,'' July 15, 1968.2

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

1 Although this resolution has been placed in the Statutes at Large as Public Law 90-331, 82 Stat. 170, it has not been codified; it is set out in the notes to 18 U.S.C. 3056.

2 Filed as part of original copies available from U.S. Naval Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 19120, Code: 300.

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

(ii) It should be noted that none of the above authorities, in and of itself, provides sufficient legal basis to order members of the Reserve components to active Federal service.

Fourth request, what prevents the federal government from disbanding ALL state guard units and going with a federal standing military?

After the ruling in Heller, the answer is NOTHING.

Since the dawn of the republic, the answer is NOTHING.

There is no constitutional requirement to maintain a National Guard.

There is a constitutional provision empowering the Congress "to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions."

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

Those provisions grant the power to do the things specified. They do not command that an organized militia be maintained.

10 U.S.C. § 311: "(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard."

The unorganized militia of the United States is still there, subject to being called up.

"We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

WHAT??? That wasn't in Miller!!

As your interpretation of Miller disagrees with the majority of the U.S. Supreme Court, you should inform SCOTUS of this with a sternly worded letter.

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

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

[misterwhite #138]

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

Only the Heller court was smart enough to see that.

What precedent did Heller defy?

It could not have been the issue of the 2nd Amendment applying to the states, as that had nothing to do with Heller.

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

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

The prefacing clause, that "A well regulated Militia is necessary to the security of a free State," gave a reason for protecting the RKBA. It granted no power, it defined no right, it neither commanded nor proscribed anything.

The operative clause, "the right of the people, to keep and bear arms, shall not be infringed," restrained the congress from infringing on the specified right of the people.

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

I have a copy of Halbrook , That Every Man Be Armed, 2013 Revised and Updated Edition.

This edition cites and quotes Heller and McDonald as the reigning U.S. Supreme Court precedent. Any older opinions you can come up, and interpreted in a manner inconsistent with Heller and McDonald do not mean diddly squat. Note that the precedent setting McDonald cited two of Halbrook's books.

At 228, in chapter "Update to New Edition": (footnotes omitted)

[The] blockbuster opinion in District of Columbia v. Heller (2008) held that the Second Amendment guarantees the right of individuals to possess firearms for self-defense, hunting, and militia service. The decision invalidated D.C.'s handgun ban. The 5-4 opinion, authored by Justice Antonin Scalia, held that "the right of the people to keep and bar arms" means what it literally says, and that this liberty to have arms for protection is a natural right recognized in the English tradition. It was considered fundamental by our Founders and was consistently regarded as an individual right in the nineteenth century.

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

Finally, in McDonald v. Chicago (20I0), the U.S. Supreme Court, in a 5-4 decision, ruled that the Second Amendment applies to the states through the Fourteenth Amendment because "the right to keep and bear arms is fundamental to our scheme of ordered liberty," and is "deeply rooted in this Nation's history and tradition...." The opinion of the Court — written by Justice Alito, representing a plurality of four Justices — held that the right was incorporated through the Due Process Clause, while Justice Thomas would have incorporated it through the Privileges-or-Immunities Clause.

McDonald followed a long-standing precedent that rights considered fundamental apply to both the federal and state governments. Noting that Blackstone's view of the fundamental nature of the right was "shared by the American colonists," the Court — citing this author's The Founders' Second Amendment as a source — continued: "The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights." And the Court relied in part on this author's Freedmen book in its history of Reconstruction, concluding that "the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

Because the Second Amendment is "a provision of the Bill of Rights that protects a right that is fundamental from an American perspective," it "applies equally to the federal Government and the States." Refusing "to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees," McDonald rejected the power "to allow state and local governments to enact any gun control law that they deem to be reasonable, including a complete ban on the possession of handguns in the home for self-defense."

At 231, in chapter "Update to New Edition": (footnotes omitted)

Similarly, Heller held that the Second Amendment protects possession of the types of arms commonly possessed by law-abiding persons for lawful purposes such as self-defense and hunting, including handguns and long guns, i.e., rifles and shotguns.

I also have Halbrook,

The Founders' Second Amendment, Origin of the Right to Keep and Bear Arms, The Independent Institute, 2008

Freedmen, The Fourteenth Amendment and the Right to Bear Arms, 1866-1876, Praeger, 1998.

I also have:

David E. Young, The Founders View of the Right to Bear Arms, A Definitive History of the Second Amendment, Golden Oak Books, 2007.

David E. Young, The Origin of the Second Amendment, A Documentary History of the Bill of Rights 1787-1792, Second Edition, Golden Oaks Books, 2001.

Clayton E. Cramer, Concealed Weapon Law of the Early Republic, Dueling, Southern Violence, and Moral Reform, Praeger, 1999.

My point was, the first part was placed there for a reason. If the second amendment was meant to protect the RKBA of all citizens (as you claim) there would have been no reason whatsoever to include the first part.

No other amendments contain an explanation. So it was placed there for a reason.

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

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

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

"The people" and "citizens" were synonymous terms. Your screed is nonsense. Women and children were citizens. Voting was not a right of citizenship. Slaves had no municipal rights or status and were neither citizens nor aliens. Well before women had a right to vote, they had the right to run for office, and multiple times ran for President of the United States, appeared on the ballot, and won votes. In 1879, a woman attorney was admitted to practice before the U.S. Supreme Court.

Minor v. Happersett, 88 U.S. 162 (1875)

If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the constitution and laws of Missouri confining it to men are in violation of the Constitution of the United States, as amended, and consequently void. The direct question is, therefore, presented whether all citizens are necessarily voters.

The Constitution does not define the privileges and immunities of citizens. For that definition we must look elsewhere. In this case we need not determine what they are, but only whether suffrage is necessarily one of them.

There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are expressly declared to be "citizens of the United States and of the State wherein they reside." But, in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.

[...]

As early as 1804 it was enacted by Congress that when any alien who had declared his intention to become a citizen in the manner provided by law died before he was actually naturalized, his widow and children should be considered as citizens of the United States, and entitled to all rights and privileges as such upon taking the necessary oath; and in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws, married, or who should be married to a citizen of the United States, should be deemed and taken to be a citizen.

[...]

From this it is apparent that from the commencement of the legislation upon this subject alien women and alien minors could be made citizens by naturalization, and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizens by birth.

[...]

It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be assumed.

[...]

Being unanimously of the opinion that the Constitution of the United States does not confer the right of sufrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we

AFFIRM THE JUDGMENT.

My point was, the first part was placed there for a reason. If the second amendment was meant to protect the RKBA of all citizens (as you claim) there would have been no reason whatsoever to include the first part.

It is noted that you disagree with the majority opinion of the U.S. Supreme Court. You should write them a sternly worded letter.

"The people" and "citizens" were synonymous terms.

"The people" were citizens, but not all citizens were "the people".

If what you say is true, then all citizens could vote -- which was not the case back then. As you proved with your court case. Women citizens and children citizens and non-land- owning citizens (in some states) could not vote.

Now, maybe there were some exceptions in some states, but they were few and far between. The rich white guys were "the people" and had the power and the full constitutional protections.

And who served in the militias?

It is noted that you disagree with the majority opinion of the U.S. Supreme Court.

As I disagree with the majority opinion of the U.S. Supreme Court on Roe v Wade, Kelo, Obamacare, selective incorporation, and most of their rulings on the commerce clause.

And I bet you do too.

If what you say is true, then all citizens could vote -- which was not the case back then.

This is just dumb obstinancy. Minor v. Happersett clearly held that suffrage was not a right conferred by citizenship. That one could vote did not mean one was a citizen, and that one could not vote did not signify a lack of citizenship.

Notice that about half the able-bodied men in the state of Wisconsin in 1862 were foreigners, had not been naturalized, and yet they enjoyed the right to vote under the state constitution. At that time, there was no federal equirement that one needed to be a citizen to vote in elections for federal office.

Male aliens could vote; women citizens born in the United States could not. Voting rights are conferred by law, not citizenship.

https://babel.hathitrust.org/cgi/pt?id=coo.31924079575241;view=1up;seq=381

OFFICIAL RECORDS: Series 3, vol 2, Part 1 (Union Letters, Orders, Reports)

Page 369 UNION AUTHORITIES.

MADISON, WIS., August 12, 1862.

Honorable E. M. STANTON:

About one-half of the able-bodied men between eighteen and forty- five years in this State are foreign born. They have declared their intention to become citizens of the United States. Have the right to vote under our State constitution if twenty-one years old. Have enjoyed and are enjoying all the privileges of citizens. Are they liable to be drafted? They should be liable. Great injustice will be done to our State if they are exempt, and our quota would be too large if they are exempt. Cannot those who are not willing to subject themselves to draft be ordered to leave the country? Answer this immediately. I must have the time for volunteering extended, as asked for by my dispatches of Saturday and yesterday. Please answer them.

E. SALOMON,

Governor of Wisconsin.

- - - - -

WAR DEPARTMENT,

Washington City, D. C., August 12, 1862.

Governor SALOMON,

Madison, Wis.:

Foreigners who have voted at our elections are regarded as having exercised a franchise that subjects them to military duty. Declaration of intention to become naturalized is not of itself sufficient to prevent their taking advantage of their alienage, but a man who votes must bear arms. Your telegram respecting extension of time for volunteering cannot be answered until tomorrow, some information from different States being required.

EDWIN M. STANTON,

Secretary of War.

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

As you proved with your court case. Women citizens and children citizens and non-land- owning citizens (in some states) could not vote.

As proved by Minor v. Happersett, after the 14th Amendment,

1. The word "citizen" is often used to convey the idea of membership in a nation.

2. In that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment to the Constitution as since.

3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had.

4. At the time of the adoption of that amendment, suffrage was not coextensive with the citizenship of the States; nor was it at the time of the adoption of the Constitution.

5. Neither the Constitution nor the fourteenth amendment made all citizens voters.

6. A provision in a State constitution which confines the right of voting to "male citizens of the United States," is no violation of the Federal Constitution. In such a State women have no right to vote.

Syllabus at 88 U.S. 162.

In 1875, after the 14th Amendment, Virginia Minor was held to be a natural born citizen who did not have a right to vote because her state law said so. Suffrage was held to not be a privilege of citizenship.

Your continued attempt to conflate voting rights with citizenship remains misplaced.

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Now, maybe there were some exceptions in some states, but they were few and far between. The rich white guys were "the people" and had the power and the full constitutional protections.

According to the law, as expounded by the U.S. Supreme Court, voting is not a right conferred by citizenship. And, "women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States."

Your personal misinterpretation of the law is irrelevant.

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

And who served in the militias?

Who were members of that militia has varied according to which Militia Act was effective. Generally, it was the able-bodied male population between 18-45 years of age. Originally, it was exclusively white male citizens. The age range is now 17-45, and some females are included, and non-citizens are included.

Those who served in the militia comprise that subset of the members of the militia who were in the militia while called to service. Those who served may include persons who were ineligible due to sex, age, race, or alienage.

As I disagree with the majority opinion of the U.S. Supreme Court on Roe v Wade, ... [et al.]

And I bet you do too.

The difference being that I do not project my personal opinion as being the law of the land.

Whether one agrees with the Court or not, when SCOTUS issues a an opinion interpreting the Constitution, its holding is the law of the land and all inferior courts are bound by that opinion.

Roe v. Wade, whatever one thinks of it, makes it unlawful for a state to prohibit abortion.

Roe at 410 U.S. 153:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

The right of privacy, whatever exactly it is, and whether it is found in the 14th Amendment or 9th Amendment, "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." This is a legal fact of life, even if it emanates from a penumbra. This will remain so until SCOTUS revisits the issue and changes it, or the Constitution is amended to change it.

The difference being that I do not project my personal opinion as being the law of the land.

I am not aware that I ever denied nor disputed the fact that the rulings were the law of the land. Merely that I disagreed with the rulings.

"This is a legal fact of life, even if it emanates from a penumbra."

The legal fact of life being that murder is legal if done in private by the mother. But if the fetus is killed as a result of a violent act by another … it is murder.

That's our U.S. Supreme Court in action. The same court that gave us Heller and McDonald.

half the able-bodied men in the state of Wisconsin in 1862 were foreigners,

That was 1862. Minor v. Happersett was an 1874 ruling.

I'm talking about 1791 when the Bill of Rights was ratified. Who were "the people" (in Article I, S I, Section 2) who were allowed to vote? Rich, white, land-owning adult males.

So then, who were "the people" in the second amendment at that time? Rich, white, land-owning adult males.

Who were the militia? Rich, white, adult males. Only their RKBA was protected because they were the militia.

The legal fact of life being that murder is legal if....

There you go again. Murder is a crime and is never legal.

Well, at least you now recognize the Heller and McDonald are the law of the land and that the 2nd Amendment right to keep and bear arms is an INDIVIDUAL right, historically rooted in English common law, and that the Second Amendment applies to all the states, and that it does not include any right to keep and bear SAMs or atomic bombs.

I am not aware that I ever denied nor disputed the fact that the rulings were the law of the land. Merely that I disagreed with the rulings.

[misterwhite #46]

The Heller Supreme court determines the law? Or the Cruikshank Supreme court? Or the Presser Supreme Court? Or the Miller Supreme court?

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

Yes. The Heller court determined RKBA law for D.C. and the McDonald court determined RKBA law for the states. To the extent you feel Cruickshank, Presser and Miller are not in accord with Heller and McDonald, they are dead, despite your attempt make believe they overrule Heller or McDonald with some nebulous precedent. You have heard of stare decisis, but the difference is the justices know what it actually means.

half the able-bodied men in the state of Wisconsin in 1862 were foreigners, [had not been naturalized, and yet they enjoyed the right to vote under the state constitution. At that time, there was no federal requirement that one needed to be a citizen to vote in elections for federal office.]

That was 1862. Minor v. Happersett was an 1874 ruling.

That sure is an irrelevant observation with no point whatever.

Half the able bodied men were aliens who had the right to vote. That is absolute proof that having the right to vote was not a mark of citizenship

Women were citizens who did not have the right to vote.

And Minor v. Happersett made the issue clear:

It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be assumed.

[...]

Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we

AFFIRM THE JUDGMENT.

That is the way it was from the beginning of the constitutional republic.

There is no constitutional right to vote.

To this day, the individual citizen has no federal constitutional right to vote for electors for the President of the United States.

I'm talking about 1791 when the Bill of Rights was ratified. Who were "the people" (in Article I, S I, Section 2) who were allowed to vote? Rich, white, land-owning adult males.

The people were the men and women who were citizens. For constitutional purposes, the definition of the people has not changed since 1789.

Voting rights did not have shit to do with defining who were the people.

So then, who were "the people" in the second amendment at that time? Rich, white, land-owning adult males.

The people were men and women who were citizens. For constitutional purposes, the definition of the people has not changed since 1789.

Who were the militia? Rich, white, adult males. Only their RKBA was protected because they were the militia.

RKBA was and is an INDIVIDUAL right. It has never made a shit if one was in the militia or not. If your premise were true, RKBA did not apply to anyone over 45. For constitutional purposes, the definition of the people has not changed since 1789.

The militia originally included ALL the poor, dumb white men between 18 and 45. If the militia only included rich, white, adult males, we would still be British. As ever, the vast majority were poor, not rich. You would have had a small militia indeed. The country did not have enough rich, white, adult males to fill an army.

Keep repeating something really, really dumb, and it just stays dumb.

Half the able bodied men were aliens who had the right to vote.

Provided they intended to become citizens.

Wisconsin State Constitution (1848):

"Every male person of the age of twenty-one years, or upwards, of the following classes, who shall have resided in this State for one year next preceding any election, shall be deemed a qualified elector at such election. 1st. White citizens of the United States 2d. White persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization (...)"; "No person shall be eligible to the legislature, who shall not not have resided one year within the state, and be a qualified elector in the district he may be chosen to represent."

Voting rights did not have shit to do with defining who were the people.

According to Article I, Section 2 of the U.S. Constitution, only "the people" were allowed to vote. Granted, each state defined the requirements of suffrage, and there were differences between states. But in 1790, on the whole, only those born on U.S. soil, with a connection to the community, property- owning, adult, white males had suffrage. They were "the people".

You say they didn't have to be citizens. True, it wasn't spelled out as a requirement, per se. It was assumed based on the other voting requirements.

If your premise were true, RKBA did not apply to anyone over 45.

The second amendment protected the right of the states to form and maintain a militia consisting of armed militiamen. Taking away their arms would be an infringement and, therefore, unconstitutional.

According to the Militia Act of 1792, white male citizens between the ages of 18 and 45 were conscripted into a local militia company. Those over the age of 45 were not excluded -- meaning, if they volunteered for the militia, their RKBA was protected by the second amendment.

For those not in the militia, their RKBA was protected by their state constitution.

The people were the men and women who were citizens.

Wrong. According to the U.S. Constitution, Article I, Section 2, only "the people" voted. In 1790, women did not vote. They weren't allowed to vote. Ergo, they were not part of "the people".

Half the able bodied men were aliens who had the right to vote.

Provided they intended to become citizens.

The men were aliens AND they could lawfully vote. The fact that they intended to become citizens acts as proof that they were aliens and not citizens.

The women were citizens and had no lawful right to vote.

No matter what you choose to make believe, as firmly established by SCOTUS in v Minor v. Happersett, the right to vote was not conferred by citizenship.

Virginia Minor was found to be a natural born U.S. citizen, and like all similarly situated women, had no right to vote. A state law denying her the right to vote was upheld as constitutional.

Voting rights did not have shit to do with defining who were the people.

You say they didn't have to be citizens. True, it wasn't spelled out as a requirement, per se. It was assumed based on the other voting requirements.

Same shit, different post. Alien men could vote, while natural born citizen women could not.

No matter what you choose to make believe, as firmly established by SCOTUS in Minor v. Happersett, the right to vote was not conferred by citizenship.

Virginia Minor was found to be a natural born U.S. citizen, and like all similarly situated women, had no right to vote. A state law denying her the right to vote was upheld as constitutional.

The second amendment protected the right of the states to form and maintain a militia consisting of armed militiamen.

The Second Amendment protected the INDIVIDUAL right to keep and bear arms, not the right of states to form and maintain a militia. The Federal Congress was empowered to "call forth the militia" and "to provide for organizing, arming, and disciplining, the Militia...."

McDonald at 561 U.S. 780:

Fifth, the 39th Congress’ response to proposals to disband and disarm the Southern militias is instructive. Despite recognizing and deploring the abuses of these militias, the 39th Congress balked at a proposal to disarm them. See 39th Cong. Globe 914; Halbrook, Freedmen 20–21. Disarmament, it was argued, would violate the members’ right to bear arms, and it was ultimately decided to disband the militias but not to disarm their members. See Act of Mar. 2, 1867, § 6, 14 Stat. 487; Halbrook, Freedmen 68–69; Cramer 858–861. It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.

IV

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause. Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era.

The members of the militia enjoyed an individual right to keep and bear arms, and the militia did not have a right to exist, and was disbanded.

SCOTUS rejected your argument to return to a bygone era.

According to the Militia Act of 1792, white male citizens between the ages of 18 and 45 were conscripted into a local militia company.

The Militia Act of 1792 did not conscript anyone. (Neither does registration under the Selective Service Act.) It defined who was included in the UNORGANIZED militia.

Current law states, 10 U.S.C. § 311: "(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard."

It still defines who are included in the UNORGANIZED militia and conscripts nobody.

And the individual right to keep and bear arms, protected by the Second Amendment, does not expire at age 45, a fact you seem utterly incapable of confronting.

The people were the men and women who were citizens.

Wrong. According to the U.S. Constitution, Article I, Section 2, only "the people" voted. In 1790, women did not vote. They weren't allowed to vote. Ergo, they were not part of "the people".

Send a sternly worded letter of your dissent to the U.S. Supreme Court, informing them of their error.

Heller, at 554 U.S. 580-81

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

“‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people."

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

The fact that they intended to become citizens acts as proof that they were aliens and not citizens.

Really? That's your argument? You're reaching. One state made one exception (which was conditional) and you then generalize that non-citizens could vote.

"the right to vote was not conferred by citizenship."

I don't think I said that. I did say that those who voted were citizens (or about to be). But each state defined who could vote and I can't believe they would allow non-citizens to take over.

Keep in mind -- Congress has the power to refuse to seat a Congressman and the power to de-certify the result of the electoral college’s vote in a Presidential election if they believe there was foul play by a state.

Alien men could vote, while natural born citizen women could not.

ONE state made ONE exception that allowed male non-citizens to vote PROVIDED THAT they were on a path to citizenship.

States allow you to drive on temporary tags. Are you going to claim that means nobody needs license plates to drive around?

"natural born citizen women could not."

Correct. Neither could children citizens. Or non-land-owning citizens. Or those citizens who didn't live in the state for at least one year. Or those citizens who couldn't pass a literacy test or pay a poll tax. A lot of citizens couldn't vote.

I'll say it again -- in 1790 when the second amendment was ratified, only the rich white guys voted. Adult, white, male citizens who owned property. They were "the people" described in Article I, Section 2. There were exceptions, of course. But they were exceptions.

My point being, they were also "the people" protected by the second amendment. NOT everyone and not even every citizen.

The fact that they intended to become citizens acts as proof that they were aliens and not citizens.

Really? That's your argument? You're reaching.

Cite an example of an alien, or anyone, who intends to become a citizen, who is thereby magically transformed into a citizen without going through the naturalization process.

I linked, cited, and quoted the Official Records of the War of the Rebellion (Civil War) to show the Governor of Wisconsin making an official inquiry to the Secretary of War stating, "About one-half of the able-bodied men between eighteen and forty-five years in this State are foreign born. They have declared their intention to become citizens of the United States. Have the right to vote under our State constitution if twenty-one years old. Have enjoyed and are enjoying all the privileges of citizens. Are they liable to be drafted?"

I don't think I said that. I did say that those who voted were citizens (or about to be).

I said it. Those who voted were aliens. They were not citizens. An expression of intent to become a citizen does not change one from an alien to a citizen. Give it up.

But each state defined who could vote and I can't believe they would allow non-citizens to take over.

BELIEVE. Read history, do not invent your own.

Various states allowed aliens to vote until a Federal law was passed making it unlawful for aliens to vote in Federal elections.

Wisconsin constitution, approved August 6, 1846.

Note that the state constitutions had to be approved by the Federal government.

Article III, Section I, 1st, gave White citizens the right to vote, and Article III, Section I, 2nd, gave White aliens, who have declared their intention to become citizens, the right to vote.

ARTICLE III.

SUFFRAGE.

SECTION I. Every male person, of the age of twenty-one years or upward, belonging to either of the following classes, who shall have resided in the State for one year next preceding any election, shall be deemed a qualified elector at such election:

1st. White citizens of the United States.*

2d. White persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization.*

3d. Persons of Indian blood, who have once been declared by law of Congress to be citizens of the United States, any subsequent law of Congress to the contrary notwithstanding.

4th. Civilized persons of Indian descent, not members of any tribe: Provided, That the legislature may, at any time, extend by law the right of suffrage to persons not herein enumerated; but no such law shall be in force until the same shall have been submitted to a vote of the people at a general election, and approved by a majority of all the votes cast at such election.

SEC. 2. No person under guardianship, non compos mentis, or insane shall be qualified to vote at any election; nor shall any person convicted of treason or felony be qualified to vote at any election unless restored to civil rights.

SEC. 3. All votes shall be given by ballot, except for such township officers as may by law be directed or allowed to be otherwise chosen.

__________

* By a decision of the Supreme Court, made during the year 1866, in case of Gillespie vs. Palmer, the right of suffrage was decided to have been extended to colored persons by vote of tlie people at the general election held November 6, 1849.

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SEC. 4. No person shall be deemed to have lost his residence in this State by reason of his absence on business of the United States or of this State.

SEC. 5. No soldier, seaman, or marine in the Army or Navy of the United States shall be deemed a resident of this State in consequence of being stationed within the same.

SEC. 6. Laws may be passed excluding from the right of suffrage all persons who have been or may be convicted of bribery or larceny, or of any infamous crime, and depriving every person who shall make, or become, directly, or indirectly, interested in, any bet or wager depending upon the result of any election, from the right to vote at such election.

Various states allowed aliens to vote until a Federal law was passed making it unlawful for aliens to vote in Federal elections.

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

The issue of voting rights in the United States, specifically the enfranchisement and disenfranchisement of different groups, has been contested throughout United States history.

Eligibility to vote in the United States is established both through the federal constitution and by state law. Several constitutional amendments (the 15th, 19th, and 26th specifically) require that voting rights cannot be abridged on account of race, color, previous condition of servitude, sex, or age for those above 21; the constitution as originally written did not establish any such rights during 1787–1870. In the absence of a specific federal law or constitutional provision, each state is given considerable discretion to establish qualifications for suffrage and candidacy within its own respective jurisdiction; in addition, states and lower level jurisdictions establish election systems, such as at-large or single member district elections for county councils or school boards.

Between 1776 and 1807, women voted in New Jersey.

The Constitution of New Jersey of 1776, at IV, stated,

That all inhabitants of this Colony, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote for Representatives in Council and Assembly; and also for all other public officers, that shall be elected by the people of the county at large.

The legislature of New Jersey amended this constitution September 20, 1777, by substituting the words "State" and "States" for "colony" and "colonies."

Cite an example of an alien, or anyone, who intends to become a citizen, who is thereby magically transformed into a citizen without going through the naturalization process.

I'm not claiming that. I'm saying that one state made an exception to allow a certain group of non-citizens to vote.

"An expression of intent to become a citizen does not change one from an alien to a citizen."

I'm not claiming that. I'm saying that one state made an exception to allow a certain group of non-citizens to vote.

The members of the militia enjoyed an individual right to keep and bear arms, and the militia did not have a right to exist, and was disbanded.

If you choose not to own a gun, does that mean the second amendment no longer protects your right to own a gun? Of course not.

Same thing with the State Militias. Most disbanded because they were no longer needed. That doesn't mean the second amendment no longer protects that right. Almost half the states still have State Defense Forces in addition to the National Guard.

And the individual right to keep and bear arms, protected by the Second Amendment, does not expire at age 45, a fact you seem utterly incapable of confronting.

The second amendment protect the arms of militia members, no matter their age.

ONE state made ONE exception that allowed male non-citizens to vote PROVIDED THAT they were on a path to citizenship.

FALSE. Stop making shit up.

What is your evidence that is was ONLY ONE STATE?

The New Jersey constitution of 1776, as amended September 20, 1777, allowed "all inhabitants of this State, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote...."

In Wisconsin, the aliens were not on a path to citizenship. They had merely made a statement of intent.

In Massachusetts, the constitution of 1780, Article IX provided,

All elections ought to be free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.

Not amended until 1822.

States allow you to drive on temporary tags. Are you going to claim that means nobody needs license plates to drive around?

What the hell does that have to do with states providing aliens the right to vote and doing so in their constitution???

I'll say it again -- in 1790 when the second amendment was ratified, only the rich white guys voted. Adult, white, male citizens who owned property. They were "the people" described in Article I, Section 2. There were exceptions, of course. But they were exceptions.

You can say it again and again all you want. You can blow it out your ass.

I can quote state constitution after state constitution proving, as a matter of fact, that you are just blowing it out your ass.

Voting rights were solely dependent on State law. The Federal Constitution was silent on the question of who could vote. There was no Federal law on the matter. The States were free to choose as they please who was enfranchised within their State. Voting rights were determined by State law, not citizenship.

My point being, they were also "the people" protected by the second amendment. NOT everyone and not even every citizen.

Your point is bullshit, and as stated in McDonald, at war with the Supreme Court decision in Heller.

And there is Heller.

Heller, at 554 U.S. 580-81

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

“‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people."

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

I'm not claiming that. I'm saying that one state made an exception to allow a certain group of non-citizens to vote.

It was not ONE. You just made that part up.

It was multiple states. They allowed ALIENS to vote.

As with Wisconsin, they wrote it into their constitution.

Not that it overly matters in proving your bullshit about voting and citizenship to be just bullshit.

If one state authorized aliens to vote in elections, and the Federal government approved that constitutional provision, it is proof that the right to vote did not connote citizenship.

The members of the militia enjoyed an individual right to keep and bear arms, and the militia did not have a right to exist, and was disbanded.

If you choose not to own a gun, does that mean the second amendment no longer protects your right to own a gun? Of course not.

Same thing with the State Militias. Most disbanded because they were no longer needed. That doesn't mean the second amendment no longer protects that right. Almost half the states still have State Defense Forces in addition to the National Guard.

The 2nd Amendment right to keep and bear arms is an INDIVIDUAL right that inheres to ALL AMERICANS. Heller, the law of the land.

Americans have the right to keep and bear arms before, during, and after any connection to any militia.

They do not obtain the right by belonging to a militia, and they do not lose it by leaving a militia.

McDonald at 561 U.S. 780:

Fifth, the 39th Congress’ response to proposals to disband and disarm the Southern militias is instructive. Despite recognizing and deploring the abuses of these militias, the 39th Congress balked at a proposal to disarm them. See 39th Cong. Globe 914; Halbrook, Freedmen 20–21. Disarmament, it was argued, would violate the members’ right to bear arms, and it was ultimately decided to disband the militias but not to disarm their members. See Act of Mar. 2, 1867, § 6, 14 Stat. 487; Halbrook, Freedmen 68–69; Cramer 858–861. It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.

IV

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause. Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era.

The members of the militia enjoyed an individual right to keep and bear arms, and the militia did not have a right to exist, and was disbanded.

Your plea to return to a bygone era and argue that the 2nd Amendment RKBA derives from the militia has been rejected by SCOTUS and deposited in the trash heap of history.

You can keep mumbling that shit all you want and it will remain at war with Heller, as stated in McDonald.

The second amendment protect the arms of militia members, no matter their age.

The Second Amendment protects the INDIVIDUAL right to keep and bear arms OF ALL AMERICANS.

As the Second Amendment protects the INDIVIDUAL right to keep and bear arms OF ALL AMERICANS, it it would protect the right of militia members, if there were any, to keep and bear arms. It would equally protect te INDIVIDUAL right to keep and bear arms of non-members of any militia.

Whether the individual is, or is not, a member of a militia is irrelevant to the individual's right to keep and bear arms.

Militia members, no matter what their age, are between 17 and 45 years old, mandated by Federal statute. The INDIVIDUAL right to keep and bear arms does not end at 45 because it has nothing to do with being a member of a militia. By Federal law, membership in the militia ends at 45.

Heller, at 554 U.S. 580-81

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

“‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people."

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

The New Jersey constitution of 1776, as amended September 20, 1777, allowed "all inhabitants of this State, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote...."

"... for Representatives in Council & Assembly." Nice try.

"What the hell does that have to do with states providing aliens the right to vote and doing so in their constitution???"

It's called an analogy. License plates are required, but states will make an exception and allow you to drive with temporary tags.

"Voting rights were solely dependent on State law. The Federal Constitution was silent on the question of who could vote. There was no Federal law on the matter. The States were free to choose as they please who was enfranchised within their State. Voting rights were determined by State law, not citizenship."

I agree with all that. But the bottom line was that those who voted were citizens (with very few exceptions).

Americans have the right to keep and bear arms before, during, and after any connection to any militia. They do not obtain the right by belonging to a militia, and they do not lose it by leaving a militia.

We're not discussing the right. We're discussing the protection of that right.

Whether the individual is, or is not, a member of a militia is irrelevant to the individual's right to keep and bear arms.

It makes a HUGE difference as to the types of arms protected. If we accept that the second amendment only protects those arms that are commonly used by individuals for self-defense in the home, that's going to eliminate protections for a lot of weapons.

If the second amendment protects the arms used by a State Militia, however ...

"the people" … refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

Correct. And in 1790, "the people" were the white adult male citizens who owned property. And white adult male citizens were in the State Militia. And the RKBA of "the people" was protected by the second amendment. Because they were in the militia.

Now, over the years since then, the definition of "the people" has changed and expanded.

The Second Amendment protects the INDIVIDUAL right to keep and bear arms OF ALL AMERICANS.

Some arms for some Americans. From now on, five justices on the U.S. Supreme Court will tell you which arms for what Americans using God-knows-what for their standard. Probably popular opinion.

States allow you to drive on temporary tags. Are you going to claim that means nobody needs license plates to drive around?

What the hell does that have to do with states providing aliens the right to vote and doing so in their constitution???

It's called an analogy. License plates are required, but states will make an exception and allow you to drive with temporary tags.

If license plates were a requirement of the state constitution, as with the voting requirements I have quoted, the legislature could not carve out any exception. It would require a constitutional amendment. If you know of any such constitutional amendment for an exception to the voting requirements in the state constitutions that I have quoted, cite and quote please. Until then, your analogy is pure garbage.

The New Jersey constitution of 1776, as amended September 20, 1777, allowed "all inhabitants of this State, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote...."

"... for Representatives in Council & Assembly." Nice try.

It was written 1776/1777. All inhabitants of th[e] State were allowed to vote until the law was changed. This provision was not changed until 1822. It was the NJ state constitution from 1789 to 1822 under the U.S. Constitution. Nice try yourself. It is a matter of public record that women were allowed to lawfully vote in New Jersey for its first few decades as a state.

Back in the early Federal elections, the only ones for whom there was a popular vote were the members of the House of Representatives. Neither Senators nor members of the electoral college were chosen by popular vote.

I can show where I get my information. You are merely showing your ass, which is where you are getting your information.

This time, let's try New Hampshire. The list just keeps growing longer, like your nose.

Constitution of New Hampshire 1784, Article XI:

All elections ought to be free, and every inhabitant of the state having the proper qualifications, has equal right to elect, and be elected to office.

Constitution of New Hampshire 1792, Article 11:

All elections ought to be free, and every inhabitant of the state having the proper qualifications, has equal right to elect, and be elected to office.

We're not discussing the right. We're discussing the protection of that right.

The Second Amendment protects that individual right. The right is not protected by membership in the unorganized militia, or the organized militia.

You are discussing the right, and you are discussnig the protection of that INDIVIDUAL right, in terms rejected by the U.S. Supreme Court.

Write them a letter saying you want to return to a bygone era.

Whether the individual is, or is not, a member of a militia is irrelevant to the individual's right to keep and bear arms.

It makes a HUGE difference as to the types of arms protected.

The second Amendment offers an individual right to keep and bear arms. The right is the same in or out of the militia. As no RKBA right is gained by being in the militia, no RKBA right is lost when the individual turns 45 years old and leaves the militia. His individual right is unaffected by passing the maximum age for the miltia.

There is no huge difference as to the types of arms protected it the individual leaves the militia. There is no difference at all.

Gramps has the same RKBA rights at 46 as he had at 45.

Correct. And in 1790, "the people" were the white adult male citizens who owned property. And white adult male citizens were in the State Militia. And the RKBA of "the people" was protected by the second amendment. Because they were in the militia.

Still bullshit, no matter how many times you pass this turd. You are at war with Heller ["at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." McDonald at 561 U.S. 780] and SCOTUS rejects your plea to return to a bygone era.

Heller, at 554 U.S. 580-81

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

“‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people."

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

McDonald at 561 U.S. 780:

Fifth, the 39th Congress’ response to proposals to disband and disarm the Southern militias is instructive. Despite recognizing and deploring the abuses of these militias, the 39th Congress balked at a proposal to disarm them. See 39th Cong. Globe 914; Halbrook, Freedmen 20–21. Disarmament, it was argued, would violate the members’ right to bear arms, and it was ultimately decided to disband the militias but not to disarm their members. See Act of Mar. 2, 1867, § 6, 14 Stat. 487; Halbrook, Freedmen 68–69; Cramer 858–861. It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.

IV

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause. Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era.

The members of the militia enjoyed an individual right to keep and bear arms, and the militia did not have a right to exist, and was disbanded.

You are living in a bygone era, citing nonsense.

The Second Amendment protects the INDIVIDUAL right to keep and bear arms OF ALL AMERICANS.

Some arms for some Americans. From now on, five justices on the U.S. Supreme Court will tell you which arms for what Americans using God-knows-what for their standard. Probably popular opinion.

The U.S. Supreme Court holdings in Heller and McDonald are the law of the land. That you disagree with the U.S. Supreme Court holdings, and are throwing a tantrum, is duly noted. Of course, it changes nothing. You may write a sternly worded letter to the U.S. Supreme Court and make your displeasure known.

Since 1790, the U.S. Supreme Court has been expounding the laws. Article 3, "The judicial power shall extend to all cases, in law and equity, arising under the Constitution...." The Constitution empowers the U.S. Supreme Court to be the ultimate arbiter of what the Constitution says. The decide by majority vote. Except for the number of justices on the court varying from 5 to 10, it has not changed since 1790.

You are at war with Heller ["at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." McDonald at 561 U.S. 780] and SCOTUS rejects your plea to return to a bygone era.

Heller, at 554 U.S. 580-81

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

“‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people."

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

McDonald at 561 U.S. 780:

Fifth, the 39th Congress’ response to proposals to disband and disarm the Southern militias is instructive. Despite recognizing and deploring the abuses of these militias, the 39th Congress balked at a proposal to disarm them. See 39th Cong. Globe 914; Halbrook, Freedmen 20–21. Disarmament, it was argued, would violate the members’ right to bear arms, and it was ultimately decided to disband the militias but not to disarm their members. See Act of Mar. 2, 1867, § 6, 14 Stat. 487; Halbrook, Freedmen 68–69; Cramer 858–861. It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.

IV

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause. Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era.

The members of the militia enjoyed an individual right to keep and bear arms, and the militia did not have a right to exist, and was disbanded.

You are living in a bygone era, citing nonsense.

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset.

That's what I've been saying. And in 1790, that "political community" excluded women, children, non-landowners, non-citizens, slaves. The point being, in 1790, "the people" referred to an elite subset of the population -- the rich, white, land-owning, enfranchised, adult males. Not everyone.

The right of "the people" to keep and bear arms referred to them. Not everyone.

There is no huge difference as to the types of arms protected it the individual leaves the militia. There is no difference at all.

So "in common use at the time" means nothing?

And in 1790, that "political community" excluded women, children, non-landowners, non-citizens, slaves. The point being, in 1790, "the people" referred to an elite subset of the population -- the rich, white, land-owning, enfranchised, adult males. Not everyone.

The right of "the people" to keep and bear arms referred to them. Not everyone.

Still bullshit, no matter how many times your mind squeezes out this turd of thought.

Heller, at 554 U.S. 580-81

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

“‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people."

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

There is no huge difference as to the types of arms protected it the individual leaves the militia. There is no difference at all.

So "in common use at the time" means nothing?

It means nothing at all regarding the INDIVIDUAL right to keep and bear arms, and membership or non-membership in the militia.

Gramps at 46, ineligible to be a member of the militia, has the same, precise right to the same precise weapons as he had at 45 when he was a member of the militia.

“the people,” the term unambiguously refers to all members of the political community

Correct. We agree. And in 1790, who were "the people"? For one, we know they were enfranchised because Article I, Section 2 said "the people" could vote.

So, in 1790, who could vote?. We need to know that because the second amendment protects the right of "the people" to keep and bear arms. I guess another way to say it is the second amendment protected the right of "the voters" to keep and bear arms, right?

Think about that then ask yourself, who was in the militia? Aren't they basically the same individuals?

Gramps at 46, ineligible to be a member of the militia, has the same, precise right to the same precise weapons as he had at 45 when he was a member of the militia.

That's not what the Heller court said. Mr. Heller can't have a military weapon. What made you think he did?

Prior to Heller you could make that case.

So "in common use at the time" means nothing?

It means nothing at all regarding the INDIVIDUAL right to keep and bear arms, and membership or non-membership in the militia.

According to the Heller court:

"Held. 2. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons."

Meaning if a weapon is not "in common use" it may be banned. Say goodbye to "assault-style" weapons. Maybe not with this court, but certainly with some future liberal court.

All because YOU wanted the second amendment to protect an individual right.

For one, we know they were enfranchised because Article I, Section 2 said "the people" could vote.

Only according to your creative imagining of your illusory but unquoted provision of Article I, Section 2.

As has been repeatedly noted, and confirmed by SCOTUS, the Constitution did not give anyone the right to vote for anyone.

Enfranchisement was solely a function of state government.

Think about that then ask yourself, who was in the militia?

I do not have to think about it and come up with some creative imagining. It is a matter of statute law.

Gramps at 46, ineligible to be a member of the militia, has the same, precise right to the same precise weapons as he had at 45 when he was a member of the militia.

That's not what the Heller court said.

Identify a weapon that a member of the militia has a right to possess under the Second Amendment individual right to keep and bear arms, that he does not have the right, at age 46, to possess under the Second Amendment individual right to keep and bear arms.

You will have to read Heller for the first time before lecturing about what is in it.

Mr. Heller can't have a military weapon. What made you think he did?

My comment you quote made no reference to Mr. Heller or what weapon he had, or might have had.

You confuse the military and the militia. The members of the military get to bear all nature of arms. It has nothing to do with their 2nd Amendment individual right to keep and bear arms.

When did you stop beating your dog?

According to the Heller court:

"Held. 2. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons."

Your quote is not from the Opinion of the Court in Heller but from the Syllabus which is not part of the Opinion of the Court.

For the statement in context from the actual Opinion at 554 U.S. 627-28:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

The Miller holding has nothing to do with a 2nd Amendment individual right to keep and bear arms depending on some imaginary connection to being a member of the militia.

What type of weapons are included in the 2nd Amendment right to keep and bear arms has nothing to do with WHO has the right to keep and bear arms under the 2nd Amendment.

Meaning if a weapon is not "in common use" it may be banned. Say goodbye to "assault-style" weapons. Maybe not with this court, but certainly with some future liberal court.

All because YOU wanted the second amendment to protect an individual right.

Whether I want the 2nd Amendment to protect an individual right is irrelevant to whether it does or not. The U.S. Supreme Court clearly and definitively answered the question of whether the 2nd Amendment protects an individual right. It does. You do not like that. I don't care if you like that not.

The right has never encompassed anything other than weapons, lawful to possess.

Heller at 582:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Heller at 626:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).

Heller at 627-28:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Review your bullshit at your #2:

You can't have ordinary citizens with tanks, SAMs, flame throwers and machine guns.

As I said at the time, this is what happens when trying to fit a square peg into a round hole. You destroy the square peg.

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

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

The militia cited in the 2nd Amendment is the UNORGANIZED MILITIA. It is that mass of able-bodied persons between 17 and 45 years old, going about the business of their private lives.

The 2nd Amendment right to keep and bear arms is an INDIVIDUAL right and has not one damned thing to do with whether someone is part of any ORGANIZED militia.

Nobody is a membeer of the ORGANIZED MILITIA. The ORGANIZED MILITIA does not exist today. The 2nd Amendment right to keep and bear arms does. The 2nd amendment right to keep and bear arms exists independently of whether an ORGANIZED MILITIA exists, or not. It is a right of the individual, recognized but not conferred by the Constitution. The 2nd Amendment right to keep and bear arms belongs to individuals

• before they are age eligible for the UNORGANIZED MILITIA,
• while they are age eligible for the UNORGANIZED MILITIA, and
• after they are no longer age eligible for the UNORGANIZED MILITIA.

Your misconception of the 2nd Amendment right to keep and bear arms is noted.

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

Obviously, some of our State constitutions are NOT protecting the 2nd.

Yet misterwrong keeps repeating this mantra, like an idiot.

Will this thread ever end? --- Or will it go round a few more times, with both reiterating the same tired songs?

Identify a weapon that a member of the militia has a right to possess under the Second Amendment individual right to keep and bear arms, that he does not have the right, at age 46, to possess under the Second Amendment individual right to keep and bear arms.

A brand-new machine gun, for starters. Or a brand-new full-auto battle rifle. You know, like the ones federalized troops will have when they come-a-knockin'?

You gonna use your court-approved self-defense handgun to keep them at bay?

But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty

Wrong, wrong, wrong. They weapons they possessed at home were expensive rifles -- used for hunting and self-defense.

The militia used smooth- bore muskets -- cheap, quick to load, and suitable for volley fire. Not accurate, but deadly when fired in a volley.

Read the Militia Act. It requires a musket not a rifle. The court is simply making shit up.

The Miller holding has nothing to do with a 2nd Amendment individual right to keep and bear arms depending on some imaginary connection to being a member of the militia.

Then why did the Miller court ask if the shotgun was suitable for use in a militia? Why even bring it up?

The militia cited in the 2nd Amendment is the UNORGANIZED MILITIA.

When the second amendment was written, there was only ONE militia. The arms protected by the second amendment were the arms used by that ONE militia.

All other arms for all other individuals were protected by state constitutions.

Identify a weapon that a member of the militia has a right to possess under the Second Amendment individual right to keep and bear arms, that he does not have the right, at age 46, to possess under the Second Amendment individual right to keep and bear arms.

A brand-new machine gun, for starters. Or a brand-new full-auto battle rifle. You know, like the ones federalized troops will have when they come-a-knockin'?

You gonna use your court-approved self-defense handgun to keep them at bay?

Federalized troops are NOT the militia cited in the 2nd Amendment. The are the ORGANIZED militia, as opposed to the UNORGANIZED militia.

Heller at 624.

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.

Under what imaginary theory of imaginary law does a member of the militia have a 2nd Amendment right to keep and bear a brand new machine gun?

Who may lawfully manufacture a brand new machine gun?

Who sells brand new machine guns?

18 USC § 921 et seq.

(23) The term "machinegun" has the meaning given such term in section 5845(b) of the National Firearms Act (26 U.S.C. 5845(b)).

26 U.S.C. § 5845(b)

(b) Machinegun

The term "machinegun" means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

National Firearms Act Handbook (ATF)

1.1.3 Firearm Owners’ Protection Act. In 1986, this Act amended the NFA definition of “silencer” by adding combinations of parts for silencers and any part intended for use in the assembly or fabrication of a silencer.⁶ The Act also amended the GCA to prohibit the transfer or possession of machineguns.⁷ Exceptions were made for transfers of machineguns to, or possession of machineguns by, government agencies, and those lawfully possessed before the effective date of the prohibition, May 19, 1986.

⁶ Firearm Owners’ Protection Act, Public Law 99-308, approved May 19, 1986.
⁷ 18 U.S.C. 922(o)

https://law.justia.com/codes/us/2016/title-18/part-i/chapter-44/sec.-922/

18 U.S.C. § 922(o)

(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to—

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

The above text was the result of Public Law 99-308 of May 19, 1986, 100 Stat. 453, under section 102(9). The effective date was May 19, 1986.

EFFECTIVE DATE OF 1986 AMENDMENT

Amendment by section 102(1)–(8) of Pub. L. 99–308 effective 180 days after May 19, 1986, and amendment by section 102(9) of Pub. L. 99–308 effective May 19, 1986, see section 110(a), (c) of Pub. L. 99–308, set out as a note under section 921 of this title.

Other than the "transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof," the only possible lawful transfer or possession of a machinegun is, "any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect," i.e., May 19, 1986.

Note that the militia is not the military, and the UNORGANIZED militia of the 2nd Amendment are just ordinary people going about their business in civilian life.

http://law.justia.com/codes/us/2012/title-10/subtitle-a/part-i/chapter-13/section-311/

THE MILITIA - 10 U.S.C. § 311 (2012)

§311. Militia: composition and classes

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

As the only lawful possession of a machinegun pertains to a machinegun that was possessed before May 19, 1986, please explain your ridiculous claim that the 2nd Amendment right to keep and bear arms provides a member of the militia the right to possess a brand new machinegun.

As "the traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense," whatever makes you think that a machinegun is in common use for lawful purposes like self-defense?

The court is simply making shit up.

That's the best you have?

You have repeatly been proven to have pulled your non-facts straight out of your ass.

As you stated at #2:

The second amendment doesn't protect arms for ordinary citizens. It protects state militias and the arms of state militia members from federal infringement.

In the case where there was no state constitution, what protected the right to keep and bear arms?

The Miller holding has nothing to do with a 2nd Amendment individual right to keep and bear arms depending on some imaginary connection to being a member of the militia.

Then why did the Miller court ask if the shotgun was suitable for use in a militia? Why even bring it up?

As Millier was not in a militia, why did that alone not settle the issue?

Heller at 554 U.S. 623:

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

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

The right only extends to certain types of weapons. What type of weapons the right extends to does not mean the right depends on membership in the militia. As the Court observed, "[i]t is particularly wrongheaded to read Miller for more than what it said."

Heller at 554 U.S. 621:

Justice Stevens places overwhelming reliance upon this Court’s decision in Miller, 307 U. S. 174. “[H]undreds of judges,” we are told, “have relied on the view of the Amendment we endorsed there,” post, at 638, and “[e]ven if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law,” post, at 639. And what is, according to Justice Stevens, the holding of Miller that demands such obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons.” Post, at 637.

Nothing so clearly demonstrates the weakness of Justice Stevens’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 637. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right.

The militia cited in the 2nd Amendment is the UNORGANIZED MILITIA.

When the second amendment was written, there was only ONE militia. The arms protected by the second amendment were the arms used by that ONE militia.

The United States militia. The militia has two classes, the organized militia and the unorganized militia. The militia cited in the 2nd Amendment was the unorganized militia.

10 U.S.C. 311

§311. Militia: composition and classes

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

(b) The classes of the militia are—

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

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

Heller at 554 U.S. 595-596

2. Prefatory Clause.

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

a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. See, e. g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades...and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“the militia of the State, that is to say, of every man in it able to bear arms”).

Petitioners take a seemingly narrower view of the militia, stating that “[m]ilitias are the state-and congressionally regulated military forces described in the Militia Clauses (art. I, § 8, cls. 15–16).” Brief for Petitioners 12. Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (“to raise . . . Armies”; “to provide . . . a Navy,” Art. I, §8, cls. 12–13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for calling forth the Militia,” § 8, cl. 15; and the power not to create, but to “organiz[e]” it—and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first Militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them.

The Court firmly rejected the wrongheaded notion that the 2nd amendment referred to the organized militia, a subset of the unorganized militia. As with the petitioners in Heller, you adopt the notion that the 2nd Amendment refers to the unorganized militia. Having previously shown the wrongheadedness of your position, you now seek to make believe that you do not know that there is an organized and an unorganized militia being the two classes of the United States militia.

The unorganized militia consists of all those enrolled in the United States militia who are not serving in the military under arms.

All other arms for all other individuals were protected by state constitutions.

What if a state did not have a constitution for 50 years or so?

How did THAT work?

Federalized troops are NOT the militia cited in the 2nd Amendment.

When the second amendment was written, there was only one type of militia -- a state militia -- described in detail in the Militia Act of 1792. Those state militias could be federalized by the President to put down armed insurrections.

"please explain your ridiculous claim that the 2nd Amendment right to keep and bear arms provides a member of the militia the right to possess a brand new machinegun."

Infringing on the right of an individual in a state militia to possess a machine gun interferes with the effectiveness of the state militia and is therefore unconstitutional. Now, the state militia will probably insist that weapon remain in the state armory, but that's their decision to make, not the federal government's.

As "the traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense," whatever makes you think that a machinegun is in common use for lawful purposes like self-defense?

Well, that's the Catch-22. The National Firearms Act of 1934 banned the private ownership of the Thompson submachine gun, a weapon used by the military in WWII. So how can it ever be "in common use" by civilians if it's banned?

It was "in common use" by the military. So it should be protected under the second amendment.

The United States militia.

In 1790, when the second amendment was ratified, there was no such thing as "The United States Militia". Now you're just making shit up.

"you now seek to make believe that you do not know that there is an organized and an unorganized militia being the two classes of the United States militia."

There are two classes of militia TODAY, yes. But not in 1790 when the second amendment was written. So if you want to interpret the true meaning of the second amendment, you have to go back to 1790 to see what the Framers were referring to.

What if a state did not have a constitution for 50 years or so? How did THAT work?

Not well. But that was a decision the people of that state made. If they didn't want their state constitution to protect their RKBA, they didn't write one in.

California still has no provision in their state constitution to protect arms. Yet people own them. Just because something is not protected doesn't mean it's illegal. It means they're not protected.

As Millier was not in a militia, why did that alone not settle the issue?

Because the Miller case was about the weapon, not whether or not he was in the militia.

Let's say Miller and his friend transported a machine gun -- an obvious military weapon -- across state lines in violation of the 1934 National Firearms Act. As they did with the shotgun, let's say they challenged their arrest based on their claim that the second amendment protected military weapons. What would the U.S. Supreme Court have said?

As it was, the court didn't know if a sawed-off, double-barreled shotgun had military use, so they couldn't rule on it.

Federalized troops are NOT the militia cited in the 2nd Amendment. [The[y] are the ORGANIZED militia, as opposed to the UNORGANIZED militia.]

When the second amendment was written, there was only one type of militia -- a state militia

You excised who I said the militia 2nd Amendment made reference to, set up your own strawman, and argued your bullshit. In the vernacular of the Framing era, the ORGANIZED MILITIA and the UNORGANIZED MILITIA were the INACTIVE MILITIA and the ACTIVE MILITIA, with the distinction being no different than the more modern usage.

Aristocrotis, April 15, 1788, Pamphlet: The Government of Nature Delineated or An Exact Picture of the New Federal Constitution, Carlisle, Pennsylvania.

... see article 1 st sect. 8. "the congress shall have power to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions, to provide for organising, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the united states." By this clause the militia is divided into two classes, viz. active and inactive; the active militia will be those employed "in the service of the united states," ....

The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc.

When the 2nd Amendment was written, there was only one militia, the United States militia. The militia was divided into two classes, the Active (Organized) Militia and the Inactive (Unorganized) Militia.

By the time of the Militia Act of 1903, the terminology had changed some and was referred to as the ORGANIZED MILITIA and the INACTIVE MILITIA.

January 21,1903.

[public, No . 33.]

CHAP . 196 .-An Act To promote the efficiency of the militia, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes — the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia.

Whether you prefer to refer to them as the Inactive Militia, the Reserve Militia, or the Unorganized Militia, that is militia to which the 2nd Amendment refers.

Art. 2, Sec. 2:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States....

The President was given the power to call the militia into service, and when he did, he was the Commander-in-Chief of all of the ones called to service.

Heller at 554 U.S. 580-81:

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.

Heller at 554 U.S. 589:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the Mad Hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.

It was "in common use" by the military. So it should be protected under the second amendment.

A machinegun cannot be in common use by the people.

This would only present a problem for your delusional interpretation of the 2nd Amendment.

This is not a problem for the actual 2nd Amendment which applies to weapons in common use by the people in their civilian life for purposes such as hunting and self-defense which can also serve a use in the militia. It is what civilians show up with when called upon to serve.

You can repeat your horseshit all you want and it will still be in direct conflict with the prevailing SCOTUS opinion.

whatever makes you think that a machinegun is in common use for lawful purposes like self-defense?

Whatever makes you think you emit rainbows from your arse for purposes like self-defense?

In 1790, when the second amendment was ratified....

The Second Amendment was not ratified in 1790. It was December 1791. The first Militia Act followed shortly thereafter in May 1792.

...there was no such thing as "The United States Militia".

Art. 2, Sec. 2:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States....

Who's your daddy?

In 1789, when the Constitution was ratified by nine states, the federal Congress was authorized to call forth the militia, and the federal Congress was authorized to provide for organizing, arming, and disciplining, the militia.

Prior to the Constitution, the Articles of Confederation strictly limited states from keeping up any body of forces in time of peace,

No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the United States in Congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

States could only keep up an unorganized (or Inactive [18th century] or Reserve [19th century]) militia during peacetime.

The militia of the United States, pursuant to United States statute law:

SECOND CONGRESS. Sess. I. Ch. 33. 1792.

1 Stat. 271

May 8, 1792.

Chap. XXXIII.—An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States.(a)

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That and by whom each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia....

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.

Whither goeth your state militias?

What if a state did not have a constitution for 50 years or so? How did THAT work?

Not well. But that was a decision the people of that state made. If they didn't want their state constitution to protect their RKBA, they didn't write one in.

California still has no provision in their state constitution to protect arms. Yet people own them. Just because something is not protected doesn't mean it's illegal. It means they're not protected.

The idea of state constitutions being the primary defense against infringement of 2nd Amendment rights is obtuse. A state constitution can protect against nothing but intrusion by that state. Provisions of the federal constitution, federal law, or international treaty strike down any conflicting provision of state law. The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms.

How amusing that you find that the people who ratified the Constitution ratified a document that left protection of the right to keep and bear arms to state constitutions, yet you do not find anything amiss about one of the original thirteen states having no constitution whatever for more than its first 50 years as a member of the constitutional union.

The great state of Rhode Island adopted their first constitution in 1842. That constitution superseded the Charter of Rhode Island and Providence Plantations, issued under the rule of King Charles II in 1663.

Your brainfart that the RKBA is protected only by state constitutions is meritless. All thirteen original states adopted provisions of the English Common Law by constitutional provision or statute law as they chose, and limited to those provisions that did not conflict with the Constitution.

I would note that California was not a state in the era of the framing, and regardless of what its constitution says, or does not say, the people of California have a 2nd Amendment right to keep and bear arms, and the 2nd Amendment protects individuals from state infringement of their RKBA. No state constitution can infringe the 2nd Amendment right to keep and bear arms, or the Federal courts slap them down.

Whether the states choose to say anything about the right to keep and bear arms or not, all Americans in all fifty states enjoy the same 2nd Amendment right to keep and bear arms, and the 2nd Amendment, incorporated into the 14th Amendment, acts to restrain the states.

Because the Miller case was about the weapon, not whether or not he was in the militia.

The Miller case decided that the type of weapon was not protected by the Second Amendment.

As it was, the court didn't know if a sawed-off, double-barreled shotgun had military use, so they couldn't rule on it.

Learn to read the court opinion. The Court did rule on it unanimously and upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236.

Heller at 554 U.S. 621-22:

The judgment in the case upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 637. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added).

https://www.oyez.org/cases/1900-1940/307us174

Question

Does the Second Amendment protect an individual's right to keep and bear a sawed-off double-barrel shotgun?

Conclusion

The Supreme Court reversed the district court, holding that the Second Amendment does not guarantee an individual the right to keep and bear a sawed-off double-barrel shotgun. Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.

The Miller court stated, "We are unable to accept the conclusion of the court below, and the challenged judgment must be reversed. The cause will bee remanded for further proceedings."

Jack Miller and Frank Layton were bank robbers and had an unregistered sawed-off shotgun. The Supreme Court reversed the District court, holding that the Second Amendment does not guarantee the right to keep and bear a sawed-off shotgun as a matter of law.

Jack Miller was killed by multiple gunshots on April 3, 1939. Frank Layton pleaded guilty on January 8, 1940 to the National Fireams Act charge which was reinstated by the U.S. Supreme Court.

There was no appearance by anyone for Miller and Layton. There was no presentation of evidence before the Court about whether a short barrelled shotgun was, or was not, common in military use. In the absence of evidence, the Court could not assume it was common in military use.

In Miller, the government argued that, the Second Amendment “refers to the militia, a protective force of government; to the collective body and not individual rights.” Brief for the United States at 21.

Heller established that the 2nd Amendment right is an individual right and not a collective right. Heller at 554 U.S. 592.

c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment.

Heller at 554 U.S. 623

Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.

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

Let's say Miller and his friend transported a machine gun -- an obvious military weapon -- across state lines in violation of the 1934 National Firearms Act. As they did with the shotgun, let's say they challenged their arrest based on their claim that the second amendment protected military weapons. What would the U.S. Supreme Court have said?

Violation of National Firearms Act. There is no Second Amendment privilege to keep and bear a machinegun.

As for the shotgun, it was a sawed-off or short barreled shotgun.

Miller at 307 U.S. 179,

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Citizens, called to service, were expected to appear bearing arms of the kind in common use at the time by citizens going about their business. Citizens called to service were not expected to show up with machineguns.

Federalized troops are NOT the militia cited in the 2nd Amendment. [

State militias are the militia cited in the 2nd Amendment. Those state militias may be federalized (ie., placed under federal control) "to execute the laws of the Union, suppress insurrections, and repel invasions".

By this clause the militia is divided into two classes, viz. active and inactive; the active militia will be those employed "in the service of the united states," ....

So what? That says nothing. That's like saying we have an "active" National Guard (those deployed overseas) and an "inactive" National Guard (those at home). OK. So? You have a point?

As we will describe below, the “militia” in colonial America consisted of a subset of “the people”

No, the state militias consisted of "the people", a subset of all U.S. citizens.

The Heller court is implying that all U.S. Citizens were "the people". Wrong. As proof, only "the people" could vote. That's not everyone.

Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.

Again, the Heller court is selectively picking words.

The phrase in the second amendment is "to keep and bear arms", a phrase which typically appeared in military contexts.

"A machinegun cannot be in common use by the people.'

Of course not. As I already told you, it's banned. How can it be in common use by the people when you can't buy a new one? If a full-auto AR-15 was legal, you can bet your ass there'd be 2 million buyers by next week and it would be more "in common use" than a microwave oven.

"This would only present a problem for your delusional interpretation of the 2nd Amendment."

It would present a problem for your misquided interpretation. Under my interpretation (the correct one) a machine gun is protected by the second amendment for state militia members. The state decides if he takes the machine gun home or stores it in an armory.

For those not in the state militia, their State Constitution spells out their personal RKBA. See how simple this is? See how this keeps with the concept of federalism?

You want a one-size-fits-all federal mandate on guns. I don't.

The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms.

So you think the federal government is better at protecting your RKBA than your state? You want the feds to decide if you can carry concealed or not? To set the legal age? To define "mentally fit" and all other requirements? To define the arms protected? To define "to keep" and "to bear"?

You don't trust your own state?

The Miller case decided that the type of weapon was not protected by the Second Amendment.

No. They said they didn't know and didn't want to speculate and they remanded the case back to the lower court for clarification. They made no ruling on the case.

But their statement implied that if the weapon served no military purpose it wasn't protected by the second amendment.

"There is no Second Amendment privilege to keep and bear a machinegun."

But the Miller court concluded the second amendment protected those weapons suitable for use by a militia, did it not?

Citizens called to service were not expected to show up with machineguns.

In the War of 1812, many showed up with nothing. So your claim is meaningless.

In a modern state militia, machine guns and other heavy weapons would more than likely be stored in the state armory. But if full-auto AR-15's were legal, citizens would show up with them.

"Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument."

He did not say that. He said there was an absence of evidence showing that the weapon had military use. Quote:

"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

But here's the important take-away from Miller: The U.S. Supreme Court is saying the only weapons protected by the second amendment are those weapons used by a militia. You cannot dispute that.

The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms.

What makes you think the federal government is interested in protecting your personal RKBA?

Do you trust the federal government to protect the arms you need to defend yourself from the federal government?

You purport to respond to my #235. The quote you provide is from #225 and wrenched from context, as pointed out in my #235.

[nolu chan #225] Federalized troops are NOT the militia cited in the 2nd Amendment. The[y] are the ORGANIZED militia, as opposed to the UNORGANIZED militia.

If you had the intelligence and ambition to use the google, rather than just make shit up, you could easily find confirmation of the two classes of the militia.

https://en.wikipedia.org/wiki/Militia_(United_States)

Today, as defined by the Militia Act of 1903, the term "militia" is primarily used to describe two groups within the United States:

• Organized militia – consisting of State militia forces; notably, the National Guard and Naval Militia. (Note: the National Guard is not to be confused with the National Guard of the United States.)

• Unorganized militia – composing the Reserve Militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the National Guard or Naval Militia.

The 2nd Amendment pertained to the UNORGANIZED, the Inactive, or the Reserve militia.

As for the state National Guard,

The state National Guard is divided up into units stationed in each of the 50 states and the U.S. territories and operates under their respective state governor or territorial government. The National Guard may be called up for active duty by the state governors or territorial commanding generals to help respond to domestic emergencies and disasters, such as those caused by hurricanes, floods, and earthquakes.

In the spider-infested mind of misterwhite, the state National Guard, when called out by a state governor to combat a natural disaster, such as a hurricane, flood, or earthquake, forms up into a huge firing line and shoots machineguns at it until it surrenders, and upon this need depends the 2nd Amendment right to keep and bear arms.

My #235, which you seem unable to address, pointed out the bullshit piled upon bullshit you pulled and restored context and skewered your previous bullshit.

When called to service to engage in action as a military force, those who respond are the UNORGANIZED (or Reserve or Inactive) militia. They are the ones who brought arms from home with them to use in the call to service. They are the ones referred to in the 2nd Amendment.

Boldface and blue font IN ORIGINAL at #235.

#235. To: misterwhite (#230)

Federalized troops are NOT the militia cited in the 2nd Amendment. [The[y] are the ORGANIZED militia, as opposed to the UNORGANIZED militia.]

When the second amendment was written, there was only one type of militia -- a state militia

You excised who I said the militia 2nd Amendment made reference to, set up your own strawman, and argued your bullshit. In the vernacular of the Framing era, the ORGANIZED MILITIA and the UNORGANIZED MILITIA were the INACTIVE MILITIA and the ACTIVE MILITIA, with the distinction being no different than the more modern usage.

[snip]

As I stated, "[y]ou excised who I said the militia 2nd Amendment made reference to, set up your own strawman, and argued your bullshit."

The 2nd Amendment made reference to the UNORGANIZED militia, or the INACTIVE militia. I quoted a 1788 source for the 1788 terminology.

Aristocrotis, April 15, 1788, Pamphlet: The Government of Nature Delineated or An Exact Picture of the New Federal Constitution, Carlisle, Pennsylvania.

... see article 1 st sect. 8. "the congress shall have power to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions, to provide for organising, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the united states." By this clause the militia is divided into two classes, viz. active and inactive; the active militia will be those employed "in the service of the united states," ....

The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc.

Heller at 554 U.S. 580-81:

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.

"All Americans." Deal with it. Or are you confusing "all Americans" with a small subset of college football players?

Heller at 554 U.S. 589:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the Mad Hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.

As the U.S. Supreme Court noted, your pretzel illogic is worthy of the Mad Hatter.

Heller at 554 U.S. 596:

Petitioners take a seemingly narrower view of the militia, stating that “[m]ilitias are the state-and congressionallyregulated military forces described in the Militia Clauses (art. I, § 8, cls. 15–16).” Brief for Petitioners 12. Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (“to raise . . . Armies”; “to provide . . . a Navy,” Art. I, §8, cls. 12–13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for calling forth the Militia,” § 8, cl. 15; and the power not to create, but to “organiz[e]” it—and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men.

The 2nd Amendment right is an invidividual right that belongs to the people.

The militia cited in the 2nd Amendment is the UNORGANIZED (or Inactive or Reserve) militia. The U.S. Supreme Court ruled against your bastardized reading of the militia referring to the Organized militia.

The UNORGANIZED MILITIA are CIVILIANS.

This time your bastardized half-quote attributes the words to me, rather than to the quoted article from 1788.

As is typical of your methodology,

[nolu chan #235] [quoting article from 1788] By this clause the militia is divided into two classes, viz. active and inactive; the active militia will be those employed "in the service of the united states," ....

[nolu chan #235] [the continuance you deliberately left out] The second class or inactive militia, comprehends all the rest of the peasants; viz. the farmers, mechanics, labourers, etc.

And your horseshit comment:

[misterwhite #241] So what? That says nothing. That's like saying we have an "active" National Guard (those deployed overseas) and an "inactive" National Guard (those at home). OK. So? You have a point?

Bullshit is not an argument.

Those stationed overseas are not the ACTIVE component, any more than those stationed at home are the INACTIVE component.

It is painfully obvious that you have never served in the military, and have not the slightest clue what you are talking about.

The ACTIVE component are those who serve in uniform. The INACTIVE component do not serve at all.

I did 20 years ACTIVE DUTY in the military. I was on ACTIVE duty in the States and Overseas. I did 10 years in the Inactive Reserve. I was a CIVILIAN during those 10 years. Then I was transferred to the RETIRED list. I'm still a CIVILIAN.

The UNORGANIZED, RESERVE, or INACTIVE militia are CIVILIANS. They have NOT been called to service. Until they are actually called to serve, and report and become part of the ORGANIZED militia, they continue to be CIVILIANS. Most CIVILIAN men spend their entire lives being CIVILIANS, even though all able-bodied men are enrolled in the militia from age 17 to 45. To be enrolled in the militia is analogous to being enrolled in the Selective Service System. Until you get drafted and get sworn in, you remain a CIVILIAN.

The UNORGANIZED, RESERVE, or INACTIVE militia refers to CIVILIANS, you thick headed moron.

The Heller court is implying that all U.S. Citizens were "the people". Wrong.

Nobody cares if you think the U.S. Supreme Court is wrong. The Court holds that you are full of shit.

As proof, only "the people" could vote. That's not everyone.

That unsourced, and unsourcable, bullshit is not proof of anything but your own ignorance.

Only a subset of citizens could vote.

Where state law permitted, aliens could vote.

The right of suffrage was not a sign of citizenship. The lack of the right of suffrage was not a sign of alienage.

You are just blowing it out of your ass.

Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.

Again, the Heller court is selectively picking words.

Again, nobody cares if you disagree with the U.S. Supreme Court. The Court holds that you are full of shit.

Under my interpretation (the correct one) a machine gun is protected by the second amendment for state militia members. The state decides if he takes the machine gun home or stores it in an armory.

Under Heller and McDonald, the 2nd Amendment is an INDIVIDUAL right, and you are full of shit.

Again, nobody cares if you disagree with the U.S. Supreme Court. The Court holds that you are full of shit.

For those not in the state militia, their State Constitution spells out their personal RKBA.

The 2nd Amendment applies to the States and the States may not enact any law which in any way conflicts with the 2nd Amendment RKBA as interpreted by the U.S. Supreme Court.

The state cannot grant or protect a right to keep and bear arms in violation of any Federal law. Where Federal law prohibits possession of a short barrel shotgun, a state may not authorize such possession.

You are just blowing make believe bullshit out your ass.

The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms.

So you think the federal government is better at protecting your RKBA than your state? You want the feds to decide if you can carry concealed or not? To set the legal age? To define "mentally fit" and all other requirements? To define the arms protected? To define "to keep" and "to bear"?

You don't trust your own state?

So, you want your BULLSHIT to be considered the law rather then the actual law, as interpreted by the U.S. Supreme Court?

Also, the state is powerless to enforce any state law which conflicts with any Federal law.

That is your bullshit argument?

Again, nobody gives a good shit if you disagree with the U.S. Supreme Court. The Court holds that you are full of shit.

You think the state of California has the slightest interest or intent to protect your right to keep and bear arms?

The Miller case decided that the type of weapon was not protected by the Second Amendment.

No. They said they didn't know and didn't want to speculate and they remanded the case back to the lower court for clarification. They made no ruling on the case.

U.S. Supreme Court, as quoted in my #239 to which you purport to respond, emphasis as in my #239.

Heller at 554 U.S. 621-22:

The judgment in the case upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 637. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added).

No shithead, they REVERSED the District court and remanded. They did not ask for clarification of jack shit.

From the Mandate:

And whereas, in the present term if October, in the year of our Lord one thousand nine hundred and thirty-eight, the said cause came on to be heard before the said SUPREME COURT, on the said transcript of record, and was argued by counsel:

On consideration whereof,

It is now here ordered and adjudged by this Court that the judgement of the said District Court, in this cause be, and the same is hereby, reversed.

AND IT IS FURTHER ORDERED that this cause be, and the same is hereby, remanded to the said District Court for further proceedings in conformity with the opinion of this court.

May 15, 1939

The U.S. Supreme Court did not ask for jack shit to be clarified. They REVERSED the judgment of the lower court, and ORDERED the District court to proceed in conformity with the opinion of the U.S. Supreme Court.

Co-Defendant Frank Layton pleaded guilty to the charges reinstated by the U.S. Supreme Court. Defendant Miller was dead and just stayed that way.

Citizens called to service were not expected to show up with machineguns.

In the War of 1812, many showed up with nothing. So your claim is meaningless.

Upon being called up, civilians called to service were expected to show up with weapons in common civilian use at the time.

That some may have showed up empty handed changed nothing.

In a modern state militia, machine guns and other heavy weapons would more than likely be stored in the state armory.

There is no modern state militia.

Were there one, and had they full-auto weapons, such weapons would still be illegal for the UNORGANIZED militia (civilians). Such weapons could only be given to serving members of the ORGANIZED militia, those dressed in war suits, for use on duty only.

"Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument."

He did not say that. He said there was an absence of evidence showing that the weapon had military use.

I quoted Oyez verbatim.

https://www.oyez.org/cases/1900-1940/307us174

The Supreme Court reversed the district court, holding that the Second Amendment does not guarantee an individual the right to keep and bear a sawed-off double-barrel shotgun. Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.

https://www.oyez.org/about

About Oyez

Oyez (pronounced oh-yay), a free law project from Cornell’s Legal Information Institute (LII), Chicago-Kent College of Law and Justia.com, is a multimedia archive devoted to making the Supreme Court of the United States accessible to everyone.

[snip]

Do write them a sternly worded letter informing them they do not know what they are talking about.

Heller at 554 U.S. 621-22:

The judgment in the case upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 637. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added).

Nobody gives a shit about your addle-brained bullshit.

The District court initially DISMISSED the charges, based on a claimed 2nd Amendment right to possess the sawed-off shotgun.

The U.S. Supreme Court REVERSED the judgment of the District court, holding that a sawed-off shotgun was not the type of weapon eligible for Second Amendment protection, and reinstated the charges.

Defendant Miller was shot to death before the Supreme Court proceedings. His 2nd Amendment argument having been rejected by the U.S. Supreme Court, Co-Defendant Frank Layton pleaded guilty and was sentenced for unlawfully transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long without having registered it and without having in his possession a stamp-affixed written order for it, as required by the National Firearms Act.

You may disagree with the U.S. Supreme Court in Heller, or wilfully misrepresent Miller, but nobody cares about your bullshit. You have proven over and over that you are incapable of reading and making sense of a court opinion, or that you simply choose to ignore what they say, and make up your own bullshit and present it as something other than bullshit.

The 2nd Amendment, via the 14th Amendment, provides protection against state infringement of the 2nd Amendment right to keep and bear arms.

What makes you think the federal government is interested in protecting your personal RKBA?

The 2nd Amendment, and the rest of the Constitution, is an act of THE PEOPLE.

It was not ratified by the Federal Government.

What makes you think THE PEOPLE are not interested in protecting the INDIVIDUAL rights of THE PEOPLE?

What makes you think that the great state of California has the slightest interest or intent to protect your individual right to keep and bear arms?

The 2nd Amendment, and the rest of the Constitution, is an act of THE PEOPLE.

Uh-huh. It was. Now the fate of your RKBA is in the hands of five justices on the U.S. Supreme Court.

"What makes you think that the great state of California has the slightest interest or intent to protect your individual right to keep and bear arms?"

That's up to the people of the State of California. My state ptotects my rights.

Do write them a sternly worded letter informing them they do not know what they are talking about.

I should. They're idiots. He never said that.

"The U.S. Supreme Court REVERSED the judgment of the District court, holding that a sawed-off shotgun was not the type of weapon eligible for Second Amendment protection, and reinstated the charges."

Wrong. The U.S. Supreme Court said they didn't know if the weapon was eligible for second amendment protection, reversed the District Court judgement, and remanded the case back to the District Court for clarification.

That some may have showed up empty handed changed nothing.

It demonstrates that muskets were not in common use by civilians, otherwise they would have brought them along.

"There is no modern state militia."

Sure there is. Today, about half the states have a State Defense Force. Keep in mind, a state militia (by definition) is not a standing army. People are brought together when needed. So how can you say there is none?

Were there one, and had they full-auto weapons, such weapons would still be illegal for the UNORGANIZED militia (civilians). Such weapons could only be given to serving members of the ORGANIZED militia, those dressed in war suits, for use on duty only.

Again, in 1790 there was only ONE militia. The weapons possessed by the members of that ONE militia were protected by the second amendment.

they REVERSED the District court and remanded. They did not ask for clarification of jack shit.

Remand -- return a case to a lower court for reconsideration.

The U.S. Supreme Supreme Supreme Court wanted the District Court to reconsider whether the weapon had any usefulness in a militia. The U.S. Supreme Court was not provided with any facts that said it did.

"They REVERSED the judgment of the lower court, and ORDERED the District court to proceed in conformity with the opinion of the U.S. Supreme Court."

Bullshit. You're just making things up. If that were the case, the U.S. Supreme Court would have simply reversed the lower court ruling saying that the weapon didn't qualify for second amendment protection. Period.

They didn't do that because they didn't know that. And they said so.

[misterwhite #260] My state ptotects my rights.

How???

See United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008)

I. Supremacy Clause.

The Constitution of the United States provides in part that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI. This necessarily makes the question presented by defendant's motion one of federal law. If the NFA is otherwise consistent with the U.S. Constitution and is a

3

- - - - - - - - - -

valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary."

The defendants argue that Kansas's adoption of the Second Amendment Protection Act (SAPA), K.S.A. § 50-1204, somehow rendered the National Firearms Act unconstitutional. Dkt. 63 at 6. This court has no authority to construe SAPA or to determine what it means; that is a task reserved to the Kansas courts. But the Constitution could not be clearer on one point: if the National Firearms Act is a valid exercise of Congressional taxing power, and if it does not infringe on rights granted in the U.S. Constitution, then it is the "supreme Law of the Land," regardless of what SAPA says.

[misterwhite #264] Remand -- return a case to a lower court for reconsideration.

Reverse. To reverse a judgment means to overthrow it by contrary decision, make it void, undo or annul it for error.

Remand. To send back. The act of an appellate court when it sends a case back to the trial court and orders the trial court to conduct limited new hearings or an entirely new trial, or to take some further action.

Black's Law Dictionary, 6th Ed.

Reversal. as used in opinions, judgments, and mandates, the setting aside, annulling, vacating, or changing to the contrary the decision of a lower court or other body. [italics added]

Remand. to send back, as for further deliberation; to send back a matter to the tribunal [or body] from which it was appealed or move. When a judgment is reversed, the appellate court usually remands the matter for a new trial to be carried out consistent with the principles announced in its opinion. Often, the court will simply direct that "the matter remanded [to the lower court] for further proceedings not inconsistent with this opinion."

Law Dictionary, 2 Ed., Steven F. Gifis

The U.S. Supreme Court reversed the lower court ruling and eliminated the 2nd Amendment defense accepted by the lower court, reversed its judgment, reinstated the charges, and issued a mandate ordering the lower court to conduct forther proceedings not inconsistent with the Supreme Court opinion. The defendant, having no 2nd Amendment defense, pleaded guilty.

[misterwhite #264] You're just making things up. If that were the case, the U.S. Supreme Court would have simply reversed the lower court ruling saying that the weapon didn't qualify for second amendment protection. Period.

Miller found that there is no 2nd Amendment right to keep and bear weapons not typically possessed by law-abiding citizens for lawful purposes, such as sawed-off shotguns. Short barrel shotgun possession was illegal per the National Firearms Act.

See U.S. v. Fincher, 538 F.3d 368 (2008)

In discussing the limitations the government can place on an individual's right to possess firearms, the Court noted that Miller does not protect "weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Heller, 128 S.Ct. at 2815-16.

"The U.S. Supreme Court REVERSED the judgment of the District court, holding that a sawed-off shotgun was not the type of weapon eligible for Second Amendment protection, and reinstated the charges." [Verbatim quote from Oyez https://www.oyez.org/cases/1900-1940/307us174]

[misterwhite #261] Wrong. The U.S. Supreme Court said they didn't know if the weapon was eligible for second amendment protection, reversed the District Court judgement, and remanded the case back to the District Court for clarification.

- - - - - - - - - -

"There is no modern state militia."

[misterwhite #262] Sure there is. Today, about half the states have a State Defense Force. Keep in mind, a state militia (by definition) is not a standing army. People are brought together when needed. So how can you say there is none?

Running around in the woods, thinking you are Patrick Swayze in Red Dawn, doesn't cut it. I can say it because court opinions say you are full of shit, and people dumb enough to take your arguments to court look like the march of the penguins on their way to prison.

- - - - - - - - - -

Were there one, and had they full-auto weapons, such weapons would still be illegal for the UNORGANIZED militia (civilians). Such weapons could only be given to serving members of the ORGANIZED militia, those dressed in war suits, for use on duty only.

[misterwhite #263] Again, in 1790 there was only ONE militia. The weapons possessed by the members of that ONE militia were protected by the second amendment.

- - - - - - - - - -

MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 1

The Second Amendment protects those weapons possessed by law-abiding citizens for lawful purposes, ONLY. If the weapon is unlawfully possessed, it is not protected by the Second Amendment.

Richard Hamblen reminds me of the sovereign citizens who tell the cop they are not violating the law about needing a license plate while driving, as they are not driving but traveling.

http://volokh.com/2010/02/27/united-states-v-miller/

The comment below, by Richard Hamblen, is in response to the article, "Why United States v. Miller was so badly written," by David Kopel on February 27, 2010, at The Volokh Conspiracy.

About David Kopel

Research Director, Independence Institute. Associate Policy Analyst, Cato Institute. Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law.

Richard A. Hamblen • 8 years ago

I am the petitioner in Hamblen vs. the United States.

US V. Miller does not uphold the NFA. The USSC says it cannot say the Second Amendment protects such a weapon as a short barreled shotgun because there is no evidence in the trial record. The case was remanded for further evidentiary action since the USSC is not an evidentiary body. The surviving defendant, Frank Layton, after seeing the fate of his codefendant Jack Miller, chose not to introduce any evidence such as the purchase of short barreled shotguns by the US Army in the World War to show that such a weapon is part of the ordinary military equipment, but instead pled guilty in exchange for a sentence of probation, a plea he and Miller tried to entered when first indicted. Read the file of all the extant court documents on this case compiled by Patrick Aultice.

Scalia in Heller is reduced to lying about Miller, a lie the Sixth Circuit perpetuates. Scalia cannot even get the facts of the case correct, for it was the government appealing the dismissal of the charges against the pair, not the other way around. Scalia is supposed to be one of the best legal minds in the country. He has battalions of law clerks. Do you honestly think not one of them brought this error to his attention? And if he gets the basic facts wrong, what does this say about his analysis?

Heller is dicta as far as the NFA is concerned. In an exchange with Justice Scalia in the oral arguments, Solicitor General Paul Clement states the following:

"***GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals' opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult -- I don't want to foreclose the possibility of the government, Federal Government making the argument some day -- but I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is. CHIEF JUSTICE ROBERTS: But this law didn't involve a restriction on machine guns.***" [emphasis added]

Chief Justice Roberts cuts him off, because Heller has nothing to do legally with the NFA because the NFA was not under consideration. Scalia's remarks about Miller and the NFA in Heller are the very definition of a gratuitous remark.

The Court is reduced to sustaining the Gun Laws by lying about its own decisions. It is apparent from the oral arguments in McDonald that the Court wants to go nowhere near Miller and my case. We are submitting our second and final petition for writ of certiorari with the USSC at the end of the month. If you have any interest at all in my case and in the protection of your constitutionally recognized RTKBA, please assist me. I can be contacted at rahamblen@gmail.com. My attorney, Jeffrey S. Frensley can be contacted at chipfrensley@yahoo.com. I have posted a good many of the case documents and background information at http://www.esnips.com/web/HamblenvsUnitedStates

Hamblen was convicted and sentenced to 15 months in federal prison. His petition to the Supreme Court for writ of cert was denied. His motion to vacate was denied, see below.

Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison.

https://www.leagle.com/decision/infdco20081208529

HAMBLEN v. UNITED STATES

No. 3:08-1034.

RICHARD HAMBLEN v. UNITED STATES OF AMERICA.

United States District Court, M.D. Tennessee, Nashville Division.

December 8, 2008.

MEMORANDUM

TODD J. CAMPBELL, District Judge.

I. Introduction

Pending before the Court is a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside Or Correct Sentence (Docket No. 1), filed by counsel for the Movant/Petitioner (hereinafter "Petitioner"). The Government has filed Responses to the Motion (Docket No. 3, 7), and the Petitioner has filed a Memorandum In Support Of His Motion (Docket No. 6).

The Court has reviewed the pleadings and briefs filed by both parties, the record of Petitioner's underlying conviction, and the entire record in this case. For the reasons set forth below, the Court concludes that Petitioner's Motion To Vacate is DENIED, and this action is DISMISSED.

II. Procedural and Factual Background

In the underlying criminal case, the Petitioner was charged in an Indictment with possession of certain machine guns, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) (Count One), and with possession of certain machine guns that were not registered, in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871 (Count Two). (Docket No. 1 in Case No. 3:05-00226). The charges were based on Petitioner's possession of nine machine guns and other firearms kept in a safe at the back of his place of business. (Transcript of Trial, Vol. I, at 23-92 (Docket No. 36)).

At the conclusion of a two-day trial, the Defendant was convicted of both Count One and Count Two. (Docket Nos. 17, 18, 23 in Case No. 3:05-00226). At the subsequent sentencing hearing, the Court sentenced the Petitioner to a total term of 15 months of imprisonment. (Docket No. 28 in Case No. 3:05-00226).

The Petitioner appealed his conviction to the Sixth Circuit (Docket No. 39 in Case No. 3:05-00226; United States v. Richard Hamblen, 239 Fed. Appx. 130, 2007 WL 1804393 (6th Cir. June 21, 2007)), and the Sixth Circuit affirmed. Id. The Petitioner then filed a Petition for Writ of Certiorari in the United States Supreme Court, but the Petition was subsequently denied. (Docket Nos. 41, 42 in Case No. 3:05-00226).

III. Analysis

A. The Petitioner's Claims

Petitioner contends that his conviction should be vacated because the statutes under which he was convicted violate the Second Amendment.

B. The Section 2255 Remedy/Evidentiary Hearing Not Required.

Section 2255 provides federal prisoners with a statutory mechanism by which to seek to have their sentence vacated, set aside or corrected.1 The statute does not provide a remedy, however, for every error that may have been made in the proceedings leading to conviction. The statute contemplates constitutional errors, and violations of federal law when the error qualifies as a "fundamental defect which inherently results in a complete miscarriage of justice." Reed v. Faley, 512 U.S. 339, 114 S.Ct. 2291, 2296, 2299-2300, 129 L.Ed.2d 277 (1994); Grant v. United States, 72 F.3d 503, 505-06 (6th Cir. 1996).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that the Court shall consider the "files, records, transcripts, and correspondence relating to the judgment under attack" in ruling on a petition or motion filed under Section 2255. In addition, where the same judge considering the Section 2255 motion also conducted the trial, he may rely on his recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996).

An evidentiary hearing is not required if the record conclusively shows that the Petitioner is not entitled to relief. 28 U.S.C. § 2255; Rule 8 of the Rules Governing Section 2255 Proceedings For The United States District Courts; Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). No hearing is required "if the petitioner's allegations 'cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Id. (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).

In this case, the Petitioner does not seek an evidentiary hearing to introduce new evidence in support of his constitutional claim. (Docket No. 6). The Court agrees that an evidentiary hearing is not warranted in this case.

C. Procedural Default

The Government argues that the Court need not reach the Petitioner's constitutional claim because that claim has been procedurally defaulted. Petitioner defaulted the claim, according to the Government, because his Second Amendment argument to the appeals court focused on his collective rather than individual right to bear arms.

In the trial court, Petitioner's primary, if only, defense rested in his belief that his firearm possession was protected by the Second Amendment. (Docket Nos. 16, 26, 29 and 38). The Court rejected the Petitioner's argument under the then-prevailing view that the Second Amendment guaranteed only a collective right to bear arms, and that collective right required that the Petitioner show his possession had some reasonable relationship to the preservation or efficiency of a well-regulated militia. (Transcript of Trial, Vol. II, at 273-74, 334-35 (Docket No. 37)). The Court also charged the jury to that effect. (Id.)

In considering Petitioner's Second Amendment argument on appeal, the Sixth Circuit reiterated the state of the law at that time that the Second Amendment guarantees a collective rather than an individual right to bear arms, and that under United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 806 (1939), the Petitioner was required to show that his possession of machine guns had some reasonable relationship to the preservation or efficiency of a well-regulated militia. 239 Fed. Appx. at 134-35. Finding that the Petitioner had failed to make that showing, the Sixth Circuit rejected his Second Amendment argument. Id. As noted above, Petitioner then filed a Petition for Writ of Certiorari in the United States Supreme Court, which was denied. (Docket Nos. 41, 42 in Case No. 3:05-00226).

Approximately one year after the Sixth Circuit affirmed Petitioner's conviction, on June 26, 2008, the Supreme Court issued its decision in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), recognizing for the first time an individual right to bear arms guaranteed by the Second Amendment.

Relying primarily on Heller, Petitioner now argues that his conviction and sentence violate his Second Amendment rights.

The Court is persuaded that the Petitioner fairly presented to this Court and the Sixth Circuit on direct appeal the Second Amendment argument he now raises in the pending motion to vacate. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed. 438 (1971)(In the context of a state prisoner habeas case, the Court explains that claims must first be "fairly presented" to state court); United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)(Procedural default rules developed in state habeas corpus cases apply in federal habeas corpus cases). The Petitioner clearly presented to the Sixth Circuit his claim that his conviction violated his Second Amendment rights. Picard, 404 U.S. at 277 (A mere variation in legal theory does not automatically indicate that the defendant has failed to fairly present a claim). See also Dye v. Hofbauer, 546 U.S. 1, 126 S.Ct. 5, 163 L.Ed.2d 1 (2005). Accordingly, the Court concludes that the Petitioner has not defaulted the claim by failing to raise it on direct appeal.

D. Second Amendment

In raising the Second Amendment claim here, Petitioner primarily relies on District of Columbia v. Heller. In Heller, the Court held that the District of Columbia's prohibition on the possession of handguns in one's home violates the Second Amendment. 128 S.Ct. at 2814-18. In reaching its decision, the Court held that the Second Amendment confers an individual right to keep and bear arms. Id.

At the same time it recognized a Second Amendment right for an individual to bear arms, the Heller Court limited the scope of that right within the context of its own opinion:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

* * *

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller [United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939)] said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'

Heller, 128 S.Ct. at 2816-17 (footnote and citations omitted).

Thus, the Heller Court made clear that the Second Amendment right it recognized did not include possession of weapons by certain categories of individuals, or possession of weapons in certain places, or possession of certain types of weapons. The Court specifically discussed the types of weapons that were not protected by the Second Amendment in distinguishing the Miller case:

Read in isolation, Miller's phrase 'part of ordinary military equipment' could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. . . . We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. . . .

128 S.Ct. at 2815-16.

The conclusion that the Heller Court did not extend Second Amendment protection to machine guns, in particular, is supported by the lower federal courts that have addressed the issue. In United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008), the Eighth Circuit held that the defendant's possession of a machine gun was not protected by the Second Amendment under Heller: "Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use."

In United States v. Gilbert, 286 Fed. Appx. 383, 2008 WL 2740453 (9th Cir. July 15, 2008), the Ninth Circuit approved a jury instruction that an individual does not have a Second Amendment right to possess a machine gun or a short-barreled rifle. The court explained that under Heller, "individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did . . ." 286 Fed. Appx. at 386.2

The Petitioner argues that the limitations placed on the Second Amendment right to bear arms by the majority opinion in Heller can not square with the Court's earlier decision in Miller. Whatever merit there is to that argument, however, this Court is bound by the Heller opinion as written.

IV. Conclusion

For the reasons set forth herein, the Court concludes that Petitioner is not entitled to relief under 28 U.S.C. § 2255. Therefore, the Petitioner's Motion Under § 2255 is denied, and this action is dismissed.

Should the Petitioner give timely notice of an appeal from this Memorandum and Order, such notice shall be treated as an application for a certificate of appealability, 28 U.S.C. 2253(c). The Court concludes that Petitioner has made a substantial showing of the denial of a constitutional right as to his Second Amendment claim, and reasonable jurists could find the Court's assessment of the constitutional claim debatable. See, e.g., Castro v. United States, 310 F.3d 900 (6th Cir. 2002). Accordingly, the Court will issue a certificate of appealability on Petitioner's Second Amendment claim.

It is so ORDERED.

FootNotes

1. 28 U.S.C. § 2255 states, in part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

2. The defendants in Fincher and Gilbert, like the Petitioner here, were charged with possession of machine guns in violation of 18 U.S.C. §§ 922(o) and 924(a)(2), and possession of unregistered firearms in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. See 538 F.3d at 870; 286 Fed. Appx. at 385.