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U.S. Constitution Title: Here’s How The Supreme Court Already Repealed The Second Amendment The Supreme Court effectively repealed the Second Amendment in District of Columbia v. Heller by restricting the amendment to common arms.In March, retired Supreme Court justice John Paul Stevens called for repealing the Second Amendment, implicitly admitting that it does what, in his dissent in District of Columbia v. Heller (2008), he pretended it does not: prohibit laws infringing the right to keep and bear arms. Why Stevens called for repeal and dissented in Heller is a mystery, however. The Second Amendment was repealed, in effect, by Heller’s majority opinion. The opinion went beyond questions raised in the case and laid out a rationale by which Congress, states, and courts could ban the private possession of many offensive and defensive arms today and all such arms of the future. Heller asked the court to decide whether Washington DC’s bans on handguns, having a loaded firearm at home, and carrying a firearm at home without a permit violated the Second Amendment. Although on imperfect grounds, the court correctly ruled that the first two bans were unconstitutional. It also said if DC required a permit to carry a gun at home, it had to issue permits to qualified applicants. But, the court added, “[w]e may as well consider at this point . . . what types of weapons [the Court’s decision in U.S. v. Miller (1939)] permits.” The Court Turned Stare Decisis On Its HeadMiller asked whether the National Firearms Act of 1934 violated the Second Amendment by requiring that a short-barreled shotgun be registered with the federal government. Oddly, before the court heard the case, one defendant died and the other disappeared, so their lawyer didn’t go to Washington to present evidence on their behalf. The court thus concluded, “[i]n the absence of any evidence tending to show that possession and use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense” (emphasis added). For the right to “ordinary military equipment” and other arms that “could contribute to the common defense,” the court cited the decision of the Tennessee Supreme Court in Aymette v. State (1840), that “the arms, the right to keep which is secured [by Tennessee’s constitution] are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.” Heller said, “We think that Miller’s ‘ordinary military equipment’ language must be read in tandem with what comes after: ‘[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’” However, that mischaracterizes Miller. The arms to which Miller said people have the right are those that have a “relationship to a well regulated militia.” “Ordinary military equipment” is the first example of arms the court said have that relationship, and “what comes after” is a second example: other arms that “could contribute to the common defense.” It was three paragraphs later that the court stated the obvious: people commonly possessed “common” arms. Moreover, Heller didn’t read Miller “in tandem.” It gave weight only to Miller’s comment about “common” arms, while rejecting Miller’s and Aymette’s endorsement of the right to arms relating to militia purposes, “ordinary military equipment,” and other arms that “could contribute to the common defense.” Why ‘Common’ Can’t Be the Standard for Owning ArmsHeller’s mischaracterization of Miller is the first reason why “common” cannot be the standard for arms to which people have the right. “Common” is also vulnerable to deliberate misinterpretation. For example, while the percentage of gun owners who own an AR-15 is about the same as the percentage of drivers who own a Mercedes, judges who oppose the right to arms would likely rule that only Mercedeses are “common.” A second reason “common” cannot be the standard was noted by Justice Stephen Breyer in his dissent in Heller. He explained, “[T]he majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.” Breyer had in mind the majority’s argument that fully automatic rifles, common in the military, could be banned because they aren’t common among private individuals. The circularity is that they aren’t common among private individuals because they have been prohibitively taxed since 1934, banned in about half the states for almost as long, prohibited from importation since 1968, and banned from domestic manufacture since 1986. A third reason is that the U.S. Framers didn’t limit the right to “common” arms. For example, cannons, though not as common as handheld arms, weren’t excluded from the Second Amendment. In protecting the right to arms for defense against tyranny, the Framers intended for the people to win. Several quotations from them illustrate the point. James Madison: “Let a regular army . . . be at the devotion of the federal government. . . . [T]he State governments, with the people on their side, would be able to repel the danger.” Alexander Hamilton: “[The] army cannot be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.” Richard Henry Lee: “To preserve liberty it is essential that the whole body of people always possess arms.” Tench Coxe: “As the military . . . might pervert their power to the injury of their fellow citizens, the people are confirmed by the [Second Amendment] in their right to keep and bear their private arms.” Noah Webster: “[T]he whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.” You Can’t Protect Freedom With a SlingshotA fourth, and the most important, reason was pointed out, but rejected by Heller’s majority opinion, written by the late Justice Antonin Scalia, an originalist from whom we might have expected faithfulness to the Framers’ intent. Referring to fully-automatic rifles, Scalia wrote:
Although some laud Heller for recognizing an individual right to some arms, its false standard allows Congress and the states to ban arms they and the courts claim are not “common” or that are useful “in military service.” As Breyer put it, “On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the authority to do so.” Breyer was mocking his colleagues, but “tomorrow” is important because firearms are near the end of their 500-year era of usefulness for the military purpose the Framers intended. Notwithstanding gun-control supporters’ complaints about the supposed new-fangledness of this or that firearm or firearm accessory, firearms are glorified slingshots. Three thousand years ago, David slew Goliath with a rock ballistically comparable to a .45 caliber pistol bullet. Gunpowder propels a bullet more predictably than a whirling leather thong, but bullets, like rocks, are inert projectiles. Sometime this century, the government will be equipped with offensive and defensive handheld arms and even more futuristic arms that will render firearms as obsolete for defense against tyranny as bows and arrows are today. While our troops should be equipped with the best equipment possible when fighting America’s enemies, it requires little imagination to envision how extraordinary technologies, such as those developed by the Pentagon’s Defense Advanced Research Projects Agency, could be misused against the American people. Of course, regardless of Heller and whether the Second Amendment is repealed, Americans have the right to keep and bear arms, including for defense against tyranny. As a wiser Supreme Court recognized in U.S. v. Cruikshank (1876), the right, which existed before the Constitution, is “not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” But rights are a concept. Laws that are enforced have tangible effect. In early April, U.S. District Court judge William Young ruled that Heller’s endorsement of restrictions on fully automatic firearms permits Massachusetts to ban semi-automatic firearms and ammunition magazines that many firearms use. Other courts have upheld similar bans. If Americans allow their rights to be choked in this manner, they could find themselves no longer in control of government, but rather at its mercy. Mark Overstreet is a firearm instructor and author in central Texas. He retired in 2016 as the senior research coordinator of the National Rifle Association’s Institute for Legislative Action, after 25 years with the organization. His views do not necessarily reflect those of the NRA.
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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.
#131. To: misterwhite (#129)
Quilici v. Morton Grove [1982] 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.
#132. To: misterwhite (#128)
Second request. If you're right, then what protects state militias and/or the National Guard from federal infringement? What's to prevent the Federal government from disbanding the National Guard and organizing a standing Federal military? A second response. The 2nd Amendment protects the individual right to keep and bear arms. It has been incorporated into the 14th Amendment and applies to all the states. The First Request and Response is repeated below at the end of this post. The actual dingbat request was,
[nolu chan #97] "Where did you find the constitutional right of a State to form and maintain a militia?" 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 https://www.scribd.com/document/380029027/32-Stat-775-1903-the-Dick-Act-The-Militia-Act-of-1903
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[nolu chan #97] "Where did you find the constitutional right of a State to form and maintain a militia?" The nonsense at your #104 was answered at my #111.
You're blowing it out of your ass.
#133. To: nolu chan (#130) It enjoys the same precedent setting authority other SCOTUS precedents. If it enjoys the precedent setting authority of Cruikshank, Presser, or Heller, that ain't sayin' much, is it?
#134. To: nolu chan (#130) Your version of the law is flexible to the extent that only the precedents you do not like can be overturned or reversed. No. Only the "precedents" that are based on made up bullshit having nothing to do with the clear wording of the U.S. Constitution.
#135. To: nolu chan (#131) When a subsequent holding overrules the holding of a prior holding, the old precedent is dead, and the new precedent is the law of the land. Not much of a precedent or a holding, is it, when it can be overturned by a court that just makes shit up.
#136. To: misterwhite (#134) No. Only the "precedents" that are based on made up bullshit having nothing to do with the clear wording of the U.S. Constitution. 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.
#137. To: nolu chan (#132) The 2nd Amendment protects the individual right to keep and bear arms. Wrong. According to the Heller court, it protects the right of an individual to keep a handgun in the home for self-defense. That's all they ruled on. "You hilariously asserted that 2nd Amendment forbids Federal infringement on something or other in the common law regarding posse comitatus comitatus." You asked if there was some constitutional right to form a militia. I replied that the right to form a militia, posse comitatus, pre-dated the U.S. Constitution. The second amendment protects, not grants, that right. You cite all the legalese for forming a militia. Fine. But, third request, where's the legalese that says the federal government cannot disband the state militias entirely and switch to a standing federal military? Only the second amendment amigo.
#138. To: nolu chan (#132) The Second Amendment says The Federal Government shall not infringe a RIGHT OF THE PEOPLE. Did they give a reason? I mean, they didn't need to give a reason. But wait. Yes they did. It's written there in the same amendment. They said that a well regulated Militia was necessary to the security of a free State. Couldn't be any clearer. But the Heller court, defying the precedent of Cruikshank, Presser AND Miller, totally ignored the Militia part and decided for the very first time in 200+ years that the second amendment really protected an individual right to keep a handgun in the home for self-defense. Only the Heller court was smart enough to see that.
#139. To: misterwhite (#138) The constitution does protect the individual right to bear arms. "the right of the people... The people are the militia. You don't understand original intent or you are lying.
#140. To: A K A Stone (#139) "the right of the people... The people are the militia." Note the wording. Words mean things. It doesn't say "the right of all citizens" or "the right of persons" or "the right of individuals", or "the right of residents" or anything else. The second amendment refers to the right of "the people" just as Article I, Section 2 refers to "... Members chosen every second Year by the People of the several States ..." Could every person vote in 1789? Every citizen? Non-land owners? No. "The people" were the citizens with full rights. Only THEY voted. Only THEY were members of a Militia. Only THEIR right to keep and bear arms as part of a Militia were protected by the second amendment. For everyone else, their RKBA was protected by their state constitution.
#141. To: misterwhite (#140) It is an individual right. That I have a right to defend by shooting you in the head if you try to take it away. Comprende?
#142. To: A K A Stone (#141) It is an individual right. I agree. I don't agree that the second amendment protects that individual right for the common citizen. That is not to say that you don't have that right. You do. Just that state constitutions, not the second amendment, protect that right.
#143. To: misterwhite (#133) If it enjoys the precedent setting authority of Cruikshank, Presser, or Heller, that ain't sayin' much, is it? Every SCOTUS precedent is the law of the land until overturned or reversed. You may not think that's saying much, but abortion still cannot be lawfully prohibited by any state, and the RKBA is an individual right that cannot lawfully be infringed by any state.
#144. To: misterwhite (#134) Your version of the law is flexible to the extent that only the precedents you do not like can be overturned or reversed. 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.
#145. To: misterwhite (#135)
When a subsequent holding overrules the holding of a prior holding, the old precedent is dead, and the new precedent is the law of the land. 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.
#146. To: misterwhite (#137)
The 2nd Amendment protects the individual right to keep and bear arms. Heller, 554 U.S. 570:
Held: Heller, 554 U.S. 571:
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i. e., those in common use for lawful purposes. Pp. 619–626. Heller, 554 U.S. 622, concerning Miller:
This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Heller, 554 U.S. 627-28:
It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. - - - - - - - - - - - - - - - - - - - -
I replied that the right to form a militia, posse comitatus, pre-dated the U.S. Constitution. The second amendment protects, not grants, that right. Citing the non-existent, imaginary national common law of the United States? https://en.wikipedia.org/wiki/Posse_comitatus
Posse comitatus is the common-law or statute law authority of a county sheriff, or other law officer, to conscript any able-bodied man to assist him in keeping the peace or to pursue and arrest a felon, similar to the concept of the "hue and cry." Originally found in English common law, it is generally obsolete; however, it survives in the United States, where it is the law enforcement equivalent of summoning the militia for military purposes. Posse Comitatus DOES NOT grant a right to form a militia. Posse Comitatus PROHIBITS the use of the military for law enforcement purposes. Posse Comitatus is not a matter of some imaginary non-existent national common law of the United States. Federally, it is subject to Federal statute law which prohibits using the military for law enforcement purposes. https://law.justia.com/codes/us/2016/title-18/part-i/chapter-67/sec.-1385/
2016 US Code 20 Stat. 152 (1878)
Army as Posse Comitatus - - - - - - - - - -
You cite all the legalese for forming a militia. Fine. But, third request, where's the legalese that says the federal government cannot disband the state militias entirely and switch to a standing federal military? 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... Heller, 554 U.S. 570, 595-97 (2008)
2. Prefatory Clause.
#147. To: misterwhite (#138)
The Second Amendment says The Federal Government shall not infringe a RIGHT OF THE PEOPLE. 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. 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. 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. 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.
#148. To: nolu chan (#143) and the RKBA is an individual right that cannot lawfully be infringed by any state. But that right will be defined by the U.S. Supreme Court for everyone in every state. That what you want? How about when the U.S. Supreme Court rules that citizens may own AR-15's, but because they're so lethal they must be kept at a shooting club or state armory?
#149. To: nolu chan (#145) Much of the country disagrees with Roe v. Wade, Meaning what? If the majority of the country disagreed with Roe v Wade would the U.S. Supreme Court reverse it's decision? Suddenly discover there is no "right to privacy" in the U.S. Constitution? Is that what the U.S. Supreme Court is supposed to do -- wet their finger and stick it in the air to see which way the wind is blowing? Or are they to simply give you a call and ask how they should rule on a case?
#150. To: nolu chan (#147) Posse Comitatus DOES NOT grant a right to form a militia. Uh-huh. It only allows for the formation of armed private citizens to execute the laws of the Union, suppress insurrection and repel invasion. Hey, wait. That's what a militia does.
#151. To: nolu chan (#146) Once again, you've told me how these units were formed. Fourth request, what prevents the federal government from disbanding ALL state guard units and going with a federal standing military?
After the ruling in Heller, the answer is NOTHING.
#152. To: nolu chan (#147) (Edited) "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." 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.
#153. To: nolu chan (#147) The issue of whether the 2nd Amendment applied to the states was not at issue in Heller. That came in McDonald. So what? The two cases are tied together for purposes of discussion.
#154. To: nolu chan (#147) The 2nd Amendment says "the right of the people, to keep and bear arms, shall not be infringed." No. It says "A well regulated Militia is necessary to the security of a free State".
#155. To: nolu chan (#147) You keep referring to the Heller case as if it was the only case ever brought before the Supreme Court of the U.S. I suggest you get a hold of a reader entitled, That Every Man Be Armed written by this guy stephenhalbrook.com/everyman.html In it, he delves into the sole purpose of it being a necessity for every citizen, whether regulated or not, to keep and bear arms, whether they be long or short-barreled, for the purpose of protecting themselves from enemy invasions and rogue governments.
#156. To: goldilucky (#155) "he delves into the sole purpose of it being a necessity for every citizen, whether regulated or not, to keep and bear arms, whether they be long or short-barreled, for the purpose of protecting themselves from enemy invasions and rogue governments." I agree with that. I'm sure most do. I believe it is every citizen's right and duty to keep and bear arms. But what makes you think the second amendment protects that right? That's what the debate is all about.
#157. To: goldilucky, Y'ALL, misterwrong (#155) You (nolu) keep referring to the Heller case as if it was the only case ever brought before the Supreme Court of the U.S. I suggest you get a hold of a reader entitled, That Every Man Be Armed written by this guy stephenhalbrook.com/everyman.html ---- 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.
#158. To: misterwhite (#156) (Edited) There is no debate about the rights of the people of the United States of America.
The only question that is really at issue is who are the people that this right protects. The original framers of our Constitution made that clear who those people they were referring to (the general john q. public}. They did not trust a federalized army after what they endured in fighting the British Redcoats that burned down our White House.
#159. To: goldilucky (#158) (Edited) The original framers of our Constitution made that clear who those people they were referring to (the general john q public.}. Article 1, Section 2, Clause 1 of the United States Constitution reads: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." When this was ratified in 1788, who were "the people" referenced in the above? Everyone? Every citizen? Women? Children? Non-land owners? Slaves? Illegals? Visitors? You say "the general john q public" so I assume you mean everyone walking around. All of them were "the people" and could vote in 1788? Here's an uncomfortable fact for you. In 1788, "the people" were the rich, white guys who had something to lose. No one else -- not women, not children, not slaves, not non-citizens ... no one. In 1788, only "the people" had full rights as citizens. Their right to vote, run for office, own land, and keep and bear arms as part of a militia were protected. Their right to peaceably assemble, petition the government, and be secure against unreasonable searches were protected. No one else. Granted, over the years that's changed. But in 1788, that's who "the people" were. The U.S. Constitution needs to be interpreted with that in mind.
#160. To: misterwhite (#159) (Edited) You say "the general john q public" so I assume you mean everyone walking around. All of them were "the people" and could vote in 1788? 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.
#161. To: goldilucky (#160) Back then, it was only white people who could vote, own land, and even firearms. So, back then, the second amendment only protected the RKBA for white people who could vote and own land? Is it merely a coincidence that those are the same people who constituted a Militia and their arms were protected from federal infringement because of that?
#162. To: misterwhite (#161) (Edited) The Second Amendment was written to apply to all free men. However, here is some interesting info to read up on why there is so much mixed controversy on this very issue. https://newrepublic.com/article/146190/brutal-origins-gun-rights
Those (such as Roosevelt) who constituted the federalized militia and the enforcement of slaves into joining for purpose to be free turned this into a constitutional mess. What changed Teddy Roosevelt's infringement of the black slaves from being free people was the enactment of the first civil rights act of 1866 which is today referred to as The Civil Rights Act of 1866. More here on this https://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866
#163. To: misterwhite (#148)
But that right will be defined by the U.S. Supreme Court for everyone in every state. That what you want? 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.
#164. To: misterwhite (#149)
Much of the country disagrees with Roe v. Wade, 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.
#165. To: misterwhite (#150) Posse Comitatus DOES NOT grant a right to form a militia.Uh-huh. It only allows for the formation of armed private citizens to execute the laws of the Union, suppress insurrection and repel invasion. 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. 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 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
#166. To: misterwhite (#151)
Fourth request, what prevents the federal government from disbanding ALL state guard units and going with a federal standing military? 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.
#167. To: misterwhite (#152)
"We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." 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.
#168. To: misterwhite (#153)
The issue of whether the 2nd Amendment applied to the states was not at issue in Heller. [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. 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.
#169. To: misterwhite (#154) The 2nd Amendment says "the right of the people, to keep and bear arms, shall not be infringed." 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.
#170. To: goldilucky (#155)
You keep referring to the Heller case as if it was the only case ever brought before the Supreme Court of the U.S. I suggest you get a hold of a reader entitled, That Every Man Be Armed written by this guy stephenhalbrook.com/everyman.html In it, he delves into the sole purpose of it being a necessity for every citizen, whether regulated or not, to keep and bear arms, whether they be long or short-barreled, for the purpose of protecting themselves from enemy invasions and rogue governments. 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. 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.
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