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U.S. Constitution Title: Here’s How The Supreme Court Already Repealed The Second Amendment The Supreme Court effectively repealed the Second Amendment in District of Columbia v. Heller by restricting the amendment to common arms.In March, retired Supreme Court justice John Paul Stevens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 The Second Amendment was repealed, in effect, by Heller’s majority opinion.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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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.
#171. To: nolu chan (#169) I figured if you could leave out the first part of the second amendment, I could leave out the second. My point was, the first part was placed there for a reason. If the second amendment was meant to protect the RKBA of all citizens (as you claim) there would have been no reason whatsoever to include the first part. No other amendments contain an explanation. So it was placed there for a reason.
#172. To: misterwhite, goldilucky (#159)
Here's an uncomfortable fact for you. In 1788, "the people" were the rich, white guys who had something to lose. No one else -- not women, not children, not slaves, not non-citizens ... no one. "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.
#173. To: misterwhite (#171) My point was, the first part was placed there for a reason. If the second amendment was meant to protect the RKBA of all citizens (as you claim) there would have been no reason whatsoever to include the first part. It is noted that you disagree with the majority opinion of the U.S. Supreme Court. You should write them a sternly worded letter.
#174. To: nolu chan (#172) "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?
#175. To: nolu chan (#173) 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.
#176. To: misterwhite (#174)
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. - - - - -
WAR DEPARTMENT, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
As you proved with your court case. Women citizens and children citizens and non-land- owning citizens (in some states) could not vote. 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. 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. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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.
#177. To: misterwhite (#175)
As I disagree with the majority opinion of the U.S. Supreme Court on Roe v Wade, ... [et al.] 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.
#178. To: nolu chan (#177) 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.
#179. To: nolu chan (#176) 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.
#180. To: misterwhite (#178) 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] 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.
#181. To: misterwhite (#179)
half the able-bodied men in the state of Wisconsin in 1862 were foreigners, [had not been naturalized, and yet they enjoyed the right to vote under the state constitution. At that time, there was no federal requirement that one needed to be a citizen to vote in elections for federal office.] 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. 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.
#182. To: nolu chan (#181) 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."
#183. To: nolu chan (#181) 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.
#184. To: nolu chan (#181) (Edited) 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.
#185. To: nolu chan (#181) 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".
#186. To: misterwhite (#182)
Half the able bodied men were aliens who had the right to vote. 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.
#187. To: misterwhite (#183) Voting rights did not have shit to do with defining who were the people. 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.
#188. To: misterwhite (#184)
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. 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.
#189. To: misterwhite (#185)
The people were the men and women who were citizens. 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):
#190. To: nolu chan (#186) 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.
#191. To: nolu chan (#187) 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.
#192. To: misterwhite (#190)
The fact that they intended to become citizens acts as proof that they were aliens and not citizens. 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. 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. 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."
#193. To: nolu chan (#192) Cite an example of an alien, or anyone, who intends to become a citizen, who is thereby magically transformed into a citizen without going through the naturalization process. 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.
#194. To: nolu chan (#188) The members of the militia enjoyed an individual right to keep and bear arms, and the militia did not have a right to exist, and was disbanded. 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.
#195. To: nolu chan (#188) And the individual right to keep and bear arms, protected by the Second Amendment, does not expire at age 45, a fact you seem utterly incapable of confronting. The second amendment protect the arms of militia members, no matter their age.
#196. To: misterwhite (#190)
ONE state made ONE exception that allowed male non-citizens to vote PROVIDED THAT they were on a path to citizenship. 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):
#197. To: misterwhite (#193)
I'm not claiming that. I'm saying that one state made an exception to allow a certain group of non-citizens to vote. 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.
#198. To: misterwhite (#194)
The members of the militia enjoyed an individual right to keep and bear arms, and the militia did not have a right to exist, and was disbanded. 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. 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.
#199. To: misterwhite (#195)
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):
#200. To: nolu chan (#196) The New Jersey constitution of 1776, as amended September 20, 1777, allowed "all inhabitants of this State, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote...." "... 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).
#201. To: nolu chan (#198) Americans have the right to keep and bear arms before, during, and after any connection to any militia. They do not obtain the right by belonging to a militia, and they do not lose it by leaving a militia. We're not discussing the right. We're discussing the protection of that right.
#202. To: nolu chan (#199) Whether the individual is, or is not, a member of a militia is irrelevant to the individual's right to keep and bear arms. 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 ...
#203. To: nolu chan (#199) "the people" … refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” 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.
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