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U.S. Constitution Title: Here’s How The Supreme Court Already Repealed The Second Amendment The Supreme Court effectively repealed the Second Amendment in District of Columbia v. Heller by restricting the amendment to common arms.In March, retired Supreme Court justice John Paul Stevens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 The Second Amendment was repealed, in effect, by Heller’s majority opinion.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.
Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 341. https://supreme.justia.com/cases/federal/us/554/570/opinion.html http://www.supremecourt.gov/opinions/boundvolumes/554bv.pdf District of Columbia v Heller, 554 US 570 (2008) From Heller at 581:
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar). Heller at 582:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. Heller at 584:
At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. Heller at 620:
We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ” Heller at 624-25:
“In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra. Heller at 626:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Heller at 627-28:
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. Black's Law Dictionary, 6 Ed.
Arms. Anything that a man wears for his defense, or takes in his hands as a weapon. The "right to keep and bear arms" existed in the colonies, was brought forth into the states before the union, and was protected by the 2nd Amendment. The right which existed in the colonies came from the English common law. The Framers saw no need to explain to themselves what that right to keep and bear arms was. http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp Blackstone's Commentaries on the Laws of England Book the First - Chapter the First: Of the Absolute Rights of Individuals
5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. Heller at 593-95:
By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. Heller at 626-28:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
#2. To: nolu chan (#1) (Edited) "... by restricting the amendment to common arms." They had to ... if they were going to rule that the second amendment protected an individual right. You can't have ordinary citizens with tanks, SAMs, flame throwers and machine guns. As I said at the time, this is what happens when trying to fit a square peg into a round hole. You destroy the square peg. The second amendment doesn't protect arms for ordinary citizens. It protects state militias and the arms of state militia members from federal infringement. What are those arms? They are the arms selected by the state militia as necessary for the protection of the state. Round peg. Round hole. So what protects the individual right to keep and bear arms? State constitutions.
#4. To: misterwhite, nolu chan (#2) You can't have ordinary citizens with tanks, SAMs, flame throwers and machine guns. Yes, you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns. Title 10 Section 311 Part (b) 2 says this quite clearly
http://uscode.house.gov/view.xht...ort&fq=true&num=5&hl=true People out there have this strong hatred for the Second Amendment, and to deliberately dismantle the meaning of "militia" and who they are comprised of, for the sole purpose of depriving the ordinary citizen that lawful Right which has long been recognized in our law books as a personal right. The statute I pointed out is recognized as part of the positive law already in our United States Codes in the Table of Contents as the original positive law. State Constitutions must be concomitant with the original federal constitution, chiefly the Bill of Rights. The purpose of invoking boiler plate case law in this matter is to confuse the issue thus clouding what the reasonable intent of the Second Amendment was intended to be for. The statute I referenced (Title 10 USC. Sec 311 (b) (2) makes it quite clear who the militia are. Unlike the professional standing army, the Class (b) (2) militia is comprised of those like you and me. The professional standing army is controlled by the federal government which includes your State Governors who use their own armies to be deployed when necessary to establish the peace. Contrary to this, We as the general member of the public, represent that second class of being the unprofessional army in that the purpose of having those cannons, tanks, SAMs, and flamethrowers, is to maintain these tools in a safe manner and teach our children about them. Our militia serves for the purpose of protecting not our homeland and overseas but to protect our home and personal property from professional standing armies being used by rogue governments who desire to override our rights as a free people.
#23. To: goldilucky (#4) Yes, you can have ordinary citizens with tanks, SAMs, flame throwers and machine guns. Title 10 Section 311 Part (b) 2 says this quite clearly Title 10 Section 311 Part(b)2 refers to the "unorganized militia" of a state. Currently, 21 States have State Defense Forces (also called State Military, State Guards, or State Military Reserves), authorized by state and federal law and under the command of the governor of each state. State Defense Forces are distinct from their state's National Guard in that they cannot become federal entities. I am not aware that any State Defense Force allows their personnel to own SAMs, machine guns, or flamethrowers.
#30. To: misterwhite, goldilucky (#23) I am not aware that any State Defense Force allows their personnel to own SAMs, machine guns, or flamethrowers. I am unaware of any military base that allows active duty military living on base to have their own private SAMs, machine guns, or flamethrowers. Except for authorized persons with authorized weapons, on base personnel are not authorized to be armed, concealed carry or otherwise. One cannot transport their private gun onto a base in their vehicle either.
#32. To: nolu chan (#30) I believe he's thinking private paramilitary groups like the Michigan Militia (Wolverines) qualify as the "unorganized militia" and are protected by the second amendment.
#39. To: misterwhite (#32) I believe he's thinking private paramilitary groups like the Michigan Militia (Wolverines) qualify as the "unorganized militia" and are protected by the second amendment. The 2nd Amendment protects the RKBA of individuals and is not restricted to militia or any other group. Individuals in the Wolverines are protected by the 2nd Amendment. However, the RKBA has never protected some imaginary right to bear RPGs, SAMs, machine guns, or flamethrowers. That was not the right enjoyed under English common law by the colonists, and is not the right they brought forward with them into the United States.
#41. To: nolu chan (#39) "The 2nd Amendment protects the RKBA of individuals and is not restricted to militia or any other group." That's how the Heller court ruled, yes. They were wrong, but that's their ruling. "However, the RKBA has never protected some imaginary right to bear RPGs, SAMs, machine guns, or flamethrowers." Not even for the well-regulated and organized State militias? I seem to recall that Article 1, Section 8, Clause 16 calls for "organizing, arming, and disciplining the Militia." We're going to have a dificult time protecting ourselves from an out-of-control Federal government with just the handguns protected by Heller.
#45. To: misterwhite (#41)
That's how the Heller court ruled, yes. They were wrong, but that's their ruling. The Supreme court determines the law. You are entitled to your opinion, but that does not change the law. Individuals in and out of the militia have the rights to keep and bear arms brought forward by the colonists into America, and the right is protected by the 2nd Amendment. The ancient right came from English common law and predates the Constitution.
Not even for the well-regulated and organized State militias? I seem to recall that Article 1, Section 8, Clause 16 calls for "organizing, arming, and disciplining the Militia." What arms meant in 1792 is amply described below. It does not expand to any weapon imaginable. The right was not defined in the Constitution because it was well-defined in English common law. The Militia Act of May 8, 1792 (repealed and replaced 1795).
SECOND CONGRESS. Sess. I. Ch. 33. 1792.
#51. To: nolu chan (#45) That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock Do you know why they had to get a musket? Because they didn't have one. They had rifles for hunting because smoothbore muskets were not accurate. Now, muskets were fine for volley fire used by the militia, they were cheap, and they were fast reloading. But above the fireplace in the home, proudly displayed, was an expensive rifle. So what is it? Does the second amendment protect arms in common use at the time (rifles) or does it protect the arms used by the militia (muskets)?
#54. To: misterwhite (#51) So what is it? Does the second amendment protect arms in common use at the time (rifles) or does it protect the arms used by the militia (muskets)? The 2nd Amdt protects the ancient right to keep and bear arms. It does not protect and alleged right to keep Surface to Air Missiles (SAMs). It protects the right to keep and bear arms which are lawful to possess.
#62. To: nolu chan (#54) The 2nd Amdt protects the ancient right to keep and bear arms ... ... for Militia members only. Which it why it mentions a Militia. Prior to the ratification of the Bill of Rights, at least 4 of the 13 states had state constitutions which protected the individual right of their citizens to keep and bear arms. But their "second amendment" language used the phrase, "... the right of the citizens to bear arms in defence of themselves and the State ..." "Citizens", not "the people". In defense of themselves. Your individual right to keep and bear arms is, and has always been, protected by your state constitution. Which is why gun laws vary from state to state.
#64. To: misterwhite (#62) The 2nd Amdt protects the ancient right to keep and bear arms ... Hosreshit repeated is still horseshit. District of Columbia v. Heller, S. Ct. 26 June 2008, Syllabus:
Held: - - - - - - - - - - District of Columbia v Heller, S. Ct. (2008) From Heller at 581:
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar). Heller at 582:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. Heller at 584:
At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. Heller at 620:
We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ” Heller at 624-25:
“In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra. Heller at 626:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Heller at 627-28:
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. Black's Law Dictionary, 6 Ed.
Arms. Anything that a man wears for his defense, or takes in his hands as a weapon. The "right to keep and bear arms" existed in the colonies, was brought forth into the states before the union, and was protected by the 2nd Amendment. The right which existed in the colonies came from the English common law. The Framers saw no need to explain to themselves what that right to keep and bear arms was. Heller at 593-95:
By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. Heller at 626-28:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp Blackstone's Commentaries on the Laws of England Book the First - Chapter the First: Of the Absolute Rights of Individuals
5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
#65. To: nolu chan (#64) Don't bother citing Heller. I told you the court got it wrong. And for future reference, don't cite Roe v Wade, Kelo, or Obamacare (the penalty is a tax). They got it wrong there, too.
#68. To: misterwhite (#65)
[misterwhite #65] Don't bother citing Heller. I told you the court got it wrong. You got it wrong and Heller (and McDonald) are current Supreme Court precedent. By contrast you want to keeep digging up the corpses of Cruickshank, Presser and Miller, three very old cases that you happen to like. I will continue to cite and quote current Supreme Court precedent and you are welcome to dig up the corpses of 19th century post civil war cases and drag them before the forum.
[misterwhite #66] I never said they didn't have the right. They do. Just that the second amendment doesn't protect it. The 2nd Amendment does protect the individual right to keep and bear arms, as explicitly expressed and held by current Supreme Court precedent.
[misterwhite #67] Yeah. In common use by the militia. According to Miller: There ya go, digging up that corpse again. This claptrap was crushed in Heller. District of Columbia v Heller, 554 US 570 (2008) [595]
2. Prefatory Clause. - - - - - - - - - - [596]
Petitioners take a seemingly narrower view of the militia, stating that "[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, § 8, cls. 15-16)." Brief for Petitioners 12. Although we agree with petitioners' interpretive assumption that "militia" means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create ("to raise . . . Armies"; "to provide . . . a Navy," Art. I, § 8, cls. 12-13), the militia is assumed by Article I already to be in existence. Congress is given the power to "provide for calling forth the Militia," § 8, cl. 15; and the power not to create, but to "organiz[e]" it—and not to organize "a" militia, which is what one would expect if the militia were to be a federal creation, but to organize "the" militia, connoting a body already in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first Militia Act, which specified that "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia." Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them. - - - - - - - - - - [598]
3. Relationship Between Prefatory Clause and Operative Clause. - - - - - - - - - - [599]
It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. JUSTICE BREYER's assertion that individual self-defense is merely a "subsidiary interest" of the right to keep and bear arms, see post, at 714 (dissenting opinion), is profoundly mistaken. He bases that assertion solely upon the prologue— but that can only show that self-defense had little to do with the right's codification; it was the central component of the right itself. - - - - - - - - - - [619]
United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right "is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment... means no more - - - - - - - - - - [621]
JUSTICE STEVENS places overwhelming reliance upon this Court's decision in Miller, 307 U. S. 174. "[H]undreds of judges," we are told, "have relied on the view of the Amendment we endorsed there," post, at 638, and "[e]ven if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law," post, at 639. And what is, according to JUSTICE STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment "protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons." Post, at 637. - - - - - - - - - - [623]
It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. JUSTICE STEVENS claims, post, at 676-677, that the opinion reached its conclusion "[a]fter reviewing many of the same sources that are discussed at greater length by the Court today." Not many, which was not entirely the Court's fault. The defendants made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court's consideration of the Second Amendment). See Frye, The Peculiar Story of United States v. Miller, 3N. Y. U. J. L. & Liberty 48, 65-68 (2008). The Government's brief spent two pages discussing English legal sources, concluding " that at least the carrying of weapons without lawful occasion or excuse was always a crime" and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) "the early English law did not guarantee an unrestricted right to bear arms." Brief for United States, O. T. 1938, No. 696, at 9-11. It then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United States, O. T. 1938, No. 696, at 12-18. The final section of the brief recognized that "some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property," and launched an alternative argument that "weapons which are commonly used by criminals," such as sawed-off shotguns, are not protected. See id., at 18-21. The Government's Miller brief thus provided = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = McDonald v Chicago, 561 US 742 (2010) [Syllabus at 1]
The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U. S. 542, Presser v. Illinois, 116 U. S. 252, and Miller v. Texas, 153 U. S. 535— which were decided in the wake of this Court's interpretation of the Fourteenth Amendment's Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36. - - - - - - - - - - [Syllabus at 2]
(b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War's aftermath fundamentally altered the federal system. Four years after the adoption of the Fourteenth Amendment, this Court held in the Slaughter House Cases, that the Privileges or Immunities Clause protects only those rights "which owe their existence to the Federal government, its National character, its Constitution, or its laws," 16 Wall., at 79, and that the fundamental rights predating the creation of the Federal Government were not protected by the Clause, id., at 76. Under this narrow reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79-80. Subsequently, the Court held that the Second Amendment applies only to the Federal Government in Cruikshank, 92 U. S. 542, Presser, 116 U. S. 252, and Miller, 153 U. S. 535, the decisions on which the Seventh Circuit relied in this case. Pp. 5-9. - - - - - - - - - - [Syllabus at 3]
(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19-33. - - - - - - - - - - [9]
The Court reversed all of the convictions, including those relating to the deprivation of the victims' right to bear arms. Cruikshank, 92 U. S., at 553, 559. The Court wrote that the right of bearing arms for a lawful purpose "is not a right granted by the Constitution" and is not "in any manner dependent upon that instrument for its existence." Id., at 553. "The second amendment," the Court continued, "declares that it shall not be infringed; but this . . . means no more than that it shall not be infringed by Congress." Ibid. "Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government." Heller, 554 U. S., at_, n. 23 (slip op., at 48, n. 23). - - - - - - - - - - [10]
As previously noted, the Seventh Circuit concluded that Cruikshank, Presser, and Miller doomed petitioners' claims at the Court of Appeals level. Petitioners argue, however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the "privileges or immunities of citizens of the United States." In petitioners' view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15-21, but petitioners are unable to identify the Clause's full scope, Tr. of Oral Arg. 5-6, 8-11. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases' interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting). - - - - - - - - - - [13]
An alternative theory regarding the relationship be- - - - - - - - - - - [31]
In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. - - - - - - - - - -
#70. To: nolu chan (#68) Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. Correct. Those used by a militia. The Miller court was unsure whether a sawed-off, double-barrel shotgun was a militia weapon.
#75. To: misterwhite (#70)
Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. The Court opined,
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. There was no brief or appearance for Miller. No evidence was provided except by the government. The court can only consider evidence that is before it. With no relevant evidence before the court whether a short barrel shotgun bore, "some reasonable relationship to the preservation or efficiency of a well regulated militia," the court could not "say that the Second Amendment guarantees the right to keep and bear such an instrument." You cite that as precedent for what?
#81. To: nolu chan (#75) You cite that as precedent for what? That the type of weapon protected by the second amendment was relevent to its usefulness to a militia. Useful? Protected. Not useful? Not protected. Meaning, the second amendment has nothing to do with protecting some handgun for self-defense in the home. It's a restriction on the federal government to leave the state militias (and their weapons) alone. Your right to self-defense with a firearm is protected by your state constitution. Always has been. The Heller court got it wrong.
#88. To: misterwhite (#81)
You cite that as precedent for what? - - - - - - - - - -
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Presser In the absence of evidence, the court could not say whether the a short barrel shotgun was a weapon in any part of the ordinary military equipment. What a precedent. In the absence of evidence, the court could not say.
The District of Columbia argues that the prefatory clause declares the Amendment’s only purpose—to shield the state militias from federal encroachment—and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right. In other words, according to the District, the operative clause is not just limited by the prefatory clause, but instead both clauses share an explicitly civic character. The District claims that the Second Amendment “protects private possession of weapons only in connection with performance of civic duties as part of a well-regulated citizens militia organized for the security of a free state.” Individuals may be able to enforce the Second Amendment right, but only if the law in question “will impair their participation in common defense and law enforcement when called to serve in the militia.” But because the District reads “a well regulated Militia” to signify only the organized militias of the founding era—institutions that the District implicitly argues are no longer in existence today—invocation of the Second Amendment right is conditioned upon service in a defunct institution. Tellingly, we think, the District did not suggest what sort of law, if any, would violate the Second Amendment today—in fact, at oral argument, appellees’ counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District’s position to be that the Second Amendment is a dead letter. Parker v District of Columbia, 478 F3d 372 (DC Cir 2007), Affirmed U.S. Supreme Court, 554 U.S. 570 (2008)
#91. To: nolu chan (#88) In short, we take the District’s position to be that the Second Amendment is a dead letter. Well, does the Distict of Columbia have a militia? If not, then the second amendment doesn't apply. I wouldn't call it a dead letter.
#94. To: misterwhite (#91) Well, does the Distict of Columbia have a militia? If not, then the second amendment doesn't apply. The District of Columbia is not a state. It is a Federal district. There was no need for incorporation for the 2nd amendment to apply to the District of Columbia. The District indicated the 2nd Amendment was a dead letter. The court disagreed and found the District to be in violation of the 2nd Amendment.
#101. To: nolu chan (#94) The District of Columbia is not a state. It is a Federal district. There was no need for incorporation for the 2nd amendment to apply to the District of Columbia. Which is the main problem with the Heller decision. Had, say, Ohio banned handguns in the home for self-defense, the ruling would have been different because the court would have referred to Ohio's state constitution. So the Heller court felt compelled to twist and distort the second amendment to make it applicable to DC residents. Which it is not.
#108. To: misterwhite (#101) The District of Columbia is not a state. It is a Federal district. There was no need for incorporation for the 2nd amendment to apply to the District of Columbia. Once again, you do not know what the hell you are talking about and just blather. Heller only applied to the District of Columbia, not to the States. McDonald took up the issue regarding thd States and decided that the 2nd Amendment had been incorporated into the 14th Amendment and was fully applicable to all the States. Heller did not have to twist or distort anything to make it applicable to the District. It is a Federal district, under the control of the U.S. Congress. Congress has the power "to to exercise exclusive Legislation in all Cases whatsoever, over such District...." Art. 1, Sec. 8, Cl. 17. The 2nd Amendment automatically applied to the Federal district.
#115. To: nolu chan (#108) Heller only applied to the District of Columbia, not to the States. And that's where it should have stayed. "Heller did not have to twist or distort anything to make it applicable to the District." Sure it did. It applied the second amendment protection of a militia to an individual ... because D.C. residents weren't protected by their own constitution.
#120. To: misterwhite (#115) Heller only applied to the District of Columbia, not to the States. It didn't. McDonald v City of Chicago,
"Heller did not have to twist or distort anything to make it applicable to the District." You are out of your damn mind if you think the Federal Constitution did not apply directly to the Federal District of Columbia. You are equally out of your mind if you think the Federal District of Columbia is a sovereign state. D.C. has no sovereignty to exercise.
#123. To: nolu chan (#120) "You are out of your damn mind if you think the Federal Constitution did not apply directly to the Federal District of Columbia." Federal Constitution? Whatever. I'm not referring to the U.S. Constitution. I'm referring to the second amendment which protects state militias. D.C. is not a state. It has no state militia. So the U.S. Supreme Court twisted the second amendment saying it protected an individual right, and therefore Mr. Heller's right to keep a handgun in the home for self-defense was preserved. Look. Let's say you're right -- the second amendment protects an individual right to keep and bear arms which are in common civilian use. What protects state militias and/or the National Guard? What's to prevent the Federal government from disbanding the National Guard and organizing a standing Federal military?
#125. To: misterwhite (#123)
I'm not referring to the U.S. Constitution. I'm referring to the second amendment which protects state militias. D.C. is not a state. It has no state militia. Your continued militia argument is just horseshit. I have patiently explained to you that the 2nd amendment right is an individual right, it has been incorporated into the 14th Amendment, and it applies to the District of Columbia (Heller) and to the States (McDonald). That you do not personally approve of SCOTUS in Heller and McDonald changes nothing.
#128. To: nolu chan (#125) Second request. If you're right, then what protects state militias and/or the National Guard from federal infringement? What's to prevent the Federal government from disbanding the National Guard and organizing a standing Federal military?
#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
- - - - - - - - - - - - - - - - - - - -
[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.
#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.
#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.
#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.
#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.
#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.
#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?
#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.
#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.
#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.
#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.
#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.
#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.
#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):
#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 ...
#207. To: misterwhite (#202)
Whether the individual is, or is not, a member of a militia is irrelevant to the individual's right to keep and bear arms. The second Amendment offers an individual right to keep and bear arms. The right is the same in or out of the militia. As no RKBA right is gained by being in the militia, no RKBA right is lost when the individual turns 45 years old and leaves the militia. His individual right is unaffected by passing the maximum age for the miltia. There is no huge difference as to the types of arms protected it the individual leaves the militia. There is no difference at all. Gramps has the same RKBA rights at 46 as he had at 45.
#211. To: nolu chan (#207) There is no huge difference as to the types of arms protected it the individual leaves the militia. There is no difference at all. So "in common use at the time" means nothing?
#213. To: misterwhite (#211)
There is no huge difference as to the types of arms protected it the individual leaves the militia. There is no difference at all. It means nothing at all regarding the INDIVIDUAL right to keep and bear arms, and membership or non-membership in the militia. Gramps at 46, ineligible to be a member of the militia, has the same, precise right to the same precise weapons as he had at 45 when he was a member of the militia.
#215. To: nolu chan (#213) Gramps at 46, ineligible to be a member of the militia, has the same, precise right to the same precise weapons as he had at 45 when he was a member of the militia. That's not what the Heller court said. Mr. Heller can't have a military weapon. What made you think he did? Prior to Heller you could make that case.
#218. To: misterwhite (#215)
Gramps at 46, ineligible to be a member of the militia, has the same, precise right to the same precise weapons as he had at 45 when he was a member of the militia. Identify a weapon that a member of the militia has a right to possess under the Second Amendment individual right to keep and bear arms, that he does not have the right, at age 46, to possess under the Second Amendment individual right to keep and bear arms. You will have to read Heller for the first time before lecturing about what is in it.
Mr. Heller can't have a military weapon. What made you think he did? My comment you quote made no reference to Mr. Heller or what weapon he had, or might have had. You confuse the military and the militia. The members of the military get to bear all nature of arms. It has nothing to do with their 2nd Amendment individual right to keep and bear arms. When did you stop beating your dog?
#221. To: nolu chan (#218) Identify a weapon that a member of the militia has a right to possess under the Second Amendment individual right to keep and bear arms, that he does not have the right, at age 46, to possess under the Second Amendment individual right to keep and bear arms. A brand-new machine gun, for starters. Or a brand-new full-auto battle rifle. You know, like the ones federalized troops will have when they come-a-knockin'? You gonna use your court-approved self-defense handgun to keep them at bay?
#225. To: misterwhite (#221)
Identify a weapon that a member of the militia has a right to possess under the Second Amendment individual right to keep and bear arms, that he does not have the right, at age 46, to possess under the Second Amendment individual right to keep and bear arms. Federalized troops are NOT the militia cited in the 2nd Amendment. The are the ORGANIZED militia, as opposed to the UNORGANIZED militia. Heller at 624.
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra. Under what imaginary theory of imaginary law does a member of the militia have a 2nd Amendment right to keep and bear a brand new machine gun? Who may lawfully manufacture a brand new machine gun? Who sells brand new machine guns? 18 USC § 921 et seq.
(23) The term "machinegun" has the meaning given such term in section 5845(b) of the National Firearms Act (26 U.S.C. 5845(b)). 26 U.S.C. § 5845(b)
(b) Machinegun National Firearms Act Handbook (ATF)
1.1.3 Firearm Owners’ Protection Act. In 1986, this Act amended the NFA definition of “silencer” by adding combinations of parts for silencers and any part intended for use in the assembly or fabrication of a silencer.6 The Act also amended the GCA to prohibit the transfer or possession of machineguns.7 Exceptions were made for transfers of machineguns to, or possession of machineguns by, government agencies, and those lawfully possessed before the effective date of the prohibition, May 19, 1986. https://law.justia.com/codes/us/2016/title-18/part-i/chapter-44/sec.-922/ 18 U.S.C. § 922(o)
(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun. The above text was the result of Public Law 99-308 of May 19, 1986, 100 Stat. 453, under section 102(9). The effective date was May 19, 1986.
EFFECTIVE DATE OF 1986 AMENDMENT Other than the "transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof," the only possible lawful transfer or possession of a machinegun is, "any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect," i.e., May 19, 1986. Note that the militia is not the military, and the UNORGANIZED militia of the 2nd Amendment are just ordinary people going about their business in civilian life. http://law.justia.com/codes/us/2012/title-10/subtitle-a/part-i/chapter-13/section-311/
THE MILITIA - 10 U.S.C. § 311 (2012) As the only lawful possession of a machinegun pertains to a machinegun that was possessed before May 19, 1986, please explain your ridiculous claim that the 2nd Amendment right to keep and bear arms provides a member of the militia the right to possess a brand new machinegun. As "the traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense," whatever makes you think that a machinegun is in common use for lawful purposes like self-defense?
#231. To: nolu chan (#225) As "the traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense," whatever makes you think that a machinegun is in common use for lawful purposes like self-defense? Well, that's the Catch-22. The National Firearms Act of 1934 banned the private ownership of the Thompson submachine gun, a weapon used by the military in WWII. So how can it ever be "in common use" by civilians if it's banned? It was "in common use" by the military. So it should be protected under the second amendment.
#236. To: misterwhite (#231)
It was "in common use" by the military. So it should be protected under the second amendment. A machinegun cannot be in common use by the people. This would only present a problem for your delusional interpretation of the 2nd Amendment. This is not a problem for the actual 2nd Amendment which applies to weapons in common use by the people in their civilian life for purposes such as hunting and self-defense which can also serve a use in the militia. It is what civilians show up with when called upon to serve. You can repeat your horseshit all you want and it will still be in direct conflict with the prevailing SCOTUS opinion.
whatever makes you think that a machinegun is in common use for lawful purposes like self-defense? Whatever makes you think you emit rainbows from your arse for purposes like self-defense?
#244. To: nolu chan (#236) "A machinegun cannot be in common use by the people.' Of course not. As I already told you, it's banned. How can it be in common use by the people when you can't buy a new one? If a full-auto AR-15 was legal, you can bet your ass there'd be 2 million buyers by next week and it would be more "in common use" than a microwave oven. "This would only present a problem for your delusional interpretation of the 2nd Amendment." It would present a problem for your misquided interpretation. Under my interpretation (the correct one) a machine gun is protected by the second amendment for state militia members. The state decides if he takes the machine gun home or stores it in an armory. For those not in the state militia, their State Constitution spells out their personal RKBA. See how simple this is? See how this keeps with the concept of federalism? You want a one-size-fits-all federal mandate on guns. I don't.
#281. To: misterwhite (#244) MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 4 [misterwhite #244]
Under my interpretation (the correct one) a machine gun is protected by the second amendment for state militia members. The state decides if he takes the machine gun home or stores it in an armory. The 2nd Amendment protects the individual right of the people to keep and bear arms. It protects the right of civilians to keep and bear arms. It is not to protect the right of the active duty organized militia to carry machineguns while on duty. As unlicensed possession of a machinegun is a federal crime, no state law can authorized possession of such a weapon by an off-duty member of the militia at home. An off duty military member caught running around in the woods with his M-16 would be court-martialed by the military, and may be prosecuted by the civilian authorities. Federal law is supreme and prohibits a state from authorizing machinegun possession at home of military weapons. Weapons provided to the National Guard are provided by the Federal government. Members of the State National Guard are also enlisted or commissioned in the United States National Guard. From United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008), quoted in full below.
The final jury instructions included, at the government's request, the following instruction: And,
The Supreme Court's recent decision in District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), holding that the Second Amendment protects a limited individual right to possess a firearm — unconnected with service in a militia — does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., 128 S.Ct. at 2802. Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison. Keith Gilbert was sentenced to eight years in prison. The court did not permit him to testify as to his bullshit about the Second Amendment. Pleading bullshit in court is not allowed. In court, you cannot argue your personal belief of what the law is. The court determines what the law is and so instructs the jury. https://casetext.com/case/us-v-gilbert-35 United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008)
U.S. v. GILBERT
#285. To: nolu chan (#281) It is not to protect the right of the active duty organized militia to carry machineguns while on duty. Then who or what protects their right to keep and bear those arms? You continue to refuse to answer that question.
#289. To: misterwhite (#285)
[nolu chan #281] It is not to protect the right of the active duty organized militia to carry machineguns while on duty. The 2nd Amendment to the U.S. Constitution still protects the individual right of the people to keep and bear arms. You keep mumbling some bullshit about how states protect the right to keep and bear arms through their constitutions, but your are absolute crickets about how they do it. Anything in a state constitution which is contrary to the Federal Constitution, any Federal law or treaty, falls to the Federal provision which is the law of the land, and is supreme over all state laws. It is called the Supremacy Clause. See Article VI, § 2:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. Your most profound legal claim thus far is in your #282:
Screw the National Guard … the "organized" and "unorganized" militia … the "active" and "inactive" militia. Weasel words used because you're trying to fit a round peg into a square hole with your stupid Heller and McDonald decisions. Yeah, you should stick with blaming the transition from State Militia to the National Guard (in 1903) on the stupid Heller decision in 2008. And Supreme Court decisions are just to be dismissed as stupid. The same with Federal laws. At least it is a true statement of your legal reasoning, such as it is.
#293. To: nolu chan (#289) You keep mumbling some bullshit about how states protect the right to keep and bear arms through their constitutions, but your are absolute crickets about how they do it. How? It's written in their state constitution. Alabama, for example, has this: "That the great, general and essential principles of liberty and free government may be recognized and established, we declare.... That every citizen has a right to bear arms in defense of himself and the state. (Ala. Const. art. I, § 26) (1819)." Each state is different, of course. Here's a summary: https://www.nraila.org/articles/20140703/guarantees-of-the-right-to- arms-in- stat&sa=U&ved=0ahUKEwjv_4yk0dXbAhWFv1MKHWwuCSoQFgggMAI&usg=AOvVaw1W5NrmjvNiodO8M F-QerxD If the second amendment protects the individual RKBA, why do we need these state constitutions? You don't know. Heller has completely fucked you up.
#326. To: misterwhite (#293)
[nolu chan #289] You keep mumbling some bullshit about how states protect the right to keep and bear arms through their constitutions, but your are absolute crickets about how they do it. MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 7 The 11th Circuit and the District Court for the District of Alabama Protect 2nd Amendment Rights in Alabama
United States v. White, 593 F.3d 1199 (11th Cir., 2010)
#328. To: nolu chan (#326) MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 7 I said federal law trumps state law, though it looks like states may be able to ignore the Supremacy Clause if they want to.
#330. To: misterwhite, tpaine (#328)
[tpaine #327] Bobbie actually hopes that people go to jail for machine guns. -- He is actually an anti-gun nut who believes a State can ban ANY gun. Oh hell, why not. Are you actually an anti-gun nut who believes a State can ban ANY gun?
#333. To: nolu chan (#330) Are you actually an anti-gun nut who believes a State can ban ANY gun? Don't believe that asshole. He lies. I'm pro-gun and pro-constitution -- state and federal. Prior to Heller, if a state constitution did not protect an individual RKBA, of course a state could ban the individual ownership of guns -- as long as it didn't interfere with maintaining a state militia. States ban certain products (eg., dangerous toys) for health and safety reasons, certainly they could ban guns for the same reason. And if the majority of citizens of some state, acting through their state representatives, wanted to do that, who am I to tell them how to live? But states would never get the votes.
#337. To: misterwhite (#333)
Are you actually an anti-gun nut who believes a State can ban ANY gun? [misterwhite #2]
The second amendment doesn't protect arms for ordinary citizens. It protects state militias and the arms of state militia members from federal infringement. What are those arms? They are the arms selected by the state militia as necessary for the protection of the state. Round peg. Round hole. You have repeatly declared Heller not to be the law, and have repeatedly stated that the 2nd Amendment does not protect an individual's right to keep and bear arms. You have stated that if a state constitution allows it, cities and towns can enact and enforce gun bans. [misterwhite #46]
Seems to me the only reason you like the Heller decision is because it supports your view. I guess those justices never heard of stare decisis. [misterwhite #48]
When you examine it (as I have) it only protected the right for those eligible to participate in a state militia. What a coincidence, huh? And the second amendment references a militia! Another coincidence! The fundamental individual right of the people belongs to the people, not the militia. [misterwhite #65]
Don't bother citing Heller. I told you the court got it wrong. [misterwhite #66]
Book the First - Chapter the First: Of the Absolute Rights of Individuals [misterwhite #79]
True. And before the Bill of Rights was selectively incorporated, states banned speech, restricted the press, searched without a warrant, and even had their own state-sanctioned religion. You have a strange way of expressing your "pro-constitution" views. [misterwhite #81]
Meaning, the second amendment has nothing to do with protecting some handgun for self-defense in the home. It's a restriction on the federal government to leave the state militias (and their weapons) alone. Note: The Federal government OWNS all of the National Guard weapons, not the State. The National Guard weapons are provided by the Federal governent and remain the property of the Federal government. In case of a war, or threatened war, the Federal government can requisition all of its weapons back for Federal use as it sees fit. [misterwhite #85]
I'm saying the right is NOT protected by the second amendment and IS protected by state constitutions. [misterwhite #100]
You openly advocate for municipalities having the power to take away your claimed gun rights, and your guns." The American people, in their great wisdom, added a 2nd Amendment to their Constitution. Cities and towns are not empowered to disarm their inhabitants. If cities and towns wanted it, and the State constitution allowed it, could cities and towns either permit or ban all abortions? The Illinois case in point in point is Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983). Quilici involved Ordinance No. 81-11. It was held to not violate the 2nd Amendment because the Amendment had not then been incorporated into the 14th Amendment and therefore did not then apply to the states. You voiced your support for a time when one's 2nd Amendment right to keep and bear arms could be taken away by a village council adopting a village ordinance. McDonald v. City of Chicago, 561 U.S. 742 (2010) incorporated the 2nd Amendment into the 14th Amendment and held that the 2nd Amendment was fully enforceable against the states. It struck down all laws such as Village of Morton Grove, Ilinois Ordinance No. 81-11 and the Chicago and Oak Park ban on citizen possession of handguns. While you would prefer to cling to a time when the majority vote of a village council could take away the 2nd Amendment fundamental individual right of the people to keep and bear arms, that is now blessedly unconstitutional. If a state constitutional provision authorizes a municipality to ban handgun possession, such provision of the state constitution is null and void, as are any municipal ordinances flowing from such provision. The American system was not set up as a democracy where a majority decides for all which rights apply. By its design, it was meant to protect the rights of the minority. The right to free speech is not the right to say what meets with majority approval, but to say that which is greeted with overwhelming disapproval. Illinois, Chicago, Oak Park, and Morton Grove are sterling examples of how states do not protect the 2nd Amendment fundamental individual right of people to keep and bear arms. [misterwhite #318]
I said state constitutions protect an individual right to keep and bear arms, subject to constitutional federal laws (as per the Supremacy Clause). As we all know, and as this thread documents, what you accept as constitutional laws is determined by your own personal legal system, rejecting the opinions of the U.S. Supreme Court and the other Federal courts. [misterwhite #328]
I said federal law trumps state law, though it looks like states may be able to ignore the Supremacy Clause if they want to. And you hold that it looks like states may be able to ignore the Supremacy Clause if they want to.
Prior to Heller, if a state constitution did not protect an individual RKBA, of course a state could ban the individual ownership of guns -- as long as it didn't interfere with maintaining a state militia. "Of course," you say, the state (and even towns and villages) had the lawfully delegated power to take away the fundamental individual right of the people to keep and bear arms. Also note yet again, even after Heller (2008), the 2nd Amendment had not been incorporated into the 14th Amendment and could not be enforced against the states. It was McDonald v. City of Chicago, 561 U.S. 742 (2010) which incorporated the 2nd Amendment into the 14th Amendment and held that the 2nd Amendment was fully enforceable against the states.
#341. To: nolu chan (#337) The fundamental individual right of the people belongs to the people, not the militia. The fundamental individual right of the people protected by the second amendment belongs to the people of the militia. That's according to the clear language of the second amendment as interpreted for over 200 years.
Replies to Comment # 341.
The fundamental individual right of the people belongs to the people, not the militia. Recycling this bullshit over and over does not change the fact that it was emphatically and explicitly REJECTED BY THE U.S. SUPREME COURT in Heller and McDonald. That is according to the clear language of the U.S. Supreme Court. Self-defense was the central component of the right itself. McDonald at 561 U.S. 787: (boldface added)
In Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. 554 U. S., at 598–599. On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.”
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