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SPOOFE
01-15-2004, 01:25 PM
http://www.cnn.com/2004/LAW/01/15/gun.law.ap/index.html

I'll ignore the idiocy of the judge stating that the 2nd Amendment doesn't confer the right to own guns (especially since the Constitution doesn't confer ANY rights). However, one thing I noted in the article...

He went on to say that the amendment was designed to protect the citizens against a potentially oppressive federal government.
Hmm... that pretty much flies in the face of every gun control advocation debate I've seen. Anybody have a link or quote from the decision, rather than CNN's summation? Because if there's a precedent of the courts admitting that guns are to protect against an oppressive government... wouldn't any law that takes the guns away be an example of that oppression, thus making any law that bans guns unconstitutional?

LibrarySpy
01-15-2004, 01:34 PM
went on to say that the amendment was designed to protect the citizens against a potentially oppressive federal government.

Well, I don't know about case law, but I have one friend who is a very strong advocate of the 2nd Amendment, and that's the argument he uses. He believes the people are armed in order to make sure the government thinks twice, and he cites human rights abuses (related to the justice system, I presume) in Australia after they passed a no-guns law.

Considering that the US was founded with the purpose of escaping from an overlording, oppressive government, it does not seem unreasonable to me that the Constitution was worded with such an intent.

One of the first things a conqueror does is try and disarm the people to prevent uprisings/hostilities. Iraq (http://www.islamonline.net/English/News/2003-05/24/article10.shtml) is a good example.

The rest of your argument is a stretch that smacks of the Ohio and the 14th amendment tale. :dubious:

Adjustable_Beavis
01-15-2004, 01:46 PM
The judge and article also says...

"Rather, the Amendment's objective is to ensure the vitality of state militias," ..... He also ruled that the Second Amendment does not apply to the district because it was intended to protect state citizens, and the district is not a state.

I read that as the judge is saying the 2nd only applies to state run miltias. To break it down more that it applies to members of the state milita acting on orders from the state. Not your average person or even "Billy Bob and Bubba's Militia".

I probably should add here - that doesn't mean I agree with what the judge is saying. But, that's how I read what he is saying.

Captain Amazing
01-15-2004, 02:09 PM
Here's the decision (Seegars v. Ashcroft)

http://www.dcd.uscourts.gov/03-834.pdf

It says this (to summarize)

There are three different legal theories of the second amendment

1. The "Traditional individual right" theory-"that the Second Amendment guarantees to individual private citizens a fundamental right to possess and use firearms for any purpose at all, subject only to limited government regulation."

2. The "limited individual right" or the "sophisticaed collective rights" theory-"individuals maintain a constitutional right to possess firearms insofar as such possession bears a reasonable relationship to militia service."

and

3. the "collective rights" theory-"that the Second Amendment right to 'bear arms' guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons."

The decision then states, that historically, federal and state courts have denied that the second amendment guarantees an individual right to possess firearms...theory 1 above is ruled out.

It goes on to say that one of the main purposes of the state militias was/is to protect the states, and therefore the people from an oppressive national government.

But, DC isn't a state. It's part of the federal government, controlled by Congress, and the militia insofar as it exists, is controlled by the president. There's no need to protect DC from the feds. Further, even if that wasn't true, there's no evidence that the plaintiff is a member of the DC militia.

SPOOFE
01-15-2004, 02:47 PM
I'm not gonna argue the "states" vs. "people" rights issue. Been done to death, frankly. However...

It goes on to say that one of the main purposes of the state militias was/is to protect the states, and therefore the people from an oppressive national government.
My question is whether or not this will throw things out of balance, since right now, there ARE no state militias. The National Guard is paid with Federal money and housed on Federal lands. So how does this ruling jibe with the current situation? "The 2nd amendment is for state militias"... but there are no state militias. Did the judge take this into account?

Captain Amazing
01-15-2004, 03:24 PM
So how does this ruling jibe with the current situation? "The 2nd amendment is for state militias"... but there are no state militias. Did the judge take this into account?


The judge says that, under the Dick Act, the National Guard is to be understood as the same thing as the state millitia.

And, he seems to be relying partly on the Michigan Supreme Court case, "People v. Brown"(1932)

When the bulwark of state defense was the militia, privately armed, there may have been good reason for the historical and military test of the right to bear arms. But in this state the militia, although legally existent and
composed of all able-bodied male citizens of Michigan and those offoreign birth who have declared their intention to become citizens, is practically extinct and has been superceded by the National Guard and reserve organizations. If called to service, the arms are furnished by the state. In times of peace, the militia, as such, is unarmed and the historical test would render the constitutional provision lifeless.

Rashak Mani
01-15-2004, 03:49 PM
"...potentially oppressive federal government."

Isn't this to open an idea ? When does taxation become oppression and you can use your guns to keep federal tax colletors away ? I agree historically it might be justified... but not in the 21st Century. Bearing guns to potentially ward off the govt !

SPOOFE
01-15-2004, 03:51 PM
The judge says that, under the Dick Act, the National Guard is to be understood as the same thing as the state millitia.
Even if the National Guard is controlled by the Federal government?!?

Look at what he's done. He's essentially defined the target of the so-called protection as "Nobody". This judge has, essentially, made the Constitution utterly useless, since if the government can define the target of the protections as they see fit, there are NO protections.

sqweels
01-15-2004, 03:51 PM
In light of both curent US foreigh policy and the issue raised by the OP, I have to ask: Why such disregard for Rule of Law?

SPOOFE
01-15-2004, 03:54 PM
I agree historically it might be justified... but not in the 21st Century. Bearing guns to potentially ward off the govt !
Why not? Has tyranny magically transformed into happy squishy bunnies just because we now have motorcars and aeroplanes?

In light of both curent US foreigh policy and the issue raised by the OP, I have to ask: Why such disregard for Rule of Law?
Perhaps because I believe the Rule of Law has made a terribly wrong mistake, and set a precedent by which ANY right can now be removed simply by redefining the benefactors of said right in an incredibly narrow - and, in this case, utterly void - manner?

SPOOFE
01-15-2004, 03:55 PM
Re-reading Sqweels comment, I now suspect he meant something other than what I first interpreted. Could you please clarify your comments?

Captain Amazing
01-15-2004, 04:14 PM
Even if the National Guard is controlled by the Federal government?!?


Well, but the National Guard is controlled by the state government..the governor calls out the guard and commands it. It's funded by the federal government.

The judge is saying that one of the original purposes of the militia was to protect the states against the federal government. He doesn't address whether that is one of the purposes of the millitia/National Guard now, except to say that it isn't the case of the DC guard (which is under the direct control of the president)

(and he didn't define the scope of protection as nobody...the Michigan Supreme Court did in 1931.)

SPOOFE
01-15-2004, 05:06 PM
Well, but the National Guard is controlled by the state government..the governor calls out the guard and commands it. It's funded by the federal government.
Which still makes the State gov't dependent on the Federal government. Whoever's got the gold makes the rules, eh?

He doesn't address whether that is one of the purposes of the millitia/National Guard now
So he makes a conclusive declaration about an issue that still requires a conclusion itself. So, at best, this is a non-conclusion and still up in the air... at worst, this is stripping away a guaranteed right.

Considering that the judge apparently believes that the Constitution grants rights instead of merely enumerating them, I'm not terribly confident in the security of his ruling.

Captain Amazing
01-15-2004, 05:32 PM
So he makes a conclusive declaration about an issue that still requires a conclusion itself. So, at best, this is a non-conclusion and still up in the air... at worst, this is stripping away a guaranteed right.

Considering that the judge apparently believes that the Constitution grants rights instead of merely enumerating them, I'm not terribly confident in the security of his ruling.

Well, no, because the plantiffs argued that they have an individual right to own a firearm, and that's settled law...as the court said:

For more than sixty years following the Supreme Courtís decision in Miller, there was little judicial debate regarding the scope of the Second Amendment, as almost every circuit court interpreted Miller as rejecting the notion that the Second Amendment provided individuals a constitutional right to possess firearms.

(bolding mine)

And it's the court's job to rule on the meaning of the amendment, consistant with precedent. Have you read the decision? It's short, and I hope you're not just relying on my summaries.

Also, "the Constitution grants/does not grant the right to X" is pretty common in court decisions, and isn't neccessarily a reflection of the judge's belief on the origin of rights.

SPOOFE
01-15-2004, 05:50 PM
Well, no, because the plantiffs argued that they have an individual right to own a firearm
That's not necessarily the issue I'm talking about, though it's, by elimination, the leftover alternative. My issue with the ruling is that it states that the only benefactor of the 2nd amendment is an entity that doesn't exist... in short, while it states that the amendment exists to protect the people from the government, it also states that the protector is... the government that it's supposed to be protecting the people from.

You don't see a problem with the situation that the ruling has created? It's no different than Mafia extortion tactics:

THEM: "Don't worry, we'll protect you."
ME: "From what?"
THEM: "Us."

And it's the court's job to rule on the meaning of the amendment, consistant with precedent.
My problem is that the ruling doesn't take context into account. It ascribes the amendment to point to an entity that DOES NOT EXIST. I'm reminded of the old Ford advertisement for the Model T: "You can get it in any color, as long as it's black."

But answer this: How can a state militia protect the people from the Federal government if the militia is controlled by the Federal government? That's the quandary that this ruling does not take into account.

Also, "the Constitution grants/does not grant the right to X" is pretty common in court decisions, and isn't neccessarily a reflection of the judge's belief on the origin of rights.
Yes, it's unfortunate that it's common. It shows that our judicial system has far overstretched it's authority.

gex gex
01-16-2004, 10:49 AM
originally posted by Rysler
He believes the people are armed in order to make sure the government thinks twice, and he cites human rights abuses (related to the justice system, I presume) in Australia after they passed a no-guns law.
Does your friend have a cite for this nonsense? I'd sure be interested in the way my government is abusing the human rights of me or my fellow citizens. Odd, too, that your friend has special knowledge of these abuses, but they do not get reported in our media.

Quite apart from that, I'd also like to know the practical application of this:

He went on to say that the amendment was designed to protect the citizens against a potentially oppressive federal government.
If this is true, then surely it is permitted to use a firearm against an agent of this oppressive government. Could one escape a murder charge if it could be shown that the murder was committed in defending oneself against government oppression. How would a court define government oppression?

sqweels
01-16-2004, 06:04 PM
Spoofe:
Re-reading Sqweels comment, I now suspect he meant something other than what I first interpreted. Could you please clarify your comments?

My point is simply that we don't rely on guns to protect us from government oppression, we rely on the Rule of Law. If the President can't so much as get a blowjob without getting impeached, what are his prospects for setting up a dictatorship? And in foreign policy, I believe that we should start promoting global stability based on Rule of Law rather than on US military hegemony.

(I do agree with the popular interpretation of the 2nd Amendment, tho)

catsix
01-16-2004, 06:24 PM
My point is simply that we don't rely on guns to protect us from government oppression, we rely on the Rule of Law.

Absent the ability of the people to force the government to believe in the Rule of Law, what's to keep them from deciding they don't believe?

Do you just put blind faith in the belief that they will continue to be benevolent forever?

minty green
01-16-2004, 11:50 PM
Regarding the complaint that the state national guard units are subject to the control of the federal government: Tough luck. That's precisely what the U.S. Constitution provides. Observe:
The Congress shall have the Power . . .

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

ElvisL1ves
01-17-2004, 01:18 PM
Given his passion for this topic, it's odd that Dewey hasn't shown up yet to set everyone straight.

Dewey Cheatem Undhow
01-17-2004, 02:38 PM
Given his passion for this topic, it's odd that Dewey hasn't shown up yet to set everyone straight.Eh? I favor the individual-rights theory, true 'nuff, but I'm hardly a frequent participant in gun threads. I know I participated in one recently, but I can't seem to get the search function to find it.

Oh well. Wake me when folks start talking about that substantive due process nonsense again.

ElvisL1ves
01-17-2004, 07:53 PM
The title was about Republicans' low regard for the Constitution, and the specific example you were going on about was the Second Amendment - which this thread is about. Ring any bells? You know, all that ranting about it providing an absolute right, and the first half of the sentence didn't mean anything substantive? You were pretty damned passionate about that. Just a couple of weeks ago, and you only "seem to remember"? I don't wonder.

clayton_e
01-17-2004, 09:05 PM
But its illegal to take over the government by force... And this is a member of the government saying that. I hope that if something does ever happen he doesn't have to eat his words.

Dewey Cheatem Undhow
01-18-2004, 11:44 AM
The title was about Republicans' low regard for the Constitution, and the specific example you were going on about was the Second Amendment - which this thread is about. Ring any bells? You know, all that ranting about it providing an absolute right, and the first half of the sentence didn't mean anything substantive? You were pretty damned passionate about that. Just a couple of weeks ago, and you only "seem to remember"? I don't wonder.What part of "I can't seem to get the search function to find it" don't you understand? :wally

I remember the thread, although I don't think I was really "ranting."

I found it with your prompting by browsing the last several weeks of GD titles. Oddly, even when I tried searching on terms I knew were in the title ("Republicans Constitution") the search function didn't find the thread. Guess that's a board update issue.

Anyway, here's the thread: Why Do Republicans Have Such a Low Opinion of the Constitution? (http://boards.straightdope.com/sdmb/showthread.php?t=229834).

I leave it as an exercise for the reader to decide if I'm "ranting" or not.