Reply
 
Thread Tools Display Modes
  #201  
Old 09-05-2019, 01:28 PM
Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 82,464
Quote:
Originally Posted by ElvisL1ves View Post
By reading what they actually wrote, all of it and in context, and not by denial or handwaving if we don't like what it says or doesn't say.
I credit myself with having read more than the average person on constitutional issues. Including works by the founding fathers. But I don't recall the works you appear to be referring to. Do you have any recommendations that will give insight into what the founders meant by the Second Amendment?

Quote:
Originally Posted by ElvisL1ves View Post
It was accepted as clear for most of our history. What changed, and why?
I think it was mostly technological development. Guns used to mean one shot muskets. Issues like concealed carrying and mass shooting didn't exist as a possibility. There also weren't any major corporations that had a vested interest in the sales of firearms.
  #202  
Old 09-05-2019, 01:35 PM
RickJay is offline
Charter Jays Fan
Moderator
 
Join Date: Jun 2000
Location: Oakville, Canada
Posts: 41,613
Quote:
Originally Posted by puddleglum View Post
If people saw the government actually becoming tyrannical more people would get guns and learn how to use them. The purpose of the second amendment is to allow that to happen.
That is not really the purpose of the Second Amendment. It's also not at all a realistic assessment of what people would do if the government became tyrannical. Many if not most gun owners would support a dictatorship.

Dictatorships don't arise in opposition to all the people. They almost always have lots of support.
__________________
Providing useless posts since 1999!
  #203  
Old 09-05-2019, 02:13 PM
Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 82,464
Quote:
Originally Posted by puddleglum View Post
As stated by George Mason, the militia is everyone who doesn't work for the government. A militia is a group of people that organizes militarily for a short period and then disbands when the threat is over. A militia can be organized by a city, state, or a private citizen.
The function is to fight battles for the country when the need arises.
The founding fathers were skeptical of standing armies and saw the need for an armed populace to serve as a militia in case the government ever became tyrannical and used an army to oppress the citizenry.
As to whether the militia is currently well regulated, probably about one third of Americans own guns and even fewer know how to use them but over 100 million armed citizens is a formidable force. If people saw the government actually becoming tyrannical more people would get guns and learn how to use them. The purpose of the second amendment is to allow that to happen.
But how is this related to the Second Amendment? If the purpose of the amendment is to create a pooled of people who can be called upon for militia duty, then it's not being followed. I theoretically belong to this militia force. But I don't own a gun so I wouldn't be able to show up armed and ready to fight. I've never participating in any militia training. And I'm unaware of any procedure that would contact me and tell me when and where to show up at.

And you seem unclear about what the purpose of this militia is. Is it supposed to defend the government or attack the government? What happens if a group of people decide the government has become tyrannical and they band together to overthrow it. And then the government responds to the threat of being overthrown by notifying the people in the group that they're being called into service to defend the government from being overthrown.

Last edited by Little Nemo; 09-05-2019 at 02:14 PM.
  #204  
Old 09-05-2019, 02:18 PM
Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 82,464
And let me address to you similar questions I asked Shodan. If the purpose of the second amendment is to support a militia, do people who are unable to serve in a militia (like disabled people) have the right to keep and bear arms? Are weapons that aren't useful for militia use covered by the second amendment? If the government decides that it has enough people to man the militia as needed, can it tell the rest of the people that they can't own a gun? Can a person opt out of militia service and if they do so, do they forfeit their right to own a gun? Can the government store weapons at some central location and then issue them as needed when the militia is activated? Can the government require people to store their militia weapons at home when they're not using them for militia service?

Last edited by Little Nemo; 09-05-2019 at 02:20 PM.
  #205  
Old 09-05-2019, 02:28 PM
Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 82,464
Quote:
Originally Posted by RickJay View Post
It is endlessly fascinating to me that so many Republicans are hard core for the people having guns to defend themselves from the government, but at the same time are huge boosters of the United States having a gigantic standing army and controlling the state militias. If you brought the Founding Fathers to today and they saw that, they would think they'd failed; they thought a massive standing army a huge threat to liberty. They would rush back to 1789 and alter the Constitution to prevent that.
I find it interesting how people who oppose any form of gun control say we should respond to mass shootings in public places by having more armed police assigned to these area. How is having armed uniformed government agents stationed on our streets, in our public meeting places, in our businesses, in our schools, and in our transportation centers not conducive to establishing a tyranny?
  #206  
Old 09-05-2019, 03:29 PM
RickJay is offline
Charter Jays Fan
Moderator
 
Join Date: Jun 2000
Location: Oakville, Canada
Posts: 41,613
Quote:
Originally Posted by Little Nemo View Post
I find it interesting how people who oppose any form of gun control say we should respond to mass shootings in public places by having more armed police assigned to these area. How is having armed uniformed government agents stationed on our streets, in our public meeting places, in our businesses, in our schools, and in our transportation centers not conducive to establishing a tyranny?
It rather obviously is.

It's just about a love of guns. The problems with creeping tyranny are otherwise NEVER mentioned by 2A enthusiasts. You will never see a Fox News talking ahead complain about the huge standing army, militarized police, voter suppression, corporate oligarchy, or any number of other things that have a negative effect on a republican form of democracy. It's only guns.
__________________
Providing useless posts since 1999!
  #207  
Old 09-05-2019, 03:57 PM
DrDeth is offline
Charter Member
 
Join Date: Mar 2001
Location: San Jose
Posts: 42,217
Quote:
Originally Posted by RickJay View Post
It rather obviously is.

It's just about a love of guns. ...
A lot. Some people need to hunt. Others do it for sport- there are several Olympic events with guns, you know. Many just have one gun for protection.
  #208  
Old 09-05-2019, 05:29 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by QuickSilver View Post
I'd rather not, if it's all the same to you. But you are at least the second person in this thread, who is clearly a gun rights advocate, who has impressed the duty of lobbying for a 'functional citizen militia' on someone who is clearly opposed to the idea of immutable gun rights. So I put the question back to you and yours: Why have you not lobbied the congress to re-instate a well-regulated militia in line with the letter and spirit of the 2nd A of the Constitution?
Why would I do that? I don't need any militia attachment or association to exercise the right to arms. The only entities that are impacted or damaged from the lack of a citizen militia are the state or federal governments. The entities that should have complained are state governments since their self defense and ability to keep civil order during emergencies is what is being impacted.

That there wasn't a huge uproar from the states about the Dick Act, and legal action with them as the plaintiffs claiming the immunities of the 2nd Amendment, sure does belie the "state's right" perversion inserted in the federal courts in 1942, in Cases v U.S. Reality of course is that the "state's right" theory was dead before it was hatched; the Dick Act became law in 1903 and the final nail in state militia powers' coffin was driven in 1916 with the National Defense Act.

When Congress chose to obliterate state militia powers, they did give the states lovely parting gifts of "State Defensive Forces" that the states would fund and organize according to laws and regulations they establish. Neither State Defensive Forces nor the federalized State Guard are Art I, §8, cl's 15 & 16 militia, both are authorized under, and what's now the National Guard is organized and provided for under Art I, §8, cl's 12 & 14.

There is no "letter" of the 2ndA to be obeyed by the people; as SCOTUS has said, "[t]his is one of the amendments that has no other effect than to restrict the powers of the national government". It is absurd to argue that the 2nd Amendment creates nebulous government defined demands upon "the People", when "the People" are who the 2ndA was enacted to protect from federal government powers.

The "spirit" of the 2nd Amendment is that it does not really "do" anything at all but redundantly forbid the federal government to exercise powers it was never granted. It simply reminds government that it can't do what it was never allowed to do . . . IOW, "We the People" don't possess the right to arms because the 2nd Amendment is there; "We the People" possess the right because "We the People" never granted to the federal government, any power that would allow it to infringe, to permit any interest in the personal arms of the private citizen.

The federal and state governments certainly did have an interest in the one gun a citizen who was liable to perform militia duty and enrolled in their militia, chose to muster with when called. That's where the government interest, oversight and control begins, and ends. And that interest existed and was enforceable from powers emanating from Art I, §8, cl's 15 & 16, not the 2nd Amendment.

Quote:
Originally Posted by QuickSilver View Post
As well it should! But since neither thoughts nor prayers are likely to have any effect on bringing about such a fantastic occurrence, that frees us up to continue to lobby for socio-political change with respect to gun laws.
How does the realization that actually following the process set-out in the Constitution (to modify the Constitution to allow government to restrict the right to arms) is a false hope, . . . morph into "freeing you up" to use other means to limit or restrain a pre-existing, fundamental right of the people that is recognized and secured in the Constitution?

.

Last edited by Abatis; 09-05-2019 at 05:33 PM.
  #209  
Old 09-05-2019, 05:37 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by iiandyiiii View Post
As long as we're reading the minds of the Founders, they'd be horrified at the destructive capacity of modern small arms, and horrified as to the prevalence and body count of mass shootings in America. And probably also horrified by race-mixing, gay people in public, and the way young people dress.
Perhaps they would be horrified but they would know that the Constitution they enacted could not in any way, shape or form be construed to empower the federal government to take action against the right of the people to keep and bear arms or to restrict any of those other things.
  #210  
Old 09-05-2019, 05:48 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by Little Nemo View Post
That's the problem with originalist arguments. You can say you know what the founding fathers meant but how does anyone really know what somebody else was thinking? All we can know is what they wrote down. And the text of the Second Amendment does not have a single clear meaning.
Well, that's your first mistake . . . Reading the 2nd Amendment with any intent to discern what the right to keep and bear arms is. As SCOTUS has said in boringly consistent fashion, for going on 140+ years, that the right to arms is not granted by the 2nd Amendment, thus it is not in any manner dependent upon the Constitution for its existence.

So, not only is it illegitimate to "interpret" the words of the 2nd to limit the right, it is also illegitimate to say that the right is dependent upon a structure that is itself, ENTIRELY DEPENDENT UPON THE CONSTITUTION for ITS existence -- that structure being, the organized, Art I, §8, cl's 15 & 16 militia.

To really learn the full and complete extent and scope of the right to arms, you should be reading the body of the Constitution to see what powers the federal government has been expressly granted to have any interest in the possession and use of the citizen's personal arms. That's your answer!
  #211  
Old 09-05-2019, 06:16 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by Little Nemo View Post
I think the unorganized militia you're citing is unorganized to the point of not existing. How can you call something an organization when many of the people who supposedly belong to it aren't aware they're members or even that the organization exists? What is the supposed function of this unorganized militia? Who are its leaders? What are the responsibilities that arise from being a member? Who can activate it? And, most germane to the thread topic, how can anyone define this militia as well-regulated?
You really twist yourself into the most remarkable pretzels to not understand.

Have you ever read Federalist 29?

That explains what the Art I, §8, cl's 15 & 16 federal powers were to be, over what was obviously then, the "unorganized militia" and tries to allay fears about granting the new federal government these powers.

It explains the benefits and the significant drawbacks of actually demanding the unorganized militia to be taken from their avocations and families to undergo the necessary training and military exercise. This training was recognized to be quite a significant inconvenience if it was to actually have the corps attain the degree of expertness in military exercise that would allow them to earn the accolade of "well regulated militia".

It explains so much of what you are confused about and does it without the 2nd Amendment even being there, compounding your confusion.

Give it a read, that is if you are actually interested in having your confusion relieved.

.
  #212  
Old 09-05-2019, 06:26 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by QuickSilver View Post
Are you seriously endorsing the argument that people who own guns are part of the "Unorganized militia"? I gotta be honest, I sure hope you are.
Well, gun owners could be said to be better situated to become organized militia but owning a gun is not a requirement of being considered militia (either organized or unorganized).

Under the Militia Act of 1792, you needed to be an able-bodied White male citizen between 18 and 45 years old to be "in" the militia. Six months after enrollment and being notified of your assignment, you were required to "provide yourself with a good musket or firelock".

Providing yourself with a firearm before you were enrolled and notified or after you aged out, or now, when there is no law that calls on citizens to perform militia duty, would just be an exercise of the right to be armed, not any impressment of real or imagined militia obligation.
  #213  
Old 09-05-2019, 06:39 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by ElvisL1ves View Post
That said, can we drop the "Founding Fathers" term? It implies that the delegates to the Constitutional Convention were holy prophets of some kind rather than just men who meant well and did their human best, and were guided by God rather than their own experienced understanding of human nature.
I don't get that vibe at all, I've always made a distinction between the "founding fathers" and the"framers". The founders set out the reason for independence based on "founding" principles and the framers established the compact based on those principles . . .
  #214  
Old 09-05-2019, 07:53 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by Little Nemo View Post
I credit myself with having read more than the average person on constitutional issues. Including works by the founding fathers.
You come across as someone who has read other people's analysis of the writings of the founders. I see you preferring to read Saul Cornell's A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America and considering it to be an authoritative rendering of the founder's sentiments, in lieu of reading original sources.

Quote:
Originally Posted by Little Nemo View Post
Do you have any recommendations that will give insight into what the founders meant by the Second Amendment?
Your positions negate the founders / framers basic understanding of what rights are and contradict what they understood the Bill of Rights was and what it did.

I would recommend reading Federalist 84 and Madison's Introduction of the proposed amendments. Any review of their consideration of what rights were and especially what the dangers were in adding a bill of rights, should divest you of some of your beliefs.

Quote:
Originally Posted by Little Nemo View Post
I think it was mostly technological development. Guns used to mean one shot muskets
Do you apply your standard to any other protected means for exercising rights? Are only quill pens and Franklin Presses protected means of exercising 1st Amendment rights?

Quote:
Originally Posted by Little Nemo View Post
Issues like concealed carrying
Never a 2nd Amendment issue. Setting the manner of carry has always been and I believe will remain a power of the states. That's not to say that a 2nd Amendment secured right to carry (bear) a gun for self defense in public will not be an federally enforceable right (under the 14th); just that states will be left to decide if they will issue a permit to carry concealed or simply have unrestricted carry (open and/or concealed).

Quote:
Originally Posted by Little Nemo View Post
There also weren't any major corporations that had a vested interest in the sales of firearms
Well, there was only one corporation making gunpowder in the States in 1775, the Frankford Mill which was down the road from where I lived for 30+ years. It wasn't making enough for the war effort so we raided the British stores on Bermuda and we made a bunch of Dutch and French merchants rich selling the Revolutionary forces gunpowder made in Europe.
  #215  
Old 09-05-2019, 09:03 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by Little Nemo View Post
Quote:
Originally Posted by puddleglum View Post
As stated by George Mason, the militia is everyone who doesn't work for the government. A militia is a group of people that organizes militarily for a short period and then disbands when the threat is over. A militia can be organized by a city, state, or a private citizen. . . .
But how is this related to the Second Amendment? If the purpose of the amendment is to create a pooled of people who can be called upon for militia duty, then it's not being followed.
That the "object" of the 2nd Amendment is to perpetuate the general militia concept is uncontested. Nothing needed to be "created", by the 2nd Amendment, only protected from illegitimate government action. The 2nd Amendment has no militia implications, it has never been inspected to inform or held to direct anything pertaining to militia. In cases deciding militia issues, SCOTUS ignores the 2nd Amendment.

For the citizenry, particularly today, there is nothing to "follow" that flows from the 2nd Amendment. When there was a militia duty obligation and rules to "follow" they flowed from Congress exercising its Art I, §8, cl's 15 & 16 powers, not anything to do with the 2nd Amendment.

Quote:
Originally Posted by Little Nemo View Post
I theoretically belong to this militia force. But I don't own a gun so I wouldn't be able to show up armed and ready to fight. I've never participating in any militia training. And I'm unaware of any procedure that would contact me and tell me when and where to show up at.
Correct. Since 1903, Congress has chosen to relieve the citizens from any militia duty obligation. You don't owe the government anything.

Quote:
Originally Posted by Little Nemo View Post
And you seem unclear about what the purpose of this militia is. Is it supposed to defend the government or attack the government?
Well,when the Militia Act was being written it assumed that the governments were acting within their delegated powers and the citizen's duty was to operate within the regulations that direct the militia.

That body of armed citizens was also recognized as being a force to respond and repel illegitimate government action, especially defending states against a out of control national government. Federalist 46 addresses this specifically and it plainly assumes that the federal militia regulations have organized the citizens but circumstances have developed that demand the states defend themselves using that organization against the federal standing army:

"Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.

So Madison said in a nation of 3.5 million total souls, the armed citizen militia would outnumber the standing army by a factor of 17-20 to 1, and when all those "able to bear arms" (but like you, didn't own one), are factored in, the ratio is about 25 to 1.

Today, those ratios that Madison refer to remain damn close . . . We have 325 million total souls, the active duty and reserve "standing army" military is just under 1% of that, about 2.5 million . . . And to them are "opposed" at least 75 million armed citizens, for a factor of 30 to 1. Hey, we are a bunch of gun nuts!

See, the 2nd Amendment is working fine; all that the 2nd Amendment was ever intended to do is just maintain the people's numerical superiority over the nation's armed forces.

.
  #216  
Old 09-05-2019, 09:38 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by Little Nemo View Post
If the purpose of the second amendment is to support a militia, do people who are unable to serve in a militia (like disabled people) have the right to keep and bear arms?
Yes, as long as they are not subject to some imposed dispossession after due process.

Quote:
Originally Posted by Little Nemo View Post
Are weapons that aren't useful for militia use covered by the second amendment?
There is a long historical standard of prohibiting the possession and use of weapons that are "dangerous and unusual". Arms that were only used by ruffians and not useful in warfare can be restricted. This is a two pronged test, the arm must be dangerous to the peace and safety of the public AND not usual in civilized warfare.

This has been set-down in US law by SCOTUS that arms that can be shown to be part of the ordinary military equipment and of a type that's use could contribute to the common defense and/or, are in common use by the citizens (at the time of the Court's inspection) are protected by the 2nd Amendment. This has been the protection criteria since US v Miller (1939) and it was re-affirmed in Heller (2008).

Quote:
Originally Posted by Little Nemo View Post
If the government decides that it has enough people to man the militia as needed, can it tell the rest of the people that they can't own a gun?
No, the right to posses and use a gun is not dependent on any attachment or association with the militia.

Quote:
Originally Posted by Little Nemo View Post
Can a person opt out of militia service and if they do so, do they forfeit their right to own a gun?
States had penalties for refusing to serve and some states allowed you to pay someone to serve in your stead, but gun dispossession was never part of it.

Quote:
Originally Posted by Little Nemo View Post
Can the government store weapons at some central location and then issue them as needed when the militia is activated?
Sure. Militia companies were ordered to take a "return of militia" that recorded type of gun and caliber. Militia members were required to supply a small amount of ammo (the powder, balls, patches, flints, cartridges, etc, whatever their particular gun required) The militia company would know then, how many of each gun would be mustering and have on hand enough of those supplies to keep all the guns of the company in operational order and condition. Knowing that not all members would have "provided themselves" with an appropriate gun, it would be expected that some guns would be kept in that same storage.

Quote:
Originally Posted by Little Nemo View Post
Can the government require people to store their militia weapons at home when they're not using them for militia service?
Since men who didn't own a gun were required to "provide themselves" with one, and then they were required to muster with it and the accouterments also required, I think it would be a good bet that they would be keeping their militia arms at home.

.
  #217  
Old 09-06-2019, 06:03 AM
ElvisL1ves is offline
Charter Member
 
Join Date: Jul 2000
Location: The land of the mouse
Posts: 50,549
Quote:
Originally Posted by Little Nemo View Post
Do you have any recommendations that will give insight into what the founders meant by the Second Amendment?
Start with the rest of the Constitution. Fascinating reading; I highly recommend it.

Quote:
I think it was mostly technological development. Guns used to mean one shot muskets. Issues like concealed carrying and mass shooting didn't exist as a possibility. There also weren't any major corporations that had a vested interest in the sales of firearms.
I was asking about the change in understanding of the 2nd - are you claiming that the mass availability of technology whose purpose is mass killing actually reinforced the claim to an individual right to it? That makes no sense, especially when you consider that the nascent availability of full-auto machine guns quickly led to their virtual ban for civilian use. What does make sense is that the availability of these "technologies" spawned the desire to possess them, among those so inclined, and that desire was manipulated by the same gun lobby that also invented the individual-rights interpretation.

Quote:
Originally Posted by Abatis View Post
The 2nd Amendment has no militia implications
Except for the part that says it does.

Quote:
it has never been inspected to inform or held to direct anything pertaining to militia. In cases deciding militia issues, SCOTUS ignores the 2nd Amendment.
Miller.

Quote:
That body of armed citizens was also recognized as being a force to respond and repel illegitimate government action, especially defending states against a out of control national government.
That's pretty rich from somebody who can actually refer to Article 1, Section 8. Do you really think "suppress" means "enable"?

Quote:
See, the 2nd Amendment is working fine; all that the 2nd Amendment was ever intended to do is just maintain the people's numerical superiority over the nation's armed forces.
Let's just skip the "How's that going for ya?" part and go right to the part where you distinguish between "the people" and "the nation". To wit, Huh?
  #218  
Old 09-06-2019, 08:26 AM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by ElvisL1ves View Post
Except for the part that says it does.
The word's appearance in the declaratory clause does not mean that it has any legal weight WRT militia, that it directs or controls or mandates any structure or action or condition to exist.

Quote:
Originally Posted by ElvisL1ves View Post
Miller.
No, Miller doesn't say that. Miller didn't say anything about the man and his militia status; that is a total misreading and misrepresentation. The Miller decision was focused only on the type of gun and whether it had any military / common defense usefulness, having no evidence presented that a sawed-off shotgun did have such usefulness, the Court did not invalidate the NFA's restrictions on the possession and use of that arm. It didn't really uphold them, the Court sent the case back down, but, Miller being dead, no more legal action took place.

What I'm actually talking about is how the 2nd Amendment is non-existent in actual militia cases; Houston v. Moore, 18 U.S. (5 Wheat.) (1820), Martin v. Mott, 25 U.S. (12 Wheat.) (1827), Selective Draft Law Cases, 245 U.S. 366 (1917) and Perpich v. Dep't of Defense, 496 U.S. (1990). These are cases that the Court accepted and decided militia issues and conflicts.

The only words of the Constitution the Court examines to direct its reasoning and understanding of the organized militia is Art I, §8, cl's 15 & 16 and laws enacted under those clause's authority (e.g., The Militia Act of 1792, and state militia regulations -- in this case, Pennsylvania's).

In Houston v Moore, the Court states unequivocally (emphasis added):

"The laws which I have referred to amount to a full execution of the powers conferred upon Congress by the Constitution. They provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasion. They also 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; leaving to the states respectively, the appointment of the officers, and the authority of training them according to the discipline prescribed by Congress."
The "full execution" of militia powers is only to be found in the body of the Constitution; the 2nd Amendment has noting to offer and is ignored. There are no latent, undefined powers to be found in the 2nd Amendment that would allow it to be interpreted the way you do. Your position is a complete perversion that has no support in the philosophical foundation, historical record or legal precedent of this Republic.

While the 2nd Amendment has no legal action WRT militia, it was mentioned one time in those militia cases, in Justice Story's dissent in Houston v. Moore. I guess he thought should at least look at it to see if it said anything about militia issues, but he discovered:
"The [Second] Amendment to the Constitution, declaring that "a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed," may not, perhaps, be thought to have any important bearing."
If SCOTUS long ago decided the 2nd Amendment does not have any militia implications, no connections or any latent influence on the organized militia and really has nothing to say on the subject, why can't you accept that? More importantly, how do you justify claiming the 2nd Amendment has this influence, especially imparting militia conditions and qualifications on the people's right to arms?

Quote:
Originally Posted by ElvisL1ves View Post
That's pretty rich from somebody who can actually refer to Article 1, Section 8. Do you really think "suppress" means "enable"?
Insurrection assumes the government is legitimate and operating within the powers granted to it and the principles of its establishment. What Hamilton was discussing is the government when it is no longer operating within the confines of the Constitution and thus has lost the power to declare such action an "insurrection". If this sentiment is widely held, no other militia would respond to the fed's call to suppress their fellow countrymen.

The purpose of rescinding our consent to be governed is to take back the supreme, preemptive powers we lent to the federal government, denying it the protections of the Constitution including what you mention.

Quote:
Originally Posted by ElvisL1ves View Post
Let's just skip the "How's that going for ya?" part and go right to the part where you distinguish between "the people" and "the nation". To wit, Huh?
Can I get that in English please?

.

Last edited by Abatis; 09-06-2019 at 08:30 AM.
  #219  
Old 09-06-2019, 08:58 AM
ElvisL1ves is offline
Charter Member
 
Join Date: Jul 2000
Location: The land of the mouse
Posts: 50,549
Quote:
Originally Posted by Abatis View Post
The word's appearance in the declaratory clause does not mean that it has any legal weight WRT militia, that it directs or controls or mandates any structure or action or condition to exist.
The thread topic is what the writers meant, and how it influences current policy. Well, they fucking told us what they meant, didn't they?

Quote:
The Miller decision was focused only on the type of gun and whether it had any military / common defense usefulness
Your claim was "it has never been inspected to inform or held to direct anything pertaining to militia." Thanks for conceding your error. Thanks also for providing so many other refutations on your own.

Quote:
There are no latent, undefined powers to be found in the 2nd Amendment that would allow it to be interpreted the way you do. Your position is a complete perversion that has no support in the philosophical foundation, historical record or legal precedent of this Republic.
"A well-regulated militia ..." Oh, what's the use?

Quote:
Insurrection assumes the government is legitimate and operating within the powers granted to it and the principles of its establishment.
And the people who get to decide that are whom? Local yahoos who respond to a democratically passed law by forming gangs, calling themselves a militia, and shooting cops who try to enforce it? That's the only sort of real-world scenario that ever gets brought up.

Quote:
Can I get that in English please?
Since you insist on continuing your use of avoidance tactics: Please explain why you distinguish between "the nation" and "the people".
  #220  
Old 09-06-2019, 09:11 AM
Shodan is offline
Charter Member
 
Join Date: Jul 2000
Location: Milky Way Galaxy
Posts: 39,990
Quote:
Originally Posted by Little Nemo View Post
And let me address to you similar questions I asked Shodan. If the purpose of the second amendment is to support a militia, do people who are unable to serve in a militia (like disabled people) have the right to keep and bear arms?
Yes.

The right of the people - people in general, where "people" means the same thing as "people peaceably to assemble" - to keep and bear arms cannot be infringed. If someone has been adjudicated to have lost one or more of his or her rights, like being a felon or dangerously mentally ill, then their right can be removed - that's not what "inalienable" means - but then the due process clause kicks in. You can send someone to prison for violating the law even though there is an inalienable right to liberty; you can remove the right to vote for felons even though there is an inalienable right to vote, etc. But "you use a wheelchair therefore you cannot own a gun" isn't the same thing.
Quote:
Are weapons that aren't useful for militia use covered by the second amendment?
No, although it is a gray area (of course). If you mean things like nuclear weapons or poison gas, those kinds of inherent unsafe-to-possess weapons could be regulated in the sense of requiring them to safely stored even if that made it impractical to possess them. If you just mean automatic weapons, yes - IMO the ban on automatic weapons is a violation of the 2A.
Quote:
If the government decides that it has enough people to man the militia as needed, can it tell the rest of the people that they can't own a gun?
No, the right of the people in general to keep and bear arms cannot be infringed. The 2A doesn't say that the government can decide when "enough" people have exercised their right and therefore they can infringe on the rest. That would be like saying that two political parties is enough to elect federal representatives, therefore we can ban the Green Party.
Quote:
Can a person opt out of militia service and if they do so, do they forfeit their right to own a gun?
Yes, they can opt out (unless Congress re-institutes a draft). No, they don't forfeit their right to own a gun, because the right of the people to keep and bear arms cannot be infringed. People can opt out of their right to own a gun whenever they like, by not owning a gun. But just like people who don't vote or run newspapers retain the right to free speech, choosing not to exercise a right doesn't cause you to forfeit that right.
Quote:
Can the government store weapons at some central location and then issue them as needed when the militia is activated?
No, because the right of the people to bear arms cannot be infringed.
Quote:
Can the government require people to store their militia weapons at home when they're not using them for militia service?
No, because the right of the people to bear arms cannot be infringed.

Again, the right of the people to keep and bear arms cannot be infringed. In general, the militia clause does not create exceptions; it is the justification. The argument about non-militia weapons is almost separate - the idea that someone cannot keep and bear a handgun or a shotgun or a semi-automatic rifle is pretty much a non-starter, because those weapons are pretty obviously something that a militia could want.

Regards,
Shodan
  #221  
Old 09-06-2019, 09:30 AM
QuickSilver is offline
Guest
 
Join Date: Mar 2000
Posts: 19,048
Quote:
Originally Posted by Abatis View Post
The word's appearance in the declaratory clause does not mean that it has any legal weight WRT militia, that it directs or controls or mandates any structure or action or condition to exist.

The "full execution" of militia powers is only to be found in the body of the Constitution; the 2nd Amendment has noting to offer and is ignored. There are no latent, undefined powers to be found in the 2nd Amendment that would allow it to be interpreted the way you do. Your position is a complete perversion that has no support in the philosophical foundation, historical record or legal precedent of this Republic.

While the 2nd Amendment has no legal action WRT militia, it was mentioned one time in those militia cases, in Justice Story's dissent in Houston v. Moore. I guess he thought should at least look at it to see if it said anything about militia issues, but he discovered:
"The [Second] Amendment to the Constitution, declaring that "a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed," may not, perhaps, be thought to have any important bearing."
If SCOTUS long ago decided the 2nd Amendment does not have any militia implications, no connections or any latent influence on the organized militia and really has nothing to say on the subject, why can't you accept that? More importantly, how do you justify claiming the 2nd Amendment has this influence, especially imparting militia conditions and qualifications on the people's right to arms?
Except that lots of people who argue for gun rights, some of them in this thread, use the militia argument to justify their position. But never mind all that. You concede that this is a wrong position to take on RKBA. I'm fine with that and glad to be able to finally put it to rest.

Can we then explore your position that RKBA is a "natural right"? My understanding of natural rights in the context of the Constitution is as follows:

Quote:
The members of the Continental Congress made only two minor changes in the opening paragraphs of Jefferson's draft declaration. In these two paragraphs, Jefferson developed some key ideas: "all men are created equal," "inalienable rights," "life, liberty, and the pursuit of happiness."
It goes on at length, but does not mention anything about guns as a natural or unalienable right. Now, the Constitution mentions RKBA explicitly. But again, in the context of a well-regulated militia. So I'm trying to understand how you get from guns being an unalienable right while hand waving away the entire context in which they are explicitly mentioned.
__________________
St. QuickSilver: Patron Saint of Thermometers.
  #222  
Old 09-06-2019, 10:54 AM
Shodan is offline
Charter Member
 
Join Date: Jul 2000
Location: Milky Way Galaxy
Posts: 39,990
Quote:
Originally Posted by QuickSilver View Post
Can we then explore your position that RKBA is a "natural right"? My understanding of natural rights in the context of the Constitution is as follows:



It goes on at length, but does not mention anything about guns as a natural or unalienable right. Now, the Constitution mentions RKBA explicitly. But again, in the context of a well-regulated militia. So I'm trying to understand how you get from guns being an unalienable right while hand waving away the entire context in which they are explicitly mentioned.
Maybe I am not following you.

Your link talks about the Declaration of Independence. You can certainly use that as a way of understanding the Constitution, in fact, you probably should. But the DoI says that there are inalienable rights, that governments exist to secure those rights. So when they set up the Constitution, they were doing what the DoI said they should be doing - setting up a government to secure natural/inalienable rights for the citizens of the USA.

In the 2A, they said "we have to have a militia, therefore we need to be clear that the government has to secure the right of the people to keep and bear arms".

If you want to understand the Constitution in the context of the Declaration of Independence, that's the context, and that's what they did.

Regards,
Shodan
  #223  
Old 09-06-2019, 10:57 AM
ElvisL1ves is offline
Charter Member
 
Join Date: Jul 2000
Location: The land of the mouse
Posts: 50,549
Then it should be easy to show where else, in what other great moral or religious codes or the world or in what great works of philosophy, the right to keep and bear arms can be found.

But it just isn't there, is it?
  #224  
Old 09-06-2019, 11:03 AM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by ElvisL1ves View Post
The thread topic is what the writers meant, and how it influences current policy. Well, they fucking told us what they meant, didn't they?
Yes they did but you choose to ignore that and take three words, pluck them out and "interpret" them in bias confirming isolation, divorced from the entirety of the framer's explanations.

Quote:
Originally Posted by ElvisL1ves View Post
Your claim was "it has never been inspected to inform or held to direct anything pertaining to militia." Thanks for conceding your error. Thanks also for providing so many other refutations on your own.
And you can not understand that the "object" of the 2nd Amendment, the why the pre-existing, fundamental, never surrendered any aspect of it, right to keep and bear arms is being secured from government interference, speaks to the types of weapons that are held completely immune from government's sticky fingers.

Miller cites Aymette v. State, 2 Humphreys (Tenn.) 154, at 158,​ directly on this point, Aymette gives us an overview of why the right to arms is secured, the types of arms that are irrevocably protected and some reasoning why some types of arms are not immune from government regulation:

"The object, then, for which the right of keeping and bearing arms is secured is the defence of the public. The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution . . . As the object for which the right to keep and bear arms is secured is of a general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured 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. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution."​

This is why the Miller Court, having only heard the government's arguments because no briefs were filed for Miller's side and there was no appearance at oral arguments explaining any military usefulness for a sawed-off shotgun, said:
"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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158."​
The right is not conditioned upon a citizen's militia association, the right is protected in nearly absolute fashion for the types of arms that the citizens would use to "defend the public" -- assuming the government is operating legitimately -- and "to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution" -- if the government ever begins overstepping its limits. Both of these actions have the people operating in concert (like the right to assemble) but the right is secured individually.

If the government can decree conditions and qualifications on the right as you envision, to the point of saying the right can be restricted, how can the citizens "have these arms in their hands"? How are they "prepared in the best possible manner to repel any encroachments upon their rights by those in authority"?

Sounds to me that what you envision for the right to arms is exactly the kind of "encroachments upon their rights by those in authority" the people should be wary of and be ready to repel.

Quote:
Originally Posted by ElvisL1ves View Post
"A well-regulated militia ..." Oh, what's the use?
Please explain how the militia (not the people, a distinction you ignore) becomes "well regulated"?

Well, the framers told us, you just refuse to read it, refuse to understand it and refuse to apply it to your consideration on the subject. After explaining what the obligation of having the militia actually be "well regulated" meant to the nation, the conclusion was that requiring the militia to be "well regulated" was unrealistic and "must be abandoned as mischievous or impracticable, because (paragraph break added):
"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it.

To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured."
Well, since Hamilton is telling everyone the absurdity for reading the actual militia clauses as demanding the militia be "well regulated", do you see how stupid it is to argue the declaratory clause of the 2nd Amendment, which isn't even a complete sentence, demands it?

The final conclusion on this matter was summed up like this:
"Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year."
Quote:
Originally Posted by ElvisL1ves View Post
And the people who get to decide that are whom?
Uhhhhh . . . "We the People".

Of course the framers assumed that "We the People" would forever hold the "self-evident truths" as inviolate principles. Now we have people like you energetically arguing that those principles are not only NOT true, but based in kooky BS that has no relevance to your current enlightened condition . . . All in a thread where you present yourself as debating the framers intent. If it wasn't so absurd it would be hilarious.

Quote:
Originally Posted by ElvisL1ves View Post
Since you insist on continuing your use of avoidance tactics: Please explain why you distinguish between "the nation" and "the people".
I recognize they can be synonymous in a general sense but I sometimes use "nation" as a moniker for and in the context of the "national authority / national government" and how the interests and desires of the "nation" may not be the same and may even work against the interests and concerns of the "people".

I can see how that might lead to some confusion, noting how it is used in Federalist 29, (which I excerpt above) equating "the nation" with the militia; "But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable . . . "

I'll try to avoid conflating these terms in the future and just use, "national government" where I mean national government. Thank you.
  #225  
Old 09-06-2019, 12:13 PM
QuickSilver is offline
Guest
 
Join Date: Mar 2000
Posts: 19,048
Quote:
Originally Posted by Shodan View Post
Maybe I am not following you.

Your link talks about the Declaration of Independence. You can certainly use that as a way of understanding the Constitution, in fact, you probably should. But the DoI says that there are inalienable rights, that governments exist to secure those rights. So when they set up the Constitution, they were doing what the DoI said they should be doing - setting up a government to secure natural/inalienable rights for the citizens of the USA.

In the 2A, they said "we have to have a militia, therefore we need to be clear that the government has to secure the right of the people to keep and bear arms".

If you want to understand the Constitution in the context of the Declaration of Independence, that's the context, and that's what they did.

Regards,
Shodan
So you disagree with Abatis position (and cites) that demonstrate the weakness of the armed "unorganized militia" argument? Very well.

But you have yet to illustrate what makes guns an intrinsic 'unalienable right'. The DoI doesn't talk about it. Simply asserting "context" is not sufficient.
__________________
St. QuickSilver: Patron Saint of Thermometers.
  #226  
Old 09-06-2019, 12:33 PM
DrDeth is offline
Charter Member
 
Join Date: Mar 2001
Location: San Jose
Posts: 42,217
Quote:
Originally Posted by Abatis View Post
The word's appearance in the declaratory clause does not mean that it has any legal weight WRT militia, that it directs or controls or mandates any structure or action or condition to exist.



No, Miller doesn't say that. Miller didn't say anything about the man and his militia status; that is a total misreading and misrepresentation. The Miller decision was focused only on the type of gun and whether it had any military / common defense usefulness, having no evidence presented that a sawed-off shotgun did have such usefulness, the Court did not invalidate the NFA's restrictions on the possession and use of that arm. It didn't really uphold them, the Court sent the case back down, but, Miller being dead, no more legal action took place....

.
Not to mention, Miller being dead, there was no defense.
  #227  
Old 09-06-2019, 12:34 PM
Miller's Avatar
Miller is offline
Sith Mod
Moderator
 
Join Date: Dec 2000
Location: Bear Flag Republic
Posts: 44,391
I got better!
  #228  
Old 09-06-2019, 12:37 PM
DrDeth is offline
Charter Member
 
Join Date: Mar 2001
Location: San Jose
Posts: 42,217
Quote:
Originally Posted by ElvisL1ves View Post
...

"A well-regulated militia ..." Oh, what's the use? ...

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

SYLLABUS
OCTOBER TERM, 2007
DISTRICT OF COLUMBIA V. HELLER



Held:

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

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

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

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

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

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

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


Exactly, what's the use? It is very clear here that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." bolding mine.
  #229  
Old 09-06-2019, 12:39 PM
DrDeth is offline
Charter Member
 
Join Date: Mar 2001
Location: San Jose
Posts: 42,217
Quote:
Originally Posted by Miller View Post
I got better!
You don't look like a newt.
  #230  
Old 09-06-2019, 12:41 PM
QuickSilver is offline
Guest
 
Join Date: Mar 2000
Posts: 19,048
Quote:
Originally Posted by Miller View Post
I got better!
You're not fooling anyone, you know.
__________________
St. QuickSilver: Patron Saint of Thermometers.
  #231  
Old 09-06-2019, 12:42 PM
DrDeth is offline
Charter Member
 
Join Date: Mar 2001
Location: San Jose
Posts: 42,217
Quote:
Originally Posted by ElvisL1ves View Post
Then it should be easy to show where else, in what other great moral or religious codes or the world or in what great works of philosophy, the right to keep and bear arms can be found.

But it just isn't there, is it?
Rights to privacy? To Abortion? To have gay sex?

It's a right to protect yourself.

And it's here:


https://en.wikipedia.org/wiki/Self-d...ernational_law
  #232  
Old 09-06-2019, 12:53 PM
QuickSilver is offline
Guest
 
Join Date: Mar 2000
Posts: 19,048
Quote:
Originally Posted by DrDeth View Post
Rights to privacy? To Abortion? To have gay sex?

It's a right to protect yourself.

And it's here:


https://en.wikipedia.org/wiki/Self-d...ernational_law
I've heard of Army of One, but not Nation of One. Gotta say, clever way of justifying a pre-emptive 'war' on your neighbor for crossing your property line.
__________________
St. QuickSilver: Patron Saint of Thermometers.
  #233  
Old 09-06-2019, 01:03 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by QuickSilver View Post
So you disagree with Abatis position (and cites) that demonstrate the weakness of the armed "unorganized militia" argument?
How did you conclude that to be my position?
  #234  
Old 09-06-2019, 01:17 PM
DrDeth is offline
Charter Member
 
Join Date: Mar 2001
Location: San Jose
Posts: 42,217
Quote:
Originally Posted by QuickSilver View Post
So you disagree with Abatis position (and cites) that demonstrate the weakness of the armed "unorganized militia" argument? Very well.

But you have yet to illustrate what makes guns an intrinsic 'unalienable right'. The DoI doesn't talk about it. Simply asserting "context" is not sufficient.
It's not a "argument", it is Federal Law.


The right to defend yourself is a intrinsic 'unalienable right'.

DoI? digital object identifier?

If you mean the Declaration, then "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. "

Note that word "Life"- the right to defend yourself.
  #235  
Old 09-06-2019, 01:26 PM
QuickSilver is offline
Guest
 
Join Date: Mar 2000
Posts: 19,048
Quote:
Originally Posted by Abatis View Post
How did you conclude that to be my position?
Posts #211, #212, #215...

You appear to be explicitly stating that the RCBA is an unalienable right, separate and apart from any connection to the idea of a citizen militia. Is that an incorrect interpretation of your position? If so, please clarify.
__________________
St. QuickSilver: Patron Saint of Thermometers.
  #236  
Old 09-06-2019, 01:32 PM
QuickSilver is offline
Guest
 
Join Date: Mar 2000
Posts: 19,048
Quote:
Originally Posted by DrDeth View Post
If you mean the Declaration, then "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. "

Note that word "Life"- the right to defend yourself.
It says you have a right to "Life". Implied is the right to defend your life. Where does the DoI mention the specific means by which you must defend it, i.e. gun?
__________________
St. QuickSilver: Patron Saint of Thermometers.

Last edited by QuickSilver; 09-06-2019 at 01:33 PM.
  #237  
Old 09-06-2019, 02:21 PM
Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 82,464
Quote:
Originally Posted by Shodan View Post
Again, the right of the people to keep and bear arms cannot be infringed. In general, the militia clause does not create exceptions; it is the justification.
Okay, I'm confused as hell by what you're saying.

To reiterate my position, I believe the militia clause is meaningless and the second amendment should be read as granting an individual right.

If I'm understanding your posts, you believe the militia clause has meaning and affects the right.

But then I posed a set of question which would have one answer if the militia clause has meaning and a different answer if it does not. And all your answers are in line with the no meaning interpretation.
  #238  
Old 09-06-2019, 02:24 PM
Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 82,464
Quote:
Originally Posted by ElvisL1ves View Post
Start with the rest of the Constitution. Fascinating reading; I highly recommend it.
I've read it. I didn't find the text you apparently feel is there.
  #239  
Old 09-06-2019, 02:47 PM
Bone's Avatar
Bone is offline
Extrajudicial
Moderator
 
Join Date: Jul 2003
Posts: 10,861
Quote:
Originally Posted by Little Nemo View Post
Okay, I'm confused as hell by what you're saying.

To reiterate my position, I believe the militia clause is meaningless and the second amendment should be read as granting an individual right.

If I'm understanding your posts, you believe the militia clause has meaning and affects the right.

But then I posed a set of question which would have one answer if the militia clause has meaning and a different answer if it does not. And all your answers are in line with the no meaning interpretation.
I think part of the confusion is that you're treating the militia clause as either/or. The militia clause can be meaningful without necessarily constraining or contradicting the individual right to bear arms. This distinction is discussed in Heller. I wrote about how I think this would lay out in an older post here:


Quote:
Originally Posted by Bone View Post
Below is my take on it, though I grant it is merely my opinion and in this post I venture into speculative territory.

The scope of the 2nd hasn't been fully litigated so I think it could go either way. The way I look at the framework is that there are two paths by which a weapon can fall under the umbrella of the 2nd amendment.

Path 1: weapons that would be typical for a person in the military
This is consistent with Miller but this view has not been tested. As the prefatory clause announces a purpose of the operative clause, utilization in a military function seems to square with this understanding in Miller, and is not precluded by Heller.

Path 2:
Weapons that are in common use, and are not both dangerous and unusual
Here a reasonable guide would be the bearable arms available to police. Their need for self defense is without question and anything that enhances the self defense of these persons should be available to all persons.

Here is what Heller says about my path 1:
Quote:
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.25

...

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.
...
This is consistent with Heller and all past SCOTUS rulings. Giving meaning to the militia clause is but one avenue to fall under the protection of the 2nd amendment. But it need not be the only one.
  #240  
Old 09-06-2019, 03:44 PM
DrDeth is offline
Charter Member
 
Join Date: Mar 2001
Location: San Jose
Posts: 42,217
Quote:
Originally Posted by QuickSilver View Post
It says you have a right to "Life". Implied is the right to defend your life. Where does the DoI mention the specific means by which you must defend it, i.e. gun?
It doesn't. Dont be silly. It doesnt spell out how we get Liberty or the pursuit of Happiness either.

But when a guy comes in to your house with a gun, you use a baseball bat?
  #241  
Old 09-06-2019, 03:56 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by QuickSilver View Post
Posts #211, #212, #215...

You appear to be explicitly stating that the RCBA is an unalienable right, separate and apart from any connection to the idea of a citizen militia. Is that an incorrect interpretation of your position? If so, please clarify.
An unalienable right that can be exercised (or not) separate and apart from any connection to the idea of, or any actual structure of [government] organized militia.

Last edited by Abatis; 09-06-2019 at 03:56 PM.
  #242  
Old 09-06-2019, 04:04 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by QuickSilver View Post
It says you have a right to "Life". Implied is the right to defend your life. Where does the DoI mention the specific means by which you must defend it, i.e. gun?
Wrong question . . .

Where was the power granted to the federal government to allow it to condition the right to self defense, to allow the government to exclude the use of firearms?

Do you understand what the implications are of a right being unalienable or at a minimum, retained? That means that no aspect of the right was placed into the hands of government, it remains in the hands of the people.

This is a situation of two retained rights, the right of self defense and the right to keep and bear arms (retaining the use of arms for self defense of person and political self defense, and a myriad of other lawful uses).

Last edited by Abatis; 09-06-2019 at 04:05 PM.
  #243  
Old 09-06-2019, 08:40 PM
QuickSilver is offline
Guest
 
Join Date: Mar 2000
Posts: 19,048
Quote:
Originally Posted by DrDeth View Post
But when a guy comes in to your house with a gun, you use a baseball bat?
Am I the kind of person that keep his gun unloaded and safely stored in a gun safe, or am I the kind of person that sleeps with a loaded gun under his pillow?
__________________
St. QuickSilver: Patron Saint of Thermometers.
  #244  
Old 09-06-2019, 08:54 PM
Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 82,464
Quote:
Originally Posted by Bone View Post
I think part of the confusion is that you're treating the militia clause as either/or. The militia clause can be meaningful without necessarily constraining or contradicting the individual right to bear arms.
I don't feel I'm treating it as an either/or. In fact, one of the main reasons I feel the individual right interpretation is better is because it includes everything the militia interpretation would include and a number of other things that the militia interpretation would not include.
  #245  
Old 09-06-2019, 09:09 PM
QuickSilver is offline
Guest
 
Join Date: Mar 2000
Posts: 19,048
Quote:
Originally Posted by Abatis View Post
An unalienable right that can be exercised (or not) separate and apart from any connection to the idea of, or any actual structure of [government] organized militia.
Fair enough. But there is no "organized militia". Given sufficient stretch of imagination, one car argue there is an "unorganized militia". There isn't. We know that. But let's just say we're feeling generous in our interpretation of the armed citizenry in the modern era.

Quote:
Originally Posted by Abatis View Post
Wrong question . . .

Where was the power granted to the federal government to allow it to condition the right to self defense, to allow the government to exclude the use of firearms?
Well, we exclude some types of firearms. Without getting into state v. federal laws, some parts of the country are more strict than others with respect to gun control laws. So it's not like restrictions on firearms are anomalous.

Quote:
Originally Posted by Abatis View Post
Do you understand what the implications are of a right being unalienable or at a minimum, retained? That means that no aspect of the right was placed into the hands of government, it remains in the hands of the people.
Homer Simpson: Just because I don't agree, doesn't mean I don't understand.

Quote:
Originally Posted by Abatis View Post
This is a situation of two retained rights, the right of self defense and the right to keep and bear arms (retaining the use of arms for self defense of person and political self defense, and a myriad of other lawful uses).
I don't suppose it would influence your point of view if I were to point to democratic societies that happen to enjoy all the freedoms enjoyed by Americans, but without the special protection of rights to guns. As a Canadian living in Canada, I've never felt that my right to life was in question due to legal and cultural barriers to gun ownership. Living in America, I have to admit that I feel much less safe, in no small part due to the ubiquity of guns, low legal bar for access, and the culture that promotes it.

Perhaps the right question is...: Are you sure that the unalienable right to life is better served by everyone having access to guns, or, by only very few having access to guns?
__________________
St. QuickSilver: Patron Saint of Thermometers.

Last edited by QuickSilver; 09-06-2019 at 09:10 PM.
  #246  
Old 09-06-2019, 11:23 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by QuickSilver View Post
But there is no "organized militia". Given sufficient stretch of imagination, one car argue there is an "unorganized militia". There isn't. We know that.
Correct, the framer's constitutional militia is no more . . . and logically, I can see how you can feel that means that the "unorganized militia" is zombie without a soul and is something we should relegate to the status of burning witches and bloodletting. No matter how strongly one feels that to be true, that is a conclusion that does not reside in the realm of constitutional law right now.

Quote:
Originally Posted by QuickSilver View Post
But let's just say we're feeling generous in our interpretation of the armed citizenry in the modern era.

Generosity has nothing to do with it. The right does not exist because of any benevolence of the citizens or the government. Even if we all agree that the 2nd Amendment's purpose, to perpetuate the general militia principle is moot today, that does not impact the people's right to arms because the citizen has always possessed the right to arms and the right has always existed without reference to or reliance on the Constitution or anything established by the Constitution.

Quote:
Originally Posted by QuickSilver View Post
Well, we exclude some types of firearms. Without getting into state v. federal laws, some parts of the country are more strict than others with respect to gun control laws. So it's not like restrictions on firearms are anomalous.
Much of the disparity in federal and state laws is a vestige of the 2nd Amendment not being enforceable on the states. No provision of the Bill of Rights was enforceable on state laws until the 14th Amendment was ratified (1868) and the 2nd wasn't "incorporated" until 2010 . The legal operation of challenging state and local laws has been in a holding pattern since then and many people have many opinions why. Pretty much all agree that the pace of 2nd Amendment cases accepted by SCOTUS will pick up after Kennedy has left the Court.

Quote:
Originally Posted by QuickSilver View Post
Homer Simpson: Just because I don't agree, doesn't mean I don't understand.
But if Homer was to say that he thinks the government should amend or rescind Newton's Law of Gravity so fewer people would be injured or killed in falls, we would say he doesn't understand that a "law" can recognize a "thing" exists without one needing to believe the "thing" was created, granted, given or established by the law and worse, thinking that changing or removing words in the law would change the "thing" . . . .

Quote:
Originally Posted by QuickSilver View Post
I don't suppose it would influence your point of view if I were to point to democratic societies that happen to enjoy all the freedoms enjoyed by Americans, but without the special protection of rights to guns.
Correct.

Quote:
Originally Posted by QuickSilver View Post
As a Canadian living in Canada, I've never felt that my right to life was in question due to legal and cultural barriers to gun ownership. Living in America, I have to admit that I feel much less safe, in no small part due to the ubiquity of guns, low legal bar for access, and the culture that promotes it
Is your right to life an enforceable right in Canada? IOW, can the government be held responsible for a criminal act against you?

I know in the USA, it is a fundamental principle that no government agent can be held responsible for any citizen's personal security, even if the agent (police) are aware of an imminent threat to you.

So, essentially, there is no enforceable right to life in the USA, there is no right to be or feel safe. In the USA, your right to life is the right to defend your life and be held immune from arrest and criminal prosecution for a "justifiable" homicide.

And your "gun culture" comment puzzles me.

Quote:
Originally Posted by QuickSilver View Post
Perhaps the right question is...: Are you sure that the unalienable right to life is better served by everyone having access to guns, or, by only very few having access to guns?
Again,the right to life is really the right to defend your life because government takes no responsibility for a criminal attacking you. When one fully understands the UNALIENABLE right to life, one understands that the most brutal violation a government can do (outside of genocide or other extra-judicial execution) is to force citizens to be defenseless. It is an especially egregious violation if the government abdicates its duty to prosecute and remove criminals from society and forces citizens to face them empty-handed.

You call out a "gun culture" that promotes guns, I denounce the government's hug-a-thug culture that is nothing but a system that just processes criminals thorough a revolving door, back out into society.

.
  #247  
Old 09-07-2019, 12:10 AM
DrDeth is offline
Charter Member
 
Join Date: Mar 2001
Location: San Jose
Posts: 42,217
Quote:
Originally Posted by QuickSilver View Post
Fair enough. But there is no "organized militia". Given sufficient stretch of imagination, one car argue there is an "unorganized militia". There isn't. We know that. .. As a Canadian living in Canada, I've never felt that my right to life was in question due to legal and cultural barriers to gun ownership. Living in America, I have to admit that I feel much less safe, in no small part due to the ubiquity of guns, low legal bar for access, and the culture that promotes it.
...
Well, you can say that all you like but by federal law there is a unorganized militia here in the USA. Not in Canada, maybe. It doesnt do much, but technically it's there.

There are lots of guns in Canada, dont fool yourself.

Every farmer I know in Sask has a couple of shotguns, a .22 and likely a deer rifle or two.

Last edited by DrDeth; 09-07-2019 at 12:10 AM.
  #248  
Old 09-07-2019, 08:41 AM
ElvisL1ves is offline
Charter Member
 
Join Date: Jul 2000
Location: The land of the mouse
Posts: 50,549
Quote:
Originally Posted by Abatis View Post
Yes they did
Thank you. Next?
  #249  
Old 09-07-2019, 08:50 AM
ElvisL1ves is offline
Charter Member
 
Join Date: Jul 2000
Location: The land of the mouse
Posts: 50,549
Quote:
Originally Posted by DrDeth View Post
It is very clear here
By a 5-4 vote along partisan lines and contrary to precedent. You surely can understand how a ruling can be wrong and wrongly arrived at, can't you?

Quote:
Originally Posted by QuickSilver View Post
I've heard of Army of One, but not Nation of One.
It's called the Sovereign Citizen approach. A mark of, let's be indulgent here, a lack of seriousness.

Quote:
Originally Posted by Little Nemo View Post
I've read it. I didn't find the text you apparently feel is there.
Already cited and quoted, although to many it's inconvenient and therefore ignored.

Last edited by ElvisL1ves; 09-07-2019 at 08:54 AM.
  #250  
Old 09-07-2019, 08:53 AM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by ElvisL1ves View Post
Thank you. Next?
Talk about confirming my argument, that you guys choose to . . . "take three words, pluck them out and "interpret" them in bias confirming isolation, divorced from the entirety of the framer's explanations."!

What the framers "told us" emphatically rejects the conclusion you've come to, from reading three words and closing your eyes.

Last edited by Abatis; 09-07-2019 at 08:56 AM.
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 04:14 AM.

Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2019, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@straightdope.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Copyright © 2019 STM Reader, LLC.

 
Copyright © 2017