Thanks for your thoughts guys… err… people.
[Pete Townsend] I’m a boy, I’m a boy, but my mum won’t admit it. [/Pete Townsend]
Maybe this is totally tangential, and I doubt it can be settled by a question of law, but…
In my opinion, if there is a law prohibiting a federal law about private gun ownership (the feds can’t make such a rule) but the states are allowed to run free, and then a 2/3 majority of states pass such a law, then something seems to be wrong here. That is, but for the fact that a federal law cannot be passed, all teh requirements for a federal law are met. Further, suppose such support translated into all fifty states, independently (ostensively), passing a law regarding firearms such that no individual citizen can own one.
In what sense does this differ from a federal law outlawing individual possession?
Totally silly question, I know, but I struggle to understand the implications of rights reserved to the states, or to the people, when the consequences would be the same. If we can all resolve to give up the right, then why say that there can be no federal law?
The difference would be pretty obvious if you lived in one of the states that still permitted private gun ownership, don’t you think? It’s simply a matter of our federal system of government. States are permitted to do all kinds of things that the federal government cannot, which permits the states a lot of flexibility in tailoring legislation for their local conditions. If the Second Amendment permits the states to do that with firearms (hey, who said Massachusetts has to have a militia at all?), and it ends up that two thirds of them decide against private gun ownership, that’s well within the states’ discretion to do so.
I wasn’t originally “getting at” anything when I posed the question - once you explained further what the exactly trial was about in scope, that question was a natural one to ask.
No need to get hyperbolic now.
What semiautomatic rifles are you concerned about punching through an engine block at 300 yards?
The National Guard is ultimately under the control of the US army. They prosecute under federal laws on their bases, and are armed from federal sources.
You can’t seriously assert that these are State militias, created for the purpose of guarding against federal power, can you?
The way you’d phrased it earlier, I thought you were just asking me to repeat what I’d already said.
Still, your latest post reveals the same misconception about the court system. A trial is a procedure whereby the courts determine (usually via a jury) what the facts of a case are. Did the defendant shoot the victim? Did Soda Pop Corp. tell Beer, Inc. that it would sell it 5,000,000 gallons of spring water for $.02 per gallon? Trials do not determine what the law is.
Facts. Law. Two separate things.
Legislatures determine what the law is. Courts determine what the law is. Juries do not determine what the law is. And, most important for our present purposes, appellate courts (including the Supreme Court) do not determine what the facts are.*
Thus, the Supreme Court could not and did not determine the facts that that would show whether Mr. Miller’s shotgun was within the scope of the Second Amendment. The Court could and did, however, determine what the scope of the Second Amendment was with regards to the Mr. Miller’s shotgun, the burden of proof on the issue of a weapon’s constitutional states, etc. Namely, the defendant hadn’t bothered to show any facts capable of demonstrating that the shotgun bore a reasonable relation to a well regulated militia, so there was no constitutional protection from his conviction for Second Degree Charlton Heston.
It’s actually quite interesting that the Court put the burden on the defendant to show the weapon is within the scope (i.e., reasonable relation to well regulated militia) of the 2A–it essentially makes the amendment an affirmative defense. Since Miller did not resolve the individual/collective issue, it’s unclear whether a defendant would also have to prove that she/he is someone within the scope of the amendment, whatever that scope may be, legally speaking.
Maybe, maybe not. The states are certainly entitled to abidicate their authority to the feds if they wish. If the the state national guard isn’t within the Second Amendment’s “well regulated Militia” ain’t , then it sure ain’t anybody else, because the states haven’t told anybody to show up on the town common for drill instruction anytime in the last century and a half.
[sub]*Okay, in very rare instances, the Supreme Court determines what the facts are, particularly in litigation where two states are suing each other. This is because the Constitution says so, is exceedingly rare, and has no application at all to the current discussion.[/sub]
Hardly surprising, since there never was a “trial”. The original “case”, if you can call it that, was nothing more than the district court judge quoting the second amendment, declaring the statute unconstitutional, and dismissing the indictment against Miller (and his partner Layton). The case was then kicked up to the Supremes, but Miller was murdered before arguments. So, it’s not very honest to say that “the defendant hadn’t bothered to show any facts”, since he never had the opportunity to do so. Unless you think his estate was required to keep paying his lawyer to keep his corpse out of jail…
The case is what the case is, Max. If they’d known Miller was dead instead of just hiding out, it wouldn’t have gone forward in the S. Ct. They didn’t know, it went forward, and the principles were established.
Unless I’m wrong (and I am never wrong! 
) the SCOTUS has ruled that the National Guard is, in fact, the modern militia.
The guard was formed out of various state militias and is still nominally under the control of the governers, not the President.
But I agree that that was hardly the framers’ intent - they never imagined a world where weapons were so expensive that it was impossible for each locality to provide their own troops. (Can you imagine Podunk, Pa having to foot the bill for a squadron of fighters?)
Although I don’t have time to fully read the case, I believe such a holding can be found in Maryland v. United States, 381 U.S. 41, 85 S.Ct. 1293 (1965):
However, Perpich v. Department of Defense (1990) says that Guard members lose their state militia status when called to active duty by the federal government and become a part of the federal armed forces exclusively. In fact, the Guard appears to be under federal jurisdiction and seems to be basically on loan to the states only as long as it’s expedient for the Fed.
So the state militia is invalidated by a call-up of the National Guard, which is in fact under Federal jurisdiction. How exactly does that demonstrate a “collective right” of the State to have its own militia, if that militia is dissolved by a federal order?
Or is that dicta? 
No, it’s more an example of how the feds have used the tax system to subvert states’ rights. The set it up so that the vast majority of tax revenue flows to them and then dole the cash back out to the states - making them dependent on the fed for things like organizing, training and maintaining the national guard.
Lost track of this thread, but I’d like to say something to Minty regarding my earlier post:
Just because the law is set a certain way, sir, doesn’t mean that it should be. You of all people should know this better than anyone… hence my earlier reference to slavery.
I understood your point. I merely rejected the comparison to the extent that it sought to compare gun control and slavery.
Nah, they would have gone forward regardless. Remember, it was the prosecution’s appeal, not Miller’s. The feds had an interest in arguing that their statute was in fact constitutional, whether the other side was represented or not.
No, if you read what I quoted, section © says
Additionally - if anything, the national guard might be a descendant of organized militias, but as far as I know, federal code still outlines what constitutes the unorganized militia - and a select militia, especially under federal control, like the national guard, certainly doesn’t replace it.
I wouldn’t consider it replacing state militias for that matter. They’re trained with federal money, often using federal equipment, and can be called into federal service - not exactly the preservers of state integrity over potential federal abuse.
Too late to add anything substantive to this, but I would like to say:
Anthracite: great rant! Assclowns, indeed! Inflatable ones, no less. That was good for a nosefull of Coke and an extended coughing spasm.
Uncle, Spoofe, Max, Tracer, Joe, Johnny, Sensor: Howdy! And an especial congrats to Max! Just what we need: another lawyer!
At least I know whose side you’re on: your clients! (Beware of Sarah Brady’s bearing cashier’s checks for large sums of money).
Again, the Arms/Ordnance distinction in a nutshell:
Weapons designed and meant for one person, and one person only to use, are arms. They are protected under the Second. The 9th Circuit is squirrel nut zippers.
Weapons designed and meant for several people, usually acting as a team, are ordnance. They are not protected under the Second.
Yes: some advances in technology have begun to blur this distinction, such as grenade launchers capable of being mounted to the standard Assault Rifle (the M-16/M-203 combo).
In these cases, two usefull criteria apply: call them the “Intended Area of Effect,” and the “Intended Target” criterias. Note that these are wholly fabricated terms I have concocted to illustrate the difference between Arms and Ordnance.
The first, the Intended Area of Effect, has to do with whether the weapon is designed to effect a single point target (such as an individual enemy soldier) or an area limited mostly by the explosive content of the weapon’s projectile. For instance, the 40mm M-203 grenade launcher is, in the hands of the average infantryman trained in its use, quite capable of dropping a 40mm grenade right on top of a single person, conceivably as far away as 200 meters.
But its intended design is to drop that projectile into the middle of a squad of enemy infantry, injuring or killing them all. As such, it is Ordnance.
The second, the Intended Target, is usefull when considering such things like man-portable anti-tank rockets and rocket-propelled grenades, as well as shoulder launched anti-aircraft missiles. In these instances, the intended target is not a discrete person, but rather enemy materials, be they machines of war (tanks and airplanes), or simple earthen bunkers, or any other building or structure that a member or members of an enemy force have occupied as cover and/or concealment.
Can these weapons conceivably be aimed at and hit a single person? Yes. But it is not their intended design; not how they were meant to be employed. As such, they are Ordnance.
The really blurry line is modern Assault Rifles, as they are usually capable of fully automatic fire, which is real usefull under the Intended Area of Effect rule, a point that Mr. Simmons points out quite correctly, albeit somewhat rhetorically.
However, trends in U.S. military thinking have pulled back from the “Spray-'n-Pray” mentality developed during the Vietnam war, and the recent incarnation of the M-16 is capable of, at best, a 3-round burst. This is an effective compromise between Area Effect (extremely limited by having only three round to spread around any given area) and Point Target shooting.
Dave can feel justified in defining a suitcase nuke as “Arms” all he wants, even though no military or legal precedent that I know of supports such an assertion.
And to the person several pages back who mentioned that people owning machineguns was a bad, bad thing, I have some bad news for you: private ownership of machineguns is generally legal in the U.S.A.
In the only recorded instance of a violent crime being committed with a legally owned machinegun, it was committed by a police officer. Pillar of the community; one of the select “classes” of people that quite a few gun-banners feel should be allowed unrestricted ownership and possession of firearms.
I know that one single incident is hardly a datum that can be extrapolated into a generality, so I don’t hold the entire law enforcement communty responsible for the act of that particular police officer.
I just wish that the gun-control community would follow the same example. :rolleyes: