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How is the statement “Because a well-regulated militia is necesary to a free state, the right of the People to keep and bear arms shall not be infringed.” different from the second amendment?
I’m genuinely curious. Perhaps if you could tell me why that statement doesn’t have the same meaning as the Second Amendment, I could understand where you’re coming from.
Yes, but if you’re consistent, then the people have a “collective” right to free speech - like the Soviet Union, for example.
This was discussed a while ago, and I just searched for it for 5 minutes, but I think it was about 9-10 months ago, so it probably got deleted in the Great Server Hop. Oh the humanity.
I really wanted to link to it because we really fleshed out the reasons why the technological edge of the US military is negated by the conditions of a general rebellion.
Well, I pulled a bunch of hours on too little sleep, and I’m too tired to flesh it all out now. If I have time tomorrow, I’ll try to recreate the essence of what I said in that long lost thread.
You’re right. I had intended to make a longer argument and edited poorly. Korematsu isn’t the only strict scrutiny case, of course.
Yes. Other courts have treated Emerson as law. [U.S. v. Napier](”http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=00a0397p.06 “), 233 F.3d 394 (6th Cir. 2000) rejects the reasoning of Emerson but acknowledged that the Court held the Second Amendment to be an individual right. The Fifth Circuit has also revisited Emerson in a tangential way. They
[quoted]
(”http://www.ca5.uscourts.gov/opinions/pub/99/99-50827-cr0.htm”) from their Emerson decision that
So, the Fifth Circuit has cited the part of Emerson that establishes the Second Amendment as an individual right.
Emerson is not being treated by the courts as dicta, therefore it’s not dicta.
If Napier is really a 2000 case, it predates the Fifth Circuit’s Emerson decision. Perhaps it’s discussing the district court ruling?
That other 5th Circuit case you quote does not appear to depend on the individual rights reading; like Emerson, it decides that the Second Amendment doesn’t protect the defendant’s right to bear arms in this particular case, so it doesn’t affect the outcome whether it’s individual or collective.
I can’t be sure, however, since your links don’t work and I don’t have Pacer access.
It doesn’t. The Supreme Court rejected the notion of incorporating the BoR wholesale against the states via the 14th Amendment. Instead, they’ve considered each provision separately, accepting most and rejecting one or two. For instance, they affirmatively rejected application of the grand jury requirement against the states. The Court has never considered incorporation of the 2nd Am. against the states, but the lower courts have rejected it as a restriction on the states.
The Well-Regulated Militia Strikes Another Blow for Freedom!
In a recent road-rage incident in Northern Virginia, one driver pulled out a pistol and shot into the car he was “duelling” with on a local highway, narrowly missing the other driver’s head. Here’s one local news item about it, with links to more: http://www.wjla.com/news/stories/1202/65566.html.
The really lovely part is that the suspect, now being held without bond, is one David Keene, whose father is on the board of the National Rifle Association. I’ll bet his father is really glad that his son was armed, and therefore protected from that poorly-driven Mercedes. Every father wants his son to have a felony conviction and the invaluable experience of some jail time. If the kid hadn’t had a gun, the drivers probably would have given each other the finger, and that would have been the end of it.
This thread contains a lot of fascinating Constitutional analysis, but once in a while, it pays to glance in the direction of the real-world consequences of those analyses!
See, this is why I hate arguing with some people about this issue. Instead of acknowledging that the other person’s position is truthfully held, they cast aspersions on the other side’s honesty. See, it’s not sufficient that the other side disagrees with them, the other side has to be a bunch of liars and frauds. They don’t really believe what they say!
All those courts, all those judges, sworn to protect and preserve the constitution of the United States, they’re all lying bastards, intentionally perpetrating a fraud on the public. Right, Joe? :rolleyes:
Totally irrelevant to the resulting law. I can point to two recent Texas Supreme Court opinions where one party just failed to show up. Their substantive law remains the same.
Irrelevant. The Supreme Court certainly didn’t accept any serial number requirement in the resulting opinion. Nor would it need to, since the Court established that it is the defendant’s burden to show that the weapon bears a reasonable relation to militia service.
Once more with feeling: Entirely irrelevant. The Supreme Court decides what the law is; it does not determine facts. Whether the defendant proved that the weapon bore a reasonable relation to militia service wouls have been determined by the trial court. All the Supreme Court does is determine whether or not that’s a legal requirement at all.
You wish. (joke) Serious: it’s not dicta if it is the basis of the opinion. That was the first appellate case to do serious historical analysis of the Second Amendment.
Having read the bulk of this, it boils down to (again) “well-regulated militia” versus “right of the people.” Simple, really. There were no national guards in the 18th Century, therefore the Second Amendment did not apply to national guards. The militia was able-bodied men.
The only gun regulations applied to slaves or black people. “Well regulated” could not have meant the modern type of federal regulation as it had not been invented yet. Nor did the nascent federal government regulate firearms. There is no historical evidence that the founders wished to form a BATF.
“Militia” as a category basically overlapped with the requirements of voting. A modern equivalent would be all voters. Therefore, all voters having the right to bear arms is about right.
Any other interpretation of the amendment yields an absurd result: “the right of the people” was a mistake. Whoops. The first typo-in-the-constitution argument ever accepted.
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I’m obviously not as legally savvy as you, but it seems counterintuitive to me that whether or not there’s a defense to present counter-arguments in such a proceeding has no bearing whatsoever on the case.
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That’s my point - there was no defense there to establish that the weapon bore a reasonable relation to militia service. As the weapon did, it would have been easy to argue that it did, IF the defense was there. That would’ve assumably resulted in the ruling being upheld that it was a violation of Miller’s rights protected under the Second Amendment.
It seems to me that the only thing preventing the court from ruling that the NFA violated Miller’s rights was the positive assertion from Miller that his weapon was suitable to militia service. As it was similar to weapons employed by almost all of the modern armies of the world at the time, this should’ve been easy to prove. So the defense presenting that argument would’ve drastically altered the ruling, right?
So it seems that the lack of representation for Miller is a big issue.
Perhaps I’m misinterpreting what you meant, or not seeing some legal stuff that I’m not familiar with. But I’m attempting to argue with complete honesty - any mistake on my part is ignorance of legal issues, not deceit.
Er. Does this mean that the whole thing was about the Supreme Court determing whether or not suitability for militia purposes should be a requirement for protection under the second amendment? And that’s the only thing it ruled on? If that’s the case, then that answers my questions above, I suppose. Excuse my ignorance in the legal realm.
Btw, what was the reasoning behind the prosecution’s appeal to the SC in the first place? Do you happen to know offhand?
And that makes the analysis “the basis of the opinion”? Please, Beagle, demonstrate how the individual rights analysis in Emerson is determinative of the outcome of the case. That is, after all, the test for whether or not something is dicta.
But there were indeed formal, well regulated state militias in the 19th century. Read the 9th Circuit opinion, which does an excellent job of describing them and showing how they were on the minds of the framers. The Federalist/Anti-Federalist discussion regarding standing armies is actually quite interesting.
Pretty much, yes. The Court was also apparently asked by the government whether it was an individual or collective right, but they did not reach that question in the resulting opinion (no need to, since they disposed of the case on the weapon type issue).
This is precisely why I like the “keep and bear arms” analysis. If you’re wondering if the right enumerated in the 2nd Am. is individual or collective, you have to ask, Can an individual “keep and bear arms?” Depends on what you mean by “keep” and “bear arms.”
By one interpretation, “bear arms” doesn’t mean carry or own. It means taking part in a militia action. And “keep” means maintaining a militia, just as the People have the right to maintain post roads.
The main reason I like this line of argument is that it avoids the loggerheads of “the people” vs. “the people” that has been discussed for ages without result.
A nuclear-armed society is a polite society, you’re damn tootin’.
So in other words, no, it’s not possible to have a civil discussion of an issue with minty green. I figured as much.
Yes, that’s precisely what I said.
International “society” is nuclear armed and has avoided nuclear war but I wouldn’t exactly call it polite. The trouble with nuclear arms is that you can’t use them. In a nuclear war nobody wins.
On reflection, maybe it would be better if all arms had this drawback.
The B/R was enacted to protect the people and the states from federalism. It applied to actions by the federal govt, not the state. The 14th amendment incorporated “substantial due process,” which provided that the basic rights of the B/R shall also apply to the states. The 2d Am. is not the only one that SCOTUS has not incorporated into the 14th. There are 2 or 3 others. Before the 14th Am. was enacted, there was debate whether all of the rights should be numerated, as they are in the B/R. It was decided not to, but to make it general and let SCOTUS incorporate them piecemeal. SCOTUS has not done so as to the 2d and (as I said) 2 or 3 others.
Why do Lefties take a “cafeteria” approach to the Constitution?
For example,
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Pretty simple, practically everybody supports the 1st Am., up to and including pornography and flag burning.
Somehow, though, “the right of the people to keep and bear Arms, shall not be infringed”, gets people’s undies in a bunch. It seems equally clear to me as the 1st Am., as in SHALL NOT BE INFRINGED.
Why consider 1 “absolute” but 2 open to one’s political leaning?
That’s irrelevant to whether it’s dicta. Do you have a cite for the proposition that something is dicta until a court applies the ruling in an outcome-determinative manner? A holding is either dicta or not from the get go. A holding doesn’t exist in some sort of purgatory until it’s validated later.
You want to apply a “presumptively dicta” standard to Emerson, but all you’ve offered is your word for it. You first argued the theory that the Second Amendment holding wasn’t necessary. I then showed that there are Supreme Court cases that follow the same structure as Emerson that have never been considered dicta. You then said that the reason the Supreme Court cases aren’t dicta is because later rulings validated it, but I’ve shown that the first Supreme Court citation of Strickland was for the ineffective assistance standard that would be dicta under your theory. And Strickland is cited in every ineffective assistance case for the standard the Court established.
Now we have the Ninth Circuit and the Fifth Circuit citing Emerson as law. I’ve looked at an amicus brief arguing for rehearing en banc that treats Emerson as law. It’s law. You can argue your theory, but the real world court practice is to treat it as law. It’s not dicta. You might have a good law review article to argue it should be dicta, but it’s not dicta.
Joe, I don’t seriously believe the idea (I hope that was obvious), but I use it as a Socratic illustration. So wrap your mind around it and try it on for a few minutes, even if you disagree (which I hope you will). Redefining the terms to eliminate my part of the argument isn’t fair in Socratic land, besides which, I provide you with Webster’s definition of ordance:
1 a: military supplies including weapons, ammunition, combat vehicles, and the necessary maintenance tools and equipment b : a service of the army charged with the duty of procuring by purchase or manufacture and distributing the necessary ordnance for the army and organized militia and of establishing and maintaining arsenals and depots for their manufacture and safekeeping Ordnance had to start pretty close from scratch Time Ordnance Corps
2 : heavy firearms discharged from mounts : CANNON, ARTILLERY
It makes no distinction in the primary definition between small arms (which is what you mean), arms (which is what the constitution means), and ordnance, which is all an army’s stuff (George Carlin definition of stuff here).
If you really don’t like the nuke example, consider that I am entitled to gunpowder at a minimum, and I can rig up a Palestinian style suicide/homicide bomber jacket with a dead man switch. But because I am working out, and have a right to efficient arms, maybe I use 50 pounds of gunpowder, or maybe 50 pounds of C4. As someone else pointed out, people are very polite to me, because I do this openly. I don’t like this as much as my nuke, because it leaves me open to a sniper, whereas a nuke arrangement (also coming in at less than 100 pounds) protects me from snipers too.
In short, it protects me. The fact that accidents and unforseen events endanger a million others, is that really my problem? My driving a car endangers others. Same with assault rifles. The solution is not to curtail my rights, but to punish the real criminals.
The argument against assault rifles is that a nut can kill dozens if not a hundred quickly.