"A well regulated militia"

[minty_green]

UncleBeer: The absurdity of your position can be shown in one simple example. Would it be correct or incorrect to state the following?

The Supreme Court stated in Roe v. Wade that there a woman has no constitutional right to have an abortion.

Under your theory, that would be a correct statement because that’s what Justice White wrote in his dissenting opinion (joined by Rehnquist).

Under any rational point of view, the statement is a crock.

[2sense]

@UncleBeer

The first ten amendments, the Bill of Rights, were the what, second?, issue taken up by Congress on the very first day it assembled—March 4, 1789; the agenda was already set.

The First Congress was supposed to assemble on Mar 4 but it didn’t because only eight senators and thirteen representatives had shown up. Back in the day any conference requiring significant travel away from home was bound to start late. In this case they were unable to muster a quorum to count the electoral votes and declare Washington the President until Apr 6. ( Since we are citing that’s from Bernard Weisberger’s America Afire. ) Yet sure enough the Constitution Society is hosting a document called “Preamble to the proposed amendments, March 4, 1789”. I can’t explain it. This can’t be an official act of the House since one hadn’t been constituted yet.

Thornton Anderson ( Creating the Constitution ) states that it took from May 4 to Sep 25 to push amendments through the Congress. The Madison speech from Jun 8 you linked to shows that the matter hadn’t even been sent to committee yet. There were agendas; it’s just that a bill of rights wasn’t high on some of them. Anderson puts it like this: “In spite of the gentlemen’s agreement for amendments by which the crucial ratification in Massachusetts had been obtained, the Congress showed great reluctance to face the issues involved. It was left to Madison, almost single-handedly, to drive the chariot of amendments between the obstacles thrown up on the one side by the Federalists, who wanted no amendments, and other by the Antifederalists, who wanted far more and who could foresee that his abbreviated list ( unless itself drastically amended ) would foreclose the possibility of other amendments for the immediate future.”

*The idea of a Bill of Rights was raised during the discussions that took place in, and around, both the Federalist and Anti-Federalist. There was much text proposed to be included in the Bill of Rights, should the 1st Congress decide to put such forth for ratification. The actions of Congress in regards to adopting the actual text of the proposed Bill of Rights, was mostly to pare down the existing ideas and recommendations to something fitting the “say-more-with-less” nature of the Constitution.

This represents a fundamental misunderstanding of what happened. Obviously you didn’t follow the link I posted on the 2nd page of this thread called the “Strange Battle for the Bill of Rights”. Sure there were calls for a bill of rights… by Antifederalists who wanted to weaken the central government. This was the thrust of the numerous amendments proposed by state conventions. Madison didn’t want the government weakened. The bill of rights he drafted was not a distillation of the proposals. It was crafted in opposition to them. It was a “sanitized list” ( Anderson’s phrase ) which wouldn’t threaten all his hard work creating the strong new government.

*Further, many of the concepts contained in the Bill of Rights were formed around the Bill of Rights adopted by the English Parliament in 1689. You seem to be claiming that the idea, and the text, of the Bill of Rights formed spontaneously in the chamber(s) of the 1st Congress. *This is untrue.

There is some misunderstanding here. I thought you were maintaining that the Federalist specifically explained what was intended by the Bill of Rights which hadn’t been written yet. Of course constitutional discourse previous to the Bill of Rights can provide context.

*I have italicized the portions where Madison is talking about an armed citizenry, a militia. He believes it will be comprised of 500,000 men and their arms and that this militia will act as a counterforce against a federal standing army in the event that the federal government is usurped by tyrants. *

The Federalist is a useful constitutional document but one easily taken out of context. The letters are not explanatory but apologia. Political speech reflects the politics of the day and militia as a defense against tyranny was a truism. Madison could well be referring to it without believing the maxim himself. I don’t claim to know what Madison thought on the subject but the answer isn’t to be found in the Federalist alone.

That’s right. The information I posted earlier is in error. My apologies for any confusion it has caused, Thanks, 2sense, for giving us the correct information.

What’s this?! Someone not only conceding a point in Great Debates but actually doing so gracefully? I might faint.

Good show, UncleBeer! Let you be an example to the rest of us.

[UncleBeer]

@minty green

UncleBeer: The absurdity of your position can be shown in one simple example.

Neither of the options you present is correct. Fallacy of the excluded middle. The correct interpretation is that a majority of the the Supreme Court upheld women’s right to obtain an abortion, while several justices dissented.

And it ain’t my opinion alone. The Supreme Court itself agrees with me. All opinions written by the Justices of the Supreme Court are published under the auspices of the Supreme Court. I know what point your tying to make, minty. That only the majority opinions of the USSC are legally binding. And that’s true. Or at least it’s true until they’re overturned by a later Court, which does indeed happen occasionally. But your approach simply does not address the issue as raised in this thread. You’re stuck in a strictly legal interpretation of the argument here. Someone earlier in the this thread said the Supreme Court has been largely silent on the second amendment. And that just ain’t true. There are 92 opinions, all of which have been issued through the Supreme Court apparartus, which mention, in part or in whole, the second amendment. On the Supreme Court’s very website is says that all opinions issued through their apparatus are “official opinions of the Court.”. it’s right there in simple text—not nearly as confusing as the text of the second amendment.

Of course, you are just as aware of all the nuances here as I. Why you choose to obstinately argue a point that doesn’t address the real issue here though, rather welcome the reality of the situation, I cannot say.

You might also wish to note that book I linked earlier, the one that sparked this instance of your obstinancy, was co-authored by two attorneys, noe of who has actually argued a second amendment case before the Supreme Court. I know you like to wallow in your superior legal knowledge and this is the source your stubborness to refuse to consider anything from a standpoint other than a strictly legal one, but in fact, as is apparent from that book, not all of them agree with your interpretation. And I’m willing to be that the credentials of the co-authors of that book are at least as authoritative as yours.

2sense, you are correct, I haven’t read your link on the second page. I’ll take a look at it before I attempt another response to you. I also have brought some additional materials with we to the office today that I want to quote from, os it may be later in the day here before I have anything composed. It is curious that although Congress was delayed from its first meeting there appear to be documents from that day.

@2sense

What’s this?! Someone not only conceding a point in Great Debates but actually doing so gracefully? I might faint.

Thanks. And I hope my peevish response to minty just above doesn’t provide the smelling salts to arouse you from your faint.

[minty_green]

This is too stupid to continue.

[blowero]

@UncleBeer

Evidence for which assertion?

I’m saying that Madison’s original text was changed, and appears to have been changed in order to de-emphasize the individual-rights aspect of the amendment. You assert that such is not the case. On what evidence do you base that assertion?

Ultimately, a compromise version, one significantly reduced in word count, was reached and put before the states for ratification. This is the text that appears in the second amendment today:

But it didn’t JUST reduce the word count, it changed the order of the clauses, and connected them. You haven’t addressed this point.

Unfortunately, when that’s all that one looks at, it’s not entirely clear today that the authors were referring to a private right to arms.

That’s because they weren’t. You’re assuming your conclusion. You’re hand-picking the opinions of some of the authors, and assuming they stand for everyone’s opinion. The intent of the Second Amendment was to protect against a federal standing army that could conceivably abuse its power. Just because Madison may have believing in individual gun ownership doesn’t mean that his personal belief is reflected in the final wording.

Ya gotta go back and look at everything that was considered and the rationale for all that stuff.

Yeah, but you’re hand-picking what you look at.

His interest in the Bill of Rights was limited using it to persuade the last remaining Anti-Federalist holdouts that they’d have some guarantees and assurances that the proposed federal government wouldn’t have a free hand at usurping the rights the people and the states enjoyed under the Articles of Confederation.

So where is there any mention of hunting or personal self-defense in there? The point was to have militias to protect against an overly-powerful standing army. Personal self-defense had nothing to do with it.

[blowero]

@erislover

blowero, I frankly can’t explain my previous irritation. So let me apologize for my behavior. But here’s where it started. It began with this statement by youMy response was that it wasn’t the obvious conclusion. It is a conclusion, and one that the courts seemed to be leaning towards, but it isn’t a major point. It seems strange to me that they would bother with the second part if the first part was complete as such–if they only wanted to allow armed militias outside of federal control, there is no need for the second part at all. If all they wanted was to permit individual ownership, there is little reason for the first part. In a vacuum, I’d suggest that they meant for no federal control of arms per se (probably guns, not bombs and cannons, but again, we’re in a vacuum), and no regulation of the obvious use of those guns: non-federal militias.

I’m sorry, I just can’t continue discussing this with you. I explained at least 3 times what I meant in that first post, and you just aren’t getting it. You’re still misreading it in the same way you did the first time. Sorry to do this, but I’m not wasting any more time with you in this thread.

[erislover]

Well, if that’s the case, that’s the case. I would be interested to hear your collective and narrow interpretation of the first amendment, but if you feel I don’t understand your point then I cannot force you to continue.

[UncleBeer]

I’m saying that Madison’s original text was changed, and appears to have been changed in order to de-emphasize the individual-rights aspect of the amendment. You assert that such is not the case. On what evidence do you base that assertion?

Because “well regulated” didn’t mean to the authors what you think it means. “Well regulated” simply meant “well functioning.” Here’s a contemporary use of the term from the 1789 charter for the University of North Carolina:

[quote]
Whereas in all well regulated governments it is the indispensible duty of every legislature to consult the happiness of a rising generation . . ."

[quote]

It is simply not possible for “well regulated,” as used in that charter holds the meaning you are trying to give it.

Also, Madison’s proposed text isn’t the original that was considered. Several states, when holding their conventions to ratify the Constitution, passed along to the Congress about to form, more than 100 proposed amendments. In these somewhere is the original text proposed. Then Madison offered his as a compromise. Because of the rules adopted when the Constitution was to be sent to the states for ratification, no changes were allowed to it. But the states and the people approved the Constitution on the understanding that it would be shortly amended. That’s why we see all these proposals for a Bill of Rights. Many states already had Bills of Rights in place for their citizens and quite reasonbly expected the same from the about to be formed government.

Other points that indicate a private right to arms ownership:

1) 2/3 of the states, at the time the Constitution was being debated, statutorily protected the *private[/] right of their citizens to keep and bear arms - for whatever purpose.

2) Here’s what Anti-Federalist Richard Henry Lee wrote in his pamphlet An Additional Number of Letters From the Federal Farmer to the Republican, published in May of 1788.

“. . . to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them . . .”

**3)**Don B. Kates has stated in the Michigan Law Review (1983)

The ‘militia’ was the entire adult male citizenry, who were not simply allowed to keep their own arms, but affirmatively required to do so. . . . With slight variations, the different colonies imposed a duty to keep arms and to muster occasionally for drill upon virtually every able-bodied white man between the age of majority and a cut-off age. Moreover, the duty to keep arms applied to every household, not just to those containing persons subject to militia service. Thus the over-aged and seamen, who were exempt from militia service, were required to keep arms for law enforcement and for the defense of their homes from criminals and foreign enemies. (italics in original)

Thus you can see that I’m not cherry-picking data that would fit a preformed conclusion. The great body of “The People” at that time in history, not only had private arms and quite logically expected to be permitted to retain them, but in many case were also required to own guns.

On what evidence do you base your assertion that the 2nd amendment refers to a collective right? Because a collective right certainly wasn’t the situtation at the time.

[UncleBeer]

Because “well regulated” didn’t mean to the authors what you think it means. “Well regulated” simply meant “well functioning.” Here’s a contemporary use of the term from the 1789 charter for the University of North Carolina:

Whereas in all well regulated governments it is the indispensible duty of every legislature to consult the happiness of a rising generation . . ."

It is simply not possible for “well regulated,” as used in that charter holds the meaning you are trying to give it.

Also, Madison’s proposed text isn’t the original that was considered. Several states, when holding their conventions to ratify the Constitution, passed along to the Congress about to form, more than 100 proposed amendments. In these somewhere is the original text proposed. Then Madison offered his as a compromise. Because of the rules adopted when the Constitution was to be sent to the states for ratification, no changes were allowed to it. But the states and the people approved the Constitution on the understanding that it would be shortly amended. That’s why we see all these proposals for a Bill of Rights. Many states already had Bills of Rights in place for their citizens and quite reasonbly expected the same from the about to be formed government.

Other points that indicate a private right to arms ownership:

1) 2/3 of the states, at the time the Constitution was being debated, statutorily protected the *private[/] right of their citizens to keep and bear arms - for whatever purpose.

2) Here’s what Anti-Federalist Richard Henry Lee wrote in his pamphlet An Additional Number of Letters From the Federal Farmer to the Republican, published in May of 1788.

“. . . to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them . . .”

**3)**Don B. Kates has stated in the Michigan Law Review (1983)

Thus you can see that I’m not cherry-picking data that would fit a preformed conclusion. The great body of “The People” at that time in history, not only had private arms and quite logically expected to be permitted to retain them, but in many case were also required to own guns.

On what evidence do you base your assertion that the 2nd amendment refers to a collective right? Because a collective right certainly wasn’t the situtation at the time. Neither by tradition, nor by law.

[UncleBeer]

Shit. Damn. And hell.

[ElvisL1ves]

:shrug: The Supremes decided it back in the Thirties. The interpretation in *Miller * is the law of the land. Period. Any other statement, even in concurring opinions, is just opinion, worth no more than your own.

You can claim they got it wrong all you want, but so fuckin’ what? You don’t like it; don’t waste your time here; go lobby or petition to get an amendment started to fix it. Are you doing that? Why not? Do you think venting your frustration here has any effect on the reality that frustrates you so, any effect at all?

[erislover]

You’re aware of the concept of a debate, Elvis1ives, surely.

[BobLibDem]

The Federalist Papers are indeed interesting reading, however, they are completely irrelevant to the issue of the Second Amendment. The personal opinions of James Madison and Alexander Hamilton are, however interesting they might be, just their own opinions. Nor do draft versions of the Amendments themselves have any particular legal standing or significance.

What matters is how the Second Amendment has been consistently interpreted by the courts in case law. The principles that have been consistently upheld are 1) that the right to bear arms is only protected as related to the "well regulated state militia and 2) that this Amendment only limits the power of the federal govenment.

The watershed Supreme Court ruling is, of course, United States v. Miller, 307 U.S. 174 (1939)

The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

This ruling was affirmed in LEWIS v. UNITED STATES, 445 U.S. 55 (1980)

These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have “some reasonable relationship to [445 U.S. 55, 66] the preservation or efficiency of a well regulated militia”)

These rulings have been used as precedent by Circuit and District Courts in many cases, including:
Gardner v. Vespia, 252 F.3d 500 (1st Cir. 2001)

As Gardner acknowledges, the Second Amendment does not confer an absolute right to bear arms. United States v. Miller, 307 U.S. 174, 178 (1939) (holding that Second Amendment does not invalidate limitations on firearms that do not have a reasonable relationship to a well-regulated militia).

United States v. Napier, 233 F.3d 394 (6th Cir. 2000)

It is well-established that the Second Amendment does not create an individual right. Since Miller, “the lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right.” Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995). The Ninth Circuit stated in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), that it was following its sister circuits in holding that “the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen.” Id. at 101. The Eleventh Circuit held in United States v. Wright, 117 F.3d 1265 (11th Cir. 1997), vacated in part on other grounds, 133 F.3d 1412 (11th Cir. 1998), that the Second Amendment protects “only the use or possession of weapons that is reasonably related to a militia actively maintained and trained by the states.” Id. at 1273.

Although the Supreme Court noted in Staples v. United States, 511 U.S. 600 (1994), that “[t]here is a long tradition of lawful gun ownership by private individuals in this country,” this language does not suggest an individual right to gun ownership under the Second Amendment and it does not infer that lawful gun ownership means unregulated gun ownership. The Supreme Court clearly reiterated in Lewis v. United States, 445 U.S. 55 (1980), that legislative restrictions on the use of firearms do not trench upon any constitutionally protected liberties. Id. at 65 n. 8.

Every circuit court which has had occasion to address the issue has upheld § 922 generally against challenges under the Second Amendment. See United States v. Chavez, 204 F.3d 1305 (11th Cir. 2000); Gillespie v. City of Indianapolis, 185 F.3d 693, 709 (7th Cir. 1999) (finding § 922(g)(9) does not violate Second Amendment); Fraternal Order of Police v. United States, 173 F.3d 898, 906 (D.C. Cir. 1999) (rejected challenge to § 922(g)(9) by police fraternal organization, since the statute “does not hinder the militia service of all police officers, only of domestic violence misdemeanants whose convictions have not been expunged”); United States v. Waller, 218 F.3d 856 (8th Cir. 2000) (“it is now well-settled that Congress did not violate the Second Amendment” in enacting 18 U.S.C. § 922(g)(1)); United States v. Smith, 171 F.3d 617, 624 (8th Cir. 1999) (Second Amendment is inapplicable to conviction under § 922(g)(9)); United States v. Mack, 164 F.3d 467, 473 (9th Cir. 1999) (18 U.S.C. § 922(k) did not violate the Second Amendment right to bear arms); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5 (7th Cir. 1974) (§ 1202(a)(1) does not violate the Second Amendment); United States v. Johnson, 497 F.2d 548 (4th Cir. 1974) (§ 922(g) does not violate the Second Amendment); Cody v. United States, 460 F.2d 34 (8th Cir. 1972) (§ 922(a)(6) does not violate the Second Amendment).

United States v. Milheron, 231 F. Supp. 2d 376 (D. Me. 2002)

Only the Fifth Circuit Court of Appeals has held that the Second Amendment imparts an individual right to keep and bear arms. Emerson, 270 F.3d at 232. All other Circuits to face the question have interpreted the Supreme Court’s decision in United States v. Miller, 307 U.S. 174 (1939), to endorse a collective right to bear arms, linked to the preservation of a well-regulated militia.

And finally, Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999)

[42] The Second Amendment provides 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.” U.S. Const. amend. II. The link that the amendment draws between the ability “to keep and bear Arms” and “[a] well regulated Militia” suggests that the right protected is limited, one that inures not to the individual but to the people collectively, its reach extending so far as is necessary to protect their common interest in protection by a militia. The Supreme Court’s jurisprudence on the scope of this amendment is quite limited itself, and not entirely illuminating. Sixty years ago, however, it did reject a Second Amendment challenge to an indictment charging the defendants with the unlawful transport in interstate commerce of an unregistered, double-barrel, twelve-gauge Stevens shotgun with a barrel length of less than eighteen inches. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816 (1939). In the absence of “some reasonable relationship” between the gun and “the preservation or efficiency of a well regulated militia,” the Court concluded, “we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Id. at 178, 59 S.Ct. at 818. See also Lewis, 445 U.S. at 65 n. 8, 100 S.Ct. at 921 n. 8; Konigsberg v. State Bar of Calif., 366 U.S. 36, 49 n. 10, 81 S.Ct. 997, 1006 n. 10 (1961); Adams v. Williams, 407 U.S. 143, 151-52, 92 S.Ct. 1921, 1925 (1972) (Douglas, J., dissenting); Quilici v. Village of Morton Grove, 695 F.2d 261, 270 (7th Cir. 1982), cert. denied, 464 U.S. 863, 104 S.Ct. 194 (1983); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290 n. 5 (7th Cir. 1974) (cited with approval by Lewis, 445 U.S. at 65 n. 8, 100 S.Ct. at 921 n. 8); United States v. McCutcheon, 446 F.2d 133, 135-36 (7th Cir. 1971). Whatever questions remain unanswered, Miller and its progeny do confirm that the Second Amendment establishes no right to possess a firearm apart from the role possession of the gun might play in maintaining a state militia. United States v. Wright, 117 F.3d 1265, 1271-72 (11th Cir.), cert. denied, 118 S.Ct. 584 (1997), vacated in part on reh’g on other grounds, 133 F.3d 1412 (11th Cir.), cert. denied, 119 S.Ct. 217 (1998); United States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir. 1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614 (1993). As such, the United States reasons, the right protected by the Second Amendment is indeed a collective rather than an individual one, and for that reason Gillespie has no standing to attack the Gun Control Act on Second Amendment grounds. See San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1124-25 (9th Cir. 1996); Hickman v. Block, 81 F.3d 98, 102 (9th Cir.), cert. denied, 519 U.S. 912, 117 S.Ct. 276 (1996).

The other fundamental issue is that the Second Amendment only puts a restriction on federal, rather than State governments.

The watershed Supreme Court case for this matter is United States v. Cruikshank, 92 U.S. 542 (1875)

The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constituton of the United States.

It was further affirmed in this case:
PRESSER v. STATE OF ILLINOIS, 116 U.S. 252 (1886)

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state

And again in this case:
MILLER v. TEXAS, 153 U.S. 535 (1894)

We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and, even if he were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts.

The Second Amendment prevents the federal government from disarming well-regulated militias. Period. The Second Amendment does not prevent state or local governments from regulating or even banning firearms. Nor does the Second Amendment grant individuals a right to bear arms. Many state constitutions do indeed do just that.

Finally, a quote from Supreme Court Chief Justice Warren Burger. Although purely anecdotal and of no legal significance, I think this quote from a man who knows the Constitution pretty well is relevent:

[The Second Amendment] has been the subject of one of the greatest pieces of fraud, I repeat the word “fraud,” on the American public by special interest groups that I have ever seen in my lifetime. Now just look at those words. There are only three lines to that amendment. A well regulated militia – if the militia, which was going to be the state army, was going to be well regulated, why shouldn’t 16 and 17 and 18 or any other age persons be regulated in the use of arms the way an automobile is regulated?

I don’t want to get sued for slander, but I repeat that [the NRA has] misled the American people and they, I regret to say, they have had far too much influence on the Congress of the United States than as a citizen I would like to see – and I am a gun man. I have guns. I’ve been a hunter ever since I was a boy.

Former Chief Justice Warren Burger, The MacNeil/Lehrer NewsHour, December 16, 1991

[erislover]

@erislover

You’re aware of the concept of a debate, Elvis1ives, surely.

I’m aware of your username, surely. :smack:

[ElvisL1ves]

I certainly am, but what Uncle is attempting is nothing of the kind. A *debate * involves honestly *considering * what differing views are presented to you, not simply denouncing them, and those who present them. If one is so sure one is right that that does not need to be done, then it’s a waste of time to talk about it instead of acting on it. If he declines to do either, then he belongs in the Pit.

[erislover]

Ah… gotcha.

[Dewey_Cheatem_Undhow]

@ElvisL1ves

:shrug: The Supremes decided it back in the Thirties. The interpretation in *Miller * is the law of the land. Period. Any other statement, even in concurring opinions, is just opinion, worth no more than your own.

You can claim they got it wrong all you want, but so fuckin’ what? You don’t like it; don’t waste your time here; go lobby or petition to get an amendment started to fix it. Are you doing that? Why not? Do you think venting your frustration here has any effect on the reality that frustrates you so, any effect at all?

So…all that pre-Lawrence discussion about Bowers v. Hardwick was just a big waste of time, eh?

On preview: and the folks in those discussions were just as strident in their viewpoint as UncleBeer is on this one.

Having said that, minty is dead-set right about properly labeling opinions. When you say “the Court found X,” you’re talking about the majority opinion. Other opinions should be labeled by individual justice, e.g, Justice Scalia in his concurrence found Y." To label non-majority opinions as the action of “the Court” is almost criminally misleading.

[Captain_Amazing]

@UncleBeer

Because “well regulated” didn’t mean to the authors what you think it means. “Well regulated” simply meant “well functioning.”

The problem is that “regulated” could mean that, but it could also mean “controlled”, the way it does now, as you can see, from Federalist 29:

If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security

So, in Federalist 29, at least, regulated means controlled.

[UncleBeer]

@BobLibDem

What matters is how the Second Amendment has been consistently interpreted by the courts in case law. The principles that have been consistently upheld are 1) that the right to bear arms is only protected as related to the "well regulated state militia and 2) that this Amendment only limits the power of the federal govenment.

Er, well, yeah. Except I made the contention earlier,at least tacitly, in post #98, that the courts have interpreted this amendment wrongly. In which case examining the origins, full history, and opinions of the authors, of the Bill of Rights is most certainly germane to this discussion.

@Dewey Cheatem Undhow

When you say “the Court found X,” you’re talking about the majority opinion. Other opinions should be labeled by individual justice, e.g, Justice Scalia in his concurrence found Y." To label non-majority opinions as the action of “the Court” is almost criminally misleading.

Right. I know very well that minty was speaking to a strictly legal definition. I have said that already. Problem is, the contention to which I was responding “The Supreme Court has shyed away from this subject . . .” isn’t a narrowly legal one by any means. I took that assertion as a blanket statement that the Supreme Court has said little about the 2nd amendment in any fashion. And that is wrong. The Supreme Court, meaning the members of it, have had plenty to say. I think I’ve made this, or a rhetorically equivalent, statement previously, but I’m happy to amplify it here. If there’s an objection to that, then please make it. Otherwise we’re just going over the same ground.

@Dewey Cheatum Undhow

On preview: and the folks in those discussions were just as strident in their viewpoint as UncleBeer is on this one.

Really? I’ve been striving to avoid stridency and overly confrontational language in this thread, except when replying to minty perhaps. My apologies to anyone who feels this way. It sincerely was not intended.

@Captain Amazing

The problem is that “regulated” could mean that, but it could also mean “controlled”, the way it does now, as you can see, from Federalist 29:

Yep. Which means there’s ambiguity. And room for everyone to argue their viewpoint. Which is why we are all here. No matter what ElvisL1ves may believe, I’m not trying to force my opinion on the rest of you. I’ve presented substantial and convincing (to me) evidence which I believe supports the individual rights view; I have considered opposing evidence and it remains unconvincing to me. Including the opinions of the various courts. The quite clear matter of fact is, that the people, in the late 1700’s, had the right to possess private arms for whatever reason. And the evidence presented—in this thread and indeed anywhere else that I’ve seen—that the Second Amendent didn’t/doesn’t recognize that reality, and in fact sought to overturn it, just isn’t, to me, persuasive.

[UncleBeer]

Here’s another significant quote revealing the right to arms was historically a private one.

Thomas Jefferson - from his Notes on the State of Virginia - 1781. He describes the (state) militia (of Virgina) thusly:

Every able-bodied freeman, between the ages of 16 and 50 is enrolled in the militia. … In every county is a county lieutenant, who commands the whole militia of his county. … The governor is the head of the military, as well as the civil power. The law requires every militia-man to provide himself with the arms usual in the regular service.