UncleBeer, If I understand correctly your position is that both U.S. v. Miller and United States v. Cruikshank should be overturned. With the number of times these have served as precedents and the near unanimity of the courts in upholding these rulings (Emerson being the sole notable exception), this seems quite unlikely.
ElvisL1ves:
Well said!
Unfortunately, if this isn’t the biggest crock of intellectual hypocrisy, then I’d be hard-pressed to find a greater example.
Elvis, listen to your own nuggets of wisdom and heed them well, for I’ve never, ever, not once, seen you concede a single, solitary point in a Gun Control Debate.
I’ll admit to some occassionally specious reasoning from the pro-gun crowd here in GD; almost invariably, it is a relative newbie sprouting the superficial propaganda of the NRA without having done their research and homework.
This is not the reasoning you will get (and have received!) from the more established and more firmly grounded crowd you have been mostly dealing with these last three pages; reasoning, backed up with historical precedence and firmly documented, to which we receive so much “piffle” for response.
Dewey: Uncle isn’t saying that those 92 instances were actions of the court; they were 92 instances where the Second Amendment had been mentioned in a Supreme Court case. Period. To illustrate the point that the courts have not been silent on the issue.
The judgements and cites themselves were NOT mentioned by Uncle; he was attributing no value to them one way or another, only that they existed, as refutation to the assertion that the higher courts were silent on the issue of the Second Amendment.
They have indeed been silent on the issue of a definitive ruling one way or another. I have seen some that mention the Second Amendment and certainly seem to imply by inference an individual right; and just as often I have seen the opposite.
The term “schizo” has been applied to the higher courts on the whole individual/collective rights issue, and, sadly, that seems to be the one and only truism.
You have “never” etc. pointed out where I’ve been wrong, either in facts or in reasoning. We’re not taking any votes here, not trying to agree on any compromise we can all live with, we’re establishing points of fact and reasoning.
An intellectual argument contrary to the Supreme Court’s findings is possible, sure - but remains academic. You might as well try to explain how the reasoning in Brown v. Board of Ed. is wrong, and therefore that the ruling was “undefinitive”.
The law is settled. The reality is what it is. The strenuous insistence to the contrary that is common to those of your persuasion, can certainly be dismissed out of hand. What are *you * doing to get that amendment under way, fella?
What point is that? That the courts have *complied * with the Miller interpretation ever since it was handed down? That they’ve ruled in other gun-rights cases according to it? Sure the Second Amendment has been mentioned in passing in those cases. What’s the argument there?
A definitive ruling having *been * made, there is no *need * for further comment.
Not in court, there isn’t.
I don’t think you’re trying that, because you know you cannot “force” anyone to agree with you. Your attempts at what you think to be “persuasion” continue to be strident rants, unfortunately.
A lot of things have changed over two and a half centuries, a lot of rights bestowed and removed. The FF’s knew the world would keep changing and that the Constitution would need amending. Nowhere can you point to anything definitive that shows they thought they were making rules that would last for eternity, or that later generations should be bound by the morality of the day. We are not a religious community like the Amish or Hasidim, bound by the customs and social rules that applied at the time and place of its founder; we’re a democratic republic.
Once again, for us, in the Twenty First Century, that just doesn’t matter. We live today under today’s laws and today’s standing interpretations of the Constitution as provided by the courts, and if we don’t like some or all of it today we have ways to change that today. Arguments derived from the extinct realities of the distant past “just aren’t (to us) persuasive.”
Elvis:
Brannon P. Dennigan
Can The Simple Cite Be Trusted?
A position that I have argued for several years before having heard of this guy. I wonder: now that an actual lawyer has said these words whether or not minty will acknowledge the simple truth contained therein: Miller didn’t hold a collective right view; is far from definitive; and that subsequent cases have misquoted Miller, and badly, in a tragedy of unjustness.
Well, I’m not supporting the greedy bastards in the National Rifle Association any more, that’s for starters. Nor The Second Amendment Foundation, either.
I’ll get back to you with the name, address and telephone number of an organization worthy of supporting as soon as I have located one.
P.S.: Don’t hold your breath.
When have I ever claimed that Miller holds that the Second Amendment guarantee is a collective right?
What I will tell you is that Miller is certainly consistent with the collective rights view than the individual rights view. After all, Miller indisputably establishes that the introductory “militia” clause places a substantive limitation on the guarantee of the second clause, i.e., guns that aren’t suitable for the militia are not covered by the guarantee.
Personally, I hold to an individual rights reading of the amendment. Like the 5th Circuit in Emerson, I see no other way to read “the people.” But I also read the introductory clause as a limitation on the scope of the guarantee in the second clause, and construe the two together.
But regardless of whether I agree or disagree with the courts, I just have to chuckle at your claim of “a tragedy of unjustness.” Hey, lighten up already. 
Now, on to your cite:
They would have been laughed out of the courtroom by the justices. You don’t “put on evidence” at the Supreme Court. Evidence is admitted in a trial court, not in an appellate court. On appeal, you just argue about what the law is and whether the existing evidence is good enough to support whatever your legal position is.
I would this Denning guy with a big ol’ grain of salt if he thinks you can put on evidence at the Supreme Court. Besides, the whole “what if” argument is inherently silly. The fact is that the defendants didn’t show up in the Supreme Court, and the Court issued the opinion that it did, thereby making it the law of the land.
Minty: C’mon, now. How can you make an argument without citing fact and precedent? The very fact and precedent that would have shown (been evidence that) the government’s case was a load of unmitigated hogwash?
The argument of existing facts as to the nature of the militia (it’s makeup and armaments) would have most likely blown the government’s case clean out of the water, a fact acknowledged in the 1st Circuit’s decision in U.S. v. Case, IIRC, when they acknowledged the Miller decision (quite correctly) in that the militia, being made up of the body or mass of citizenry, would most likely be armed to a great variety of weaponry, like the “commando units” they cite.
The greatest misapprehension in the “collective rights” view is that the militia for the greatest time in our history was made up of ordinary people armed with ordinary equipment: rifles, pistols, shotguns and blades of every type, length, caliber, etc.
It is only after the organization of the National Guard, codified and acknowledged in Federal Law as “the organized militia,” that any such notion as a “collective view” can even begin to be entertained; and it is still, even in light of “organized” and “unorganized” militias (10 USC Ch. 13, p.113), as deceitful and ingenuous as ever it was conceived.
While Perpich v. Department of Defense held (correctly, IMHO) that the State Guard and National Guard are essentially one and the same (to wit: a Federal agency), it in no way invalidates the concept or legal fact of the unorganized militia; what a previous poster has referred to as “gun-totin’ yahoos.”
Being one of those yahoos, I will acknowledge this: the forming, organizing and equippping of a “National Guard” was not in and of itself a bad thing; given the advancing technical nature of organized warfare, Congress and the Executive branch were well within their duty, their obligation, to form such a body.
But this formation, IMO, did not obviate the unorganized militia in fact; merely practice. And any such attempt to do so in fact should be addressed seriously as a Constitutional matter, head-on and forthright, than this steady erosion and often willfull misinterpretation of Miller, of a right guaranteed, in plain english to those who have a care to read the precedents with honesty and without preconception, of our right as citizens to keep and bear arms.
In fact, an honest interpretation of Miller (as opposed to this half-assed mess we currently have) would lay the National Firearms Act, much of the Gun Control Act and The Crime Omnibus to nines, for they curtail the “keeping and bearing” of such arms that would be of value, to quote Miller,"…of rendering effective the Militia."
Would such an expansive view be harmfull to society? Given the evidence at hand (the “roaring twenties,” the violent crime associated with organized crime), I would say that it is altogether probable. Thus, I have nothing against The National Firearms Act in principle.
But in execution, that act, along with subsequent amendments and Acts, have rendered such a state of affairs that decent citizens have been tarred with the same brush and uneasy apprehension as that of criminals. For criminals are dangerous enough with semi-auto “assault weapons;” what would they be like re-armed with “Tommy Guns,” or even M-16’s and M-60s?
Thus, a rational set of policies, applied evenly across the nation, would be (and to some extent have been) necessary; would additional policies be of even greater efficacy? Possibly, so long as they do not throw out the good in order to weed out the bad. And thus the crux of the matter is finally arrived:
ON the one hand, we have citizens who live in fear of criminals and random criminal acts, or of oppressive governemnt, and who seek to arm themsleves rather than be victims; they are labeled by the pro-control crowd a “paranoid nut-jobs.” Given the nature of society and history of governements, I cannot see how this derogatory mind-set is honestly arrived at.
AND on the other, we have citizens who do not wish to be the victims of gun owners, legal or otherwise, by accident or design, and who wish some mechanism of law to be firmly in place to stop the good from crossing the line into being the bad (here the term “paranoid” may also be equally applied by their adversaries, IMO).
This is not an unlaudable goal; however, given the diverse nature of humanity, particulalry in our polyglot United States, it may well be unattainable to any practical extent without the other, armed half of society forfeiting their rights entirely.
Now: as to the wording of the amendment in and of itself, I can only apologize for being unable to currently locate the cite I am searching for. It is essentially a linguistic analysis of the Second Amendment by an English professor, specializing in colonial language, in which he asserts that the preamble (A well-regulated militia…) is the subjective clause, and that the true operative clause is “…the right of the people to keep and bear arms…”.
I will recall that this professor is not a paid consultant of either side of the debate, owns no firearms, and had no particualr leaning on the issue of gun control, one way or the other. I will continue to look for this article, but will be leaving town for the next week on Sunday, and my time may be limited.
As to the quoting of Hamilton and Federalist 29, I can only say this: Hamilton was a Federalist, the true antecedent to “Manifest Destiny” and our current NeoCons. I believe Hamilton didn’t give a good goddamned one way or another about the militia, and simply wrote #29 to sop the Anti-Federalists. His true aim is made readily clear in subsequent paragraphs when he says:
Money talks, militia walks. And that’s what I think of Alexander Hamilton and Federalist #29. Small wonder he wound up on one of our currencies.
I found it!
But first, my retraction (my memory ain’t what it used to be): the article is written by J. Neil Schulman, in which he cites Professor of Journalism Roy Copperud (retired), formerly of U.S.C.
You misunderstand what constitutes a “fact” for purposes of the legal system. Facts are proven by evidence that is admitted in the trial court, either at hearing or at trial. (Depending on the situation, courts also deal with facts as they are alleged by the parties, without having to resort to evidence in support of those facts–mostly when determining whether the parties are even entitled to try to prove their set of facts. We’ll ignore that for present purposes.) Whether a sawed-off shotgun is suitable for militia use is a matter of fact that would have to be proven by formal evidence–perhaps testimony by a commander in the National Guard, perhaps through the admission of similar firearms that are actually used in the military. No evidence of suitability means the point is not established.
So guess what happens if you don’t offer any evidence of a point in the trial court? That’s it. It’s over. You don’t get to supplement the record on appeal, you don’t get to tell the Supreme Court that the Iowa National Guard equips all of its troops with sawed-off shotguns, you don’t get the justices to determine for themselves that sawed-off shotguns are wonderfully apt for militia use. You just lose.
Could we kindly drop this sort of rhetoric about “honest” interpretations of ambiguous texts? Because the unmistakable implication of that statement is that any interpretation other than your own is dishonest, and that’s not terribly conducive to reasonable discussion of the issue.
And on a similar note:
Persecuted much? I do not recall any previous poster to this thread throwing around such terms. So why would you choose to wallow in them?
scotandrsn:
In all honesty, scot didn’t actually call “the militia” a bunch of gun-totin’ yahoos himself; and I actually liked his proposal
And I failed to mention this, from Blalron:
:checking the color of my neck:
Nope; standard Caucasian. SPF 45 is my friend; and my knees are such that I don’t do much running. A brisk walk is about all my knees (and ankles, too, for that matter) will abide. Running with a gun is kind of like running with scissors; occasionally necessary, but not wise.
And are you really going to make me wade through a search of previous gun control threads for the term “paranoid nut-jobs”? I’ll do it if I must…
Persecuted? Nah. Just grossly misunderstood. Besides, the unorganized militia can hardly be faulted for being, er, well, unorganized, now, can it?
So, if I take your definition of “fact” (and I indeed do), then how is it, in arguing Miller in the highest court, that the government could even put forth an argument about the suitability of a sawed-off shotgun as an argument of fact in front of the court when it had not previously done so in the trial court? Never mind that no one was there to refute such a claim in the first place.
If they had advanced such an argument in the trial court, and it was found…wanting… for lack of the proper legalese, then how could it have been admitted at the higher court?
And does the Supreme Court often, now and then, here such one-sided cases? It would seem to me that that gives a governement, with near unlimited funds and manpower, a decidedly and decisively unfair advantage over the poor (often literally) schmucks who wind up cross-wise to their agendas and policies.
I’ll check this back tomorrow, but I will most likely have little time to reply for the next week or more.
Ah. I almost forgot this, minty:
So, if the Miller decision was/is ambiguous (your words; and a point I may grudgingly concede at some future point, but not just yet), can we not then reasonably say that definitive collective-rights rulings citing Miller in subsequent Circuit and Appellate Court rulings are quite possibly proceding from false notions?
I address this question not to you (for you have made your personal opinion distinct from your legal opinion quite clearly), but others here who hold the collective-rights view, personally and otherwise, quite dear and correct.
If anyone holding the collective-rights view can honestly admit, at least as far as Miller and subsequent rulings citing Miller and all its ambiguity is concerned, it may not be entirely as correct as some would wish… then I believe that an honest debate may be had here.
Until then, I yield :Michael Corleone voice: nothing.
But that has nothing to do with the point at hand. We were discussing the fact that the order of the clauses was changed, and that a semicolon, which you said yourself serves to make two concepts seperate, was changed to a comma, which connects two concepts. You have completely changed the direction of our discussion.
If that’s the case, then it seem rather disingenous of you to quote Madison’s proposed text alone, as though it ought to be the definitive writing with which to interpret the Second Amendment. That’s pretty much what you did in your previous post.
Even if that’s not exaggerated, it still means that 1/3 DID NOT.
Actually you are cherry-picking. You just quoted only people who believed in gun ownership for everyone. But not everyone held that opinion. You didn’t provide quotes from any of them. Isn’t that the definition of cherry-picking?
I don’t think you’ve proven that at all. Some colonies allowed gun ownership, and some colonies had restrictions on gun ownership. Some people believed in a right to personally own a gun, and some didn’t. This idea that colonial militias were just any Joe who happened to own a gun is absurd. Militias were organized, had a chain of command, kept records, gave pensions, etc. Any attempt to say otherwise is revisionist history. And there’s a great deal of evidence to suggest that the Second Amendment was crafted to protect states’ rights against a federal standing army, not to say “Gee, everyone gets to have a gun”.
[QUOTE=ExTankSo, if I take your definition of “fact” (and I indeed do), then how is it, in arguing Miller in the highest court, that the government could even put forth an argument about the suitability of a sawed-off shotgun as an argument of fact in front of the court when it had not previously done so in the trial court? Never mind that no one was there to refute such a claim in the first place.
If they had advanced such an argument in the trial court, and it was found…wanting… for lack of the proper legalese, then how could it have been admitted at the higher court?[/QUOTE]
The problem is that Miller and the other defendant didn’t put on any evidence in the trial court, and on a matter for which they bore the burden of proof. Having failed to do so in the trial court, they cannot put on evidence in the Supreme Court in an belated attempt to establish the fact of militia suitability on appeal.
You can argue the facts and what they mean all you want on appeal, but it has to be supported by evidence or the court will be required to reject your argument.
“Your honors, my client did not commit this murder.”
“What evidence in the record supports that contention.”
“None. We didn’t put on any evidence. But I have here an expert report that says it’s impossible for him to have committed the crime, and here are three witnesses who can conclusively establish his alibi, plus a confession of the real perpetrator.”
“Affirmed.”
No. One can certainly cite Miller in suppport of either the collective or individual rights model. It is susceptible of being interpreted in support of either position. So long as Miller is not cited as having already determined the issue, there’s nothing wrong with showing that it supports one position or another. And while I think there may be one or two old opinions that mistakenly (isn’t that so much nicer than “dishonestly”?) cite Miller as determining the right is collective, the overwhelming weight of collective-rights opinions acknowledge that Miller is not conclusive on the issue.