If you admit that the word could be and was used with a different meaning in the 18th century, why are you so convinced that the hypothesis presented by Una could not be the correct one and yours is? Either usage seems equally likely to me, although Una’s usage seems more in line with the content of other papers written by the Founding Fathers. If your defense is that those writings are not the law of the land and the BoR and the interpretations that the Supremes have made of it over the years is, then you are absolutely correct, however these other writings may lead reasonable people to conclude that the SCOUS is gasp wrong in this particular instance. If Una’s interpretation accurately reflects the FF’s intentions in the language they used for the Second Amendment, than the Tenth ( see below ) knocks all efforts at gun control into an unconstitutional cocked hat.
And I would counter that Amendment IX and X clearly demonstrate that it was the Federal Government that was being limited by the BoR, not the rights of the people. ( Article IX-The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Article X-The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.)
What’s very strange is that I can’t see a point that you’ve brought up, either above or in post #103, that I failed to address. That makes this statement a complete non sequitur.
U.S. v. Miller says nothing about National Guard, or a 2nd. ad. right reserved to the states exclusively. Read it and show me where it says that.
Where you, minty, and the ACLU get the “collective right” interpretation is from Cases v. U.S. and more specifically U.S. v. Tot, both of which are lower court rulings that far exceeded the language of Miller, a Supreme Court ruling. Since it hasn’t been taken up by the Supreme Court, and has even been contradicited in other Circuits, it is far from the “hashed and settled” matter you, minty, and the ACLU claim it to be.
Perpich, a Supreme Court ruling, clearly acknowledges the Organized/Unorganized interpretation of the composition/structure of the Militia, IAW with the Dick Act as embodied in 10 USC 311.
Since the case dealt specifically with the National Guard (the Organized Militia) it only touched briefly on the Unorganized Militia, and didn’t hold forth upon them; IOW, it addressed the issue before the Court, which is what a good Judiciary does.
Note: I have never claimed as a matter of law or fact that the National Guard is not the Militia; such a claim would be ludicrous since I’m citing the very law that says that it is in support of my argument. I have maintained as a matter of personal opinion that the National Guard may as well no longer be the militia as originally envisioned, since Perpich affirms the near-total federalization of the National Guard as the Organized Militia.
What you and minty keep ignoring (I guess inconvenient facts just get edited right out of your conscious minds) is the Unorganized Militia, affirmed by the Dick Act as “those member of the MIlitia not members of the National Guard or Naval Reserves.” Perpich indeed confirms this interpretation:
The National Guard and Naval Reserves are the mIlitia; they are not the sole and exclusive Militia; the Militia is also the those people who are not members of the National Guard and Naval Reserves.
What’s driving me batshit to the point of rectal bleeding is your’s and minty’s insistence that MIller settled the matter that the Militia is the National Guard, is solely the National Guard, and that the right to keep and bear was reserved solely to the National Guard as the State Militia, when there’s no mention of such anywhere in the wording of Miller, but which is affirmed in one lower court ruling, and then which has been contradicted by not only at least one other Circuit, but by the Supreme Court as well in Perpich.
What’s driving me batshit ot the point of a brain aneurism is your’s and minty’s insistence that ordinary gun control laws are some form of “organizing, disciplining, and training” of the Militia which constitutes being “well regulated,” when there is no such legal precedent to claim such a thing. If it is an expression of opinion, you have never in this thread clarified it as such.
What’s driving me batshit to the point of gouging my eyeballs out with a dull, rusty spoon is minty’s adhereance to Miller a ssome form of good and just ruling when any honest person would acknowledge that Miller is a flawed, one-sided ruling, being that there was no arguments made before the Court for the defense; the U.S. Attorney(s) showed up, made an argument, and the Court ruled:
Any reasonably competent attorney could have amply demonstrated that sawed-off or short-barreled shotguns were (and are still) part of ordinary military (and law enforcement) equipment. The Court that ruled on Miller may have been limited by rules of evidence and such (and actually turned out a fairly decent ruling given the circumstances) doesn’t mitigate the fact that it is bad law to base a ruling on such a one-sided argument.
As I stated before, lower courts that ruled based on MIller could have done so easily within the narrow ruling in Miller; Case v. U.S. (a concealed carry permit denial challenge to the 2nd. ad.) and U.S. v. Tot (an N.F.A. challenge to the 2nd. ad.) could have upheld their denials and convictions (resepctively) on the basis that concealed carry of a handgun is not within the ordinary purview of ordinary military forces, and that silenced weapons are not part of ordinary military equipment.
Within such rulings, no creditable argument could be made either against the Miller ruling, or against the 2nd. ad.
Gun control, to my mind, is not, in-and-of-itself, a bad thing; or in-and-of-itself an infringement of the 2nd. It is designed to keep arms out of the hands of those citizens who have demonstrated an inability to be entrusted with the keeping and bearing of arms. If you read the BATF Form 4473 (an affidavit that must be completed and signed at every transaction conducted by a dealer), you’ll see that many of those restricted classes of people are almost exactly the same classes of people who may be excluded from militiary service in the regular military forces, as well as the Guard and Reserves.
However, when gun control reaches the point of banning firearms such as handguns (clearly used by the military as sidearms) and Assault Weapons (close facsimiles of military weapons), it is [has become] an infringement of the 2nd. amendment.
Right after you read my posts 109 and 119. Note that I didn’t say reread. The Dick Act did the renaming, and the *Maryland * and *Perpich * rulings confirmed it.
minty already pointed out that the Circuit Scoreboard is 8-1 collective. Not “circuits”, but “circuit”. Since, as you note, the Supremes haven’t chosen to rule on the lower court cases, they are in fact the law. Again, you don’t have to like it, but it’s reality.
Then what the hell was that screaming about “The People Is The Militia!” a little earlier?
Yep, that’s the fact. Settled law. Deal with it. Your opinion just doesn’t matter unless you’re going to act on it. That’s been mentioned several times here, but all you’ve done is complain that the world isn’t to your liking.
See minty’s posts. Not “1”, all the other 8.
Not that I’m trying to steal minty’s thunder here, but he’s pointed that out too - the interstate commerce clause provides the legal foundation for responsible gun laws. They do not have to derive from the need to regulate a militia; that requirement is a specific limitation on the government’s right/responsibility in the matter.
minty again has also made clear that he knows it’s flawed, but only in leaving some loose ends on a correct interpretation. The defense gets to argue the law in appeal, and did so, even if they could not present facts then. Once again, it’s the law of the land, like it or not. How many times do you need to read that before it sinks in?
Fine. Glad you agree, even if only to a point.
What part of “That’s just too goddamned bad, soldier, now get off your ass and do something about it” don’t you understand?
While Ex-Tank’s posts tend to be a little more strident than yours and Minty’s, he always includes links, cites and points of reference, you and Minty do not. His cites also back up the points that he is making. You and Minty repeatedly state your opinions and only your opinions like they actually mattered to anyone but the two of you. Tell me, on a board dedicated, at least in name, to fighting ignorance, which side is actually making it’s case factually, and which side is pissing on my head and telling me it’s rain? Based upon the above, if I was undecided on the issue, which side should I believe?
IOW, you’re being Pwn3d, son.
And if you’d actually read the Miller decision instead of citing a paraphrased interpretation of it from a pro-gun-control website, you’d see that there’s nothing in the actual text of Miller to support a collective-rights interpretationof the 2nd. Your posts #109 and 119 does nothing to dispel this simple fact.
The reality is that the Courts are beginning to wake up to the erroneous misinterpretations of Miller in subsequent rulings by other Circuits, as evidenced by the preponderance of legal scholarship showing that the “collective rights” interpretation is not only wrong, but was fabricated by a three-judge panel in an Appeals court in 1942.
That would be “are the militia.” Becuase of your refusal to acknowledge that the Militia is more than solely the National Guard. Because the People are also the Militia, by the Dick Act and and the vast majority of constitutional legal scholarship affirming the individual right interpretation.
No, I’ve been bludgeoning you about the head-and-shoulders with facts to show you that the world isn’t what you say it is, but is in fact a skewed vision, created by one single Appeals Court that quoted words from Miller which aren’t there, and ignored established legal and Constitutional scholarship in view of their own [mis]interpretation.
I’ve ben shoving in your face facts that this near-unanimous view, held erroneously for so long, and challengened abundantly by modern legal scholarship, and is beginning to be challenged in at least one Federal Court, is wrong in the plain sense that any citizen can see and read for themselves, should they choose to do so.
Each derived stare decisis I believe from U.S. v. Tot, the first Court to set forth the collective right view, from a complete fabrication of not only the MIller ruling, but their own legalistic “junk science,” as found by implication in the 5th Circuit in Emerson, and now quoted as “compelling” by a few other Circuits.
The Commerce Clause isn’t a blank check for Congress to do whatever it pleases; it still has to square with other provisions of the Constitution, and I believe that at least one current Supreme Court Justice has held forth that view. The Commerce Clause is adequate to regulating manufacturing standards, to be sure; such as when Remington was sued for a faulty trigger assembly which allowed one of their rifle models to discharge even with the safety engaged.
Whether or not the Commerce Clause gives Congress the right to outright ban safe, Constitutionally protected manufactured items is far from settled.
I’m not arguing the ruling in Miller, you jack-ass, but the lower court’s collective treatment of Miller. That one lower court (and more legal scholars than you can shake a stick at) has come forward with a disagreement of these lower court rulings regarding Miller does give me some credibility in asserting that the “collective rights” interpretation is pure bunk.
Well, then, The End must be nigh.
What part of “Life Member of the NRA,” and activist, and conscientious and informed voter don’t you understand?
Careful where you point that shotgun. I have consistently maintained that I believe the Second Amendment is properly construed as an individual right (though a right constrained in scope by the introductory clause), and not a collective right. When I describe what the law is–and it is a collective rights interpretation everywhere but the 5th Circuit–do not mistake that for my personal interpretation.
I have not in any way ignored the “unorganized militia.” Indeed, I have addressed it in this very thread, to the effect that “unorganized” ain’t “well-regulated,” and hence is clearly outside the scope of the “militia” contemplated by the Second Amendment.
Not me. Never said it. You must be confusing me with some other breath mint. Or you’re pulling it out of your ass.
Not me. Never said it. You’re pulling it out of your ass.
My point, as opposed to the one you’re making up on my behalf, is defining the scope of the “well-regulated militia,” since its scope is directly relevant to the scope of the Second Amendment (under both the Miller case and my own personal individual-rights reading).
To hell with good and just. I speak not of justness and goodness and happy candycane-flavored unicorns. I speak of what the law is, and the law is what the Supreme Court said it is. Whatever value judgment you choose to ascribe to the law is your own problem, not mine.
Really? I keep up with these issues to the extent possible, and I am unaware of any federal circuit case other than the 4-year-old Emerson case from the 5th Circuit (the “1” in “8-1”). If you have some more recent case law that you believe supports the individual rights position, I’d love to see it.
And for the edification of Weirddave, a collection of federal circuit court of appeals cases ruling that it’s a collective right:
Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942).
Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), cert. denied 516 U.S. 813.
U.S. v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied 426 U.S. 948.
Stevens v. U.S., 440 F.2d 144 (6th Cir. 1971).
Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999).
United States v. Hale, 978 F.2d 1016 (8th Cir. 1992).
Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), cert. denied 516 U.S. 813.
Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), cert. denied 540 U.S. 1046.
United States v. Oakes, 564 F.2d 384 (10th Cir. 1977).
United States v. Wright, 117 F.3d 1265 (11th Cir. 1997).
And just to be fair, here’s the complete list of circuit court cases ruling in favor of the individual rights interpretation:
United States v. Emerson, 270 F.3d 203 (5th Cir.2001), cert. denied, 536 U.S. 907.
Weirddave: I, and minty, have been discussing the law, the fact, the reality. You, and ExTank, have been discussing what you wish the law was instead. Your cites are to similar wishful thinking, and are of no more relevance to the law, the fact, the reality than Ann Coulter’s despite their voluminousness. Got it?
minty already showed that statement to be false, although no doubt Weirddave finds it convincing. Even if it were true, it still ain’t the law, the fact, the reality.
The preponderance among your own cites, that is. But the law is what it is. Your claim that it’s simply wrong is worth exactly zero in court. Try it sometime.
More assertions of your own desired view as fact, statutes and case law to the contrary notwithstanding. Ho hum.
So your claim that it doesn’t makes anyone else a “fucking liar” etc.? Clue time: Ah, hell, just read minty’s stuff.
So you’re back to one lower court, not your previous claim of multiple ones? That little fact shouldn’t be too hard to get right, but you chose to tell a cheap lie instead in the hopes of convincing yourself and the Weirddave’s of the world. You’re still asserting, notwithstanding, that 1 vs. 8 constitutes a groundswell of some sort that is leading to an impending glorious new day? Here’s a hint: The lower courts know Miller is final. They’ve been ruling accordingly. The Supremes haven’t intervened in those cases. That too is the law, the fact, the reality.
That shit is all talk, all whining, all useless. What are you actually *doing * to get the amendment through?
You know something Minty? I was about to say “Thanks, that’s exactly what I was looking for, do you have links to the actual decisions, so I could read them for myself?” See, all I have now is your saying that X case says Y. Considering how you and Elvis have already misrepresented the decisions of the court in this thread, I want to read them for myself. I thought you were making some pretty good points until Ex-Tank posted links to the actual decisions and it became clear that what you were saying was so much wistful bullshit. Then I got to your last sentence and it became clear that you’re not interested in any form of rational debate, you just want to beat your chest and proclaim that OZ the great and terrible knows all.
Elvis, it’s so good to see you back in your usual form. I love how you’re not budging from your usual pattern of doing one thing and then claiming that it’s your opponent that is doing it. “have been discussing what you wish the law was instead. Your cites are to similar wishful thinking, and are of no more relevance to the law, the fact, the reality than Ann Coulter’s despite their voluminousness. Got it?” This is so you. It’s such a perfect description of your posting style that you should adopt it as a sig. The only problem with that is that it mentions cites, and you never provide any, likely because you pull 99% of your posts straight out of your ass. Ahhh, well, I still think this could be reworked into a perfect sig line for you, lemmie know if you’re interested and I’ll work on modifying it.
No, IOW, you haven’t proven your case beyond “This is what it is because I say so”. The other side has done a marvalous job of backing up what they say with facts, cites and refrences. You haven’t provided shit. On further review, I do believe you’re partially right: Someone here doesn’t have an argument remaining but doesn’t have the integrity to admit it. However, since this is your standard modus operandi, I’m not surprised. If there are two words we’ll never hear mentioned in the same breath with ElvisL1ves, they are integrity and honesty.
Jeez, I gave you the citations. Is Google broken this morning? In point of fact, I know that Silveira, Emerson, and Miller are widely available for free online. I have no idea about the others, and I’m not giving away my Westlaw password.
Bite me. When you wander into a thread in which the participants are discussing source matter with which they are already personally familiar – and I assure you, ExTank is already familiar with the case law, given our past go-rounds on these issues – don’t be a whiny crybaby about how I haven’t given non-participants cites to the source materials.
You wanted cites. You got cites. Go forth and learn before you whine again.
Psssst. Dave, this is the book you’re looking for if you want an interpretation of cases that have gone before the Supreme Court in which the justices have mentioned the 2nd amendment in their opinions. YOu don’t have to take minty’s and Elvis’s words at face value. Independent sources are available.
Well, the the book does include 44 entire unedited opinions. And the other 48 cases mentioned contain citations taken directly from the opinions. But where’s the fun in that? You offer up your interpretations and expect us to accept those, but when a source offering an alternative explanation is presented, you tell us to go directly to the opinions themselves? Seems kinda, umm, dichotomous, no?