ElvisL1ves, I suggest you answer my question as posted, if you want to continue this. There is no question that real militias, outside of the National Guard and controlled by the states exist (vist my link). The question posed to you was “do official state militias that currently exist need to be controlled by the federal government?” A “yes” or “no” will suffice.
You are correct that the National Guard assimilated the state militias that previously existed; the point is that once the National Guard was created the states relinquished the complete control that they had over those militias before 1903. Because, of this, states such as Alaska determined they wanted their own militia, whose duty was to defend that state and it alone.
Regarding my “inability” to deconstruct your arguments, I think it’s pretty clear that the majority of the posters here support my statement that it is ridiculous to assume that the people’s Bill of Rights was intended to grant rights to the federal government and not the people. Don’t even try to argue that the founding fathers saw “the people” and the government as synonymous just because the latter is supposed to operate according to the will of the former.
Ohio, my home state, is one such. And as mhendo has quite thoroughly demonstrated, Texas is another. One small difference between Texas and Ohio though, is that in Ohio all gun purchasers at gun shows must complete the usual “yellow sheet” and pass the NICS check, whether the purchase is made from a licensed dealer or private individual. Usually near the main entry/exit the show organizers have a table set up manned by State Troopers where the buyer and seller must present thmeselves and complete the NICS paperwork.
My own view NICS shceks? I would not be opposed to mhendo’s suggestion that all firearms sales be required to be transacted through a FFL holder and an NICS check made mandatory. Particularly if we can trade that for waiting periods and the much-loathed national registration. I just don’t feel that maintaining a pernament national registry of guns and/or gun owners would serve any useful purpose. Canada currently has such a database, and there’s almost nobody who thinks it’s been at all useful - except for wasting millions of dollars.
I think, in this particular thread, you are confusing me with someone else. I don’t believe I’ve spoken on the militia (or 2nd amendment) aspects in this particular argument at all.
And on preview, I see you’ve done it again. Really, man, take off the blinders.
Not addressed to me, but I’ll take a shot: No. But they need to be controlled by either the state government or the federal government in order to constitute a “well-regulated militia” within the meaning of the Second Amendment. If they are not under some type of government control, they’re just a bunch of yahoos who like to get together and play army.
Mhendo, you’re certainly correct that filing a serial number off of a firearm is illegal (note my statement that the legal owner of the weapon in that scenario is no longer “law-abiding”). My point was that it is a very easy fix to your proposed legislation and also prevents the gun from ever being traced back to its legal owner. Besides, a lot of honest, law-abiding people buy guns privately because they do not trust the local gun retailer to treat their yellow forms with proper discretion. This is understandable, and I don’t blame such gun owners.
Regarding the allusion to A Clockwork Orange, I was not suggesting that our country base firearms policy around the work. I was simply stating that I am unsure that it is morally right to deny an ex-con access to a weapon, especially given the number of felonies that one can commit that are mostly non-violent. As far as forcing the ex-con to move if he is in danger of his life, you are aware that in this heirarchical society that many resort to crime because they have few other options; such a person probably wouldn’t have the monetary means to move at the drop of a hat.
To clarify I am not supporting the right of ex-cons to own firearms. I just don’t know if someone who made a mistake in his past deserves to be treated as a second-class citizen forever more. For that reason, I don’t see it as such a big deal that such a person can buy a gun from a private gun owner. Anecdotal evidence: my parents live near a sex offender in a very rural area. He owns a .22 pistol that was obviously purchased privately; he uses it to plink at my small range on Saturdays (with my permission, as well as my parents). This individual evidently committed his crime more than two decades ago, and he is a decent enough neighbor, however checkered his past might be. Knowing the man, I don’t see a problem with his ownership of a weapon.
Should an ex-con be allowed to vote? As long as he has served his time in prison and on probation, I think so.
To your question, no, they don’t have to, but so what? Now please explain how that supports the blanket prohibition against government infringement of the right to bear arms that the contingent I assume you’re a part of supports. The Guard, which the Supremes have ruled is the militia referred to by the Constitution, is under federal control any time the feds want it to be, and to pretty much any extent the feds want it to be, of course. That’s been legislated and ruled upon and is the law of the land too, like it or not.
BTW, we settle discussions here by the strength of our arguments, not by claimed majority vote. This board is, after all, about Fighting Ignorance.
In response to minty green and ElvisL1ves, if it is okay to have a militia controlled exclusively by a state, then is it not okay for the state in question to determine what exactly constitutes its militia? I realize that this is hypothetical, but if a state chose to determine that every citizen of the state was in its militia, is this still acceptable? Clearly, the state would have made some regulation, though I imagine it would not qualify as “well-regulated” to either of you. If that is the case, what does “well-regulated” mean to you, or to the Supreme Court (if they have made such a determination)?
ElvisL1ves, I agree that the National Guard is a militia in compliance with the Second Amendment. THE militia, as in the one and only, not so much.
As far as the strength of the arguments here, it is not disingenuous to suggest that the more support an argument garners, the better an argument it most likely is.
Within the limitations and requirements of the federal constitution, which overrides state constitutions in case of conflict, sure. Again, so what? BTW, Alaska does have a National Guard.
Well-regulated means under control of a central authority, in this case being a military chain of command subordinate to a civilian executive branch. The Supremes have effectively ruled on the matter by declaring the Guard to constitute the state-controlled militias.
Good. Maybe you can explain it to UncleBeer, then.
It is disingenuous to suggest that a lot of posts from the few regular hotheads are representative of general public opinion. It is disingenuous to suggest that such opinion, even if it exists, overrides the law of the land. It is even more disingenuous to assert that your own opinion of what the law should be trumps either the law of the land or anyone else’s considered opinion, even by calling other views “ridiculous”. Yet we keep seeing that happen here, don’t we?
Unc, if you have an argument remaining, out with it. Or you could just drop the pouting about the world not being to your liking and start to do something about it. I’m not holding my breath, though.
Not unless they’re required to participate in regular military training and maintain military discipline. If not, then they’re “unorganized” pretty much by definition. An “unorganized” militia is certainly not a “well-regulated” militia.
The Supremes have not ruled, nor have any other courts that I’m aware of. For me, I’ll sign off on “well-regulated” if the militia is under government control (whether state or federal), engages in regular military training, imposes military discipline, has a formal command structure, etc.
What in the bloody fuck are you rattling on about, you offensive jackass? I’m not making any arguments in this thread. My posts here have been limited pretty much to a factual on the regulatory landscape at the state and local level. Furthermore not even a damned one (with the exception of the two sentences immediately above have been directed to you, or anything you’ve said. I’d recommend if you really wanna pick another stupid fight, start it elsewhere.
Sometimes, though, it’s more about Fighting Ignorants.
It appears that the question answered in Miller is not who may own firearms, but what firearms may be owned. Specifically those that are usable by the common person, putting to rest the “nukes/tanks/etc” cries often heard. What the court didn’t address is Miller’s membership or lack thereof in the National Guard (he wasn’t so far as I can determine). They could have ruled that Miller, as a civilian, had no standing in this matter had the intent been to specify a collective-only right. Rather, the court displayed the opposite of judicial activism: only ruling narrowly on a specific instance. Had he still been alive when the case was heard and proved that a short-barreled shotgun was suitable we might have received more specifc criteria as to what may be owned.
This leads to an interesting observation, namely that if a distinction can be drawn between “military” and “sporting” arms it is the former that can be privately owned, not the latter. Solders do not own their weapons, they use what the military provides. Such was the conclusion of Sanford Levinson in The Embarassing Second Amendment. It should be noted that Levinson has expressed a desire to restrict gun ownership but cannot find constitutional justification to do so despite his attempts.
However, since we have recent conflicting court decisions: Emerson where the 5th circuit finds the second amendment individual and Silveira where the 9th finds it collective, it gives the Supreme Court an opportunity to rule once again on this matter. Of course, we cannot force the SCotUS to take a case (far too many appeals are filed each session) and, between numerous recent 5-4 decisions and the probability of openings coming up over the next few years, I suspect neither side wants to roll those dice just yet.
ElvisL1ves, I did not state that my views were representative of general public opinion, I stated that the majority of posters here seem to support them. If this is proven otherwise, I will retract my statement and apologize.
I don’t disagree with the notion that a state militia should be subject to a chain of command and a civilian executive branch. I do think that the federal government should take a “hands-off” approach to state militias and also firearms laws within the state.
While I think that it is okay for the District of Columbia, New York, California and Chicago to maintain their restrictive gun laws, I don’t think that it is acceptable at all for the feds to attempt to impose such laws on other states. If the people in such areas are happy with their laws as they are, fine. Conversely, if a state wants to allow its citizens to arm themselves with fully automatic weapons, I think that the Second Amendment supports this and that the federal government has no business interfering. This is only my opinion, and I realize that the Supreme Court can (and has) ruled against it.
Unfortunately, in my case, there is little I can do that I am not currently doing already to get the government to change its stance on this issue. I think that discourse such as this is a means to that end on a very small scale.
What was all that chanting about “The Militia is the People”, and all your cites purporting to explain who The People are, and especially all your ranting about not being able to find “state militias” on Google, then? Just more farting in the wind?
I asked if you had any argument remaining. The answer being No, can we assume you’ll control yourself in the future?
You used that assertion to support a statement that a view opposing yours is “ridiculous”. But you’ve seemed like a reasonable chap since then.
Again, so what? Regarding the first, the law of the land is that the feds *can * control the Guard. Regarding the second, the interstate commerce clause and the Supremes’ interpretations of it do give the feds that right, and the amendment about a well-regulated militia carves out only limited exceptions. That’s the law of the land too.
No problem with that at all. We both believe in working within the system, but on this issue I oppose you within the system. It’s too bad that your position is not more widely held.
Correct. The Court did not address the issue of who, only what.
Not really. The Court determined that only weapons suitable for military use were qualified for protection under the amendment, but pointedly did not define what those weapons were. Instead, it put the burden on the defendant to establish that the particular weapon at issue was within the scope of the amendment. Last I checked, the military does indeed use tanks and nukes (okay, not so much “use” with the nukes, but you get my point), so it’s apparently still an open question whether they’re within the scope of the Second Amendment protection. However, I think everyone probably agrees that the chances of them being recognized as protected are, practically speaking, negligible.
That’s a good example of the ideal of judicial restraint, namely that a court should not generally decide anything more than it has to in order to resolve the case before it. In the Miller case, they took one path of resolving the appeal–the “what,” as you aptly put it–and left another (the “who”) to be determined another time, since they didn’t need to do it then.
Please be aware that those are far from the only circuit court cases deciding the collective vs. individual rights issue. I believe the tally was 8 circuits to 1 in favor of collective. Emerson is the only one that adopted the individual rights construction.
Note also that the Supreme Court has declined to review both Emerson (the first case to create a conflict among the circuits, albeit in dicta) and Silveira (the only case I’m aware of on the issue after Emerson). Conflict or not, the Supreme Court has not shown any interest in this issue, despite multiple opportunities to address it.
Perhaps I didn’t make myself clear. Yes, the military has tanks, but it takes more than an individual sitting at the controls to operate. Even if they made a tank that works like in a videogame it would be more effective to have seperate driver, gunner, etc. The same holds true for aircraft: You can have a pilot fire the missiles but adding a gunner lets the pilot concentrate on flying. I’ve never been in a nuclear missile silo, but I suspect there’s more than one guy down there. These are crew weapons, unsuitable for individuals.
By contrast, having a second pair of hands on a rifle or shotgun is more of a hinderance than a help. There’s just nothing else for a second person to do. The individual can use a firearm to its full effect, not so with the big-ticket items. Claiming an individual right to an Abrams would be quite a stretch, claiming such for a Remmington? Far less so. A pity Miller didn’t live long enough to make his claim & press the court for a more definitive ruling.
True, which is why we’re still picking over Miller several decades later. If that (or any future) decision makes a definitive ruling the others become moot.
You’re okay on the clarity, but not on the correctness.
Sure, but nothing in Miller (or any other case law I’m aware of) says that only weapons suitable for use by individuals are covered by the Second Amendment. My point is that, legally speaking, it’s still an open question. A dumb open question, to be sure, but still an open one.
However, I do take note of one old Texas case on point: “The word ‘arms,’ in the connection we find it in the Constitution of the United States, refers to the arms of a militiaman or soldier, and the word is used in its military sense; the arms of the infantry soldier are the musket and bayonet; of cavalry and dragoons, the sabre, holster pistols, and carbine; of the artillery, the field piece, siege gun, and mortar, with side arms.” English v. State, 35 Tex. 476 (1872). Remember the Alamo, indeed!
The “American Voice” website doesn’t appear antwhere on the first ten pages of Google results with the words state militias entered as the search criteria.
So, what did you Google to get the “American Voice” website to come up somewhere on the first page, which is about the only way you’d get it in “two seconds.”
And you keep completely ignoring the definition of militia; the National Guard is only one component; and you completely ignore the case of Perpich v. Dept. of Defense in which the Supreme Court gives the Federal gov’t plenary powers over the National Guard, reserving to the states their use only when the Federal gov’t doesn’t need them.
This is exactly the “select federal corps” and “usurpation” of the State Militias that is one of the keystones protections of the 2nd. amendment.
The errors in your views have been shown to be false with fact and cite, which it is clear that for your own political reasons you are not interested in reading and absorbing into your puddin’ brain as established law and fact. This makes you a liar of the first order, and a fucking asshole to boot.
Regulating and organizing the armed forces of the federal gov’t and of the respective states is at best tangentially related to gun control and the right to keep and bear, inasmuch as excessive civilian gun control undermines the very ability of the militia (you know, the "unorganized part, i.e.: the common citizenry) to arm itself with weapons in common use by the military, such as M-16’s, the common military “arm” in use by the U.S. Armed Forces.
The “Well Regulating” of the armed forces of the United States (and the respective states), including the militia, with rules and regulations (such as the Uniform Code of Military Justice), and devising standardized unit and equipment schemes, and devising training criteria, as well as personnel administration bureaucracies, and providing for a medical support corps, has absoultely nothing to do with determining via federal and state laws and regulations who can and cannot possess firearms!
Wrap your pea-brain around this:
The people have the right to keep and bear arms such that they may participate, when called forth as the militia, in a “well regulated” unit of citizen soldiery under the authority of their respective state’s executive authority, delegated as such to the state’s military command structure.
You cite a pro-control website and expect anyone to take you seriously? At least cite FindLaw, or the Justice Dept., or the Supreme Court itself, Elvis, or just fuck off and take your mental masturbation to Sarah Brady’s website for your daily round of circle-jerking with other anti-gun people.
You can figuratively slap yourselves on the back and tell each other how stoopid and uninformed we pro-gun types are, even as you fabricate your own statistics from thin air and junk science to validate your own pathetic existence.
Do you have some evidence that these “dishonest people” are the prevalent, even a significant conduit of illegal firearms reaching the hardened criminals? Just because it is possible doesn’t make it probable, or even prevalent.
And please don’t rely upon the Brady’s website for accurate information; they are renowned for distortions, ommissions, and outright lies. Case in point:
Partially correct, inasmuch that there is already a Federal requirement for all dealers to conduct background checks for every sale, regardless of venue, so there is no need for a Texas state law to require the same. Not all states duplicate every single federal law even if they must abide by them.
There is no Federal requirement for any private citizen (not-a-dealer) to conduct a background check on any legal private transfer, as long as the sale is legal by federal law, which pretty much prohibits the sale of handguns to residents not of your home (resident) state. Even though I live less then 20 miles from my father, I cannot sell or transfer a handgun to him, as he lives in Illinois and I live in Missouri. There may be Illinois and/or Missouri state laws to that same effect, but they are pointless to me, as I already know that the federal law prohibits the transfer.
Some states do have additional requirements; in those instances, all private and dealer transactions must abide by those additional state laws/regulations as well as the federal.
Now, as a person who has attended hundreds of gun shows, I can tell you that the vast majority of sellers are actually FFL dealers, and as such, must conduct at a minimum the federally required criminal background check through NICS, or their state-agency equivalent.
Over half my collection was purchased at gun shows, and only one rifle (a bolt-action, 3-shot, hunting-type rifle) was a private sale.
You have read it correctly, but that is only part of the gun-transaction equation, as I have stated above. I’m not sure how old that Texas law is (the mention of the Protective Order in section “e” should make it fairly current), but current federal law would prohibit the sale and hold you and the buyer criminally liable if the buyer told you or you otherwise knew that he was a prior felon, even if he was realesed from prison 50 years ago.
But again, there’s no indication from the Bureau of Justice Statistics or the F.B.I. Uniform Crime Reports that these “private transactions” are a primary, or even significant, source of the guns getting into the hands of criminals. What you have is an unfounded assertion from an extremely anti-gun organization, mixed liberally with half-truths and blatant (I would say deliberate) ommissions in order to paint a piture that simply doesn’t exist, and has no hard evidence from a creditable source that it does.
