So, I’m guessing you didn’t read the case, huh? Or the Constitution for that matter. Article 1, section 8, paragraphs 15 & 16. Knock yourself out, Susie.
If we were in a pure opinion debate, sure. In this case one side is presenting the law, and another is presenting their opinion of what the law should be. The opinion of the one presenting the facts of law is irrelevant to their arguement. It’s the difference between an opinion and an interpretation. The side arguing fact of law is presenting an interpretation, it’s not their own in many cases and their opinion has no influence on it. The other side(s) are offering interpretations BASED UPON their opinions. While it may seem that this is a battle of opinions on each side, it really isn’t. The interpretation minty is basing his argument on isn’t tied to his opinion. It’s not his responsibility to prove it’s sane, or reasonable, simply that he presents it accurately.
FTR, although I still maintain that it doesn’t matter, I also believe the second ammendment establishes protection for the individual right to bear arms. Completely unconnected from militia or military service matters. Private arms which may be used in the defense of both private and public interests(if mustered by act of congress).**
One stubborn voice in my head is trying to filibuster the vote 
**
So you believe every determination of original intent which allowed gun control statutes to withstand judicial review was flawed? The courts have held that the second ammendment does NOT establish an individual right to keep and bear arms(for private use, not as part of a public force such as a militia or standing army). This is true, right? Where they wrong to do so in each instance? I also believe the framers, and the people who ratified it, meant to establish a individual right. Still, I can’t honestly say the evidence is overwhelming for this PoV. I found it compelling(could just be because I was born and raised in Texas ;)) but I can see the point of the other side. If the army is supposed to protect us, why would we need individual arms?
**
No, but I’ll look him up.
Enjoy,
Steven
PS, glad you enjoyed the Con this weekend. We missed you at Grace’s birthday. We played “Russian Roulette Karaoke” where we threw all the titles of the songs into a bowl and whatever you drew you had to sing. Have I ever mentioned that I absolutely HATE karaoke? To top it all off, I drew a Tina Turner song(“Proud Mary”). Classically trained baritone, sung in the Meyerson several times, offered a trip to NY to perform at Carnegie hall(had to decline the trip and the performance for personal obligations) and I’m singing “Proud Mary”. Hate karaoke
Karaoke? I missed karaoke?
Whew! That was close!
Hey, I tried to head off the karaoke in the planning thread. I’ve been successful at stopping it before, but they just overwhelmed me this time 
Mtgman:
Uhm. Er, yeah. [sub]I knew that.[/sub]
Well, at least yours has some focus. Mine is off in the kitchen singing “We’re knights of the round table, we dance whenever we’re able…,” and refuses to put down the spatula.
Yes. For the longest time I have believed that the OI has been misconstrued, quite cynically IMO, for socio-political issues; specifically in US v. Miller, and thus in subsequent rulings which quote Miller.
I flirted briefly with the idea, the wild hope, that the US v. Miller decision was simply that: in light of the evidence presented by the US Atty. (with no countervailing arguments from a non-existant defense) that the weapon in question was not any sort of regular military equipment, they couldn’t support the right to keep and bear such a weapon [sawed-off shotgun].
The rest of the ruling described their examination of the militia and the sorts of arms they bore in the context of the ratification of the Constitution, and how they must interpret the second amendment in such a way as to support the right to keep and bear arms congruent with a well-regulated militia.
To my way of thinking, that interpretaion stands not only the “Assault Weapons Bans” right on their pointy little heads, but also tosses most of the NFA and subsequent legislation right out on its pathetic ass.
Unfortunately,mintyy has done an exquisite job of pointing out, with irrefutable cite and elaborate explanations, exactly how the legal community feels about my “interpretation”: nothing.
Because they haven’t even heard of it, much less considered it.
Thus I am back to my original position: Miller is wrong.
By virtue of not having learned to speak lawyer, and having simply read, in english, The Constitution, The Bill of Rights, The Federalists Papers, etc., I am absolutely convinced, now more than ever, that the right to keep and bear arms, while not unqualified, is indubitably an individual one.
I used the word “unfortunate” above, perhaps without considering that, thanks to minty, I now have an even better grasp of the depths of legal perfidy to which those wishing to ban firearms will sink (that is not a cheap shot at minty).
My opinion may be wrong, in light of the preponderance of legal precedence; but at least it isn’t uninformed. “Know Thy Enemy,” or something like that.
If all the experts say I’m wrong, I must be doing something right.
Just a quick question, Tank. What do you think of all the cites the Silveria court provided in support of the notion that the FF’s only had state militias in mind when they wrote and ratified the 2nd Amendment?
“All the cites”? In support of the idea that “militia” means some permanent state-run body of men, Silveria cites three sources: The Articles of Confederation, other portions of the Constitution, and an article by Paul Finkelman in the Chicago-Kent Law Review. Why they would quote the Articles of Confederation is beyond me; didn’t we enact the Constitution for the specific purpose of replacing that rag, because it wasn’t working out?
Now, the court correctly notes that, if a word has a meaning in one part of the Constitution, the same meaning should apply everywhere. I do not see any support, however, for their reading of the fifth amendment. The fifth amendment is quoted in the case in relevant part as “a criminal defendant has a right to an indictment or a presentment “except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…””. The court then states that the word “certainly” refers to a state entity of some sort. Pardon me, Your Honor, but I’ll need a bit more. Cites from other parts of the Constitution (art I sec 8 cl 15, art II sec 2 cl 1) are given in the same fashion: they’re quoted, the court notes that they “clearly refer to a state entity”, case closed as far as they’re concerned.
I’ve only skimmed the Finkelman paper, but one thing has struck me about it: while the Silveria court acknowledges the principle used in Verdugo-Urquidez, that the court should look to a word’s usage in other parts of the document to determine its meaning, Finkelman specifically rejects this doctrine when it comes to the phrase “the people”. Must be pretty nice, to be able to use the rule when it suits you and abandon it when it doesn’t… I also find it ironic that Finkelman leads off his article with a quote from George Mason, but neglects to quote Mason’s abundantly-clear definition: “Who are the militia? They consist of now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table [the Constitution] gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor.” If he had, the article could’ve been a lot shorter.
In addition to the above, the Congressional Register is quoted as saying that “A well-regulated militia being the best security of a free state, admitted an idea that a standing army was a secondary one.” The passage quoted doesn’t really go far toward explaining what the militia is, other than that a standing army is not the militia. I find it particularly puzzling that the very next sentence refers to “the permanent state militia”, when the sentence they just quoted seems to indicate that the FFs thought of permanent military forces as secondary.
Gee, Max, did you find some version of the opinion that doesn’t include Federalist 37, Elbridge Gerry, Aymette v. State, English v. State, the Declaration of Independence, the Journals of the Continental Congress, State v. Workman, the Oxford English Dictionary, the early drafts of the Second Amendment, the Rhode Island ratification debate, Lexington and Concord, the various state constitutions from the Confederation period, the Writings of George Washington (quoted, of course, in an article by the dreaded Bellesiles), the Virginia ratification debates, Federalist 29, Federalist 46, Federalist 28, Patrick Henry, George Mason, the North Carolina ratification debate, Luther Martin, other proposed militia amendments, Richard Henry Lee, Jefferson’s letter to Madison, George Mason again, the rejected attempts at individual rights amendments in New Hampshire and Pennsylvania, Sam Adams’ rejected individual right position during the Massachusetts debate, the complete and utter absence of any statement by any member of Congress during the debates on the Bill of Rights saying that they thought the 2nd Amendment established an individual right, John Adams’ ridicule of the notion, and the whole “conscientious objector” debate?
See, I was kinda thinking of those authorities, too.
Just a quick question, minty. Who are the militia? And who are “the people” as referred to in the 2nd Amendment?
You’re asking the wrong question, Second Amendment-wise. I think you meant to ask who are the “well-regulated militia”? If you ain’t training under the supervision and authority of the state, you ain’t in no well-regulated militia.
As for “the people,” it exactly who you think it means. I’ve said repeatedly that I believe the Second Amendment should be read as establishing an individual right to bear arms. It’s the scope of the right that is delineated by the militia clause.
Now, how about answering my question?
Apologies; there was indeed two questions there.
As far as reading court decisions go, I gave up. Silveria? Never heard of him. Or her. Or them. Whatever. There wasn’t enough TUMS, Rolaids and Maalox to keep my spleen from venting all over my computer screen every time I did.
Emerson may very well have been the last one I actually read.
As far as “anti-individual rights” in American history, given the early Mercantile nature of the Virginia and Maryland Colonies (need I point out [Nathanial] Bacon’s Rebellion of 1676, or [John] Coode’s Rebellion against the Calvert family’s hammerlock upon land in Maryland in 1689?) as well as the strongly authoritative-hierarchal structure of the northern colonies [Calvinist] Congregationalists traditions, it is not at all suprising to find some anti-individual rights sentiments amongst colonial writings, pre- and post-ratification of the Constitution.
After all, they didn’t want political, religious or economic “undesirables” having the ability to challenge, by force of arms if necessary, their hegemony. Come the Seven Years War, or the War of American Independence, or anytime those filthy heathen savage indians decided to try to fight for their lands, then it was allright for the common ruck to have a gun.
The FF did indeed express some reservations against a universal, open-ended individual right to keep and bear. Heck, we all do, even today as back when.
Doesn’t change the fact that, generally, they were like I said earlier: as a group, if not individually, in favor of the individual right to keep and bear arms.
Well can I ask you to break out the Tums and ask you to read Silveira v. Lockyer? (It’s a .pdf file.) Not so much for the holding that makes your spleen act up, but for the lengthy historical analysis the court provides on pp. 25-55. It’s not a matter of expressing “reservations” about private gun ownership. Rather, it’s a matter of what the Second Amendment was intended to accomplish and protect, which has nothing to do with private gun ownership and everything to do with the well-regulated milita.
I’m looking only at the section headed: “a. The Meaning of the Amendment’s First Clause: “A Well-Regulated Militia Being Necessary to the Security of A Free State.”” That’s the portion that’s actually relevant to the decision. The rest (dare I say it?) is dicta.
Dicta, schmicta. I’m asking about the court’s historical analysis, not its holding.
Oh, and I would guess that
and
and all of
might have something to do with their collective rights holding anyway.
The court’s historical analysis has no legal significange. Therefore, as you have traditionally done with the Emerson decisions, I’m dismissing it with a wave of my hand.
Oh sure, talk all day about original intent, then play dumb when somebody points out the original intent ain’t what you’ve been claiming.
This is getting silly. Why should I do what you have consistently refused to do?
Tell you what, you produce a reasoned response to the historical analysis in the Emerson decisions, and I’ll take a hard look at the irrelevant text of Silveria. Sound fair?
When, pray tell, have I ever “refused” to consider what Emerson says and the sources it cites? Objecting that the opinion’s individual rights holding is dicta means only that it is not binding law. Sheesh.
The dicta in the Silveria helps us understand why they made the ruling, but is not binding law. Similarly, the dicta in Emerson expands on the thoughts of the justices, but is not binding law. Citing the Silveria dicta as a reference for people who find the arguement that the 2nd ammendment was NOT intended to establish an individual right to bear arms is just for reference. Here is a body of evidence that a court found compelling enough to rule as if the 2nd ammendment does not create an individual right to bear arms.
Lots of pro-gun people are citing letters/papers, etc. saying the original intent of the framers was to create an individual right to bear arms. Citing the research done for the Silveria decision(and recorded in the dicta) is just a handy way to cite dozens of documents which help establish the intent of the framers for the interpretation that the ammendment does NOT create a individual right to bear arms. No one is saying the dicta carries any weight of law(it doesn’t, nor does Emerson’s dicta), but that reading it may give some more insight into why the courts have held that there is no individual right to bear arms.
Enjoy,
Steven