minty: I bit the bullet, and red Silveria. I found the 9th’s analysis neither lengthy or historical, or for that matter all that accurate. I did find this, though. Quite interesting.
Do I detect some dissension in the 9th? Looked to me as if those judges sitting on Nordyke were just itching to toss Hickman, and rule for Nordyke. That they felt constrained by the traditional protocols of the Circuits is something I can respect; after all, I’m the one (amongst millions) arguing for the traditional interpretation of the Second.
Damn. Hit Submit instead of Preview. The 9th’s only half-right in *Silveria. The Second guarantee’s the state’s rights to organize their own militias. It also guarantees the individual citizens of all states the right to keep and bear arms. Can’t have a militia without an armed citizenry.
You get a better argument against keep & bear for hunting and self-defense purposes than arguing militia purposes.
Ha! That’s pretty funny stuff in Part III. Once again, though, the law is as I have represented it to be. I’ll have to add Nordyke to the list of cases on my side. Thanks for the heads-up!
Oh, and I’ll be sure to let you know when the motion for rehearing en banc is denied.
minty: I’ve only briefly tussed with you over your interpretation of the various justice’s intepretations; and come out on the losing side for it. I’m saying the justice’s interpretations are wrong. Your presentations of their decisions are inarguably correct; their decisions are wrong. But, IANAL, so what does my opinion matter, hey? [nod to Steve].
Ho hum. It’ll take another SC case to resolve it once and for all. I ain’t holding my breath. :rolleyes:
And “once and for all” will only be as long as some lawyer/legislator figures out what loophole(s) the Supremes left in their hypothetical decision and write new gun-control laws around it.
Thus, the debate continues, and it will continue as long as the anti-gun forces persist in legalsistic legerdemain in circumventing what every American who can read beyond the 3rd grade level can read for themselves and understand:
"…the right of the people to keep and bear arms shall not be infringed.
The militia is the people, the body of citizenry capable of bearing arms in defense of the state. When called up and organized, they are the well regulated militia; when not, they are the unorganized militia. Plain law.
Title 10–Armed Forces, Subtitle A–General Military Law, Part I–Organization and general military powers, Chapter 13–The Militia, Sec. 311. Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are–
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.
Oh, THAT’S what “A well-regulated Militia. being necessary for the security of a free State” means. It means " . . . "
And once again, “unorganized” is not “well-regulated.” “Unorganized” is, however, arguably within the meaning of " . . . " Damn you, courts, for not seeing the inescapable wisdom of " . . . "!
The relevance of a single opinion doesn’t change if the person is a lawyer or not. I also said minty’s personal opinion didn’t really matter either. You can hold the personal opinion that you have the right to keep and bear arms, but that won’t keep you out of jail in D.C. Essentially it’s not because you’re not a lawyer that your opinion doesn’t carry the day, it’s because you’re not one of the framers.(lots of negatives in that sentence, hope it parses ok)
Unless that individual is a supreme court justice, it can easily be argued that individual opinions on the issue are irrelevant to the issue itself. Even if they are are SCJ, they are not free to issue rulings in line with their personal opinions, they have to issue along with the rules of the law. When arguing original intent, our feelings on how things should be take a back seat to how the framers felt things should be. That’s all I was ever trying to say. Getting minty to express his opinion on the issue doesn’t advance the discussion at all. We’re arguing original intent and minty wasn’t one of the framers. Nor was I. When I made my first comment on the place of personal opinions in this thread to The Ryan this is all I was trying to say. We put forth interpretations, which may or may not align with our personal opinions, and support them with evidence from the founding fathers legacy. The SCotUS is part of this debate because they have done this as well. They studied the law and the framer’s documents and put forth an interpretation of what the 2nd ammendment should mean. Statutes are ruled constitutional or non-constitutional based upon their compliance with that interpretation.
The lines here are a bit blurred, and I don’t want to tick anyone off, nor make anyone feel marginalized. Still, this debate is about original intent. The framer’s opinions, not ours. If we’re going to feel bound to continue to try to have the laws of the land in line with what the framers intended(instead of following the suggestion of our British friend and re-writing the laws with a modern world in mind) then our modern-day opinions on what rights we should and shouldn’t have simply aren’t relevant. Our opinions may lead us to argue the other side of the “intent” fence, but if one of us had ever written an article on this issue it would be a red herring to cite it as we would one of the Federalist papers.
Saying “I believe we should have the individual right to bear arms” is fine. It is a statement of personal opinion and is perfectly valid. Saying “I believe we the framers intended for there to be an individual right to keep and bear arms” is fine as well, but you’ll have to support it in order for it to become clear enough to be able to put force of law behind it.
FWIW, I’m in the same shoes minty is in. I also believe the framers intended to create an individual right to bear arms. I also disagree with Miller and several other cases on this issue.(although I’d support mandatory registration and training classes, perhaps even periodic re-licensing)
Oh well, back to the debate.
Interesting. So my grandmother, who was not a member of the National Guard, wouldn’t have been legally able to own her handgun.
technically, yes. Assuming you’re not speaking facetiously, it is interesting to note that she was, however, legally able to own a handgun. It was her right. It was her right because the gun store acknowledged her right. It was the gun store’s right because the government (at the time) acknowledged that right. But somehow, somewhere along the way, someone decided “oh no; there is no right.”
As far as opinions go, I’m not operating in a vacuum, here. It’s not Catch-22 for me to cite the documents of the founders, written in plain English, and it’s not “divination” to interpret their pretty straightforward thoughts on the matter.
minty:
I find it interesting that the 9th, centered around the most anti-gun state in the nation, is not altogether in step on the issue. Stare Decisis is all well and good, until it’s used as a political tool, as the 9th certainly has. “Well regulated,” as used in the drafting and passing of the Bill of Rights, doesn’t mean “heaped upon with tons of regulations,” an interpretation gun-control types and anti-gun courts have latched onto nonetheless.
A simple search through an online dictionary for the word “regulate” gave me this:
Main Entry: reg·u·late
Pronunciation: 're-gy&-"lAt
Function: transitive verb
Inflected Form(s): -lat·ed; -lat·ing
Etymology: Middle English, from Late Latin regulatus, past participle of regulare, from Latin regula rule
Date: 15th century
1 a : to govern or direct according to rule
b (1) : to bring under the control of law or constituted authority (2) : to make regulations for or concerning <regulate the industries of a country>
2 : to bring order, method, or uniformity to <regulate one’s habits>
3 : to fix or adjust the time, amount, degree, or rate of <regulate the pressure of a tire>
reg·u·la·tive /-"lA-tiv/ adjective
reg·u·la·to·ry /-l&-"tOr-E, -"tor-/ adjective
Since Article 1 sect. 8 of the Constitution already delegates the authority “…To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;” definition 1 (inclusive) is not relevant.
As the militia is an organization of people, and not a piece of machinery or device, definition 3 is also not relevant.
Only definition 2 fits to some degree of reasonableness. To bring order, method or uniformity. This was done so with the organized militia, the National Guard. Arguably an outgrowth of the uneven performance of the State Militias during the Civil War, and the govt’s tendency to dangerously downsize the regular forces during times of peace.
That doesn’t change the fact that every citizen capable of bearing arms in defense of the state is eligible for call up. *By law.*What do you think all of those people in hurricane-devastated zones toting rifles and shotguns are? Lynch mobs? That’s the unorganized militia. The ruckus down on the Arizona-Mexico border is arguably the unorganized militia, seeing to their local defense of property and self.
So why reiterate in the Bill of Rights what is already spelled out fairly explicitly in the Constitution? Think about why the Bill of Rights was enacted in the first place; it was to spell out, much more clearly than the Constitution had, the enumerated rights of the citizens, the people, and in the case of the 10th Amendment, the States and the People.
Alexander Hamilton spelled it out, in plain (if antiquated) English, in Federalist 29:
What do you think all of us veterans out here in the Real World are for? Do you think that we’ve somehow forgotten all of our military training? That, if needed, we are incapable of augumenting the National Guard in time of need? That, with our rifles, shotguns and pistols, we are a threat to the fabric of society?
If you, I or anyone else defends themselves, their property, or their neighbors and their property, they are arguably doing so as part of the militia. The unorganized militia.
Because, after all, the militia is those citizens capable of bearing arms of defense of the state. The State is the people, enacted by and for the people, and subject to the people under rule of law.
Organized, unorganized, totally disorganized, it’s all shades of the same thing: the militia. We the people. Keeping and bearing arms. For hunting. For defense of self, property and state. For recreational purposes. All legal, all guaranteed by the penumbra of the 2nd Amendment.
If I’m wrong in the eyes of the law, then the law needs to have its eyes checked, the better to read the plain English of the Constitution, the Bill of Rights, The Federalist Papers, the Ratification Debates, Blackstone’s Commentaries, etc.
I find it interesting that you can’t count (except, presumably, to six).
1st Circuit + 4th Circuit + 6th Circuit (twice) + 7th Circuit + 8th Circuit + 9th Circuit (three times) + 10th Circuit + 11th Circuit = 8 Circuits. (And I’d swear I’m missing something from the 2nd, but I don’t have my USCA right now.)
5th Circuit = 1 Circuit, plus we’re still waiting on binding precedent as opposed to pontificatin’.
Que what? Huh? That’s crazy talk. If anything (as even Max Torque concedes), words used in the Constitution should be interpreted consistently. Am I nuts, or did you just claim that they used it that way once, so they couldn’t possibly have meant the same thing when they used the word again later?
Vigilantes. Other words could be applied, but this forum is too delicate.
Oh yeah, seeing to their property and self by driving all over place and pointing guns at Mexicans. Freeze, Pablo! God bless America!
Feh. I have sympaty for the folks who protect their own property and family. When you start looking for somebody to shoot, you belong in jail.
My point exactly. You ain’t in the National Guard, and even if you were, you ain’t required to keep and maintain your own M16.
Pontificatin’, mostly.
Most of you, no. A few of you, undoubtedly. (Same thing goes for the non-veterans, of course.) So why are you opposed to measures designed to separate the good folk from the bad? If you’re one of the good ones, what’s your problem with registering your firearm? Shit, son, if the crap hits the fan, we gotta know who to call up! Can’t just have you s.o.b.‘s layin’ down suppressin’ fire willy-nilly!
“Arguably”? That’s the best you got? “Arguably,” Charles Whitman was popping college students as part of the militia. It’s a dumb “argument,” of course, but there you go.
My point exactly. If the people say you gotta register your firearms, then by God, you gotta register your firearms. You, on the other hand, are arguing that the people should go get bent.
I just like this as Beatnik poetry. Tres cool, daddy-o.
Yeah, that purpose and intent clause is pretty clear. Sez we don’t qualify 'less it’s something to do with the well-regulated militia. Damn you and your gun-grabbing ways, James Madison!
My main point with that little remark was that the definition of “militia” given in that passage is, how to say this, less than comprehensive? It doesn’t seem like a good definition of “militia” to use because it excludes women who aren’t guard members. That runs afoul of another ammendment immediately, just to start the criticism. We’d need a more robust definition of “militia”.**
My comments about opinions never extended to the opinions of the founders. Like I said, I only brought it up because The Ryan was hassling minty for his own personal view on the issue and I was pointing out that because minty is NOT one of the founding fathers, that his opinion doesn’t carry weight in the real debate. The real debate is original intent. It should consist of examining the founder’s legacy and deductive reasoning about their intent. Modern opinions, no matter who holds them, are irrelevant. I was trying to head off a hijack and it seems I’ve caused one.
As to the clarity of the framer’s legacy, Tank, they’re straightforward in both directions! There are documents provided by the founders that show they support gun rights within a military context pretty much exclusively and where they support individual gun ownership. It’s like using religious texts. Pick something and you can find some passage to support it. The courts so far have examined a fair bit of the framer’s legacy and they’ve pretty much overwhelmingly come down on the side of the 2nd ammendment NOT creating an individual right to bear arms. What we’ve got to remember is that the framers were debating and tossing around lots of opinions as well. It may well be that Thomas Jefferson wanted an individual right to bear arms(IRtBA), but was either out-debated or out-voted and the consensus intent was no IRtBA. The intent behind the ammendment and what the majority of people thought it stood for when it was ratified is the real goal. We can’t definitively get that from a handful of quotes.
Apologies for the delay in responding; ice storms, school, work, semblance of a social life…
minty:
I was speaking of the three justices of the 9th Circuit (I only cited the 9th because of the Silveria decision you cited) who…chastised?.. the three justices on Silveria, and who admitted that the 5th’s analysis in Emerson at least bore further scrutiny/consideratrion.
That’s all. All the others (Circuits) you mentioned, I’m fairly certain, were quoting Miller out of context, or simply following your favorite term, stare decisis.
Besides, it only takes one tiny pebble to start a landslide.
Is that what you’re really afraid of?
Not even close. Stop trying to put words in my mouth, and try reading what I’m saying. Art. I sect 8 already empowers Congress to yada-yada with the milita; the question was then asked (quite carefully, I imagine, by the anti-federalists), “Who, exactly, are the militia? And what are their rights?” To wit, the Federalist replied, The militia is the people.
They hemmed, they hawed, they kicked the notion around, and came up with that dandy little jewel about the right of the people (being that they are the militia, and all) to keep and bear arms.
Can’t have a milita without guns, now, can you? At least not a very effective one.
Hmmm. Well. It seems that, in your mid at least, militia=vigilante. Because I’m sure that, if any of the members of any given natural-disaster stricken community lynched/shot/captured-at-gunpoint-and-summarily-executed a perfectly innocent person, it would be all over the Brady website (in whatever incarnation it’s chosen to call itself), if not the national news.
I don’t recollect hearing about any such incidents. You?
Well, it may seem a tad outrageous to you, who may not, if ever, have to look any further than your living room at 3:00 AM in the morning. To someone with a 1,000+ acre ranch and a million dollars tied up in cattle, effectively in the middle-of-nowhere New Mexico, checking the back 400 acres in your SUV with your semi-auto rifle for rustlers, thieves, squatters and drug-runners is not going out “looking for someone to shoot.”
Well, not since Miller and the so-called “Firearms Owners Protection Act.” But I (and any other able-bodied/minded citizen) perfectly well could be required to. I imagine the price of M-16 would drop down to something quite a bit more reasonable, simple market forces would undoubtedly guarantee it.
I’m not averse to the concept. I think rather highly of Machiavelli, and the enabled citizen-soldier.
Or, Brady et. al. could just shut the hell up, the “assault weapons” ban could be lifted, and we’uns out here in the militia could make do pretty reasonably with semi-auto handguns and AR-15s.
I have never been opposed to reasonable measures to separate the wheat from the chaff. The current criteria, backed up by NICS, is pretty good. Registration has been used before as a stepping-stone to bans and de-facto confiscations; why do you think Brady et.al want it so damned bad that they’ll lie through their rotten teeth to get it any which way they can?
And if the “crap hits the fan,” I’m sure that CNN/HN and all the local radio/TV stations, along with local Nat’l Guard units and other civil authorities (say, the Governor of Texas?) will do just fine in keeping me up-to-date on which way to point my guns and shoot.
And “suppressing fire” my lilly-white buttocks. “One bullet, one target, one shot, one kill” is my motto. It worked in tanks, it works for hunters, it works for snipers. Heck, it oughta be good enough for me.
As one of the people, he was part of the militia; he was never ordered to kill anyone as part of the militia; he wasn’t defending self, others or personal private property in either case (“people” or “militia”). And “the voices in my head” are not part of any National Command Authority Chain-of-Command.
A private citizen can legally keep and bear as part of the unorgainzed militia (barring certain classes of citizens delineated by the BATF by authority of Congress); that doesn’t authorize them to violate civil law.
Since some seem to want to brush the entire populace as undesireable “classes of citizens,” thereby disarming everyone, a few of us out here thought we ought to do something about it. Hence, the NRA, Second Amendment Foundation, and others.
Only up to a point. Were this a true democracy, and the people said so, I would have few choices but to register or go Gueverra.
But we don’t live in a true democracy. We live in a Republic/representative democracy, beholden to a Constitution and the Rule of Law (even if it is occasionally screwy and in need of adjustment and/or reconsideration). If a Constitutional Convention is called, and the Second amendment is amended out of the Constitution, then that’s the legal, honest approach and process to getting guns out of American society (fat chance that, even if it did come to pass, it would actually disarm the criminal element).
Until then, I stand by my copy of the Constitution and the Bill of Rights, the Federalists Papers, the Ratification Debates, and a slew of other similar stuff.
Thanks. I couldn’t do it if I tried, but it just sorta happened.
:Sigh:
Try to follow.
The people, which are the militia, have the right to keep and bear arms. When acting as John Q. Citizen, they are the unorganized milita. Go hunting; go target shooting; collect for aestetic reasons. Whatever.
Murder? Right out. Threatening spouses, neighbors, total strangers? Nope. No-can-do. We take your gun away for that, and send you to a very small room for a very long time.
However, when called forth by Congress (or other proper civil authorities) “… to execute the laws of the union, suppress insurrections and repel invasions;” John Q. Public becomes Private Public of the 1st [insert state here] Militia, a.k.a. “the organized militia,” subject to the disciplines of Congress (most likely the Uniform Code of Military Justice).
Arguably (there’s that @!#$%& word again), the current state of domestic affairs has rendered such institutions anarchaic. The law of the land (Constitution) still stands. Amend it or leave us alone.
Mtgman:
Being from Missouri originally, I gotta play the “Show Me!” card.
You can even collect cash prizes from several pro-gun organizations and websites by doing so.
Uh-uh. The Constitution and Bill of Rights were a concensus, debated and voted upon. Only 200 some-odd years ago. And not by a religious prophet, but by mortal men who kept journals and diaries, and held meetings with scrupuously documented minutes.
Did some dissent? You say so. I’ll believe it (high plausability). They got their vote when it was their turn.
A handfull of cases, mostly 20th century. The real biggie that started this whole mess was Miller.
So I guess all of those people in the late 18th and all of the 19th century keeping and bearing arms in the USA were in violation of the Constitution, and its derived laws. That’s over 150 years of public perception/precedent to try to correct.
The majority of the people do not rule in this country; nor are the highest laws and fundamental principles re-interpreted on the whim of the majority. Nor are we deriving their meaning from a handfull of quotes. There is ample historical evidence (documentation) to show that the words mean exactly what they mean, as I spelled it out for minty, above.
Hassling? I thought that I asked politely. I think that your distinction between opinions and interpretations is largely a nitpick and arbitrary. My exhange with minty green shows that one person’s key distinction can be another’s nitpick, so I’m open to the possibility that there is some important point that you’re trying to make. The impression that I get is that you consider anyone agreeing with you to be arguing the law, and anyone disagreeing with you to be arguing their opinion. But again, I ay very well be missing something here. But I really don’t see why you’re saying that “In this case one side is presenting the law, and another is presenting their opinion of what the law should be.” I’ not arguing that the second amendment should guarantee an individual right. I’m arguing that the second amendment does guarantee an individual right.
“Opinion” is commonly used to refer to a judge’s interpretation of the law, so I don’t see where you got the idea that they are somehow different categories. Presenting one’s opinion about the law is discussing the law. Furtherore, I don’t see what made you put my request for minty green to state what he thinks that the second amendment means in the “opinion” category rather than “interpretation”. I didn’t ask what he thinks it should mean.
That’s why I think we should look at what it actually says, rather than trying to divine what the framers’ state of minds were.
