Sigh … the part where they declared militia use to be the applicable criterion. Do try reading first, okay?
Yep, you missed the part where I said the SC’s opinion is the one that matters, stupid or wrong or not, *not * yours or mine or anyone else’s. You can disagree with them, or with me, all you like, but so what? The law is what the people empowered to decide such things have decided. Do you agree with that or not?
Horse, water …
Oh, just to clarify further, the “unorganized militia” is hardly well-regulated, is it? Not if it isn’t even organized. That leaves the Guard as the only “People” with Second Amendment rights rather than mere statutory ones - and that was the situation in 1939 as well as today.
Got anything else to offer as fact, as the OP (remember the OP? There was an OP) requested?
http://www.dmna.state.ny.us/nyg/nyg-hist.html
Back at you, Elvis. That’s right, the 1916 law made all existing state militias NG units. But new ones can be raised. Are you going to say the NY Guard has no Second Amendment rights, while the NY National Guard does?
Finally, to repeat, in 1916, all state militias were merged. City, town, village, and private militias were not. Further, after 1916, new militias were formed from within the body of the unorganized militia. These militias can be considered well-regulated.
And the NY Guard existed in 1939. Fact.
Of course not, not if they’re “well-organized” as a relevant court would rule. The point, which seems to elude you even now, is that there is no *functional * individual right, as so many somehow loudly claim even today (and even more admit is the case but still dislike it). The Guard discussion is just to clarify what the *functional * definition of “People” is in regard to the Second.
“The right of the People” exists via their creation, organization, and, well, regulation of legally constituted militia. Don’t complain to me, complain to the Court, or get an amendment going. But just quit whining, guys.
ElvisL1ves, I think it’s a little oversimplistic to say “The Supreme Court has spoken” and to dismiss any protestations as futile ranting akin to the specious arguments tax protesters use to claim the IRS is illegal.
For starters, Supreme Court decisions are not immutable: Brown vs. Board of Education flatly overturned the previous doctrine of “separate but equal”, and it didn’t requre a constitutional amendment to do so. Rather, it brought a case to court that pointed out that the “equal” part was so routinely violated that the previous standard could never effectively be upheld. Supreme Court decisions may be the law of the land, but that doesn’t mean that they are logically consistant or weren’t merely legalistic rationalizations for an Ad Hoc position the court majority took. Many people believe the logic of Miller to be incorrect, and they ARE doing something about it: they’re bringing a case to the Supreme Court that will finally explicitly state either that the government can regulate private gun possession out of existence, or it cannot. If the SC does rule that DC can effectively ban private firearms, then we may indeed see a push for a constitutional amendment to rectify that.
Secondly, there seems to be a bit of a logical leap that we would like clarified: in Miller, the court ruled that the 2nd Amendment does not make federal laws banning some types of firearms unconstitutional. Accepting that as a given for the moment, how do you leap to the conclusion “and therefore, no one who isn’t a National Guard member should have a gun”? Miller brings up the word “militia” because the appeal was explicitly based on the 2nd Amendment, which uses the term. But the ruling says nothing about militia membership; it only addresses whether the firearm in question could reasonably be considered to be a military weapon.
Thirdly, there is disagreement over exactly what the letter of Miller means. Proponents of gun control hold that in the Miller case, the Supreme Court explicitly stated that the 2nd Amendment makes gun possession dependent on, and subordinate to, enrollment in a government-organized militia such as the National Guard. That the purpose of the 2nd is subordinate to that goal, and therefore all other considerations that don’t directly support the goal can be ignored. Yet opponents of gun bans hold that that interpretation of Miller is overbroad, and that nothing in Miller explicitly supports that supposition.
Fourthly, there is the whole can of worms over the fundamental definition of the terms “militia” and “well-regulated”. Proponents of private gun rights point out multiple writings by the Framers that would seem on the face of it to contradict the “National Guard” theory of the “well-regulated miliita” clause of the 2nd. Again, Miller does not define either term, or say what is and what is not a militia under the 2nd; it merely addresses the subject of certain classes of weapons- specifically, jury-rigged weapons designed primarily for committing crimes, with little or no military utility.
Lastly, the fact that there is so much controversy over the 2nd Amendment and the rulings and court decisions concerning it, is ample proof that there is legitimate doubt about the meaning and interpretation of the provisions. Debates over such meanings and interpretations are relevent, because otherwise the original intent of a written statute could by a slippery-slope process get interpreted out of existence. As I sarcastically said upthread “So apparently, the 2nd Amendment means ‘You have the right to be drafted and have the army issue you a weapon’”.
That is, in fact, Elvis’ apparent position. It is blatantly wrong. There is an individual right to own a gun.
First, I give you the 5th Circuit Court.
Second, I give you the Justice Department.
Elvis, the 5th Circuit is the step below the Supreme Court. Now, the question is, will the Supreme Court ever take another 2nd Amendment case, and settle this once and for all? I don’t think they will, sadly. I’d sure like to see them rule that the automatic weapons ban of '87 was unconstitutional. Because that’s pretty much how they’re stacked to go right now.
Your court. Find me newer or higher authority contradicting these two sources calling it an individual right.
Where is that definition from?
Arms, said alone, dates back several hundred years, and refers to the personal arms of a person. If a king had the responsibility to arm a knight, he owed him armor, a sword, a shield, and a horse, at the least. Going forward from that point, today, it generally is considered to be ‘small arms’, the arms personally assigned to a soldier, rather than the larger ordinance in a unit’s table of equipment.
… I mean, I don’t know where it’s from. But I rather suspect it is related to the word ‘arm’ meaning the things on your shoulders, and related to ‘the things you put in people’s hands’ because to give someone a sword is to arm them.
But do you have a cite from a dictionary, court ruling, or somewhere? When I look at dictionaries they have a much wider definition of arms than you are using.
Are you really incapable of understanding the text of the decision in Miller? The SCOTUS ruled that for an arm to be protected under the Second Amendment, it must be appropriate for military use. They did not rule that the right to keep and bear the arm is contingent to doing so in the service of an actual, well-regulated militia. It is only you who is spinning this fantasy out of thin air.
Now, the question is: does a guarantee of a “right of the people” secure a right for the individuals that comprise that people? I sure hope so, because otherwise I have no right to be secure against unreasonable searches and seizures under the Fourth Amendment. Jeebus, you ought to work for the Bush administration, Elvis; you’d fit right in.
If the drafters of the Bill of Rights had meant only that states should be able to arm their militias, they would have said so; instead, they guaranteed a “right of the people,” and the meaning of that should be clear to anybody who isn’t trying to twist the facts to fit their agenda.
Why don’t you try reading it? They pretty clearly declared suitability for militia use to be the criterion.
It goes back at least as far as Swift & Co. v. United States (196 U.S. 375) in 1905 when the USSC used the ICC as a basis to justify federal regulation of local meat packing plants.
The issue isn’t whether or not it’s a good law. It’s whether or not it’s constitutional. A law mandating recording gun ownership would not infringe on gun ownership - so it wouldn’t violate the 2nd Amendment. A law that confiscated guns would obviously infringe gun ownership and would therefore be unconstitutional.
Saying something might at some future point be used as part of a process to confiscate firearms is a pretty broad brush. You could use this argument to say that the government shouldn’t have the power to issue warrants, for example, because warrants might be used to search for firearms if firearms were made illegal.
I still don’t buy this; registration creates a necessary condition in order to perform an action without going to jail for it. I think that under those circumstances it is reasonable to say that if a “right” exists to perform that action, that right is being infringed.
Little Nemo, Napier, what you’re missing is the other side.
Yes, if gun registration was required, that would not be a problem. If a gun is not registered, what then?
If it is in any way confiscated or otherwise rendered illegal to own, then it impinges on the 2nd Amendment. There’s no way to enforce the law, without violating the 2nd.
Now, I suppose required gunshop owners to register all sales, and requiring licenses for firearms dealers that would be revoked if it was found they did not record sales- neither position, as salesman nor as dealer, being necessarily protected by the 2nd- that would be fine, but that’s mandating registration by seller of all sales, and not registration of all firearms- and I don’t think there’s a way to legally make it stick to private sales.
Notice that the next sentence specifies nuclear arms as a specific qualifier. If unspecified, it tends to mean simple firearms.
The key is to note the difference between arms and ordnance.
Now, you could try to argue that nukes are covered under arming yourself, but that doesn’t seem to be how the Supreme Court has interpreted the matter. The distinction I made seems to be the current operating definition. On the other hand, yes, you’re right, an argument could be made to made the distinction cover larger weapons. It’s not likely, but it’s more likely than greater restriction.
I am loathe to get involved in these “debates”, but I will point out that believing that the 2nd amendment does not grant an individual right is, in no way shape or form, “blatantly wrong”. You may believe it is wrong, but, given the historical evidence, analysis of Miller, and the split in the circuits, calling it “blatantly wrong”, as if it is well settled, is going well too far. While DC and the 5th have found it so, many other districts, including the 9th in Silveria v. Lockyear, the 10th in US v. Oakes; and others.
There is a great amount of legitimate historical evidence, language interpretation, and arguments on BOTH sides. Just because Elvis isn’t up to the task of proving it here, does not make his position “blatantly wrong”.
Never said they were. But that hasn’t happened yet, has it?
What the hell is the problem here? I haven’t said jack shit (here) about what *should * be the law, only about what is the law, at this time. :dubious:
Perhaps *you * can be the first here to explain why they bothered with that, if they thought there was an individual right beyond such definitions.
Unfortunately without any basis other than their own opinion that the Court just got it wrong. Which, unfortunately for those who think so, doesn’t matter on the ground.
I know that. But if that’s the remaining grounds to argue the matter, it already concedes that there really is no individual right - again, as the law is in practice, not what anybody other than the SC has ever thought it should be.
Not all controversy in life is “legitimate”. Much of the time it’s simple whining.
Perhaps you can add something more than snark, then.
No, no, but Elvis’ apparent position, which works logically out to ‘you have the right to be drafted and issued a weapon’, is blatantly wrong. I was replying to Lumpy’s post directly above that one.
Elvis seems to be ignoring my request for him to post opposing case law equal or better to my citation.