SC decisions trump lower court decisions to the contrary.
If I have to explain that to you, there’s just no hope.
BTW, Guard membership is by enlistment, not the draft. But if I have to explain that *too * …
The text and history of the Second Amendment conclusively refute the notion that it entitles individuals to have guns for their own private purposes. Instead, it protects the possession and use of guns only in service of an organized militia. This text and history was properly interpreted in US v. Miller, where the Supreme Court stated:“[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [the state-regulated militias] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” Any right to possess, keep, or bear arms is only in relation to proper militias.
The 2nd Amendment, in its very text, has limiting language: “A well regulated Militia, being necessary to the security of a free State, . . . “ Nowhere else in the Bill of Rights is such a preamble necessary. Rather than believe the founders liked the use of useless, flowery language, the preamble can only be read as a limitation on the right to keep and bear arms. From even the year after the 2nd Amendment was adopted, in the Second Militia Act, Congress provided specifics for the regulation of militias, including what weapons members must have. This preamble clearly indicates that whatever right to arms exists, it only exists in relation to the militia and not as a personal right or self-defense.
Even the second phrase indicates this. The terms “arms” and “bear arms” were, in 1791, understood to refer only to the military use of weapons. The OED in 1791 bears that out, as well as the congressional debates from 1774 through 1821, where, in every one of the thirty uses of the phrase, the phrase matched the idiomatic meaning of the day in a military way. This reading is even further shown by the use of the term “keep” arms, which was, in fact, mandatory for militia members, and not seen as an individual right.
Note: I’m skipping the more tedious history related discussions of the 2nd Amendment. There is evidence for both sides, and I, for one, am not swayed either way. If you’re interested Here is a brief with some of the information
In US v. Miller, the Supreme Court was clear, the Second Amendment must be interpretated and applied with the purpose of the militia in mind. And nowhere does it protect an individual’s right to have a weapon.
Bored now.
I think Miller is pretty clear that the “right of the people to keep and bear arms” was limited to only include those that are part of the “Well regulated militia”. If you need more: “Virtually every court to consider the issue prior to Miller upheld legislation on firearms challenged under the Second Amendment or state analogues. See, e.g., Aymette v. State, 21 Tenn. (2 Hum.) 154, 157-58 (1840) (“bear arms” does not mean an individual right to carry weapons for personal use, but rather implies a right to bear arms only as related to military use); see also Fife v. State, 31 Ark. 455 (1876); State v. Workman, 14 S.E. 9 (W. Va. 1891); City of Salina v. Blaksley, 83 P. 619 (Kan. 1905).” From an amicus brief.
But, in addition to Miller and those, you could look at: "3 See, e.g., Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942); United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984); United States v. Rybar, 103 F.3d 273, 285-86 (3d Cir. 1996); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995); United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976); Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999); Cody v. United States, 460 F.2d 34, 37 (8th Cir. 1972); Hickman v. Block, 81 F.3d 98, 101-02 (9th Cir. 1996); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977); United States v. Wright, 117 F.3d 1265, 1273 (11th Cir. 1997). The 5th and the DC are the only circuits who have found an individual right.
Hamlet, that was addressed in the thread. The question is what constitutes a well-regulated militia. Elvis is restricting it, offering no evidence or proof for his position other than the fact it’s the only militia he cares to recognize, to the National Guard. This is obviously patently false, so where is the legal limit?
Not really. The question is “Is there a Constitutional right to keep and bear arms that extends *outside * the definition of a well-regulated militia, i.e. is the cherished individual-right interpretation supported by the law as it stands?” The answer, thoughtfully provided by the only people authorized to give one, is No. Deal with it.
There’s room to claim that there are “well-regulated militias” that are not part of the National Guard but are still covered, but that is quite tangential a point and I’m not really interested in it. There is *not * room to claim that individual ownership is covered under it, though - the claim’s frequent repetition does not make it any less silly.
Thanks, Hamlet.
So we all agree that the 2nd Amendment DOESN’T protect an individual right, but rather a right in relation to a “well-regulated militia”? Great. I misunderstood. And, apparently, so did the lower court in Heller.
The limit on what is a militia? Well, it’s pretty clear it isn’t Joe Blow sitting at home with his AK-47. That’s not “well regulated”. And it doesn’t mean, “all citizens who sit around and MIGHT become part of the militia.” Back in 1791, when the Anti-federalists were afraid the Constitution would grant the federal government the power to disband State militias, they were organized, trained, and enrolled citizens who were serving as their state’s military. Today, in 2008, I don’t think that’s much of anyone.
Let me add something to my last post (darn edit feature didn’t last long enough).
"Today, in 2008, we could look at the US Code Title 10, Section 311:
"(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.
Cite.
Using the Code definition of militia, I think you’d be hard pressed to say that the “unorganized militia” is anywhere near a “well regulated militia.” So, we’re left with the conclusion that it’s the National Guard and the Naval militia. And not individual gun owners.
So, how do you explain the Justice Department and the 5th Circuit Court coming to an expressly opposite conclusion, Hamlet? I’m afraid that you are clearly a better law-talking man than I am, so explanations are necessary. I am listening, though.
Well, the Justice Department I can explain easily. It’s a bunch of politicians who do what the Republican party wants them to do. (Sorry, I’ve lost a ton of respect for the DOJ in these last 7 years).
The 5th Circuit opinion in Emerson simply focused more on the second part of the second Amendment, “the right of the people to keep and bear arms, shall not be infringed.” To them, the preamble was merely prefatory, and in no way limits the second phrase. So, to them, there is a right of the people, not a right of the people in the militia.
They then go on to the long history of guns in the US (ignoring, in my estimation, the long history of gun regulations too), and delve into the necessity of guns in the American revolution.
They also stated that Miller didn’t actually HOLD that the right was tied to the militia, only that the type of arm ( a shotgun) was not a typical military issue. “We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller.” (Personally, I think this is a tortured reading of Miller.)
Of course I haven’t spent enough time on these issues to do either side true justice.
You know what? Fuck it. I’m tired of arguing with brick walls.
The whole thing may be moot in a little over a week’s time anyway.
His position that Miller comes down squarely on the “collective rights” side is what’s blatantly wrong; all that was decided in Miller was that arms not suitable for military use were not necessarily protected. At least, no opinion was given on the collective vs. individual right issue, and at most, it was simply taken for granted that the 2A specified an individual right.
Again, I would like to hear where restrictions on “the right of the people to keep and bear arms” are explicitly stated. The text of the amendment simply shows the purpose for which a “right of the people” is guaranteed, but it falls far short of actually implying that the right of the people applies to anything except for, you know, the actual people.
But this is all irrelevant for most people anyway, legally speaking; most states have a much more explicit guarantee of individual firearms rights, and the federal government has no authority to override that.
But that notwithstanding, I’m still stocking up on AR15s before Obama and/or Clinton get elected this year. :smack:
I’m still dubious, Hamlet. I’m coming down with the flu, and I can’t concentrate long enough to parse what you said, and I’m sorry. I want to perform some serious critical analysis of your cites, and I’m not capable.
Frustrating. God, I hate ADD. Anyhow, that being said, I intend to come back to this thread once I can focus, and try to counter your arguments. Because they’re damn good arguments, possibly the best I’ve seen on this topic.
(If you look earlier, you notice I share the opinion of the DoJ at the moment. The only reason I brought that specific cite up was to counter Elvis’ citeless and baseless argument from handwaving. I figured an argument from two branches of government was about as strong as I could make it.)
I see you are citing a lot of caselaw, and, as I’m not a law talking guy, I don’t have a good idea where to find 'em.
I see some specific weaknesses in your argument.
is arguable, very much so. Not able to do so at the moment, I apologize.
I am quite reasonably sure that I can counter this argument as well. However, I have the worst trouble finding definitions from a specific time period. I salute your ability to do so.
Later: Hm. Can’t find a 1791 OED to check your statement of the definition.
http://www.saf.org/default.asp?p=rkba_protections does seem to have many quotes from state constitutions.
That seems an individual right. Weird. Not what you said at all. Can you find me these congressional debates?
If I recall my constitutional history correctly, the Bill generally comes from George Mason, who wrote the above. Him and Madison. This does read like a long-form. “The right of the people to keep and bear arms”. Again, keeping arms is pretty easily an individual right, by your definition, according to all definitions of ‘keep’ I can find. So, keeping a gun is individual, but using it is not?
Seems wrong.
I should say that Madison is noted as synthesizing many bills of rights into the Constitution, so let’s look at some others from that time frame.
… well, hell, go Maine!
I’m finding a lot of period examples of an individual right to bear arms. So… what, you’re just not looking the same places I am? I guess. I don’t know.
Ex: I somehow doubt that it’ll be anything more than the cutesy dancing around sort of thing the Court’s done for the last few decades.
And… shit, I’m gonna need to read all this stuff.
I’ve provided a quote from Miller itself. Here it is again: ““[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [the state-regulated militias] the declaration and guarantee of the Second Amendment were made. And here, is another one: “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Taken together with the actual holding (overruling the trial court’s finding the action DID violate the defendant’s individual right in the Second Amendment”) it’s pretty convincing evidence (moreso than just repeating the same thing over and over) that the Second Amendment does not grant an INDIVIDUAL RIGHT. Even under the best, realistic, reading of Miller, the court thinks whatever right there is, must be linked to the militia.
If you want to argue US v. Miller grants an individual right, I think you’re wrong and the opinion itself shows you are wrong. There is room to argue that it didn’t find a collective right either, but saying that, with the exception of 2 circuits, every federal court that has considered Miller has been “blatantly wrong” is ludicrious.
The argument is that the Second Amendment is the only one that has such prefatory language, and, as is the accepted form of Constitutional interpretation, every part of the Constitution has a meaning, otherwise it wouldn’t be included. Simply ignoring the first part of the phrase is unacceptable. In addition to the phrase, when you look at the purpose the 2nd Amendment was enacted (to curtail the standing Army of the Federal government and keep state militias) it had nothing to do with private gun ownership.
Do you happen to have a cite for that?
:rolleyes:
I’m sure you’re excluding me from this little hissy fit.
Quite possibly. If stare decisis, judicial restraint, and deference to the legislature are merely watch words instead of consistent judicial philosophies.
No worries. Personally, I think the historical debate over the 2nd Amendment is a zero sum game. There is evidence on both sides and neither side is absolutely convincing, to me at least. It’s a good example of the problems with original intent. I’m convinced that the founders themselves and the the people who ratified the Constitution weren’t in agreement whether or not the Second Amendment recognized an individual right anymore than we are today.
If you’re interested, most of the minimal research I’ve done recently can be found in the briefs on the case before the Supreme Court.
Here is the petitioner’s (DC) brief
Here is the respondents (gun owner’s) brief
There are also a great many “friend of the court” briefs, filed by the likes of the NRA, the DOJ, ex- military men, historians, and others. It’s a mess out there.
Don’t tell anyone, but I do too.
I took most of the assertions from the briefs or a law review article. Oddly enough, I don’t have a 1791 OED either.
One thing to remember is the difference between state constitutions and the federal constitution. Many state constitutions, like the ones you cited and Pennsylvania, have much more clear language about the extent of the “right to keep and bear arms”. But, as far as the federal Constitution goes, that clarifying language just isn’t there, and wasn’t there in the Congressional debates (another point I lifted from the brief).
These are the arguments put up by the DC. And they are actually tenable arguments. As are the ones on the other side. Both sides in this debate have good points, bad points, historical support, and common sense. It is not an easy decision.
Personally, I find myself coming back to the fact that I don’t believe there was any actual consensus in 1791 whether or not the Second Amendment protected an individual right, a collective right, or some sort of amalgam of the two. I find it to be an obvious flaw in putting such emphasis on historical research and pretending to find an original intent, though.
If absolutely pressed, I would have to come down to I think it is an individual right that is limited by the prefatory purpose, the creation and maintenance of the State militias. I don’t think it was adopted to protect an individual right, I think it was adopted as a federalism issue, to protect the militias. The fact that there were people who believed it to be an individual right, however, is compelling. I just don’t think that the Second Amendment was meant to enact that.
With such a limitation, I don’t think that it is a Constitutional right that should be subject to heightened scrutiny. So, in the end, I think any gun control legislation should be tested whether it is a reasonable restriction.
Hope that clears up my points a bit.
I believe it’s intellectually dishonest for you to trumpet these principles now, only when they happen to help you reach a result you wish.
Where was your desire for stare decisis, judicial restraint, and deference to the legislature when Lawrence v. Texas was being decided? Where was your admiration for these principles after Massachusetts gave us Goodridge?
I think the DC government’s decision to effectively ban all guns is unwise. But I gotta tell you – I’d happily see the court uphold it and reaffirm Miller if that meant a similar analytical approach across the board for all issues. But you can’t haul out a sixty-plus year-old decision and rave about the beauty of stare decisis when you were happy to see more recent precedents get mowed short with no particular regard to stare decisis, judicial restraint, or deference to the legislature.
And I think you’re doing nothing but engaging in ad hominums, because it’s all you got. You see a post that has the term stare decisis by someone who disagrees with you on the proper mode of Constitutional interpretation, and you pop in, like a whack a mole, to, once again, pretend the superiority of your view.
Is that the best you got? Unless you believe that no case EVER should be overruled (which I am sure you don’t), then there will always be an exception to stare decisis. But it’s people like you, who jump all over it when someone else does it, that are being dishonest.
Bowers was wrong. It was wrong when decided and wrong when Lawrence overruled it. Goodridge was a proper execution of the judicial function of protecting the rights of the people against unconstitutional governmental intrusion. But, no matter what happens, you’ll just pop in and play these little “gotcha” games. It’s what you do.
And the same. I couldn’t help but notice you didn’t even touch on the issues in the thread. How surprising.
Sticking my head in briefly, still feeling like crap.
I was hoping it was online in Project Gutenberg or something, it should be out of copyright. I see references to it all over the place.
My point is that when looking at period laws, one notes that Madison took the Virginia constitution, then analyzed the other states and adapted 'em. The Virginia is pretty clearly the base thereof, and I see that the other 12 colonies had ‘bear arms’ wordings clearly meaning individual rights.
… I can also note that Virginia was a slave state. The northern states seem to have more specific individual rights than the southern ones. I can theorize something about that, involving fear of slave revolts and so forth.
I think I have a point there about keeping and bearing, but I have to figure out what it is. Anyhow, I’m gonna need more data or more context to actually analyze your argument, because what you gave me just isn’t enough. When I posted my arguments, I tried to present them in reasonable context, with backcites.
But I’m going back to sleep now.
Oh. Little more. I can accept it as a muddled mess. I can’t accept it as Elvis’ perspective on the matter, because, well, it doesn’t make any sense. If you’d be so kind as to look over his arguments and see if you can… well, find them, I’d be appreciative.
Bricker, I’d love your perspective on things, too.
If that were true, then it would be the right time to have stare decisis lose the balancing test. As you suggest, I don’t think every case should be set in stone for all time.
But I disagree with you on a basic view of the role of the Constitution, which you see as a very flexible tool to implement the public policy flavor of the moment, and I see as a bedrock set of laws that can legitimately be known collectively as the supreme law of the land.
Yes, because my view is better than yours, and every time you post something touting your view, I’m going to come along and point out how bereft of intellectual honesty your view is. You are results-driven – whatever analytical method works best to get you to the result you wish in any circumstance is the one you embrace.
In the 8-plus years I have participated here, I have offered countless Second Amendment arguments, and frankly didn’t see much value in doing so again.
But in a nutshell: either incorporation is valid or it isn’t. There is no logical reason to read parts of the Constitution differently; to conclude that the First Amendment and the Fourth Amendment are incorporated against the states, but that the Second Amendment is somehow exempt from that process. That’s a perfect example of results-driven thinking. We LIKE free speech and freedom from search and seizure, so those are GOOD amendments and are thus incorporated. We don’t like evil nasty guns, so that’s a BAD amendment and isn’t incorporated. Honesty requires that we adopt an approach and apply it to the entire document, not pick and choose which method we will use to discern the meaning of which section.
There is, now, way too much case law to put the incorporation genie back in the bottle. While in an ideal world, I wouldn’t have had us start down that path, it’s done. So incorporation is a valid process and the Second Amendment applies to the states. We can thus dispose of Presser, which was a pre-incorporation case in any event.
Now, does it guarantee an individual or a collective right?
Answering this question again requires that we pick one method of analysis. Every place in the Constitution that “the people” are mentioned outside the Second Amendment refers to individual rights. “The right of the people to peaceable assemble;” “the right of the people the be secure against unreasonable searches.” If I ever suggested that the Fourth Amendment protected only a “collective” right, your head would explode. When the Constitution discusses a power or right of a state, the language is “the States.” The Tenth Amendment makes very clear that the two concepts are separate.
Now, the language in US v. Miller that you worship so dearly is dicta. Miller held that a cut-off shotgun is not a militia weapon, and thus unportected by the Second Amendment. It says nothing about who would be permitted to possess a weapon that WAS a militia weapon. But even assuming that Miller is controlling, it, like Bowers, was simply wrongly decided. And let’s face it: you can hardly point to the factual record in Miller as a shining example of a completely developed argument, considering that one side abandoned their cause.
If i can be so bold
What about the State of Kansas which states that every able-bodies man between 18 and 45 and not a consiencious objector is in the milita?
Does this mean a Kansas male is protected by the 2nd amendment even if not in the National Guard?