When asked about what was contrary to precedent, why do you think citing a dissent is relevant?
The fact is, Heller was consistent with Miller. The idea that Heller reversed anything in Miller is false. Heller actually discusses Miller and addresses this directly. From the opinion itself:
My answers are consistent with the interpretation that the militia clause cannot be used to infringe on the people’s right to keep and bear arms.
The 2A grants an individual right, and the militia clause cannot be used to infringe on it. Saying “you can’t use this to infringe on a right” is different from saying it is meaningless.
Regards,
Shodan
I think I’m missing the distinction you’re making. If the militia clause can’t infringe on the individual right, then that seems to me to be equivalent to say it has no effect on the right. And if the militia clause has no effect, that seems to me to be saying it’s meaningless in a legal sense.
Those are not equivalent. The militia clause can have purpose other than infringing on the individual right. You seem to be saying that the only purpose the militia clause can serve is as a restriction. But that’s not accurate.
It’s a meaningful distinction - the first sentence is not correct. The 2nd Amendment does not grant any rights. SCOTUS has been consistent about this for it’s entire history.
I was asking about express powers, not powers that have been conjured into being through wide interpretation. It’s is funny though, that for decades it has been claimed that the authority for gun control was the commerce clause but in nearly all cases* when said gun control was challenged, the government used Congress’ power to regulate the militia as the justification (now of course invalidated). Can you explain that?
*exceptions being cases on actual commerce – federal licensing of manufacturers, distributors, dealers – and cases about dispossession, e.g., felon gun prohibitions etc., argued (successfully) that criminal activity negatively impacts interstate commerce.
Absolutely NOT the holding of Miller, thus a lie and misrepresentation (which of course is a good summation of Stevens’ dissent in general). Miller’s entire focus was on the weapon and it’s military / common defense usefulness. The right of Miller and Layton to possess and use a shotgun with a barrel length ***OVER ***18 inches was never something the Court asked or answered. The Court’s entire focus was placed on the shotgun with a barrel length LESS than 18 inches, and if that type of arm could be shown to be, “any part of the ordinary military equipment, or that its use could contribute to the common defense”.
If the gun was of a type that is, “any part of the ordinary military equipment, or that its use could contribute to the common defense” then that gun would have “some reasonable relationship to the preservation or efficiency of a well regulated militia” and the NFA-34 would have been struck down.
To have 2nd Amendment protection, the citizen’s USE doesn’t need to be shown to be “for certain military purposes”, the arm simply must be shown to be of a type that has military / common defense usefulness.
(Not forgetting the and/or, in common use by the citizens)
Hilarious bullshit.
Well, as I said those judges served on lower federal and state courts, which are not “precedential” to the Supreme Court.
The “view” that those courts “relied” on was a misrepresentation of Miller that was inserted in the federal courts in 1942. In *Cases v US *and *Tot v US *they took *Miller’*s explanation of the object of the 2nd Amendment and applied that to the pre-existing right to keep and bear arms. Those two cases birthed the “militia right” and “state’s right” respectively, and those cases and ***those ***interpretations became the bedrock those “hundreds of judges have relied on”, writing opinions each distancing themselves further and further from the Supreme Court’s Miller holding.
It’s like a bunch of drunks leaning on each other for support; well Heller knocked the legs out from under the strongest drunks named Cases and Tot and now we will watch all the drunks fall.
Another lie. The Lewis Court spent may words explaining how Lewis, (a convicted felon) could have regained his right to own a firearm. They laid out all the different scenarios that he could have followed and not one of them included or required Lewis to enroll in a militia. In Lewis, the Court only mentions Miller once, in a footnote, and only to note that: “*These legislative restrictions on the use of firearms *[felon dispossession] are neither based upon constitutionally suspect criteria nor do they trench upon any constitutionally protected liberties.”
Well, that’s to be expected because felon dispossession has nothing to do with the military usefulness of the weapon . . . OTOH, felon dispossession would have a different (or at least an additional) justification if Stevens was correct about a citizen needing to have a militia association to claim the 2nd Amendment, which the Court would certainly have explained, not completely ignored.
Felon dispossession was not an issue in Miller so why it was cited in Lewis is a mystery, but why Stevens had to misrepresent Lewis and say that Lewis affirmed Miller is not, Stevens is simply a full of shit liar.
And Stevens runs straight into the truth that the framers knew they weren’t creating or granting the right. Stevens’ dissent makes the right entirely dependent upon the 2nd Amendment and his restrictive interpretation of the words. The arguments against a bill of rights were focused on how *any *attempt to list or explain rights could be employed as a way to say “this is the full complement of rights” or that what they stated was the full extent of an enumerated right. It’s not correct to say that the framers didn’t want to “broaden the coverage” of the right, they knew if they called out certain uses, that would be interpreted as throwing all other uses into Congress’ hands.
In Steven’s mind, there is no way to have any right if it wasn’t explicitly spelled out . . . OTOH, the lack of an expressly enumerated power does not limit the powers of government (Congress).
Stevens’ argument follows the fears of adding a bill of rights, his arguments are exactly what the Federalists warned us about. Even more egregious, Stevens’ dissent directly contradicts SCOTUS explanations of the right, Stevens’ argument is that we use the words of the 2ndA to qualify and condition the right when SCOTUS has told us the right to arms is in no manner dependent upon the Constitution for its existence.
I address Breyer’s dissent in my next post . . .
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I feel we’re talking about the legal effects in this thread. The militia clause might serve some political purpose (perhaps it made the Bill of Rights more acceptable to people voting on them) but judges deciding cases wouldn’t base their decisions on that.
If you’re suggesting the militia clause might be adding something to the individual right, I’m not seeing how. If you concede an individual has the right to own and carry firearms in general then giving one reason why they might do so doesn’t add to that right. A person might own a firearm to fulfill their duties in a militia. Or they might own a firearm for self-defense or for hunting or as a collectible item or for competitive shooting; none of these reasons are listed in the amendment. That’s because if the individual right is established, it’s not necessary to offer suggestions as to why somebody might want to exercise it.
In legal terms, it means a judge can’t base a ruling on why a person owns or carries a gun (except if the purpose is criminal). A judge can’t say “You aren’t entitled to own this firearm because you would not be doing so in a manner that is conducive to the existence of a well-regulated militia.”
N.B.: That’s not the Constitution, that’s the DoI. The Constitution is a binding legal document. The DoI is a revolutionary document with no surviving legal significance whatsoever.
Here’s an analogy to illustrate the point I’m making.
Suppose the Constitution said “Everyone enjoys a parade, so the right of the people peaceably to assemble shall not be prohibited.”
And this dialogue was the result:
“Does the parade clause have meaning?”
“Sure it does. It says everyone enjoys parades.”
“But are people only allowed to assemble for the purpose of holding a parade?”
“No, people can assemble for any reason they want to as long as it’s peaceful.”
“So they can assemble for parade-related reasons or for reasons that are completely unrelated to parades?”
“Yes.”
“Then the parade clause has no effect on the meaning of the right to assemble. It doesn’t add anything to the right and it doesn’t subtract anything from the right.”
I like them all. None either prove the . . . well, whatever it is you are arguing now, or disprove the individual right interpretation.
That is the “object” of he 2nd Amendment, why the AMENDMENT is there. The AMENDMENT was adopted with a purpose of perpetuating the militia. The militia can not be called up or trained or organized or deployed if the citizens are not armed. The actual structure that is established in Art I, §8, cl’s 15& 16 is predicated on having armed citizens to call on; citizens who only serve when called. It is they who possess the right to arms, not the militia. Their arms facilitate the structure, the structure is not the purpose for their arms.
OK. The Amendment must be interpreted and applied with the object in view. The object was to preserve the continuation of the general militia concept so that both the states and the federal government would have a ready pool of properly equipped citizens to call up at a moments notice, mustering with an appropriate arm furnished by themselves, to aid the civil authority when circumstances demand it.
The object also is “to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution”. It does this by assuring the people that because “the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority” (Aymette v. State, 2 Humphreys (Tenn.) 154, 158, cited by Miller).
So fine, I have no problem interpreting and applying the 2nd Amendment on those principles.
No rights are absolute in an ordered society and no powers are absolute in a Constitutional Republic. The fact that the right to arms is enumerated in the Bill of Rights, takes certain policy choices off the table.
An then he goes directly to the words of the 2nd Amendment to conjure a restrictive “scope” from words that the right in no manner depends upon.
Stevens should have confined his legal expeditions within the boundaries established by long-standing Supreme Court explanations of the right to arms and the 2nd Amendment (two separate and distinct things).
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Yup, I agree . . .
Touché. I’ll give you the benefit of the doubt that you posted it with sufficient thought and appreciation for how that cuts both ways.
In 1876 the Supreme Court recognized the right to bear arms for self defense in public from the KKK / Night Riders, as being possessed by two former slaves, then citizens, in 1873 Louisiana, a state that had no state militia, it having been disbanded by Congress. Even if the state had a militia, these two men of African decent were not allowed to even enroll because US law only allowed “free White male citizens” to be members.
So, you’re wrong.
NFA-34 was the first federal gun law and it was written in the tax code. Congress knew then that it could not actually ban machine guns and other Title II arms but it presumed it could tax the transfer of them between citizens (and the only way to make sure the tax was recorded was to create a registry). So far the power for that has been upheld (although it has been questioned, the latest being in Heller).
As far as a significant group, the NRA was established in 1871. Of course their opposition to gun control didn’t really get rolling until 1968, with the next round of federal gun laws.
There wasn’t any “legal argument” against the individual right (at least federally). That states wrote and enforced laws disarming Blacks was a major reason why the 14th Amendment was proposed and ratified. Nobody questioned that citizens possessed an individual right to arms; even the horrible case of Dred Scott v Sanford can be pointed to because Tanney observed that if Blacks were accepted as citizens, they would possess the right to keep and bear arms wherever they went.
Even after Blacks became citizens and even after the 14th Amendment, Blacks were put under laws disarming them and state militias were the brutal enforcers o the “Black Codes”. This is where we see the “militia right” interpretation being employed by states to defeat the right to arms claims of Black citizens. Since the federal Militia Act said only Whites could be militia members, states that wanted to see Black stay disarmed argued that the right to arms was only for militia members . . . and viola, Blacks could be excluded from having any gun rights recognized. That disgusting, anti-constitutional argument was revived in 1942 to pervert Miller and the rights of all US citizens were held in legal purgatory for 66 years until Heller threw that shit out.
So, you’re wrong again.
It was just 3 years later in Cases v. U.S, 131 F.2d 916 (1st Cir. 1942) . . . The lower federal court decision that introduced the “milita right” interpretation I spoke of above, into the federal courts (paragraph breaks added):
[INDENT]"At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called ‘Commando Units’ some sort of military use seems to have been found for almost any modern lethal weapon.
In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus.
But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,-- almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-- is in effect to hold that the limitation of the Second Amendment is absolute.
Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, . . . "[/INDENT]
Wrong again . . . You are deluded or severely misinformed and no, Heller set the record straight, it didn’t disturb Miller, it affirmed it.
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I can appreciate that in theory. But in reality I have spent a few decades reading everything available on both sides of the argument and am very familiar with every aspect of the anti-gun position and every nuance of their arguments and I have witnessed the ever shrinking sophistication of the anti-gun argument.
My arguments against the ever stupider anti-gun positions remain the same they have been since the mid '90’s, they are wrong for a reason and I still like to show WHY they are wrong . . . Don’t think that I think that I will ever change THAT person’s mind; I post for the lurkers. Look at the page views of any gun thread, they are always among the higher # of views. There are a lot of people interested in the topic and looking for honest debate and supported info. So, I post for them which is why I post the way I do, exact quoting and dismantlement of the other’s statements.
Back in the '90’s and early 2000’s, both sides would present arguments like I present now, It was incredible and entertaining and informative. I started back on USENET in 1993 in talk.politics.guns; there were thousands of messages a day posted, hundreds of threads, all on law and policy and all the law was on the anti-gun side (the aforementioned “militia right” and “state’s right” lower federal court opinions) until Emerson in 2001.
Nowadays, I search high and low (I’m registered on about 25 political boards) to enjoy again that supported debate but it is harder and harder to find. I do tire of being told I’m an uncaring monster, eager to step over the bodies of kindergartners just to rub my penis substitute. Those “arguments” get old quick :smack:
Your argument, like every argument for your side, adds up to the U.S. Constitution and related case law being on your side. That’s all well and good. When the law is on your side, bang on the law, as they say.
On my side, there is the matter of many nations with democratic societies where people enjoy all the rights and freedoms that the FF had in mind, but without the need to put a gun in every hand. I see this as the preponderance of evidence being on my side. So I’ll bang on the facts.
You may have done your homework on the law since the 90’s. But I suspect you could not help but noticed that the socio-political change is swinging away from your positions. That scares you. Why else would you put so much effort into arguing on 25 internet venues. Because you know that laws can and do change. I will continue to argue and vote so that they do.
As to whether or not you’re a monster, that’s a matter for you and your conscience. You can hide behind standing law and Sov.Cit. mentality, but it’s not my job to help you launder it.
That wouldn’t have been the argument. The argument would have been that short shotgun were indeed, historically a military/militia weapon. Thus Miller would have been decided in favor of Miller.
You dont read posts thru, do you?
Miller did nothing of the sort. Miller ruled one thing and one thing only- that the 2nd Ad is not a protection vs laws that ban sawed off shotguns. That is all Miller ruled on. Period. Nothing else.
Miller is precedent for exactly one thing- that laws that ban sawed off shotguns are legal under the 2nd Ad. nothing else.
When the debate is focused the operations of the US government, especially as it relates to citizens, the Constitution and related case law is the only thing to be referred to, or relied on. Anything else is asking for the advent of either autocracy or anarchy with plenty of nasty crap in between.
The only other alternative is to advocate for scrapping this compact and, as the Declaration suggests, whenever a form of government no longer meets the needs or desires of the people,
[INDENT]“. . . it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”[/INDENT]
It’s simple, advocate for the formation of a new government, founded on different principles that you feel will be more conducive to the needs and desires of the modern enlightened Progressive.
The fact must at least have some rational relationship to the debate. Feel free to advocate for public policy to align with these utopias of safety and freedom that you have in mind, but those arguments have no weight in altering the ambit and action of the Constitution. The only way to do that is with an amendment using the process set-out in Article V, granting the federal government new powers to effect those changes.
And again, the Constitution doesn’t change because of public opinion and the powers conveyed by the Constitution can not retroactively alter the foundational principles. Yes, I know laws can change, I also know that Trump’s election has only postponed the eventual death of the Constitution and this Republic. Such an outcome has been acknowledged from the very start. as The Constitution Center reminds us:
[INDENT]“. . . upon exiting the Constitutional Convention Benjamin Franklin was approached by a group of citizens asking what sort of government the delegates had created. His answer was: “A republic, if you can keep it.” The brevity of that response should not cause us to under-value its essential meaning: democratic republics are not merely founded upon the consent of the people, they are also absolutely dependent upon the active and informed involvement of the people for their continued good health.” [/INDENT]
That so many have been either indoctrinated, brainwashed or imported that do not cherish and respect the founding principles and consider them binding, certainly means that the days of this experiment are numbered. That’s why I do enjoy the debate. As long as my arguments leave people like you countering them abandoning reason and appealing to emotion and to what other countries do, there’s a chance to sway opinions … . Thinking people can be brought to the correct conclusion, and opponents, hopefully they will realize they need to just get honest, stop the BS and argue straight-up against the Constitution.
I do think it’s amusing that you feel I should respect to your right to argue for ignoring the Constitution because you are pleading for the pure and progressive path of world harmony but you feel I’m “scared” to argue that we abide by the rules, thus my opinion is marginalized. Good God, I do detest the emotional equivalencies of the left.
As an aside (but not really) the only reason I voted for Trump was his promise to nominate originalists to the federal judiciary. I’m happy, no, elated at the progress on that front and those judges and Justices have the opportunity to slow, not necessarily repel, this march of the anti-constitution forces of the left.
LOL. If you get that I’m one of them you are lost. I advocate for everybody to respect and abide by the Constitution, nobody gets a pass, nobody is excepted, nobody is immune.
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Again, as Stevens pointed out: "Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;2 we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55 , n. 8 (1980).3 " Simply saying it isn’t precedent doesn’t make it true.
" To the contrary, colonial history itself offers important examples of the kinds of gun regulation that citizens would then have thought compatible with the “right to keep and bear arms,” whether embodied in Federal or State Constitutions, or the background common law. And those examples include substantial regulation of firearms in urban areas, including regulations that imposed obstacles to the use of firearms for the protection of the home.
He did. As he explained in his dissent.
“The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.”