SB, you’re seriously claiming that this hypothetical mass popular uprising of rugged individualists would be “well-regulated”, even in the 18th-century meaning.
Do you truly not realize why you’re failing to convince anyone with that argument? Or why the Supremes in Miller held the opposite, reasonable view in creating the law of the land?
Like minty said, “Bye bye.”
It is indeed a very enlightening annotation, but it overlooks a few things. For example, it fails to mention that Presser v. Illinois, a case the note cites as the prime example of “the non-application of the Second Amendment to the states is good law,” states that “the right of the people to keep and bear arms is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence.” Furthermore, it should be kept in mind that Presser was decided in 1886, before the incorporation of rights via the Fourteenth Amendment really came into vogue.
And we can see a further result of that in yet another case the note cites for the same proposition, Miller v. Texas, involved a defendant who complained that his Second and Fourth Amendment (unreasonable search and seizure) rights were violated by the state. The case states, “We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and, even if he were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts.” Yeah, you’ll get really far today with an argument that state entities can perform unreasonable searches, but federal entities can’t.
So in short: yes, the laws are still on the books, but they’re old and outdated. Damn near every other right enumerated in the Bill of Rights has been held to apply to the states, not just the federal government, and the Supreme Court hasn’t been asked to rule on any Second Amendment issues for about 70 years, and it hasn’t ruled on Second Amendment incorporation of the Second Amendment since 1875, when the ink on the Fourteenth was barely dry. The issue is ripe for change.
duh. Please ignore the “department of redundancy department”-esque error in that last paragraph of mine. The sentence should read:
“Damn near every other right enumerated in the Bill of Rights has been held to apply to the states, not just the federal government, and the Supreme Court hasn’t been asked to rule on any Second Amendment issues for about 70 years, and it hasn’t ruled on incorporation of the Second Amendment since 1875, when the ink on the Fourteenth was barely dry.”
The U.S. Circuit Courts of Appeals, however, have consistently ruled that the Second Amendment applies only to the states, and they have done so right up through the early 90s, IIRC. And I have looked it up before–the cases are easily found in the annotations to the 2nd Amendment in the U.S.C.A.
The U.S. District Courts also issue such rulings when the occasion requires them to do so. The state of the Second Amendment’s application (or rather, non-application) to the states is simply not in question, not even a little bit.
The Supreme Court, by the way, has been asked numerous times to review Second Amendment cases. It has uniformly declined to do so since Miller. This is not surprising, since there is little actual dispute in the state of the law. The closest thing to a dispute I’ve seen is the Fifth Circuit’s recent Emerson case, for which there is a pending petition for writ of certiorari in the Supreme Court. I do not expect the Supremes to take the case, since the result of Emerson is 100% in line with existing precedent and the only controversial part of the decision (individual vs. collective rights) is pure dicta, as described in Judge Parker’s excellent concurring opinion. It certainly would be interesting if the Court accepted the case for review, however.
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Yes. If one trained in the skills necesary for warfare - survival, woodsmanship, marksmanship, etc. - and it were encouraged that men be “rough” and capable, then it would be relatively easy to create an army of citizen soldiers. Especially given that the social climate lent to people knowing their neighbors intimately, people could easily band together as a neighborhood to form a fairly cohesive fighting unit.
Apparently, the only way you’ll accept the “well-regulated” part is if the militia is organized and directly subordinate to the government. That idea is obviously counter to the intention of the militia - to empower the populace against the government.
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Yes. Everyone here has already made up their mind prior to this argument.
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That the citizen militia, the ultimate protector against a government gone tyranical, should be directly subordinate to, and organized by, the federal government?
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Whee.
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If the Supreme Court’s view is that weapons relevant to the function of the militia are relevant, then why does federal law prevent me from owning the current military arm of the US Army without jumping through tons of hoops and paying 8 times market value? This certainly seems worthy of a Supreme Court case to me.
I’m hoping Emerson reaches the top, just so we can get a less ambiguous view of the official view of the State on how it’s peasants can defend themselves.