Dang it, can’t even keep my sic straight. Time to go to bed.
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Thank you, nostradamus.
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Yes, but largely not their own rights.
Should their own rights come into question, or oppression become obvious, people will begin to fight back.
If, tomorrow, the government decided to impose a 95% income tax, do you think people would rise up to revolt?
If you take away the ability for the citizens to impose physical force - and you leave that ability strictly with the government - the government isn’t really put in check in any practical way. Sure, you could yell “hey! don’t do that!” really loud, but it’s not quite as effective as a high caliber slug in someone’s head.
Yeah, it does. Too bad. Every gun control thread I start with an intent of analyzing a specific thing (in this case, even without the second amendment, guns are clearly an unenumerated right), it turns into the old “the second amendment means nothing” or “guns kill cute little children” argument.
Minty green:
Just to be sure I’m understanding, is your practical analysis of the amendment:
“The people can bear arms so long as it does not interfere with the militia.”
or
“The government can create any regulation on arms so long as it doesn’t interfere with the militia.”?
That’s something I’m a bit confused off with all this semantic battle.
Oh: A little note about US v Miller.
For some odd reason, anti-gunners brag about Miller being a victory, and that still baffles me.
Miller was brewing moonshine in a still, and some ATF agents were trying to bust him. Since they couldn’t catch him in the act, they had to find something to bust him on. And lucky for them, they found his 16.5" barreled shotgun.
They arrested him, and informed him that he needed to pay a $200 tax to register that $3 shotgun, due to NFA 34.
So he went to a low federal court, his lawyer presented the case that the law, designed to make certain guns taxed out of existance, clearly violated his second amendment rights.
The judge noted that the same law, the national firearms act of 1934, heavily taxed and regulated fully automatic weapons, among other thing. Since severely taxing and restricting such weapons is obviously affecting the abilities of the militia by denying them modern military arms, he quickly ruled the NFA '34 is unconstitutional and Miller was released since his second amendment rights were violated.
The supreme court saw this decision, and a few months later decided to take it on for themselves.
Well, Miller was a poor moonshiner that travelled frequently. No one could find him. And no lawyers were empowered to speak for him. So in the supreme court case, US v. Miller, it was strictly the opposing (government) council talking to the judges.
The judge lawyer lied through his teeth. Well, he didn’t exactly lie, but he was very misleading. The court wanted to know if Miller’s weapon was relevant to the preservation of a well-regulated militia.
The government lawyer said “This shotgun, A Stevens model [something], serial number [something] is not used in any army in the world. Clearly, it has no militia relevance.”
Since there was no opposing council, this was not challenged. And the government lawyer was technically speaking the truth - no army used that same model shotgun with that exact serial number.
But short-barreled shotguns were in heavy use with most of the armies of the world, and so if the opposing council were there - if someone to defend Miller was there - they could’ve easily explained that to them. And since there was no opposition, no one could bring up the point that fully automatic weapons were on the NFA list, and since many military weapons are heavily taxed and regulated, it certainly infringed on the ability to have a well-regulated militia.
The Supreme Court ruled that the weapon that Miller had no right to a Stevens model [whatever], serial number [whatever], because it had no militia value. They made that ruling because the case of the prosecution was unchallenged in the court.
For some odd reason, anti-gunners use this case to say that we have no individual right to own a gun, and herald it as a huge victory.
In reality, it was a government deceiving lying to the Supreme Court. I didn’t even know it was legal to have a trial with only one side being represented, like that.
When Miller had representation, the case was quickly thrown out as a violation of his second amendment rights. It’s only when there was no opposition that they ruled against him, because they had no grounds to rule for him without someone making his case there.
And, oddly enough, Miller reaffirms the idea that military-type weapons are not only protected, but the most protected arms under the second amendment. The same anti-gunners will praise the ruling of Miller, and then tell you that you have no rights to “assault weapons” in the same sentence.
Oh well. I never expect them to be consistent.
That one. The confusion probably stems from my own drafting error on the last page. Sorry.
Cite, please? I guarantee that the Court heard the case because the prosecutor asked them to review the district court’s ruling.
Dude, that’s just freaky reasoning here. The Court clearly stated that it was the type of weapon that was unprotected by the Constitution, not the bloody serial number. Go to findlaw and read the case.
For some odd reason, pro-massive-stockpiles-of-weapons types have taken Miller to be a victory for them, despite the Court’s clear holding–consistently followed by every court in the country ever since the decision came out–that a gun has to be of a type suitable for use in a militia to have any Second Amendment protection. Yes, some people have read a militia-membership requirement into Miller, which is not unreasonable given that the Court indisputably gave substantive effect to the “well-regulated militia” clause in reaching its decision. But the core holding of Miller is that the feds can regulate the hell out of any and all guns that aren’t fit for use in a well-organized militia; it is silent (as it must be, since the question wasn’t presented) on whether a gun owner must be a member of a well-organized militia.
It’s not a trial, it’s an appeal. And litigants fail to show up in court all the time. I personally watched oral arguments for an appeal last year where the appellee’s lawyer failed to show up. Nevertheless, it is indisputably within a court’s power to pass judgment on your case if you can’t be bothered to appear.
Seriously, gun-rights people haven’t got even the tiniest little ant leg to stand on, legally speaking, when they complain about all the purported irregularities of Miller. The Court considered the question and issued its decision on the merits, not simply because the defendant didn’t show up. The presedent is as solid as any other Supreme Court case.
Ah, you have to admire the enthusiasm for killing our democratically-elected officials. Why is it that so many gun folks just don’t believe in democracy?
This is probably the best argument against the second amendment. It seems that you feel entitled to become an assassin everytime your democratically elected officials pass a law that you disagree with. This scares me. Worse things have been settled without violence.
You’re quite wrong about that. There are a couple of places in the Constitution where there is prefatory text that doesn’t affect the substantive text.
The clearest example is the Preamble (“We the People…” etc). The Preamble gives the reasons for establishing the Constitution, but doesn’t affect the substantive provisions therein.
If you’re looking for inter-sentence material, look at Art. 1, s. 8, cl. 8 – the copyright power. The prefatory clause is “to promote the Progress of Science and the Useful Arts”. Good luck challenging a copyright or even the copyright law in general on grounds that it promotes neither – the courts will consider that a political question, effectively nullifying the prefatory clause. (Even the folks who are challenging the Bono extension know better – they are challenging on the “limited Times” phrase).
And Minty, you should know better than to wave rules of statutory construction as though they were the legal equivelant of the Ten Commandments. I’ve seen several articles that try to list the most common rules, and they are inevitably contradictory, failing to include the same set of rules and frequently putting them in different orders of importance. And in many cases, the rules themselves are contradictory. They can be useful tools, but their use must be checked with a measure of common sense. After all, if we were to use the “give effect to every word” rule as literally as you want to, the Preamble would be enforceable law.
Strangely enough, “common sense” is exactly what I believe my interpretation brings to this debate. Virtually unregulated gun ownership has resulted in a disaster of serious violence for this country. I’m not out to ban every gun in the country, and I generally believe in allowing people the means to defend themselves, but there are all kinds of “common sense” regulations that I believe could significantly reduce gun violence without serious impact on the ability of people to defend themselves. YMMV.
Not really. I’m not arguing that “a well-regulated militia” is enforceable law. I’m arguing that it is a limitation, or maybe an instruction, on how to apply the enforceable law in the second clause. Similarly, all that “more perfect union” and “domestic tranquility” stuff could easily be seen as instructions on how to apply the provisions of the Constitution. This would be a good thing, IMHO.
Dewey, you’re leaving yourself with the task of determining which clauses are limiting and which are simple commentary. IANAL, but even I know that something stated directly in a court ruling is not mere dicta, which is the comparison you seem to be trying to make. Part of the Constitution itself is not mere commentary on other parts; it has weight of its own. Ignoring or dismissing it is dishonest.
Actually, that’s incorrect, Elvis. Dicta is any statement of law that is not necessary to the outcome of the case. If the Supreme Court rejects an appellant’s argument because of principle A, and along the way states that principle B is also true, the Court’s statement of principle B may be dicta. Dicta can be persuasive authority, but it is not binding precedent.
Thanks for the clarification, minty.
Our friend Dewey is still stuck, though, with his claim that the first half of the sentence in question is simply explanatory, while the Supremes in Miller already held it to be limiting, right? If so, I know who wins that disagreement.
Indeed, Elvis. Here’s the holding:
The Court also goes through a pretty decent history lesson showing that the Second Amendment is indeed addressed to the concern of maintaining and arming a well-regulated militia, not rendering the government powerless to regulate firearms.
Okay, number one: you were responding to me, not Elvis.
Number two: I’m really disliking the way the “quote” function on this new board removes the nested quotes.
Number three: I don’t see how an apology is merited. Yes, you have used the term “the people” many times elsewhere in the thread, but you conveniently left them out of your reworded second amendment. I mean, it’s lovely that you talk about “the people” and all, but when you go to put new words in the Constitution, you drop it?
Number four: I notice you didn’t tackle my actual criticism of your restatement, nor did you thank me for correcting the error in word choice in your restatement. I’d appreciate it if you did both. As a reminder, it was:
Now, my own restatement of the second amendment, since we’re on the subject, would go like this. Tell me where you disagree: "The right of the people to keep and bear arms shall not be infringed, [because] a well regulated militia [is] necessary to the security of a free state."
I brought up Miller because you seemed to think, or seemed to think that I believed, that militia membership is/was necessary to exercise the right. That is not the case. And you’re still reading it wrong: Miller did not hold that the Second Amendment does not protect sawed-off shotguns. They handed the case back to the district court so that more evidence could be heard. And, since the “well-regulated militia” clause was held in this case only to restrict the type of weapon that could be possessed, not the persons who could possess them, I read that as, “As long as it’s a weapon a militia might find useful, you can have it.”
What are ya, nuts? I LOVE Miller. It’s cited wrongly so often, I love giving the smack-down to people who misread it. The lack of any argument from Miller, though, does put things into perspective: the government can’t win the right to grab guns willy-nilly, even if they argue with an empty chair.
The Miller case stands for the proposition that the people have the right to own militia-type weapons. I’m having trouble thinking of any mass-manufactured firearm that doesn’t fit into this category (although “zip guns” and such contraptions are almost certainly prohibitable).
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You’re probably right. I’m not familiar with the legal process in general for this sort of thing.
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Short barreled shotguns were in common use in armies for at least 40 years at the point of the trial. There was no one to represent the defense to bring this fact up. The court assumed that such things weren’t in common military use, because that was the prosecution’s case, and there was no opposing argument.
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Acceptable. However, you do understand that US policy and law does not, in any way, respect US v. Miller, right? In the '68 GCA, the idea that weapons must have a “sporting purpose” to be legal came into effect, and this is blatantly against the US v. Miller ruling. According to US v. Miller, I should be allowed to own an m16. Right? But the antis will say “Assault weapons are evil! Besides, you don’t have any right to own that weapon since you’re not in the militia!”. Argh.
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Yes, but Miller didn’t even get a chance to appear or appoint council. The message never reached him that there would be an appeal.
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They ruled that short-barreled shotguns weren’t useful in the preservation of a militia. They ruled this because they were told by the prosecution that such weapons weren’t in use in the militaries in the world, when in fact, they definitely in use for a number of decades.
Had Miller been represented, this issue would’ve been brought up, and quite likely, the ruling would have gone the other way. The issue that the NFA '34 also regulated and taxed fully automatic weapons probably would’ve also been raised, should the defense have had representation. Do you disagree?
Straw man.
I’m being pounded with “the militia has not and never will act!” so, I gave an example of a situation in which it might. In return, I get “gun owners are all psychotic killers who don’t believe in democracy!”.
I said nothing about assassinating democratically elected leaders. Actually, I was refering to people - police and soldiers primarily - who might be used to enforce any oppression.
Max, I’ve stated my interpretation of the amendment multiple times in this thread, as recently as the bottom of the preceding page. I’m not going to do so again just for your entertainment. If you can’t be bothered to figure it out from the many repetitions, that’s your problem. More likely, I think, is that you will simply elect to continue picking and choosing the words that suit your preconceptions. Have fun.
Wrong. The case does not address who has the right to keep and bear arms. It merely addresses the type of arms that are within the guarantee.
More or less correct. Miller had presented no evidence at trial that such wearpons were suitable for militia use, so the Court had to assume that they were not. It therefore seems to be the defendant’s burden to prove that the weapon is one covered by the scope of the “arms” described by the amendment. That failure of evidence had nothing to do with Miller’s absence at the Supreme Court, for it is only the trial court that admits and weighs evidence. Miller hadn’t submitted any evidence, so he lost.
Maybe, maybe not. The Court has never established criteria for determining which arms are covered by the Second Amendment. For all we know, you’re stuck to flintlocks and dueling pistols. I would point out, however, that lower courts have uniformly rejected Second Amendment challenges to laws restricting ownership of such weapons.
Who said “all”? A few are certainly psychotic killers, a bunch of them have no faith in democracy (if their arguments about preventing tyrrany are to be taken at face value), but the vast majority are a heck of a lot more rational than either of those groups. Please, let’s try not to demonize or mischaracterize our opposition quite so much, okay?
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It still strikes me as massively unfair, considering miller never knew the trial was being appealed.
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It seemed that they evaluated weapons for their military usefulness - and if they were used in current militaries. It seems natural to conclude that the main rifle of the US Army would be available to citizens.
I blame this on inconsistency by gun control advocates, who will voluntarily contradict themselves regularly. “You need to be in the militia to own a gun.” “Ok, well, then I can own a military gun, then, right?” “Well no! of course not! that’s an assault weapon!”
Do you agree that the Gun Control Act of '68, stating that guns can be restricted based on their sporting value, is in blatant violation of US v. Miller?
Ok, I was told to give an example of a situation in which an armed population might be forced into resistance. I gave such a scenario. In return, I was seemingly accused of being paranoid, psychotic, and violently wanting to take my government down. Can you see why that statement is kind of silly?
I’m afraid I don’t know very much about the '68 Act, or the cases dealing with it. I’ll try to learn what I can when I have the chance, but I’ll have to pass for now. My recollection is that there are half a dozen or so circuit cour opinions discussing how the Second Amendment applies to various types of weapons. Perhaps looking at the annotations to the Second Amendment over at findlaw would be a good place to start, if you’re interested in learning what they’ve had to say.
As for your “psychotic killers and don’t believe in democracy” line, my point was merely your hyperbolic assertion that somebody had said “all gun owners” were such. I’m not, my gun-owning friends are not, and my gun-owning brother-in-law the cop is not. It is certainly true, however, that more than a few don’t appear to believe in democracy very much. Nevertheless, it is hyperbole at best and paranoia at worst to turn such an observation into a condemnation of “all” or even most gun owners on such grounds. There is no need to inflate the positions of one’s opponents to make one’s own arguments look better by comparison.
Once more:[ul]
[li]I have read your interpretation of the amendment.[/li][li]I have pointed out the problems with your interpretation (you use “the people” in debate, but not in your reworded amendment, you say “if” when you clearly intend “unless”, and you make the “right” clause wholly dependent upon the “intent” clause, something that is clearly not intended in the original text).[/li][li]If you are here only to state your interpretation and not listen to and address criticism, you are not engaging in “debate” and should not be in this forum.[/li][li]You failed to address my more reasonable rewording of the Second Amendment. If yours is superior, please, tell me how.[/li][li]Covering your ears and going “LA LA LA” is not an adequate answer.[/li][/ul]I have to question at this point whether you’re actually reading my posts. Do you have a significant problem with clients complaining that you don’t listen to them?
The decision discusses at length how the states and the nation have found armed citizens a desirable resource; it may be an implication, rather than a plain statement, but that’s good enough for me. If you’d like to revisit Miller, be my guest. As for the “type of arms”, I found enlightening this interpretation of the amendment by Hugo Black, one of the Justices who sat on the Miller case:
(emphasis added) Source: “The Bill Of Rights”, New York University Law Review, Vol. 35, April 1960.