Max, could it possibly have been more abundantly clear that the omission of “the people” from the single phrase you chose to quote, among many others in which I included “the people,” was a simple accident? Could I possibly have been more clear in stating throughout this thread that I believe the amendment does apply to “the people”? Could you possibly believe that I’m trying to hide the ball in this one instance, while leaving in plain sight for everyone to see everywhere else in my posts to this thread? Now would you please get over it? Sheesh.
Already did, probably a half dozen times. Mine gives substantive effect to the introductory clause, while the introductory clause might as well have been omitted altogether from yours. Note that the Supreme Court agrees with my interpretation that the first phrase does have a substantive effect on the second phrase, though you refuse to account for that in your restatement. In fact, the Miller Court squarely rejected your reading, as it was substantively identical to the district court judge who got his ruling reversed. Sorry to break it to you like that.
:rolleyes:
Good lord, that’s not even dicta, as it expresses no statement of what the law is whatsoever. I can point you to the Curt Flood baseball free agency case, where Justice Black and the rest of the Court expound at great length about the glories of baselball and its importance to American culture. Yet it would be foolish to claim that we have a constitutional right to the seventh inning stretch.
Oh, nice quote from Justice Black there. Now remind me, which justice was it who called the unfettered-individual-rights interpretation of the Second Amendment the biggest misrepresentation of constitutional law he’d ever heard?
My problem with what you said was primarily because I was responding to what someone asked me to respond to. For doing so, I was labelled inappropriately.
“So, when would the militia be useful?”
“Well, when…”
“Wow, you dream up random crazy fantasies a lot! You must not like democracy!”
And the GCA set up a rule whereby potential gun bans are tested against a “sporting purposes” clause, where the primary distinction is whether or not the gun has “sporting purposes”, for hunting, competititon, etc. Would you agree that’s a blatant violation of the US v. Miller ruling, in principle? I’m just curious of your opinion. If you need me to, I can probably hunt down the exact wording in the GCA 68 (which, interestingly enough, has large parts translated and dervied from the Nazi Weapons Law).
Actually, some google searches indicate that our very own David B has written an article or two on Nazi gun control myths, though I can’t seem to turn up the actual articles. If you’re out there, David B, could you stop by to enlighten us?
Sure thing, now that you’ve finally admitted that your omission was inadvertent. Sorry to belabor the point, but when you presented your sentence as, in effect, “what ought to be in the Constitution”, I got a bit upset that some important language that really deserves to be in there, wasn’t there.
Let’s not exaggerate, you’ve responded to me, what, three times, and maybe once with substantive comments? Anyway. Your rewording gives overwhelming and unmerited weight to the introductory clause and makes the right to bear arms subject to the whim of the militia, while, under my reading of the amendment, the very existence of a militia at all is not even a prerequisite for the existence of the right.
Let’s pull something from another section of the Constitution. How about the passage that allows Congress to protect intellectual property, since that’s a section I’m familiar with? That section reads, edited a touch for clarity: “The Congress shall have the power…To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” That’s in Article I, Section 8. Now, tell me if you read it differently, but here’s my interpretation: Congress can make laws protecting intellectual property, but those laws must be crafted with the aim of “promoting the progress of science and the useful arts” in mind, because that is the purpose of the grant of the power to Congress.
Move to the Second Amendment. Note that it does not state, “To promote” or “To create a well-regulated militia”. Note that the drafters of the Constitution clearly knew how to write such a sentence, had that been their intention. I can only conclude, and I am hardly the first to do so, that the militia is not the “purpose” of the right to bear arms. An aim or justification, perhaps, but the amendment should not be read as meaning that the right may only be applied with militia ends in mind.
And yes, I realize that strictly speaking the Supreme Court historically disagrees with me on this point, but I don’t think our views are wholly incompatible, since Miller restricts only the type of arms that may be owned, not the persons who may own them, and since the restriction applies only to non-militia arms, a class of weaponry that probably ought to be restricted. The only sorts of arms that come to mind as “non-militia” are homemade or cheaply made and as dangerous to fire as to have fired at you.
Um, huh? The district court’s decision (26 F.Supp. 1002) is only a few sentences, basically stating that they felt that 26 U.S.C. § 1132j was invalid because it was incompatible with the Second Amendment. It’s not a lengthy opinion, and no explanation is given as to why the court felt the two were incompatible. How do you know what the district court’s reading was? Or are you just hypothesizing, based on the Supreme Court decision?
The difference, of course, being that the Constitution is silent on the subject of baseball, while 10% of the Bill of Rights is devoted to the right to bear arms. Were I inclined to use smileys, I’d insert my own rolleyes here. So, it’s not a logical parallel. Show me a case where they talk about, say, the great American cultural tradition of being secure in one’s papers, person, and effects, and you’ll have an analogue.
Warren Burger? What’s he got to do with Miller? Are we citing the opinions of people who haven’t had any actual influence on Second Amendment law now?
Well, The Ryan, Jack Miller himself didn’t have to worry about going to jail, since he was murdered a month before the Supreme Court issued its decision. Miller’s partner, a fellow named Frank Layton, was also charged with possession of the sawed-off shotgun in the same case; Layton pleaded guilty and received 5 years probation. So, since the first appeal was basically a rejected indictment and Layton pled out, there never was a “trial”, exactly.
For every document associated with the Miller case, you can go here.
Do you think the Nazis would’ve had such an easy time rounding up the Jews if every soldier who was ordered to do so had a significant worry that he’d never make it home that night to his family?
[Now is your cue for the predictable ‘but that’ll never happen here!’]
By “common sense,” I meant in interpreting the clause in question. Simply as a matter of grammar, it isn’t a limiting clause.
N.B., however, that this does not mean that some forms of gun control are unconstitutional. Compare the first amendment, which has language that is pretty absolute: no law abridging free speech. Yet we recognize that there are limits to free speech: you can’t incite to riot; you can’t libel or slander; you can’t advertise deceptively, you must comply with reasonably time and manner restrictions, etc.
The militia clause argument is a weak one. What gun control proponents should be doing instead is arguing that their restrictions are more like reasonable time and manner restrictions to riot and less like prior restraint. **
Instructions on how to apply the Constitution? You’ve got to be kidding me…if that is so, then surely the preamble represents the most vague and useless instructions ever written.
But most people read the preamble as simply explanatory, explaining why the founders are writing this nifty document. “Hey, founders,” you might ask, “why are you writing the Constitution?” To which they would reply “to form a more perfect union! And to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves and our posterity!”
And then, in the back of their heads, they would silently think "idiot, we clearly wrote that the people, “in order to” accomplish goals X, “do ordain and establish” Y. That was clearly our purpose. Can’t he read?
Elvis: even if you are correct in your reading of Miller (and I note that several posters are disputing your interpretation), that doesn’t mean that you’re right, unless you’re also saying that the Supreme Court is 100% correct in every edict it hands down. Remember, this is the same institution that gave us Dred Scott, Plessy v. Ferguson, Hirabayashi v. US and Bowers v. Hardwick.
Um, it did happen here… to an armed population, at least twice! The Natives on the trail of tears, which you admitted was genocide. And then the Japanese-Americans in WW2 were forced into concentration camps. For all they knew there could have been a gas chamber at the end of the road.
And also, soldiers (such as the Nazis of your examples) still go into full-on battle against trained soldiers knowing that they might not make it home. If they’ll go through that, getting them to take on individuals that they have the drop on, in teams, wouldn’t be hard.
This is horrible logic. We fought a war of aggression against the Native Americans, we did not oppress them at citizens. After we won, they surrendered, we disarmed them, and did with them as we pleased.
**
Far more valid. And you’re right. And the fact that they didn’t, largely, violently resist was their choice. If it were me in question, I most likely would’ve resisted. Because one group does not choose to resist in a certain situation is not a justification for removing everyone’s ability to resist in every case.
Well, you could be right with this. Full on battle is a less ambiguous situation, I think, though. There’s the enemy. Kill them, or they kill us. It’s a bit different when you have orders like “round up and exterminate this minority” - an idea which you’re probably shaky on to begin with.
Again, you’re trying to say “Well, since these people didn’t resist this time, it’s perfectly fine if we take away everyone’s ability to resist permanently”, which certainly isn’t good logic in my book.
Concentration camps and the Trail of Tears are the easy ones, Beef. What disturbs me, and I think also Qwerty, is your apparent willingness to start shooting people as a result of democratically-enacted legislation which does not threaten your life or your essential liberties.
Remember, your first example was killing cops over a 95% tax rate. You may recall that the upper brackets back in the middle of the last century were not that terribly far away from 95%. The classic George Harrison “One for you, nineteen for me” line from “Taxman” was not an exaggeration for the highest incomes in Britain at the time the Beatles recorded the tune. Yet these tax structures were the result of democratic action by elected representatives, not despotic dictates of a third world strongman. Opening fire at that point would necessarily be an act against democracy itself.
Okay, a 95% tax rate is pretty far out there these days. But at what point do you start shooting? 60, 70, 80 percent? And what other democratically-enacted laws inspire you to start killing people? Pro-life legislation? Pro-choice legislation? The suspension of trial by jury or the elimination of the death penalty? The drinking age or the speed limit?
See, when you make statements like the one that set off Qwerty, you are explicitly reserving a right to kill whenever democracy results in something that you dislike. It is an essentially anti-democratic position, and it is one that those of us who happen to put more stock in democracy legitimately find troubling.
BTW, wanting to reward people who interpret sentences in a straightfoward manner, I have decided to put a statement praising ElvisL1ves and minty green in my sig, and to include my sig in every one of my posts from now on.
No, he is reserving the right to kill when he believes that his rights are being violated, a position I agree with. To say that he would go around killing people simply because an election didn’t go the way he wanted is a huge distortion of his statements. If the idea that people have basic rights that no one has the right to take away, even if they are democratically elected, is an essentially undemocratic position, then isn’t the Bill of Rights an undemocratic document?
So where’s your sig? And since when is it a sin to take people at their word?
And yes, the Bill of Rights is undemocratic, Ryan, in that it prevents a majority from doing away with certain rights. I don’t recall the founders saying it was okay to kill anybody if those enumerated rights were violated anyway, however. Silly me, I tend to think that we’re better off not killing each other over political disputes, even heated ones, and especially when the asserted right isn’t even mentioned in the Constitution to begin with.
So, which “rights” are you willing to start murdering people over, Ryan? Do you draw the line at tax rates too, or maybe you’re really pissed about campaign finance reform? Debating Second Amendment killings in the abstract is so difficult. How 'bout you make it a little more concrete for us?
