No, I don’t think you are digesting the difference. “Use in militias” is the criteria that was used to determine if the weapon itself fell under the protection of the 2nd amendment. “Use in militias” was not held to be when a weapon could be used. Miller only spoke to the former, and you are applying that to the latter.
I’m glad you realize your past mistake. You didn’t address the main point though - that being that there is no support for your assertion that the militia was ruled to be the sole purpose and justification of the 2nd Amendment. That’s false.
That’s strange, because when I asked you for evidence to support your claim that SCOTUS held that the first part of the second amendment trumps the latter part, you responded in post #146 with this:
Citing a dissent. You expound by saying that there were five significant SCOTUS cases that cited Miller, without naming them, presumably the Douglas dissent is one of them. If instead this was simply color commentary rather than a response to a cite request, then sure. But is sure seemed like you were citing it.
I’m sure Toobin is a talented and skilled writer. I’ve read one of his books on the Supreme Court actually and quite enjoyed it. But his assertion that SCOTUS held that the first part of the second amendment trumps the latter part is false and he’s wrong for asserting it. People are not infallible, and I’m sure Toobin has made other mistakes. But this one assertion here that he made - that is nonsense. It’s wrong based on Miller, and it is wrong as to what SCOTUS itself declares as its previous holdings. Heller directly contradicts Toobin’s conclusion, and the opinion in Heller is controlling. In matters of law in the US, there is no source more authoritative. He is wrong, and you are wrong for believing it.
The Continental Army was a number of state militia outfits placed under a single command. It was not the United States Army.
You called it extra-constitutional. If that wasn’t what you meant by that, what was?
That’s why the Guard is still nominally separate - as a sop to the states-rights types. But the militia mentioned in the Constitution is nevertheless legally the National Guard, and has been for over a century.
No, you what-abouted it. Try again: If the writers didn’t intend the clause to have any practical meaning, why did they bother putting it in? Please note that it didn’t happen in a vacuum.
Actually a few States still have a Militia. You can have a Militia that isnt part of the National Guard. But the NG is no longer in any way the Militia.
No, I didnt, I replied directly. *"Because, as has been said, they were against a strong standing army, but in favor of all the people being the Militia.
But in fact, in the first draft, they left that out. It was only added in at the insistence of the Anti-federalists who wanted to make sure the right for us to bear arms in the militia of the whole people was enshrined."*
Was one required or not? What was the point of that observation?
Ahem. :dubious: (Correction: 1903, not 1907. Sorry)
IOW the writers did not intend it to have any legal or practical meaning, you’re telling us. That’s a pretty bold method of Constitutional interpretation, isn’t it? One that lets it mean whatever you want it to, no matter what it actually says. Where else do you apply that approach?
Are you claiming there’s a civilian right to own military weapons? :dubious:
Nevertheless, that’s what it says.
Do please note that someone who can take the overthrowing tyranny stuff seriously does not have a good basis to claim any other arguments are “unserious”.
It would be if they tried to make the NG the Militia.
Nope, skip on a bit, brother…:
Dick championed the Militia Act of 1903, which became known as the Dick Act. This law repealed the Militia Acts of 1792 and designated the militia [per Title 10, Section 311] as two groups: the Unorganized Militia, which included all able-bodied men between ages 17 and 45, and the Organized Militia, which included state militia (National Guard) units receiving federal support.
It had important symbolic meaning. Which is clear from the original wording and the discussion of why they added the militia part in there.
Yes! Those of you arguing that the militia part of the amendment is controlling almost demands that citizens be permitted to keep and bear military arms.
Why is it crazy? The British attempted to disarm the militia before Lexington and Concord. The founding fathers understood that a central government that had the power to disarm the people, the militia, could be capable of tyranny.
I am not saying that the United States in 2018 is a tyrannical government. Far from it. But in case it ever happens, it is much harder to subjugate an armed population, carrying military weapons, than it is to herd unarmed people.
ETA - Bone said the same thing, better, and I should read more before responding…
Miller was also dependent on this position of the US (via Wikipedia):
They were arguing that since a sawed off double barrel was not a militia weapon, it was not protected by the 2nd. Miller died before the decision, and he and his attorney never made it to DC to argue / present evidence that shotguns have long been used in the military.
You misspelled “In my humble opinion I disagree with the four progressive justices in Heller and with the numerous constitutional scholars and historians who support them”.
Those of us who argue that the militia part of the amendment is controlling also argue that there aren’t any militias. What there is, instead, is a proliferation of guns and a lot of gun violence.
The events of Lexington and Concord were a very long time ago. The nature of military power has changed quite a lot since the 18th century. The gun violence problem is today.
The mostly-Republican meme about a bunch of yokels with their popguns overthrowing the federal government if they deem it to be “tyrannical” is both amusing and deeply ironic. It’s ironic because the real safeguard against tyranny is a healthy democracy, and many of the things that Republicans stand for are the very antithesis of a healthy democracy. When Republicans enable self-serving disinformation campaigns by opening the floodgates to unlimited political spending with rulings like Citizens United, they’re undermining democracy. When they operate fake news outlets like Fox News and Breitbart and misinform people through organized campaigns in social media, they’re undermining democracy. When they seek to prevent certain groups of people from voting by pretending to be worried about “election fraud”, they’re undermining democracy. And they sure as hell are undermining democracy when they refuse to even acknowledge, let alone act decisively against, a foreign government meddling in a national election.
But they think it’s OK because they don’t much care for government anyway, and they figure that if it ever gets bad enough, why, they’ll just pull out their guns and shoot the government, the way you would shoot a rabid coyote – a belief that would be adorably naive if it wasn’t so dangerously misguided. The only real-world solution to these problems is at the ballot box, which requires a reasonably well-informed and motivated public, not in the gun collections of sovereign citizens, anarchists, and other deluded lunatics.
Republicans, in short, seem to be doing everything in their power to promote an uninformed, apathetic public who almost invariably prove the truth of the maxim that people get the government they deserve, which is currently one of stunning incompetence, with an authoritarian president who wants “his people” to sit up at attention when he walks in the room like Kim Jong Un’s people do, and who considers insufficient applause for him to be treasonous, a belief he shares with the late Joseph Stalin.
Yes, but it is the Minority view.
Yes, exactly. The 2nd is dependent upon belonging to a militia, and “there are no militias”, “we can take all those nasty guns away”.
Except is isnt dependent, and there is a militia. And we are all part of it.
And in “mainstream” anti-Standard Model thought, the current theories are a hollow shell of what the various “collective right” interpretations used to be. The flesh has been flayed off the corpse and they are forced to do a ‘Weekend at Bernie’s’ routine trying to keep arguments hostile to individual rights alive in policy conversation.
There are two completely different arguments to be had here. The first is the purpose and intent of the Second Amendment as written. This is generally done by an analysis of the historical record, which is peppered with concerns about national defense, militias, and the minutiae of 18th century warfare. These historical concerns found expression in the Second and Third Amendments, both now equally archaic. I might add that the Second Amendment is strangely devoid of any mention at all about the impressive utility of guns in shooting crooks, ex-bosses, unfaithful lovers, or shooting up an entire classroom of school children.
Of course one can abandon the historical record and rely instead on mysticism, wherein one dredges up a crystal ball and tries to read the founders’ minds, something that the great mystic Antonin Scalia claimed to be able to do and was thereby able to ignore the things that the founders actually wrote down and focus instead on the things he was able to divine they meant but forgot to write down.
The second argument to be had on this whole topic is in regard to the utility of such a constitutional provision in any civilized country in the 21st century, and specifically, how the Second Amendment – and particularly the Heller interpretation – exacerbates the extraordinary gun problem in America, helps to promulgate the underlying gun culture responsible for it, and hamstrings lawmakers. My answer to the snark of “good luck trying to get it changed” is “good luck not getting shot” (according to a 2017 Pew Research poll, 40% of non-gun owners and a whopping 51% of gun owners in America know someone who has been shot, a fact which I don’t find the least bit surprising).
My cite for this second argument is: every civilized country in the world.
Well, Scalia and those who read the historical record are correct- the 2nd was meant to allow everyone (all white males back then) to keep and bear arms.
Next, we dont have a “extraordinary gun problem in America”. America is dead average among nations.
Ah yes, and so if I bring up Russia and Mexico which are far worse, you’ll just claim they aren’t “civilized”, right?
Parts of the Constitution were obsolete, and they have been amended. You are welcome to try to repeal the 2nd.
The problem with that line of thinking is that the 2nd Amendment doesn’t really “do” anything but redundantly forbid the federal government to exercise powers it was never granted. The 2ndA has never been inspected to inform regarding any aspect of militia organization and control; it only speaks directly about people who are not enrolled members of the militia (i.e., the general citizens). Only upon enrollment are any militia regulations impressed upon a citizen; they do not need the protection of any “right” to be armed after enrollment, they are compelled by law to arm themselves according to Congressional regulation (e.g., The Militia Act of 1792). The constitutional authority for The Militia Act was / is Article I, § 8, cl’s 15 & 16, not the 2nd Amendment.
The thought that militia concerns are part of the 2nd Amendment is only a theory to support a restrictive interpretation of the protection sphere of the 2nd Amendment. It has no support in the law.
Similarly the 1st Amendment is devoid of any mention of the utility of books on science, mathematics or the value to the republic to be found in romance novels.
Your position runs afoul of the most foundational principle of US Constitutional rights theory – that our rights are not granted, given, created or otherwise established by the words chosen to secure them. Your position demands that we accept that not only were the framers of the 2nd granted powers over the personal arms of the private citizen, that they decided to condition and qualify this “right” to only federal government approved arms bearers. This seems to me to be quite a Trojan Horse foisted on the states!
Thankfully there’s plenty of contemporaneous writing that says the opposite . . . that the right to arms is among the rights that pre-exist the Constitution and since no power is being conferred to impact those rights, all aspects of those rights are retained (Madison’s “great residuum”).
IOW, the ‘government’ can’t give back to the citizen a right that was never surrendered to the care and control of government (suggested reading, The Federalist 84).
That the right to arms is not granted or created by the 2ndA means that the right is not in any manner dependent upon the Constitution for its existence. SCOTUS has been boringly consistent re-re-re-affirming that exact principle for over 140 years (Cruikshank, Presser, Heller).
When SCOTUS says that the right 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", that destroys your position because that extinguishes any argument that the words of the 2nd can be used to qualify and / or condition the right and it extinguishes any argument that the right is only recognized and can only be exercised within the organized, Art. I, § 8, cl’s 15 & 16 militia – a structure which is itself entirely dependent upon the Constitution for its existence.
Reminding lawmakers that they are hamstrung to only exercising the limited powers granted to the legislature, is the 2nd Amendment’s only job.
One’s chances of getting shot rise and fall with a myriad of conditions and circumstances. The demo’s with the highest levels of criminal gun injury and death, are least likely to any remedy of blanket gun control on the population. When I lived in Philadelphia my chances of getting shot were slim because of where I lived, my race, my age and my activity. Now that I’m retired and have moved to a rural area, my chances are even less (although stats for suicide rise in rural areas).
The most amazing thing about the USA is the people who seemingly dislike it and its people, refuse to leave it. Nothing is making you stay here.
We’ve been through this. As noted, if the founders saw a purpose to guns important enough to enumerate in the constitution, other than their use in militias for national defense, they were strangely reticent to mention it. Only the militia is mentioned.
This is unsupportable nonsense. Sometimes facts are facts and have to be accepted.
Fact: Americans are 10 times more likely to be killed by guns than people in other developed countries.
Fact: Compared to 22 other high-income nations in a recent study, the US gun-related murder rate is 25 times higher.
Fact: Even though it has half the population of the other 22 nations combined, the United States accounted for 82 percent of all gun deaths. The United States also accounted for 90 percent of all women killed by guns, the study found. 91 percent of children under 14 who died by gun violence were in the United States. And 92 percent of young people between ages 15 and 24 killed by guns were in the United States, the study found.
Cite for all of the above, and for the table below. I’ve summarized the total firearm-related death rates for the countries cited, but the article contains detailed data including non-firearm related rates and totals so detailed comparisons are possible.
Total firearm death rate among high-income countries, per 100,000 pop., 2010
Australia 1.0
Austria 3.0
Belgium 1.8
Canada 2.3
Czech Republic 1.8
Denmark 1.6
Finland 3.6
France 2.8
Germany 1.1
Hungary 0.9
Ireland 1.0
Italy 1.3
Japan 0.0
Netherlands 0.5
New Zealand 1.2
Norway 1.8
S. Korea 0.0
Slovakia 1.8
Spain 0.6
Sweden 1.5
United Kingdom 0.2
**United States 10.2 **
Given these facts, trying to claim that the US is just “average” in gun violence is comically absurd. It’s the kind of argument that completely destroy’s the speaker’s credibility on a matter of plain fact.
The only way to try to support such a comical argument is to disingenuously try to compare the US to high-crime third-world shitholes, because clearly, per the above, comparing US gun violence to civilized countries at a similar economic level is an utter fail.
Even dragging in Mexico doesn’t work for you, despite the fact that Mexico is so dominated by drug gangs and corruption that many areas are virtually lawless, and is not a country any European or Commonwealth nation would want to compare themselves to; according to this, using different stats than the above for mixed years, the US had 11.96 gun-related deaths per 100,000, while even Mexico had just 7.64.
Russia is equally irrelevant as a comparison, because it has a very high crime and murder rate and a high level of lawlessness and corruption. If that sort of comparison is the only way you can make US gun violence look better, you’ve already lost. Even so, gun violence statistics from Russia are extremely unreliable and no one really knows what they are anyway, except that the murder rate in general is at least twice the US rate, making any comparison pretty much moot. But here’s an interesting stat: between 1966 and 2012 Russia had 15 major mass shootings. Yemen had 11, France 10, the Philippines 18. The US had 90. (On a smaller scale, less widely reported, the US has approximately one mass shooting almost every single day.)
Your “no problem here” argument doesn’t look so good in light of actual facts.
Three things here should surely cause a pause for thought – the incredible rate of gun violence cited above, the fact that 51% of American gun owners personally know someone who has been shot, and the fact that American guns are so plentiful and easy to get that they flood across both northern and southern borders. Tell you what, though, if you really want Mexico to build a wall and pay for it, you’re on the right track, and Canada might just do the same. Just remember that you’ll be on the inside, with all the guns.
Yes, much like evolution is “only a theory”. I quoted several different independent articles by notable scholars in respected publications stating that the position spearheaded by Scalia in Heller contradicts more than 75 years of jurisprudence. Papers on this subject abound, including even conservative gun advocates who support the outcome but condemn Scalia’s reasoning as incoherent.
That observation might have some merit if the 1st Amendment prefaced its text with a statement of the reasons for the rights it protected, enumerating certain reasons while others were conspicuous by their absence. The 2nd Amendment does precisely this; the 1st notably does not.
I don’t pretend to be a constitutional scholar, but the same argument of archaic irrelevance that is used against the 2nd Amendment itself can be brought to bear against contemporaneous writings, and indeed for many of the same reasons. Ultimately the idea of fundamental rights is always the creation of man, as demonstrated by the fact that while most advanced nations have specific or de facto constitutional protections, and while many of those rights (like free speech) are remarkably similar and thus presumably fundamental, many others are not. There are significant constitutional differences even in very similar cultures, and also differences in how absolute those rights are presumed to be relative to larger societal interests. And one of the most notable omissions in the constitutions of almost all first-world nations is anything about guns, or any notion that owning a gun is some kind of inherent “right”. So I find that line of argument entirely unpersuasive.
Which more or less defeats everything you said before. The 2nd Amendment in conjunction with the extraordinarily brazen Heller interpretation severely hobbles effective gun control legislation in progressive states and violence-ridden cities. The 2nd Amendment and the new precedent is, IOW, precisely the problem.
And from the perspective of almost any non-American from Europe or the Commonwealth countries, one of the most significant risk factors is being in the United States.
If you’re counting me among those, you would be wrong. It’s not the people I have a problem with, it’s the insanely divisive politics that too rarely serves their interests, and the special interests that the political system does serve. More than half of all Americans support stronger gun control, with overwhelming support for barring gun sales to high-risk demographics and banning the most dangerous types of weapon, yet lobbyists like the NRA have made the subject so toxic that even discussing it is politically fatal to any aspiring politician of any party, even though Democrats as a demographic are almost unanimous in support of stronger gun control.