Huh? No aspect of Miller was disturbed. Heller only invalidated lower federal court collective right holdings handed down after Miller, arrived at by dismissing and ignoring SCOTUS in Miller.
Specifically, those invalidated opinions are Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942) and U.S. v. Tot, 131 F.2d 261 (3 rd Cir. 1942) which respectively inserted the “militia right” and “state’s right” interpretations in the federal courts.
Indeed, and it seems there is agreement that “As a well regulated Militia is necessary to the security of a free State,” is not just filler text and that “the people” means “those that make up the militia.”
You could maybe stretch that to “anyone eligible for militia duty” but its intent is not that any civilian has the Founding Fathers’s blessing to carry a handgun while grocery shopping.
That’s a fine way to put it, well said.
I’m not seeing that agreement. The Bill of Rights uses “the people” four other times, always in reference to an individual right. Why use it in the Second Amendment, if what was meant was “the militia”? Surely it’d read “the right of the militia to keep and bear arms, shall not be infringed.”
The statement that the prefatory clause is not just filler is correct - however everything in your post after that is clearly false after Heller.
The “people” referred to in the 2nd amendment are not just those that make up the militia. The opinion states that the term refers to all Americans. Your other conclusion is also unfounded. See post #59.
[QUOTE=Me]
The prefatory clause does not limit or expand the scope of the operative clause. There are rights connected with the militia and the prefatory clause informs those rights, but there are also rights that are recognized independently by the operative clause.
[/QUOTE]
I can’t see how anyone could read it differently, really.
Why would anyone write a document to build a country on that has a half sentence that should be read as “oh and everyone can have guns.”
That’s just silly.
Really?
Not if you understand the historical context.
It’s worth remembering that at the time militias were conceived of as self-armed, as codified in the federal Militia Act of 1792. It wasn’t the states handing out muskets from an armory.
SCOTUS disagrees with you. Heller explains it pretty well, and is at a minimum an interesting read - have you read it? If not, I recommend it. Even the dissenters acknowledged that the 2nd amendment recognizes an individual right. Anyone who attempts to introduce ambiguity there is being disingenuous or ignorant.
The declaratory clause is a statement of principle referencing the importance of a properly functioning militia to the security of a nation established upon the concept of liberty.
The declaratory clause is an inactive dependent clause and completely without any weight or legal function, it does not command any action, it does not create any rule or compel anyone to create a structure conducive to the nurturing of a well regulated militia. The declaratory cause is only an affirmation of the general militia concept . . . The political philosophy that the mass of private citizens having their personal arms in their hands, without regulation of law or permission of authorities, stands as a barrier to domestic tyrants and foreign invaders.
It should be noted that an armed citizenry is AN INSEPARABLE COMPONENT OF OUR REPUBLICAN FORM OF GOVERNMENT.
Reading any conditioning of the right into the 2nd Amendment is illegitimate.
Since the right pre-exists the Constitution and since no aspect of the right was conferred to the federal government it is preposterous to invent a condition where the federal government is giving back to the people a conditioned, qualified version of something they never parted with.
The right to arms is not granted, given, created or otherwise established by the Amendment and exists and is possessed by the citizen without any dependence on the Constitution. SCOTUS has been boringly consistent re-re-re-affirming this principle for going on 140 years:
[INDENT][INDENT]" . . . it has always been widely understood that the Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence."
DC v Heller[/INDENT][/INDENT]
There is only one legitimate command / conclusion to be drawn from reading the 2nd Amendment . . . That the right of the people to keep and bear arms shall not be infringed.
Even worse and further removed from fundamental principles. Our rights are not blessings from the founders / framers.
Perhaps a rudimentary US civics lesson is needed . . .
All political power first resides in the people, the people surrender limited powers and designate the government perform limited duties.
The document that establishes the nation (the Constitution) is a charter of those conferred powers.
All powers not conferred to government are retained by the people.
No power was ever granted to government that allows it to have any interest whatsoever in the personal arms of the private citizen.
That absolute silence in the body of the Constitution, finding no grant of power to government that would allow it to dictate as to the personal arms of the private citizen is the right to arms of the people.
Rights, especially those enumerated in the Bill of Rights, are EXCEPTIONS OF POWERS NEVER GRANTED and the scope of the right is not determined by massaging, twisting and inventing against the words of the 2nd Amendment, chosen to merely secure the right.
Read again the clear and unambiguous explanation of the Supreme Court:
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.”
Please explain how you read words that the right in no manner depends upon as imparting conditions and qualifications on the right?
From whom or from what, then? Not God. Not “natural law.” What?
Wait, what?!
Please remember that the Constitution predates the Bill of Rights and so does “our republican form of government.”
When speaking of the fundamental rights of the citizen within the framework of the Constitution of the USA, it matters little where the origin of rights is assigned, just as long as you don’t assign it to government or the legislative acts of man.
In simple terms, under the Constitution, rights are considered inherent with some being of such vital importance they are considered un/inalienable.
I don’t see how it doesn’t matter, to any court that has to interpret the nature or scope or limits of a “right.” Either such right is backed by some authority independent of man-made law, or it isn’t. If it isn’t, the question must be resolved simply as one of law. If it is, then, arguably, it is not simply a question of law, but some deference must also be made to the right’s extralegal source, which means the nature of that source must be determined and examined.
The “unalienable” language comes from the DoI, not the Constitution. Don’t ever try to infer anything about the one from the other, they’re too different. The DoI is a revolutionary document – all revolutions being illegal by definition, Jefferson felt obliged to appeal to a higher law, to “Nature and Nature’s God.” You will find neither in the Constitution. The Constitution is a legal document, standing only on the authority of “We the People,” and was intended to create a permanent state, with no sanction for insurrection express or implied; and nothing in Bill of Rights changes that one iota.
The philosophical argument regarding an armed citizenry has been going on for a few millennia, see Aristotle vs Plato. The framers endorsed the arguments of the former and discarded the latter . . .
The general militia principle is a foundational principle of the Constitution and is secured through the republican form of government promised to the states:
[INDENT][INDENT]“It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.”
Presser v. Illinois, 116 U.S. 252 (1886)[/INDENT][/INDENT]
Unfortunately for civil libertarians, the states are held to have general police power- the basic power of a government to make things illegal under penalty of law, limited only by their own state constitutions. Gun control advocates claim that banning possession of what they consider the tools of homicide is fully within that general authority.
This is why the whole debate over “rights” comes up- it’s effectively the only way for people to limit what would otherwise be the nearly boundless power of a duly embodied legislature to pass laws enabling anything, like in principle the British Parliament can. Also, this is why some hard core an-caps insist that “limited government” is a contradiction of terms; that ultimately all governments are inherently authoritarian
Human nature?
Yes, the U.S. Constitution was ratified in 1789 and the BOR was ratified in 1791. However, it’s highly unlikely that a constitution would have been ratified without knowledge of the intention of including a written statement identifying individual rights. The delegates and state conventions weren’t going to ratify the Constitution without them.
The federal government did not/does not need an amendment stating that it could “bear arms”. It’s the federal government. It simply has to pass a law. A law to create a standing army. A law to increase the size of the standing army. Authorize additinal money to equip a standing army with arms and munitions.
You are looking at it backwards; a right doesn’t need a recognition in law to exist . . .
A court (especially SCOTUS) has no authority to determine what a right is or its “scope”; their duty is to examine a contested law and determine if it exceeds the legitimate powers granted to government. Government respects rights by refraining from usurping power, exercising powers not granted to it.
Where have you been?
SCOTUS has been recognizing this in consistent fashion since the beginning. As I said, the actual origin isn’t important; religious people can put a theological origin on it, secular people can assign it to emanating from our humanity. SCOTUS focuses primarily on affirming that the Constitution isn’t the origin and that rights are held out from the grant of power that gives life to government for that’s all it needs to concern itself with:
[INDENT][INDENT]“The constitution expressly declares, that the right of acquiring, possessing, and protecting property is natural, inherent, and unalienable. It is a right not ex gratia from the legislature, but ex debito from the constitution. . .” VANHORNE’S LESSEE v. DORRANCE, 2 U.S. 304 (1795)
“The law is perfectly well settled that the first 10 amendments to the constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, . . .” – ROBERTSON v. BALDWIN, 165 U.S. 275 (1867)
“Men are endowed by their Creator with certain unalienable rights, and to ‘secure,’ not grant or create, these rights, governments are instituted.” – BUDD v. PEOPLE OF STATE OF NEW YORK, 143 U.S. 517 (1892)
The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights. – UNITED STATES v. TWIN CITY POWER CO., 350 U.S. 222 (1956)
“[N]either the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. . . . Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty,. . .” – DENNIS C. VACCO, ATTORNEY GENERAL OF NEW YORK, et al., PETITIONERS v. TIMOTHY E. QUILL et al. No. 95-1858, (1997)[/INDENT][/INDENT]
LOL. Tell that to SCOTUS.
Lockean principles are at the core of what makes the Constitution function.
We the People established the government by conferring powers through the Constitution.
Government exercises those powers with the consent of the governed.
If government violates the principles of its establishment and usurps power it is the original right of the people to rescind their consent to be governed and reclaim the powers granted to government, with violence if necessary, utilizing the means they excepted out of the powers granted to government, specifically the right to keep and bear arms.
And that doctrine gave us laws like this:
[INDENT][INDENT]Section 1. Be it enacted, … [t]hat no freedman, free negro or mulatto, not in the military service of the United States [G]overnment, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie-knife,. . .
1865 Miss. Laws 165 (Nov. 29, 1865)[/INDENT][/INDENT]
But a claim that you “have a right” should be the last appeal to stop illegitmate government action. The first should be questioning whether government possesses the power to do what it proposes . . .
Problem is, the citizenry has been dumbed-down and the fundamental principles of the Constitution have been scrubbed from their consciousness. The leftist / statist / collectivist agenda has completely redefined what “rights” are to the detriment of liberty and the Constitution.
And the founders / framers recognized this which is why they chose such a strict enumeration of powers.
This was recognized by SCOTUS a long time ago:
[INDENT][INDENT]"The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?
The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable."
MARBURY v. MADISON, 5 U.S. 137 (1803)[/INDENT][/INDENT]
In a court of law, that is a distinction without a difference. A right needs recognition in law to be a matter in any way at issue.