# The Right to Bear Arms, Yet again **URL:** \ **Category:** The BBQ Pit\ **Created:** [May 8, 2002, 5:33pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930 "2002-05-08T17:33:42Z")\ **Posts on this page:** 20\ **Page:** 8
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [May 13, 2002, 1:05am UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/141 "2002-05-13T01:05:48Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*And Max, _Miller_ certainly does not stand for the proposition that the Second Amendment is a collective right instead of an individual one. However, _Miller_ indisputably establishes that the “well-regulated militia” clause acts as a substantive restriction on the scope of the right granted. Though the subsequent cases go beyond _Miller_’s holding that a gun has to be of a type suitable for militia use to receive any Second Amendment protection, they certainly draw on _Miller_’s recognition that the militia clause limits the right to bear arms. Nothing in the subsequent decisions contradicts anything in _Miller_. \*\* _Miller_ does no such thing. The Supremes handed the case back to the trial court, saying that they wouldn’t make decisions about Miller’s right to own a short-barrelled shotgun in the absence of evidence that the gun either did or did not serve the interests of the militia. That’s all. As for your cases: _Warin_ - misreads _Miller_, court states that _Miller_ requires that the defendant show that he personally (NOT his weapon) has some relationship with the militia. The misread here is so bad that I’d say the entire case is based on a flawed premise. _Stevens_ - one sentence devoted to the second amendment. The court cites _Miller_ for the proposition that Amendment Number Two “applies only to the right of the State to maintain a militia and not to the individual’s right to bear arms.” That’s it. Problem is, _Miller_ doesn’t say that. _Hickman v. Block_ is a modern, rather bizarre case involving a person suing everyone under the sun because his concealed-carry permit application was denied (by California, no surprise). Once again, the court misreads _Miller_, saying of its holding that: “the Court found that the right to keep and bear arms is meant solely to protect the right of the states to keep and maintain armed militia.” Wrong, wrong, wrong. _Love v. Peppersack_ also cites _Miller_ for the proposition that the Second Amendment preserves a “collective right”. Show me where _Miller_ uses the words “collective right”. Hell, show me where _Miller_ uses the concept of “collective right”. Do I really need to keep going? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 13, 2002, 1:58am UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/142 "2002-05-13T01:58:38Z")
Your ignorance of the law is practically glowing, Max. Let’s take these one at a time. First, what the Supreme Court held in [_Miller_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=307&invol=174) > [@](#): > > \*Originally posted by Max Torque \* > _Miller_ does no such thing. The Supremes handed the case back to the trial court, saying that they wouldn’t make decisions about Miller’s right to own a short-barrelled shotgun in the absence of evidence that the gun either did or did not serve the interests of the militia. That’s all. Bullshit. Complete and utter cattle excrement. Read the fucking case. The Court reversed the district court’s ruling that Miller could not be prosecuted under the National Firearms Act because it violated the Second Amendment. The Court unambiguously held: > [@](#): > > \*In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. \* In other words, a gun must be suitable for militia use to receive any Second Amendment protection, precisely as I said above. The Court did not decide whether Miller’s sawed-off shotgun was such a weapon because that’s apparently a fact question outside of the Supreme Court’s appellate jurisdiction. Nevertheless, the Court indisputably established exactly what I said above: if it ain’t fit for militia use, it ain’t protected by the Second Amendment. It ought to be bloody well obvious to anyone with more than three functioning brain cells that the Court reached that holding because it was giving effect to the “well-regulated militia” clause of the amendment. But just anyone is so afflicted, I’ll quote the paragraph of the opinion that explicitly states that the militia clause substantively restricts the right to bear arms: > [@](#): > > \*The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. \*\*It must be interpreted and applied with that end in view. \*\*\* Now let’s move to your criticism of the circuit courts. You argue that the courts misread _Miller_. You say they cite it for the proposition that the Second Amendment confers only a collective right, when in fact _Miller_ is silent on the collective vs. individual rights controversy. So. Fucking. What? It would not matter one bit if the courts of appeals cited _Green Eggs and Ham_ in holding as they did. It would not matter if they read it in a bowl of alphabet soup. It would not matter if they cited nothing at all in support of the holding that the Second Amendment confers only a collective right. They held it. And that makes it the law. Oh sure, you disagree, you think the courts fucked it up, you think it was really intended to be an individual right. That’s fine with me. But do **not** , even for a moment, pretend that your opinion **is** the law. It is not. ---
**Author:** ![Crafter\_Man](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crafter_man/32/458_2.png) [@Crafter\_Man](https://boards.straightdope.com/u/Crafter_Man)\ **Post date:** [May 13, 2002, 2:16am UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/143 "2002-05-13T02:16:12Z")
> [@](#): > > \*Originally posted by minty green \* > **So if the law is irrelevant to you, why are you so intent on proving it means something that supports your postion, Crafter?** Um, perhaps I’m missing something here. When have I waxed on about the law? For the record, you’re correct: I could care less what the law says about my _inalienable_ rights. (Key word there, of course, is “inalienable.”) I’ll speak my mind, practice my religion, and bear my arms – without _any_ regard for the “law.” So am I an anarchists? Certainly not. As is expected of any upstanding and responsible citizen, I am law-abiding when it comes to the privileges granted me (e.g. speed limits). In fact, I am probably law-abiding 99% of the time. It’s just those (few) laws that directly limit my inalienable rights that I choose to ignore. I do it out of duty. Abiding by laws that limit inalienable rights, or are otherwise unConstitutional, is treasonous in my book. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 13, 2002, 3:09am UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/144 "2002-05-13T03:09:41Z")
> [@](#): > > When have I waxed on about the law? Sorry, my error. I should have remembered you’re the one who doesn’t care about the law. Be sure and inform the FBI and ATF of that position if you have the time, 'kay? 😛 ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [May 13, 2002, 4:35am UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/145 "2002-05-13T04:35:21Z")
I’m gonna start off with a brief editorial, citing a few examples if I may: > [@](#): > > ## \*\*Look here, everyone, there’s a damn fool named Tedster. > > ## You are a moron, Kalashnikov. > > ## Tedster, you are also a moron. > > ## I submit that the only damn fool around here is Tedster > > ## Tedster, you are a lying sack of crap. > > ## I repeat the accusation of dumbfuckery. Run along now and play in traffic. > > ## Go felch a goat, catsix. > > ## I don’t give a rat’s ass what you think of the expression [“gun nut”]. > > ## catsix, your ignorance continues to astound me > > ## catsix, you are a lying sack of shit. . . Sorry, that shit don’t fly. Add it to your sack. > > ## Crafter\_Man. . . pucker up your lips and kiss my winterfresh ass as I conclusively demonstrate that you are a moron > > ## You, Crafter\_Man, are the ignorantest ignoramus in the entire state of Ignorania. Try to remember not to look up at the sky for too long the next time it rains. > > ## Piss off. . . seek psychiatric help. > > ## Your ignorance of the law is practically glowing, Max. > > It ought to be bloody well obvious to anyone with more than three functioning brain cells > \*\* That should do for a representative sample. Anyway: **minty** , you’ve been nothing but insulting, condescending, and arrogant from page one in this thread. No one apart from yourself has posted anything remotely on a par with the above in this thread. I realize that being in the Pit, a person can expect to get away with all kinds of crap. But if you want to make your point heard, you might want to pretend to be a civil human being while making it. > [@](#): > > \*Originally posted by minty green \* > **Bullshit. Complete and utter cattle excrement. Read the fucking case.** I’ve read it. Many, many times. I’ve read commentaries, analyses, law review articles, editorials, you name it, on the decision. Get over yourself. > [@](#): > > **In other words, a gun must be suitable for militia use to receive any Second Amendment protection, precisely as I said above. The Court did not decide whether Miller’s sawed-off shotgun was such a weapon because that’s apparently a fact question outside of the Supreme Court’s appellate jurisdiction. Nevertheless, the Court indisputably established exactly what I said above: if it ain’t fit for militia use, it ain’t protected by the Second Amendment.** Look at the language again. Your “in other words” guts the _actual_ words. Saying “in the absence of evidence, we can’t say that it’s protected” is _not_ the same thing as saying, “there _must_ be evidence, or it’s _not_ protected.” > [@](#): > > \*\*Now let’s move to your criticism of the circuit courts. You argue that the courts misread _Miller_. You say they cite it for the proposition that the Second Amendment confers only a collective right, when in fact _Miller_ is silent on the collective vs. individual rights controversy. > > So. Fucking. What? > > It would not matter one bit if the courts of appeals cited _Green Eggs and Ham_ in holding as they did. It would not matter if they read it in a bowl of alphabet soup. It would not matter if they cited nothing at all in support of the holding that the Second Amendment confers only a collective right.\*\* It most certainly _does_ matter if they cite precedent for proposition A when in fact that precedent does not support A but B. Or do you suggest we throw stare decisis out the window? > [@](#): > > **They held it. And that makes it the law.** Sadly, until they are corrected, this is true. > [@](#): > > \*\*Oh sure, you disagree, you think the courts fucked it up, you think it was really intended to be an individual right. That’s fine with me. But do **not** , even for a moment, pretend that your opinion **is** the law. It is not. \*\* I never did anything of the sort. Don’t put words in my mouth. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [May 13, 2002, 6:24am UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/146 "2002-05-13T06:24:54Z")
I’m just a trifle confused here. I read many complaints about how minty green is being rude and condescending when he posts his research on 2nd Amendment law, and yet Crafter\_Man goes on and on about how he doesn’t give a shit about the law at all when it comes to his guns. I would have thought that all of the people here who think that the law supports their right to keep and bear arms would be jumping down his throat. How outrageous does a gun-rights activist have to be before you stand up and say,“This nutcase is _exactly_ what is holding us back, and just standing back and mumbling that it isn’t our opinion to ourselves just isn’t good enough anymore!” Yeah, I know. Crafter\_Man has a right to his opinions. So does minty green. Why in the hell are you arguing with the one would follow the law, probably even if it ruled in your favor, instead of the one who is giving you one hell of a black eye? ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [May 13, 2002, 6:36am UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/147 "2002-05-13T06:36:07Z")
> [@](#): > > I would have thought that all of the people here who think that the law supports their right to keep and bear arms would be jumping down his throat. Why? It’s not like the two positions at all contradict each other. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [May 13, 2002, 6:42am UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/148 "2002-05-13T06:42:38Z")
I refuse to believe that. There are many people here who are law-abiding, intelligent and believe that the have a right to keep arms. They are willing to work through the system. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 13, 2002, 12:13pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/149 "2002-05-13T12:13:42Z")
> [@](#): > > \*Originally posted by Max Torque \* > Anyway: **minty** , you’ve been nothing but insulting, condescending, and arrogant from page one in this thread. No one apart from yourself has posted anything remotely on a par with the above in this thread. I realize that being in the Pit, a person can expect to get away with all kinds of crap. But if you want to make your point heard, you might want to pretend to be a civil human being while making it. Bite me. The name calling started when **Tedster** stupidly asserted that “any damn fool” knows the Second Amendment was intended to allow citizens to defend themselves from criminals. I am not a damn fool, Tedster was 100% wrong, and I reacted accordingly. Then **Crafter\_Man** chimed in with his bullshit assertion that the English language didn’t mean the same back then as it does now. When I corrected him–and I really did look at a couple dictionaries before posting that response–he repeated it in an extremely condescending and willfully ignorant manner. So I called him for the idiot he was being. Basically, I stand by every insult I’ve posted here, plus the recommendation that if someone is delusional enough to go tramping around the fields playing pretend soldier, that person is in need of psychiatric help. That shit’s whacked out, man. > [@](#): > > Look at the language again. Your “in other words” guts the _actual_ words. Saying “in the absence of evidence, we can’t say that it’s protected” is _not_ the same thing as saying, “there _must_ be evidence, or it’s _not_ protected.” WTF? The Court required evidence that the gun was of a type suitable for militia use to support the trial court’s ruling that it _was_ protected by the Second Amendment. There must be such evidence or it will not be protected. Where’s the disconnect? > [@](#): > > Or do you suggest we throw stare decisis out the window? No, that’s your position. But the circuit court cases are **NOT** contrary to _Miller_, because _Miller_ is silent on the collective versus individual rights problem. It is equally consistent with either position. But it also undeniably gives substantive weight to the militia clause, which is also what the subsequent circuit court decisions have done. Yes, they went beyond _Miller_, even though they are building off of it. That in no conceivable way violates stare decisis. > [@](#): > > I never did anything of the sort. Don’t put words in my mouth. Great. As long as you recognize what the law actually is, then we are in complete agreement. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [May 13, 2002, 2:33pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/150 "2002-05-13T14:33:49Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Great. As long as you recognize what the law actually is, then we are in complete agreement. \*\* I recognize that the circuits are in conflict with the _Emerson_ decision, and thank God for that; maybe now the Supremes will finally tell us what the Second really means. And I have an idea about which way they’ll lean… ---
**Author:** ![Crafter\_Man](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crafter_man/32/458_2.png) [@Crafter\_Man](https://boards.straightdope.com/u/Crafter_Man)\ **Post date:** [May 13, 2002, 2:52pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/151 "2002-05-13T14:52:31Z")
> [@](#): > > \*Originally posted by Czarcasm \* > \*\*There are many people here who are law-abiding, intelligent and believe that the have a right to keep arms. They are willing to work through the system. \*\* Excuse me? Work with the system?! I’ll “work with the system” as long as it’s constitutional. But if it’s not, then all bets are off. **Czarcasm** , you seem to be implying that I’m an out-of-control renegade with no respect for the law. As stated above, I conduct my day-to-day life in a normal, lawful, and rather boring manner. But _no one_ has an obligation to follow unconstitutional laws. Not me, not you, not anyone! (Thomas Jefferson and I are in complete agreement on this topic, in case you’re wondering.) Rosa Parks refused to give up her bus seat to a white person in 1955. By refusing to do so, _she broke the_ (gasp!) _law_. So would you have chastised her for breaking the law, **Czarcasm**? I suspect so. Now let’s pretend you were living in 1776 Boston. The redcoats are going door-to-door confiscating weapons. Would you have given them your weapons, **Czarcasm**? After all, _it was the law_. I suspect you would have dutifully handed them over. “Here’s my Brown Bess rifle, sire.” Would have you fought the British? I would guess not. Because rebelling against the Crown was unlawful. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 13, 2002, 2:57pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/152 "2002-05-13T14:57:56Z")
In conflict with dicta? That’s not usually a good reason to grant cert. The petition, however, is [still pending](http://www.supremecourtus.gov/docket/01-8780.htm). And [here](http://www.usdoj.gov/osg/briefs/2001/0responses/2001-8780.resp.html) is the Solicitor General’s opposition, filed last Monday. This is what they have to say on Emerson’s Second Amendment defense (emphasis added): > [@](#): > > Petitioner contends (Pet. 13-16) that Section 922(g)(8) violates his Second Amendment right to keep and bear arms. The court of appeals held both that the Second Amendment protects an individual’s right to possess a firearm (Pet. App. 134-135), and that the right is subject to “limited, narrowly tailored specific exemptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country” (id. at 136). Applying that test, the court of appeals held, correctly, that Section 922(g)(8), which serves to prevent firearm possession by persons who have been judicially determined to pose a credible threat to the physical safety of a spouse or child, is a permissible limitation. Id. at 137-143. **Petitioner identifies no case, and the government is aware of none, in which a court of appeals has found Section 922(g)(8) - or, for that matter, any other federal statutory restriction on private gun possession - to be violative of the Second Amendment.** Petitioner’s claim therefore does not warrant further review. > > Other courts of appeals have rejected Second Amendment challenges to various provisions of Section 922(g) on the ground that the Amendment protects the possession of firearms only in connection with state militia activity. See, e.g., United States v. Napier, 233 F.3d 394, 402-404 (6th Cir. 2000); Hancock, 231 F.3d at 565-566; Gillespie v. City of Indianapolis, 185 F.3d 693, 710- 711 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000); United States v. Smith, 171 F.3d 617, 624 (8th Cir. 1999). The court of appeals here rejected the analytic approach employed in those decisions, holding that the Second Amendment “protects the rights of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons.” Pet. App. 134-135; see also id. at 144. **But while the courts of appeals are in disagreement concerning the abstract question whether the Amendment protects an individual right to bear arms for reasons unrelated to militia service, no circuit conflict exists on the constitutionality of any firearms prohibition contained within 18 U.S.C. 922.** > > Petitioner argues (Pet. 14-16) that the court of appeals erred in failing to apply strict scrutiny in ruling on his Second Amendment challenge to Section 922(g)(8). Contrary to petitioner’s suggestion (Pet. 15), however, the court of appeals did not purport to apply a relaxed standard of review. Rather, the court stated that, “as historically understood in this country,” an individual’s right to possess a firearm is subject to “limited, narrowly tailored specific exceptions or restrictions.” Pet. App. 136. Where an injunction against violent conduct reflects the issuing court’s determination that an individual poses “a real threat or danger of injury to” another, id. at 138, the court of appeals “conclude[d] that the nexus between firearm possession by the party so enjoined and the threat of lawless violence, is sufficient, though likely barely so, to support the deprivation, while the order remains in effect, of the enjoined party’s Second Amendment right to keep and bear arms,” id. at 143. In any event, the court’s analysis produced a result that is consistent with decisions of other courts of appeals that have upheld the constitutionality of Section 922(g)(8). Further review is therefore unwarranted. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 13, 2002, 3:09pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/153 "2002-05-13T15:09:34Z")
> [@](#): > > \*Originally posted by Crafter\_Man \* > I’ll “work with the system” as long as it’s constitutional. But if it’s not, then all bets are off. Translation: “The law is what _I_ say it is. And I reserve the right to kill everyone who attempts to enforce a contrary interpretation.” > [@](#): > > Rosa Parks refused to give up her bus seat to a white person in 1955. By refusing to do so, _she broke the_ (gasp!) _law_ Truly, one of the great days in American history was when Rosa Parks pulled that .45 out of her purse and shot that bus driver through the forehead. Just think, without an unfettered right to bear arms, the civil rights movement might never have succeeded! ---
**Author:** ![UncleBeer](https://avatars.discourse-cdn.com/v4/letter/u/977dab/32.png) [@UncleBeer](https://boards.straightdope.com/u/UncleBeer)\ **Post date:** [May 13, 2002, 4:32pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/154 "2002-05-13T16:32:12Z")
Sorry folks, I’ve been away since I posted here last. It looks like I’ve missed nothing but a bunch of infuriating rancor anyway. No big loss. I do, however, have one final thing to say, though I doubt anyone’s listening. Just assuming for the moment, minty’s correct and the U.S. Constitution acknowledges only a collective right to arms, and then only when used to overthrow a government run amok, there remains an individual right to gun ownership, for any legitimate purpose; the regulation of which devolves upon the several states. Here’s the pertinent amendment from the Constitution of the State of Ohio: > [@](#): > > The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power. Many state constitutions have similar wording; some are even more explicit regarding the use of arms for personal security. And as you can see, as a resident of the State of Ohio, “people” may own arms for “security” purposes. Bite me. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 13, 2002, 4:48pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/155 "2002-05-13T16:48:00Z")
Did I say anything to the contrary? Like I told you two pages ago: > [@](#): > > As for your cases, . . . they appear to be based primarily on state laws anyway. I’d be happy to debate the right to bear arms under the Texas Constitution, but that ain’t quite the same thing as the Second Amendment. Keep in mind, however, that federal law trumps state law. If federal law says you can’t have a particular weapon, it won’t matter one bit that your state constitution says you can. Bite me twice. 😛 ---
**Author:** ![pldennison](https://avatars.discourse-cdn.com/v4/letter/p/9fc29f/32.png) [@pldennison](https://boards.straightdope.com/u/pldennison)\ **Post date:** [May 13, 2002, 4:53pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/156 "2002-05-13T16:53:43Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Truly, one of the great days in American history was when Rosa Parks pulled that .45 out of her purse and shot that bus driver through the forehead. Just think, without an unfettered right to bear arms, the civil rights movement might never have succeeded! \*\* One can, of course, bear a firearm without ever drawing it, let alone firing it, but what’s intellectual honesty when there’s room for some polemic? I believe Crafter-Man’s point was that it would be legitimate civil disobedience for him to carry a firearm on his person in the face of (in his perception) an unjust anti-gun law just as it was legitimate civil disobedience for Rosa Parks, et al. to do what they did. ---
**Author:** ![UncleBeer](https://avatars.discourse-cdn.com/v4/letter/u/977dab/32.png) [@UncleBeer](https://boards.straightdope.com/u/UncleBeer)\ **Post date:** [May 13, 2002, 4:54pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/157 "2002-05-13T16:54:37Z")
Sorry again folks. I guess the above isn’t the last thing I have to say here. Further reflection has lead me to a couple other items I can’t seem to let go of. > [@](#): > > In other words, a gun must be suitable for militia use to receive any Second Amendment protection, precisely as I said above. Okay, smartass, granting your (or whomever’s you’ve paraphrased from) conclusion again for the moment, I’ve posted a list of firearms I possess over in another thread at one time. You tell me which of those **have no military use**. Please provide a single example of an “arm,” any arm, that has **no** military value. > [@](#): > > But while the **courts of appeals are in disagreement concerning the abstract question whether the Amendment protects an individual right to bear arms** for reasons unrelated to militia service . . . And this, from your own cite, seems to refute your basic assertion that the U.S. Appeals Courts have consistently stated the 2nd amendment grants only a collective right. I think you’ve tripped over your own obfuscation, minty. Go litigate yourself. _edited to fix tags_ ---
**Author:** ![UncleBeer](https://avatars.discourse-cdn.com/v4/letter/u/977dab/32.png) [@UncleBeer](https://boards.straightdope.com/u/UncleBeer)\ **Post date:** [May 13, 2002, 5:09pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/158 "2002-05-13T17:09:34Z")
> [@](#): > > Keep in mind, however, that federal law trumps state law. If federal law says you can’t have a particular weapon, it won’t matter one bit that your state constitution says you can. Right. And as I said, this still leaves me the right to own arms without prior restrtictions on purpose. Or at least it does by your contention that federal law is mute on private ownership. Also, you’ve made the flawed assertion that the Bill of Rights actually _grants_ rights to, I guess, individuals, as well as groups. This is a complete and utter misunderstanding of the purpose of that document, and in fact, the entire framework on which duly constituted laws rest. The government of the United States, and the documents upon which it relies for the authority to operate, **does not** grant rights to the citizens. You know this very well. Again, you misrepresent the situation. I find you method of argument in this thread to be disingenuous at best; at worst, you are simply lying. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 13, 2002, 5:11pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/159 "2002-05-13T17:11:53Z")
**pldennison** , civil disobedience requires that the actor openly and publicly break the law and accept the legal consequences of his or her actions. _See, e.g.,_ Thoreau, Gandhi, and King. End result: Crafter\_Man goes to jail. I’m okay with that, but I doubt he is. **Uncle Beer** , whether a firearm is suitable for militia use is a fact question for either the trial court or the jury (_Miller_ is unclear on who makes that determination). I am neither. But the thing is, according to the Supreme Court, _the gun owner_ have to prove that the gun is suitable for militia use, or the Second Amendment will have no effect. Gotta love that burden of proof. As for the circuit split, the question is not whether the circuits “disagree” on the individual vs. collective rights issue. The question is whether their _holdings_ are in conflict. Because the Fifth Circuit in _Emerson_ only addressed the individual/collective controversy in dicta–again, see Judge Parker’s excellent concurring opinion in that case–there is no conflict in the holdings of the various circuits. The Supreme Court _might_ take the case, but I doubt it. If they’re interested in the question, they’ll almost certainly wait until a case in which the outcome actually depends on whether the Second Am. is a collective or individual right. Go represent yourself. 😛 ---
**Author:** ![Crafter\_Man](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crafter_man/32/458_2.png) [@Crafter\_Man](https://boards.straightdope.com/u/Crafter_Man)\ **Post date:** [May 13, 2002, 5:13pm UTC](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930/160 "2002-05-13T17:13:19Z")
> [@](#): > > \*Originally posted by pldennison \* > \*\*I believe Crafter-Man’s point was that it would be legitimate civil disobedience for him to carry a firearm on his person in the face of (in his perception) an unjust anti-gun law just as it was legitimate civil disobedience for Rosa Parks, et al. to do what they did. \*\* Thanks, **pldennison**. You stated my position much better than I did. [Previous page](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930.md?page=7) [Next page](https://boards.straightdope.com/t/the-right-to-bear-arms-yet-again/107930.md?page=9)