[esef]

I know that many antis argue that the founding fathers were writing specifically about militia’s right to bear arms but weren't militias during the revolutionary war a civilian army? If that's the case where were the militias supposed to get their arms from if each person did not already own one? I’m not asking for you to argue their point but just point out their reasoning.

Thanks,

Ed

[Hkmp5sd]

Here is some recommended reading on the subject.

http://www.guncite.com/index.html

[Standing Wolf]

The militia was the rationale for the Second Amendment, which protects the right of the people to keep and bear arms.

One of the most ludicrous leftist extremist so-called "interpretations" of the Second Amendment is that it protects the right of the National Guard to keep and bear arms. The National Guard was founded in 1917, well over a hundred years after the enactment of the Bill of Rights.

[Stevie-Ray]

The militia, sir, is our ultimate safety. We can have no security without it. The great object is, that every man be armed. Everyone who is able may have a gun. .........Patrick Henry

A militia, when properly formed, are in fact the people themselves, and render regular troops in great measure unnecessary...................Richard Henry Lee

The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to overawe them................Tench Coxe

[Joe Gunns]

Militia were armed citizens acting in concert to protect their communities. Founders believed a large standing army to be a great threat to maintenance of liberty. Any able, armed citizen was potentially available to answer the call, hence all were militia men. Militia companies were NOT controlled in any way by the Colonial army or the central government (Continental Congress), except when whole units would volunteer to serve.

National guard, as reserve wing of standing army, though ostensively under state control, (as a sop to the dying concept of federalism) is not same as militia.

Anti's are either unaware or ignore character of revolutionary era militia. Don't try to figure out how they reason. Like the line from the 1990's version of "The Last of the Mohicans,"
"You will meet people who you do not understand, and they will not understand you. Don't try to understand them, for they are a breed apart and make no sense."

Joe

[Jim March]

What you really need is a book Stephen Halbrook wrote in 1984, "That Every Man Be Armed". He starts out with a "history of the RKBA", including the fact that the "militia concept" as a pro-freedom thing was a very well developed concept by 1776.

[Graystar]

This issue is complex. People believe that the "plain language" of the second clearly describes what it protects. But you must remember that the founding fathers were lawyers. These are the same guys that wrote "...that all men are created equal..." while at the same time owning slaves. Clearly, it's not so simple as "plain language."

In fact, the amendments of the Bill of Rights each address grievances of the colonies. The Second Amendment's origins are rooted in the fact that, right before the war, the British tried to empty the colonist's armories and deprive them of their ability to defend themselves.

If you read the history of the Second Amendment, there are two distinct facts that are apparent. It is clear that the founding fathers believed that a person has the right to carry arms. However, it is also equally clear, that the issue that the Second Amendment is meant to address is that of the Federal Government disarming the States, and *not* about the individual rights of citizens.

That is why the Federal Government considers the Second Amendment satisfied by the National Guard. As long as a state has the ability to defend itself, the requirement of the Second Amendment is satisfied.

We must forget about the Second Amendment and work to establish an independent right to carry firearms for personal defense. It is this right that has been lost in the shuffle. All cases that depend on the Second Amendment will always fail.

[Edward429451]

The Militia, that is, the people were (are) supposed to supply their own arms. Those that own none? How many of us gunowners have extra guns? Most, I think.

BYOB (Bring your own bullets)

[publius]

Federalist # 29 (http://lcweb2.loc.gov/const/fed/fed_29.html) addresses your question.

Here's a grammar lesson (http://www.nationalreview.com/kopel/kopel051601.shtml) that's relevant to Graystar's point.

[esef]

Very good explanations from you all. I'm glad to see that there is no shortage of smart and knowledgable people on this board.

Thanks.

[publius]

Another source of arms for the militia...The Congress?

Article 1, Section 8 (http://www.archives.gov/exhibit_hall/charters_of_freedom/constitution/constitution_transcription.html):
The Congress shall have the 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;

[Graystar]

Another source of arms for the militia...The Congress?

Yes. In fact, one of the senarios put forth, that led to the Second Amendment, was the possibility that Congress would effectively disarm the states by not providing funding for arms. The Second insures that a state can arm itself.

[publius]

And how does it do that? By ensuring that the people may keep and bear arms. Maybe they meant to say "the right of the states to keep and bear arms shall not be infringed." :rolleyes:

[Graystar]

And how does it do that? By ensuring that the people may keep and bear arms.

The People *are* the state.

"By the people, for the people"

[Don Gwinn]

So, in the other parts of the Constitution which refer to "the people," we should substitute "the states?"
:scrutiny:

[TallPine]

In order to more fully inform the loyal subjects (you are loyal, aren’t you?) of the Washington Empire, the following 21st century interpretation of the First Amendment is provided:

Many uneducated, uninformed, ignorant, and otherwise defective persons have had the mistaken notion that “the right of the people” refers to an individual and personal right. In reality, nothing could be further from the truth.

For example, it has been falsely asserted that “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” convey some supposed right of various individuals to gather in one location without permission to complain and/or harass the overworked and underpaid servants who toil ceaselessly in their behalf to provide security and comfort to the masses.

All educated and enlightened scholars now realize that “the right of the people to assemble” in this case refers to the right of the state and federal legislative bodies to meet and enact restrictive laws for the betterment of the country. It does not convey a right to everyone to assemble, only the duly elected representatives of the people. As long as some people have the right to assemble, the constitutional provision is being satisfied.

It is simply too dangerous for common, uneducated, and unenlightened persons to gather together in large numbers (such as more than ten, unless they had already gathered prior to 1984). Someone could get hurt.

Obviously, this “right of the people” is also limited in the other clauses of the First Amendment, such as the ability of congress to make laws abridging the freedom of speech. This restriction does not hinder the ability of the congress to abridge the freedom of speech of individuals, but only that the congress shall not abridge the freedom of speech of the members of the state and federal governing bodies, and certain other approved groups of persons, such as responsible journalists.

Free speech is just simply too dangerous to be allowed to the common people. Who knows when some wacko fruit cake could just lose it and suddenly start shooting off his white male mouth about some paranoid fears of the benevolent government which you are all so fortunate to have looking out for your best interests?

Again, as long as congress, the state legislative houses, and certain nationally recognized and responsible journalists have the right of free speech, the constitutional provisions of the First Amendment are being met. It is not necessary for all to have the right of free speech, as long as some have such a right.

Now that you have been properly informed, it is presumed that you will not be causing any more trouble.

:D :rolleyes:

[publius]

The People *are* the state.

We're individuals first.

My guns belong to me. Jeb Bush can't have them. :neener:

[Graystar]

We're individuals first.

Yes, but is not "people" a plural term?

You're mixing two facts. The first fact is that we have an individual right to possess firearms for our personal protection. The second fact is that the states wanted an assurance that the federal government wouldn't disarm them. One fact has nothing to do with the other. The Second Amendment addresses the second fact...not the first. The first fact is addressed through the Ninth Amendment. However, the Ninth has always been tightrope walk, which is why we have our current situation.

[publius]

I think you're mixing clauses. Yes, the purpose of the 2nd was to preserve a well-regulated militia, seen as necessary to a free State. But the means of doing that was not to protect the right of the states to raise militia armies, it was to protect the right of the people to keep and bear arms. That right is assumed to exist (you did read the grammar lesson, didn't you?).

People is plural, but trigger finger is singular.

[Graystar]

I read the "grammar lesson". Unfortunately, the law has it's own dictionary and its own specific meaning to certain constructs. And since the Constitution and its Amendments were written by lawyers, it is legal grammar that must be applied, not English grammar. So that discussion is meaningless.

The Second Amendment does not concern itself with the means of a state's defense, but merely restricts the federal government from infringing upon the right to do so. How that protection was accomplished was the state's business. That is, until the National Guards was formed (because of the utter ineffectiveness of state militias)

[Quartus]

That is the most ridiculous piece of historical and grammatical revisionism that I have ever seen. It beggars the English language to describe its stupidity.


"The first fact is that we have an individual right to possess firearms for our personal protection. "


And an individual right to possess arms to kill oppressors who may happen to reside in Washington D.C. Which is the intent of the 2A, as is abundantly clear from the writings of the FF.

Of course, I guess we have to re-interpret those now, too.


:rolleyes:

[publius]

The Second Amendment does not concern itself with the means of a state's defense, but merely restricts the federal government from infringing upon the right to do so.

I've lost my legal dictionary, but...

Seems to me that the second specifically prescribes the means of a state's defense: arms in the hands of the people. How is it that preserving that right is unrelated to the means of a state's defense? Seems pretty related to me.

It doesn't merely restrict the feds from infringing upon the right of states to form a militia, it restricts the feds from infringing upon the right of the people to keep and bear arms. That's what the words say! Are you saying that by some legal definition, in the case of the second (and any other amendments which refer to people), the word people can only mean people under the authority of the state militia?

How does that work? Peaceble assembly only if authorized by the state? The collective right of the people (when they're in state buildings?) to be free from unreasonable searches and seizures, but no individual right? What do amendments 9 and 10 actually mean if people is a synonym for state? Are they just redundant?

9. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[BigG]

It's my understanding that prior to the (late unpleasantness, the civil war (pick one)) people generally considered themselves a citizen of their state rather than the US of A.

[Graystar]

Seems to me that the second specifically prescribes the means of a state's defense: arms in the hands of the people.
Right. People = State. They are one in the same.

Are you saying that by some legal definition, in the case of the second (and any other amendments which refer to people), the word people can only mean people under the authority of the state militia?
No. I'm saying that when there is a question of the meaning of any part of the Constitution, or any law for that matter, the judiciary makes an attempt to discover the intent of the lawmakers. That's why "custodial interrogation" doesn't apply to questioning you when a cop has pulled you over. The intent of reading a person their rights is to provide protection under the harsh environment of an interrogation room. Sitting in your car on the open road doesn't cut it.

The 5th Circuit reviewed journals and personal correspondence and found that the founding fathers believed that we have an individual right to carry firearms. The 9th Circuit, however, reviewed the debates specifically of the Second Amendment and found that primary concern was not of individuals possessing firearms, but of a states ability to defend itself against a Federal Government gone bad. The states didn't want to merely exchange one oppressive government for another. This is why the Second Amendment is viewed in that way by the Judiciary.

If we just present the same documentation that the 5th Circuit reviewed, and claim a 9th Amendment right based on those document, I think it would be a slam dunk. But no....people are fixated on that damned Second Amendment. We're never gonna get anywhere like that.

[Quartus]

People = State. They are one in the same.


Only in the mind of a statist. Not to the Founding Fathers. Not to free men.

[Graystar]

Only in the mind of a statist. Not to the Founding Fathers. Not to free men.
Are you saying that free men cannot be part of a state? That there's no such thing as a government by the people?

Who exactly, then, were the founding fathers representing?

[Quartus]

Let me re-phrase that.

Only in the mind of a statist. Not to the Founding Fathers. Not to free men. Not in the English language of any age.


The people are just that - the people. Individuals, spoken of collectively. Together, they may choose to form that political entity known as a "state". OR they may not. They are still people.

The terms are not synonymous.


Do you have trouble with the meaning of "is", too?

[publius]

I'm saying that when there is a question of the meaning of any part of the Constitution, or any law for that matter, the judiciary makes an attempt to discover the intent of the lawmakers.

OK, let me help out there. Federalist #29:

The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

Sounds to me like he has in mind ordinary citizens, not in the context of an organized militia, except for the part about assembling once a year to make sure every (individual) private citizen has appropriate and functional weapons.

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government."
- -- Thomas Jefferson

Maybe he was just being imprecise with his words, and he actually meant to say:

"The strongest reason for the state to retain the right to keep and bear arms is, as a last resort, to protect itself against tyranny in the next higher level of government." Maybe he wasn't concerned about the ability of the people to protect themselves from an oppressive state government. Maybe not.

Sam Adams might have meant to say states as well:

"And that said Constitution be never construed to authorize Congress...to prevent the people of the Unites States, who are peaceable citizens, from keeping their own arms..." SAM ADAMS, in the Philadelphia Independent Gazetteer, Aug. 20, 1789.

Who knows what the heck George Washington was talking about here. It doesn't make much sense in a strictly militia context:
"The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that is good."
-George Washington

Still more...

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States."
-Noah Webster

"To preserve liberty, it is essential that the whole body of people always possess arms..."
-Richard Henry Lee

The 9th Circuit, however, reviewed the debates specifically of the Second Amendment and found that primary concern was not of individuals possessing firearms, but of a states ability to defend itself against a Federal Government gone bad.

OK, and you've said that the 2nd does not address the means by which the states are to do that. So what are those means, exactly?

[Smoke]

TallPine.....that is a riot!


ROTFLMAO:D

[TallPine]

Thanks Smoke, I'm glad somebody got it. :)


But that IS the exact argument some people use against the Second Amendment. :(

[Quartus]

Give it up, Tallpine! You're using English!

[mulatto_boy]

Let's all go back to the Articles of Confederation for a moment...

At that time, each state mustered its own militia, consisting of all able bodied men from that state.

Each state would muster and commit it's militia to the common defense if necessary. The power to call up the militia was a State right. The Federal had to provide a compelling reason to call the State Militias to service.

The intent of the Second Amendment was twofold:
1. It ensured that a militia would be readily available
2. it was a guarantee that if the State or Federal should attempt to abridge the liberties of the people, the people would have the means of defending themselves against that tyranny.

The Second Amendment is argued TWO ways:

The Individual Argument -
The one all of us here use

The Collective Argument -
A fallacious argument based on a "living document" interpretation of the Constitution that considers the right to bear arms valid only within the context of the militia. The main problem with this argument is that it ignores the fact that the people ARE the militia.

Their view is that since the States maintain a reserve (read: National Guard), the people are no longer the militia which is obviously a fallacy. Q: Who makes up the ranks of the guard, liberal dummies? A:The people.

The main function of creating the reserves was to ensure a uniform standard of weaponry and training amongst the militias.

The problem is, the Federal subverted the Constitution with passage of the Dick Act, which compelled "dual enlistment". This means members of the State militia must muster when called by the Federal, which was clearly not part of the mandate.

[Graystar]

OK, and you've said that the 2nd does not address the means by which the states are to do that. So what are those means, exactly?
Everything that you wrote is correct. As I already said, it is clear that the founding fathers firmly believed that individuals have a right to possess firearms for their defense.

What I'm saying is that your references, though demonstating the beliefs of the founding fathers, have nothing to do with the Second Amendment. The Second Amendment, like all the amendments, addresses specific grievances of the colonies. Consider the Third Amendment:

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

It's kinda hard to figure out how this falls under any natural right that would exist even in the absence of government. On the other hand, it's very easy to place this amendment in the context of a specific grievance the colonies held against the king.

In the same way, the Second Amendment addresses a specific grievance against the king...that of attempting to disarm the colonies when it became evident that a war might break out. This is the issue that the Second Amendment addresses.

So the Judiciary limits itself (as it does in all cases) to the most narrow context. As long as the Federal Government has not interferred with the state ability to defend itself, the Second is satisfied.

If a State, like New York, decides to disarm it's people, then that's an issue that the people have to take up with the state. *OR*....we can take those references of yours to the courts and claim a Ninth Amendment right to possess weapons for our personal defense.

I think that it is clear that the founding fathers expected the people of the several states to use their personal weapons to defend the state if needed. The problem is that this notion is not embodied anywhere, and certainly not a part of the debates around the Second Amendment. I think it was just sort of assumed, which is clearly a mistake that they could not possibly have forseen. I mean, the notion, in 1789, that laws could be passed that ban gun ownership...the idea would have seemed ludicrous!! But, let 200+ years go by and...

[publius]

the Second Amendment addresses a specific grievance against the king...that of attempting to disarm the colonies when it became evident that a war might break out. This is the issue that the Second Amendment addresses.

So the Judiciary limits itself (as it does in all cases) to the most narrow context. As long as the Federal Government has not interferred with the state ability to defend itself, the Second is satisfied.

Well, maybe not all interstate commerce cases, but that's another issue.

You didn't directly address the means by which states are to defend themselves under your theory. However, I note you said "disarm the colonies" not "disarm the colonists." Kind of a different emphasis there, if you word it the second way. One that implies that the second was needed to protect an individual right, not to protect the rights of governments. Indeed, what you failed to mention about the means to defend the states is what I said earlier: the means are those prescribed in the 2nd, namely, the protection of the right of individuals to keep and bear arms.

If a State, like New York, decides to disarm it's people, then that's an issue that the people have to take up with the state. *OR*....we can take those references of yours to the courts and claim a Ninth Amendment right to possess weapons for our personal defense.

Or, we can claim that the 2nd protects individual rights, just as every other amendment does, and we can further claim that NY is violating the 14th amendment:

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[Jim March]

Ahem!

If I may interject: we're no longer just dealing with the BoR. The 14th Amendment of 1868 made a number of changes in a distinctly pro-individual direction. For an intro and links to more information, see also:

http://www.ninehundred.com/~equalccw/practicalrace.html

[English John]

US v. Miller 1939. Yeah, I know, Miller lost (because he didn't show up!). People take this decision as anti-gun, but to paraphrase the SCOTUS- that's not a militia weapon because nobody proved to us that it is/could be used by the militia/military. Read the dicta for that decision. The court believed that if the PEOPLE were called up into their STATE militia that they were expected to show up with military-type weapons "in common use at the time" and provided by themselves (not the state). When the framers meant people they said so, and when they meant states they said that too. What abouts rights not enumerated to the federal gov't being reserved to the states, or to the people? I'm no lawyer, and I don't believe most of the framers were either, although they had a good education for their time. And it's Not complex. Anti-gunners work on emotion, not reason. Facts aren't important to them. EJ

[English John]

US v. Miller 1939. Yeah, I know, Miller lost (because he didn't show up!). People take this decision as anti-gun, but to paraphrase the SCOTUS- that's not a militia weapon because nobody proved to us that it is/could be used by the militia/military. Read the dicta for that decision. The court believed that if the PEOPLE were called up into their STATE militia that they were expected to show up with military-type weapons "in common use at the time" and provided by themselves (not the state). When the framers meant people they said so, and when they meant states they said that too. What abouts rights not enumerated to the federal gov't being reserved to the states, or to the people? I'm no lawyer, and I don't believe most of the framers were either, although they had a good education for their time. And it's Not complex. Anti-gunners work on emotion, not reason. Facts aren't important to them. EJ

[Graystar]

You didn't directly address the means by which states are to defend themselves under your theory.

With guns....silly. States are sovereign. The states have full reign over anything that isn't covered by Federal law. It was up to each state to maintain its militia. That is, until 1903 when the Feds started sticking their nose into it.

I note you said "disarm the colonies" not "disarm the colonists." Kind of a different emphasis there, if you word it the second way.

Well, the British army came over and tried to empty the armories. However you'd like to refer to that act is okay with me.

[Graystar]

US v. Miller 1939. Yeah, I know, Miller lost (because he didn't show up!).

Miller would have lost anyway. The Miller decision is right on, and is a perfect example of how an appeals case is viewed by the Judiciary.

[mulatto_boy]

The only reason that this is an issue is that liberals, statists and the ACLU have used the subordinate clause ("A well regulated militia...") to club the Primary clause ("the right of the people...) over the head.

J. Neil Schulman's The Unabridged Second Amendment and Sanford Levinson's The Embarrassing Second Amendment are both excellent critiques on the Second.

Levinson is a liberal and even he agrees that the Second is an individual right.

[El Tejon]

Graystar, how do you foresee Miller losing?:confused:

[English John]

I don't have the cite in front of me (and I may have to get it if this keeps up) but I remember something about "absent evidence" that this was a suitable militia/military weapon that they found against Miller and remanded the case back. (I wonder what would have happened if it was shown to be a suitable weapon?) Miller didn't show up because he had already WON TWICE in lower courts. (It was a case about a sawed-off shotgun and the then-new fed. firearms laws for those not familiar with it.) My point was that in the dicta the SCOTUS found that milita members were to answer the call with their own weapons "in common use at the time", so I guess we should all buy M16s because the unorganized militia (us) is still on the books. Also, remember that the Constitution was submitted to the states for ratification WITHOUT the BOR. The States, especially Virginia and New York, insisted it be redone with a BOR to protect the people (yes, and the states too). The Federalists promised that if it was ratified that the first order of business in the new Congress would be the BOR. When the time came, it was Patric Henry (yes, the same Patric Henry) that held their feet to the fire. James Madison (the "Father" of the Constitution) was initially AGAINST a BOR, for if something was forgotten and not written down the right might not be guaranteed. Besides, the Federal Gov't could ONLY do those things enumerated in the Constitution, so we didn't NEED a BOR! He eventually came around, and then became a strong supporter. The "second" ammendment was actually the fourth, but the first two were not ratified and were dropped.

[publius]

With guns....silly.

OK, whose guns?

[Graystar]

OK, whose guns?

Like I said, that was left up to the states.

[clange]

I'm surprised no one posted this. IMO this is the basis for the reasoning behind the second amendment from the writer himself.

The only refuge left for those who prophesy the downfall of the State
governments is the visionary supposition that the federal government may
previously accumulate a military force for the projects of ambition. The
reasonings contained in these papers must have been employed to little
purpose indeed, if it could be necessary now to disprove the reality of
this danger. That the people and the States should, for a sufficient
period of time, elect an uninterupted succession of men ready to betray
both; that the traitors should, throughout this period, uniformly and
systematically pursue some fixed plan for the extension of the military
establishment; that the governments and the people of the States should
silently and patiently behold the gathering storm, and continue to
supply the materials, until it should be prepared to burst on their own
heads, must appear to every one more like the incoherent dreams of a
delirious jealousy, or the misjudged exaggerations of a counterfeit
zeal, than like the sober apprehensions of genuine patriotism.
Extravagant as the supposition is, let it however be made. Let a regular
army, fully equal to the resources of the country, be formed; and let it
be entirely at the devotion of the federal government; still it would
not be going too far to say, that the State governments, with the people
on their side, would be able to repel the danger. The highest number to
which, according to the best computation, a standing army can be carried
in any country, does not exceed one hundredth part of the whole number
of souls; or one twenty-fifth part of the number able to bear arms. This
proportion would not yield, in the United States, an army of more than
twenty-five or thirty thousand men. To these would be opposed a militia
amounting to near half a million of citizens with arms in their hands,
officered by men chosen from among themselves, fighting for their common
liberties, and united and conducted by governments possessing their
affections and confidence. It may well be doubted, whether a militia
thus circumstanced could ever be conquered by such a proportion of
regular troops. Those who are best acquainted with the last successful
resistance of this country against the British arms, will be most
inclined to deny the possibility of it. Besides the advantage of being
armed, which the Americans possess over the people of almost every other
nation, the existence of subordinate governments, to which the people
are attached, and by which the militia officers are appointed, forms a
barrier against the enterprises of ambition, more insurmountable than
any which a simple government of any form can admit of. Notwithstanding
the military establishments in the several kingdoms of Europe, which are
carried as far as the public resources will bear, the governments are
afraid to trust the people with arms. And it is not certain, that with
this aid alone they would not be able to shake off their yokes. But were
the people to possess the additional advantages of local governments
chosen by themselves, who could collect the national will and direct the
national force, and of officers appointed out of the militia, by these
governments, and attached both to them and to the militia, it may be
affirmed with the greatest assurance, that the throne of every tyranny
in Europe would be speedily overturned in spite of the legions which
surround it. Let us not insult the free and gallant citizens of America
with the suspicion, that they would be less able to defend the rights of
which they would be in actual possession, than the debased subjects of
arbitrary power would be to rescue theirs from the hands of their
oppressors. Let us rather no longer insult them with the supposition
that they can ever reduce themselves to the necessity of making the
experiment, by a blind and tame submission to the long train of
insidious measures which must precede and produce it.

-James Madison, Federalist 46

[Graystar]

Miller didn't show up because he had already WON TWICE in lower courts.
Miller didn't show up because he was dead.

http://www.rkba.org/research/miller/Miller.html

how do you foresee Miller losing?

Many people read the Miller opinion and come across this line:

"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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

They read this and think that this is the ruling. It is not.

The ruling is "Reversed" and "remanded". The statement above, and everything else in the opinion, is *why* the court reversed and remanded.

So you can't simply take one line from a court opinion. You have to consider the entire opinion. So what's in the rest of the opinion?

The court's opinion shows that the court reviewed various militia acts to see what type of weapons were called for. In all cases they found that long guns were called for....not short guns. *This* is the reason why there is no judicial notice of such a weapon being part of ordinary military equipment.

But what about evidence? There are people that suggest that, had Miller introduced evidence of the "Trench Gun" used in WWI, that he would have prevailed. Unfortunately, this is fantasy that ignores two very important facts. First, the Trench Gun was not ordinary military equipment. It was specialized military equipment. Second, and most important, the Trench Gun had a barrel length of 20 inches. The restriction in question was about shotguns with a barrel length of less than 18".

So you see, there's no way that Miller could have prevailed, as the evidence he needed simply didn't exist.

[Jim March]

Right, but what's also important is that Miller relied on an older definition of "militia weapons", from an 1840 TN Supreme Court case, Aymette. Aymette's definition was "any weapon commonly used in civilized warfare".

So per Miller by way of Aymette, there's no way the M16 could possibly be banned.

[Graystar]

So per Miller by way of Aymette, there's no way the M16 could possibly be banned.
No. You can't take pieces of the Miller opinion. You have to take the opinion as a whole. The first paragraph summarizes the court's conclusion. The next three paragraphs comprise the court's understanding of the Second Amendment.

"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." 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.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia--civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

The rest of the opinion describes the court's attempts to ascertain the type of weapons that the militia was expected to bear.

To paraphrase the court's understanding...
1. The 2nd is to be interpreted and applied to the preservation of
the militia.

2. Each State is responsible for maintaining its own militia.

3. Each man is expected to supply his own weapon for service.

It is number 2 that is the issue of most concern. Maintainance of the militia was left to the States. If a state decides to ban M16s, the government doesn't really care, just as long as that state can provide an effective militia when called upon. This is what allows states to put all sorts of bans on weapons. With the creation of the National Guard, each state's ability to supply an effective militia was assured, leaving the states open to place whatever bans they want on weapons. As we've seen, this is exactly what has happened.

[El Tejon]

Graystar, Miller focused upon the weapon, not state power. A short barreled shotgun does contribute to the common defence. Just as the First Amendment, the Second Amendment includes weapons that go beyond militree service.

The notion that the National Guard is a state militia is long dead. The National Guard is part of the federal army as the Supreme Court pointed out in Peprich.

[publius]

So a modern translation of the 2nd would read:

"The National Guard shall exist."

[Graystar]

Graystar, Miller focused upon the weapon, not state power. A short barreled shotgun does contribute to the common defence.

Doesn't matter whether it *can*...it only mattered whether it *did*. And the answer to that question is a clear "No". There was no law, nor any evidence in existance, that supported such a notion. As I said, the so-called "Trench Gun" had a barrel length of 20 inches. The military has used shorter barreled shotguns, but there was no evidence of that occuring before 1939.

Just as the First Amendment, the Second Amendment includes weapons that go beyond militree service.

With all due respect, sir, I dare say that is a fabrication. There is no evidence whatsoever of such a notion.

[Graystar]

So a modern translation of the 2nd would read:

"The National Guard shall exist."
Well, I guess if you combine the current situation, with the intent of the Second Amendment, I'd say sure, you can say that.

However, this does not mean that you don't have a right to carry firearms for your personal protection. This only means that the efforts expended in protecting this right have been going about it the wrong way (which explains why I had to wait 9 months for a license just to merely possess my guns!)

There is ample evidence that the Founding Fathers believed in a right to possess firearms for personal protection. There is ample evidence that shows that a firearm is the best form of self-defense. There is ample evidence showing that restricting firearm ownership leads to an inability to properly defend oneself and greater injuries. Finally, there is clear judicial notice that firearm possession and use during eminent danger usurps laws banning such possession and use.

With all this evidence, a claim to firearm possession as right, under the Ninth Amendment should be a no brainer. But for some reason people insist on using the Second Amendment. It's ridiculous!

[publius]

What weapon is appropriate for militia use?

Well, let's assume an invading army (OK, so I was trained in economics. If I fall out of a plane, I assume a parachute.) I want to cause trouble for them. Available weapons include: Glock 27, S&W M66 .357, Remington 870 Marine Magnum (w/18" barrel), ancient single shot, bolt action .22, and a new Rossi Matched Pair, shoots .17 HMR w/ one barrel, .410 shotgun w/the other.

I've listed those with my first choice last. That's right. I can blow a major hole in your head from 100 yards with that little .17 HMR, every time. I can do the same with the .22 from about 50 yards. Any of the other weapons, and I have to be closer. Could I cause some trouble with the Glock, or with the Beeman airguns that I forgot to list? You'd better believe it. I'd be part of the militia if I were reduced to using my wrist rocket slingshot and my tater gun! :D

There's no such thing as a non-militia weapon.

[Graystar]

Personally, I think the tater gun would be best weapon of the lot!

You're right. A person can go into battle bearing a kitchen sink. Obviously, a sink won't be as affective as bolt action .22, which won't be as affective as an M16. Clearly, there is some suitability to the task to consider.

Suitability to task was not a consideration for the Judiciary to undertake, however. It is a consideration for lawmakers. As such, the Court reviewed various Militia Acts to discover the types of weapon that lawmakers were expecting militiamen to bear. That is why the excerpts from those acts are in the Court's opinion.

"The musketeer should carry a 'good fixed musket,' not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length,.."

"provide himself, at his own Expense, with a good Musket or Firelock..."

" and accoutred, as follows: . . . every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel,..."

These excerpts appear in the Miller decision to support the Court's finding that a firearm with a barrel of 18" or less was *not* the type of weapon that a militia man was expected to bear. *That* is why there is no judicial notice that "this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." It is the reason why Miller would have lost, even if he did make an appearance. There was simply no evidence for him to present that would have countered the Court's process.

[publius]

The tater gun (in these parts, an orange cannon) is certainly the most amusing, but even with a rifled barrel (available from spudtech.com), it is hopelessly inaccurate outside of about 40 feet. It's also, IMO, extremely unlikely to actually kill someone, and might not even incapacitate them, in the unlikely event that you actually managed to hit someone. Then there's the whole reloading ordeal, takes about 100 times longer than putting a new round in the 17 HMR. Anyone w with working legs could cover those 40 feet long before I was ready to fire again.

[Graystar]

The tater gun (in these parts, an orange cannon) is certainly the most amusing,

The enemy will die laughing :D

[Quartus]

Reading such nonsense from a supposed supporter of gun rights, I might do the same, if it were not so sad. :(


Words mean nothing to such a person. All the writings of the FF are as naught next to the insightful legal mind of Graystar!



Something about cobblers and lasts comes to mind.

[Graystar]

Reading such nonsense from a supposed supporter of gun rights, I might do the same, if it were not so sad.

Words mean nothing to such a person. All the writings of the FF are as naught next to the insightful legal mind of Graystar!

Something about cobblers and lasts comes to mind.
Hey, don't blame me if the FFs words don't mean what you want them to mean.

[Quartus]

They used plain English. They didn't have any trouble with the meaning of "is". And later court opinions don't alter their intent.



Enough of this singing lesson.

[Graystar]

They used plain English.

So when they said that "...all men are created equal..." they meant slaves as well right?

Oh wait. They were slave owners, weren't they?

They were also lawyers. The law has a language of it's own. It is *not* plain English.

[Quartus]

http://wsupress.wayne.edu/literature/humor/pig.gif

[Graystar]

http://www.mkgandhi-sarvodaya.org/A%20Pinch%20of%20Salt/Three%20monkeys.jpg

[English John]

gotta agree (mostly) with Graystar on this one, even though we were butting heads two pages ago. Words are VERY important, but their accepted meaning may not be what we wish they were. Could Miller have showed that a sawed-off shotgun was an acceptable military weapon with a difference of 2" in the barrel? We'll never know, and we won't prove it now. I agree that the FF meant the States to call up their respective militias as needed, and the "people" were expected to show up with military type weapons in common use at the time (hence my reference to our owning M16s). Clinton told us "the 2nd Amendment ain't about duck hunting", but Jefferson told us the people (through the militia) could defend themselves from an enemy, foreign or domestic.
Now a question for Graystar: The 1st, 4th, and other amendments have been "nationalized" or "federalized" in that the states cannot infringe upon our rights as we are citizens of NY AND the US. I'm thinking of the 9th and the 14th amendments (and court cases) here. As I understand the 2nd was not, but it is "accepted" that we enjoy all of the protections of the BOR. Looking at all of the excellent reasons you stated above supporting individual ownership of weapons, how far can the states go in restricting possession of weapons? Illinois and Washington DC restrict handguns, but they are accepted military weapons. Now what?

[Graystar]

how far can the states go in restricting possession of weapons?

The answer is, as far as they want...until someone shows them they are wrong. Someone showed Vermont that the state was wrong, and now you can even carry concealed without any kind of license. New Yorkers, however, have failed to show NYS the error of its ways. So now I got a license in my pocket and I can't even carry.

As we have recently been discovering, the jails are full of innocent people (even on death row.) The states have the power to violate our rights, and they wield that power often. But the state is not an evil entity. It does try to correct its mistakes when such mistakes are brought to its attention. However, the mistake must be brought to its attention in the right way. As we have seen, and for the reasons I've given, using the Second Amendment is the wrong way.

It is worth reading the Supreme Court's Cruikshank decision. In this decision the court clearly laid out the relationship between the Federal Government and the States when it comes to rights. The Court essentially said that the protection of individual rights is the domain of the State, and has always been such. It is when a state violates an individual's rights that the Federal Government is supposed to step in and protect the individual. And the Federal Government had done this even before the 14th Amendment. Certainly, no one will deny that freedom of speech and religion were protected long before the passing of the 14th Amendment.

It is generally accepted that none of the Bill of Rights applies to the States. That is because the Bill of Rights is not law, but merely restrictions. It merely states what already is. That is the legally defined purpose of a bill of rights. This does not mean, however, that the states can violate our rights. As stated in Cruikshank, the states are already under obligation to protect our rights. And even without the 14th Amendment, the Federal Government is obligated to defend the rights of individuals when those rights are violated by state governments.

Such is the difficult nature of rights and written law. We have freedom of expression, not because of an amendment, but because we simply possess freedom of expression! This right should be protected both at the State and Federal level even without any official acknowledgment of its existance. The same holds true for our right to possess firearms for personal protection. But as we've seen, states make mistakes, usually for the "public interest", and end up making restrictions that shouldn't exist. If the people of a state aren't concerned with the mistake, then the mistake stays on the books. This is the case in New York. Maybe one day the mistakes can be corrected.

[publius]

We have freedom of expression, not because of an amendment, but because we simply possess freedom of expression! This right should be protected both at the State and Federal level even without any official acknowledgment of its existance. The same holds true for our right to possess firearms for personal protection.

OK, so we have a right to possess only militia-appropriate weapons, whatever those are, and that right is protected from federal encroachment by the 2nd. But despite the 14th, states can violate the 2nd, since there is no prohibition on violating the right of the people to keep and bear arms outside the context of an organized militia. So really, as long as the National Guard exists, the 2nd means nothing at all.

OTOH, we simply possess the RKBA for personal protection, so that right should be protected at all levels. Have I got that right?

And just asserting that right is going to be more effective politically than pointing to the actual words, the right of the people to keep and bear arms, shall not be infringed, when debating with gun grabbers? That's where the battle will be won and lost, of course, not with judges, who already disagree about whether the 2nd protects an individual right.

[Graystar]

OK, so we have a right to possess only militia-appropriate weapons, whatever those are, and that right is protected from federal encroachment by the 2nd. But despite the 14th, states can violate the 2nd, since there is no prohibition on violating the right of the people to keep and bear arms outside the context of an organized militia.
I think you've got the general idea. States don't violate the 2nd 'cause that's a restriction on the Federal government. States are simply violating a basic, and as yet unwritten, right to bear arms.

So really, as long as the National Guard exists, the 2nd means nothing at all.
What do you mean "means nothing at all"? We've got a National Guard, don't we? Those feds can't mess with us now! :D

OTOH, we simply possess the RKBA for personal protection, so that right should be protected at all levels. Have I got that right?
Yes, exactly.

And just asserting that right is going to be more effective politically than pointing to the actual words, the right of the people to keep and bear arms, shall not be infringed, when debating with gun grabbers? That's where the battle will be won and lost, of course, not with judges, who already disagree about whether the 2nd protects an individual right.:D

Gun grabbers...a sorry lot, to say the least. Who cares what they think? Anyways....yes, I believe that just asserting our right will be more effective than trying to tie this right it to the Second Amendment. And this argument *should* be taken to the judges. By leaving the Second behind, we have a fresh opportunity to lay a solid argument for a right that is not bound to the militia.

[FPrice]

"OK, so we have a right to possess only militia-appropriate weapons, whatever those are,"

A long time ago I heard these defined as the weapons which the individual could reasonably be expected to physically possess and bring to the fight to use as an individual, i.e., no "crew-served" weapons. Tho in the 1700's the latter was pretty much just cannon. (Bert Gummer in Tremors would be bummed at this distinction)

[Don Gwinn]

No offense, Graystar, but I think you may be a bit confused. Are you under the impression that the National Guard is not armed, equipped and based by the federal government?

As for your argument that the people=the state, that's all fine and dandy, and all, but do not the people also = the people? People make up my town, too. Therefore the people=the town. If someone says "the people have the right to own cars," however, that would clearly mean that individual people in town, not the government of the town, have the right to own cars. Try to argue that only the city trucks are protected and you'll be laughed out of town.

The ONLY difference is that when the subject is guns, some people get emotional for no rational reason they can describe because, after all, guns are weapons. You can't tell me the Founding Lawyers had that problem.

[English John]

OK, so now I think we all agree that we can own and bear militia-appropriate-weapons (love that term) and that right cannot be infringed by the Fed. Gov't. and should be protected by the State Gov't., (after all, it is the State whom would call out the militia) and this is all because of the 2nd, 9th, and 14th Ammendments. The right of protection for self defense must be one of those "inalienable rights" that all people of the world should possess (but, alas, not all do). I know we can all find references from Fed., State, and Local Govt's to the effect that people should own guns for hunting, sport, and self defense, but this seems to me as one of the un-enemerated rights that Madison was afraid would be ignored if not written down for posterity. Short of getting arrested for possession of an unregistered loaded weapon in NYS so we can "take it all the way to the Supreme Court", how do we beat the drum and inform the "people"? And how do we get the NRA to support the 9th ammendment as they support the 2nd? (I quit the ALCU and told them they were hypocrits because they wouldn't support the 2nd ammendment with the same vigor as the 4th, so I don't think they will help.) John

[publius]

Well maybe we'll find out, huh?

http://www.sierratimes.com/03/03/17/aras031703.htm

[Graystar]

Short of getting arrested for possession of an unregistered loaded weapon in NYS so we can "take it all the way to the Supreme Court", how do we beat the drum and inform the "people"?

Well, I actually do have an idea for NY. I was thinking of suing the State for my handgun license fee.

In a 1943 Supreme Court decision, the court ruled that a state cannot charge a fee for the enjoyment of a right. The case was a freedom of religion case involving the Jehovah's Witnesses and their desire to go door to door, giving out their booklets. Some town in Pennsylvania tried to collect a "traveling salesman" fee from the Jehovah's Witnesses.

Using this ruling, I'd like to go to a NY court and claim that NY has charged me for the enjoyment of a right and that they need to return my license fee.

I really like this approach. First, it doesn't involve anything criminal. Second, it speaks directly to the nature of the right, and not some round-about happen-stance as in Miller.

I just need to gather up some money and to find a lawyer willing to do it.

[English John]

It looks like we have two good suits looking at two different ideas. Publius' post is about a pure 2nd Am. issue, we could possibly end up with individual justification to keep and bear militia-appropriate-weapons. It would be a great step, but what about guns that aren't militia weapons (without having to justify each gun like snubbies, riot guns, and black guns- what about an over-under shotgun)? Graystar's suit looks like a 9th and 14th Am issue- talk about an individual right! Now how do we proceed? John

[publius]

I don't know how you proceed. I proceeded by giving some e-gold (http://www.e-gold.com/e-gold.asp?cid=102911) to those guys to pursue the Silviera v Lockyer case.

[English John]

a personal check would be OK too. Thanks for the info.

[Hobbyist]

I think you've got the general idea. States don't violate the 2nd 'cause that's a restriction on the Federal government. States are simply violating a basic, and as yet unwritten, right to bear arms.
The early Supreme Court decisions that gutted the "privileges or immunities" clause of the 14th amendment are being reconsidered.

The question of whether "incorporation doctrine" applies the 2nd against the states has not been addressed by the Court.

One of the major goals of the 14th was to protect an individual right to keep and bear arms for private self-defense (see The Bill of Rights: Creation and Reconstruction (http://www.amazon.com/exec/obidos/search-handle-url/index=books&field-titleid=835706&ve-field=none/qid=/104-7406775-9971944)).

The question of whether states with strict gun control are violating the 2nd has, therefore, not been resolved by the Supreme Court, and we can always hope that they will do the right thing if/when they ever do consider that question.

[Hobbyist]

I don't know how you proceed. I proceeded by giving some e-gold to those guys to pursue the Silviera v Lockyer case.
Check out NORDYKE v. KING (http://www.ninehundred.com/~equalccw/nordyke.pdf).

"Our panel is bound by Hickman, and we cannot reach the
merits of Nordyke’s challenge to Second Amendment. But the
holding of Hickman can be discarded by our court en banc or
can be rejected by the Supreme Court if it decides to visit the
issue of what substantive rights are safeguarded by the Second
Amendment.5
I write to express disagreement with the “collective rights
view” advanced in Hickman and Silveira because I conclude
that an “individual rights view” of the Second Amendment is
most consistent with the Second Amendment’s language,
structure, and purposes, as well as colonial experience and
pre-adoption history.6"