MedWheeler
Member
DDDWho writes:
Very good points. I cannot think of a better way to put it.
Very good points. I cannot think of a better way to put it.
‘Take Weapons of War Off Our Street’
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AlexanderA
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That was the 1939 Miller case. It was essentially overruled by the 2008 Heller case, in which Justice Scalia completely decoupled the 2nd Amendment from militia service. This is an aspect of Heller which I believe will come back to bite us, when it is used to uphold an AWB.
The proper approach, IMO, would have been to make clear that everyone was a member of a notional "constitutional militia" and was, by virtue of that fact, entitled to own and keep ordinary weapons equivalent to those of the standing army.
LiveLife
Member
No, while the Supreme Court went BEYOND the militia to apply the Second Amendment protection to individuals, SCOTUS did not nullify the militia.
Which means state militias (or State Defense Force/National Guard under the governor) are still pertinent and fully applicable under the Second Amendment - https://www.wearethemighty.com/arti...t-under-the-control-of-the-commander-in-chief
And in Caetano v. Massachusetts, the Court emphasized that, under Heller, the protections of the Second Amendment extend to firearms that were not in existence at the time of the Framers, like AR15, AK47s, Mini14s and Mini30s, etc.
AlexanderA
Member
I beg to differ. Accuracy was not a paramount thing for line infantry in the 18th century. The muskets had no rear sights, and only crude front sights (the equivalent of shotgun beads). (On the Brown Bess, the bayonet lug doubled as the front sight.) Speed of loading was more important than accuracy. The target at 100 yards was not an individual enemy, but a whole line of opposing infantry. The idea was that you would fire three shots (if you were lucky) in the general direction of the enemy line, and then close with the bayonet.
The phrase "well regulated" in the 2nd Amendment meant that the militia was to be well organized, officered, disciplined, and drilled. But this was an aspiration that was never really fulfilled. Annual militia musters very quickly became excuses for drunken parties on the village green, and no one took the drill seriously. The original "universal" militia therefore fell into disuse, and was replaced by new "volunteer" militias. These were essentially military hobbyists, took their drill seriously, and were held in high esteem in their communities (especially in the South). They went on to form the nucleus of the early units in the Civil War.
Deanimator
Member
Feel free to use it.
AlexanderA
Member
Justice Scalia treated what he called the "prefatory clause" (the Militia Clause) as a nullity. The holding in Heller was that the RKBA applied to individuals, unconnected with service in any kind of militia, real or notional.
Of course Heller did not nullify the militia itself. It just made it irrelevant to the RKBA. I believe this was a terrible mistake. (Eventually it will mean that we will not have so-called "assault weapons.")
LiveLife
Member
HighRoadRover
Member
As you point out, in 1791 (when the Bill of Rights was ratified) our militias were local or state-run affairs -- they were not organized, officered, disciplined, or drilled under regulations from the federal government -- so the 2A couldn't have meant "well-regulated" to mean the militias would be controlled by lots of federal regulations. Nor is it logical that members of militias should have their right to keep and bear arms not be infringed because a highly controlled militia is necessary to a free state.
But most relevant, the term "regulated" was actually used in the vernacular of the 18th Century to mean controlled, or aimed, by the person shooting the weapon -- and the "well" in "well-regulated" meant well controlled, or accurate. Using "regulated" in this manner is archaic today, although you can still find it in some older books on weapons. Accuracy was not as relevant to the Brown Bess, as you note, but certainly applied to the Pennsylvania rifles that were used by our troops in the Revolutionary War.
AlexanderA
Member
The main body of the Constitution (Article I, section 8) includes this provision, as a power of Congress:
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;
So the militia was a mixed federal/state enterprise. The 2nd Amendment was meant to clarify that the "arming" of the militia under Article I, section 8, did not include the disarming of said militia. Since everybody was presumed to be part of the militia, that also meant that individuals were not to be disarmed in connection with their presumed militia service.
The Second Militia Act of 1792 fleshed out this system. In relevant part:
Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this act. And it shall at all times hereafter be the duty of every such captain or commanding officer of a company to enrol every such citizen, as aforesaid, and also those who shall, from time to time, arrive at the age of eighteen years, or being of the age of eighteen years and under the age of forty-five years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrolment, by a proper non-commissioned officer of the company, by whom such notice may be proved. That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned officers shall severally be armed with a sword or hanger and espontoon, and that from and after five years from the passing of this act, all muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound.
Riflemen were specialists. The vast bulk of the infantry was armed with smoothbore muskets. I still contend that "well-regulated" did not mean "accurate."
Tommygunn
Member
"Well regulated" was a modifier to the term to which it was attached. "A "well regulated" militia is one that is well trained, disciplined and equiped. It can apply to the proper use of weapons in war. In that day, volley fire was the norm. There were three rows of men. The first row fired together, then dropped to a knee to reload, as they accomplished that, the second row fired and dropped to reload, then the third, and after they fired, the first row, presumably now reloaded, fired .... and so on.
Accurate fire was not possible with smooth bore muskets .... but it wasn't entirely irrelevant; each man did have to "point" his musket at the enemy line in a manner best calculated to send his ball into the enemy. Firing elsewhere in such a manner as to cause, say, a plucked rubber chicken to fall upon the shooter, was generally discouraged.
The Colonists did use rifled muskets in some quantity, and usually these were more precisely aimed. Often enough, at British officers, who, for some inexplicable reason, felt it unfair to be so singled out for attention.
While rifles helped accuracy greatly, they also had disadvantages. They took longer to reload. The trained musketeers would fire three controlled shots per minute. While in New York City, Washington had a number of riflemen. One of a number of reasons it's said the British were able to evict him from the city was the fact their muskets allowed a higher volume of fire over the rebels, thus forcing their retreat.
Accurate fire was not possible with smooth bore muskets .... but it wasn't entirely irrelevant; each man did have to "point" his musket at the enemy line in a manner best calculated to send his ball into the enemy. Firing elsewhere in such a manner as to cause, say, a plucked rubber chicken to fall upon the shooter, was generally discouraged.
The Colonists did use rifled muskets in some quantity, and usually these were more precisely aimed. Often enough, at British officers, who, for some inexplicable reason, felt it unfair to be so singled out for attention.
While rifles helped accuracy greatly, they also had disadvantages. They took longer to reload. The trained musketeers would fire three controlled shots per minute. While in New York City, Washington had a number of riflemen. One of a number of reasons it's said the British were able to evict him from the city was the fact their muskets allowed a higher volume of fire over the rebels, thus forcing their retreat.
AlexanderA
Member
The mandate to provide oneself with a musket and accoutrements, at one's own expense, was a form of tax. Objections to this led to the development of the National Armory system, in which the federal government would manufacture (or contract for) arms, which would be distributed to the states for the arming of the militia. It was this, plus the need for uniformity, that caused the end of privately-supplied arms for the militia. Still, the principle of privately owned and supplied arms is valid to this day. That's necessary to support an expansive reading of the 2nd Amendment.
HighRoadRover
Member
Okay, I'm modifying my thinking a bit. Thanks for the greater detail.
lionking
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well now the latest "instruments of terror".
SilentStalker
Member
Let's not allow the antis to fool or trick us.
The term "weapons of war" essentially means ALL GUNS as every type of firearm has been used in "battlefield": Musket, revolver, bolt action, lever action, magazine fed semi-auto, etc.So whenever antis mention banning "weapons of war", they ultimately mean banning all guns, regardless of what they "claim" for the moment.
Think about it - End game for antis is to ban our liberty, starting with banning of all guns. Let's not forget that.
As to our judicial reality, since the legislative and executive branches have failed to uphold the US Constitution and the Bill of Rights "for the people" over the decades, it's the judicial branch, particularly the US Supreme Court, that has started to ENFORCE the Second Amendment "for the people". As justice Gorsuch clearly stated in this interview, it is the JOB of the SCOTUS to ENFORCE the Bill of Rights, "All of them" - https://www.thehighroad.org/index.p...with-question-on-the-second-amendment.856201/
With DC v Heller, the Supreme Court has already ruled "that the Second Amendment protects an individual's right to keep and bear arms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home" - https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller
And now we get to address the "Common Use" issue that includes auto loading firearms such as AR15, AK47, Mini14, etc. along with large capacity magazines originally and currently "commonly used".
Here's Cornell Law School explanation of 2A "bearing arms" post DC v Heller (As with US Constitution being "updated" with amendments to reflect modern times, so should our "arms" be updated to reflect modern/improved technologies as expressed in Caetano v Massachusetts) - https://www.law.cornell.edu/constitution-conan/amendment-2
"The Second Amendment ... civilians ... were expected to appear bearing arms supplied by themselves and of the kind in common use at the time... the Supreme Court definitively came down on the side of an “individual rights” theory. Relying on new scholarship regarding the origins of the Amendment, the Court in District of Columbia v. Heller confirmed what had been a growing consensus of legal scholars—that the rights of the Second Amendment adhered to individuals ... Finally, the Court reviewed contemporaneous state constitutions, post-enactment commentary, and subsequent case law to conclude that the purpose of the right to keep and bear arms extended beyond the context of militia service to include self-defense.
... Subsequently, in Caetano v. Massachusetts, the Court emphasized that, under Heller, the protections of the Second Amendment extend to firearms that were not in existence at the time of the Framers."
And to me, this means, for self defense against multiple armed intruders, the protections of 2A extend to firearms in common use like AR15s (which is the most popular long gun currently) using 30+ capacity magazines to reduce/eliminate the "lethal pause" that judge Benitez pointed out.
Here are two recent thread discussions why citizens need "modern" and "improved" technology arms:
As to nonsensical magazine capacity limit, with "common use" argument and CA failing to provide sufficient justification for "arbitrarily" picking a limiting number of 10 rounds (It could have been 7, 5, 3 or even 1, take your random pick.
It appears to be an arbitrary judgment ... The State does not ... say why California (or any jurisdiction, for that matter) place the limit at 10 ... The significance of 10 rounds, however, is not addressed
... Federal law has no limit on permissible magazine size. In U.S. Sentencing Guidelines for firearm offenses ... a 'large capacity magazine' is defined for purposes of sentencing as a magazine 'that could accept more than 15 rounds of ammunition.'
A reasoned explanation or a considered judgment would tend to demonstrate why the 'fit' of a total ban on magazines larger than 10- rounds is reasonable or how the ban is narrowly tailored ... Surly, Turner deference does not mean a federal court is relegated to rubber-stamping a broad-based arbitrary incursion on a constitutional right founded on speculative line-drawing and without any sign of tailoring for fit."
And judge Benitez calling magazines "arms" throws a big wrench in the states' push to limit magazine capacity for law abiding citizens when he wrote:
"... from the perspective of a victim trying to defend her home and family, the time required to re-load a pistol after the tenth shot might be called a 'lethal pause,' as it typically takes a victim much longer to re-load (if they can do it at all) than a perpetrator planning an attack.
In other words, the re-loading 'pause' the State seeks in hopes of stopping a mass shooter, also tends to create an even more dangerous time for every victim who must try to defend herself with a small-capacity magazine. The need to re-load and the lengthy pause that comes with banning all but small-capacity magazines is especially unforgiving for victims who are DISABLED, or who have ARTHRITIS, or who are trying to HOLD A PHONE IN THEIR OFF-HAND while attempting to call for police help.
The good that a re-loading pause might do in the extremely rare mass shooting incident is vastly outweighed by the harm visited on manifold law-abiding, citizen-victims who must also pause while under attack. This blanket ban without any tailoring to these types of needs goes to show ... lack of reasonable fit."
And I am dying to hear how CA state will respond when question is asked why the state government is not working to protect disabled, elderly citizens protect themselves from being victimized.
Government provides wheelchair ramps and large print publications etc. to help the disabled and elderly citizens. Limiting magazine capacity is not helping the disabled or elderly. Government should be helping the disabled and elderly citizens better protect themselves from victimization by providing even greater capacity magazines and higher rate of fire devices like binary triggers along with noise suppression devices.
"The district court in [Fyock v. Sunnyvale], found that 'magazines having a capacity to accept more than ten rounds are in common use, and are therefore not dangerous and unusual.' ... The district court found that the large capacity magazines qualify as 'arms' for purposes of the Second Amendment." and ruled with judgement concluding, "Magazines holding more than 10 rounds are 'arms.'"
So, since the US Constitution and the Bill of Rights were written by the founders to ENSURE the RIGHTS of the MINORITY, yes "we, the gun owners" are the minority in need of protection by the government; it's high time all branches of the government work to protect the physically disabled/weak, smaller stature, elderly citizens, female, etc. defend themselves instead of banning guns.
And IMO, all this talk of gun ban is actually bringing gun owners from all walks of life together to vote against the antis in 2020 to ensure the judicial future of our gun rights/2A for decades and generations.
This is an extremely well-written post backed up with case law. There should be a sticky or something to this for pro gun argument reference. We used to have such a sticky in one of the forums. It was titled pro gun resources or something. Anyways thanks for sharing!
I think we all agree with you but here we are with quite a few infringements on the books. The problem is the government has long been enacting laws that they were never granted the authority to do so to begin with and nobody is holding them accountable. I’m not sure how we move past this when it seems at times all of the checks and balances work together in concert to do what is essentially unconstitutional. This is where the common citizen is supposed to be the one that upholds the constitution, after all it is nothing but paper with words on it if nobody protects it.
I think the issue is that nobody knows what to do specifically and those that govern us don’t really know their limitations either so they create crap that they have no business doing yet nobody does anything to correct it so it just further emboldens them to keep on seizing more and more power. At some point it is left up to us to hold them accountable. At what point do we do that?
I’d say as oathkeepers many of us are failing. You don’t have to look far to see all of the corruption that is currently plaguing the US, on many levels, all the way down to the small podunk towns. How do you make a difference in a system so corrupt that an honest man cannot begin to clean up the trash?
P.S. I hope all of you are writing your lawmakers with such fervor as I have seen in this thread!
Insignificant bill
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I have written to all of mine. Federal and state as well as the President. I am tired of all the infringements that we have allowed to happen.
AlexanderA
Member
The actions of the common citizens boil down to elections. And elections are all about numbers. There are lots and lots of gun owners, but relatively few activist gun owners. They're in danger of being outnumbered by antigun activists. When that happens, it's game over, constitution or no constitution.
The only things that will save gun rights are (1) getting more people interested in guns, and (2) getting those that are interested in guns to speak up more often and more effectively. Tying gun rights exclusively to a dying demographic (the Republican party) is not an effective long-term strategy. Gun rights have to be pushed on a bipartisan or nonpartisan basis.
AlexanderA
Member
Writing to officeholders is not effective unless they are at least minimally receptive. For example, every single one of my own state and federal representatives is militantly antigun. It's simply useless to write to them. And it's even useless for me, personally, to try to vote against them, on a state level, because my local antigun representatives are running unopposed. We are bracing for disastrous results from the upcoming Nov. 5 Virginia legislative election. (It's being fought almost entirely on the gun control issue, and things don't look good.)
You should be astute enough to know the way an argument is framed is vital to getting the masses to support something.
The average Joe & Josephine have not the slightest worry that American citizens might need advanced weaponry to protect the constitution against a tyrannical government run amok. Ask the average goof ball on the street simple questions about any subject (except entertainment social media and technology), and they are clueless. So despite the oath people take to defend the constitution from enemies both foreign & domestic, their idea of what that means does not include the aforementioned.
As Swawell said, the military has nukes, as if to imply an armed citizenry would be helpless to defy an edict a tyrannical government would expect them to follow. Otherwise the implication of massive retribution. Whether he was joking, ignorant or serious, the leftists want to frame the debate about citizens could not withstand a full on assault by the military to try and squash patriots into the ground. The irony of course is that if true, why try to take away better weapons like the AR-15 and leave us with only pee shooters like Lady S&W 38's ?
SilentStalker
Member
You put a lot of a faith in a system that has a lot of recently shown abuse. How do you expect a rigged system to change? Not to mention you only have two parties, that imo are two sides of the same coin, with any chance of winning anything. What we need is a 3rd party or lots of common joe independents to win. The only problem is I’m not sure you can replace the bad fast thought to influence actual change. Anyways that’s getting too political. We have to keep this framed about guns. We need more gun owners to run for office, but again I said most people don’t know how. We need to educate people on how they can run and help them in some capacity. You are right in your assessment that we need to build more gun loving people. That involves teaching and getting out of your comfort zone to take others shooting. Many a people that were once against guns have turned after they were properly shown how to use one. People dislike what they know nothing about or are scared of. Get them used to it and the fear goes away!
AlexanderA
Member
I once had a coworker that was moderately into guns. (He had a few nice pieces in his collection.) Then he and his wife had a baby. The wife insisted that he get rid of all his guns, worried that the baby, growing up, would find a gun and have a terrible accident. So the coworker sold the guns to another coworker at bargain prices. I can't really say that I fault anyone in this situation. So sometimes these things unfold in a way opposite to what we would hope for and expect.
Seems strange he wouldn't just take the money he would potentially lose in the sale, keep the guns, and invest in a nice gun safe instead.
SilentStalker
Member
exactly, a safe or even a beefed up closet would have remedied this quick and then later on in life proper education on them. I find people that do such foolishness, they are bending to society. Back in the day my grandfather and father had access to all kinds of guns but you know what? They didn’t touch them because they knew the repercussions and knew they would get their ass beat! They were only allowed to touch them if an adult was around. They learned respect for them! Again, people fear what they have no knowledge about. Your co-worker has valid concerns but could have easily been remedied with a cheap lock box, safe, whatever.
Insignificant bill
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Well mine are and they are a line against Democrat insanity.
AlexanderA
Member
As I said, he wasn't that much into guns (I guess I would say he had a take-it-or-leave-it attitude). So, he followed the path of least resistance and did what his wife requested. My only point in bringing this up is to say that familiarity with guns doesn't necessarily convert a person into an avid pro-gunner. Recruiting people into the gun world is not as simple as taking them to the range. They might agree that shooting is fun, but they still might not want guns in their houses.
I see what your point is, however in a marriage everyone has a role. Someone must look out for the families safety, whether it be against fire, drowning, burglary, emergency supplies, etc.
Most gun owners do not need to be "into guns" to have at least one to provide for the families protection (i.e. in the even of a home invasion). Chances are very good that if his wife is at home alone with the kids and someone breaks in, she would wish she had a gun in the house to grab out of a safe.
It sounds like to me she bought into the liberal rhetoric about "a home being safer without a gun in it".
Aside from skewed stats when it comes to that Bloomberg talking point, you could say the same about almost anything in a home not properly stored/secured.
For example keeping the kids away from the pool or even a bucket with water in it.
Another example is the thousands of poisonings per year could be avoided by not having any chemicals in the house. Yet most people have them for various reasons, and must take care to insure their kids cannot get into them.
Thus you do not have to be "into chemicals" to still have a need for them in the home.
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