Conservative Cir. Judges Against RTKBA

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What exactly was my misrepresentation?

Let me count the ways...

Misrepresentation # 1 M-Jagger posting as Steve Strong:

Madison was in favor of a standing army.


]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

--James Madison; Tuesday, January 29, 1788.

http://www.baltimoresun2.com/talk/showpost.php?p=3849789&postcount=113

You seemingly acknowledge that this is a false representation, so no other explanation is necessary.

Misrepresentaion #2:

James Wilson believed in the existence of "the great natural right of self preservation" and he believed that right was recognized by the "right to bear arms" provision of the Pennsylvanian Constitution to be a collective right. However, he also believed the Pennsylvania provision established the right "to assemble people together in order to protect and defend." He said nothing about it establishing a right to bear arms as an individual to protect and defend.

http://www.thehighroad.org/showpost.php?p=5041982&postcount=82

This was demonstrated to be totally false when I posted a link to the actual text of Wilson's treatise here:

http://deila.dickinson.edu/cdm4/document.php?CISOROOT=/ownwords&CISOPTR=15463&CISOSHOW=15122

You tried the same old cut and paste, eliminating the context to assert that Wilson meant something he clearly did not.

Misrepresentation #3:

More evidence that the militia men were not expected to provide their own arms.


Section 1628 of the Militia Bill of 1792 provided that after a citizen was notified of his enrollment in the militia, the citizen was to be provided with a good musket or fire-lock. The section contains nothing about the citizen being obligated to provide his own good musket or fire-lock

http://www.thehighroad.org/showpost.php?p=5043442&postcount=97

This was demonstrable false since the link you provided was not to the 1792 law, but to state of the militia in the the 43rd Congress, 1st Session. The 43rd Congress served from 1873-1875. The actual language of the 1792 Militia Act was:

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 power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; 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.

Do you wish me to continue?
 
M_Jagger asks about my use of novel in the sentence "In District of Columbia v. Heller an alternative novel meaning for the Second Amendment was offered by representatives of government defending against a private citizen's claim to a right in Heller."

legaleagle_45 pointed out one use of "novel" to mean fiction. Much of the DC brief to the Supreme Court is certainly novel in that sense -- but a very bad novel at that. I suspect M_Jagger hasn't been able to read this brief, or he should know of the "novel" aspect of this brief in the sense identified by legaleagle_45.

But, I intended to use "novel" in the sense of new. Taking a sample of the text from the DC brief:
The Second Amendment does not support respondent’s claim of entitlement to firearms for self-defense.
A. The Language Of The Entire Amendment Is Naturally Read To Protect The Keeping And Bearing Of Arms Only In Service Of A Well-Regulated Militia.
1. Both clauses of the Second Amendment, read separately or together, establish the Amendment’s exclusively military purpose.
“A well regulated Militia, being necessary to the security of a free State, . . . ”
Unique in the Bill of Rights, the Second Amendment begins by stating the reason for its existence: to support a “well regulated Militia.” Militias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, § 8, cls.15-16)."

I would say it novel for anyone to actually submit a brief on any one of the bill of rights to argue that it isn't an individual right of the people (in addition there is the novelty of arguing there is no right "unless compelled to military service" -- shades of 1984).

The novelty appears quite dramatic to me.

The first aspect of novelty is if DC's vision were the correct one, by what right did the militia take up arms before the ratification of the Second Amendment and bill of rights on December 15, 1791 and after the beginning of government under the Constitution on March 4, 1789?

In particular, in 1791 the United States Militia and Army troops (around 1400 total) suffered a defeat in the Old Northwest Indian War on November 4, 1791 at the hands of Miami chief Little Turtle leading 1040 warriors.

The usual explanation of this defeat was poor training and leadership combined with poor performance of the militia which broke under the Indian attack. Now, it has become clear to me that the militia had no arms, being unable to lawfully carry them until the Second Amendment was ratified 6 weeks later.

The novelty of such an interpretation, effectively that the militiamen called to service under the Constitution couldn't carry arms until the Bill of Rights were ratified, must be evident to many.

But, novelty can be argued also on the grounds that no brief has yet been presented to the Supreme Court arguing the Second Amendment didn't protect an individual right to arms. The DC brief argued that point too.

Now, I'm happy to provide this little bit of history to M_Jagger in the hopes that he will take away from this encounter information to improve his game.
 
If the 2nd Amendment only afforded a right to collectively form well regulated militias, there would be no need to add the phrase "the right of the people to keep and bear arms shall not be infringed".

All the framers would have to say is "A well regulated Militia, being necessary to the security of a free State, the right of the well regulated Militias to keep and bear arms shall not be infringed".

The "right of the people" phrase so clearly indicates an individual right (i.e.,to guard against tyranny and lawlessness) that it has always baffled me how, seemingly honest people, can twist it to mean a collective right only.

Well, not really "baffled". Seems to me some people favor the collective over the individual. I call them Communists. (Btw, this collective right theory is only a recent philosophy.)

There was little, if anything, novel about Scalia's interpretation IMHO. Like other posters have stated, Heller was the first definitive 2nd Amendment case the Supreme Court has arguably ever decided.

Plus, as has also been stated, the BOR's address individual freedoms. To assume the 2nd Amendment strays from the major objective of the BOR's is novel IMHO. Absurdly novel IMHO.
 
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In his posting:
http://www.thehighroad.org/showpost.php?p=5039691&postcount=62
M_Jagger quotes Robert H. Churchill ("Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment," Robert H. Churchill, Law and History Review 25 (2007): 141) to imply the framers of the Second Amendment weren't "concerned with recognizing and individual right to keep arms".

It is typical of M_Jagger's selective misuse of quotations out of context that he didn't give Churchill's concluding comment in the same document:
Nevertheless, the evidence presented here is sufficient to support three historical conclusions: An interpretation of the Second Amendment as securing in part an individual right to keep arms was contemporaneous with the amendment's framing. That interpretation was recognized as authoritative early in the nineteenth century. Finally, the early American proponents of that interpretation transcended region, partisan affiliation, and any reasonable measure of plebeian consciousness. Lawyers, backwoodsmen, Federalists, and Democrats, they believed, like Mrs. Barrett's militiaman, that they had a right to keep arms.
 
Phil:

The collective right view of the Second Amendment isn't novel. It's been around since at least 1803.

Mick
 
I would say it novel for anyone to actually submit a brief on any one of the bill of rights to argue that it isn't an individual right of the people
I know Justice Thomas doesn't believe the establishment clause protects an individual right.
 
Phil
by what right did the militia take up arms before the ratification of the Second Amendment and bill of rights on December 15, 1791.
Which state militia are you talking about and when did it take up arms?

Phil
and after the beginning of government under the Constitution on March 4, 1789?
Which state militia are you talking about and when did it take up arms?

Phil
...the militiamen called to service under the Constitution couldn't carry arms until the Bill of Rights
Congress under the Constitution was granted power to arm the militia.
 
The collective right view of the Second Amendment isn't novel. It's been around since at least 1803.

Assuming arguendo that this statement is correct, it ,of course, means that your ultimate argument must fail. If indeed said view of the 2nd has only been around since 1803 and because the 2nd amend predates the existence of said argument by more than 10 years, it is not possible that the framers considered the 2nd as a collective right.

QED
 
The Preamble to the Bill of Rights says that the purpose of the BOR is to avert abuse of power by the State. The BOR is a package of restraints upon the State. It is asinine to an extreme degree to believe that the people who wished to restrain the State also at the same time wished to constrain The People as individuals.

"You can't have it both ways!" is a saying that's older than I am. Hell's bells, the very people who wrote the BOR wrote quite publicly elsewhere as to their intent, their views on firearms ownership. Hard to make me believe that folks as literate and rational as Jefferson, et al, would hold one view in the BOR and a contrary view elsewhere. Nor would they use "the people" as singular in one amendment and plural in another.

Only those seeking centralized power over the citizenry can dredge up the pipedream interepretation of the Second Amendment as to some sort of group ownership of firearms. Word twisting and sophistry...

Art
 
It's worth noting that the founders came from a legal tradition that required adult males to be armed. In fact, the first "gun control" statute on the continent was a Georgia statute in the 17th Century that required this, and prohibited any black from being armed.

And no, the colony did not provide the arms.

Anyone mentioned yet that the first shots of the Revolution were in defense of lawfully and privately owned weapons?
 
M_Jagger asserts:
The collective right view of the Second Amendment isn't novel. It's been around since at least 1803.

How about a reference to an original source of that assertion.

And, to prove you understood what I said, how about giving us a reference to a brief arguing that point to the US Supreme Court prior to Heller.

Otherwise, I'm not wasting my time with you until you provide more than assertions which appear to be nearly 100% wrong or invented by you.
 
I think a curveball has been thrown by the statement concluding the collective right philosophy has been around since 1803.

IIRC, some court decisions, etc., indicated the 2nd Amendment afforded an individual and collective right very early on.

However, the separate and distinct collective right only philosophy has only been around for about 90 years.

Here's a pretty good primer for looking at the history of the 2nd Amendment IMHO: http://www.answers.com/topic/amendment-ii-to-the-u-s-constitution (Not to mention Scalia's opinion in Heller!!)

The modern formulation of the debate over the Second Amendment as an individual/collective rights dichotomy entered Federal law and scholarship when it was employed in a widely-cited Harvard Law Review article in 1915 by the Chief Justice of the Maine Supreme Court, Lucilius A. Emery. He noted that "the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."

See the Harvard Law Review paper here: http://www.guncite.com/journals/har1915.html

As far as I can remember, the collective right theory began in the 20th century, (i.e., as the sole purpose of the 2nd Amendment). Prior to that, like I said, some courts held the 2nd Amendment provided for both an individual and collective right.

Miller, supra, was, as we all know, the major case relied upon by the collective rights theorists, and that case was decided around 1939 IIRC.
 
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RDak
If the 2nd Amendment only afforded a right to collectively form well regulated militias, there would be no need to add the phrase "the right of the people to keep and bear arms shall not be infringed".

All the framers would have to say is "A well regulated Militia, being necessary for the freedom of the State, the right of the well regulated Militias to keep and bear arms shall not be infringed".
I suspect Article XVII of the Massachusetts Bill of Rights was "in the eye" of the legislators as they made the second clause of the Second Amendment. They lifted the the phrase "right to keep and bear arms" from it, knowing that when the phrase was construed according to the well established rule of legal construction regarding "subject matter", it would be understood that the right to keep and bear, as it did in the Massachusetts Constitution, was for "common defense", not "individual defense."

It certainly seems that the great Saint George Tucker understood "the right of the people to keep and bear arms" to mean the right of "each state...to provide for organizing, arming, and disciplining it's... militia."
 
RDak
The "right of the people" phrase so clearly indicates an individual right (i.e.,to guard against tyranny and lawlessness) that it has always baffled me how, seemingly honest people, can twist it to mean a collective right only.
It only appears that way to you because you don't know much about the way legal instruments were interpreted in 1789. You need to learn about the rules of legal interpretation as they existed in 1789.
 
Article XVII of the Mass. Constitution:

The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

Yes, but it was an individual right to own a firearm for the common defense. Mass. didn't want standing armies. That's what the Article you cited is stating for Godsakes.

The people didn't mean the collective as you try to opine IMHO (i.e., only in connection with a well regulated Militia). The Mass. Constitution doesn't limit it to that extent.

The collective theory used by the anti-gun movement was a product of the 20th century. It's just that simple.

You're throwing curveballs again IMHO.
 
Seems to me some people favor the collective over the individual. I call them Communists. (Btw, this collective right theory is only a recent philosophy.)
The founding fathers were Communists. The Massachusetts Constitution proves it.
Art. XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.

There was little, if anything, novel about Scalia's interpretation IMHO.
That's not the issue. The issue is whether "the right of the states to arm their militias" interpretation is novel. It is not novel. Its been around since 1803.

Plus, as has also been stated, the BOR's address individual freedoms. To assume the 2nd Amendment strays from the major objective of the BOR's is novel IMHO. Absurdly novel IMHO.
Read the Preamble to the Bill of Rights if you want to know what moved Congress to recommend them.
 
Misrepresentation #4:

It certainly seems that the great Saint George Tucker understood "the right of the people to keep and bear arms" to mean the right of "each state...to provide for organizing, arming, and disciplining it's... militia."

Actual words of the great Saint George Tucker when addressing the 2nd amendment itself:

The right of the people to keep and bear arms shall not be infringed – this may be considered as the palladium of liberty. The right of self defense is the first law of nature. In most governments it has been the study of rulers to abridge this right with the narrowest limits. Where ever standing armies are kept up & the right of the people to bear arms is by any means or under any colour whatsoever prohibited, liberty, if not already annihilated is in danger of being so. – In England the people have been disarmed under the speciouspretext of preserving the game. By the alluring idea, the landed aristocracy have been brought to side with the Court in a measure evidently calculated to check the effect of any ferment which the measures of government may produce in the minds of the people. -- The Game laws are a consolation for the government, a rattle for the gentry, and a rack for the nation.

The quote upon which you rely is not directly addressing the 2nd Amend at all. It is addressing Article I, Sec 8, Par. 15-16. Now if you wish to discuss how an individual right to keep and bear simultaneously protects the militia and how it protects the individual right of self defense.... that is easy enough. Blackstone himself recognized the dual nature of the common law of the right to arms thusly:
the natural right of resistance and self-preservation
. 1 Blackstone, Commentaries 139.
 
RDak says:
some court decisions, etc., indicated the 2nd Amendment afforded an individual and collective right very early on.

References please -- which court decisions, what year? Also, please give us quotes from the opinions justifying this statement.

Your recommended article makes no mention of a collective decision at the Federal level prior to 1970's and no "collective decision" in State court prior to 1905.

Even Miller, from which "collective right" proponents draw inspiration didn't make a collective decision. So, the inspiration drawn by these collectivists is baseless.

As to a joint collective/individual right, so long as that encompasses the individual right to keep and carry arms, why should anyone concern himself about the "collective" aspect. Unfortunately, this joint collective/individual right is a fantasy designed to confuse thinking. In reality, the joint right is intended to mean that the right is exercised only collectively and contains no individual right at all. Obviously, individuals may jointly cooperate in society if needs be to defend society with arms even without a "collective right" to arms.

I'd point out that Judge Emery's article referenced also stated,
The constitutional guaranty of a right to bear arms does not include weapons not usual or suitable for use in organized civilized warfare, such as dirks, bowie knives, sling shot, brass knuckles, etc., and the carrying of such weapons may be prohibited. Only persons of military capacity to bear arms in military organizations are within the spirit of the guaranty. Women, young boys, the blind, tramps, persons non compos mentis, or dissolute in habits, may be prohibited from carrying weapons.

I think many people in the armed forces today might be a bit surprised at the Judge's view that Bowie knives are not suitable for use in organized civilized warfare. One style of bayonet used in in the War Between the States was a Bowie knife (see here) and a Bowie design was used in 1900 for the U.S. M1898 Bowie Knife Bayonet.

Bowie, himself, thought it a suitable weapon for self-defense that he started carrying it for that purpose after he had been shot at by a political enemy and he later used that knife to good effect for defending his life against another attack by that enemy.

More importantly is the Judge's view that women are included in the same category with those non compos mentis as may be prohibited from carrying weapons (because they aren't protected in that right). I can't wait for the collectivists to shop this judge's views widely to modern women.

In order to give substance to this early claim of only a "collective right" to arms was protected, collectivists are force to cherry pick the opinions of a Jjudge who was not able to rise above the attitudes of his times and who was willing to turn a blind eye to reality in constructing a legal theory.
 
Here's one Phil. (Maybe I'm reading too much into this but here goes):

http://www.guncite.com/court/state/4ar18.html

If these general powers of the government are restricted in regard to the right to keep and bear arms, the limitation, to whatever extent it may exist, will be better understood, and more clearly seen, when the object for which the right is supposed to have been retained, is stated. That object could not have been to protect or redress by individual force, such rights as are merely private and individual, as has been already, it is believed, sufficiently shown: consequently, the object must have been to provide an additional security for the public liberty and the free institutions of the state, as no other important object is perceived, which the reservation of such right could have been designed to effect. Besides which, the language used appears to indicate distinctly that this, and this alone, was the object for which the article under consideration was adopted. And it is equally apparent, that a well regulated militia was considered by the people as the best security a free state could have, or at least, the best within their power to provide. But it was also well understood that the militia, without arms, however well disposed, might be unable to resist, successfully, the effort of those who should conspire to overthrow the established institutions of the country, or subjugate their common liberties; (p.25)and therefore, to guard most effectually against such consequences, and enable the militia to discharge this most important trust, so reposed in them, and for this purpose only, it is conceived the right to keep and bear arms was retained, and the power which, without such reservation, would have been vested in the government, to prohibit, by law, their keeping and bearing arms for any purpose whatever was so far limited or withdrawn; which conclusion derives additional support from the well-known fact that the practice of maintaining a large standing army in times of peace had been denounced and repudiated by the people of the United States as an institution dangerous to civil liberty and a free State, which produced at once the necessity of providing some adequate means for the security and defense of the state, more congenial to civil liberty and republican government. And it is confidently believed that the people designed and expected to accomnplish this object by the adoption of the article under consideration, which would forever invest them with a legal right to keep and bear arms for that purpose; but it surely was not designed to operate as an immunity to those who should so keep or bear their arms as to injure or endanger the private rights of others, or in any manner prejudice the common interests of society.

The Court of Appeals of the State of Kentucky, in the case of Bliss v. The Commonwealth, 2 Littell, 90, and the argument of this case for the appellee, if I have not misapprehended their premises and reasoning, both assume that the right to keep and bear arms was adopted as well for the purpose of enabling individuals to defend and redress, by their own arms, injuries threatened or suffered in respect to their personal or private rights, as for the security of the State, and is not subject to any legal regulation, restriction or control whatever; and that, by virtue of it, every person in the community possesses a privilege or immunity, by virtue of which he may keep and bear arms of every description, at all times, in every place, and in any manner, according to his own free will or caprice.

It should be noted that the Buzzard case is sometimes used to support M. Jagger's claim that the collective rights theory came about prior to 1900. (i.e., State, not Federal).

I do agree that all we need is an individual right to end up with a "common defense" ability but States have argued this fact prior to 1900 if I'm reading Bliss and Buzzard, supra, correctly.
 
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Can Congress constitutionally employ volunteer militia, outside the United States, in the prosecution of hostilities, in the enemy's country?
 
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