2A Court Challenge

[meche]

This isn't exactly related to setting up a individual RKBA...

If the 2A refers to the individual RKBA, then NFA's are obvious infringements...
If the 2A is a state right, isn't it still infringing on the state's RKBA?
Could it be argued that the NFA's infringe on the state's RBKA?

Something along the lines that if the state has a RKBA, then it is up to the state to govern the use/legalities/"distribution of arms" within the state?

Obviously, the state government counts, but would a citizen of that state be considered part of the state in this sense?
If the citizen of a state counts as part of the state for the state's RKBA, then the NFA's infringe on the RKBA of that state because they restrict what can and can't be done by the state.

Could this be used to remove federal firearms laws, except for the interstate commerce ones?

Or, could the NFA's be challenged without forcing the courts to rule the 2A as state/individual right?

 

[Graystar]

If the 2A refers to the individual RKBA, then NFA's are obvious infringements...

Yes but that doesn’t mean as much as you think it does. The government can infringe upon rights when it serves something called a “compelling state interest.†For example, people in jail have their rights violated for the entire time they are in jail (and even after they get out of jail,) but you wouldn’t suggest that we let every convict out of jail, would you? Locking these people up for their crimes serves a compelling state interest...justice to the victim, safety to the people, and rehabilitation to the criminal (whether any of these interest are actually served is another discussion entirely!)

Gun control laws are supposed to serve a compelling state interest by keeping guns out of the hands of criminals. The laws don’t actually work, but the concept sure does sound good to the voting soccer moms, so politicians keep pushing for more.

So when you go to court to fight something like the NFA, you have to be ready to prove that the law violates your rights, and that it doesn’t serve a compelling state interest. And you have to be really well prepared because laws that are on the books carry with them a strong presumption of constitutionality. It’s like going to bat with 2 strikes already against you.

 

[effengee]

What we need to do is remember that the operative words of the 2A are
"the right of the people..."
That's us... NOT the "militia" nor the National Guard. That part of the second amendment provides the people to form State approved armed bands to provide military assistance in times of emergency.
If we are to read the second, in 1778 or 2078 it still means the same thing:
"In order to provide for a civillian defense force to assist the standing military with an ability to draw upon common citizens in a time of dire need,
and to also address the issue of persanl defense weapons, the framers agreed to the second amendment as stated.
So read the rest of the constitution and see what else pertains to the individual rights of "the people"
Then VOTE VOTE VOTE
That's the most powerful way to enforce what "we, the people" want from our government.
The fact remains:
We are responsible for the laws that pass because the majority of any given voting district approves them indirectly through the representatives.
We can all argue till hades freezes over but until you call your local congressman and begin annoying the freakin heck out of him/her with how important the individual right to keep and bear arms is, then all of this bickering is really a moot point.
I would love to own an automatic firearm, I hate the laws so I try to change the laws one letter to the rep's. at a time...
Use the power of the written word.

"Knowledge is power, and knowing is half the battle."

 

[mrapathy2000]

http://www4.law.cornell.edu/uscode/10/311.html
USC title 10>subtitle A> Part 1>chapter 13>sec 311

Sec. 311. - Militia: composition and classes

(a)
The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(The classes of the militia are -
(1)
the organized militia, which consists of the National Guard and the Naval Militia; and
(2)
the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia

 

[sturmruger]

I hope this goes well. Post here when you need funds. I would be willing to send you some money.

 

[BB62]

Somewhat on/somewhat off topic - a long time ago I read a paper about the meaning of "well-regulated" in its time.

The paper cited contemporaneous sources where it was evident that the meaning was not "the subject of numerous rules and restrictions" but rather "properly operating".

Has anyone ever seen such a thing, or have anything to add?

Hats off to Graystar's various interpretations, esp the one stating that the "people" as a whole cannot possess a right without the individual also having that right.

BB62

 

[bamawrx]

FYI:
I have another meeting this week with the lawyer, so I'll be offering an update soon. I appreciate the interest and willingness to help by the many THR members.

 

[Dionysusigma]

btt/subscribe. I just heard about all this and I wanna know what's going on here.

 

[fletcher]

btt/subscribe.

Ditto




How did the meeting with the lawyer go? I'm sure I'm not the only one dying to hear

 

[Graystar]

Somewhat on/somewhat off topic - a long time ago I read a paper about the meaning of "well-regulated" in its time.

The paper cited contemporaneous sources where it was evident that the meaning was not "the subject of numerous rules and restrictions" but rather "properly operating".

Has anyone ever seen such a thing, or have anything to add?

1. I've never heard that,
2. It makes sense, and
3. It doesn't make any difference. The way government makes something operate (properly or not) is by legislating.

Guys here love to post various definition of "militia." But there is one part of the definition of militia that is never posted. A militia, by definition, is a force under government direction. It is not now, nor has it ever been considered a stand-alone force operating under its own authority.

The Bill of Rights was written because the states feared a powerful federal government. The states wanted the viability of their militia insured. To that end, the Second Amendment was written. The Second was never meant to support the concept of independent groups of men, roaming the countryside, “patrolling†on their own volition.

The militia is under state control, and the state passes laws to control it. That's the way it's always been.

Hats off to Graystar's various interpretations,

Thanks! I'm glad someone appreciates them

 

[Vibe]

The Second was never meant to support the concept of independent groups of men, roaming the countryside, “patrolling†on their own volition.

The militia is under state control, and the state passes laws to control it. That's the way it's always been.

This is true to a point. The purpose of the Second was that there always be a pool of men (the general population) trained in the use of arms, from which to draw from, in the formation of an organized Militia. The Unorganized Militia was NEVER under State or Federal control and WAS free to defend themselves and their community - but true - it was not to provide for the formation of roving mobs.

 

[Graystar]

The Unorganized Militia was NEVER under State or Federal control

I do not believe that is correct. For example, in 1774 after British troops seized ammunition belonging to Massachusetts, the colony created the Committee of Safety, which was to decide when the militia was to be called forth. So even in the Revolutionary War the militia was under state control (although the state was a colony at the time.)

BTW it was the seizing of arms and ammunition by British troops that led to the Second Amendment.

 

[Ivy Mike]

here is an interesting take on the 2nd Ammendment.

http://home.att.net/~superspy/translat.htm

hope it helps a bit.

 

[Graystar]

here is an interesting take on the 2nd Ammendment.

First he tries to explain how "well regulated" doesn't mean "legislated," then he uses the Militia Act in support of his claim

Same ol' reductio ad adsurdum that is usually preached and accepted as gospel because it's what the choir wants to hear. But it’s historically wrong and legally wrong. As long as the community continues to follow this nonsense we will continue to lose in court.

 

[Vibe]

For example, in 1774 after British troops seized ammunition belonging to Massachusetts, the colony created the Committee of Safety, which was to decide when the militia was to be called forth. So even in the Revolutionary War the militia was under state control (although the state was a colony at the time.)

All this is true for the ORGANIZED (or called forth) Militia. However in the debates of the time the concept of "the ENTIRE population" being armed refered to the UNORGANIZED militia or all males between the ages of 17 and 45 (I think it was, but this has varied). In fact this was to be one of the safeguards against a tyranical ruler in control of the/a standing army as it would be foolhardy for such to direct the forces of a standing army (which was to never exceed 1/10 of the armed populace) against a population trained in the use of arms. As I rememebr reading it this was for protection against government abuse at ALL levels. So even the State could not be expected to "call forth" the Militia with the purpose of defeating the freedoms of the remaining population. The POWER was to remain with the PEOPLE not the government...at ANY level.

 

[Graystar]

All this is true for the ORGANIZED (or called forth) Militia.

You're applying modern concepts to history. In 1774/75 there was no distinction between organized and unorganized militia. The various militia acts that were passed in that time require *all* eligible men to sign up and to serve. All were organized, outfitted, and commanded as put forth in law.

 

[BB62]

Graystar said:
"...A militia, by definition, is a force under government direction. It is not now, nor has it ever been considered a stand-alone force operating under its own authority."

Am I to understand that as you read the 2nd Amendment, the right to keep and bear arms exists solely for the sustenance of the "militia" (operating under govt control)?

If so, then are you saying that there is no individual right to keep and bear arms seperate from the need to keep the militia (by whatever definition) ready? What is the militia in today's world? AND, if you are not saying what I stated previously in this paragraph, what in your mind (if anything) guarantees the *individual* right to keep and bear arms?


BB62

 

[Graystar]

if you are not saying what I stated previously in this paragraph, what in your mind (if anything) guarantees the *individual* right to keep and bear arms?

I wrote up my view of the individual right earlier in the thread. Go to page 3, third response on the page. That should explain my position, but if it doesn't clear things up just let me know and I'll do my best to clarify.

 

[Vibe]

You're applying modern concepts to history

I do not believe that to be true. And on this point we must agree to disagree. However even should I conceed your point it would indicate that there is (in this day and time) indeed NO MILITIA at all - the relative States having discontinued the practice. Which according to US v Cruikshank (sp) would STILL not impact the Rights under discussion. Only the relative legality (under the Constitution) of the regulations of CERTAIN weapons under the "of use to the Militia" criteria.
But there being no distinction between the various Militias - then ANY weapon from stick to chain gun would be of a type "of use to the Militia" thus making most all firearm regulations bogus even at face value.

 

[Bubbles]

bamawrx - two things.

First, IIRC the "1934 Group" is has been working on this, though I don't know the status of their suit. It may already have been filed and dismissed. You may want to combine your efforts. http://www-2.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/cleo_lawsuit/announcement.txt

Second, I'd wait a bit to see how the Stewart case ends up before filing your case. After Stewart was acquitted of the machine gun charge, the prosecutor filed an appeal "en banc" to the full Ninth Circuit. That request was denied on June 10th of this year. So, the gov't now has 90 days from that date to decide whether or not to file a writ of certiori to the Supreme Court for this case. That deadline is September 8th.

Of course, if the prosecutor does file an appeal there's no guarantee that the USSC will hear it, but at this point I'd wait to see how this plays out.

 

[55645]

Somewhat on/somewhat off topic - a long time ago I read a paper about the meaning of "well-regulated" in its time.

In the 18th century,and much of the 19th cntury, the phrase "well regulated" meant performing as designed, predictable. The Oxford English Dictionary refers to the expression "a well-regulated appetite" . The phrase "well-regulated militia" in the Second Amendment, means refers to a citizenry competent with arms.

 

[bamawrx]

update

Here is the basic legal issue (problem) being discussed. What harm comes to the person that is prohibited from say manufacturing a selective fire rifle? Why not substitute with a non-selective fire rifle? If the case does not show significant harm, damage, or controversy then the court is not likely to address the issue.

 

[Ieyasu]

Graystar wrote:

That is because the Bill of Rights is neither privilege nor immunity. In fact, neither is it law. As your law dictionary will tell you, a bill of rights is simply an enumeration of rights; an FYI to an authority reminding it of that over which it has no power.

True, a generic 'bill of rights' is not law. However the first ten amendments to the Constitution, which are termed the Bill of Rights, is law. In fact since those amendments are part of the Constitution, the Bill of Rights is also the supreme law of the land, they are not guidlines or simply an 'enumeration of rights.' For example, Amendment I says, "Congress shall make no law..." Amendment VII reads, "In suits at common law, where the value in controversy shall exceed twenty dollars..."

 

[Michigander]

Militia ~ National Guard?

This may be pertinent to parts of the discussion here:

In 1982 the Senate Judiciary Committee Sub-committee on the Constitution, Senate Document 2807 (in part):

That the National Guard is not the 'Militia' referred to in the Second Amendment is even clearer today. Congress had organized the National Guard under its power to 'raise and support armies' and not its power to 'Provide for organizing, arming and disciplining the militia.' The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. 311(a).

Title 32 U.S.C. in July 1918 completely altered the definition of the militia and its service, who controls it and what it is. The difference between the National Guard and Regular Army was swept away, and became a personnel pay folder classification only, thus nationalizing the entire National Guard into the Regular Standing Armies of the United States.

 

[Michigander]

I spoke to an SOT today that suggested the Form 1 will be the way to go. I have reviewed the form, and it seems to be the best fit. The form has a blank for the intended use of the firearm. Any ideas of what to put there? Defense of state purhaps?

If I were defending the ATFE and caught wind of this whole thread, could I argue that you never had an "intended use for the firearm" because it was apparent that you had no reasonable belief that you would be allowed to manufacture said firearm, hence no "real" intended use, and therefore you committed perjury when you signed your name on the form?

(just trying to cover all bases)