Apellee's brief in Parker v. District of Columbia

[Ieyasu]

Thoughts?

It's been covered. See Carebear's post:
http://www.thehighroad.org/showpost.php?p=2611678&postcount=43

(Mr. V and Glummer, I'll be responding to your posts later today.)

 

[hugh damright]

all FedGov gun control is and has been unconstitutional

IMO that is essentially correct. But that truth goes way beyond guns ... federal government control in general has been unconstitutional.

Brand-new Post-'86 MGs. No national AWB, ever. A harborful of new C&Rs; SKSs sold by the pallet at Sam's Club; no "imported parts counts" when doing your own build....

Well, I think it would depend on what State you lived in ... we have these federal laws because some States want them, so I reckon if it was up to each State then some States would still have all these restrictions ... but the point is that the US Constitution does not empower these States to take their vision of gun laws and force it upon my State ... the Constitution is specifically intended to protect each State's right to control their own internal affairs.

 

[RealGun]

the Constitution is specifically intended to protect each State's right to control their own internal affairs.

Within limits of what is good for the country as a whole. The Civil War was very clear about that, as was the Voting Rights Act, school integration, etc.

 

[ctdonath]

It's been covered. See Carebear's post:

Can't be. That reasoning is self-destroying, to wit: RKBA only protects militia arms within context of militia training, both of which the feds get to define ... so everything outside is not covered, and everything inside can be legislated into oblivion. Not quite what the Founding Fathers had in mind.

 

[ctdonath]

all FedGov gun control is and has been unconstitutional.

Yup. We all (save a few confused souls) know that, you've just come to it more rigorously*. Question is, how do we get the feds to comply? Knowing that the end result will be an ability to buy machineguns at the local hardware store anonymously for cash (as if that was a problem when we could), no court will voluntarily take the issue, and most courts find some squeamish out when they don't have a choice. Lacking a legal out, courts will simply invent reasons to toss a case (like "lack of standing to wit not a militia member" despite federal code unequestionably declaring most on this thread members of the federal militia involuntarily).

I've periodically raised the suggestion of having numerous individuals file an "I want my M4" suit simultaniously, carefully crafted to avoid all the flaws we've seen derail cases before, and use "equal protection" on the invariably conflicting verdicts to force SCOTUS to rule. Unfortunately, SCOTUS has (shall we say) been remarkably stupid and unconstitutional on fundamental issues lately.

 

[Ieyasu]

Quote:
It's been covered. See Carebear's post:

Can't be. That reasoning is self-destroying, to wit: RKBA only protects militia arms within context of militia training, both of which the feds get to define ... so everything outside is not covered, and everything inside can be legislated into oblivion. Not quite what the Founding Fathers had in mind.

The anti's would claim 2A protection -- If fed regulations were hampering state militias, states could arm their militias outside of unconstitutional militia regulations.

 

[Ieyasu]

Glummer,

1776 Pennsylvania: That the people have a right to bear arms for the defence of themselves and the state; ...

I'd hate to tell you this but the above declaration most likely refers to bearing arms within a militia even when joined with the modifier "themselves." Virtually all of the other declarations you posted use a construction similar to PA's, except for Mississippi's in 1817, which of course the anti's would exclaim, "anachronism!"

The following is taken from the Statutes at Large of Pennsylvania from 1682 to 1801 and quotes an act passed between 1755 and 1766:

Yet forasmuch as by the general toleration and equity of our laws great numbers of people of other religious denominations are come amongst us who are under no such restraint, some of whom have been disciplined in the art of war and conscientiously think it their duty to fight in defense of their country, their wives, their families and estates, and such have an equal right to liberty of conscience with others. And whereas a great number of petitions from several counties of this province have been presented to this house, setting forth that the petitioners are very willing to defend themselves and their country and desirious of being formed into regular bodies for that purpose.

This is a clear-cut case where defense of themselves means the defense of individual persons and their properties, yet the context is still of bearing arms within the militia.

I find the following logic an unpersuasive attempt at countering the solid evidence that bearing arms meant rendering military service in both instances where it appeared in the House version of the 2A.

"Bear arms", in the context of "The Right of the People to Keep and Bear Arms" is logically quite different from its usage in "scrupulous of bearing arms."

Why? Because you say so? The right of the people to "keep arms and render militia service" is totally congruent with scrupulous of bearing arms.

"Dropping "the right" or "the right of the People" CHANGES the meaning of "bear arms." Indeed, none of the quotes you cite can use "the right" in addition to "bear arms."

If you're claiming that the word "right" changes the meaning of bearing arms, I disagree, until you can provide convincing evidence.

 

[Cellar Dweller]

Well, I think it would depend on what State you lived in ... we have these federal laws because some States want them, so I reckon if it was up to each State then some States would still have all these restrictions ...

I'm working on an idea, so this is only part of my epiphany...I'll start a new thread on why none of this should matter later.

Neither Congress nor any State can post an ex post facto law (somehow doesn't apply to DV convictions/Lautenberg Amendment though ), fully spelled out in the Constitution. Therefore a window of opportunity for new Post-'86 MGs must open until an individual State changes its law...and even if (for example) the IL legislature cooked up a "Post-2007 ban/seizure/turn-in without grandfathering," it would only apply to IL citizens WITHIN the State. I could own a select-fire weapon, SBS, SBR, or silencer as long as it was kept out of IL; anyone from a State that allowed NFA stuff would be allowed to transport AND lawfully use it throughout IL (Full Faith and Credit Clause); no permission slips needed to cross state lines either.

 

[Gunfire]

Neither Congress nor any State can post an ex post facto law

Sorry, already proven, ex post facto doesn't really mean what it means.

 

[ctdonath]

, yet the context is still of bearing arms within the militia.

Which is the basic point: there is no difference, as defending self and defending state is just a matter of aggregation. If the self cannot be armed for defense, then the state (as a body of the people, not one group dominating another) cannot be armed precisely because the components cannot be armed.

 

[hugh damright]

If the self cannot be armed for defense, then the state (as a body of the people, not one group dominating another) cannot be armed precisely because the components cannot be armed.

I agree ... however, the militia aspect might be satisfied by keeping a gun in the home, rendered inoperable, kept locked up, and the ammo stored separately ... whereas the self-defense aspect seems to require something more, such as keeping a gun ready to fire, and not just keeping it in the home but carrying it about.

 

[Ieyasu]

, yet the context is still of bearing arms within the militia.

Which is the basic point: there is no difference

Depends. If one believes the 2A was meant to secure an uninfringible right to keep and carry (and use, including hunting) arms anywhere, there is a difference.

Of course the anti's (as in the brief) would argue as a result, handguns are not protected. But in my biased opinion that argument is faulty. They claim handguns aren't the usual equipment carried by troops, but even Miller referred to the common defense. Militia duty includes more than war. I think there is a good case for protecting sidearms as well, but alas, I'm dreaming...

 

[glummer]

... fight in defense of their country, their wives, their families and estates, ... desirious of being formed into regular bodies for that purpose.

This is a clear-cut case where defense of themselves means the defense of individual persons and their properties, yet the context is still of bearing arms within the militia.

This is a clear-cut case where the context is a right that is asserted BEFORE THE MILITIA EVEN EXISTS. Using ambiguous terms like "in the context of" hides the temporal sequence. The militia is formed AFTER the right is asserted. The right exists even when there is no militia at all. That is why the 2A has its curious grammatical construction. "In order to do B, we must first have A."

.

.. The right of the people to "keep arms and render militia service" is totally congruent with scrupulous of bearing arms.

Oh...

Kind of like "The right of Negroes to render cotton-field service."

Or "The right of rape victims to render sexual services."

Yeah. Now I see where you're going.

 

[Ieyasu]

This is a clear-cut case where the context is a right that is asserted BEFORE THE MILITIA EVEN EXISTS. Using ambiguous terms like "in the context of" hides the temporal sequence. The militia is formed AFTER the right is asserted. The right exists even when there is no militia at all.

I'm not saying the right doesn't exist. I'm merely making the case that there is quite a bit of evidence suggesting bearing arms might have been a legal term of art that meant rendering military service. The above doesn't refute that.

 

[glummer]

I'm not saying the right doesn't exist. I'm merely making the case that there is quite a bit of evidence suggesting bearing arms might have been a legal term of art that meant rendering military service. The above doesn't refute that.

Can you show ANY evidence suggesting that this hypothetical term of art was ever used, by anyone, in the context of asserting a RIGHT?

 

[ctdonath]

What part of "shall not be infringed" is not understood here?

"In order to do B, we must first have A."

Exactly.

And may I add: when doing B is in fact necessary for survival, few will care about the exact nature of A. Pitchforks may be generally considered unsuitable for modern militia use as pontificated upon by armchair warriors (and their opponents) under cushy conditions, but when an enemy squad is raiding your neighborhood killing indiscriminantly, even a pitchfork may be pressed into service as a weapon - which, under the 2nd Amendment, means the feds cannot prohibit ownership of pitchforks on the grounds that they may be used as weapons but are deemed (by overpaid legislators in gilded halls) a "danger to society and thus must be banned". Ditto, and moreso, for common self-defense handguns: should the militia be called up, everyone arriving is expected to bring the best weapons they have, and anyone who prevented individuals from owning weapons have done so to the aid and comfort of our enemies; anyone who banned ownership of mere handguns from those who could/would not obtain more is a trator.

 

[glummer]

.. The right of the people to "keep arms and render militia service" is totally congruent with scrupulous of bearing arms

And it is totally incongruent with any other usage of "The right of the people" in American Constitutional law. :banghead:

(Although, from my limited understanding of Soviet Union law, it may have been quite common there.)

 

[Ieyasu]

Can you show ANY evidence suggesting that this hypothetical term of art was ever used, by anyone, in the context of asserting a RIGHT?

Joseph Story:

The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.(1) And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid."

Can you provide a quote showing that bearing arms is somehow narrower in scope when modified by the term scrupulous as opposed to when modified by the term "right" in the same sentence?

 

[glummer]

Joseph Story:
Quote:

The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.(1) And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid."

I see nothing here that restricts the definition to ONLY militia service, which is what all these arguments are seeking.
If anything, it implies the opposite: note the words "this truth would seem so clear, AND ...importance of ... militia would seem so undeniable"; the "AND" clearly implies that the right, and the militia, are conceptually separate things. The right is separate from the militia.

Can you provide a quote showing that bearing arms is somehow narrower in scope when modified by the term scrupulous as opposed to when modified by the term "right" in the same sentence?

A quote? You need a quote to show you that being ordered to do x is more restrictive that having the right to do x?
Your "scrupulous" quote referred to a discussion of a legal requirement. If your daughter is required to have sex with a man, would you not call that a narrowing of the scope of her right?

 

[Ieyasu]

A quote? You need a quote to show you that being ordered to do x is more restrictive that having the right to do x?
Your "scrupulous" quote referred to a discussion of a legal requirement. If your daughter is required to have sex with a man, would you not call that a narrowing of the scope of her right?

Sex means the same thing in either case. Similarly, one can volunteer to join the National Guard or one can be conscripted into it, it still means the same thing -- rendering military service.

If anything, it implies the opposite: note the words "this truth would seem so clear, AND ...importance of ... militia would seem so undeniable"; the "AND" clearly implies that the right, and the militia, are conceptually separate things. The right is separate from the militia.

I disagree. Story is saying not only is the right necessary, but so is the well-trained and disciplined militia that needs to accompany the right.

 

[glummer]

Sex means the same thing in either case. Similarly, one can volunteer to join the National Guard or one can be conscripted into it, it still means the same thing -- rendering military service.

The RIGHT to sex is not the same in either case. Nor is the right to bear arms. Are you seriously saying that the right not to be raped is "congruent" with a requirement to submit to rape?

I disagree. Story is saying not only is the right necessary, but so is the well-trained and disciplined militia that needs to accompany the right.

Then you are agreeing with me; the right, and the militia are two different things.

And the 2a does not say that the militia must accompany the right; grammatically, it says the right must precede the militia.

 

[Ieyasu]

The RIGHT to sex is not the same in either case. Nor is the right to bear arms. Are you seriously saying that the right not to be raped is "congruent" with a requirement to submit to rape?

You have difficulty separating modifiers from their objects. Rendering militia service in the National Guard is still rendering militia service in the National Guard whether you enlist or are conscripted. The benefits may be different if you enlist, but the meaning of the object being modified is the same, ie., rendering military service, regardless of how many defective analogies you try to employ.

Then you are agreeing with me; the right, and the militia are two different things

There is a right to serve in the militia which is separate from the amendment's declaration stating the necessity of a well regulated militia, just as Story writes.

 

[glummer]

Quote:

The RIGHT to sex is not the same in either case. Nor is the right to bear arms. Are you seriously saying that the right not to be raped is "congruent" with a requirement to submit to rape?

You have difficulty separating modifiers from their objects. Rendering militia service in the National Guard is still rendering militia service in the National Guard whether you enlist or are conscripted. The benefits may be different if you enlist, but the meaning of the object being modified is the same, ie., rendering military service, regardless of how many deficient analogies you try to employ.

Neither the modifiers or their objects have any relevance unless they are tied to the RIGHT in question. Which you refuse to do.

There is a right to serve in the militia which is separate from the amendment's declaration of stating the necessity of having a well regulated militia, just as Story writes.

Reread your quote. The sentence in which he speaks of the right of the citizens to keep and bear arms does not mention the militia at all.

 

[Ieyasu]

Neither the modifiers or their objects have any relevance unless they are tied to the RIGHT in question.

*LOL* You've provided no proof of that, other than a defective anology. I showed one directly related to the matter at hand. You have been unable to show how the meaning of the phrase "rendering militia service" changes regardless of whether it's modifed by a right or a duty.

Reread your quote. The sentence in which he speaks of the right of the citizens to keep and bear arms does not mention the militia at all.

Absurd. First you asked for a quote. Now you want it all in the same sentence. You can't make simple inferences? The link is even clearer in this extended quote, but of course you'll claim these sentences are light-years apart. It is obvious that through the militia the liberties of a republic are maintained. It is also obvious that bearing arms here, refers to rendering militia service, and that Story refers to it as a RIGHT.

The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.(1) And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid.

 

[hugh damright]

I see nothing here that restricts the definition to ONLY militia service, which is what all these arguments are seeking.

It seems to me that if there was no 2nd Amendment or 14th "Amendment", no USBOR to limit anyone, that we would be left with the idea that the US is limited to enumerated powers, and they are not delegated a power to protect our individual rights such as a personal RKBA to shoot burglars and hunt ... but the US is delegated a power to arm the militia, and that gives them a duty to see that the people are not disarmed - they said so themselves in Presser:

"states cannot, even laying the [Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource"

I just don't see how it's a question of what "bear arms" means in different contexts ... I suppose someone might bear arms at a shotgun wedding, but that doesn't mean that the Second Amendment protects our right to bear arms for such a purpose.