Apellee's brief in Parker v. District of Columbia

[RealGun]

Realgun ... I think that my first day here on this forum I warned you that if you couldn't control yourself then I would put you on my ignore list. I would not have posted and said "yeah yeah, realgun, we're aware of your yankee bias". By the way, you ARE a yankee aren't you?

Righteous indignation doesn't hide the fact that your bias robs your arguments of credibility. You are a very accomplished spinner, but its easy to see where you are headed and not that hard to see the holes in your case.

What is especially offensive is citing the Supreme Court as the authority on what the law is. They are as corrupted as any other part of government, and their minority opinions will often point that out. This is the whole reason why gun owners feel so abused.

 

[hugh damright]

the BoR is a concession to the anti-federalists that specifically guarantees the individual rights to all free men, that shall not be infringed upon.

The antifederalists feared that the US Constitution was creating a government that was too powerful and would grow and usurp the sovereignty of the States. Would they address this fear by giving the US a list of our individual rights and asking them to guarantee them for us? Or would they address this fear by giving the US a list of limits to their US jurisdiction?

Here is what Madison said about a Bill of Rights when he proposed the USBOR to Congress (June 8, 1789):

"In some instances they assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances they lay down dogmatic maxims with respect to the construction of the government; declaring, that the legislative, executive, and judicial branches shall be kept separate and distinct: Perhaps the best way of securing this in practice is to provide such checks, as will prevent the encroachment of the one upon the other.

But whatever may be form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority."

Nowhere does it say that these rights are given by the state or that the state governments have the power to infringe upon those rights.

In order to limit the States, an amendment would have to say "no State shall" and that "Congress shall have power to enforce this provision". Federal powers are enumerated. The USBOR is not a delegation of federal powers.

It does say that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." It also says "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."

And these Ninth and Tenth Amendments are the heart and soul of my view of the US Constitution.

 

[hugh damright]

Righteous indignation doesn't hide the fact that your bias robs your arguments of credibility.

Now, again, I wouldn't have posted to say that your yankee bias robs your arguments of credibility. I'll just go on and put you on my ignore list now, you obviously cannot control your personal comments and I have warned you over and over.

 

[DKSuddeth]

In order to limit the States, an amendment would have to say "no State shall" and that "Congress shall have power to enforce this provision".

I disagree. In fact, it wasn't until the 13th amendment that "Congress shall have power to enforce this provision" was implemented because the states were now faced with the prospect of applying the BoR to a class of people that they felt weren't 'qualified' to have rights. Up until then, states had no problem feeling bound by the BoR.

Federal powers are enumerated. The USBOR is not a delegation of federal powers.

I agree. Not sure how you understood that to be what I was trying to say.

 

[Ieyasu]

Bart,

I don't think it is the case that someone arguing that the National Guard is not the militia would necessarily look silly trying. While it goes against precedent, you can point to other more recent precedent arguing against it such as Perpich v. United States

On the contrary, I think Perpich bolsters the argument that the State
Guard is a part of the militia.

1. The National Guard is authorized by federal legislation and supported entirely by federal funds.

As I've posted before, the source of a militia's funding is irrelevant as to whether an organization is a militia. A militia is a militia regardless of who funds and arms it. Granted, one may prefer one source over another, but that doesn't change the fact that it's still a militia.
I guess I have to re-post this quote from Founder Rufus King discussing the meaning of the Militia Clauses in the Constitution:

Arming meant not only to provide for uniformity of arms, but included the authority to regulate the modes of furnishing, either by the militia themselves, the state governments, or the national treasury...

2. Gubernatorial consent is not necessary for Congress to call NG
troops into active duty training

Normally yes, however the governor does have veto power in certain
cases (from Perpich):

The Montgomery Amendment deprives the Governors of the power to veto participation in a National Guard of the United States training mission on the basis of any objection to "the location, purpose, type, or schedule of such active duty." 10 U.S.C. 672(f). Governors may withhold their consent on other grounds. The Governor and the United States agree that if the federalization of the Guard would interfere with the State Guard's ability to address a local emergency, that circumstance would be a [496 U.S. 334, 352] valid basis for a gubernatorial veto. Brief for Petitioners 41; Brief for Respondents 9.

And

Under the interpretation of the Montgomery Amendment advanced by the
federal parties, it seems that a governor might also properly withhold consent to an active duty order if the order were so intrusive that it deprived the State of the power to train its forces effectively for local service:

Under the current statutory scheme, the States are assured of the use of their National Guard units for any legitimate state purpose. They are simply forbidden to use their control over the state National Guard to thwart federal use of the NGUS for national security and foreign policy objectives with which they disagree." Brief for Respondents 13

Further:

The Governor contends that the state defense forces are irrelevant to this case because they are not subject to being called forth by the National Government and therefore cannot be militia within the meaning of
the Constitution. We are not, however, satisfied that this argument is persuasive. First, the immunity of those forces from impressment into the national service appears - if indeed they have any such immunity - to be the consequence of a purely statutory choice...

In short: "Indeed, if the federal training mission were to interfere with the State Guard's capacity to respond to local emergencies, the Montgomery Amendment would permit the Governor to veto the proposed mission."

I believe items 3-5 are dealt with by the above as well. Also, as I've mentioned previously, since the Constitution was ratified, there was nothing forbidding Congress from drafting individual militia members into the armed services. Thus, I don't see a significant difference. According to Perpich, the entire state NG, if a governor objects, can't normally be hauled off into military service. And even MEMBERS of state self-defense forces are not exempt from a draft (see sec d):
http://www.law.cornell.edu/uscode/html/uscode32/usc_sec_32_00000109----000-.html

Since the Founding, there was nothing in the Constitution to prevent individual militia members from being conscripted into the armed services. Today, it's easier to enlist a bigger chunk of the militia into the armed services, but apparently, at least according to Perpich, the states are still entitled to have the bulk of their militia (State NG) left intact.

It appears to be different in scope than what the Founders intended as the state has practically no power over the National Guard and the NG"

I hope I've shown that the feds under normal circumstances cannnot eviscerate the States' NGs. For sure, it's a different structure than what any of the Founders would have envisioned, but so what? It's still a constitutional militia. I don't think you've been able to show otherwise. Of course I'm not
claiming it's identical to the militia system in effect in 1792, but the Founders had different ideas as to the size and composition of the militia anyways.

(Of course, with this structure there is no federal militia, but that's
not what I have been contesting.)

Trying to say this another way -- the NG when in the service of the states functions exacly as militia, period. The dual status is certainly a new twist,
but there are built-in checks so the states still can maintain a militia.

Second, if the NG is the modern militia, then how does the separate
state militia authorized by statute fit into the mix?

Of course the National Guard is a part of the militia.

 

[Ieyasu]

Glummer wrote:

A. They DO normally take all similar, or related meanings, in the same usage. "Bear arms" can obviously mean the SAME thing referring to both militia applications, and civilian uses; I don't understand why you assume they must be different.

Re-post:

Here's a quote from Abraham Lincoln in 1836: "I go for all sharing the privileges of the government who assist in bearing its burdens. Consequently, I go for admitting all whites to the right of suffrage who pay taxes or bear arms, by no means excluding females.

The term "bear arms" in this passage means only one thing, rendering military service, it obviously doesn't refer to hunting or the mere carrying of arms.

Edited to add: As I've also previously posted, neither does the phrase "scrupulous of bearing arms" refer to anything but fighting with arms. Again, it doesn't refer to hunting or the mere carrying of arms.

 

[glummer]

Ieyasu,

Quote:

Here's a quote from Abraham Lincoln in 1836: "I go for all sharing the privileges of the government who assist in bearing its burdens. Consequently, I go for admitting all whites to the right of suffrage who pay taxes or bear arms, by no means excluding females.


The term "bear arms" in this passage means only one thing, rendering military service, it obviously doesn't refer to hunting or the mere carrying of arms.

Edited to add: As I've also previously posted, neither does the phrase "scrupulous of bearing arms" refer to anything but fighting with arms. Again, it doesn't refer to hunting or the mere carrying of arms.

Neither of your quotes are part of the Second Amendment. There, the phrase has no obvious restriction.
The militia clause is NOT a limitation, merely a reference to the application of the RKBA most relevant to the current concern.

As I pointed out earlier, if you wish to discuss M, and A is fundamental to all of B through Z, you must mention A and M; but that does not mean everything but M is negated in some way.

If I say "In order to get to the gun club, use Route 17", could anyone plausibly claim that that really meant "Route 17 is forbidden for any other travel"? That's basically the line of reasoning(?) in the Militia argument.

 

[hugh damright]

I disagree [that in order to limit the States, an amendment would have to say "no State shall" and that "Congress shall have power to enforce this provision"]. In fact, it wasn't until the 13th amendment that "Congress shall have power to enforce this provision" was implemented because the states were now faced with the prospect of applying the BoR to a class of people that they felt weren't 'qualified' to have rights. Up until then, states had no problem feeling bound by the BoR.

Of course, the term "Congress shall have power" began in Article One Section Eight. The first twelve amendments did not delegate additional federal powers, and I believe that is why they did not say "Congress shall have power" or "no State shall".

Madison's proposed USBOR included an amendment which said "no State shall", and the Senate failed it, as you might expect. Am I to conclude from this that every amendment has an unwritten "no State shall" attached to it?

I still don't understand how the States would be concerned that the US was going to usurp their rights, and then react to this concern by asking the US to guarantee our individual rights against the States. It seems to completely defy any reason. What makes sense to me is that the States would address a concern that the US was going to usurp their rights by declaring limits on the US.

I think the evidence is quite clear. The USBOR has a Preamble which does not say that the intent is to guarantee individual rights against all governments, it says the intent is to prevent misconstruction or abuse of the powers created by the US Constitution. When Madison proposed the USBOR to Congress, he didn't say that the great object of a BOR is to guarantee individual rights, he said that the great object was to limit government powers. Every time the SCOTUS ruled on it, they didn't say that the USBOR was intended to protect individual rights against all government, they said that the USBOR was intended to only limit the US and not the States.

Here is what the SCOTUS said in Barron v Baltimore ... is there something wrong with their reasoning?

"The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.
...
But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them. "

I don't know how you came to the conclusion that the States had no problem feeling bound by the USBOR prior to the Civil War. Is it your assertion that if you can quote one case in one State where they felt bound by the USBOR, then that means all the States agreed that they were bound by the USBOR?

I agree that the USBOR is not a delegation of federal powers . Not sure how you understood that to be what I was trying to say.

Because if a US amendment limits the States then it empowers the US - It empowers them to limit the States. And the USBOR did not empower the US to limit the States, it was intended to prevent that very thing.

 

[RealGun]

Because if a US amendment limits the States then it empowers the US - It empowers them to limit the States. And the USBOR did not empower the US to limit the States, it was intended to do exactly the opposite.

That has little standing, when you acknowledge the 14th Amendment, the Civil War, and its consequences. The US is a different country than it once was. The original plan didn't actually work for long, but the difficulty in changing the Constitution has caused the law to game the Constitution and Congress to defer to the Supreme Court, Government by Judiciary.

 

[DKSuddeth]

I don't know how you came to the conclusion that the States had no problem feeling bound by the USBOR prior to the Civil War. Is it your assertion that if you can quote one case in one State where they felt bound by the USBOR, then that means all the States agreed that they were bound by the USBOR?

No, it's not my assertion that by quoting one case, I should be able to show that the states were bound by the bill of rights. My assertion is that by ratifying and signing the constitution/bill of rights, that they were accepting the terms of their relationship of limited powers/partnership with the central government as well as acknowledging that the people have rights that are absolute and inviolate.

Because if a US amendment limits the States then it empowers the US - It empowers them to limit the States. And the USBOR did not empower the US to limit the States, it was intended to do exactly the opposite.

Not so. How does the constitution get amended? It requires an awesome amount of agreement by the central government and then 4/5ths of the states. By rule of law/constitution, there could be no amending the constitution to limit the states power unless 80% of the states agree to it. Also, the BoR does not empower ANY body of government. It is a list of the most important rights of the people that no body of government can touch, including states.

You must remember, in the early decades of this country, the few states that were part of the union all had rulings that showed that the states were also bound by the BoR (as evidenced by my sig). It wasn't until the rising tension and conflict between the states over the rights of the new americans (negros) that some courts started deciding that the constitution/BoR was only designed to limit congress and that the states were not bound by it. The supreme court SHOULD have slapped a ruling like that down with the strength of thors hammer, but we had Taney on the court.

 

[Ieyasu]

Glummer,

If I say "In order to get to the gun club, use Route 17..."

You're confusing two issues. I'm only discussing the meaning of the term, "bear arms," not whether the militia clause acts as a restriction. However the militia clause can be used to determine context, which often determines the meaning of words. In your example, based on context, Route 17 obviously refers to a road.

A better example of what I've been trying to convey is -- Compare "In order to get to the gun club, use Route 66" versus "Do you have the lyrics for Route 66?" The term "Route 66" cannot mean both a song and a road at the same time.

Neither of your quotes are part of the Second
Amendment

Recognize this?

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

It was the Second Amendment as passed by the House. The second usage of "bearing arms" can only mean one of two things, either fighting with arms or rendering military service, it clearly and unmistakably does not refer to the mere carrying of arms or hunting.

You said 'people' must mean the same thing throughout
the bill of rights, so please don't assert that bearing arms was used differently within one frigin' sentence.

 

[ksnecktieman]

Ieysu? hugh? I apologise for thinking that the second amendment says this and means something different........... SO WHAT EXACTLY did you say?

 

[Ieyasu]

SO WHAT EXACTLY did you say?

That the term bear arms, to the Framers, may have meant to fight with arms or render militia service as opposed to the mere carrying of arms or an all-inclusive use of arms that would have included activities such as hunting.

 

[Otherguy Overby]

Militia is only for the government, eh?

Ieyasu:

That the term bear arms, to the Framers, may have meant to fight with arms or render militia service as opposed to the mere carrying of arms or an all-inclusive use of arms that would have included activities such as hunting.

OIC, according to you, the "right" to bear arms has nothing to do with individual self defense and subsistance living through hunting.

I really don't think the founders intended for anyone to follow your interpretation.

 

[Ieyasu]

OIC, according to you, the "right" to bear arms has nothing to do with individual self defense and subsistance living through hunting.

Not according to me, but comments from the Framers. Also, very effective rebuttal. Try refuting the evidence that's been posted. (I'm not only referring to the posts on this page.)

P.S. Ever heard of the Ninth Amendment?

Militia is only for the government, eh?

This kind of crap pisses me off. I realize it's been a long thread, but... See this post: http://thehighroad.org/showpost.php?p=2609044&postcount=8 and then tell me I'm claiming the militia is only for the government.

 

[Otherguy Overby]

I figured you out.

Ieyasu
Q

This kind of crap pisses me off. I realize it's been a long thread, but... See this post: http://thehighroad.org/showpost.php?...44&postcount=8 and then tell me I'm claiming the militia is only for the government.

I got it now. First you are for it and later you are against it...

 

[Ieyasu]

I got it now. First you are for it and later you are against it...

I think we may have reached the intellectual zenith of this thread.

 

[carebear]

Look people who can't frikkin' read, Ieyasu is NOT AGAINST an individual right to carry or possess!

He is simply pointing out that, within the historical context, the written records of the Framers and their contemporaries, in the interpretation of those promoting a "civic" right, on their face to those without detailed knowledge, can be very reasonably and rationally construed to have a meaning of "Bear Arms" that is strictly related to a military, militia, perspective.

Read the goram thread not as partisans but from a non-decided point of view. That is, in the end, the person we need to convince to win this argument.

A bunch of self-righteous gunnys saying, "The Founders' said it, I believe it, Nuff said." is the short road to losing all our rights. Stupid simplistic slogans are for children and hippys.

We need to be more sophisticated than that.

 

[Mr.V.]

This thread is degenerating and it's unfortunate because not only did it start well but it's pointing to a very scary proposition that's getting lost in the bickering.

As far as addressing the greater concern, i.e. this "civic right" argument. From my superficial reading it still appears to depend heavily on the purpose clause of the 2nd amendment "A well regulated Militia being necessary to the security of a free State," to interpret "the right of the people to keep and bear Arms shall not be infringed."

To ignore the purpose clause is to lose the argument like it or not as it clearly exists and was written in the 2nd amendment. However, one of the best arguments I've read that deals with the purpose clause was by Eugene Volokh titled "the commonplace Second Amendment". You can read it here...
http://www.law.ucla.edu/volokh/common.htm
In short it describes the function of a purpose clause in general and in the context of the second amendment. It defends the right even if the original purpose ceases to exist and defends it for reasons beyond the purpose.

He also has a rebuttal to someone arguing against this interpretation...
http://www.law.ucla.edu/volokh/amazing.htm#1

both of which are relatively easy to understand and not too heavy on lawyerese (even I understood ~85% of it)

Art-- to address your point you brought up many pages ago about the preamble, I guess it's tough to know what the significance the preamble has. On one hand it gets to the very heart of what the initial intent of the framers was, but on the other hand preambles don't have any legal standing on their own (correct me if I'm wrong...my knowledge of such things is grotesquely inadequate), they merely cast light on interpretation, which as we've seen countless times, can be bent any which way arbitrarily.

 

[Ieyasu]

Well, well, maybe we have some sort of gyroscope at work here. Thanks Carebear and Mr. V. for trying to bring this thread back on track. I wish I could excise a few posts to shorten the thread, because I do understand the temptation to jump on one post out of context.

I'd also like to add for those who've been sort of following my "bear arms" discussion, please note that I've been ignoring the word 'keep.' In other words, there is more to the Admendment than just the meaning of "bear arms.'

Also, although at times I've played the devil's advocate, what I've posted about "bear arms" are pretty much my own thoughts and not that of the brief''s (although there may be some intersection there). I haven't come to any solid conclusion, yet about what the term meant within the 2A. LIke it or not there is conflicting evidence regarding the meaning of that term. But, that is no where close to asserting the entire amendment appies to active militia members only.

Mr. V. has brought-up some good points. That's the kind of discussion I was hoping for when this thread started as opposed to ignorant, evidence lacking rants. Please don't misconsture, there has been some decent discussion.

Unfortunately I've got to get on with the day and will check-in later tonight. I'd like to discuss some of the points brought-up by Volokh via Mr. V. But, I will say one thing, with respect to this discussion on "bear arms," and that is I haven't relied much on the preface in claiming bear arms may have refered to military service or fighting with arms.

 

[glummer]

Ieyasu : How do you correlate these quotes with your "bear arms" argument? Bearing arms in "defense of themselves" clearly has nothing to do with militia duty. Is self-defense also a "civic-right-which-is-really-a-duty"?

State Constitutions:

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

1777 Vermont: That the people have a right to bear arms for the defence of themselves and the State ...

1790 Pennsylvania: The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.

1792 Kentucky: That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

1799 Kentucky: That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned.

1802 Ohio: That the people have a right to bear arms for the defence of themselves and the State ...

1816 Indiana: That the people have a right to bear arms for the defense of themselves and the State ...

1817 Mississippi: Every citizen has a right to bear arms, in defence of himself and the State.

etc.


I would also point out, that while you have correctly identified context as significant in understanding the meaning of words; but you are OVERLOOKING the context in your analysis.
"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."
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." The sentences become nonsense if you try.

You said 'people' must mean the same thing throughout
the bill of rights, so please don't assert that bearing arms was used differently within one frigin' sentence.

Of course it's used differently; if you look carefully, you will detect that the WORDS of the respective phrases are different. Try substituting "scrupulous of bearing arms' in the RKBA phrase, or "Right of the People" in the "scrupulous" phrase. You can't do it. They are NOT the same.

(I said "The Right of the People", not just "people.")
(I think "friggin'" has two "g's".)

Put it another way; bearing arms can be a right AND/OR a duty, and they are BOTH involved with the militia. The duty underlies ALL militias; the right is necessary only for a militia proper to a Free State.

 

[Mr.V.]

glummer--

Ieyasu is pointing to this guys argument that has thousands of citations which shoot down the traditional RKBA argument. While both he, I, most likely you, and practically everyone else on this board agree that the RKBA is an individual right and shall not be infringed, lots of people not on this board disagree. The current disagreement is well-reasoned and refutes the argument you're making.

You can bicker with Ieyasu if you feel like it, but it doesn't change what he's been screaming about..if you don't adapt your argument to address these issues, you will lose the debate on another forum/in public/at parties/etc with someone who is well versed in this argument.

So again, let's try to figure out how to argue against these points rather than vindictively attacking Ieyasu for trying to point out where the problems we face are going to be.

 

[carebear]

I think "friggin'" has two "g's".

glummer,

It does indeed. I like "frikkin'" better though. The "k's" give it a little more "snap".

I had come in from a realtor party late last night so I was not in my best "debate" form when I posted. I should not have been so harsh.

BTW, I think your State Constituion quotes lead in a good direction.

 

[Bartholomew Roberts]

Ow, that is going to leave a mark. Good points on the NG discussion. obviously not my best reasoning on the issue.

 

[Cellar Dweller]

Postulate: can't have it both ways

OK, if the 2nd (unincorporated) only binds FedGov and,
if 2nd Amendment RTKABA only applies to militia/National Guard,
then: all FedGov gun control is and has been unconstitutional.

NFA, GCA, "Sporting Purposes," etc. is NOT in Article 1, Section 8 or Section 10. Therefore,

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.

Since many (35+ of each, not always overlapping) states already allow suppresors and full-auto, Congress should have limited power to abuse the "Commerce Clause."

No executive orders. No BATFE tax/wait. 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....and a whole lot of felony cases to be expunged (5th Amendment IS binding on the States, so no retrial for violation of State law on an "unlawful" Fed conviction).

Thoughts?