Legislation repealing the SA

[Bartholomew Roberts]

Gifted beat me to it

Reid v. Covert is still good law on the subject of the supremacy of the Constitution. Maybe you got it backwards in your notes?

 

[BobbyQuickdraw]

And if someone, say Hillary, tried to pull a treaty type move that would hamper the 2nd Amendment, would there be a way for us to bring action against that person because of their failure to uphold the oath they took? Let us not forget it clearly says they must uphold our Constitution.

 

[gc70]

The BoR was required to achieve ratification of the Constitution. No RKBA, no Constitution.

The Constitution was ratified first, then Congress proposed the BOR, which was ratified two years later.

A large part of the ratification of the Constitution took place based on the existence of the BoR - not as ten seperate amendments, but as a package.

The BOR was not a "package deal" because only 10 of the 12 proposed amendments were ratified.

Analysis and Interpretation of the Constitution of the United States

The first ten amendments along with two others that were not ratified were proposed by Congress on September 25, 1789, when they passed the Senate, having previously passed the House on September 24 (1 Annals of Congress 88, 913). They appear officially in 1 Stat. 97. Ratification was completed on December 15, 1791, when the eleventh State Virginia) approved these amendments, there being then 14 States in the Union.

 

[brickeyee]

Treaties are the "law of the land", and are UNDER the Constitution.
A treaty being a LAW cannot modify the constitution.

 

[Rainsford]

New Jersey's constitution does not grant the RKBA, if that counts. Guns are effectively banned, and we can only own guns in this forsaken place by exemption through the permit process.

 

[ctdonath]

By a whole lot you mean?

Yes. I do.

If the constitution is repealed do we go back to the articles of confederation?

No.
Whoever seeks to repeal the 2nd Amendment, and thus the Constitution, had darn well better have something better in place.

Look: anyone who repeals my right to keep and bear arms, in doing so, aids and abets criminals and enemies. They join those who have broken the social contract, and act against the life, liberty and property of the people of this nation. In any division of "us" vs. "them", they have placed the "vs." between us. Put simply, it's over.

Repealing the 2nd Amendment is not merely an intellectual exercise in excising a few words. This nation exists because of mutually agreed-on cooperation, hard won and carefully worded, and to lightly toss part of that agreement destroys the basis for cooperation and returns us to the law of the jungle.

 

[Regolith]

The Constitution was ratified first, then Congress proposed the BOR, which was ratified two years later.

That may have been the chronological order of events, but the anti-federalists demanded a bill of rights before they would agree to the Constitution. The Federalists relented and agreed to propose a bill of rights if the anti-federalists ratified the Constitution.

However, as far as I can tell there is no reason why one of the amendments in the BoR couldn't be removed without removing the other nine. With a few exceptions, amendments can pretty much do just about anything. There are very few restrictions on what they can do (such as not being able to revoke a state's right to equal representation in Congress without their approval), as they are a change to the Constitution, rather than a law that is subservient to it.

That said, an Amendment to remove the 2nd has a snowball's chance in hell of being passed.

 

[takhtakaal]

(of course reality and the whole "the NG is the militia" makes this argument null too)

But, the NG is not the militia.

U.S. Code as of: 01/19/04
Section 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.
      (b) 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.

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=10&sec=311

 

[shield20]

Right. But now find in code where the militia will be called forth, and for what reason? What role do we fill?

 

[takhtakaal]

Does it matter that we fill a role? Does this afford us some sort of defense against legislative or other changes that would lead to our disarmament?

So far as I understand, 2A is an individual right that has en masse applications. How does the nature of the application of the Unorganized Militia adversely affect anything?

 

[shield20]

Oh I agree! But the role the NG has taken over includes the militia roles spelled out in the Constitution, and this IS used as an excuse to disarm the rest of the people. BTW, so is the standing army, the whole reason for the militia in the 1st place. Also - that legally describes the militia of the United States, NOT the Constitutional "Militia of the several States".

Actually, I am glad you posted that - I tend to focus on the "unorganized" part and forget the "militia" part! Cheers!

 

[takhtakaal]

You'll note that many states have laws addressing the Unorganized Militia. Apparently, governors think it theirs to control.

Still, it doesn't matter that the NG has supplanted an unorganized militia. The idea of the militia is every man-jack in SHTF. The NG is a reserve force to be called upon from one direction for extended service in times of war, and from another in times of peace during emergencies. Whatever it does in supplanting the militia, the NG doesn't do anything to make it redundant, or to make a line in a piece of federal legislation just disappear.

 

[shield20]

Excellent points to consider. Hmmm...

 

[ctdonath]

But now find in code where the militia will be called forth, and for what reason? What role do we fill?

One word: draft.

The Selective Service System <i>asks</i> every soon-to-be 17-year-old to register for potential military service. If need be, the militia is thus called up in whatever numbers needed. While often derided as "conscription" and "slavery", it really is voluntary participation in the militia which can be called up by the President as national security dictates. While Congress is content to leave training & equipping to the actual call-up, having draftees (to wit: militiamen) be already familiar with weapons on their own, and having the option of them bringing their own if dire need be, is of course beneficial.

 

[shield20]

Another "Hmmmm". What with the Warner Act, where the federal armed forces and NG can be used in the roles traditionally required of the Militia, this hold very true.

Cheers!

 

[gc70]

The Selective Service System <i>asks</i> every soon-to-be 17-year-old to register for potential military service.

"Asks" is a polite and understated term.

From the Selective Service's website:

Registration is the law. A man who fails to register may, if prosecuted and convicted, face a fine of up to $250,000 and/or a prison term of up to five years.

 

[ServiceSoon]

And if someone, say Hillary, tried to pull a treaty type move that would hamper the 2nd Amendment, would there be a way for us to bring action against that person because of their failure to uphold the oath they took? Let us not forget it clearly says they must uphold our Constitution.

There is a federal law that you might be able to charge somebody with in this situation. I can't remember where it is. I saw it here once.

 

[ctdonath]

Awright, so I didn't know about the conviction bit. Thought it was voluntary; notable consequences, but not criminal. Mea culpa.

 

[brickeyee]

"Registration is the law. A man who fails to register may, if prosecuted and convicted, face a fine of up to $250,000 and/or a prison term of up to five years."

And if you ever apply for a security clearance it WILL be denied if you failed to register as required.

 

[ctdonath]

Equivalent in the Militia Act of 1792:

every officer, non-commissioned officer or private of the militia, who shall fail to obey the orders of the President of the United States in any of the cases before recited, shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a court martial; and such officers shall, moreover, be liable to be cashiered by sentence of a court martial: and such non-commissioned officers and privates shall be liable to be imprisoned by the like sentence, or failure of payment of the fines adjudged against them, for the space of one calendar month for every five dollars of such fine.

Not as harsh, but not exactly light either. The same who wrote the 2nd Amendment implemented a formal militia, obliging service, penalizing failure to do so.

Key difference is that under the MA1792, members were expected to equip and train - unlike today's Selective Service.

 

[Robert Hairless]

Protection of Lawful Commerce in Arms Act (S. 397)

The Protection of Lawful Commerce in Arms Act enacted in 2005 includes the following provisions under the "Findings, Purposes" section:

SEC. 2. FINDINGS; PURPOSES.

(a) Findings- Congress finds the following:

(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

...

(b) Purposes- The purposes of this Act are as follows:
...

(2) To preserve a citizen's access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting.

(3) To guarantee a citizen's rights, privileges, and immunities, as applied to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment.

Does this law affect the dialogue?

 

[ExSoldier]

Gifted: The ABILITY of the USSC to act is different from a WILLINGNESS to act. They have (until now) ignored the 2nd Amendment since one case in 1935 (?) Miller v. US and then only ruled in a very narrow sense. Already several USSC Justices have expressed in public the belief that foreign laws ought to influence their own decisions concerning the interpretation of US law and the Constitution. Think the Founding Fathers had such a position in mind when they were creating the doctrine of "Checks and Balances?"

 

[ServiceSoon]

Does this law affect the dialogue?

I don't know. Are you allowed to us the purpose provisions in bills to argue law? This has never been done afaik.

 

[EOD Guy]

The BOR was not a "package deal" because only 10 of the 12 proposed amendments were ratified.

Correct and what is now the second amendment was originally proposed as the fourth amendment.