SC Justice Stephen's opinion on the 2nd

[IlikeSA]

http://www.washingtonpost.com/opini...a19578-b8fa-11e3-96ae-f2c36d2b1245_story.html

He wrote an essay, but it breaks down to this: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

At least we know where he stands.

 

[Devonai]

It sounds like Stevens has forgotten to read up on his George Mason.

 

[Sam1911]

The ex-Justice is entitled to his opinion, and no one is surprised to hear it yet again.

 

[Frank Ettin]

And he's not the only prominent, possibly influential person who thinks that way. It doesn't hurt us to remember that there are a lot of people/voters who don't agree with our view of the Second Amendment or the RKBA.

 

[Hypnogator]

It doesn't hurt us to remember that there are a lot of people/voters who don't agree with our view of the Second Amendment or the RKBA.

Including at least four sitting Supreme Court justices!

 

[JRH6856]

Stephens flawed logic completely ignores Congress expressed intent in the 14th Amendment to incorporate the Bill of Rights against the states, and to insure protection of the "privileges and immunities" of citizens of the United States which was clearly stated during discussion and debate to include an individual right to keep and bear arms.

It is not an uncommon flaw

 

[Sam1911]

Meh. He didn't get it his way when he was on the bench. Now that he's off the bench he's free to write editorials and throw rocks at the big meanies that didn't agree with him.

Kind of an age-old phenomenon.

 

[JRH6856]

Meh. He didn't get it his way when he was on the bench. Now that he's off the bench he's free to write editorials and throw rocks at the big meanies that didn't agree with him.

Kind of an age-old phenomenon.

Appointments are for life. Constraints arising from the appointment should be for life as well. Unless the appointee resigns the appointment and forgoes any pension or benefits. Then he/she can say what they will.

 

[Armymutt]

Technically, isn't every American between the age of 18 and 45 serving in the militia? One can't really have a militia without having guns. Militias don't receive their weapons from the government, they bring them with them when they are called. Pretty sure most stores would be able to handle selling enough firearms to outfit the militia when it is needed, rather than before.

 

[majortoo]

The Swiss have an interesting approach. Basically, all young men have a national service obligation. However, only about sixty per cent are found fit for military service. Once you serve the basic active duty training requirement, you take your assault rifle home with you where it stays for the rest of your life. It is kept under lock and key, subject to security inspection and control, but you are part of "a well-regulated militia"...Food for thought.

 

[Elm Creek Smith]

You also have to read the state militia regulations. Oklahoma's unorganized militia has been amended to include those from 17 to 70.

ECS

 

[ohbythebay]

So speaking strictly the law

and not activism (which isn't my main point), couldn't every legal gun owner exercising his/her second amendment rights classify themselves as member of the United State Militia or State Militia who will voluntary respond to a call to arms in the event of an emergency ? If gun owners would consider themselves that by default and espouse that sentiment, then they are in fact serving life long in the militia and thus, having further enforced the right to bear arms.

We all know if arms were to be issued when the militia was called up, it would take too long so, the typical gun owner is just a militiaman on inactive duty but ready and willing to serve.

yeah. I'll go with that.

 

[Old Fuff]

Apparently (former) Justice Stephen hasn't read the MAJORITY OPINION (that is the one that matters) in District of Columbia v. Heller.

It specifically removed any necessity for a militia connection, and found that the 2nd. Amendment conferred an individual right to “the people.”

I once had a big argument with a very leftist/anti-gun young lady over the Unorganized Militia of the United States. She exploded – not because of a firearms issue, but the fact that the Unorganized Militia didn’t include female members. More fun...

 

[basicblur]

If I'm not mistaken, even though the Heller case was 5-4, did not all 9 justices state that on the question of individual vs. militia the 2nd means individual?

I seem to recall some legal experts pointing this out on a few podcasts I listen to?

 

[JRH6856]

It specifically removed any necessity for a militia connection, and found that the 2nd. Amendment conferred an individual right to “the people.”

Which is in error because no right is conferred. The right exists with or without the Amendment. It can only be protected or restricted and the Amendment protects the individual right held by the people.

Statements like this—especially by the Court—distort the very concept of natural rights and individual liberty and tend to convert all rights into gifts from government.

 

[barnbwt]

Something odd about a SCOTUS judge openly desiring modifications to their guiding document (objective jurist, my foot )

TCB

 

[JRH6856]

Something odd about a SCOTUS judge openly desiring modifications to their guiding document (objective jurist, my foot )

TCB

Justice Ginsberg is quoted as saying she prefers South Africa's constitution to the US and would not recommend the US constitution as a model for a modern nation.

 

[barnbwt]

Well, I'm not sure I would either, since "modern nation" invariably means a nationalist totalitarian affair, these days... Any "modern nations" singing the praises of individual liberty above the needs of the collective, lately?

TCB

 

[GEM]

Apparently (former) Justice Stephen hasn't read the MAJORITY OPINION (that is the one that matters) in District of Columbia v. Heller.

Until the next majority forms - isn't like basic opinions can come and go at SCOTUS.

 

[AlexanderA]

The militia connection actually works to our benefit, once it is understood that (in the Founders' view) the militia includes everybody. Justice Scalia, in the Heller case, treated the militia clause as a nullity. This allowed him to say, later in the opinion, that "reasonable restrictions" (meaning restrictions against military weapons, such as machine guns) were OK.

 

[vamo]

Although I complete disagree with his sentiments I can at least respect opinions about changing the 2nd amendment. It really beats the "oh it doesn't apply today" opinion.

Don't get me wrong I'll fight tooth and nail to keep the 2nd as written, but when they take the approach of it "needs to be updated" they kind of admit that any current restrictions are unconstitutional.

 

[ugaarguy]

Apparently Justice Stephens forgot to read 10 USC 311
http://www.law.cornell.edu/uscode/text/10/311

10 U.S. Code § 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.

And he didn't look at 32 USC 313 for further guidance:
http://www.law.cornell.edu/uscode/text/32/313

32 U.S. Code § 313 - Appointments and enlistments: age limitations
(a) To be eligible for original enlistment in the National Guard, a person must be at least 17 years of age and under 45, or under 64 years of age and a former member of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps. To be eligible for reenlistment, a person must be under 64 years of age.
(b) To be eligible for appointment as an officer of the National Guard, a person must—
(1) be a citizen of the United States; and
(2) be at least 18 years of age and under 64.

Then there's 32 USC 109(c):
http://www.law.cornell.edu/uscode/text/32/109

(c) In addition to its National Guard, if any, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces.

In most states one must be either a US citizen or a lawful resident, and be between 18 and 64 years of age.

I think the above sections of Federal Law provide a very strong argument in favor of George Mason's statement, "I ask, sir, what is the militia? It is the whole people, except for a few public officials.", as the true intent of the Second Amendment.

 

[AlexanderA]

If you go by the U.S. Code definition, there's an age (and gender) limitation on militia membership. That would imply that your gun rights would end if you were age 45 (or 65), or were a woman not in the National Guard.

The 18th century militia, which was familiar to the Founders, didn't have such arbitary age limits. (The Founders would not consider women, or slaves, to be part of the militia. And of course very few people lived to be 65 in those days.)

I think we would have to argue that the broad 18th century definition (and not the U.S. Code definition) would apply, as modified by the non-discrimination principle.

 

[barnbwt]

Technically, the non-discrimination thing would put everyone in the militia, as the distinction was based on perceived physical fitness. I'm not sure Stephen's analysis also takes into account that militia membership is emphatically a state-controlled topic, meaning federal restrictions would probably be incompatible with his view (but state restrictions would be nearly unlimited). I'd actually be cool with such a scheme, since I think that is what our nation had in mind (gun laws are restricted to State-level militia, so citizens can operate state militia in accordance with state desires. But the state --nor the Feds-- cannot interfere with private ownership outside the militia, since that would invariably undermine these historically important institutions)

What we just saw in Nevada is an example of why the militia's rights and restrictions must be separated from those of individuals; the state would have ordered the militia to stand down, leaving individual protestors with no recourse against government violence (which thankfully, was avoided, but only because of the threat of equal force by protestors)

TCB

 

[Bexar]

This is what makes this coming election but especially 2016 so critical to our RKBA rights. Obama got two and could possibly get three appointments by the end of his term. If Herself gets elected and does the usual double matinee for sitting presidents for eight years the court will definitely change philosophy over those eight years and we are screwed. 10 years is an awful long time for old men and Ginsberg. If the court does flip then every wethead anti-gun organization is going to have cases brought before the court and a wide dark black line will be drawn through the 2nd Amendment. If the "I won't vote for a Republican crowd because I'm a Libertarian" splits the vote again or doesn't go to the polls while the Democrats vote in unison...we may as well take blow torches to our guns and make deco-artwork out of them for all the good the 2nd Amendment will do for us....ever again. Now before the hate mail starts from the Libertarian crowd...I am a Libertarian but ANY enemy of the 2nd Amendment is my enemy and I will vote against anyone that takes a position against the RKBA.