Let’s Assume that Heller was Wrongly Decided

[TPaine7]

There is an argument still being made post–Heller that the Second Amendment was intended to protect states, and not to protect an individual right to keep and bear arms. The objective of the Second Amendment, the argument goes, was to secure free states by way of armed militias. It may be that citizens had their own arms in colonial times, but as far as the Bill of Rights was concerned, that was simply a means to the end of state security.

According to this argument, if a state’s security could be protected by arms while its individual citizens were totally disarmed the Second Amendment would not be offended.

I disagree. I think the arguments against this theory are very strong.

But let’s put that argument aside. Let us say—for the sake of discussion—that this understanding is right. Let’s say that the Second Amendment was written to protect state interests and state interests alone. “The right of the people to keep and bear arms” means “the right of the select group of people in a state specifically authorized by the state to protect state security to keep and bear arms while on duty and under the direct control of the state.” All the arguments I will make hereafter rest on this assumed premise.

Regardless of what Madison and the rest of the Bill of Rights' Framers meant, there is another issue. The Constitution can be legitimately modified by amendment. And the fourteenth time that the Constitution was amended the Second Amendment was affected.

Let’s review the history.

The Supreme Court was corrupt early in our history. In its most infamous http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=60&invol=393">case it made up its own facts to support slavery. It claimed that blacks never were citizens and never could be, because they were not citizens at the Founding. That was a lie, and I showed why here.

Another mistake the Dred Scott Court made (according to our premise) was to see the Second Amendment as protecting an individual right:

A reference to a few of the provisions of the Constitution will illustrate this proposition.

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

Yet another mistaken idea of the Scott Supreme Court was that all citizens had a right to carry arms everywhere they went:

For if they {blacks} were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police <60 U.S. 393, 417> regulations which they {Southern Whites} considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

To summarize, the Court claimed that

1) African Americans were not, nor could they ever be citizens
2) The Second Amendment protected an individual right—a right “of person”
3) Among the “privileges and immunities” of citizens were the right to enter every state and to “keep and carry arms wherever they went”

Since we are on a Democratic site—and not a skinhead or KKK site—I will assume that we all reject the first claim. And we’ve already rejected the second claim, so the rejection of the third claim naturally follows.

That’s three strikes. According to our understanding, the Court struck out pitifully.

Unfortunately, as we know, the Court gets the final word in interpreting existing constitutional text. So, for instance, Heller sticks in the craw of those who share our views on the last two claims. The only way to overrule the Supreme Court is to amend the Constitution. That’s precisely what America did with the Fourteenth Amendment.

Let’s look at the Amendment’s Section 1:

AMENDMENT XIV

Passed by Congress June 13, 1866. Ratified July 9, 1868.

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And here is how one the author of Section 1 introduced it:

“{The Fourteenth Amendment’s} first clause, {which} I regard as very important . . . relates to the privileges and immunities of citizens of the United States . . . . To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all of the people; the right to keep and bear arms. . . .

…{T}hese guarantees . . . stand simply as a bill of rights in the Constitution … States are not restrained from violating the principles embraced in them …. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”—Senator Jacob Howard introducing the Fourteenth Amendment to the Senate

Source: Yale Professor Amar. Akhil Reed Amar, The Bill of Rights, Creation and Reconstruction (Harrisonburg, VA: R.R. Donnelley & Sons Company, 1998), 185-6 (emphases supplied).

The Amendment defined citizenship--explicitly overruling Scott. That much we agree with the Amendment on. But the rest of Section 1 only made things worse. It quoted the Court’s “privileges” and “immunities” language and made clear that the full rights of citizenship belonged to all of the citizens. That would imply that all citizens could keep and bear arms in every state!

It gets worse. The Framers knew exactly what they were doing. They said that “The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees”—the first eight Amendments of the Bill of Rights.

What a travesty! We have the ridiculous spectacle of a right of the sovereign states being enforced against the states themselves!!! How can Congress be empowered to enforce a state’s rights against that very state?! Yet that is what the Amendment does. Read it for yourself:

Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Given our premise, that is stupid, and illogical, and self-contradictory and wrong. But it is still legitimate.

You see, the Framers of the Fourteenth Amendment are right by definition. If next year an Amendment were ratified that said that the Third Amendment means only that soldiers may not be quartered in citizens’ homes in times of peace during leap years,—and thus quartering during peace is legal most years—that would be the new meaning of the Third Amendment. It wouldn’t matter what Madison or the original signers meant.

So I have a simple question for those who disagree with Heller. What do you think of the Fourteenth Amendment? What do the words of the Amendment mean? What do the words of the author mean? Did the people who framed it misconstrue their own words?

It seems to me that whatever the Second Amendment originally meant, it now means that there is a personal, individual right to keep and carry arms, enforceable against the all of the states—Illinois, New York, and California included.

What do you think, and why?

[cabluedem]

1. There is no RKBA by persons, only a bonafide militia so Heller was mistaken. All states can ban any

..firearms according to my readings. That means one can move to a state like MT if they want to own any gun they wish. Let those of us in our states regulate guns as we need too. Hopefully in his second term Obama will sign a permenant ban on all assault weapons named by model and type so that there will be no question what weapon is being outlawed no matter the modifications made to make these weapons of war "legal".

[TPaine7]

2. I understand your policy preferences, but...

What do you think of the Fourteenth Amendment? What do the words of the Amendment mean? What do the words of the author mean? Did the people who framed it misconstrue their own words?

<stupid typo>

[pipoman]

3. Obama would likely sign such an

ineffectual, feel good, do nothing bill. Good luck getting the Congress and Senate to send it to him. And you seem to be contradicting yourself here..first you say, "Let those of us in our states regulate guns as we need too.", then you say, "Hopefully in his second term Obama will sign a permenant ban on all assault weapons named by model and type...". Which is it? Do you want to allow for state sovereignty on this issue, or do you want federal legislation on it?

[Tim01]

4. So you are correcting the U.S. Supreme court.

I don't think so.

[Davis_X_Machina]

5. Dred Scott.

Plessey.
Lochner.
Bowers v. Hardwick
Furman v. Georgia
Gregg v. Georgia.

Happens all the time.

[TheWraith]

77. Actually it almost never happens unless there's a gross injustice.

The cases you mention are a handful out of thousands handled by the SCOTUS. Only in cases where there's been an obvious injustice, usually manifested by changing social attitudes, is there likely to be an overturning of previous rulings.

Plus, Gregg v. Georgia did not overturn a previous SCOTUS ruling, it clarified what definitions of capital punishment would meet a test of constitutionality.

[Euromutt]

14. Bush vs. Gore?

Let's not pretend the SCOTUS doesn't ever get it wrong.

[TPaine7]

22. Self Delete

[gorfle]

6. On militias.

Questions:

What was the intended role of militias in the Founders day?

Where are those militias today?

[Statistical]

7. For anyone doing any reading on the subject it is very clear (of course antis don't like history)

Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people. --- Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.

Whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them;nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it. --- Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.

O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone...Did you ever read of any revolution in a nation...inflicted by those who had no power at all? --- John Henry, Virginia Ratifying Convention, 1788

(John Henry was responding somewhat snarkily to another delegate who voiced the idea that as long as their were armories individual citizens didn't need protection to keep arms)

When the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually. I ask, who are the militia? They consist of now of the whole people... --- George Mason, Virginia Ratifying Convention, 1788


All we have are words. Words in public records. Words in newspapers. Words in speeches. Those words however pain a picture for us of the prevailing beliefs at the time of ratification. They provide insight to the meaning of the 2nd. The militia consisted of all freeman.

[Hoopla Phil]

10. Changing the definition of "militia" to suit your wish does not change

the intent of those that wrote the 2A.

[paulsby]

12. and if they said

"the right of the militia to keep and bear arms" you might have a point.

the right is referenced as a right of the PEOPLE, not the militia.

[Hoopla Phil]

19. I think that is what I said. lol

[michreject]

11. And many will ignore the order

The Heller decision had a little caveat in it that protect weapons in common usage. The AR-15 fall into that protected category.:party: :toast:

[friendly_iconoclast]

17. You contradict yourself.

That means one can move to a state like MT if they want to own any gun they wish. Let those of us in our states regulate guns as we need too.

Note: emphasis added

OK, that's your position.
In the next sentence, however, you call for Federal regulation:

Hopefully in his second term Obama will sign a permenant ban on all assault weapons

What do you want? The "Montana" model, or the "Federal assault weapon ban" model?

You also haven't told us why you think the RKBA isn't covered by the Fourteenth Amendment.

Are there any other Constitutional amendments that you believe aren't incorporated under the 14A?

[bossy22]

18. your arguement is an originalist one

the founding era meaning of the second amendment may be a militia one, but today it is mostly understood to be an individual right. Constitutional protections change over time...just look at abortion and birth control, in the late 19th and early 20th century you'd be hard pressed to find a court that would recognize a right to abortion/birth control (in fact most states had bans on both), but in the latter half of the 20th century, a court did find that right

original meaning is important, but it isnt where the discussion should end. Heller might have been decided wrongly if it was decided 200 years ago, but it was definitely decided correctly in the present times

-also, there is credence to the argument that public opinion plays a large role in rights under the constitution...most often courts will "find" a right if the great majority of the country believes they have that right (3 out of 4 americans believe the second amendment protects the rights of private individuals rather than of a militia)...thats how our right to privacy came about

[Statistical]

23. It isn't even an originalist view.

It is just a whacked out anti view.

I recommend anyone interested to read "The founder's 2nd amendment".

Anyone who reads that cover to cover can simply not come away with a logic argument that the 2nd doesn't protect an individual right.

Newspapers, existing British common law, the outrage of the colonists when their weapons were seized (why would they be outrages if a pre-existing right didn't exist), court records, transcripts for ratification conventions, speeches, diary entries, letters between the founders.

There is such an overwhelming amount of evidence that even the founders believed in a individual right.

Most law texts are quickly moving away from even considering the "collective right" nonsense.
Within 10 years people mumbling about "collective rights" and "only in a militia" will sound as progressive and intelligent as those talking about a "master race" and "the south will rise again".

There simply is NO EVIDENCE, none whatsoever that the founders believed the 2nd required militia service. It is more like keeping guns leads to an effective militia. Just as allowing citizens to read leads to an effective electorate. However anyone suggesting that reading be limited to civics books or only to registered voters come off as unhinged.

[rl6214]

20. "Assault weapons" are not weapons of war

And thank God your opinion is not the one that matters.

[TheWraith]

76. You are wrong in SO many ways, it's not even funny.

First off, your title is wrong. The right to keep and bear arms is individual. Every original piece of evidence and all major SCOTUS rulings have reenforced this. There's really no question about it, and frankly I don't see that you're more qualified to speak on it than the Supreme Court.

Two, your readings are incorrect--states cannot ban any firearm any more than they can ban being Catholic, or gay, or left-handed.

Three, the last "Assault Weapons Ban" also named weapons by model and type. You know what the problem is? There is no definition as to what an "assault weapon" is. Never has been. It's a scare term used to refer to otherwise ordinary rifles. You can't ban "guns that look scary," or "guns that vaguely resemble something once used by a military." If you feel differently, please clarify what "assault weapon" means in EXACT terms.

Four, "assault weapons" are not "weapons of war." No army in the world would ever think of using them. They're hunting rifles knocked off from designs tested in the military--rather like the difference between a civilian Jeep and a HUMMVEE. They're not even terribly good hunting rifles, but that's beside the point.

[X_Digger]

8. Interesting take on the issue..

I've often referred to the companion legislation that passed with the 14th amendment as a validation that yes, they did want individuals to have the right to bear arms independent of the militias.

If you want an interesting read on how we got into this selective incorporation mess, start with the Slaughter-House cases.

[Hoopla Phil]

9. Heller WAS correctly decided. Just look at all the reasons provided

in the decision. The intent of the 2A is to grantee persons (just like the other 9) individual rights. For a person to say otherwise that person must ignore all the writings of the people that wrote the amendment. I believe that is considered "intellectual dishonesty".

[X_Digger]

13. Hold up.. deeper point

Even IF Heller were decided wrongly based on interpretation of the founders' intent, the commentary at the time as well as the wording of the companion legislation to the fourteenth would support an individual rights interpretation. And the fourteenth itself protects us from the states' infringement of those rights.

So if the original second amendment doesn't get ya, the text around the 14th will.

(At least that's my take on the OP.)

[TPaine7]

15. Exactly. N/T

[TPaine7]

21. To clarify

the 14th Amendment, read in its historical context, is saying explicitly that individual citizens have the right to keep and carry arms in every state.

The Framers quoted the "privileges" and "immunities" language of the Dred Scott abomination in order to overturn it--and to defend the right to keep and carry arms throughout the US against the states.

[Statistical]

24. You got it exactly right.

The antis have run out of maneuvering room on this one.

History supports an originalist view that the 2nd applies to individual citizens.
However for the sake of the antis lets pretend it doesn't.

Heller references both originalist view and contemporary view that the 2nd ensures not just defense of state but also defense of self so EVEN IF an originalist view doesn't support individual RKBA (which it does) the 2nd STILL DOES.

If we give the antis 2 mulligans and say both originalist view doesn't support RKBA AND there is no contemporary support for the 2nd the 14th still applies.

I guess you have noticed you only get drive-bys.

They have no logical arguments. They can't reach any conclusions based on history.
They can't explain why it even makes sense that the 1st, 3rd, 4th & 5th apply to individuals & to the states but the 2nd doesn't.

So they just make unsupported statements
"guns kill"
"<something about penis>"
"only in a militia"

of course the weak rebuttal should show that they haven't even thought about it.
They just want it to be. Like I want a million dollars but have no logical reason why someone owes me it.

[TPaine7]

16. Where are the usual suspects?

Why haven't they shown up to defend their theory against the Fourteenth Amendment?

[thread-bear]

25. settled law

I'm pretty sure Obama's supreme court nominee {Satomayor?} has told senators that an individual's right to bear arms is "settled law" I certainly hope so. Hopefully,we can convince people of all parties that all constitutionally protected freedoms are important,regardless of how ignorant{albeit very nice and well-meaning} the people are of the history of this country and human nature.

[TPaine7]

26. Individual? Yes.

Enforceable against the states? That's another story.

From what I've read, it appears that the nominated justice has a difference of opinion with the Framers of the Fourteenth Amendment about its meaning.

[jgraz]

27. What? A 5-4 decision of the Roberts Court wrongly decided? You must be joking

Especially when Scalia writes the decision -- those are always above reproach. (Gun forum, always remember the :sarcasm: tag)

The problem with your argument is that the Fourteenth Amendment says NOTHING about an individual RKBA. Not one word. If you're going to repeal or alter -- or even refine -- the meaning of a constitutional amendment, don't you think you should refer to it at least once in the text?

The purpose of the Fourteenth Amendment was specifically to overrule Dred Scott and grant civil rights to all citizens. It says nothing about changing or reinterpreting existing civil rights.

In fact, proposed clauses directly referring to an individual's right to bear arms for self-defense were explicitly excluded from the amendment, just as they were when the Second Amendment was written.

http://www.constitution.org/col/intent_14th.htm

[Statistical]

28. lol. you are sad. not sure which is worse your reinvention of the 2nd or the 14th.

The collective rights junk has been debunked as anti-rights propaganda.

There is no historical basis to conclude the 2nd is connected to militia service.
EVEN THE DISSENTING JUDGES agree the 2nd protects an individual right.

[jgraz]

29. Wow, since you said so, it must be right

How's about you learn to actually discuss issues like an adult and check back with us?

[Statistical]

30. US? What US?

Your the only one clinging to this outdated belief system.

Historical documents provide evidence the intent of the 2nd was an individual right.
There is no evidence what so ever to indicate it isn't.
75% of the population believes the 2nd protects and individual right.
(Only 35% of the country owns firearms so a substantial portion of non gun owners accept reality).
The Supreme Court has ruled the 2nd is an individual right.
Even the 4 dissenting judges believe the 2nd is an individual right.

There is no "us". Look around, you are like a skeptic still claiming the world is flat a century after Magellan sailed around it.

[jgraz]

31. "Your (sic) the only one clinging to this outdated belief system"

No, I'm one of the few posting on this forum who is not a pro-gun ideologue.

Historical documents provide evidence the intent of the 2nd was an individual right

And other historical documents prove that the "individual" right is severely limited in scope. Read the Stevens dissent to Heller.


There is no evidence what so ever(sic) to indicate it isn't.

Exactly wrong, given your stated interpretation of "individual right". The Second Amendment expressly omits a RKBA for personal self-defense. Read the Stevens dissent to Heller.


75% of the population believes the 2nd protects and(sic) individual right

And a majority of the population is against gay marriage. That doesn't make them right. Argumentum ad populum is never valid.


The Supreme Court has ruled the 2nd is an individual right
Correction: the reactionary, Republican John Roberts-led court handed down a poorly-reasoned 5-4 decision that causes more problems than it solves.

This may be a case of "be careful what you wish for", since Scalia expressly affirms the constitutionality of "longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms" and " historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"

The majority opinion also reaffirms the right of states to prohibit the carrying of concealed weapons. In other words, in striking down the DC ban they explicitly affirmed enough RKBA restrictions that a more carefully-written handgun ban could be easily adopted by the District.


Even the 4 dissenting judges believe the 2nd is an individual right.
Incorrect. Stevens clearly states that the Second Amendment "protects a right that can be enforced by individuals", which is very different than saying that the Bill of Rights grants individuals the RKBA for personal use.

He goes on to say:

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

Wow, is that the kind of "individual right" you've been arguing for all along? If so, you and I are in almost complete agreement.


There is no "us". Look around, you are like a skeptic still claiming the world is flat a century after Magellan sailed around it

More might-makes-right bloviating. Skinner gave you your own little playground so you don't bother the nice people in GD. Naturally, all the pro-gun ideologues are going to gravitate to this forum.

In effect, you're sitting at the kids' table, arguing that, clearly, the majority of people are under 4 feet tall. Not very persuasive.

[Statistical]

33. Well that is a step in the right direction....

So you believe the 2nd protects my individual right (as in Statistical's right to own a firearm) as long as it is connected to service in the milita?

If so you are aware there is an informal militia. If the only way for me to have a firearm was for me to create the Hamptom Roads irregular militia you would work to ensure me and my fellow militia men (and women) have a right to keep and bear arms?

The unit may only meet once per qtr for drill. Membership would be open to anyone with minimal dues as long as they have no felony conviction or anything else that would preclude firearms use. Of course all members would need to be able to take an oath to defend the Commonwealth and Constitution of VA against all enemies foreign and domestic and obey the orders of the governor of VA.

If you believe the 2nd protects that right then Heller is at least a moderate victory in changing the opinion of reactionaries. At a minimum no matter what happens (even a partial reversal of Heller removing self defense as a legitimate protected right) I know I will have access to firearms.

If you wouldn't argue to protect that then quoting Stevens is simply hypocritical. You are chosing an argument your neither believe in or agree with simply because it is unlikely to allow citizens to keep firearms.

So which is it:
Do I have an individual right to keep & bear firearms in connection with informal militia service? Or are you just spewing hot air again?

[jgraz]

36. It's only a step in you understanding what I've been saying from day one

There is OBVIOUSLY and INARGUABLY a RKBA as part of a well-regulated militia. In one of my first posts on this forum, I suggested exactly the kind of militia you're describing (though, I'm sure, with more restrictions than you would probably like to see).

My idea for a sane gun policy is not one that removes everyone's ability to own firearms, just one that limits the ability of crazies and dumbasses to own firearms.

How do you do that? The first step is increasing community. The problem is not individual gun ownership as much as it is *isolated* gun ownership. Someone who is required to be part of a community militia has neighbors to support them, reducing the likelihood of suicide or crackpot shootings. And someone who is trained in law enforcement techniques of violence de-escalation is less likely to create a situation in which they feel the need to shoot someone.


There's a lot more to the issue than just a blanket acceptance or denial of RKBA. It would be nice if we all could discuss those issues without constantly pissing on each other.

[friendly_iconoclast]

35. I'm glad you and Stevens agree militia members can keep and bear arms

What does Federal law say *who* is in the militia?:

Laws: Cases and Codes : U.S. Code : Title 10 : Section 311


TITLE 10 - ARMED FORCES
SUBTITLE A - GENERAL MILITARY LAW
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - 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.

Using Miller and Stevens' dissent in Heller as a guide, it seems you just agreed a huge
chunk of the population may keep and bear machine guns.

Once we get rid of the ageist and sexist language in the above, a lot more people will be able
to keep an M4 in their gun safe...

[jgraz]

37. You're forgetting that pesky "well-regulated" bit.

I've always been in favor of *both* parts of the Second Amendment. Allowing some isolated hotshot to buy himself an M4 is not my idea of well-regulated

[Statistical]

43. oh come on...

jgraz,

you need to wakeup earlier than that pull that kinda crap.

Well regulated has NOTHING to do with regulation.

In 18th century the usage of "well regulated" means well functioning, or well maintained, or operating as expected.

So a well functioning militia requires that people have the right to keep & bear arms.

Without citizens having access to firearms the founders believed it was not possible to have a functional army.

Well regulated as in My colon is well regulated.

[jgraz]

53. Absolutely incorrect

That is a favorite talking point of the far-right militia sites, but it is not supported by any evidence.

Check out Alexander Hamilton in Federalist 29:

THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.

Note the "common defense" language. It should sound familiar to anyone who listened to the Schoolhouse Rock song on the preamble to the Constitution.

He continues:

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. (...) This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS." (emphasis in the original)

Now tell me, does the "national authority" have power over how you deal with your colon? Cuz if so, I think we need to take a vote on getting you to eat more fiber.

[Statistical]

54. Not supported by any evidence.... don't need to go far.

Same paper, different paragraph.

"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

So lets substitute "well regulated" with the two possible meanings:

To oblige .. the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a militia , would be a real grievance to the people

Hmm? Doesn't make much sense does it?

To oblige .. the citizens, to be under arms for the purpose of going through military exercises ..., as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a militia, would be a real grievance to the people

Now that makes sense!

Come on you have to give me credit for using the cite YOU provided to show it just isn't what did you call it, "right wing militia sites" that use well regulated to mean well functioning.

The same cite! That has to be worth bonus points. :)

Of course it isn't fair that I have a copy of 'The founder's 2nd amendment'. Lots of good stuff in there.

[jgraz]

55. Um... your two examples are identical

I'm sure whatever point you were trying to make would have been brilliant.

However, we don't need to play Mad Libs with the Federalist papers. Hamilton is explicit in what he means by "well-regulated".

If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security.

I'm guessing he doesn't mean "a bunch of random hicks running around with guns".

[friendly_iconoclast]

56. Hamilton also said it would only be reasonable to assemble them 2x a year

Other than that, they can keep and bear their "suitable for miltia use" firearms and go about their business,

in accordance with the Dick Act (the law cited in #35), and the decision in Heller.


So, with your citation of Hamilton in Federalist 29, you have conceded the legitimacy of tens of millions
keeping and bearing AR-style centerfire rifles, with the caveat they must show up once or twice a year
for a muster day.

Added on edit: They'd also get to keep and bear large-caliber, semiautomatic handguns with large capacity
magazines, cuz that's what the armed forces issue these days....

[jgraz]

66. Yes, because the intention was to avoid a professional standing army

Now that we actually have a standing army, maybe we need to give the whole RKBA thing another look...

[Statistical]

68. You are free to give it another look

but just because the 2nd isn't "useful" in your opinion doesn't mean you can pretend it doesn't exist.

I would say freedom of the press isn't very useful today when a tiny consortium of companies control the free flow of information.
Doesn't mean we get rid of the first.

If you think the 2nd is obsolete, outdated, or unnecessary that is perfectly fine.
If you want to repeal it via a constitutional amendment that is fine also.
If you want to have a defacto repeal it by pretending it doesn't exist then that is where it isn't ok.

[Statistical]

58. Oops. msg board replaced the brackets.

So lets substitute "well regulated" with the two possible meanings (bold replacement mine):

To oblige .. the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a militia under government control and oversight, would be a real grievance to the people

Hmm? Doesn't make much sense does it?

To oblige .. the citizens, to be under arms for the purpose of going through military exercises ..., as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well functioning militia, would be a real grievance to the people

That makes a little more sense.

The paper you referenced to "prove" well regulated could ONLY mean govt oversight used both definitions of "well regulated" within the span of a few pages.

Even if militia was subject to some regulation it was not unusual during early history of our country for informal militia to only muster once or twice a year (to determine number of troops & arms available). The members brought their weapons from home, and wore no uniforms. Informal militias often had overlapping areas they mustered from, had little direct govt oversight, and often used incompatible standards (size of elements, ranks of officers, formations, etc).

Not the level of strict oversight you are thinking of (aka National Guard).

[TPaine7]

32. So let me see...

The problem with your argument is that the Fourteenth Amendment says NOTHING about an individual RKBA. Not one word. If you're going to repeal or alter -- or even refine -- the meaning of a constitutional amendment, don't you think you should refer to it at least once in the text?

So the 14th Amendment should have individually repeated each right of each of the first eight Amendments of the Constitution?

The purpose of the Fourteenth Amendment was specifically to overrule Dred Scott and grant civil rights to all citizens.

We agree on this with the exception of the word "grant." Black people already had those rights. The Amendment simply recognized that reality. (The idea that government grants rights is extremely dangerous. It puts the state in the place of God--"The Lord giveth and the Lord taketh away, blessed be the name of the Lord.")

The Amendment did overrule Dred Scott on civil rights, or as they termed it, "privileges and immunities of citizens." Dred Scott listed several of these civil rights:

1) exemption from arbitrary and discriminatory laws
2) the ability to travel freely in every state
3) full liberty of speech
4) the right to hold political meetings
5) the right to "keep and carry arms wherever they went"

So yes, it is absolutely true that the Amendment "overrule{d} Dred Scott and grant {recognized these} civil rights {of} all citizens."

It says nothing about changing or reinterpreting existing civil rights.

False. It changes the scope of enforcement. Whereas before, for instance, only Congress could make no law respecting an establishment of religion, now states may not make such a law. Furthermore, Congress now has additional enforcement authority--it may make laws protecting state citizens and visitors from state efforts to establish religion.

Note that the term "establishment of religion" does not appear in the Fourteenth Amendment.

In fact, proposed clauses directly referring to an individual's right to bear arms for self-defense were explicitly excluded from the amendment, just as they were when the Second Amendment was written.

Laws--especially constitutions--are tightly worded. What would you say to a Dominionist who claimed that Mississippi could form a state church because the Fourteenth Amendment says nothing about an "establishment of religion"?! Change a few words and you will probably have my answer.

From your source:

From all of the above it should be clear that all of the rights recognized by the U.S. Constitution are not only rights against state action, but that the Fourteenth Amendment authorizes Congress to legislate protection of such rights against state action, and grants jurisdiction of the federal judiciary over cases between citizens and their states involving them. Among those rights are the right to keep and bear arms and the right to a grand jury indictment. While the Supreme Court might reasonably have confirmed this in any given case by only declaring such rights as are minimally needed to render a decision, it is important that they not fail to do so for all the rights that are issues before the court.

I absolutely agree with your source (and ostensibly with you) that:

1) The Fourteenth Amendment protects individuals in legal contests against their states over constitutional rights
2) Among those rights of citizen so protected is the right to keep and bear arms

Your source is based on the writings of a very good scholar:

If there is any doubt as to what the framers of the Fourteenth meant by their words, here are some more of their words, taken from debates in Congress and the press during the drafting and ratification debates on the amendment. What follows has been heavily based on Halbrook, Stephen P., Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, Westport, CT: Praeger, 1998.

I suggest you go straight to the original; you are definitely on the right track reading Halbrook.

[jgraz]

34. Once again, the question is about an individual RKBA for personal use

The Second Amendment expressly omits such a right, and the Fourteenth Amendment in no way changes that.

[TPaine7]

38. You have it exactly backwards

The Second Amendment expressly omits such a right, and the Fourteenth Amendment in no way changes that.

The Bill of Rights does not "expressly omit" rights. It expressly forbids government meddling in certain areas. You are operating yet again from the false premise that the government "grants" rights.

Even if it were true that the Second Amendment granted rights to states to have militias while "expressly omitting" a personal RKBA, the Fourteenth Amendment would have changed that. You see, the non-personal bearing of arms took place in state militias. But the Fourteenth Amendment expressly gave Congress the authority to enforce the RKBA against the states. It is impossible to enforce a "states right" against the state. Hence, after the Fourteenth Amendment at the very least, RKBA is not a collective states right.

And the case that has sometimes been made that the Second Amendment protects an individual right to join a constitutional militia is simply revisionism.

But I notice that you are carefully avoiding several pertinent issues.

1) The fact that the language of the 14th Amendment explicitly recognizes the "privileges and immunities" of individual citizens, one of which is clearly the right to keep and bear arms.
2) The fact that the Framers of the amendment explicitly said that the Amendment enforced the individual's RKBA against the states
3) The fact that your source clearly supports the above.

Would you care to address any of these facts directly?

[jgraz]

41. I don't think so

The Bill of Rights does not "expressly omit" rights. It expressly forbids government meddling in certain areas. You are operating yet again from the false premise that the government "grants" rights.

Not at all. I'm pointing out that the framers of the Second Amendment could have chosen to forbid government intervention in an individual's RKBA for personal use. There was ample precedent for this in the wording of the Declarations of Rights of Pennsylvania and Vermont. They chose not to do so.

Your reasoning seems to be that because a right is *not* mentioned in the Bill of Rights it somehow automatically exists. The framers also omitted any mention of my inalienable right to pee in public. Does that somehow mean the government cannot prevent me from doing so?

Even if it were true that the Second Amendment granted rights to states to have militias while "expressly omitting" a personal RKBA, the Fourteenth Amendment would have changed that. You see, the non-personal bearing of arms took place in state militias. But the Fourteenth Amendment expressly gave Congress the authority to enforce the RKBA against the states. It is impossible to enforce a "states right" against the state. Hence, after the Fourteenth Amendment at the very least, RKBA is not a collective states right.

No. An amendment cannot implicitly revoke part of the Constitution. If the Fourteenth Amendment was intended to overturn the "well-regulated militia" clause, the framers needed to say so explicitly. Since nothing of the sort exists, one must assume that the ENTIRE Second Amendment is still in force, not just the latter half.


And the case that has sometimes been made that the Second Amendment protects an individual right to join a constitutional militia is simply revisionism.

That case has "sometimes been made" by supreme court justices, and sometimes those justices were writing for the majority. (see United States v. Miller). The only revisionism is coming from the reactionary Roberts court in overturning settled law.


1) The fact that the language of the 14th Amendment explicitly recognizes the "privileges and immunities" of individual citizens, one of which is clearly the right to keep and bear arms.

Nothing could be less clear. The fact that the writers used the same term of art as the Dred Scott decision in no way means that they were endorsing the exact same "privileges and immunities" enumerated in that decision. And even if that were the case, nowhere in the previous decision is the RKBA for personal use mentioned.

2) The fact that the Framers of the amendment explicitly said that the Amendment enforced the individual's RKBA against the states

The framers also wanted to keep the rights of citizenship from Native Americans and Chinese immigrants. Are we also to assume the Fourteenth Amendment supports that without actually saying so?


3) The fact that your source clearly supports the above.

If my source supports anything, it's the idea that whatever the RKBA means, it exists and is supported by the Fourteenth Amendment. Nothing is said about individual rights, personal use or the application of the 2nd Amendment's preamble.

[TPaine7]

44. Wow

Not at all. I'm pointing out that the framers of the Second Amendment could have chosen to forbid government intervention in an individual's RKBA for personal use. There was ample precedent for this in the wording of the Declarations of Rights of Pennsylvania and Vermont. They chose not to do so.

They said that because a well regulated militia was necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. The security of a free state is the reason the right should not be infringed. It is not the reason the right exists. The people have the right to keep and bear arms, the militia is only a reason not to infringe the right. There are other reasons not to infringe the right, among them the fact the government exists to secure rights. The Second Amendment does not exhaust the reasons to respect the people's right.

Your reasoning seems to be that because a right is *not* mentioned in the Bill of Rights it somehow automatically exists. The framers also omitted any mention of my inalienable right to pee in public. Does that somehow mean the government cannot prevent me from doing so?

My argument was that "omission" of a particular right from the Bill of Rights signifies nothing. That is all I was saying. Beyond that, the terminology "the people" always refers to rights that each individual is entitled to on an individual basis (and yes, even freedom of assembly is a right each individual is entitled to on an individual basis). So actually, they chose to do so, just not in language you recognize and approve.

No. An amendment cannot implicitly revoke part of the Constitution.

That has the ring of truth, but I cannot recall learning it from a legal authority. Can you cite a competent authority?

No. An amendment cannot implicitly revoke part of the Constitution. If the Fourteenth Amendment was intended to overturn the "well-regulated militia" clause, the framers needed to say so explicitly. Since nothing of the sort exists, one must assume that the ENTIRE Second Amendment is still in force, not just the latter half.

The "well regulated militia clause" need not be overturned. It simply says that a well regulated militia is necessary to the security of a free state. That is an observation, not a command. It can neither be obeyed nor disobeyed.

{Me:} And the case that has sometimes been made that the Second Amendment protects an individual right to join a constitutional militia is simply revisionism.

That case has "sometimes been made" by supreme court justices, and sometimes those justices were writing for the majority. (see United States v. Miller). The only revisionism is coming from the reactionary Roberts court in overturning settled law.

Please cite Miller to support your claim. If a person applies to join a state militia and is turned down, which passage of Miller should they cite to bring suit under the Second Amendment?

Nothing could be less clear. The fact that the writers used the same term of art as the Dred Scott decision in no way means that they were endorsing the exact same "privileges and immunities" enumerated in that decision. And even if that were the case, nowhere in the previous decision is the RKBA for personal use mentioned.

So according to you, they overturned Dred Scott by quoting it, but you have no idea what the term of art necessarily included when they did so?!! There is no logical relationship? "Nothing could be less clear." Really?

And it doesn't help you at all that the Framers explicitly listed the first eight Amendment of the Constitution and said that protecting them from states was part of their objective?

And then, to continue along the same lines of intellectual honesty, you claim that this is not a description of personal arms use:

It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

So if a citizen of the state of Ohio enters the state of Illinois and travels to and fro at her whim--carrying arms wherever she goes--she can do so as part of the Ohio militia? On active duty? Is that your point? Amazing!

And notice that contrary to your theory, the Court based the right in state citizenship not membership in a militia, or in any other group for that matter.

State citizenship = militia membership => RKBA everywhere one goes on personal business all times of day and night. But of course the right is not personal, wink, wink.

It may not be rooted in reality, but it's growing on me.

The framers also wanted to keep the rights of citizenship from Native Americans and Chinese immigrants. Are we also to assume the Fourteenth Amendment supports that without actually saying so?

I don't know this history well. But given that Native Americans are US citizens, that would violate the explicit text of the Amendment, wouldn't it? And of course, naturalization is not a right. The children of immigrants of all races are protected by the explicit text of the Amendment.

If my source supports anything, it's the idea that whatever the RKBA means, it exists and is supported by the Fourteenth Amendment. Nothing is said about individual rights, personal use or the application of the 2nd Amendment's preamble.

You need to read your own source.

[jgraz]

57. Your Miller citation

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

If anyone has any familiarity with Miller, they know this passage. Were you just yanking my chain or have you actually never bothered to read the opinion?

[Statistical]

59. So glad you brought this up.

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Do you know what stands out here (my emphasis)?

The courts ruled based on the WEAPON not the individual.
Miller was part of NO MILITIA.

If as you claim the 2nd is strictly tied to militia service then they should have ruled more broadly.
If the right in the 2nd only applies to people in a militia the courts could/should have said exactly that.

Here would be the perfect case. Miller claims 2nd as a defense. Miller is not in militia. Perfect setup to rule clearly that one must be in a militia to be protected under the 2nd.

Why didn't the court rule something like "In the absence of any evidence to show that MILLER has a reasonable relationship to militia membership we cannot say that the 2nd guarantees his right....".

That seems to destroy your militia service is required argument. Instead it seems to indicate the PURPOSE of the 2nd is a well regulated militia however the RIGHT protected is right for all people to keep & bear arms. A militia drawing from a population well training & experienced in firearms would be a strong functional militia.

The courts found that the RKBA protected by the 2nd leads to a population who is well skilled & equipped in military arms. That is necessary for a functional militia. Given that militias spend very little (1-2 musters per year) in formal training any militia that relied only on skills acquired in service would not be functional.

Miller only fault was he chose a weapon which the courts believed had no connection to military service. Sadly if Miller had competent counsel they might have ruled otherwise. Short barreled shotguns have been used by the military in a variety of rules. Most recently in Iraq as a breaching device. Given the very narrow ruling and specific wording in Miller had Miller been caught with say a .45 sidearm or a carbine it is possible they would have ruled in his favor (even though he was dead at the time).

A well regulated militia being necessary to the security of a free State = we need a functional militia to protect the state
the right of the People to keep and bear arms shall not be infringed. = the peoples RKBA leads to a functional militia.

If your unsupported view was right the courts could have EASILY put this question to rest and ruled Miller was not in militia so 2nd doesn't apply. Period. That would have been a powerful precedent.

Instead they rule very narrowly and said the shotgun (not the person) is not an arm that has a reasonable relationship to the efficiency of a well regulated militia.

Given that some arms do have reasonable relationship to the efficiency of a well regulated militia.
Those arms would then be protected.

Of course Heller expanded the scope of 2nd but even if Heller didn't exist Miller doesn't support your claim that militia service is required in order for one to have a protected RKBA.

[Euromutt]

60. I'm going to take issue with one minor point here

Miller only fault was he chose a weapon which the courts believed had no connection to military service. Sadly if Miller had competent counsel they might have ruled otherwise. Short barreled shotguns have been used by the military in a variety of rules.

Miller's weapon was a Stevens double SxS, and I think it's a fair assessment that a sawed-off double had indeed not found even uncommon use in the armed forces. The Winchester M1897s and M1912s used in the first world war had 20" barrels, and short-barreled "entry guns" and "breaching weapons" were concepts that had not yet been invented by 1939.

I think the court's ruling, absence of Miller and his legal counsel notwithstanding, was correct where Miller's specific firearm was concerned. The problem is that it was a very narrow ruling (as rulings on constitutional issues are wont to be) which has been interpreted as far broader than it actually was (i.e. applying to all SBSs, as well as SBRs, machine guns and AOWs), and that the ruling has been superseded by the evolution of military small arms. We're seventy years along since Miller; if the SCOTUS had taken seventy-year old military technology as its standard, it might have ruled that anything more advanced than a Spencer carbine had "some reasonable relationship to the preservation or efficiency of a well regulated militia," the invention of bolt-action and semi-automatic rifles in the interim notwithstanding.

[Statistical]

62. Good point.

I wasn't familiar with the exact shotgun model used.

You are right that it has been interpreted more broadly than the ruling would suggest.

Many antis for a while were claiming that Miller = no individual right under 2nd.

Which isn't at all what Miller said.

If you read the rulings from both Miller & Heller, Heller didn't directly overturn Miller because the question & scope of Miller was so narrow.

[jgraz]

63. The Miller case dealt with a law about weapons, not people

To rule on Miller's personal right to a firearm would have been as relevant as ruling on his shoe size. However, the court does set out its criteria for evaluating future Second Amendment cases: a reasonable relationship to the preservation or efficiency of a well regulated militia.

[Statistical]

71. No the WEAPON must have a reasonable relationship to the preservation of a militia.

Anything beyond that is your reading.

Miller claims the 2nd protected HIM from the law regulating the WEAPON.

The courts could have ruled the:
2nd is limited by person (not Miller because he is not in a militia)
2nd is limited by weapons (not sawed off shotgun because it is not used by a militia)
2nd is limited by persons & weapons (neither Miller nor the shotgun).

They chose a ruling based on the weapon.

Despite a failed shoe size analogy the courts were within the power to provide clarification.

The 1968 GCA strictly regulated sawed off shotguns, but also regulated weapons useful to a militia such as machine guns.

The narrow ruling clearly indicates that the weapon have a 'a reasonable relationship to the preservation or efficiency of a well regulated militia'.

However the unanswered question would involve a machine gun. A machine gun doesn't meet the criteria of the ruling.

Familiarization with and practical experience with a machine gun does have a 'a reasonable relationship to the preservation or efficiency of a well regulated militia'. Would Miller be authorized to own a machine gun despite the 1968 GCA (and now the 1986 ban)?

The court left that question unanswered. Why?
If all weapons can be regulated or banned by the govt for all persons not connected to militia service why not say so?

The court was unwilling to make such a decision.
Likely because nothing in the opinion indicates a strong link between militia service and firearms as you suggest.

Three rules of thought prior to Heller:
#1) Only states have a right to own form militias and that have complete control over firearms. Even members of militias have no individual right.
#2) Members of militia are the only ones who have a protected right to own firearm.
#3) Citizens have a protected right to own firearms because that leads to a capable militia.

#1 has been totally discredited.
None of the dissenting judges even went there.

Stevens opinion in Heller is more along the lines of #2. An individual right exists but it is connected to service in a militia.
The majority in Heller is more along the lines of #3.

Miller is a really bad case because it is so narrow we really don't know definitively how the court felt on the larger issue.
If the court felt there was no individual right it makes little sense to rule as they did. Instead their logic (saying a specific weapon is not protected) leans towards #3.

[TPaine7]

69. Wow

Just to refresh your memory, here is the exchange:

{Me:} And the case that has sometimes been made that the Second Amendment protects an individual right to join a constitutional militia is simply revisionism.

{You:}That case has "sometimes been made" by supreme court justices, and sometimes those justices were writing for the majority. (see United States v. Miller). The only revisionism is coming from the reactionary Roberts court in overturning settled law.

{Me:}Please cite Miller to support your claim. If a person applies to join a state militia and is turned down, which passage of Miller should they cite to bring suit under the Second Amendment?

{You:}

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

If anyone has any familiarity with Miller, they know this passage. Were you just yanking my chain or have you actually never bothered to read the opinion?

Do you imagine that your citation actually answers my original point--or my subsequent question? You think the Supreme Court's discussion of their lack of knowledge of the military usefulness of sawed-off shotguns shows that the Second Amendment protects an individual right to join a constitutional militia? Really?! Or do you think that if someone tried to join a state militia and was rejected, they could quote this passage in order to support their constitutional right to join? Do you actually imagine that they wouldn't be laughed out of court--and justifiably so? How would their argument go? Please elaborate. Pretty please.

If anyone has any familiarity with understanding of Miller, they should be able to back up their assertions with reasoning, not just quote snippets of it that have been twisted by opponents of the Constitution.

I'm trying to take your arguments seriously, but asking me if I've ever bothered to read Miller is not helping. Especially when I know full well that you've carefully avoided most of the points I made. Just saying...

[jgraz]

You may have unlimited time to respond to your own thread. I don't

Especially since I'm the only one on this thread supporting my point of view. If you ask for citations, please do it in good faith.

As for the rest of your question, it's almost a non sequitur. Suing to join a militia has nothing to do with the Miller decision or the criteria I cited. If a militia is regulated, then one assumes that it will have requirements for acceptance. If you don't meet the requirements, you don't get in. Sad day for you.


Where is the difficulty here?

[TPaine7]

72. I did ask in good faith. Your citation has no logical relationship to either

my original point or my subsequent question.

If you had a constitutional right to join a militia (my original point was that you don't) then you could sue to join one. You have no such right, therefore you can't sue. Your citation is absolutely irrelevant to that point. That is the real issue.

I respect the fact that you are the only one arguing your side. I had never seen--and still haven't seen--any passage from Miller that supported a constitutional right to join a militia. I was thus very interested to see it.

[jgraz]

75. You mean if I'm rejected by the National Guard because of my race, I can't sue?

Are you sure about that?

I wonder if you're making the most common mistake on this forum: confusing a "right" with an "absolute right". They aren't the same things, especially where the Second Amendment is concerned. No one has an absolute right to join a militia. If you can't meet the criteria, you can't join.

If there's ever been a court case challenging the right to join a well-regulated militia (as defined by the state), then I've yet to hear of it.

[TPaine7]

79. I knew you would go there.

I think if you honestly reflect on the 14th Amendment everything will become clear.

You mean if I'm rejected by the National Guard because of my race, I can't sue?
Posted by jgraz


Are you sure about that?

I wonder if you're making the most common mistake on this forum: confusing a "right" with an "absolute right". They aren't the same things, especially where the Second Amendment is concerned. No one has an absolute right to join a militia. If you can't meet the criteria, you can't join.

If there's ever been a court case challenging the right to join a well-regulated militia (as defined by the state), then I've yet to hear of it.

Remember the context. It's very clear. We were talking about bringing suit under the Second Amendment. You could most definitely bring suit under the 14th Amendment's equal protection of the laws language.

Now if equal protection of the laws protected privileges and immunities, there would be no need for the privileges and immunities language. The Amendment is saying two different things-- 1)treat every citizen of your state and every visitor from other states equally in your legal scheme and 2) respect the civil rights of all people--especially the individual, personal rights enumerated in the first eight amendments to the Constitution.

I wonder if you're making the most common mistake on this forum: confusing a "right" with an "absolute right". They aren't the same things, especially where the Second Amendment is concerned. No one has an absolute right to join a militia. If you can't meet the criteria, you can't join.

No, as I have shown you made the mistake of ignoring context. And you appear to have compounded it by conflating equal protection of the laws (no racial bias) with privileges and immunities (personal civil rights).

You are of course correct about absolute rights--but that is neither here nor there. If there was a constitutional right under the Second Amendment to join a militia, someone could sue under that Amendment.

The rest of your statement is very revealing. While it is true that there is a difference between a right and an absolute right (one being that the latter scarcely exists if it does at all), there is nothing special about the Second Amendment in that regard.

This "specialness" is a principle of anti-Second Amendment thought that is rarely expressed so explicitly. There are no special rules that can be applied to the Second Amendment to allow those who oppose the RKBA to reach their policy preferences, as fondly as some may wish there were. No legitimate ones, anyway.

[friendly_iconoclast]

81. You may already BE in the militia. The NG is only the 'organized' part of it

Go back and read the Dick Act of 1904 which established the National Guard. It says that all males
between 17 and 45 are considered the 'unorganized militia'. Sexist and ageist, true, but theoretically anyone
meeting the criteria, and not otherwise disqualified by law, is a militiaman. Maybe even you.

Anyway, what would a hypothetical rejection from the National Guard have to do with Miller or the Second
Amendment? That would be actionable under the Civil Rights Act of 1965 and the Fourteenth Amendment.

Hell, even Harry Truman's executive order desegregating the Armed Forces in the Forties would carry more weight as precedent.

[beevul]

83. Bingo...We have a winner.

"The Bill of Rights does not "expressly omit" rights. It expressly forbids government meddling in certain areas."

Exactly right.

This should sound familiar to anyone who listened to the Schoolhouse Rock song on the preamble to the Bill Of Rights:

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added : And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

http://billofrights.org/

Of course, those on that particular side of the issue have been saying for years that the second amendment wasn't what it was, and as evidenced by this thread, some still do.

I see no reason why that "some" wont be trying to do the same thing to the preamble to the Bill Of Rights as well.


In fact, I'd bet money on it. There is no alternative.

That preamble thouroughly destroys the entire argument.

[Will E Orwontee]

40. wrong jgraz . . .

The problem with your argument is that the Fourteenth Amendment says NOTHING about an individual RKBA. Not one word.

But when the proposed amendment was introduced, the right to keep and bear arms certainly was included (emphasis added).

'Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be-for they are not and cannot be fully defined in their entire extent and precise nature-to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

'Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution, or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or a prohibition upon state legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress. 

'Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States any compel them at all times to respect these great fundamental guarantees.'

One of the driving forces to enact the 14th was the southern Black Codes, disarming free Blacks and using the official state militias to do it. Remember, the feds disbanded the southern state militias because of these rights abuses . . . Seems the right to arms of new Black citizens were of greater importance than a state's "right" to organize and direct its official militia.

And incredibly, no state held up the 2nd to defeat this federal "interference."

'Splain dat!

[jgraz]

45. Many things were proposed for the amendment, including stripping citizenship from Native Americans

Should we follow any crazy-ass idea floated by the Senate? We don't today.

And for some reason, people here keep hallucinating the words "individual" and "for personal use" around the words "right to keep and bear arms". Where does it say that in ANY part of the Constitution, proposed or otherwise?

[TPaine7]

46. Right after the part where it says

that you have a right to free speech "for personal use" and assembly "for personal reasons" and petition "for personal causes" and religion "for personal spirituality" and...

[jgraz]

47. Free speech and firearms are not the same thing

Claims on this forum notwithstanding...


Can I tell a mentally ill person that they cannot worship god? Can a rehabilitated felon be prevented from lawful assembly? Both of those limits are acknowledged constitutional restrictions on any RKBA you may care to propose.

[TPaine7]

49. No two rights are the same, and the restrictions on no two right

are the same. Here are a couple more irrelevant factoids:

1) Free speech and religion are not the same thing.
2) The religious restriction on human sacrifice is inapplicable to the right to a jury trial.

So what?

Can a rehabilitated felon be prevented from lawful assembly?

I'm not sure I get what you mean, but I think the answer is yes. Released felons can be kept from using the internet, which for you or me would violate the 1st Amendment.

[jgraz]

51. And who was the one drawing bad analogies to the First Amendment?

I don't think that was me.

[TPaine7]

67. No analogy needed.

Every place in the Bill of Rights where the term "the people" occurs, it applies to individual citizens acting on their own behalf. There is no need to say "for personal use" we are already talking about individuals acting in their own behalf.

[TPaine7]

48. This is not a "crazy-ass idea floated by the Senate"

It is "The great object of the first section of this amendment." The relevant language made the cut. You are not being intellectually honest.

[jgraz]

52. Show me where either amendment says "for personal use"

[Euromutt]

61. Where have I heard that "reasoning" before?

Arguments like "it doesn't say 'separation of church and state' in the Constitution," "the word 'privacy' doesn't appear in the Constitution," "the word 'democracy' doesn't appear in the Constitution"...

[jgraz]

64. In this case, it's relevant. The Second Amendment was an attempt to avoid standing armies

In fact, since we now have a standing army, one could argue that the Second Amendment is null and void. Hmm....

[Euromutt]

80. No more than the Fourth is null and void...

... because the executive engaged in some warrantless wiretapping without anyone nailing them for it (something I'm still outraged about, but I digress). Moreover, there was already a small but standing army of Regulars in 1792. Part of the state militias' purpose was to augment the Regulars in times of crisis.

No, it's fairly simple. The Second Amendment affirms that the people have a right to keep and bear arms. The prefatory clause explains that it is in the interest of the government not to infringe upon this right, because having a citizenry that possesses and uses privately-owned arms means that, in times of the emergency (invasion, insurrection, etc.), the states and the federal government can rely on having a pool of potential recruits who already own their own firearms and know how to use them, thus removing the need to spend time and ammunition training them in firearms handling and marksmanship, and without having to arm (many of) them.

Where the federal government's power to regulate the state militias comes in is primarily in matters of equipment and training standardization. During the Revolutionary War, both the militias and the Continental Army were hampered by their members being equipped with firearms in a wide variety of calibers, which complicated logistics. And as the saying goes "lieutenants think tactics, generals think logistics." Since the militias needed to be able to called into federal service, it would make sense that the federal government should be able to set standards in equipment.

Put together, the Second Amendment could plausibly be read as meaning:
"A citizen may keep and bear any kind of weapons he likes, but at least one of the weapons he owns must be one of the following:
- a smoothbore flintlock musket in calibers .75 or .78 inch, with bayonet
- a rifled musket in caliber .45, plus hatchet"
That's just a for instance. The modern equivalent would be requiring any gun owner to own weapons chambered for 5.56x45mm NATO or 7.62x51mm NATO for rifles, 9x19mm NATO for handguns, and/or 12-gauge for shotguns. You can own others not in those calibers, but you have to own at least one firearm chambered in those calibers, so that if you need to be called to arms, the government can keep you supplied with ammo.

[TPaine7]

70. You claimed that this is not personal use:

It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

in post 41 and then carefully avoided my questions about how carrying arms in every state of the union at your whim at all hours of the day and night could not be personal use (post 44).

It is obvious that no amount of evidence will suffice to convince you against your preconceived ideas. The Amendments don't need to say "for personal use." If they did you would simply throw up some other feeble justification (like the irrelevancy that RKBA is not specifically mentioned in the text of the Fourteenth--which, to your credit, you quickly abandoned). These are not serious objections.

If someone applied this type of argumentation against any other of the first eight Amendments, you would join me in my amazement. Preposterous arguments are imagined to be respectable when wielded against the RKBA for reasons of policy preference, certainly not for their logical merit.

The entire history of the Fourteenth Amendment--as well as the text of the Amendment--shows that personal use was meant. Read your own source.

[jgraz]

73. In case you're not yet clear on this: it's the fucking DRED SCOTT decision

Can we please at least allow for the possibility that a court that would hand down such an insanely reprehensible ruling might have gotten a few other things wrong?

You're quoting the Dred Scott decision. Dred. Scott. The goal of this decision was to keep blacks enslaved. The RKBA is mentioned as a scare tactic to frighten white people with the image of armed bands of negroes running through the countryside.


What's next? You'll quote Plessy v. Ferguson to justify your right to an Uzi? Or maybe Bush v. Gore as a way to avoid background checks?


It was a bad decision. It had bad reasoning. Most people in this country list it as one of the most heinous decisions of the court. Please stop using it to back your positions.

[TPaine7]

78. You are very confused

Read post 41. You said

And even if that were the case, nowhere in the previous decision is the RKBA for personal use mentioned.

You said that Dred Scott nowhere mentioned personal use. You did. You are not keeping up with your own posts. That makes it hard for you to see when the things you yourself said are refuted. Dred Scott most emphatically did talk about personal use. In addition to the quote under discussion, Scott explicitly called the RKBA a right “of person.”

You also said this in post 27:

The purpose of the Fourteenth Amendment was specifically to overrule Dred Scott and grant civil rights to all citizens.

I agreed with the correction that the Amendment didn’t “grant” rights to blacks, it recognized the fact that they had those rights already.

But Dred Scott is just a smokescreen. You don’t accept the 14th’s Framer’s explicit listing of privileges and immunities any more than you accept Dred Scott's.

I am not depending on Dred Scott to refute your words, I am depending on your words. Please try to keep up.

[jgraz]

82. No, I've been trying to be tolerant of your "reasoning"

But I'm finally out of patience with your continual reliance on a pro-slavery court decision to justify your points. It's disgusting, and I should have never tried to play your game.

The fact is that your point only makes sense if Dred Scott makes sense. If that's where you want to plant your flag, be my guest. Good luck pressing the point outside of a rabid pro-gun forum.

[friendly_iconoclast]

84. And we've been tolerant of your misrepresentation of what YOUR sources actually say

Frankly, I think you're cranking about the quotes from Dred Scott because the cites you claim back
your interpretation of the Second and Fourteetnth Amendments...don't.

No individual right to keep an bear arms, you say?

http://www.constitution.org/col/intent_14th.htm

Dig down about halfway, and we find:

Howard introduced the proposed amendment in the Senate on behalf of the Joint Committee, explaining "the views and motives which influenced that Committee."<114> After acknowledging the important role of the testimony before the Joint Committee, Howard referred to "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press;. .. the right to keep and bear arms"<115> (emphasis added). Howard averred: "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees"<116> (emphasis added).

In the ensuing debate, no one questioned Howard's premise that the Amendment made the first eight amendments applicable to the states.<117> Howard explained that Congress could enforce the Bill of Rights through the Enforcement Clause, "a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees."<118> Howard added: "It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who happen to be within their jurisdiction."<119>

Howard's explanation that the Fourteenth Amendment would protect "the personal rights guaranteed by the first eight amendments of the United States Constitution such as ... the right to keep and bear arms" appeared on the front page of the New York Times<120> and New York Herald<121> and were printed in the National Intelligencer<122> and Philadelphia Inquirer.<123> The New York Times found his speech "clear and cogent,"<124> while the Chicago Tribune found that it was "very forcible and well put, and commanded the close attention of the Senate."<125> "It will be observed," summarized the Baltimore Gazette, "that the first section is a general prohibition upon all of the States of abridging the privileges and immunities of the citizens of the United States, and secures for all the equal advantages and protection of the laws."<126> Other newspapers were impressed with the length or detail of Howard's explanation.<127>

While Howard was explaining in the Senate that the Fourteenth Amendment would protect the right to keep and bear arms from state infringement, the House was debating the second Freedmen's Bureau Bill,<128> § 8 of which protected "the constitutional right to bear arms."<129> Eliot observed that § 8 "simply embodies the provisions of the civil rights bill, and gives to the President authority, through the Secretary of War, to extend military protection to secure those rights until the civil courts are in operation."<130> The constitutional basis of the bill was the Thirteenth Amendment.<131>

[TPaine7]

86. That's just sad, jgraz

My argument is not dependent on the validity of Dred Scott. Think about it. I assumed (for the sake of discussion) that it was wrong in every respect--even in the part I agree with. Read the OP. My point was that even if Scott were wrong about personal RKBA, the Fourteenth Amendment would have changed that. You scrupulously avoided the strongest arguments supporting that assertion.

You said that Dred Scott did not address individual rights. This meant, logically, that even the part I quoted wasn't describing personal use. I used that example because it is such an explicit hand-holding explanation of the right that it showed (or appeared to show, it's hard to tell given the fact that you now claim you were playing a game) the extremes you would go to to avoid the obvious. I would have made the same argument if Hitler, Satan, or Daffy Duck were the source of the quote and not Dred Scott. The strength of my argument would lie in your claim about the quote, not in the trustworthiness of Hitler, Satan or Daffy. Elementary logic.

I've read lots of BS, sophistry, and outright lies on this site. But you're the first to take a position and then blame it on someone else--at least the first I've seen. I expected better.

I think that somewhere inside you there's a guy with a serious bias against constitutional RKBA but who actually cares about the truth. Perhaps sometime, when you aren't in the heat of battle and your ego isn't on the line, you won't have such a hard time understanding your own source, the clear history, or the plain meaning of the text of the Fourteenth Amendment read in historical context.

[Will E Orwontee]

50. fundamental mistake of anti-liberty folks . . .

on the right and left is inspecting the constitution for the definition and explanation of our rights . . .

I don't need the constitution or any agent of the government to tell me what my rights are. My rights pre-date all of that and are not granted, given, created or otherwise established by the constitution. By the constitution's simple construction the only thing it and the government it establishes has any say about is LAW created in conformance to the constitution.

Instead of inspecting the 2nd or the 14th to discover what our right are, inspect the constitution for a grant of power that would allow the government to dictate upon anything regarding the citizen's right to arms.

In that endeavor you will be completely frustrated because no power over any aspect of the personal arms of the private citizen was ever granted to government.

[jgraz]

65. fundamental mistake of newbies on DU...

Is to go right to the stale, inflammatory talking points instead of posting something thoughtful.

I've read your manifesto before. Try something original next time. :boring:

[Will E Orwontee]

74. Sorry . . .

While I have a low post count here at DU I've been doing "this" (on-line debate) for a long time, probably longer than you have been alive, think dinosaur 9600 baud modem ago.

Sorry that you find the fundamental principles of our republic boring and yes, I guess for someone who spent their formative years with Grand Theft Auto and Red Bull, such old ideals seem "stale" but . . . Just because you dismiss them does not extinguish their impact and ambit of influence in the real world.

I notice that while you tell me how you "feel" about what I wrote you utter nothing making a reasoned argument on why I'm wrong.

That my dear deluded anti-liberty poster is stale and boring . . .

[friendly_iconoclast]

85. That's the 'genetic fallacy', not a reply

Genetic fallacy
From Wikipedia, the free encyclopedia

The genetic fallacy is a fallacy of irrelevance where a conclusion is suggested based solely on something or someone's origin rather than its current meaning or context. This overlooks any difference to be found in the present situation, typically transferring the positive or negative esteem from the earlier context.

The fallacy therefore fails to assess the claim on its merit. The first criterion of a good argument is that the premises must have bearing on the truth or falsity of the claim in question.<1> Genetic accounts of an issue may be true, and they may help illuminate the reasons why the issue has assumed its present form, but they are irrelevant to its merits. <2>

http://atheism.about.com/library/FAQs/skepticism/blfaq_fall_genetic.htm
Fallacies of Relevance > Ad Hominem Arguments

Explanation:
Another variation of the ad hominem fallacy does not necessarily attack the person directly, but instead attacks the origins for the position they are proposing. This is called the Genetic Fallacy, because it is based on the idea that the original source of an idea is a sound basis for evaluating its truth or reasonableness.

Examples and Discussion:
Like other forms of the ad hominem argument, the genetic fallacy typically occurs when a person is unable to found a strong basis for his or her position. ....

Note:
Emphasis mine

http://www.nizkor.org/features/fallacies/genetic-fallacy.html


Description of Genetic Fallacy
A Genetic Fallacy is a line of "reasoning" in which a perceived defect in the origin of a claim or thing is taken to be evidence that discredits the claim or thing itself. It is also a line of reasoning in which the origin of a claim or thing is taken to be evidence for the claim or thing. This sort of "reasoning" has the following form:

The origin of a claim or thing is presented.
The claim is true(or false) or the thing is supported (or discredited).
It is clear that sort of "reasoning" is fallacious. For example: "Bill claims that 1+1=2. However, my parents brought me up to believe that 1+1=254, so Bill must be wrong."

It should be noted that there are some cases in which the origin of a claim is relevant to the truth or falsity of the claim. For example, a claim that comes from a reliable expert is likely to be true (provided it is in her area of expertise).

[Will E Orwontee]

39. The right secured by the 2nd can't . . .

The right secured by the 2nd can't be a right of the states . . . If the action of the amendment was to protect the militia powers of the state against federal interference the legal record should be replete with cases of states claiming the 2nd's protections. Where are they?

Since 1820 there have been two separate and divergent lines of judicial history, one for militia law and one for the RKBA/2nd Amendment. If the "state's right" theorists were correct, the militia cases (where actual federal/state militia power disputes were settled) SHOULD BE THE "2ND AMENDMENT CASES", not cases where the interests of individual citizens were heard.

The 2nd Amendment has never been inspected to inform on any aspect of militia powers (federal or state) and has never been held to create any structure of organization, training or function nor demand that any such structures be established.

The declaratory clause is without legal weight and all of the theories that place weight on the declaratory clause are pointing to a mirage.

[TPaine7]

42. "The right secured by the 2nd can't be a right of the states . . . "

You are, or course, correct pastor. I am in the choir--in fact, I'm a featured soloist.

My point was that even if I accept their flawed premise, their "no individual RKBA" argument falls on its face.