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Posted on 02/23/2023 2:36:25 PM PST by marktwain
Interesting that the left fought for 60 years before this novel theory of theirs got traction in the courts. Remember that any time some leftie complains “Roe v. Wade was settled law!”
This Ping List is for all news pertaining to infringes upon or victories for the 2nd Amendment.
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More 2nd Amendment related articles on FR's Bang List.
I can, almost, if I squint, see a collective right IF it means every male has to own an AR and drill for 3 hours a month for civil defense purposes and is required to be available in an emergency.
But that is not what th gun confiscation groups want.
Bkmk
Interesting that in the 1800s it was considered an Individual right.
You really need to read the highly suppressed and out of print 1982 Senate report on the RKBA. I have a paper copy.
Here is an on line version.
https://guncite.com/journals/senrpt/senrpt.html
“The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.”
19th century cases
16. * Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878).
“If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the (p.17)penitentiary and gallows, and not by a general deprivation of constitutional privilege.”
17. * Jennings v. State, 5 Tex. Crim. App. 298, at 300-01 (1878).
“We believe that portion of the act which provides that, in case of conviction, the defendant shall forfeit to the county the weapon or weapons so found on or about his person is not within the scope of legislative authority. * * * One of his most sacred rights is that of having arms for his own defence and that of the State. This right is one of the surest safeguards of liberty and self-preservation.”
18. * Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8, at 17 (1871).
“The passage from Story (Joseph Story: Comments on the Constitution) shows clearly that this right was intended, as we have maintained in this opinion, and was guaranteed to and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights.”
19. * Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846).
“’The right of the people to bear arms shall not be infringed.’ The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State.”
And the SCOTUS case that led to the Civil War..
What the SCOTUS thought about gun control in the pre Civil War era.
“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.”
Paragraph 77 in the link below. Then over 300 paragraphs to try and prove blacks were NOT citizens and had no rights.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0060_0393_ZO.html
That remained the official position of the ACLU until well after Heller. As of that decision they began an “internal discussion” over their position that is yet to be officially resolved.
It was clear from the start that gun ownership is an individual right, not a collective right, courts just ignored this, until 2008.
If liberal aquaintances want to argue about collective rights, just point out that the Bill Of Rights deals only with individual rights, period.
Giving credit where due, John Roberts was the swing vote in the 5-4 Heller decision that changed the course of gun ownership in America.
The early colonists were required to take their firearms to Church on Sunday and drill after services.
As you noted, no one was present to argue for Miller in the Miller case. But any honest reading of the decision concludes that had it been demonstrated before the Court that a sawed off shotgun was indeed a regular military weapon that it would be protected under 2A.
Extrapolating from that so would automatic weapons, and even bazookas.
Thanks for posting this. I want to get it printed. How many pages does it run?
It is time for the congress to issue a law removing short barreled rifles and sound suppressors from the firearms act.
Just repeal the act. It’s not constitutional.
My copy runs 175 pages. If you look you can find reprints for sale.
https://books.google.com/books/about/The_Right_to_Keep_and_Bear_Arms.html?id=zsS7AAAAIAAJ
https://www.amazon.com/right-keep-bear-arms-Ninety-seventh/dp/B003U4W2GS
I like to have that book in my hot little hands!
Thank you!
Exactly. That is a well regulated militia. Such an organization would.be useful in many cases today.
***no one was present to argue for Miller in the Miller case.***
From what I have read, the plaintiff had crossed the Arkansas line from Oklahoma to rob a bank in Siloam Springs AR when he was caught. Some say he was dead when this went to the SCOTUS.
https://encyclopediaofarkansas.net/entries/united-states-v-miller-et-al-4742/
hhttp://www.law.nyu.edu/sites/default/files/ECM_PRO_060964.pdf
Yes Miller had died before the case reached SCOTUS and his attorney didn’t bother to travel to DC. The governments case was left unchallenged.
In the early 1900s, Teddy stole our land and created the 16th Amendment under the banner of progressivism and Franklin (who, later, the Vikings might have nicknamed "Ivar The Boneless") managed to get a fellow traveler into the federal judgeship who committed an abortion on the 2nd Amendment...
I'll meet your Roberts comment, and raise you - a big THANK YOU TO TED KENNEDY for possibly preventing a 4-5 loss in Heller, the ascent of the Collective Model, and the eviscerstion of the 2nd Amendment.
Oh, and possibly Dobbs/Roe's repeal, too.
Stick with me.
The Lifeguard of Chappaquiddick is largely responsible for the destruction of Robert Bork's SCOTUS candidacy. That slot was occupied by Justice Anthony Kennedy ultimately.
Justice Kennedy was a squish. But he DID side with the majority in Heller. That's big.
Ah, but what if Bork hadn't been Borked. Well...the truth is... Bork MAY have voted against Heller.
In Slouching Towards Gomorrah, Bork referred to the language of the Second Amendment as “somewhat ambiguous[].” In the same passage, he stated that “The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government.”[4] While it is clear that Bork was opposed to gun control on policy grounds, it is not clear that he agreed that the Second Amendment conferred an individual right. In fact, Bork’s skepticism regarding the gun lobby’s advocacy of individual rights under the Second Amendment (shared by former Chief Justice Warren Burger) may have been the reason the National Rifle Association chose to remain neutral during Bork’s 1987 confirmation hearings. Moreover, Bork might have been reluctant to overrule (or distinguish into irrelevance) the arguably contrary precedent in United States v. Miller[5], which is what the majority in Heller did. It appears that Bork construed Miller the same way Justice Stevens’ dissent in Heller did: as ruling that the Second Amendment confers a collective, not an individual, right. The way he put it in Slouching Towards Gomorrah (12 years before Heller) was: “The Supreme Court has consistently ruled that there is no individual right to own a firearm.”
By blocking Bork and paving the way for Kennedy, Uncle Ted very possibly helped save the legality of the Individual Model.
It gets better.
Bork died in 2012 during Obama, thus guaranteeing a leftist nutjob tipping the scales to a 5-4 liberal SCOTUS until Ruth Buzzy Ginsberg died. That is a LOT of bad rulings.
It also means no Kavanaugh, and no 6-3 margin for Dobbs, Bruen, or EPA.
So Ted, you magnificent bastard, wherever you are, thank you for being a friend of the NRA.
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