Posted on 07/30/2004 8:17:31 AM PDT by Hillary's Lovely Legs
I am filling out a survey about gun ownership and have been asked about a .50 cal BMG rifle.
Could you please explain to me what this is and what it's used for?
Thank you
"The true patriot scrutinizes the actions of his own government with unceasing vigilance. And when his government violates the morality and rightness associated with principles of individual freedom and private property, he immediately rises in opposition to his government. This is why the gun owners of California might ultimately go down in history as among the greatest and most courageous patriots of our time."
Gun Control, Patriotism, and Civil Disobedience
Address:http://www.freerepublic.com/focus/f-news/1182588/posts
Well, one might question then the purpose of first phrase.
Secondly, this is the way the lower federal courts have intepreted it (save the recent 5th Circuit opinion).
But the lower federal courts (save the 5th) have been quite vocal on the subject. Don't tell me I have to actually find a decision for you. Try Silveira V Lockyer for starters.
C'mon, you know this stuff almost as well as I do.
You don't live in California, so why did you phrase your question that way? Oh well, let's assume that you still live in San Jose -- it makes the answer simpler.
#1, The California state constitution is silent on your RKBA. It offers zero protection for gun owners. The state legislature can pass any law it feels it can get away with regarding weapons, and the citizens have no constitutional recourse.
#2, Machine guns are illegal in California -- it's against state law.
#3, The second amendment protects you from federal infringement of your RKBA as part of a state militia, not as a member of the United States militia. Are you a member of the California state militia? Answer: There is no California "well regulated" state militia (or any other state, for that matter).
#4, IF the state of California permitted you to purchase a machine gun and the federal government said you couldn't, you would have a second amendment case. But, I believe the courts would rule, as they did in that other California case, Silveira v Lockyer, that you are not associated with a state militia, and therefore have no second amendment protection. The 9th Circuit Court stated (in part):
"After conducting our analysis of the meaning of the words employed in the amendment's two clauses, and the effect of their relationship to each other, we concluded that the language and structure of the amendment strongly support the collective rights view. The preamble establishes that the amendment's purpose was to ensure the maintenance of effective state militias, and the amendment's operative clause establishes that this objective was to be attained by preserving the right of the people to "bear arms" -- to carry weapons in conjunction with their service in the militia. . . ."
IV. CONCLUSION
"Because the Second Amendment affords only a collective right to own or possess guns or other firearms, the district court's dismissal of plaintiffs' Second Amendment claims is AFFIRMED. . . . The constitutional challenges to the validity of the California Assault Weapons Control Act are all rejected, with the exception of the claim relating to the retired officers provision."
"The Supreme Court recognized as much in the Miller case where there was no dispute as to whether Miller and his fellow defendants were an active part of an organized militia ..."
I don't believe the case ever got that far -- the USSC remanded the case back to the lower court to clear up the "barrel less than 16 inches" question.
You may have a naural right to protect yourself, but not necessarily with a gun. The state in which you reside defines and protects the means by which you may use a weapon to defend yourself.
Pray tell, robertpaulsen, how does an individual KEEP and bear arms collectively?
Please explain what requirements must be met for a person to be a member of the unorganized militia and how frequently such militia meets.
Oh gosh, William Tell, I would assume that would be up to the state to determine. It worked well for the Minutemen to maintain their arms at home. (I believe the Swiss also keep their arms at home.) A state may decide that an armory best suits their purposes, similar to National Guard armories.
But, since well organized state militias don't exist, and haven't for some time, your question is rather moot, wouldn't you say?
But let's see what the 9th Circuit said: "The second clause -- "the right of the people to keep and bear Arms, shall not be infringed" -- is not free from ambiguity. We consider it highly significant, however, that the second clause does not purport to protect the right to "possess" or "own" arms, but rather to "keep and bear" arms. This choice of words is important because the phrase "bear arms" is a phrase that customarily relates to a military function. Historical research shows that the use of the term "bear arms" generally referred to the carrying of arms in military service -- not the private use of arms for personal purposes."
Gasp! I wouldn't look to the second amendment for any help with your individual RKBA.
"Please explain what requirements must be met for a person to be a member of the unorganized militia and how frequently such militia meets."
Do you have a different copy of the second amendment? Mine says, "well regulated" militia. Does yours say, "unorganized" militia? You must have a preliminary draft (is it written on hemp? inside drug joke)
Look, if your state had a state militia you wouldn't be asking me this question -- you'd be telling me the answer to it. Stop this nonsense.
Well, there's been varied and thorough rebuttals of the tortured logic that the Ninth Circuit applied in their dicta on the Silveira case by people whose expertise far exceeds mine, including the justices of the Fifth Circuit Court of Appeals, as well as some of the judges of the Ninth Circuit.
Maybe if I feel inclined I'll cite it for you at some point, but not right now, at 11:30pm.
In the meantime, though, I'll simply take solace in knowing that the Ninth Circuit is the most frequently-overturned appeals court in the nation, and that the petition for writ of certiaori in the Nordyke case is pending before the US Supreme Court and should be decided on by Christmas-time.
If granted, we'll all be able to attain a final resolution of this question so we won't have to waste any more time and bandwidth arguing about it.
>>There is no California "well regulated" state militia (or any other state, for that matter).<<
http://www.constitution.org/mil/mil_us.htm
Not only the 9th argued for the "collective right" interpretation -- it was just the most recent and most memorable.
"and that the petition for writ of certiaori in the Nordyke case is pending before the US Supreme Court"
Are you saying that the 9th refused to hear it en banc?
Please go to your own link, go to California, and try the links under the heading, "Sites". Everything is 404 with the exception of the High Desert Militia of Southern California (a unit of the California Unorganized Militia) and The California Militia (originally the Constitutional Militia of Southern California, was founded on July 4, 1994 in Los Angeles) -- they're still working on a Manifesto.
C'mon, B4Ranch, these are not the state militias referred to in the second amendment.
Hey, you need your chain pulled once in a while. Keeps the brain and the toilet clean.
Gee, and I thought that the "unorganized militia" were a subset of the militia defined by federal law. Is that not the case?
You and the Ninth Circuit are very clever. But wrong.
What convenient construction do you put on the word "keep" which would allow the federal government to deprive a person of arms? Why would our Founders say "keep and bear" if they only meant "bear"?
Good point.
What particular government authorized the Minutemen to keep their arms at home on April 18,1775?
I can never get over the fact that Virginians elected that worthless idiot...
DICTA - The part of a judicial opinion which is merely a judge's editorializing and does not directly address the specifics of the case at bar; extraneous material which is merely informative or explanatory.
You call the Fifth Circuit's examination dicta, but that's not the case. In order to rule on whether Mr. Emerson had standing to bring a Second Amendment claim, it was necessary to investigate what right of his, if any, it protected. The pages of the Emerson decision represent the results of that investigation, and they can't be considered extraneous or explanatory.
The Reinhardt examination is, however, dicta because the Ninth Circuit already had settled law on the scope of the Second Amendment from the Hickman v. Block case, and the only words necessary in a ruling on that case were "Denied. See Hickman v. Block." What's beyond that is Reinhardt's extrinsicity.
Considering the scope and detail of the Fifth Circuit's examination of the historical context of the Second Amendment, and the scope and detail of the numerous dissents to the Ninth Circuit's decisions in Silveira and Nordyke, I think most of the "damage" is likely to be principally centered on the "collective rights" model.
Are you saying that the 9th refused to hear it en banc?
Yes, that's correct.
Here's the opinion, which includes dissents from five different judges in the Circuit. (Kleinfeld - "Our court has erased 10% of the Bill of Rights for 20% of the American people." -- Gould - "The collective rights view ... places undue weight on a confused interpretation of the prefatory clause to reach the conclusion...")
The certiorari petition in Nordyke was filed a few weeks ago, and will be made available on a CD-ROM that they'll market in order to raise money for the case. It's docket number 03-1707.
Fun
In the last 50 years or so the majority, maybe even nearly all federal judges don't care what the constitution says. If there is an issue which could be considered as either conservative or liberal, they simply rule for the liberal (sometimes radical leftist) position and make up a reason why they did.
Sometimes, such as in Roe V. Wade, their reasoning would be laughable if it were not so evil.
Put simply, most federal judges are totally or nearly totally corrupt. Their rulings depend on their own personal predjudices rather than what the law is.
"The right of the people to keep and bear arms" is not difficult to understand and as I pointed out earlier, the first phrase is one of justification, not a modifying phrase.
Actually, Shanda, nearly every time the Supreme Court has directly or indirectly considered the question of the Second Amendment, they did so in such a way as to interpret it as an individual right.
There's a book that compiles a list of the cases, some 90 in all, called Supreme Court Gun Cases, written by David Kopel, Dr. Stephen Halbrook, (both widely-renowned firearms law attorneys) and Alan Korwin, author of the "Gun Laws" series of books.
A draft essay for St. Louis University Public Law Review, which represents some of the work that went into the book is at this link, and notes:
...Supreme Court opinions dealing with the Second Amendment come from almost every period in the Court’s history, and almost all of them assume or are consistent with the proposition that the Second Amendment is an individual right.
It also contains a handy table referencing 28 cases which have fully or partially quoted the Second Amendment, and notes:
Of the twenty-eight U.S. Supreme Court opinions which have quoted the Second Amendment, twenty-three contain only a partial quote. This quoting pattern suggests that, generally speaking, Supreme Court justices have not considered the “purpose clause” at the beginning of the Second Amendment to be essential to the meaning of the main clause.
You're correct. But I don't know what the federal definition of a federal militia has to do with the second amendment.
The second amendment is referring to well regulated state militias, such militias defined by each state.
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