Posted on 01/12/2007 2:09:53 PM PST by Wasichu
According to the courts, the second amendment only protects your RKBA as part of a militia.
"are states free to trample rights?"
States are guided by their state constitution. If the RKBA is protected in the state constitution, then no.
The second amendment is really for all intents and purposes dead..
I didn't think so.
Great sequence, CT.. Showed up how typical the phony gun knowledge of our 'collective rights' freepers really is; -- loaded with 00 buck, that shotgun could be lethal to 40 yards or more, -- with a shot pattern of what? -- maybe 8 ft across at that range?
Good question. The typical answer from FR's 'collective rights' faction parrots the US Communitarian Party, - their 'manifesto':
'-- We, as a society, decide which rights we will protect --- We can choose not to protect your right to arms or to do drugs.
If and when a majority of the people decide that we should, then we will.
Given that we're a self-governing nation, there's nothing to stop the majority from deciding this as the state pretty much has free reign to pass whatever laws they wish. --'
You set 20" as some sort of benchmark. What's your point? That you can't stick to a point?
I wasn't arguing with Congress I was talking to another FReeper and you butted in with a red herring manipulation of the premise we were working with. What ain't gonna happen is you debating honestly in this life time.
ctdonath2: More than you think.
Well I don't know how many more since my point, to someone else, was that a lot of FReepers do. Thank you for affirming it.
I also appreciate the info about legal, illegal and Class III shotguns but I think I'll stick to my legal sawed off Mossberg with after-market pistol grip. At least until I buy a folding stock. And yes it is literally sawed off not factory-short.
You're doing a great job of expounding the founding principles. As usual. I appreciate it. There are many who read but never post and your efforts are not wasted.
I know Homer Simpson is supposed to be an idiot but for the life of me I can't find any flaw in that logic.
Some federal courts follow the collective right model, but the Supreme Court has never held that the right to keep and bear arms is a collective right. In fact the Supreme Court has often referred the right to keep and bear arms as an individual right. Federal courts in the fifth circuit follow the precedent of United States v. Emerson. The Emerson decision held that the second amendment protects an individual right to keep and bear arms. See below for the court's analysis of the Miller case and textual analysis of the second amendment:
"We conclude that Miller does not support the government's
collective rights or sophisticated collective rights approach to
the Second Amendment. Indeed, to the extent that Miller sheds
light on the matter it cuts against the government's position. "
"There is no evidence in the text of the Second Amendment,
or any other part of the Constitution, that the words "the
people" have a different connotation within the Second Amendment
than when employed elsewhere in the Constitution. In fact, the
text of the Constitution, as a whole, strongly suggests that the
words "the people" have precisely the same meaning within the
Second Amendment as without. And, as used throughout the
Constitution, "the people" have "rights" and "powers," but
federal and state governments only have "powers" or "authority",
never "rights."(24)"
[T]he meaning of "the people," as used in the Constitution, is in harmony with the United States Supreme Court's pronouncement in United States v. Verdugo-Urquidez, 110 S.Ct. 1056, 1060-61 (1990), that:
"'[T]he people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the People of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of people who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." (citations omitted)
Several other Supreme Court opinions speak of the Second Amendment in a manner plainly indicating that the right which it secures to "the people" is an individual or personal, not a collective or quasi-collective, right in the same sense that the rights secured to "the people" in the First and Fourth Amendments, and the rights secured by the other provisions of the first eight amendments, are individual or personal, and not collective or quasi-collective, rights. See, e.g., Planned Parenthood v. Casey, 112 S.Ct. 2791, 2805 (1992); Moore v. City of East Cleveland, 97 S.Ct. 1932, 1937 (1977);(26) Robertson v. Baldwin, supra (see quotation in note 17 supra); Scott v. Sandford, 60 U.S. (19 How.) 393, 417, 450-51, 15 L.Ed. 691, 705, 719 (1856). See also Justice Black's concurring opinion in Duncan v. Louisiana, 88 S.Ct. 1444, 1456 (1968).(27)
It appears clear that "the people," as used in the
Constitution, including the Second Amendment, refers to
individual Americans.
We turn now to the Second Amendment's preamble: "A well-regulated Militia, being necessary to the security of a free State." And, we ask ourselves whether this preamble suffices to mandate what would be an otherwise implausible collective rights or sophisticated collective rights interpretation of the amendment. We conclude that it does not.
As observed in Miller, "the Militia comprised all males physically capable of acting in concert for the common defense" and "that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves." Id., 59 S.Ct. at 818. Miller further notes that "'[i]n all the colonies . . . the militia systems . . . implied the general obligation of all adult male inhabitants to possess arms.'" Id. (citation omitted).(33) There are frequent contemporaneous references to "a well-regulated militia" being "composed of the body of the people, trained in arms."(34) Plainly, then, "a well-regulated Militia" refers not to a special or select subset or group taken out of the militia as a whole but rather to the condition of the militia as a whole, namely being well disciplined and trained.(35) And, "Militia," just like "well-regulated Militia," likewise was understood to be composed of the people generally possessed of arms which they knew how to use, rather than to refer to some formal military group separate and distinct from the people at large.(36) Madison also plainly shared these views, as is reflected in his Federalist No. 46 where he argued that power of Congress under the proposed constitution "[t]o raise and support Armies" (art. 1, § 8, cl.12) posed no threat to liberty because any such army, if misused, "would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands" and then noting "the advantage of being armed, which the Americans possess over the people of almost every other nation," in contrast to "the several kingdoms of Europe" where "the governments are afraid to trust the people with arms." The Federalist Papers at 299 (Rossiter, New American Library). Plainly, Madison saw an armed people as a foundation of the militia which would provide security for a "free" state, one which, like America but unlike the "kingdoms of Europe," was not afraid to trust its people to have their own arms.(37) The militia consisted of the people bearing their own arms when called to active service, arms which they kept and hence knew how to use. If the people were disarmed there could be no militia (well-regulated or otherwise) as it was then understood. That expresses the proper understanding of the relationship between the Second Amendment's preamble and its substantive guarantee. As stated in Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, supra note 12, "the [second] amendment's wording, so opaque to us, made perfect sense to the Framers: believing that a militia (composed of the entire people possessed of their individually owned arms) was necessary for the protection of a free state, they guaranteed the people's right to possess those arms." Id. at 217-18. Similarly, Cooley, General Principles of Constitutional Law (Little, Brown, 1880; 1981 Rothman & Co. reprint) rejects, as "not warranted by the intent," an interpretation of the Second Amendment "that the right to keep and bear arms was only guaranteed to the Militia," and states "[t]he meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables the government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use." Id. at 271. Much the same thought was expressed more than one hundred years later in the following passage from Tribe, American Constitutional Law (3d ed. 2000):
"Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist/republican/federalism one: Its central object is to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather, the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes . . . a right that directly limits action by Congress or by the Executive Branch . . ." Id., Vol. 1, n.221 at 902.
In sum, to give the Second Amendment's preamble its full and proper due there is no need to torture the meaning of its substantive guarantee into the collective rights or sophisticated collective rights model which is so plainly inconsistent with the substantive guarantee's text, its placement within the bill of rights and the wording of the other articles thereof and of the original Constitution as a whole.
Certainly, the preamble implies that the substantive guarantee is one which tends to enable, promote or further the existence, continuation or effectiveness of that "well-regulated Militia" which is "necessary to the security of a free State." As the Court said in Miller, immediately after quoting the militia clauses of Article I, § 8 (cl. 15 and 16), "[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made." Id., 59 S.Ct. at 818. We conclude that the Second Amendment's substantive guarantee, read as guaranteeing individual rights, may as so read reasonably be understood as being a guarantee which tends to enable, promote or further the existence, continuation or effectiveness of that "well-regulated Militia" which is "necessary to the security of a free State." Accordingly, the preamble does not support an interpretation of the amendment's substantive guarantee in accordance with the collective rights or sophisticated collective rights model, as such an interpretation is contrary to the plain meaning of the text of the guarantee, its placement within the Bill of Rights and the wording of the other articles thereof and of the original Constitution as a whole.
You can throw shot 500 fps? Wow! That's over 340 mph! You're my hero.
So do I, whooooohahahaha!, whooooohahahaha!,whooooohahahaha! < / DREVILIMPERSONATION OFF >
Pay no attention to my tag line.
Not I.
18" is the benchmark. I was merely pointing out that the weapons used by the military were 20".
I was talking to another FReeper and you butted in with a red herring manipulation of the premise we were working with.
You nailed it! That's an excellent description of that too-often used tactic -- used mostly to obfuscate and seemingly diminish the validity of a sound argument. Politicians and parasitical elites (sorry for the redundancy) rely on it -- rely on their ability to deceive.
If by "some" you mean "every single federal court except the 5th Circuit in one opinion", then I agree.
"but the Supreme Court has never held that the right to keep and bear arms is a collective right"
Correct. Nor an individual right.
"In fact the Supreme Court has often referred the right to keep and bear arms as an individual right."
Cite a quote from the U.S. Supreme Court referring to the RKBA as an individual right and we'll discuss it. Don't bother looking. They have never said that.
"See below for the court's analysis of the Miller case and textual analysis of the second amendment"
I'm familiar with it. Did you read Reinhardt's 79-page diatribe in Silveira v Lockyer responding to it?
Quite. The barrel of that Serbu Super Shorty is much longer and much wider than any other common handgun: 6.5" launching a .78 cal slug? or 9 9mm balls? A 3.5" 9mm Glock sounds rather anemic in comparison, and that's what cops carry!
Cite a quote from the U.S. Supreme Court referring to the RKBA as a collective right and we'll discuss it. Don't bother looking. They have never said that.
Ah, but I never claimed they did.
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