Second Amendment case headed to Court (DC appeals Parker case to SCOTUS)

Local government officials in Washington, D.C., decided on Monday to appeal to the Supreme Court in a major test case on the meaning of the Second Amendment. The key issue in the coming petition will be whether the Amendment protects an individual right to have guns in one's home.

"There are no States militia, and there haven’t been for some time"

State Defense Forces (also known as State Guards, State Military Reserves, or State Militias) in the United States are military units that operate under the sole authority of a state government. A 2005 Department of Defense report reported 27 active SDF's:

Alabama State Defense Force
Alaska State Defense Force
California State Military Reserve
Connecticut State Militia Units
Georgia State Defense Force
Indiana Guard Reserve
Maryland Defense Force
Massachusetts State Guard
Michigan Volunteer Defense Force
Mississippi State Guard
New Jersey Naval Militia
New Mexico State Defense Force
New York Guard
Ohio Military Reserve
Oregon State Defense Force
Puerto Rico State Guard
South Carolina State Guard
Tennessee State Guard
Texas State Guard
Vermont State Guard
Virginia State Defense Force
Washington State Guard

"The people" were not "all individuals". They weren't even "all citizens". Who were they?

This is who Hamilton said they were, in Federalist 29:

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.

Note also that nowhere does Hamilton or the Constitution say that the federal government will itself arm the Militia, but only "provide for organizing, arming, and disciplining the militia" (emphasis added). As the training and officering of the Militia was explicitly reserved to the States, it follows that the Congress would only provide for the arming of the Militia, which casts light of a different color on the proposition, when one remembers that, by law and by custom of over 150 years' standing, the Militia had armed themselves, and had been required in some colonies to arm themselves, with provision for situations of financial inability when the colonial authorities would provide a piece to a poor militiaman, as we have seen, subject to repayment when he was able. Ergo, he armed himself, notwithstanding that the burgesses had taken it on themselves to superintend his arming.

The bottom line is that, even absent the Second Amendment, Hamilton shows that in the writing of the Militia clause of Article I, the Philadelphia conventioners had intended "the people at large" to be "properly armed and equipped".

The restrictive interpretation of the Militia clause of 2A that you are guiding us toward, is therefore unjustifiable under any interpretation of original intent, even if we did not have other letters and notes to the same effect as Federalist 29, that the Framers intended all the People, standing in arms as the Militia, to be armed without respect to any lawyerly distinction between People and Militia such as oligarchic Illinois invented a century later, to deprive its citizens of the right to keep and bear.

The People were to arm themselves. Thus said the Framers, and thus says the Second Amendment in black letters on white paper. You and a number of avidly anti-gun landsharks may disagree, but history and scholarship are against you.

This is funny. You are missing the point, and that is that they also legally answer to National authority.

You are mislead by the given name.

For example - pay attention here - the Alabama State Defense Force (ASDF) is the state’s authorized militia and assumes the state mission of the Alabama National Guard in the event the Guard is mobilized.

when it does assume that mission, it is also then subject to call up and command by the Feds, even though they appear to not be so subject at first glance.

It is nonetheless possible that they are subject to call under 10 U.S.C. 331-333, which distinguish the 'militia' from the 'armed forces,' and which appear to subject all portions of the 'militia' - organized or not - to call if needed for the purposes specified in the Militia Clauses" Perpich v. Department of Defense, 496 U.S. 334 (1990).

Therefore, look carefully at this extract:

The following is an extract of the laws which the U.S. Supreme Court cited giving the federal government authority to activate the State Defense Forces.
10 USC 331 - “Federal aid for State governments”
Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.
10 USC 332 – “Use of militia and armed forces to enforce Federal authority”
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
10 USC 333 – “Interference with State and Federal law”
The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it -
(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

The above cites make it clear that those so called state militias are under the beck and call of Federal authorities.

And do I have to note that the members of these organizations even have to buy their own uniforms and bring their own arms? (which are necessary for the function of the militia)

"Note also that nowhere does Hamilton or the Constitution say that the federal government will itself arm the Militia"

Yes. Which was my point. It was important that the federal government not be allowed to interfere with the states arming themselves how they saw fit.

"The bottom line is that, even absent the Second Amendment, Hamilton shows that in the writing of the Militia clause of Article I, the Philadelphia conventioners had intended "the people at large" to be "properly armed and equipped".

Yes. "The people at large" means the same thing as "the people". Neither one means "all individuals".

"that the Framers intended all the People, standing in arms as the Militia, to be armed without respect to any lawyerly distinction between People and Militia"

How can you say that? In Federalist #46, Madison envisioned only 20% of the populace being armed as part of a Militia.

"You and a number of avidly anti-gun landsharks

Anti-gun? Me? You have no idea what you're talking about.

"You are missing the point, and that is that they also legally answer to National authority."

The state Militia always answered to National authority. Article I, Section 8 of the U.S. Constitution says that Congress has the power "To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions."

"The above cites make it clear that those so called state militias are under the beck and call of Federal authorities."

That was the plan. All along.

"And do I have to note that the members of these organizations even have to buy their own uniforms and bring their own arms? (which are necessary for the function of the militia)"

That also was the plan. All along.

Yes. "The people at large" means the same thing as "the people". Neither one means "all individuals".

My original statement to which you objected was,

The scholarship on the Framers' original intent is clear. They wanted the people, as people, as individuals, to own, keep and carry firearms without check or hindrance, as a safeguard against both invasion and tyranny.

Please notice that I'm not trying to define the suffragans as against non-citizens, but to point out that the RKBA is an individual right inuring to the citizenry, not a "group right" (there are no group rights) inuring to "the Militia" as argued in Miller, which was a put-up job and a lie which cries out to be overturned and, frankly, redecided on just about everything it touched (including the infamous weasel-argument, which was incorrect to boot, that sawed-off shotguns are not "militia" weapons -- in France, 21 years earlier, they'd been used widely and were referred to as "trench sweepers").

How can you say that? In Federalist #46, Madison envisioned only 20% of the populace being armed as part of a Militia.

So he agrees with Hamilton in Federalist 29 quoted above, in which Hamilton doesn't contemplate a mass organization of the whole citizenry, either, but only on practical grounds. "Convenience of the government" is not grounds to deny people a right enshrined in the Bill of Rights. Notwithstanding that I am not enrolled in the Texas State Guard or the National Guard, nevertheless 2A and the concept of the Militia still apply to me.

Anti-gun? Me?

I wouldn't know, but you're making their case and seem to be re-arguing the Solicitor General's brief in Miller.

"not a "group right" (there are no group rights)"

Well, when I say a "group right" or a "collective right" I mean an individual right held by a particular group of people.

When the Founders wrote Article I saying that "members (are) chosen every second year by the people", they were referring to a particular group of individuals -- voters. Not all individuals or even all citizens (women did not vote).

The same is true of the first amendment's "the right of the people peaceably to assemble" or the fourth amendment's "the right of the people to be secure ...". It did not mean all individuals. When the Founders meant individuals they used the term "persons".

"which was incorrect to boot, that sawed-off shotguns are not "militia" weapons"

The U.S. Supreme Court in Miller did not make that determination. They sent the case back to the lower court, saying that the second amendment only protects weapons that have "some reasonable relationship to the preservation or efficiency of a well regulated militia", leaving it up to the lower court to look into it.

Mr. Miller had a sawed-off, double-barreled shotgun. Trench guns had a 20" barrel, bayonet mount, barrel shroud, sling swivels, and held six rounds (pump-action). You can't even compare the two.

CAN Mr. Miller's weapon be used in combat? Of course. So can a rock. But the Miller court was referring to weapons used by the average Militia member -- a future District Court would rule that handguns were not protected by the second amendment for the same reason.

"but only on practical grounds"

I don't think Hamilton was referring to convenience. By "practical" he meant arming those capable of fighting as a cohesive force. The definition of "capable" was spelled out in the Militia Act of 1792.

"Notwithstanding that I am not enrolled in the Texas State Guard or the National Guard, nevertheless 2A and the concept of the Militia still apply to me."

That's between you and your state. If your state considers you to be a member of the Militia and wishes you to be armed at all times, they'll let you know. It's their decision, not the federal government's.

"and seem to be re-arguing the Solicitor General's brief in Miller."

I'm simply pointing it out. It seems that some are ignorant of the details. I can assure you that the current U.S. Supreme Court is not.

This is the federal law:

The Militia Act of 1792, Passed May 8, 1792, providing federal standards for the organization of the Militia.

An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States.

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, ...

What do you mean, enrollment is up to your state?

You cited this act in your post, and then contradicted it, in the same post.

Did you bother to read it?

Mr. Miller had a sawed-off, double-barreled shotgun. Trench guns had a 20" barrel, bayonet mount, barrel shroud, sling swivels, and held six rounds (pump-action). You can't even compare the two.

Of course I can. You can compare two of anything.

The Winchester 1897 pump shotgun was originally marketed as a civilian sport weapon with a 30" barrel (28" in 16-gauge). If the barrel was cut down to 20" for trench warfare (surviving examples of its ~50-year production run have 18-1/2" replacement barrels currently available), then obviously it was, then and now, a cut-down shotgun. That being the case, the difference between 20" and 18", or 17" or 16", is purely arbitrary. The Sullivan Act's 18" is an arbitrary parameter. The same gun will cycle and fire with a 16" barrel, or with a 20" or 30" barrel. The same is true for Miller's cut-down side-by-side, which so excited the indignation of the United States. Both would be suitable for trench warfare or for any restricted-quarters fighting.

But the Miller court was referring to weapons used by the average Militia member -- a future District Court would rule that handguns were not protected by the second amendment for the same reason.

The Court begged the question of whether the U.S. Government has any business stipulating weapon types to be carried by the Militia. They don't, as we have discussed above: the election falls to the individual Militia member.

Under the Miller paradigm, the U.S. Government, with a view to disarming the People in furtherance of a despotic plot, need only pass a law tomorrow specifying that the only firearms protected by the Second Amendment, on the grounds of their suitability (in the Government's view) for Militia service, are those with barrel lengths of zero inches. Deed done.

The Quilici case you mentioned was written by a lying mountebank who offered a rationale even more preposterous than Miller's: sidearms were ubiquitous in every war in the nation's history, from flintlock to LeMat to Model 1911 to the current Berettas. Judges who lie, require no particular respect from the public. They require, instead, their removal by impeachment for manifest malfeasance in office.

Just because Illinois likes to slap their citizens around, and their citizens routinely put up with it like beaten dogs, requires no particular respect of their arrangements by the federal court system, when it comes to the adjudication of federal rights bound to the States by, in the case of Quilici, the Second and Fourteenth Amendments.

If your state considers you to be a member of the Militia and wishes you to be armed at all times, they'll let you know.

Wrong again. The People let the State know, not the other way around. You seem lost -- this isn't China.

It seems that some are ignorant of the details. I can assure you that the current U.S. Supreme Court is not.

http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZS.html

[You, quoting me] "which was incorrect to boot, that sawed-off shotguns are not "militia" weapons"

[You, replying] The U.S. Supreme Court in Miller did not make that determination. They sent the case back to the lower court, saying that the second amendment only protects weapons that have "some reasonable relationship to the preservation or efficiency of a well regulated militia", leaving it up to the lower court to look into it.

From the syllabus of the Miller opinion:

2. Not violative of the Second Amendment of the Federal Constitution. P. 178.

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

Since this happens to be the pettifogging tenderloin of the case that is always cited with respect both to the NFA and gun ownership more generally, it is disingenuous of you to say that the Court in Miller merely remanded and did not deliver a substantive holding.

10 USC 332 – “Use of militia and armed forces to enforce Federal authority”

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

Transparently unconstitutional, and reflective of the damage done by Abraham Lincoln in 1861 when he unilaterally declared rebellion and raised troops without the consent of the Congress to crush it (Congress was out of session for the first six months of the war).

The Constitution provides that the legislature or the governor of the State in question declare rebellion and certify it to the Congress, which then declares the means of the cure.

The significance of what Lincoln did was that, in 1861, no State's executive or legislature declared rebellion, although Lincoln solicited such a declaration from Gov. Sam Houston of Texas, whom Lincoln knew to be a Unionist. Lincoln offered Houston federal troops to crush the Texas secessionists (the overwhelming majority of the State) if only he would ask for them, but Houston threw Lincoln's letter in the fire. He wouldn't turn on his own fellow citizens, who had met legally in convention, passed their secession resolution, and then ratified it by an overwhelming popular vote in plebiscite. Texas was no longer a State of the Union.

In 1861, entire States and their People left the Union by lawful, sovereign acts in convention assembled. The exception was Arkansas, which may have seceded illegally, by an act of the legislature. There is no "rebellion" when an entire State, by an act of the People, leaves the Union, any more than when an original State entered the Union by ratification acts or plebiscite in 1789 or 1790.

This federal statute is unconstitutional on its face.

"If the barrel was cut down to 20" for trench warfare"

It was more than simply cut down.

It was manufactured by Winchester specifically for the military. It held six rounds that could be fired while holding the trigger down and jacking the slide. It had a barrel shroud to protect hands. A bayonet mount. Sling swivels for carrying.

A true military weapon. And you're comparing that to this?

Well, it's a moot point and senseless to argue about it. The Miller court never decided. The important thing to take away from Miller was that the court said the only guns protected were Militia-type weapons and left it to the lower court to decide.

"the election falls to the individual Militia member."

In my opinion, the election falls to the individual state.

"need only pass a law tomorrow specifying that the only firearms protected"

Where would the federal government get the power to do that? They couldn't.

"The Quilici case you mentioned was written by a lying mountebank"

And thank heavens we don't, or ever will, have a lying mountebank sitting on the U.S. Supreme Court.

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