Posted on 07/16/2007 8:03:08 AM PDT by ctdonath2
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.
My point was the Miller court did not deliver a substantive holding on Mr. Miller's weapon. They implied, in general, that only Militia-type weapons were protected by the second amendment, leaving it up to the lower court to determine if Mr. Millers weapon qualified for protection.
Oh, and it is NOT up to Mr. Miller to make that determination.
Just like it's not up to him to decide who will be the next president, or that he's free to walk down the street?
I'm beginning to detect a shortage of Ninth Amendment awareness here. Part of which is that the legislature has no power to make arbitrary law.
Which the Sullivan Act was. Particularly when it invaded the People's Second Amendment rights to unload its arbitrariness, which became thereby arbitrariness squared by repugnance to the Constitution.
To which you will now rejoin by attempting to pull rank, pointing to the Supreme Court and calling neener neener neener on our unjusticed beeves with the Government, all of which tend in the same direction, to-wit a Government which has made itself overmighty, unlike the seemliness of the Swiss government, whose leaders have no aversion to languishing in obscurity because they serve their federation, rather than themselves and their legends.
These men claim that 'We, -as a society', decide which rights we will protect --- And if 'We' choose not to protect your right to do [whatever], so be it. If and when a majority of the people decide that we should protect a right, then we will. Given that we're a self-governing nation, there's nothing to stop the majority from deciding this.
--- For instance, if there's nothing in a state constitution about the right to keep and bear arms [and States can change their constitutions by super-majority decisions], - then --- States can ban all guns if they so chose.
It was customary for the member to bring his own weapon. He had what he had, whether he customarily went for bear or for turkey. The only requirement I recall seeing was that Virginia specified that the man have a firelock of some kind.
You will further recall from reading or hearing about colonial Virginia, that pieces of the 17th century were often loaded with compound charges, viz., a principal projectile of tube caliber or near it, plus some secondary shot of smaller caliber, about .20 in. size, or about the size of 00 buck. So those old firelocks functioned somewhat like shotguns.
I doubt a man who showed up lugging a side-by-side blunderbuss loaded with the equivalent of 000 buck or a brace of wheellock pistols and a rapier, or perhaps even a crossbow, would have been sent home to fetch some other piece. Crossbows weren't obsoleted in regular Spanish service until about 1560 and survived in use elsewhere for some time. They were used for hunting at Jamestown (Source: www.gutenberg.org/files/16277/16277-h/16277-h.htm#caltrop ) and also among impoverished whites in southern Appalachia later on. Longbows were also provided to the Jamestown colonists, who however decided to store them within reach on Bermuda against exigent need rather than casually expose their technology to the Powhatans.
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.
Which, as I say, was baloney, since there was no such thing as "Militia-type weapons" in 1789 as distinct from what was available for self-defense and hunting. If the Court meant to say, "military weapons", meaning the Krag and Springfield rifles National Guardsmen commonly drilled with in 1939, then in so saying it would have incidentally embarrassed the provisions of the act that encumbered, or should I say "infringed on", ownership of machine guns.
The point here is that the Court in Miller was engaging in some rotten "one-eyed-man-with-a-squint" attainder of the defendant through his weapon, because the defendant was a notorious hoodlum whose co-defendant was already dead and whose attorney had abandoned the case.
What the Court really meant was, "there is no way that we will allow the appeals court to unburden you of a long prison sentence, because we know you by your reputation; and because of that baleful knowledge, we are prepared to discover new categories of weapons that the Second Amendment applies exclusively to, for the purpose of excluding your weapon, whatever it was, for the further purpose of sending you and all of those notorious Italian and Jewish gunsels to jail because you're all notoriously guilty, as far as the Court is concerned, of anything you're charged with; and by the way, whatever the Government wants to do with your rights, we are perfectly prepared to countenance, if only the outcome lands you all in prison where you belong."
Not that I am a fan of Mr. Miller or of Frank Nitti, but that was essentially what the Court did, and they did a good job of pretzeling our rights in the course of doing so. Which is why Franklin Roosevelt sent this case up to them on appeal: it was like shooting fish in a barrel, and so the ideal test vehicle for getting the very unconstitutional Sullivan Act declared, at the eleventh hour and in its extremity, constitutional.
Huh?
Since the second amendment protects the formation of a state militia from federal infringement, it is the state itself which would bring a second amendment case against a federal law.
"Particularly when it invaded the People's Second Amendment rights to unload its arbitrariness
The Sullivan Act is a state law. The courts have repeatedly ruled that the second amendment protects against federal infringement only. Which is exactly the way the Founding Fathers wrote it.
I don't understand why you care about the Sullivan Act. It only affects New York, and it's what the citizens of that state wanted. Who are you to tell them how to live? How would you like it if New Yorkers started saying Texans shouldn't have concealed carry?
"That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack."
-- Militia Act of 1792
So much for your theory.
"The point here is that the Court in Miller was engaging in some rotten "one-eyed-man-with-a-squint" attainder of the defendant through his weapon"
The court could have said that Mr. Miller wasn't a militia member -- therefore the second amendment didn't protect his RKBA. You prefer that?
They've already claimed it, with the NFA and then with the Gun Control Act of 19, um, 87 I think it was, that forbade the manufacture for sale to the public of machine guns.
All of which the Supreme Court has rubberstamped. Because East Coast judges bring their East Coast prejudice against guns with them to the bench -- and then torque it up some more when they get to the High Court.
Not that Janet Rogers Brown, a Californian appeals-court judge on the Ninth Circus, is any friend of firearms owners and their RKBA: she is on record as walking away from 2A in a firearms case. And she is alleged to be conservative.
And thank heavens we don't, or ever will, have a lying mountebank sitting on the U.S. Supreme Court.
Is that prospectively, or a priori? Do you mean that in a penumbrous or interstitial sort of way?
I was thinking of Billy Brennan and his post-retirement autobiographical gloatfest about the manure-caked career of legal positivism in the federal court system.
No, it doesn't. It says that the right of the People, is what shall not be infringed.
It doesn't specify either the infringing authority or the reason.
Sorry, I've confused it with the National Firearms Act.
I thought Sullivan was NFA's sponsor.
Not that the Sullivan Act is any more protected under the Constitution than the racial covenants that once restricted my property deed in my house once were.
But you're right to insist on the correction.
How about if the Governor of New York declared himself dictator perpetuus, abrogated his state constitution the way Santa Anna did the Mexican constitution of 1824, and sent his legislature home under arrest? How would you like it if Texans acquiesced in that, particularly the one in the White House?
--- For instance:
They argue if there's nothing in a state constitution about the right to keep and bear arms [and States can change their constitutions by super-majority decisions], - then --- States can ban all guns if they so chose.
-- Or -- that the second amendment only protects the formation of a state militia from federal infringement, - when it clearly protects the right of the people from all infringements, fed/state or local.
These men simply cannot understand why citizens care about State or local infringements, -- possibly because they do not agree that we are all obligated to preserve, protect and defend the US Constitution as our Law of the Land.
-- Which they insist does not affect what rights the citizens of a state want protected.
They ask who are to tell others how to live? -- How would it be if one state's citizens started saying another's shouldn't have concealed carry?
The answer is - of course, - in our US Constitution's 10th, -- States are prohibited such powers.
You're getting just real close to saying that anyone who doesn't have a JD degree isn't entitled to an opinion.
That where you're coming from? Let's cut to the chase. Quit humoring me, Paulsen. Get to it.
And oh, by the way, that was precisely the Court's holding in the equally rotten Presser vs. Illinois. Illinois had restricted its State National Guard roll to 8600 men, all openings filled with politically reliable Republicans and their kinsmen and friends. It then added gun laws that applied to everyone else, and used them to arrest Presser.
That was the 1792 act. Things were not that organized during the Revolutionary War and the colonial period. Notice, e.g., that the 1792 act still doesn't specify rifle or musket -- some men had rifles -- or caliber either, and the men are still bringing their own weapons and ammunition. Congress has standardized a few things, including the major weapon type. But in terms of the discussion in The Federalist, it's still a Militia and the weapons are not closely standardized to a single pattern or caliber.
During World War II, when surplus Army rifles were suddenly in short supply, the Texas State Guard members, as noted on its website previously linked, resorted to arming themselves with personal or civilian weapons obtained from civilian suppliers.
Oldy but goodie bump.
The socialistic line on misinterpreting the 2nd never changes.
The U.S. Constitution [Misinterpreted] Online
Address:http://www.freerepublic.com/focus/f-news/1168296/posts?q=1&;page=1
Those laws prohibited the interstate transportation of a very narrow category of weapons, deemed to be injurious to the public health and safety, not even close to your "barrel lengths of zero inches".
I'm simply telling you what IS. You're telling me why it shouldn't be -- with your running theme being that the decisions were made by know-nothing jerks. Not what I would consider to be a "strong argument".
Perhaps if you had a truer picture of what the U.S. Supreme Court will be examining as stare decisis you'll be less enthusiastic that they're even reviewing Parker.
Exactly. Which provides us a window through which we can see to determine the meaning of the second amendment. The Founders did not intend that the Militia members bring whatever they had handy. The were after a "well regulated" Militia, armed and trained and led by officers appointed by the state.
You're describing a disorganized mob preparing to storm Dr. Frankenstein's castle armed with torches, clubs and pitchforks. Formidable, but not quite what the Founders had in mind.
My hypothetical was just that, intended to show the danger inherent in letting Congress legislate "infringements" using the Militia clause. They have to pass some sort of implementing legislation, I realize, but to let them start micromanaging the Militia means giving them the means to abolish it. Unfortunately, the courts are an institutional enemy of an armed People and exhibit the bias I've seen in your remarks, of "I'll let you know what your rights are and when to exercise them".
The firearms acts I reference are far broader than interstate transportation. NFA requires all automatic weapons and all "Class II" weapons to be registered and taxed. The power to tax, etc. The later act was intended to annihilate the supply of automatic weapons, which are Militia weapons btw (the Swiss issue their fully-automatic STG's to their citizens every day), by providing that no new weapons could be manufactured for sale or use by "civilians" not members of a police force.
The tendency of all these laws is to reduce the People to supinity beneath the feet of their own servants and remove from their hands their ability to defend their freedoms whether politically, in the law-courts, or in the streets, and I thought you would be able to see that. The condition of citizenship today is much more like perpetual house arrest than the freedom our great-great grandfathers enjoyed.
They also intended that the Militia be substantial enough, that the United States could and should dispense with the institution, which they deemed and warned would be dangerous to liberty, of a large standing army. So guess what we have today.
The professionalization of the Roman army led directly and in a straight line to military adventurism and despotism. It continues to do the same thing year-in and year-out in Latin America, which is a survival of the classical culture of the Romans, by way of the survival of same on the Iberian peninsula. The Framers were acutely aware of the dangers, having seen them in recent European history, of a professional military and its detachment from the People's welfare.
The Militia was to be a counterweight, but it has been co-opted by a series of Presidents and federal laws, beginning notably with the administration of Theodore Roosevelt, who wanted National Guard units to support his Philippines campaign. Congress passed a law in 1902 or 1903, but the legislation of 1907 is the one I've seen referred to as the most current on the President's power to call the National Guard to service overseas. This novelty was introduced in furtherance of the Mahan Doctrine, of engaging enemies as far from our shores as possible to alleviate the possibility of military and naval blockade, occupation, and blackmail of the eastern seaboard cities.
Elaine Scarry fairly recently dealt with these issues and original intent in her 1991 University of Pennsylvania Law Review article, "War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms". "Distribution" in the title refers to distribution of power in the Constitution and the deliberate modifications thereto made by the Bill of Rights. She discusses the nature of "consent" to the Constitution and discusses the distribution of power, including veto power, to the government(s) and the People, the latter whether in the jury box (petit or grand), the polling booth, or in arms as the Militia.
http://www.saf.org/LawReviews/Scarry1.html
Her argument is that there are shortcomings both with strategic-weapons doctrine and with the Militia doctrine in the United States today, both of which have diverged dangerously from the Framers' intent and offer insufficient checks to the would-be lords ordainers of the government of the day. A useful thought to keep in mind as we contemplate the possibility of Hillary!(TM) in the White House with her cryptosapphic coven of driven personalities.
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