Posted on 11/21/2007 6:33:25 PM PST by neverdem
“The language of the Second Amendment makes clear that it is not the right of the militia which is to be protected. It is the proper functioning of the militia which is the one stated reason for the protection of the Second Amendment, but it is “the right of the people” that is protected.”
“I ask, who are the militia? They consist now of the whole people, except a few public officers.” George Mason.
If the militia consists of the whole people, then there is no distinction or difference between the people and the militia.
“Founders had meant what the Miller Court decided, they would only have protected SOME arms at SOME times.”
In Miller, USSC said that if you can establish a linkage between the milita and the firearm then the firearm is protected. If the militia and the people are the same, then all firearms are protected since one cannot distinguish between the militia and the people.
“Then one can recognize that one of these rights, in its entirety, is protected by the Second Amendment from ANY infringement.”
Depends upon what you mean by ‘ANY infringement’. Certain rules and regulations should and will remain. I don’t believe the 2nd amendment protects the ‘right’ to have heavy machine gun target practice in residential neighborhoods, do you?
The HTML link to Parker is in comment# 1. Is that what you want?
To paraphrase others; What part of "keep and bear" do you not understand?
Of course there will be limitations on when weaponry can be used. But once a fundamental, individual right has been recognized by the Supreme Court, the government's ability to eliminate virtually every use by various limitations will disappear.
Our Founders recognized that people exercising their right to keep and bear arms was necessary to having the well-regulated Militia that security of a free state requires.
A correct reading of the Second Amendment creates an obligation to be attentive to the necessity of an armed populace and to avoid any governmental interference that unduly limits the effectiveness of peoples' arms.
This means that so-called public golf courses should be converted into firing ranges. Eminent domain should be used to confiscate the "Kelo" properties and turn them into armories for the convenience of the people in storing and maintaining their larger arms.
When I am not using my tank on my property on weekends, I can use a secure place to store it in town.
There are residential neighborhoods in existence today which dictate to their residents what color the mailbox can be. I see nothing wrong with such a neighborhood encouraging practice with any arms they find useful.
Yeah El Gato brought that point up as well......wait and see.
I hope ya’ll are correct !
Hope you had a great thanksgiving day BTW !
Stay Safe !
for private use in their homes????
There are already those who claim that the Founders could not possibly have intended the "insurrectionist" meaning of the Second Amendment; that is, that the right to keep and bear arms represents the people's ultimate power to alter or abolish their government, a right of the people which was exercised by adopting the Declaration of Independence.
Without the Militia clause, they would be claiming, despite any Supreme Court decision establishing a protected individual right, that such right could not possibly include having any weapons equivalent to what the standing army or the police use. They would actually be claiming that our hunting or sport should be limited to muzzle loading rifles. You can bet on it.
“There are residential neighborhoods in existence today which dictate to their residents what color the mailbox can be. I see nothing wrong with such a neighborhood encouraging practice with any arms they find useful.”
My ‘neighborhood’ includes a firing range. I built it last weekend. Having 10 acres several miles from the nearest town is rather convenient. Having a tractor helps too.
I read some time ago that people in Europe (I think it was Germany) are EXPECTED to use silencers on their firearms so as not to disturb others with the firing.
All the liberals in the US, whose experience with firearms is limited to James Bond movies, would have heart attacks if the laws were re-written to REQUIRE that disturbed neighbors pay for the silencers.
Your situation is practically identical to mine. Unfortunately, my acreage is shaped convexly, rather than concavely. My neighbors and I share a seasonal creek that runs down a canyon.
I have received permission from one to fire into their place, but its hard to do that. As it is, I am able to accomplish what I need to without having a really effective range.
I should go out soon and do some more firing. It's not good to go too long without letting the more liberal neighbors hear the firing. I don't ever want them to consider it unusual.
My guess is that they didn't want a large standing army which they saw as a threat to liberty, so they stated an explicit benefit to the states of an individual right to keep and bear arms.
What laws have been effective at keeping guns out of the felons and crazies?
Good guess, but I disagree.
This case decides whether a citizen in D.C. has the right to use a handgun in the privacy of their own home. Let's point out several facts not yet emphasized in this discussion:
1. Using a handgun implies owning both a handgun and ammo, having the handgun loaded, and also a lack of trigger locks, etc. which would prevent usage.
2. Few, if any, guns and ammo are manufactured in D.C. The way the question is worded does an end around sticking interstate commerce bloviations into the question, and, in my unhumble opinion, tells me how the USSC is going to rule.
3. Stating in their homes (read "in the privacy of their own homes") tells me that Roberts is going after the anti-life four by subtly invoking the penumbra of privacy into the discussion. I don't think it's going to work, but as an observer of the game of pool (not a shark), I also think he's setting up a reconsideration of Roe v. Wade. You see where you want the start of the next argument in how you line up this one.
4. Bush does *not* want a similar legacy to his father (tax increase, indecisive war, sandwiched between Clintons. eww! scratch that last). Plus Bush is a Texan, so this case had to come this turn. I just convinced myself that Alito is going to write this decision. Bork would side with Ginsburg on this. Kennedy will side with Roberts, but won't go as broad as Alito.
Wonder if the DC Mayor has a gun or bodyguards
Depends on what’s actually decided.
The issue at hand is whether 3 specific DC laws are unconstitutional. If Mr. Heller wins, then those 3 laws are revoked and DC residents get to exercise their RKBA (in the context of whatever other laws remain, a different discussion). In a sense, yes, the case can and likely will be decided so narrowly that it will, strictly speaking, only apply to DC.
HOWEVER...
In order to achieve any ruling, SCOTUS has to establish (and typically explains, though is not required to!) the principles by which that ruling is achieved. THIS is the precedent that actually interests the rest of us, and which defines principles by which other cases can be brought and laws overturned. Should they explain that laws X, Y and Z are unconstitutional because of constitutional principles P, D and Q, those principles can be referenced as justification for other actions. For instance, if SCOTUS says handguns cannot be banned for general private home ownership/use because of the generality “arms...shall not be infringed”, then I will file suit demanding my right to own an M4 for home defense on the same principles.
Yes, the case could be decided very narrowly. It will most likely NOT be so narrow as to be completely useless elsewhere. Note that the question addresses individuals not acting as part of a state-organized (regulated, modern definition) militia.
While the specific laws being considered are DC-specific, the legal right and class of individuals are not DC-specific, so whatever the ruling is likely could be translated to other people and situations via “equal protection” - which will promptly raise the “incorporation” question, addressing whether the states must respect RBKA just like the feds have to.
(Awright, I’m fried. Let me know if the above doesn’t quite make sense.)
Try buying a new M16 that doesn’t cost over $12,000.
Yes, there is a very narrow exemption for machinegun ownership. HOWEVER, the exemption means that the crappiest used legal machinegun will cost you more than what three brand-new M4s SHOULD cost.
It makes great sense. I always find your posts to be extremely valuable, and not so legally esoteric or jargon-ridden as to fly over my head.
With a Democrat controlled House and Senate, a fat lot of good that would do. They'd be more likely to bring forth a bill of impeachment if the Court rules that the Second Amendment does protect a "right of the people".
Not the way they've framed the question. Yes the decision will apply directly only to the DC laws at issue. But the principal and precedence for future cases will be that *Individuals* with no militia affiliation, have second amendment rights. Just what those rights are would remain to be legally defined, except in the same circumstances as the DC laws would be found to be violate them. (Yea I know what they are, but the lower Courts don't seem to understand the terms, "keep", "bear" and "arms", even when they do understand "right of the people", which is too rare in itself.)
That is why I/we need to understand just what the three sections of the DC law mentioned in the "Question" prohibit. If those prohibitions are found to violate the second amendment, the same provisions in other laws, at least at the federal level, would also violate the second amendment. Then the next battle would either be other federal laws, or determination of the whether the 14the amendment extends the protections of the second amendment to the states. Preferably both at the same time.
Well it might be in there somewhere. But IIRC, Parker, et. al., concerned more provisions than "Heller" does, because of all the folks in "Parker", only Heller was found by the Circuit Court of Appeals to have "standing". However the others filed a cross petition to the Supreme Court, appealing that ruling, and seeking to recombine with the "Heller" case. It was considered the same day as "Heller", but I haven't seen what action the Court took on that petition, either way.
Again I haven't followed everything closely enough to know if the three sections involve only Heller, or the other provisions as well.
I've been kinda busy, what with becoming the grandfather of TWINS, and haven't had time to do my homework. Hopefully some tomorrow.
Actually they were both. They were state organized, but subject to federal call, and were to be trained according to federal "discipline" (which can be thought of as "training standards". Congress was to provide for arming them, which they did by requiring them to provide their own arms, of a specified type, which pretty much was the same as issued to regular troops, alhtough the militiament were free to bring rifles, rather than muskets, if they desired and were allowed by the state appointed officers.
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