Posted on 02/04/2008 11:35:06 AM PST by ctdonath2
Today, attorneys challenging Washington, D.C’s 31-year-old gun prohibition laws filed their written arguments in the U.S. Supreme Court.
(Excerpt) Read more at dcguncase.com ...
Also, while more rural folks may have had them for hunting, what about city dwellers who had never hunted and therefore never had the need? Did you stop to think that maybe it was these folks that were given 6 month to buy a privately owned musket/rifle if they wanted to serve in the militia?
Nah... that wouldn't fit your preconceived little gun grabber notions now would it...
Gods are you pathetic.
The state would decide, not the federal government. If your state Militia used soda cans as weapons, and if Congress banned soda cans, your state could contest that as a second amendment infringement.
Try again...
Rural folks had muskets and used them for hunting?
Do you know the difference between a smooth bore musket and a rifle?
Me thinks that there be something fishy about that. I’d like to see an undisputed fixed number from the BATFE and evidence to prove that there hasn’t been any add ons for “friends” since the 86 ban. Somehow, I think BATFE would “fail the test” again.
Very interesting observation. If you are correct then the implications are very, very ugly. The numbers given imply that 1/3 of the "transferrables" in the NFRTR today are contraband. It may also be a primary factor in why the DoJ brief brought up 922(o) - if certain people high up in .gov have been rewarding friends, cronies, donors, etc. with a relatively cheap, new, "transferrable" post-1986 machine gun that can be sold for much more, then repealing 922(o) cuts off a major source of revenue for our elected officials.
DOJ Brief: affirms an individual right toward arms.
Heller Brief: dito.
DOJ Brief: argues that the lower court was too broad in its ruling which would make the purchase and ownership of full auto weapons legal.
Heller Brief: argues that the lower court did not address full auto weapons and further argues that the decision doesn’t have any impact.
DOJ Brief: recommends a remand back to the lower court for refinement of the decision.
Heller Brief: recommends that respondant’s claims were valid and the DC handgun ban is unconstitutional.
I suppose my curiosity is that are all the 2A advocates here on FR going to call Heller a traitor just as they called the Bush Admin. a traitor? I mean, there is not much difference in what the briefs assert and recommend. Note that the DOJ merely noted that they had an interest as the Handgun ban was affected. Nowhere did they assert that the handgun ban should be upheld (unless I simply missed it).
And, are the fringe 2A advocates going to bellyache because this brief, as I used in the previous thread, also appeals to Miller, and does not acknowledge WMD’s and other certain types of weapons as protected by the 2A?
Just some curiosity of mine.
Nope. As the court correctly found in Miller (when you actually read the decision, not the various misrepresentations thereof), the militia clause provides guidance as to what sort of weapons constitute "arms" but does not speak to the question of when the right to keep and bear them is protected (like all individual rights, the answer is "always, barring special cases directly supported by one of the enumerated powers of government").
(The Court erred on the fact question of whether a sawed-off shotgun has the sort of militia use that would make it a type of Constitutionally protected "arms", but correctly identified that as the correct question to ask.)
To win, Heller has to show he's playing well with others. Miller is a reality that has to be fit into; Heller is not out to overturn Miller if he can win within the confines thereof. Heller also takes pains to agree with others insofar as any common ground can be found - and still win by commandeering that ground.
Actually, the DOJ brief is pretty darn good, agreeing with Heller on most counts. The betrayal comes from what amounts to "why yes Heller is right and DC is wrong, but we don't like where that reasoning will end up so please bury the case."
To win, Heller has to limit his own case to mundane arms owned for home defense. He _has_ to draw lines cutting off discussion about red herrings like full-auto, military-use-only arms, etc. If he opens up discussion to those ends, his case will end.
You captured the core difference between the two briefs already:
DOJ Brief: recommends a remand back to the lower court for refinement of the decision.
Heller Brief: recommends that respondant’s claims were valid and the DC handgun ban is unconstitutional.
Hardcore 2ndA types (yours truly included) _are_ going to complain about this brief. I really don't like some of the walls he builds (esp.: only common-use, to wit stuff you'd own for non-military use, arms are protected). We do, however, realize the difference between tactics and strategy. If he had argued that full-auto should also be legal, he would have over-expanded the case and scared some judges into terminal opposition.
Nowhere did [the DOJ] assert that the handgun ban should be upheld
I do contend that the bellyachers complained too much about the DOJ brief. The brief was disappointing, but was the logical conclusion of where the DOJ stands: support RKBA, and preserve 20,000 anti-RKBA laws at the same time; the only sane conclusion is to remand and seek some "intermediate scrutiny" that might maybe possibly find a rational resolution (and just maintain the status quo until then). The Executive Branch is tasked with doing whatever Congress decrees, which at this point is becoming impossible. They should be happy that the brief spends more time neatly demolishing DC's stance.
Upshot: Heller had to stop the discussion somewhere, and does so with vague claims that maybe hardcore military arms can be regulated anyway. He just wants an unlocked, loaded, functional Glock in his nightstand. He does not want to get caught up in distracting discussions about "bear", full-auto, WMDs, etc. Let's get this victory, get some core original principles back on the table, and then address 922(o)-type issues. It's the respondent's brief, not the SCOTUS final ruling.
Note that the Court has specifically rejected the argument that such a clause is to be considered restrictive. (See the Eldred case, in which the Court ruled that the "to promote the progress of science and the useful arts" clause does not actually limit Congress' power to grant copyright and patent monopolies).
[Congress has the power] To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;It's the feds that decide the armament, not the state.
Congress’s specific description of pistols as militia weapons in the Second Militia Act, so soon following passage of the Second Amendment, offers conclusive proof that handguns are within the Second Amendment’s protection. PA50a-51a. In defining handguns as militia weapons, Congress broke no new ground. The Continental Congress likewise reported pistols as acceptable militia weapons ... Petitioners and their amici greatly overstate our Nation’s history of handgun regulation. Washington, D.C.’s complete handgun ban was the first such prohibition on American soil since the Revolution. The fact that “never before in the more than two hundred years of our Republic has a gun law been struck down by the federal courts as a violation of the Second Amendment,” Brady Br. 29, is a testament to the extreme nature of Petitioners’ enactments. Notably, Petitioners’ state amici do not defend or endorse a total handgun ban, which none of them maintains. New York Br. 1, 2. ... Various briefs invoke Georgia’s 1837 ban on the sale of certain pistols, Appleseed Br. 13; Law Professors Br. 18; Chicago Br. 14, but none mentions that the act was struck down—on Second Amendment grounds—in an as-applied challenge by a man who openly wore a prohibited pistol. Nunn v. State, 1 Ga. 243 (1846)....
Indeed, if rejected language is any clue as to the meaning of that which was accepted, perhaps the most telling example was the Framers’ rejection of the following proposed amendment: “That each State respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. . . .” FIRST SENATE JOURNAL 126.
This proposal stated, in unmistakably direct and concise fashion, exactly that meaning which Petitioners would divine in the Second Amendment through tortured linguistics, fanciful explanations, and “hidden history.” And it was rejected by the Framers.
My follow-up question would be....
If Miller is picking a battle he can win, and the DOJ is caught between RKBA and upholding existing law, is it not possible that the recommendation of the DOJ brief is a subtle way of trying to have the appearance of concern for upholding existing law, but actually watered down enough that the effect is to help Bush’s supporters?
I mean, Bush campaigned in my state against Ann in no small part that he would sign the CCW into law. Shortly thereafter, I had my license. Is it possible that Bush is trying to actually get a SCOTUS decision that settles the debate on whether the 2A speaks to an individual right or a collective one? And, is it not possible that this is also for Bush a first decision toward firming up in the Courts that we truly do have the right to keep and bear arms.
Like a lot of 2A supporters, I think I should have the right to own full auto weapons. And, I, too, recognize the hazard (and opportunity) in appealing to Miller. And, I do think this might be a good first step.
Personally, I have my eye on an MP-5 variant that supports my chosen defensive round, the .45 JHP, (which fires semi and 3 rnd bursts (if I remember)), to go with the latest in a good quality .223 machine gun. It would make me happy as a pig in swill, even if I would burn through the 3000 components I have PDQ. But, I just don’t see any protection in the 2A for WMD’s.
Yeah, "when" was not the corect word. See my post #174.
You are correct -- Miller only referenced the type of arms protected. Subsequent lower courts have addressed the "who" is protected.
No. The federal government has the power, not the obligation, to provide arms. The states were concerned that the federal government would withhold arms, leaving the states defenseless. The second amendment ensured that the states could arm their own Militias.
You're wearing out Nunn v State. Have you nothing else?
Sure, pistols are used by some in the Militia. So too with swords and sabers. But they hardly contribute to the preservation of a Militia.
No. The federal government has the power, not the obligation, to provide arms. The states were concerned that the federal government would withhold arms, leaving the states defenseless. The second amendment ensured that the states could arm their own Militias.
You're wearing out Nunn v State. Have you nothing else?
Sure, pistols are used by some in the Militia. So too with swords and sabers. But they hardly contribute to the preservation of a Militia.
Conceding that the Second Amendment secures individual rights, Petitioners nonetheless argue that the term “bear arms” is exclusively military, such that the Second Amendment right can be exercised only under the direction of a governmental military organization. Putting aside this rather strange concept of rights—a “right” to particular weapons in an environment where the individual is obliged to obey orders, or a “right” to defend the government but not oneself or one’s family—the text does not support this notion....
To the extent the Second Amendment’s preamble informs the nature of the operative rights-securing provision, the necessity of a “well regulated Militia” does not negate, but rather advances the individual character of the right to arms.
...
The Militia is constitutionally defined as a preexisting entity, separate and apart from an army or navy that might be raised. U.S. CONST. amend. V (“. . . in the land or naval forces, or in the Militia”). “Congress was authorized both to raise and support a national army and also to organize ‘the Militia.’ ” Perpich v. Dep’t of Def., 496 U.S. 334, 340 (1990). “[T]he militia” are not “troops” or “standing armies,” but “civilians primarily”—“all males physically capable of acting in concert for the common defense. . . .” Miller, 307 U.S. at 179.
“Who are the Militia? They consist now of the whole people. . . .” 3 Jonathan Elliot, DEBATES IN THE SEVERAL STATE CONVENTIONS 425 (2d ed. 1836) (George Mason). That “the ‘militia’ is identical to ‘the people,’ ” Akhil Amar, THE BILL OF RIGHTS 51 (1998), is evident from Madison’s description of “a militia amounting to near half a million of citizens with arms in their hands,” who could resist an oppressive standing army. THE FEDERALIST NO. 46, 244 (James Madison) (Carey & McClellan eds., 1990). This militia reflected “the advantage of being armed, which the Americans possess over the people of almost every other nation,” in contrast to “governments [that] are afraid to trust the people with arms.” Id.; BOSTON EVENING POST, Nov. 21, 1768, at 2, col. 3 (“The total number of the Militia, in the large province of New- England, is upwards of 150,000 men, who all have and can use arms. . . .”); NEW YORK PACKET AND AMERICAN ADVERTISER, Apr. 4, 1776, at 2, cols. 1-2 (“Whoever asserts that 10 or 12,000 soldiers would be sufficient to control the militia of this Continent, consisting of 500,000 brave men, pays but a despicable compliment to the spirit and ability of Americans”).
...
The broad civilian understanding of who constitutes “the Militia” continues today. Congress defines “the militia of the United States” as comprising all able-bodied males from 17 to 45, who are or intend to become citizens; and members of the National Guard up to age 64. 10 U.S.C. §§ 311, 313.5 Excluded from this definition of Militia, among others, are “members of the armed forces, except members who are not on active duty.” 10 U.S.C. § 312(a)(3); accord D.C. Code § 49-401 (District of Columbia required to enroll most able-bodied males age 18 to 45 in militia).
In order that the ordinary civilians constituting the Militia might function effectively, it was necessary that the people possess arms and be familiar with their use. After all, individuals called for militia duty were “expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Miller, 307 U.S. at 179. Thus, the “militia system . . . implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.” Id. at 179-80 (citation omitted); see also NEW YORK JOURNAL, May 11, 1775, at 1, cols. 2-3 (recommending “to the inhabitants of this country, capable of bearing arms, to provide themselves with arms and ammunition, to defend their country in case of any invasion”).
That a militia be “well regulated” does not mean that it must necessarily be the subject of state control. With respect to troops, “regulated” is defined as “properly disciplined.” 7 OXFORD ENGLISH DICTIONARY 380 (1933). In turn, “discipline” in relation to arms is defined as “training in the practice of arms.” 3 OXFORD ENGLISH DICTIONARY 416 (1933). Notably, prerevolutionary Americans forming voluntary associations for the purpose of resisting British rule, including Washington and Mason, employed the term “well regulated militia” to describe their associations. 1 Kate Mason Rowland, LIFE OF GEORGE MASON 428 (1892). These organizations were decidedly not sanctioned by any governmental authority.
...
The Second Amendment secures the pre-existing right of the people to keep and bear arms. And it does so, in part, because a militia—comprised of the body of ordinary people proficient in the use of their private arms—was deemed necessary. Were the people denied their right to keep and bear arms, they could not function as a well regulated militia.
The brief sorta contradicts itself on “in common use” vs. “militia suitable”. I wouldn’t look for a conclusive view on NFA stuff in this brief.
Look, I'm not impressed by a post containing a bunch of cut and paste crap. Ever hear of MEGO? Next time, don't bother. I wil not read it.
Make your point. State your opinion. Then back it up with documentation.
Then it makes sense.
...the right of the people to keep and bear arms shall not be infringed.
If the right to arms is held all the way down to the individual, then the state need not worry about acquiring arms that the feds deny.
Obviously you haven’t read the brief, or you wouldn’t have written that.
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