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 ...
That "little ditty" is what the first five pages of prose in the Heller brief is all about.
I'd post the relevant parts, but your eyes would glaze over.
(Apparently you still have not read it. Please do so, as it's tiresome hearing your regurgitations when the very subject of this thread has addressed and demolished your points.)
Obviously you are not clear on this.
The point of this thread is to discuss the Heller brief.
If you will not discuss it, and will not read quotations thereof, then please leave us to discuss it in peace without your voluminous nonsequitors.
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. [Emphasis added]
In the Heller brief, the following appears at the bottom of page 3 (which is the summary of the Respondant’s argument):
“Under this Court’s precedent, the arms whose individual possession is protected by the Second Amendment are those arms that (1) are of the kind in common use, such that civilians would be expected to have them for ordinary purposes, and (2) would have military utility in time of need. A weapon that satisfied only one of these requirements would not be protected by the Second Amendment. Handguns indisputably satisfy both requirements.” [Emphasis added].
For once, I agree with Robert Paulsen (but probably not for a reason that he'd like). IMHO, the brief stated the law incorrectly, in that it is too limiting of the types of weapons that are protected by the 2nd Amendment. The correct statement of the law would have mentioned weapons that are "part of the ordinary military equipment" and which can also contribute to the common defense." To me, in light of the use of all kinds of weapons by partisan and special forces in WW2 and since, ANY weapon would be so protected. If RP wishes, I'll be glad to limit that to weapons that can be carried by a single man of average build - that way we still get BARs and M2s.
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 Peti- tioners would divine in the Second Amendment through tortured linguistics, fanciful explanations, and “hidden history.” And it was rejected by the Framers. “[H]istory does not warrant concluding that it necessarily follows from the pairing of the concepts that a person has a right to bear arms solely in his function as a member of the militia.” Robert Sprecher, The Lost Amendment, 51 AM. BAR ASS’N J. 554, 557 (1965). 11
From the brief.
Ah. A primary reason. But one of many reasons. Could be anything. Actually, it has to be anything beause a preamble cannot limit.
Fine. So guns are protected for hunting also. Then why were guns only protected for "the people" and not all persons or all citizens? I mean, what's wrong with a 12-year-old, or a woman, or a slave, or an Indian or a non-citizen using a gun to hunt? Or for target practice? Or self-defense?
WHY RESTRICT THE RIGHT TO CERTAIN PERSONS?
"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"
If you wish to compare this to the second amendment (while maintaining Miller), it would have to read, "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries in the areas of science and the useful arts.
Awkward, but it's your analogy.
This canard of yours is not only getting old, it's been demolished so many times you should be embarrassed to be still trying it.
WHY RESTRICT THE RIGHT TO CERTAIN PERSONS?
Because "We the People" in the United States only have control over what we do. Our Constitutions protections for our Rights can only extend as far as our Countries domain is concerned. Your trying to limit it further by using Klan language is going to win you any arguments either...
Regardless of which interpretation of the preamble one uses (inclusively explanatory, or exclusively limiting), and which interpretation of "the people" one uses (anyone not subject to strict scrutiny, or only militia members), Miller makes it clear that at minimum military arms are what the 2ndA seeks to protect. I will not go as far as to agree to the popular "no crew-served arms" restriction, as there is NO indication that is what was meant, and as Heller details the conception of the 2ndA as beginning when our Founding Fathers were actively opposing tyrrany.
Heller's mistake (or tactical choice) was to limit "common use" to mean those items which individuals own primarily for uses other than military, to the exclusion of those items which have little/no non-military use. Methinks this would be well within what the Founding Fathers had in mind, so long as one had the $125K needed to buy it (it is not so awesome as some attribute, being small enough to tow behind a large SUV and can be handled by one person in a pinch). At minimum, personal ownership of plainly military arms (crew-served included) is protected - else what could the Founding Fathers have been thinking, having just acted as an aggregate of individuals overthrowing a tyrranical gov't?
Seems DC vs. Heller comes down to whether the prefatory clause is inclusive or exclusive, and thus places an obviously individual right (which even DC admits) entirely within or without the dictates of government. Either way, military arms are protected - a point which Heller fumbled, though perhaps not badly.
I further explained it in my post #174.
"The right is not protected for all persons. It's not even protected for all citizens. It's a right protected for a certain group of individuals for a certain purpose. Hence, the preamble -- which doesn't limit the right, merely explains it."
Why can't you read like everyone else? Why do I have to personalize all my responses to you?
ONLY for certain individuals, not every person. Leaving open the obvious question, "Why?"
The preamble gives the reaason.
YOU are the one concocting restrictions. We're arging that the Founding Fathers meant no such restrictions as you keep promoting, and that anyone not a male 17-45 had a right to mundane use of arms as to be so obvious that the Founding Fathers didn't conceive of discussing it. Methinks it never occurred to them that anyone would be so bent as to deny such rights to women & children etc. qua women & children etc.
Funny thing, that. You're so convinced "the people" is narrowly limited that you can't imagine anyone thinking otherwise, and now find yourself arguing against your own hard-fought position.
Answer my question first: "Rural folks had muskets and used them for hunting?"
Are you still not reading the brief? That’s addressed. In the section “Preambles Cannot Negate Operative Text”, the brief at length addresses the convention of the time that the preamble does not limit the operative clause. Ergo, the “militia” of the preamble does not limit “the people” of the operative clause. I’ll let you go look it up (starts page 5, five pages) yourself since you have expressed a pathalogical aversion to me quoting it.
Of course they did. They still do.
What defines “the people” in the operative clause to include none other than active militia members?
We keep asking you to clarify because your answers don’t make sense.
Could you seriously look George Washington in the eye and tell him that the 2nd Amendment does not include Martha? and expect him to say “why yes, you’re right”?
Yes. Of course they did.
http://www.jaegerkorps.org/neumanNRA.html
http://www.concordma.com/magazine/janfeb02/brownbessmusket.html
Learn some history.
In post #154, William Tell said, "I can see references to "common use" on pages 44 and 52. But these references are in the context of the "Miller test".
And the Miller court was referring to "common military use. I rest my case.
The answer to the Miller courts question though, is quite obviously that "anything that can be used as a weapon can be employed by the Militia". Short barreled shotguns or sharpened rocks. Shoe laces or razor wire.
To deny these have militia utility is to be so completely ignorant of warfare on a scale that makes any other arguments you may try to present pointless.
Sigh ... obviously you haven’t read the brief, as you plainly missed a large section which differentiates “common use” from “common military use”.
Most of his arguments are pointless. He is, however, persistent.
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