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 ...
"These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
They were expected to appear for service bearing muskets (as outlined in the Militia Act of 1792). Therefore, "common use" means "common military use" not "commonly used around the farm".
If there was any honesty to his posts, you could call it sophistry. There isn't, so it's just plain old trolling.
You just made that up. There is no precedent for it. This is your opinion only.
It's in the DC Circuit's Parker opinion which you obviously didn't even bother to read.
"In sum, the phrase “the right of the people,” when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual. This proposition is true even though “the people” at the time of the founding was not as inclusive a concept as “the people” today. To the extent that non-whites, women, and the propertyless were excluded from the protections afforded to “the people,” ..."
So, if the preamble is as non-specific as you say and the RKBA is also protected for other reasons (like self-defense, competition shooting, and hunting), then why wasn't the right protected for these other groups of persons?
The simplest explanation is that the right was ONLY protected for members of a well regulated state Militia. I expect your explantion to be quite convoluted and not simple at all. If you even have an explanation.
Exactly. And at the time that mean muzzle loading arms. Muskets, rifles, pistols and cannon if you had them. Today it means bolt rifles, pump shotguns, auto loading shotguns, rifles and pistols, revolvers and (gasp!) automatic rifles firing self contained cartridges.
Correct. I said that way back at post #48.
The operative clause is already limited. It's limited to "the people". Not everyone. Not every person. Not every individual. Not even every citizen.
"The people". The enfranchised body politic. Adult, white, male citizens, who comprised less than 20% of the population in 1792. Their right to keep and bear arms was protected. WHY JUST THEM?
Well, we turn to the preamble for an explanation.
(sarc)Oh heavens... Maybe we have no rights at all since the Constitution doesn't cover Uzbekistani natives...(/sarc)
Don't be a retard.
Freedmen blacks and even women fought in the militia during both the Revolutionary and Civil wars. And yes, their RKBA was as protected as white, landed, males were.
In prior discussion, you admitted that the lack of protection afforded those groups has subsequently been corrected to include them.
That quote makes no reference to the preamble at all. It refers to the operative clause and the language "the people".
The simplest explanation is that the right was ONLY protected for members of a well regulated state Militia. I expect your explanation to be quite convoluted and not simple at all. If you even have an explanation.
No, that is the stupidest explanation. As it said clearly:
"This proposition is true even though “the people” at the time of the founding was not as inclusive a concept as “the people” today. To the extent that non-whites, women, and the propertyless were excluded from the protections afforded to “the people,” ..."
It does not mention a damn thing about excluding men not in the militia, now does it? They were referring to the racism and paternalism of the time. And they clearly indicate that those exclusion would not be tolerated today. Your penchant for relying on racism precedent not withstanding.
Is Mr. Heller one of “the people”?
It wasn't "just them" by exclusion, but by neglect. It didn't occur to the Founding Fathers that non-white non-male non-citizen non-able and/or non-adult individuals would be asked/expected to engage in combat.
Pay attention. I did not say that. I said that's the obvious conclusion.
A) I said "the people" were adult, white, male citizens. The DC Circuit in Parker confirmed this.
B) The phrase "the people" is used in the second amendment. So guess who they are? (Hint: Refer to "A".)
C) The Militia Act of 1792 was very specific as to who qualified to be a Militia member. It says only adult, white, male citizens need apply.
Now, I'm kind of a reasonably intelligent guy, and so I look at A, B, and C and notice they ALL have one thing in common. So, to me, it's not much of a stretch to conclude that the right is protected for members of a Militia.
Not according to the Militia Act of 1792. Where are you getting your information?
Whatever. The important point is that they were expected to bring arms of common military use.
Petitioners’ collective-purpose interpretation is also at odds with this Court’s only direct Second Amendment opinion in Miller. In examining whether Miller had a right to possess his sawed-off shotgun, this Court never asked whether Miller was part of any state-authorized military organization. “Had the lack of [militia] membership or engagement been a ground of the decision in Miller, the Court’s opinion would obviously have made mention of it. But it did not.” United States v. Emerson, 270 F.3d 203, 224 (5th Cir. 2001) (footnote omitted). Indeed, the government advanced the collectivist theory as its first argument in Miller, PA40a, but the Court ignored it. The Court asked only whether the gun at issue was of a type Miller would be constitutionally privileged in possessing.From the above, you commented as follows:
But that was a contention, ignored by the Court, in the Government's brief....Thus it can at least be inferred that the Court has already rejected the "the people means the militia" and the "militia" means state controlled military organization.
Because SCOTUS previously "ignored" and did not rule upon the militia matter, it cannot be inferred that it is a matter of settled case law, per SCOTUS, that it has therefore decided that a militia means a governmental entity or under governmental control. It ignored this matter, and, thereby (intentionally) sidestepped that entire matter. I believe it did not WANT to have anything to do with ruling on that. Now, in this case, it may not be able to side-step.
No, the DC Circuit in Parker admitted that a couple hundred years ago those were the people who, in practicality, were protected. You have admitted that the limitation has subsequently been corrected. Save for "strict scrutiny" limitations, all citizens (and to a great degree resident aliens) are included in "the people" referenced throughout the Constitution, regardless of gender or race.
B) The phrase "the people" is used in the second amendment. So guess who they are? (Hint: Refer to "A".)
Today, they are pretty much everyone, save a few groups (children, felons, insane, illegals, enemies) identified by strict scrutiny. "Equal protection" has been applied appropriately.
C) The Militia Act of 1792 was very specific as to who qualified to be a Militia member. It says only adult, white, male citizens need apply.
The Militia Act of 1792 has been repealed. The militia now officialy consists of ... well, you know. ...but we weren't talking about the definition of "the militia", we were talking abou the definition of "the people". The operative clause of the 2ndA refers to "the people", not "the militia".
Now, I'm kind of a reasonably intelligent guy, and so I look at A, B, and C and notice they ALL have one thing in common.
And that would be ... all of them are wildly outdated. The rest of us are in the 21st Century; come join us some time, would you?
Sure. Today it's different.
But you said the "Founding Fathers meant no such restrictions". So I had to go back to that time. To prove you wrong.
I agree. I don’t know if you read the brief (it took me a couple of hours to truly “read” it through...); but it was time very well spent. It’s an excellent brief and makes very sound arguments. Quite persuasive.
Where in the Militia Act of 1792 were militiamen prohibited from having/bringing muskets, rifles, pistols and/or cannon?
Do you not understand the difference between minimum requirements vs. prohibitions? Ya see, militiamen were required to show up with muskets or flintlocks, but if they also brought a rifle, pistol, or cannon that would be a good thing, no?
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