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To: Petruchio
ok constitution 101 guy, the supreme court (ever heard of them?) defines the "right to keep and bear arms" defines that to mean being part of a WELL REGULATED MILITIA...... class dismissed.
175 posted on 11/18/2003 11:13:01 AM PST by rpd35 (retired and 100% disabled as a result of protecting the public)
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To: rpd35
ok constitution 101 guy, the supreme court (ever heard of them?) defines the "right to keep and bear arms" defines that to mean being part of a WELL REGULATED MILITIA...... class dismissed.

Not hardly. The last time they ruled directly on the subject, they ruled that a district court judge should not have ruled without taking evidence that keeping and bearing a short barreled shotgun could have some relationship to the maintaince of a well-regulated militia. This dispite the fact that about the same time the law in question, the 1934 National Firearms Act was being passed, US Marnines were making good use of such weapons in the jungles of Central Amercia in the so called Bananana Wars, State National Guards, as well as police, prison and military guards in various places. The first court that used that "Miller" decision stated that if the decision were taken as being a rule (which is what Supreme Court decisions are usually considered) then no modern weaponry would be ban-able, because virtually everything had seem some use in resistance movements in Europe. Y'all can read the cases for yourselves. Miller and Cases (Can I help it if the case was from Puerto Rico and the no goodniks name was "KA SAYS" :)?

In both cases, the discussion of the right to keep and bear arms as protected by the Second Amendment clearly indicates that the right is an individual one, (i.e. A right of the people, just like it says).

From "Miller" Which is the last time the Supreme Court ruled directly on the Second Amendment:

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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

...

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.

The Government argued in their brief, as you do, that the right is one belonging only to the organized state Militia. The court didn't even mention that position in it's decision. The case was apparently decided based on that Aymette referance, which is a pre civil war state court decision, from a state whose RKBA provison includes the words "for the common defense", something that ws proposed in the Senate for what became the Second Amendment, but rejected. Of course there was no oppossing coucil to make that point to the court, only one side of the issue was briefed to or heard by the court. I guarantee it won't be that way the next time the Court hears a second amendment case.

From "Cases":

the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities, -almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.

Of course that's exactly what they intended. In their day private ownership of cannon and ships armed with cannon (pretty much the ultimate weapon of the day) was not uncommon. The Constitution recognizes these privately owned warships, which were part of no militia, in it's provision providing for Congress the power to issue Letters of Marque and Reprisal" (Art 2 sec. 8) A letter of Marque is a "hunting license" to hunt down and sink or capture merchant shipping of an enemy power, all the major and many minor nations, like the fledgling US) issued them at the time. The reward was getting to keep or sell the booty taken from captures.

184 posted on 11/18/2003 11:42:27 PM PST by El Gato (Federal Judges can twist the Constitution into anything.. Or so they think.)
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