Posted on 09/23/2006 11:02:00 AM PDT by cryptical
History lesson: Second Amendment requires regulation
First, a calming caveat: Saul Cornell doesn't want to take away your guns. He's neither antigun nor progun. He really isn't a gun guy at all. His thing is history.
Cornell, a professor at Ohio State University, passed through town the other day with much to say about regulating guns. Yet his aim isn't to take sides in the modern gun-control debate -- a squabble he thinks has strayed rather off-topic. It's far more interesting, he thinks, to look back to learn what this country's founders actually thought about gun regulation.
They couldn't imagine life without it, says Cornell. That's the point of his new book, "A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America." In it, Cornell excavates the foundations of the Second Amendment and offers some startling conclusions.
"As long as we've had guns in America," says Cornell, "we've had gun regulation." In fact, the Second Amendment's chief purpose is to assure such regulation. Without it, the founders feared, anarchy might take hold.
(Excerpt) Read more at startribune.com ...
Which was criminal, not military, in nature. When I say personal use, I'm distinguishing it from weapons used in a support capacity (SAW's, artillery, mortars, flame throwers, grenades, etc.
First of all, I'm not confused. Second, "prior restraint" only applies to speech/press issues, so there's no one-to-one comparison to anything else.
I'm saying that the second amendment may be reasonably regulated as well as the first or any other amendment. To say that we can't touch the holy second amendment is ludicrous -- that we must protect the right to keep and bear all arms, by all individuals, all the time.
Oh, and to the best of my knowledge, the government does not punish irresponsible acts. We punish illegal acts.
Putting aside the various interpretations of the 2nd Amendment, perhaps you could be so kind as to demonstrate to us where the federal government is granted the authority to restrict private ownership of weapons?
But you've also said that ALL arms are useful to a militia. Correct? So why even bring up the militia? Why not say, "The Miller decision is completely consistent with an individual right to keep and bear all arms"?
"You have already stated that they were silent with respect to militia membership."
Well, yeah. Miller was not charged with not being a militia member. No one came out and said that he had to be a militia member to possess a shotgun of this type. It never came up. It wasn't an issue.
He didn't have a tax stamp. That was the charge. Period. He challenged the law on that basis.
For maybe the tenth time, read the Militia Act of 1792. It spells out what weapons the Militia members were responsible for and what weapons the state was to provide.
Tell me where the infringement is. Please.
"Well regulated" is a term found in the writings of Machiavelli and indicates a citizen militia, as opposed to a mercenary/professional army.
BWAHAHAHAHAHA! You are something else.
I said their claim (that Miller established a collective right) was unjustified. Their decision was based on their interpretation.
"when we agree that use of US v. Miller in such a fashion is unjustified."
Which 9th Circuit decision are you referring to? Which case? Then we can see exactly how the 9th Circuit used Miller.
Perhaps you can give me an example of what you're talking about? Existing weapons? New weapons?
What kind of weapons? Nukes? Tanks? Mortars? Grenades? Rifles? Shotguns?
Restrict meaning prohibit? Limit? License?
That will be decided by the U.S. Supreme Court someday. And when that day comes, the U.S. Supreme Court will review all of the federal lower court opinions -- and what will they find?
"... Reading lower federal court opinions where a Second Amendment challenge is raised, one can hear the exasperated sighs emanating from the pages. Mr. Kallgren of the ABA expresses similar disbelief at the prospect that any right thinking lawyer who paid attention during Constitutional Law could hold the belief that the Second Amendment means anything. "The Supreme Court has settled this!" they cry.[213] Courts invoke Miller with vehemence and regularity in dismissing, out of hand, challenges to the various pieces of gun control legislation passed by Congress in the last fifty years.[214](p.999)
In all fairness to Mr. Kallgren and the ABA, if one were to read only the lower court opinions since 1939, the year Miller was decided, one would come away fairly convinced that the Supreme Court had in fact settled all past and future issues with respect to the Second Amendment. A close examination of the lower courts' opinions and comparison with the actual holding of Miller, however, reveals that the lower courts have demonstrated a remarkable obtuseness, sometimes lurching into intellectual dishonesty. As I have shown, the courts have indulged in constitutional gymnastics in an effort to avoid construing the Second Amendment to contain anything resembling a right under which an individual might make a colorable claim. On this point alone, courts might be said to be construing the wording of a provision of the Constitution to be meaningless--a result that should be avoided.[215](p.1000)
While difficult to classify because the reasoning of the opinions overlaps to some degree, it is possible to ascertain different approaches taken by federal courts over the years in an effort to render the Second Amendment a constitutional eunuch. It is fair to say that the "interpretations" of the Miller decision tend to evolve in response to arguments following the logic of the Miller decision to a reasonable conclusion. While few lower courts choose to do more than issue conclusory statements regarding the Second Amendment and the right to keep and bear arms (always slavishly citing Miller as if the Supreme Court's decision supported their statements), their steadfast reluctance to recognize an enforceable right in the Second Amendment often has little to do with the Miller decision and more with the courts' discomfit with the right to keep and bear arms as a matter of public policy [216]...
There are two lessons that might be drawn from a survey of post-Miller Second Amendment decisions: one about federal judges; the other, about their audience--the public at large. Federal judges, like Llewellyn's common law judges, are driven by a sense of situation, Constitution or no Constitution. Precedent is no obstacle to determined federal courts.[224] This is nowhere better illustrated than in the Second Amendment cases. One explanation of their reluctance to treat the subject with honesty and candor may be the unappetizing prospect of having to outline the boundaries of the right, once admitted. Unfortunately, it appears that the judges are more uncomfortable with the right qua right. Reading the opinions one senses not only the exasperation rising from the pages of the judges' opinions, but also the nervousness, bordering on hysteria, which results from someone audaciously questioning collective judicial assumptions about the Second Amendment.[225] Judges' unwillingness to reexamine the judicial conventional wisdom in light of recent scholarship and repeated use of slippery slope arguments are symptoms of an underlying distrust of a provision of the Constitution that they think is just plain bad public policy..."
The term "regulated" applied to clocks means "accurate in keeping time". It made sense, particularly in 18th Century armies, to have to pay a lot of attention to how well soldiers could operate in massed formations. Soldiers had to be drilled to load, aim, and fire as one unit. You do NOT want the rifle next to you to be firing (and emitting a shower of sparks) while you are pouring gunpowder into your musket. Everybody had to do every step together with no screwups.
I forget what FReeper I grabbed that from, but it makes all the sense in the world, if you understand how the flintlock muskets of the era work, when employed in mass military formations.
Then it goes on to citing a multitude of lower court cases that flat-out state it's a collective right. Not really a good cite for supporting the individual rights position.
He didnt say that at all and you know it. It most certainly does place limits upon the federal government. In fact, the entire US Constitution does nothing BUT assign powers to and place limitations upon the federal government. The only restrictions upon states or the people are implied, by virtue of those powers being ceded to the federal government.
Please point out the part of the California State Constitution that is violated (Hint: The California State Constitution is silent on arms. It says ... nothing).
Honestly not sure if it is part of the state Constitution or just a state law, but local municipalities may not preempt state law in California. Frankly I'm too lazy to look it up, but thats the issue which made Prop. H unconstitutional.
And, as we both know, the second amendment only applies to the federal government, not the states.
No, we both do not know that. You want to pretend it, i refuse to believe your delusion.
So, the SF ban is constitutional, as is a similar ban in Chicago. And I'm not even a "gun banner". Sorry but it isnt. You can read the decision here
All arms with any possible purpose whatever in defeating another armed force, especially the standing army answering to a tyrannical government.
No soldier in his right mind would bother with a Molotov cocktail if he could instead use a hand grenade, an anti-tank gun, or a flame-thrower. All are protected.
At the time the Constitution was written, there were no weapons whatever that were not included among the arms protected by the Second Amendment. Without a Constitutional amendment, that is still true.
Those who wish to make a case that nuclear weapons, nuclear equipped submarines, or laser-based weapons should be excluded, are free to do so. Today, they are dependent upon the force of the government to outlaw those arms, not the consent of the governed under our Constitution.
Our Founders had to steal the government's artillery from Fort Ticonderoga in order to expel their own government's navy from Boston Harbor.
The Second Amendment was crafted to prevent the monopoly by the government in arms. There is nothing magical about the arms you mention that cause any kind of exclusion to apply.
The militia is not just intended to respond to actions in concert with the government, but in the case of a tyrannical government, against it. If a person has the resources to purchase, store, and maintain arms of any kind, then the Second Amendment protects them.
I suggest that you re-read the brief presented by the prosecution in US v. Miller. They said exactly that. The Supreme Court's instructions contained nothing in response to that request.
Because somebody would suggest that there ought to be limitations on what the militia should have available. They might suggest that the militia not have crew-served weapons, or flame-throwers, or mortars.
Further, I suspect that there would be some who would claim that the Founders never intended to arm the militia so as to make it powerful enough to overthrow the government. But in fact, that is exactly what they meant.
And given that the militia must be equipped to overthrow the government, what limitations would make sense? If the security of a free state is at stake, why would the militia be limited in its resources?
I found the following: " Each dragoon to furnish himself with a serviceable horse, at least fourteen hands and an half high, a good saddle, bridle, mail-pillion and valise, holster, and a best plate and crupper, a pair of boots and spurs; a pair of pistols, a sabre, and a cartouchbox to contain twelve cartridges for pistols. "
The only instance I can find where "the government" was expected to pay was that the US government is obligated to pay the militia the same as the US Army when the militia is in service to the US.
Perhaps you would be kind enough to specify where the Militia Act of 1792 mandates the supply of arms by the state to the militia.
I read your link and it really doesn't say much.
Actually it speaks volumes, beginning with the opening quote:
"When courts fail to engage in oversight or even distort the Constitution to rationalize the ultra vires actions of government, and when academics and political activists aid and abet them in this activity by devising ingenious rationalizations for ignoring the Constitution's words, they are playing a most dangerous game. For they are putting at risk the legitimacy of the lawmaking process and risking the permanent disaffection of significant segments of the people."
It shows that biased, anti-Second Amendment Federal judges... are driven by a sense of situation, Constitution or no Constitution.
Then it goes on to citing a multitude of lower court cases that flat-out state it's a collective right...
I think you mean the multitude of biased, agenda-driven lower courts along with leaders of the legal profession, such as the American Bar Association and professors of many law schools.
From the article:
"The most common approach in disposing of Second Amendment claims in the lower courts has been to apply what the courts have decided is the Miller "test." Of course, the courts are not in agreement as to what the Miller test is. Reading the cases, one gets the feeling that the lower courts simply invent new obstacles as soon as the old ones are surmounted by sharp litigants with carefully crafted claims..."
The article shows that many in the judiciary and legal community are anti-individual-rights with respect to the Second Amendment and this bias is reflected in many of the rulings of the lower courts and in the writings of the legal profession. I recommend that you reread the section entitled A. Second Amendment Scholarship and the Elite Bar.
Kind of makes the claims that the "collective rights" interpertation is "well-settled" a little hard to sell, huh?
I'll let you study up on the relevant cases. Let us know what did justify the Ninth Circuit's interpretation when you find it. At least we agree that their interpretation is not justified by US v. Miller (though you seem to think that the Miller Court was "leaning that way", whatever that might mean).
You do realize that "well regulated" and "well-regulated" are two very different terms do you not?
Your opinion that we no longer have a well regulated militia is irrelevant, as would be your opinion that we dont have a well-regulated militia. It also has precisely zero bearing on the right itself.
They've been replaced by the state National Guard and a small federal standing army. They have the M-16's and a whole bunch of other goodies. Their possession is protected by the second amendment.
Let me make sure i understand this... The standing army, which Congress is specifically tasked to raise and arm, somehow requires and gains the protections of the 2nd Amendment?
IF that completely perverse and convoluted logic (and i use that term loosely) were actually the case, then pray tell, by what legal mechanism is a National Guard member forbidden from taking his arms home? After all, if it is only they who have 2nd Amendment protections, then certainly there could be no local, state or federal law which could legally infringe upon their right to keep and bear arms of a nature suited to use in the military.
Incidentally, since you seem to be unaware of this, there is legal precedent which shoots your silly-assed theory about only the National Guard being protected by the 2nd Amendment. Said case being Silvera v. Lockyer
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