Posted on 11/20/2007 10:14:54 AM PST by ctdonath2
After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if it, in the end, decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?
The city of Washington’s appeal (District of Columbia v. Heller, 07-290) is expected to be heard in March — slightly more than a year after the D.C. Circuit Court ruled that the right is a personal one, at least to have a gun for self-defense in one’s own home.
The Justices chose to write out for themselves the question(s) they will undertake to answer. Both sides had urged the Court to hear the city’s case, but they had disagreed over how to frame the Second Amendment issue.
Here is the way the Court phrased the granted issue:
“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”
It sounds like you are up to something new. I have never seen the term "defense of self" used in the context of battle.
Would this mean that a person is free to carry their own weapons into battle, or would they be limited to what the military command orders? If a commander orders me into a dangerous situation that might threaten me with bodily harm or death, do I have a right to refuse? Does this right obligate me to retreat if that is an option?
I am curious as to how this right to "defense of self" would work.
No, I don't know what they WILL say. But I know what they should say.
If the Supreme Court agrees with me, that the right protected in the Second Amendment is an individual right independent of service in a Militia, is it your position that such a ruling would be in error? I believe that you have already stated that.
Maybe you are focusing on the wrong part. The part I find encouraging is the assumption, in the grammar, that "individuals who are not affiliated with any state-regulated militia" *Have* second amendment rights. That's a big of the battle right there. If they have such rights, then it's a matter of determining what rights those are, which is still pretty darned obvious, and what they might not be, which is a murkier and instance specific, question.
Nope, doesn't say that. It says "well regulated militias", the state part comes afterwords, and in such a manner as to be interpreted to mean "government" or "country", not one of the Several States. But in any case, in the second amendment's single sentence, "state" is not an adjective modifying "militia".
So why did they put in an amendment saying, according to your interpretation, the same thing.
BTW, it's a power to "provide for" arming the militia. In the event, they provided for it by having the militiamen bring their own private arms to the party, and by defining what those arms would be, without limiting what additional arms the militiaman could own, or bring for that matter, they just provided a minimum standard. That standard even included pistols as a requirement for the member of some types of units.
Well not quite. In Art. I section 2 from which you tortured the notion that "the people" are the electors, the Constitution doesn't directly define who those are. It's left to the states, via the requirement that the electors be the same as those voting for the most populous branch of the state legislature.
Today those electors are everyone over the minimum voting age, 18 in most cases, not a felon, and not an alien. Those changes were made via constitutional amendments (15, 19, 25 to some extent, and 26), for the most part. Thus no matter what "the people" were in those days, today it would be all citizens over 18 years of age.
It kind of sort of implies that, but what it really says is the the representative are elected by the people, and then goes on to state who can vote. However it defines that in relationship to who could vote for state legislators. Later amendments expand that to all citizens, male, female, landowners, renters, and all other citizens over 18 years of age. They are the People, as currently defined by the Constitution, even if one accepts your torturous interpretation of Article I Section 2 as defining who "The People" are, which I do not.
And the answer of the court was? (Keeping in mind that the Syllabus is *Not* the decision, but rather some clerk's summary of it.) I'll help, here is the ruling of the Court, stripped of all the dicta and historical matter.
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.
The section of the '34 NFA in question read:
It shall be unlawful for any person who is required to register as provided in Section 5 hereof and who shall not have so registered, or any other person who has not in his possession a stamp-affixed order as provided in Section 4 hereof, to ship, carry, or deliver any firearm in interstate commerce.
Mr. Miller was indeed "any person". "firearm" included both machine guns and short barreled shotguns, as well as a few other "nefarious" type weapons. Thus if the keeping of a militia suitable weapon was protected for "any person" then the act would be a violation. If the second amendment only protects the keeping and bearing by "militia men", it would have been sufficient to show that Mr. Miller was not a militia man, rather than dealing with the nature of the weapon. Since the government did raise the fact of Miller not being a militia member, and the court did not even address it, and instead decided on the basis of the nature of the weapon in question, (ie was it a militia suitable weapon), we can only assume that the court did not believe that the second amendment only protected keeping and bearing by militia members, rather than of militia suitable arms.
A short quote from the government's brief.
Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law. The "arms" referred to in the Second Amendment are, moreover, those which ordinarily are used for military or public defense purposes, and the cases unanimously hold that weapons peculiarly adaptable to use by criminals are not within the protection of the Amendment. The firearms referred to in the National Firearms Act, i.e., sawed-off shotguns, sawed-off rifles, and machine guns, clearly have no legitimate use in the hands of private individuals, but, on the contrary, frequently constitute the arsenal of the gangster and the desperado.
Thus the goverment brought up both the "nature of the weapon" and the "militia members only" argument. The court only addressed the former.
They aren't just going to win, they are going to kick ass and take names. We'll be taking names too of course, and then kicking ass. It works either way.
But, AFAIK, they haven' rejected it either.
In which case they applied the right in question to a non-white, non land owning, non-citizen. Yea that really supports your "The People" == "The Militia" == "land owning rich white guys" theory. NOT.
That part I got. I'm asking you, an individual right to keep and bear arms for what purpose? Hunting?
I don't need to read the Brady Bunch amicus briefs to know their intent.
Correct. It's implied. I stuck it in there for clarification.
"the state part comes afterwords, and in such a manner as to be interpreted to mean "government" or "country"
Correct. Individual state Militias banding together to secure their freedoms. The point I was making at the time was that these were state Militias, not some large federal militia.
Re-wording the second amendment to books is off-topic. That's what I meant.
You answered that question. The U.S. Constitution gives Congress the power to "provide for" arming the militia. And if Congress chooses not to? The states did not want Congress to interfere with the states themselves arming the Militia.
That is correct. But we know who voted in 1792. That gives us insight as to who "the people" were in 1792. That tells us who the Founding Fathers wanted to protect in the second amendment. That discloses their original meaning.
In looking at the composition of "the people" and looking at the composition of the Militia, I see striking similarities. The U.S. Supreme Court may also.
It's reasonable to speculate that the U.S. Supreme Court may conclude that the second amendment protects the right of the people, collectively, to bear arms as part of a state Militia.
I think speculation is what people do on a forum. It makes people think. I didn't realize that only one train of thought is allowed here.
"Thus no matter what "the people" were in those days, today it would be all citizens over 18 years of age."
I agree. And the U.S. Supreme Court in Parker pointed out the same thing -- "the people", today, is a much larger group including women, non-whites, and those over 18.
BUT, today, we're not limited to state Militias for defense. We can't make any comparisons today. So it's difficult to define the second amendment (which is the goal) using today's structure. Which is why I keep going back to 1792 to attempt to find the original meaning.
Yes they did, leaving us to speculate on the rest. But it sure did appear to me that the Miller court was implying that only Militia-type weapons were protected by the second amendment.
Since the Miller court never addresed WHO these "any persons" were, you're telling me that you honestly believe the U.S. Supreme Court was saying that civilians have the right to keep and bear these weapons (including machine guns, rocket launchers, mortars, etc.) but the right for civilians to keep and bear NON-Militia type weapons was not protected.
El Gato, please. I can give you a list of posters on this board who are spaced-out enough to believe this, but I never figured you to be on that list.
"Rich white guys" is my invented, short-form slang for white, male, citizen landowners. Land owning and rich is redundantly redundant.
The U.S. Supreme Court in Parker brought up United States v. Verdugo- Urquidez to define "the people" in the second amendment. The court's description ("a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community") is still valid today.
I believe my theory is valid AND confirmed by the U.S. Supreme Court comments in both United States v. Verdugo- Urquidez and Parker. Maybe you have U.S. Supreme Court comments in other cases to support your individual rights theory? I'd really like to read those.
Researching those quotes supporting your theory is probably not as much fun as sitting there trying to poke holes in my efforts to shed light on the topic, but I know I would certainly get more out of the discussion.
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