The Constitution wins!

[DZ/015]

Looks like the constitution is finally being interpreted as it was written. About time.

http://www.cnn.com/2007/LAW/03/09/gu...ing/index.html

[miloblithe]

A illiteracy strikes again. What the hell do gun toters think that "A well regulated militia being necessary to the security of a free state," means?

[Thomas Veil]

Interpreted as written? Hmm.

Watch this one go to the Supreme Court. Not now, though. Too many neocons on the bench.

Might be a victory for gun proponents, but by definition all of their victories are pyrrhic.

[mrkramer]

Originally Posted by miloblithe

A illiteracy strikes again. What the hell do gun toters think that "A well regulated militia being necessary to the security of a free state," means?

if you read the article it said that the it is explaining the main reason for the second part which says

the right of the people to keep and bear arms shall not be infringed.

and if you are just going to use half of it why not use that half?

[IJ Reilly]

The Supreme Court has ruled on the Second Amendment only once, in the 1939 Miller case. Both opponents and proponents of gun control like to point at that case, because the Court ruled (attempting to read the amendment in its entirety) that the Constitution both protects arms ownership, but also authorizes state regulation of same. Note that one of the (very conservative) Appeals Court judges in this case essentially endorsed that view, and voted with the 2-1 majority because he thought that Washington's regulations went too far, making gun ownership virtually impossible. So this case apparently, even assuming it stands up on appeal, does little more than test the limits of what kind of gun control regulations governments may pass. Outright prohibitions probably go too far. I suspect that concept surprises few.

I'm going to predict that if the entire Appeals Court upholds the decision that gun control advocates will not appeal it to the Supreme Court. Gun control opponents would dearly love to have this be a central issue in the 2008 election.

[miloblithe]

Originally Posted by mrkramer

if you read the article it said that the it is explaining the main reason for the second part which says and if you are just going to use half of it why not use that half?

Why on earth would you only use half of a sentence to convey it's meaning?

ex:

"Not counting every other president who has served, George W. Bush is the greatest president ever."

Yay!! GW is the greatest ever!!!

[MacNut]

Can the militia as written in the Constitution ever really be effective again. Wasn't the idea that the militia can over throw a government if it over stepped its bounds?

[pseudobrit]

Originally Posted by DZ/015

Looks like the constitution is finally being interpreted as it was written. About time.

http://www.cnn.com/2007/LAW/03/09/gu...ing/index.html

Meanwhile, in every other area where it matters, it's losing its war against Bush.

[leekohler]

Originally Posted by MacNut

Can the militia as written in the Constitution ever really be effective again. Wasn't the idea that the militia can over throw a government if it over stepped its bounds?

Yep. I can't think of any government that deserves to be overthrown more.

[Desertrat]

As far as the intent of the Second Amendment, remember that it's but a part of the Bill of Rights. The Preamble to the BOR states the purpose: "...in order to prevent misconstruction or abuse of its powers...", referring to the central government. The BOR is a complete package of restraints upon the State and thus cannot at the same time be restraints upon the citizenry.

"Can the militia as written in the Constitution ever really be effective again. Wasn't the idea that the militia can over throw a government if it over stepped its bounds?"

Certainly. Per Congress' definition, the militia is all able-bodied males between (roughly) 16 to 45 years of age. That includes many millions of voters. You don't even need the guns of the roughly 140 million people who own one.

The totality of badge toters and military shooters is what, maybe three hundred thousand? Those poor folks wouldn't have a chance. If the public at large got mad enough, governments at all levels would be changed within a short period of time.

But, the ballot box is stronger than the cartridge box--which, IMO, is as it should be.

'Rat

[MacNut]

Wouldn't that count as a Civil War if the citizens decide not to follow the government. What is the militias actual role, are they supposed to keep the peace or are they the ones that lead the charge.

Originally Posted by Wiki

There is a long history of militia in the United States, starting before the country became a country, with the colonial militias normally consisting of all adult male citizens of a community, town, or local region. This practice was continued after the signing of the U.S. Constitution, and remained relatively unchanged until the late 1800s. After the Civil War, state guard units composed of select militia were created. After 1903, the militia was divided into two groups, unorganized and organized. Organized units were created from portions of the former state guards and became state National Guard units. Some states later created State Defense Forces for assistance in local emergencies. Privately organized militias, not affiliated with any government organization, and usually formed by citizens suspicious of the activities and politics of Federal and state governments, blossomed in the mid 1990s.
The Constitutional Militia Movement consists of citizen groups who espouse strict construction of the U.S. Constitution according to the original understanding and intent of the Founding Fathers of the United States, especially in regard to the right to keep and bear arms (see Second Amendment to the United States Constitution). Constitutional Militias train in the proper and safe use of firearms, that they may be effective if called upon to uphold liberty, protect the people in times of crisis (i.e. disasters such as Hurricane Katrina), or to defend against invasion and terrorism. U.S. Constitution, Art. I Sec. 8 Cl. 15 & 16.
According to Title 10, USC, Section 311, all able bodied males between the ages of 17 and 45 not serving in the armed forces or state national guard units are considered the unorganized militia, as well as all commissioned female officers of state national guard units.
"That the People have a right to keep and bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defense of a free state..." --George Mason, declaration of "the essential and unalienable Rights of the People," later adopted by the Virginia ratification convention, 1788.

[IJ Reilly]

Originally Posted by MacNut

Wouldn't that count as a Civil War if the citizens decide not to follow the government. What is the militias actual role, are they supposed to keep the peace or are they the ones that lead the charge.

The concept of militias is antique and inimical to modern democracy. Need proof? As Exhibit A, I offer Iraq. I don't think anyone wants to see heavily armed bands of paramilitary soldiers roaming the streets of the United States, beholden to nobody by themselves -- but if you're a strict originalist, then that's pretty much the way you have to think it needs to be. The Supreme Court is going to have their hands full if they ever take this case.

[MacNut]

So technically if you read how The Bill Of Rights was written a lot of the gun laws on the books now would be illegal.

[IJ Reilly]

Originally Posted by MacNut

So technically if you read how The Bill Of Rights was written a lot of the gun laws on the books now would be illegal.

I suppose you directed that question at me.

The short answer is no. Strict originalists would say that, but they are members of a kind of judicial cult, who dance to music that hardly anybody else hears. Sadly, at least two and possibly three of our Supreme Court justices are members. I think they in particular are going to be faced with a very tough choice if this case comes their way.

[MacNut]

I think this explains how the militia stands today.

Originally Posted by Wiki

Dec. 3, 1901, President Theodore Roosevelt called for a reform of the militia system, declaring to Congress that:
our militia law is obsolete and worthless. The organization and armament of the National Guard...should be made identical with those provided for the regular forces. The obligations and duties of the Guard in time of war should be carefully defined, and a system established by law under which the method of procedure of raising volunteer forces should be prescribed in advance. It is utterly impossible in the excitement and haste of impending war to do this satisfactorily if the arrangements have not been made long beforehand.

In response, Congress passed the Militia Act of 1903, which, despite its name, essentially did away with the type of militia that had been common at the time of the Revolution. The fact was that modern warfare needed trained men with modern weaponry, and the law provided for these in a regular army as well as the National Guard, founded in 1903. Although the Guard is the descendant in many ways of the old unorganized militia, it is a far more disciplined and trained entity, since their program is now held to high standards set by the regular army. The members get their weapons from the national government, and do not own them individually.

Following the assassination attempt on President-elect Franklin Delano Roosevelt in 1933, President Roosevelt advocated and Congress passed the National Firearms Act of 1934. The general mood at the time of the assassination attempt was that a deranged man had committed the act.
An individual right to bear arms was occasionally addressed, for instance by President Ulysses S. Grant, who mentioned in an address to Congress on April 19, 1872 that "to deprive colored citizens of the right to bear arms" was among the goals of the Ku Klux Klan. Ulysses Grant later served as president of the National Rifle Association in 1883.

In 2001, the Justice Department under Attorney General John Ashcroft issued a memorandum opinion stating that the Second Amendment protects an individual right to bear arms. Some critics of John Ashcroft have noted that his objectivity is questionable, considering his lifelong membership of the National Rifle Association, well known as individual gun right proponents, though he was not acting in an official capacity of the NRA at the time. The opinion stated:
the Second Amendment secures a personal right of individuals, not a collective right that may be invoked only by a State or a quasi-collective right restricted to those persons who serve in organized militia units.[56]
In 2004 the Justice Department under Attorney General John Ashcroft issued "Whether the Second Amendment Secures an Individual Right," a lengthy memorandum opinion tracing the historical development of the Second Amendment aimed at justifying its earlier conclusion.

[mactastic]

Just don't forget: We have an AG who's view of Habeus Corpus is that because it doesn't explicitly guarantee you Habeus, (it only spells out when it can be suspended), you don't have an actual right to it.

That kind of logic, if accepted as legal precedent, would allow any future AG to say that because the 2nd Amendment only says you can't have you right to keep and bear arms "infringed" upon, that doesn't mean you have an actual right to the arms.

It's twisted, but it sets a dangerous precedent.

[MacNut]

The militia as written into the constitution is now considered to be they National Guard. So unless the guard is going to overthrow itself the militia that is supposed to keep the government in check is run by the government.

So if the Guard is supposed to protect the homeland how can it be fighting over seas?

[IJ Reilly]

Originally Posted by MacNut

I think this explains how the militia stands today.

So if the militia system in place in 1791 no longer exists, then how are we to interpret the Second Amendment's "right to bear arms" today? Strict originalists seem to want to simply scratch out the inconvenient language about "well regulated militias" and hang their hats entirely on the last phrase, using whatever grammatical and logical jujitsu is required to get there. This reasoning doesn't work for me, and when it comes down to fish-or-cut-bait time, I don't think it's really going to work for them either. These judges may not live entirely in the same world as you or I, but I suspect they still aren't going to want to see men in the streets toting AK-47s and bandoliers of hand grenades on their way to the country club. I expect they're going to find a way to reconcile "well regulated" with "shall not be infringed," because to assume the supremacy of the latter over the former is simple madness.

[EricNau]

Originally Posted by IJ Reilly

The concept of militias is antique and inimical to modern democracy...

It seems to be working just fine for Switzerland.

[IJ Reilly]

Originally Posted by EricNau

It seems to be working just fine for Switzerland.

Let's hear it for the Swiss. The Swiss "militia" is actually the nation's organized standing army, in which every male citizen must serve.

Meanwhile, back on the subject...

[Dont Hurt Me]

Trying to say by outlawing guns you can stop people from killing is idiot, criminals dont pay attention to laws so all you do is disarm the law abiding citizen. Plus people kill, inanimate objects dont and guns dont just go off. These things needed to be said Along with this.... Do we even have a national guard? I thought they were all fighting in Iraq. Another silly gunlaw that does nothing but empowers the beauracrat and the police state. Im glad it was shot down and it should be. Start holding people accountable.

[MacNut]

If we outlaw all dangerous weapons what's next, sticks, rocks, forks. Anything can be used as a deadly weapon. To say that we would all be safer without guns is asinine. Lets get the dangerous people of the streets and not worry about what the law abiding person has in his own house.

[IJ Reilly]

Originally Posted by MacNut

If we outlaw all dangerous weapons what's next, sticks, rocks, forks. Anything can be used as a deadly weapon. To say that we would all be safer without guns is asinine. Lets get the dangerous people of the streets and not worry about what the law abiding person has in his own house.

This is a classic slippery-slope argument. The problem with slippery-slope arguments is that they can also be argued the other way round. Should any "law abiding citizen" be able to own rocket propelled grenade launchers? Surface-to-air missiles? Hydrogen bombs? Reductum ad absurdum results in only one kind conclusion: absurd. Notice how they get us no closer to either a practical solution or a functional interpretation of the Constitution.

[Blue Velvet]

Originally Posted by MacNut

To say that we would all be safer without guns is asinine.

No, what is asinine is ignoring the overwhelming evidence that nations that outlaw the use of handguns have a far lower per capita homicide rate.

[Dont Hurt Me]

Again the guns are outthere so who is going to obey the law? the criminal or the law abiding citizen. I put my money on the citizen so what have you acomplished? Oh you have disarmed the good guy. Terrific but thats the beauracrat thinking. Plus now you created a larger police state. Here is a better idea. Prosecute the heck out of gun toting criminals and make them accountable for their actions.