Posted on 07/16/2004 8:59:00 AM PDT by neverdem
Wouldn't tell you anything. The Court rarely gives a reason for refusing to hear a case, and IIRC, it did not do so in these cases. They didn't rule against Emerson or Silveria, they just didn't rule at all, letting the lower court decisions stand.
The term is a shortcut for "that part of the militia subject to call to federal service." If you fit the definition, Uncle Sam can call your up. Under the state definitions, the Governor (or in California, the Governator :) ) can call you up. As I posted above, in Texas it includes all adults, to about age 65, women as well as men, and only excludes a few public officials.
All persons. . . have certain . . . rights, among these are . . . the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof." (Article 1, Section 1).
While I was only responding to the language you quote, I'll make the comment that a mere statute or regulation cannot redefine a term in the Constitution. The terms mean what they meant when the Constitution was ratified or amended. Sometimes we have to look to slightly later writings to divine the meaning, but the meaning that matters is the one understood at the time.
On nuclear weapons and the 'well-regulated militia'
More On nuclear weapons and the 'well-regulated militia'
Additional remarks about "On nuclear weapons and the 'well-regulated militia'"
If that was their aim, then the most sensible thing to do would be to say, "The Bill of Rights now applies against the states equally as against the federal government". By singling out that one provision in the BOR (the due process clause), they do the opposite of making that clear. Instead, they create the strong impression that only that provision is to be applied against the states. "Expressio unius exclusio alterius" and all that.
Believe me when I say that I sure could find a way to make the BOR apply to the states without the 14th Amendment (Supremacy Clause and various other parts of the Constitution).
There's been quite a lot of misunderstanding as to the supremacy clause. It has no effect on the applicability of any of the other provisions of the Constitution. Those provisions that would not apply to the states without the supremacy clause, would also not apply to the states with the supremacy clause. Those provisions that would apply to the states with the supremacy clause, would also apply to the states without the supremacy clause.
The difference between having a supremacy clause and not having one can be readily seen by looking at the situation that existed under the Articles of Confederation. Those articles contained plenty of provisions that applied to the states, but it had no supremacy clause. As a result, the provisions did not automatically trump state laws to the contrary. Instead, they merely created an "obligation" for the states to follow them. Under the new Constitution, provisions that applied to the states automatically nullified state laws that conflicted with them. That's the only effect that the supremacy clause has.
b) the intent of the founders (or in the case of amendments the Senate)
One final note, in the case of the 14th amendment, it's not just the Senate that's the equivalent of the Founders, but also the House of Representatives, and probably most importantly, the state legislatures that were charged with ratifying it.
thanks El Gato- I forgot Montana, couldn't find the civil law clause in Maryland; California is missing- not in their state constitution so have to look in civil blue codes.
couple other states missing. Forgot Puerto Rico, Guam etc.
My Mohawk cousins on The St. Regis reservation can carry openly and have any kind of weapons for hunting and whatever by 1784 Treaty Of Ft. Stanwix and 1794 Canadaigua treaties. Other tribes in US don't have that strict allowance but these treaties were based on English (1763,e.g., treaty of Sir William Johnson, who married a Mohawk maiden) treaties inherited by New York State which had to honor them, then inherited by US govt. So my cousins actually have more freedom to bear arms than the rest of us due to whittling away at the 2nd Amendment. My cousins aren't bound by the US Constitution but by treaty which cannot be abrogated. At least they will possess weapons forever, while the rest of us are in danger of being disarmed. When the govt is thru with us, My cousins will make a reservation last stand to possess but maybe their casinos will do the talking for them.
inquest wrote:
There's been quite a lot of misunderstanding as to the supremacy clause. It has no effect on the applicability of any of the other provisions of the Constitution.
______________________________________
THE SUPREMACY CLAUSE
Article. VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
______________________________________
The supremacy clause causes the US Constitution to be binding on the State Governments.
The States are restricted by the BOR because the supremacy clause binds the judges in every state to follow what's in the Constitution.
--- The BOR's and all Amendments are intergal parts of the Constitution... They therefore became restrictive on the States.
The 9th & 10th are clear.
The Ninth says that the peoples unemumerated rights cannot be denied or violated.
Thus the 10ths powers, both Federal, -- and those reserved to the States, -- cannot be used to violate the enumerated or unenumerated rights of the people.
-- A simple concept our 'states rights' contingent just can't accept.
Why is that?
bunkerhill7 wrote:
My Mohawk cousins on The St. Regis reservation can carry openly and have any kind of weapons for hunting and whatever by 1784 Treaty Of Ft. Stanwix and 1794 Canadaigua treaties.
______________________________________
Are you claiming that your Mohawk cousins can buy & import, possess and use ANY weapons on their reservation with the full appoval of the US Governmemt? Full auto rifles for instance?
Are those treaties available on the net?
Don't you remember Wounded Knee? The People of the Earth had weapons against Federal agents. Even on Alcatraz they had weapons during the takeover.
Of course, a lot of these NA guys were in Vietnam and brought back AK47's with them as did many other servicemen.
Those 1700's with English treaties allow the NA's to use weapons for hunting, fishing and whatever (target practice, Varmint plinking etc).
These US and New York treaties were inherited from the English who 1700's had given the NA's Mohawks etc perpetual hunting and fishing on their lands UNRESTRICTIVE of any kinds of weapons because the NA's only had bows and arrows, spears, axes, muskets and blunderbusses, small cannons at the time (no one could have foreseen AK-47's then!)
of the 1763 signing with the English as part of the Treaty of Paris and other NA/English treaties. The automatic weapons
restrictions that exists for Americans cannot be grandfathered in because the NA's Mohawks etc Six Nations are not subject to the U.S. Constitution.
So my cousins have more unhindered firearms rights on the reservation than most Americans.
Yah
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http://odur.let.rug.nl/~usa/D/1776-1800/indians/six1784.htm
Treaty with the Six Nations, , 1784
Fort Stanwix
October 22, 1784
As presented, these articles were concluded at Fort Stanwix, on the October, 22, 1784, between representatives of the United States and the Six Nations.
The United States of America give peace to the Senecas, Mohawks,Onondagas and Cayugas, and receive them into their protection upon the following conditions:
ARTICLE 1.
Six hostages shall be immediately delivered to the commissioners by the said nations, to remain in possession of the United States, till all the prisoners, white and black, which were taken by the said Senecas, Mohawks, Onondagas, and Cayugas, or by any of them, in the late war,from among the people of the United States, shall be delivered up. ARTICLE 2.
The Oneida and Tuscarora nations shall be secured in the possession of the lands on which they are settled. ARTICLE 3.
A line shall be drawn, beginning at the mouth of a creek about four miles east of Niagara, called Oyonwavea, or Johnston's Landing-Place, upon the lake named by the Indians Oswego, and by us Ontario; from thence southerly in a direction always four miles east of the carrying patH, between Lake Erie and Ontario, to the mouth of Tehoseroron or Buffalo Creek on Lake Erie; thence south to the north boundary of the state of Pennsylvania; thence west to the end of the said north boundary; thence south along the west boundary of the said state, to the river Ohio the said line from the mouth of the Oyonwayea to the Ohio, shall be the western boundary of the lands of the Six Nations, so that the Six Nations shall and do yield to the United States, all claims to the country west of the said boundary, and then they shall be secured in the peaceful possession of the lands they inhabit east and north of the same, reserving only six miles square round the fort of Oswego, to the United States, for the support of the same. ARTICLE 4.
The Commissioners of the United States, in consideration of the present circumstances of the Six Nations, and in execution of the humane and liberal views of the United States upon the signing of the above articles, will order goods to be delivered to the said Six Nations for their use and comfort.
===
Fort Stanwix, 1784
Articles of a treaty made at fort Harmar, the ninth day of January, in the year of our lord one thousand seven hundred and eighty-nine, between Arthur St. Clair, esquire, governor of the territory of the United States of America, north-east of the river Ohio, and commissioner plenipotentiary of the said United States, for removing all causes of controversy, regulating trade and settling boundaries, between the Indian Nation in the northern department and the said United States, of the one part, and the Sachems and warriors of the Six Nations, of the other part:
ARTICLE I
Whereas the United States, in congress assembled, did, by their commissioners, Oliver Wolcott, Richard Butler and Arthur Lee, esquires, duly appointed for that purpose, at a treaty held with the said Six Nations, viz: with the Mohawks, Oneidas, Onondagas, Tuscaroras, Cayugas and Senecas, at Fort Stanwix, on the twenty-second day of October, one thousand seven hundred and eighty-four, give peace to the said Nations, and receive them into their friendship and protection: And whereas the said Nations have agreed to and with the said Arthur St. Clair, to renew and confirm all the engagements, and stipulations entered into at the before mentioned treaty at Fort Stanwix: and whereas it was then and there agreed, between the United States of America and the said Six Nations, that a boundary line should be fixed between the lands of the said Six Nations and the territory of the United States, which boundary line is as follows viz: Beginning at the mouth of a creek, about four miles east of Niagara, called Ononwayea, or Johnson's Landing Place, upon lake named by the Indians Oswego, and by us Ontario; from thence southernly, in a direction always four miles east of hte carrying place, between Lake Erie and Ontario, to the mouth of Tehoseroton, or Buffalo Creek, upon Lake Erie, thence south, to the northern boundary of the State of Pennsylvania; thence west, to the end of the said north boundary; thence south along the west boundary of the said state to the riverOhio. The said line, from the mouth of Ononwayea the Ohio, shall be the western boundary of the lands of the Six Nations, so that the Six Nations shall and do yield to the United States, all claim to the country west of the said boundary; and then they shall be secured in the possession of the lands they inhabit east, north and south of the same, reserving only six miles square round the fort of Oswego, for the support of the same. The said Six Nations, except the Mohawks, none of whom have attended at this time, for and in consideration of the peace then granted to them, the presents they then received, as well as in consideration of a quantity of goods, to the value of three thousand dollars, now delivered to them by the said Arthur St. Clair, the receipt whereof they do hereby acknowledge, do hereby renew and confirm the said boundary line in the words before mentioned, to the end that it may be and remain as a division line between the lands of the said Six Nations and the territory of the United States, forever. And the undersigned Indians, as well in their own names as in the name of their respective tribes and nations, their heirs and descendants, for the considerations before mentioned, do release, quit claim, relinquish, and cede to the United States of America, all the lands west of the said boundary or division line, and between the said line and the strait from the mouth of Ononwayea and Buffalo Creek, for them, the said United States of America, to have and to hold the same, in true and absolute propriety, forever.
ARTICLE II
The United States of America confirm to the Six Nations, all the lands which they inhabit, lying east and north of the before mentioned boundary line, and relinquish and quit claim to the same and every part thereof, excepting only six miles square round the Fort of Oswego, which six miles square round said fort is again reserved to the United States by these presents.
ARTICLE III
The Oneida and Tuscarora Nations, are also again secured and confirmed in the possession of their respective lands.
ARTICLE IV
The United States of America renew and confirm the peace and friendship entered into with the Six Nations, (except the Mohawks), at the treaty before mentioned, held at Fort Stanwix, declaring the same to be perpetual. And if the Mohawks shall, within six months, declare their assent to the same, they shall be considered as included.
SEPARATE ARTICLE
Should a robbery or murder be committed by an Indian or Indians of the Six Nations, upon the citizens or subjects of the United States, or by the citizens or subjects of the United States, or any of them, upon and of the Indians of the said Nations, the parties accused of the same shall be tried, and if found guilty, be punished according to the laws of the state, or of the territory of the United States, as the case may be, where the same was committed. And should any horses be stolen, either by the Indians of the said Nations, from the citizens or subjects of the United States, or any of them, or by any of the said citizens or subjects from any of the said Indians, they may be reclaimed into whose possession so ever they may have come; and, upon due proof, shall be restored, any sale in open market notwithstanding; and the persons convicted shall be punished witht the utmost severity the laws will admit. And the said Nations engage to deliver the persons that may be accused, of their Nations, of either of the before mentioned crimes, at the nearest post of the united States, if the crime was committed within the territory of the United States; or to the civil authority of the state, if it shall have happened within any of the United States.
http://sixnations.buffnet.net/Lessons_from_History/?article=3
=====
=====
The Canandaigua Treaty of 1794
Preamble of the Canandaigua Treaty
A Treaty Between the United States of America and the Tribes of Indians Called the Six Nations:
The President of the United States having determined to hold a conference with the Six Nations of Indians for the purpose of removing from their minds all causes of complaint, and establishing a firm and permanent friendship with them; and Timothy Pickering being appointed sole agent for that purpose; and the agent having met and conferred with the sachems and warriors of the Six Nations in general council: Now, in order to accomplish the good design of this conference, the parties have agreed on the following articles, which, when ratified by the President, with the advice and consent of the Senate of the United States, shall be binding on them and the Six Nations....
ARTICLE 1. Peace and friendship are hereby firmly established, and shall be perpetual, between the United States and the Six Nations.
ARTICLE 2. The United States acknowledge the lands reserved to the Oneida, Onondaga, and Cayuga Nations in their respective treaties with the State of New York, and called their reservations, to be their property; and the United States will never claim the same, nor disturb them, or either of the Six Nations, nor their Indian friends, residing thereon, and united with them in the free use and enjoyment thereof; but the said reservations shall remain theirs, until they choose to sell the same to the people of the United States, who have the right to purchase.
ARTICLE 3. The land of the Seneca Nation is bounded as follows: beginning on Lake Ontario, at the northwest corner of the land they sold to Oliver Phelps; the line runs westerly along the lake, as far as Oyongwongyeh Creek, at Johnson's Landing Place, about four miles eastward, from the fort of Niagara; then southerly, up that creek to its main fork, continuing the same straight course, to that river; (this line, from the mouth of Oyongwongyeh Creek, to the river Niagara, above Fort Schlosser, being the eastern boundry of a strip of land, extending from the same line to Niagara River, which the Seneca Nation ceded to the King of Great Britain, at the treaty held about thirty years ago, with Sir William Johnson;) then the line runs along the Niagara River to Lake Erie, to the northwest corner of a triangular piece of land, which the United States conveyed to the State of Pennsylvania, as by the President's patent, dated the third day of March, 1792; then due south to the northern boundary of that State; then due east to the southwest corner of the land sold by the Seneca Nation to Oliver Phelps; and then north and northerly, along Phelps' line, to the place of beginning, on the Lake Ontario. Now, the United States acknowledge all the land within the aforementioned boundaries, to be the property of the Seneca Nation; and the United States will never claim the same, nor disturb the Seneca Nation, nor any of the Six Nations, or of their Indian friends residing thereon, and united with them, in the free use and enjoyment thereof; but it shall remain theirs, until they choose to sell the same, to the people of the United States, who have the right to purchase.
ARTICLE 4. The United States have thus described and acknowledged what lands belong to the Oneidas, Onondagas, Cayugas and Senecas, and engaged never to claim the same, not disturb them, or any of the Six Nations, or their Indian friends residing thereon, and united with them, in the free use and enjoyment thereof; now, the Six Nations, and each of them, hereby engage that they will never claim any other lands, within the boundaries of the United States, nor ever disturb the people of the United States in the free use and enjoyment thereof.
ARTICLE 5. The Seneca Nation, all others of the Six Nations concurring cede to the United States the right of making a wagon road from Fort Schlosser to Lake Erie, as far south as Buffalo Creek; and the people of the United States shall have the free and undisturbed use of this road for the purposes of traveling and transportation. And the Six Nations and each of them, will forever allow to the people of the United States, a free passage through their lands, and the free use of the harbors and rivers adjoining and within their respective tracts of land, for the passing and securing of vessels and boats, and liberty to land their cargoes, where necessary, for their safety.
ARTICLE 6. In consideration of the peace and friendship hereby established, and of the engagements entered into by the Six Nations; and because the United States desire, with humanity and kindness, to contribute to their comfortable support; and to render the peace and friendship hereby established strong and perpetual, the United States now deliver to the Six Nations, and the Indians of the other nations residing among them, a quantity of goods, of the value of ten thousand dollars. And for the same considerations, and with a view to promote the future welfare of the Six Nations, and of their Indian friends aforesaid, the United States will add the sum of three thousand dollars to the one thousand five hundred dollars heretofore allowed to them by an article ratified by the President, on the twenty-third day of April, 1792, making in the whole four thousand five hundred dollars; which shall be expended yearly, forever, in purchasing clothing, domestic animals, implements of husbandry, and other utensils, suited to their circumstances, and in compensating useful artificers, who shall reside with or near them, and be employed for their benefit. The immediate application of the whole annual allowance now stipulated, to be made by the superintendent, appointed by the President, for the affairs of the Six Nations, and their Indian friends aforesaid.
ARTICLE 7. Lest the firm peace and friendship now established should be interrupted by the misconduct of individuals, the United States and the Six Nations agree, that for injuries done by individuals, on either side, no private revenge or retaliation shall take place; but, instead thereof, complaint shall be made by the party injured, to the other; by the Six Nations or any of them, to the President of the United States, or the superintendent by him appointed; and by the superintendent, or other person appointed by the President, to the principal chiefs of the Six Nations, or of the Nation to which the offender belongs; and such prudent measures shall then be pursued, as shall be necessary to preserve or peace and friendship unbroken, until the Legislature (or Great Council) of the United States shall make other equitable provision for that purpose.
NOTE: It is clearly understood by the parties to this treaty, that the annuity, stipulated in the sixth article, is to be applied to the benefit of such of the Six Nations, and of their Indian friends united with them, as aforesaid, as do or shall reside within the boundaries of the United States; for the United States do not interfere with nations, tribes or families of Indians, elsewhere resident.
IN WITNESS WHEREOF, the said Timothy Pickering, and the sachems and war chiefs of the said Six Nations, have hereunto set their hands and seals.
Done at Canandaigua, in the State of New York, in the eleventh day of November, in the year one thousand seven hundred and ninety-four.
TIMOTHY PICKERING
Witnesses
Interpreters
Israel Chapin Horatio Jones
Wm. Shepard Jun'r Joseph Smith
James Smedley Jasper Parrish
John Wickham Henry Abeele
Augustus Porter
James H. Garnsey
Wm. Ewing
Israel Chapin, Jun'r
(Signed by fifty-nine Sachems and War Chiefs of the Six Nations.)
Yet you've acknowledged that there are clauses that apply only to the feds despite no explicit language to that effect. Get back to me when you've figured out how to reconcile those two positions.
inquest wrote:
There's been quite a lot of misunderstanding as to the supremacy clause. It has no effect on the applicability of any of the other provisions of the Constitution.
______________________________________
THE SUPREMACY CLAUSE
Article. VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
______________________________________
The supremacy clause causes the US Constitution to be binding on the State Governments.
The States are restricted by the BOR because the supremacy clause binds the judges in every state to follow what's in the Constitution.
--- The BOR's and all Amendments are intergal parts of the Constitution... They therefore became restrictive on the States.
The 9th & 10th are clear.
The Ninth says that the peoples unemumerated rights cannot be denied or violated.
Thus the 10ths powers, both Federal, -- and those reserved to the States, -- cannot be used to violate the enumerated or unenumerated rights of the people.
-- A simple concept our 'states rights' contingent just can't accept.
Why is that?
208 tpaine
______________________________________
Yet you've acknowledged that there are clauses that apply only to the feds despite no explicit language to that effect.
Get back to me when you've figured out how to reconcile those two positions.
211 inquest
______________________________________
The 10th Amendment says, in explicit language, that there are powers delegated to the US government, and those that are prohibited to the States.
No 'reconciliation' is needed of that clear position.
Thus the 10ths powers, both Federal, -- and those reserved to the States, -- cannot be used to violate the enumerated or unenumerated rights of the people.
Get back to me when you work up a valid counterpoint, inquest.
Are you claiming that your Mohawk cousins can buy & import, possess and use ANY weapons on their reservation with the full appoval of the US Governmemt? Full auto rifles for instance?
209 -tpaine-
______________________________________
The provisions of 25 USC § 1302 differ in language and in substance in many respects from those contained in the constitutional provisions on which they were modeled.
The provisions of the Second and Third Amendments, in addition to those of the Seventh Amendment, were omitted entirely.
-bunkerhill-
______________________________________
So.. -- Does this mean that your Mohawk cousins can buy & import, possess and use ANY weapons on their reservation with the full appoval of the US Governmemt?
Full auto rifles for instance?
Have any of them ever tried to thumb their noses at the ATF goons & the fed 'regulations'?
Could they get away with it? -- If they can, we ALL can, imo.
Then talk to me.
Tell me why the Founding Fathers inserted the first part of the second amendment: "A well regulated militia, being necessary to the security of a free state ...". I am interested in your opinion.
According to you, all the second amendment needed to say was, "The right of the people to keep and bear arms, shall not be infringed." But the Founding Fathers didn't write it that way, and they were very careful men. For some reason, they added the first part. Why?
Of course, I'm sure he sees no problem with the USSC and other courts forcing states to fund judicial activism. That's OK.
The utter hypocrisy of this man is unbelievable.
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Obviously, the Founding Fathers found it important that there be a well-regulated militia, in addition to what I said. What's the confusion?
And where did I say that all the 2nd Amendment does is guarantee the right to bear arms? I never said that. I said that it's explicitly stated, which it is, that the right of the people to keep and bear arms shall not be infringed. Are you trying to say that only militias are guaranteed arms in the 2nd Amendment?
If the arms have nothing to do with a militia (as mentioned in Miller), or if the keeping of arms has nothing to do with training or exercising with a militia (as ruled in Silveira v Lockyer), the federal courts have ruled (with the exception of Emerson) that their individual ownership is not protected by the second amendment.
It is your state constitution that protects your individual rights. The second amendment affords no protection.
A "valid counterpoint" to your non-answer to the initial point? No thanks. I'll just let the record show that you didn't answer it. 'Night.
At post #206, you made your initial point:
"There's been quite a lot of misunderstanding as to the supremacy clause. It has no effect on the applicability of any of the other provisions of the Constitution."
I replied in detail, refuting your comment. -- Now you can't come up with a valid counterpoint, so you scuttle off, as usual.
'Nighty nite, don't let reality bite'.
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