Framers' intent still hotly debated

ARIZONA DAILY STAR ^ | 06.04.2006 | Ann Brown

[El Gato]

How often does the government "win" a case at the Supreme Court and then offer a plea-bargain? Methinks the government really lost, but was so successful at their "spin" they were allowed to claim victory.

The "Government, that is the Justice department doesn't get to set the punishment. Since the original judge thought the law was no law at all, one would expect him to set the minimum sentence he could, given that the defendant entered a guilty plea.

The government didn't really want to put Layton away, they wanted the law held to be Constitutional. In that they won, in a very limited sense. But you are correct, the gun grabbers have spun the ruling into way more than it really was. It's also the last time the Supreme Court directly ruled on the Second Amendment. They now avoid doing so like the plague.

[El Gato]

Since Miller, the Supreme Court has addressed the Second Amendment in two cases: In Burton v. Sills, (1969), the Court upheld New Jersey's strict gun-control law, finding the appeal failed to present a "substantial federal question." And in Lewis v. United States (1980), the Court upheld the federal law banning felons from possessing guns, finding no "constitutionally protected liberties" infringed by the federal law, according to the Brady Center."

I just noticed this mendacity. Neither of those was a second amendment ruling. The first was the "not incorporated" dodge, the second was merely saying that taking away rights of convicted felons does not violate their rights. They can have many of their right restricte, infringed and violated in their entirety, according to the Court.

Now I don't fully agree with either ruling. The history of the 14th amendment clearly indicates it was intended to apply the Bill of Rights, most especially the Second Amendment, so it should invalid New Jersey's draconian gun laws.

Secondly, WRT Lewis, while felons most certainly can be deprived of rights, it must be done via individual due process, not as an ex post facto law covering all felons, regardless of their crime, when they had been convicted, whether they had completed their full sentence, etc, etc.

[neverdem]

Good catches, I'm surprised the thread is still going.

[StJacques]

". . . Do you deny that you wrote that it is the National Firearms Act that limits what arms private individuals can own? --- And did you not post that the NFA does not protect the possession of fully automatic weapons, grenades, rocket launchers, flame throwers, artillery pieces, tanks, nuclear devices, and so on? . . ."

First; let me quote you what I wrote in my post #253 above (scroll up and read it, I really did write this):

". . . You seem to insist that I cannot distinguish in my posts between what the law is or how the law actually is interpreted and what the law should be or how it should be interpreted, demanding repeatedly that I only stick to the latter tact. That is ridiculous."


So please pay attention and let me spell out the difference for you.

No. 1: WHAT THE LAW IS OR HOW THE LAW IS ACTUALLY INTERPRETED--

When I refer to the above, I mean how the law is actually enforced in practice. To put this another way, I refer to how you would see the law applied if you were to go into a court of law.

No. 2: WHAT THE LAW SHOULD BE OR HOW THE LAW SHOULD BE INTERPRETED--

When I refer to this second distinction I mean how the law should be enforced in practice. To put this another way I refer to a "normative" expression of the law, how the law would be enforced if it were interpreted correctly.

Now you posted that I wrote in my post:

". . . it is the National Firearms Act that limits what arms private individuals can own, and it is enforced every day of the year. . . ."

And that in that same post I also wrote:

". . . Therefore the only limitations upon which arms a private individual can own are those defined under the National Firearms Act"

Yes; I posted both statements and I also quoted Guncite.com dealing with the same thing I was addressing; namely, what the law is or how the law is actually interpreted by the courts. And it is a fact that the ATF maintains its National Firearms Act Branch 365 days a year and that in every federal court in the United States of America the National Firearms Act is recognized as the law of the land. If you want to contest this as a fact, then tell me that the National Firearms Act is NOT recognized as the law of the land in the courts and we'll go from there. Because I don't think anyone can deny that it IS recognized and that the courts DO enforce it.

That is a separate question entirely from dealing with what the law should be or how the law should be interpreted. In numerous posts on this thread I have dealt with problems of the constitutionality of the National Firearms Act. To put that another way, I have dealt with what I believe to be -- pay attention now, this is important -- a violation of constitutional principles in the way the National Firearms Act was written AND in the way it is enforced. In my posts #s 236, 238, and 246 I presented an argument to Dead Corpse that the Texas case English v Texas established a precedent that was ignored in the National Firearms Act, the significance of which I summed up in my statement to Dead Corpse in #246 that "You claimed that the NFA was unconstitutional because it denies an individual the right to possess the weapons of a militiaman. I cited English v Texas as an example of case law that says you're right." I pointedly said that legal precedent that should have prevented the federal government from passing and enforcing the National Firearms Act was ignored. This is part of my discussion of what the law should be or how the law should be interpreted, in my opinion of course.

I also did more than that to present my own arguments on what I view as the unconstitutionality of the National Firearms Act. In my post #233 I made several points about how the law should be interpreted, including the following two comments:

". . . 2. The "right of regulation" given to the federal government is NOT a right to regulate individual gun ownership . . ."

". . . 4 . . . And I will add here that I have already stated in an earlier post that even though the National Firearms Act establishes the fact of federal government regulation of individual arms ownership, that those who argue that this goes beyond the intent of the framers have a logical case to put forth for the reason I give in this point. . . ."

And finally, before beginning my presentation of the argument on the unconstitutionality of the National Firearms Act, in fact the comment which led to my making it, in my post #213 to El Gato I said "You do have a good argument to make that a challenge to the NFA can be made on constitutional grounds . . ."

What I have done is to distinguish the fact of the passage and enforcement of the National Firearms Act (the way the law is interpreted) from its constitutionality/unconstitutionality (the way it should be interpreted). And I directly asked you to recognize the distinction, but you seem incapable of doing so.

With that in mind, I would like to propose the following solution for you. It's a simple exercise that might help.

Close your eyes and repeat after me:

There is a difference between the way the law is actually enforced and the way it should be enforced

There is a difference between the way the law is actually enforced and the way it should be enforced

There is a difference between the way the law is actually enforced and the way it should be enforced

There is a difference between the way the law is actually enforced and the way it should be enforced

There! That should help.

[El Gato]

It doesn't matter what I contend the State of Texas can or cannot do. What matters is what the laws on the books actually say the State of Texas can or cannot do.

Practically speaking, and in the short term perhaps. But if we are to remain a nation of laws, the government, local, state and federal must obey the law as well. That includes the highest law.

The Texas Constitution does allow the Legislature "to to regulate the wearing of arms", but Article VI of the federal Constitution makes that Constitution supreme. So, if the 14th amendment applied the protections of the Bill of Rights against the states, and that was clearly the intent as understood both by its proponents and opponents, then the Second Amendment over-rides that power granted to the the Texas Legislature by the state's Constitutution.

The Suprem Court itself has stated that law which are in violation of the Constitution are no laws at all and no one is obligued to obey them, no court may enforce them.

"All laws which are repugnant to the Constitution, are null and void." Chief Justice Marshall, Marbury v. Madison, 5, U.S. (Cranch) 137, 174,176

[StJacques]

I have no argument with your #265.

I hope you have noticed that I have gone to some pain to point out problems with the constitutionality of gun control laws.

[El Gato]

And I will add that I am very comfortable that my neighbor cannot go out and purchase a 105 mm cannon and set it up in his front yard.

Which means you *are* pro gun control, if the gun is "too big", or you otherwise don't think the citizenry can be trusted not to misuse them. In point of fact, you neighbor can go out and purchase a 105 mm cannon. All he need do is get the appropriate signatures, and pay the tax, as the NFA provides. (Only for newly manufactured machine guns is purchase banned, under the 1986 FOPA) The tax must be paid on each round of ammunition as well, if they are explosive rounds, as destructive devices. Quite a few folks have them, and they find places to shoot them safely too.

[StJacques]

First of all; I believe that neighbor must present some justification for having a 105 mm cannon. Am I right? Or are you presenting the application and acquisition process as a mere formality of filling out forms and purchasing a stamp before you take one home?

You can give me whatever label you want, but I do not want my neighbor possessing a 105 mm cannon and setting it up in his front yard.

[El Gato]

5. If the word "regulated" in the 2nd Amendment referred ONLY to efficiency, then the adjective well placed immediately before it becomes redundant. But as I stated above "regulation" in the intent of the framers referred to "disciplining" (Art. 1, Sec. 8) or "direction" (Federalist #29), which means much more than "efficiency." It is the insertion of the adjective to modify the term as "well regulated" that changes its meaning from simply "disciplined" or "directed" to "efficiently disciplined" or "efficiently directed."

Nice try, but try looking up other common uses of "well regulated" more or less contemporaneous with the passage of the second amendment. It was a "term of art", used in may contexts to mean "properly functioning" or "fit for its intended purpose". The two words together meant more than the sum of their parts. Even today the phrase doesn't mean Controlled by government Check out this Abstract of a Scientific paper which says in part:

Interpretive Summary: It has been known for years that lipid stores are well regulated. Recently a new hormone termed leptin, which is secreted by liver and fat tissue has been identified in birds. It is known that leptin is involved in appetite regulation as well as energy metabolism in mammals. When administered into the brain of mammals, food intake is inhibited. Whether similar functions can be attributed to leptin in poultry is unknown. The study reported herein investigated the effect of centrally administered leptin on food and water intake in meat-type and egg-laying chickens. It was observed that leptin injected in a dose-dependent manner inhibited feed intake in both types of chickens. This effect was specific for food as water intake was unaffected. The results of this study strongly support the hypothesis that leptin is an important integrator of appetite in birds. The results are of interest to other scientists.

Somehow I don't think that any government rules or laws are affecting the lipid stores of chickens.

Or This one Which states in part

Some of us are blessed with a well regulated appetite and the ability to balance our energy intake and expenditure

Substitute your definition of well regulated, that is restricted by rules, and the "properly functioning" definition, for "well regulated" and see which sort of militia you'd want to trust your security to, one hemmed in by rules designed to lesson it's capability as a miltary force, or "properly functioning" one. I think the answer is obvious.

Art. 1 section 8 does not speak of regulating the militia, but rather "To provide for organizing, arming, and disciplining, the Militia" Organizing meant setting the size of units, how many of each type, and so forth. Disciplining did not mean punishing, but rather providing common drills and procedures, what we would call standards today. Arming of course is obvious. But note the Congress wasn't given a mandate to arm the millita, but only to provide for that arming. In the event they did so by passing laws stating what sorts of arms the militia should/must have, not what the members could have.

The other part of section 8 makes the part about disciplining somewhat more clear "reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;?

[El Gato]

The "right of regulation" given to the federal government

Governments do not have rights, only powers. Search the constitution for "right" or "rights", see if they are ever said to belong to a branch of government. The ninth and tenth amendments are good examples:

[Amendment IX]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

[Amendment X]
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

(People can have powers as well as rights, governments only powers.)

[El Gato]

The lower court should not have made such a ruling unless or until such evidence was presented

Of course iy should have. Courts, that is judges, may take "judicial notice" of any commonly known facts. In this case that shotguns are useful in a military context. For all we know, Judge Heartsill Ragon, may have used one himself in WW-I, or even in the "Banana Wars", if he happened to have been a Marine in the post WW-I era, or may have had a a friend, coworker or acquaintance that did so.

[El Gato]

So by inference, it can be logically argued that the passage of the National Firearms Act of 1934 overturns a legally-established right, given substance in the English v Texas decision, for a person to possess the weapons of a militiaman as you had stated.

Now you are beginning to "get it". Now look up the US First Circuit court's "Cases" decision, from 1941.

Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia.

But they recoiled in apparent horror from their own logical conconclusion, and went on to state:

However, we do not feet that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. ... at any rate 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.

But that is exactly what the founders intended. Rights are not subject to governmental determination of a"legitimate reason" for exercising them.

[El Gato]

Can you imagine the Los Angeles Police going into action against the Bloods and the Crips when the latter have 105 mm cannon, rocket-propelled grenades, flamethrowers, and 80 mm howitzers?

Do you think because they are illegal is the reason the Bloods, Crips, or any other gang of criminals and/or terrorists do not have them? By definition, criminals do not obey laws which inconvenience them.

[El Gato]

So the proper question to ask me if you wish to contest my posting of the information in English v Texas is whether you think I got it wrong in stating, as I pointedly did, that the National Firearms Act may be considered unconstitutional for ignoring the precedent in this case. Do you think I got that wrong? If "yes," then say so.

"English" was decided by the Supreme Court of Texas, based on the provisions of the Texas Constitution, as it was generally considered that the bill of rights did not apply to the States, "incorporation" via the due process clause of the 14th amendment had not yet been invented (to reverse the various decisions ruling that the 14th applied none of the BoR to the states). Miller should have been decided on the basis of the federal 2nd amendment alone, but if you read it, it relies on state court decisions, which were decided based on state constitutional provisions, (Aymette v. State, 2 Humphreys (Tenn.) 154, 158.) Tennessee's Constitution protected the RKBA "for the common defense", a term which was proposed and rejected for inclusion in the Federal 2nd amendment. Thus on the basis of a provision of a provision of a state constitution, not included in the federal constitution, the court ruled that a "short barreled shotgun" was not useful for the common defense, and thus keeping and bearing it was not protected by the second amendment. But as i stated above this provision was explicitly rejected for inclusion in to what became the second amendment, so any interpretation of the 2nd which reasons as if the provision had been included rather than rejected, is incorrect.

[StJacques]

First of all; "Disciplining" also carries with it a sense of authority and oversight, which is practically the definition of "regulation" as we use it today, although we tend to see it as an executive branch function and the founders saw it as a legislative responsibility. And the real thrust of "disciplining" the militia as provided for in Article 1, Section 8 was intended to provide "uniformity" among the various militia units as Federalist #29 makes clear.

Hamilton, generally considered to be the sole author of Federalist #29, is the only one of the founders we have -- unless you have another to offer -- who gives us his take on "regulation" and the militia and he makes very clear that "regulation" does refer to both "direction" and "discipline" as quoted here in Federalist #29, paragraph 2:

". . . This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union "to provide for organizing, arming, and disciplining the militia . . ."

Hitting the highlights, uniformity is accomplished by regulation under the national authority, therefore the plan for discipling the militia . . ., etc. Regulation is a concept of the delineation of authority, something which suggests the "properly functioning" concept you propose falls short in my opinion.

There is more in Federalist #29 that makes clear that the intention of the founders was that Congress was undertaking a duty to exercise its authority as the "guardian of national security" in regulating the militia.

From paragraph 3:

". . . If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security . . . ."

The phrase "under the regulation" is directly at odds with any argument that the founders intended "regulation" to mean solely an "efficient" or "properly functioning" type of relationship. Use of the word "under" alone refers to a relationship of authority.

The notion of "regulation" as implying authority is strengthened even further, later in Federalist #29 when Hamilton associates "regulation" with the word "command" and is further extended to envision the federal government "prescribing regulations" -- which can only mean "regulate" in the sense of authoritative management -- as stated in paragraph 9:

". . . What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, . . ."

Against all of this clearly-stated intent cited from the Federalist Papers I would have to ask for an accompanying counter from another authoritative source of the period speaking to the meaning of the militia clauses of the constitution to hold it up against and which suggests that there is no intent to regulate the militia other than to suggest maintaining its proper functioning. The stated goal in Federalist #29 was clearly a relationship of authority.

And El Gato, I do hope you caught the rest of my post #233 in which I made clear that the 2nd Amendment use of the term "well regulated" only recognizes that Congress has the power to regulate the militia as a collective body and that this does not extend to any power to regulate individual gun ownership.

[El Gato]

Yes; I posted both statements and I also quoted Guncite.com

Actually you weren't quoting Guncite.com, That's merely where you found copies of the papers and documents that you quoted. Saying the quotes came from guncite implies the quotes reflect their opinions or endorsements, but they do not.

[StJacques]

Re: your #274. And yes, I have read the others and I understand that governments only have "powers" so my use of the term "rights" is inappropriate.

In the course of my perusing of other court decisions over the past two days, and I stated some of this in one of my posts, I saw that English v Texas has been cited as precedent in at least a couple of cases and in publicly released opinions, including one from less than 10 years ago released by the Kansas Attorney General. I saw it as a footnote in at least two federal cases, though I cannot name which two those were right off the top of my head. But I state the honest truth when I say that the case has stood up over time and continues to be cited. I believe it is a fair statement on my part to present it as among the body of law suitable for citation and argument in cases pertaining to the National Firearms Act.

[El Gato]

First of all; I believe that neighbor must present some justification for having a 105 mm cannon. Am I right? Or are you presenting the application and acquisition process as a mere formality of filling out forms and purchasing a stamp before you take one home?

Some jurisdictions apply the law that way, but if you read it, what the local LEO sign off is supposed to do is pretty much the same as the current "instant check" does. That is to certify that you are not a criminal. There are proposals to either remove the discretion of the local LEOs, many of whom won't sign the form for anyone for any reason, except sometimes for friends who contribute to their reelection funds, or alternatively to replace it with a call to the "Instant Check" folks.

At the federal level, you do not need to justify why you want that cannon, or machine gun. At the federal level you submit the signature card, pay the tax, and after a ridiculous delay, get your stamp and can have the cannon or machine gun transferred to you.

[DakotaRed]

Call me simplistic, but wouldn't their original intent be how they managed in the early days and not how we wish to re-interpret 2 centuries later?

[El Gato]

You can give me whatever label you want, but I do not want my neighbor possessing a 105 mm cannon and setting it up in his front yard.

Then don't move within 105 range of the local VFW, American Legion, AmVets or any of a number of other organizations. Yes, their artillery is not usually functional, but it would only take a little machine work to make it so.