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2nd: The founders meant what they wrote about arms
JS Online ^ | 7/1/06 | TOM MONCURE

Posted on 07/03/2006 6:45:30 PM PDT by kerryusama04

Sanford Levinson, a distinguished constitutional law professor, wrote in the Yale Law Journal that the Second Amendment suffers from a lack of serious scholarship.

Few law students envision the Second Amendment as an area of lucrative practice upon graduation. His article, "The Embarrassing Second Amendment," sent a shock wave through academia by suggesting that the amendment might actually mean what it says.

Issues involving guns have taken center stage in the cultural divide that separates red and blue America.

Gun control advocates point to the militia clause of the Second Amendment, arguing that it warrants a collective, rather than an individual, right to keep and bear arms.

However, history - buttressed by the founders' clear understanding - dictates that the amendment guarantees this right to individuals.

The U.S. Supreme Court has not dealt directly with the Second Amendment since 1939.

Then, United States vs. Miller held that a sawed-off shotgun was subject to registration because there was no evidence before the court that it had a military use. This opinion suggests that any demonstrably military weapon should enjoy the protection of the Second Amendment.

The Supreme Court has conjured rights from the Constitution that do not exist in the text - while disparaging those rights contained in the document itself - leaving both sides of the gun debate cause for concern in any future rulings.

Oblique references in subsequent cases lend credibility to an individual rights interpretation.

The late Chief Justice William Rehnquist noted in a 1990 case, United States vs. Verdugo-Urquidez, that the use of "the people" in the Bill of Rights was used not to avoid an "awkward rhetorical redundancy," but rather was chosen as a "term of art employed in select parts of the Constitution."

He noted that the use of "the people" in the First, Second, Fourth, Ninth and 10th Amendments was within the context of protecting that class of persons who are part of the nation.

When adopted by the states, the Second Amendment generated no controversy. State and federal militia laws required citizens to keep arms and ammunition in their homes.

The greater concern, as articulated by the great orator Patrick Henry, was how to provide guns to those who could not afford them.

The bearing of arms was both a right and responsibility of citizenship, with arms being legally denied to those who were not citizens.

The very idea that citizens might be barred from militia membership was itself an indication of tyranny.

The original purpose of the entire Bill of Rights was to prevent federal intrusion into the fundamental liberties of the people. The collective-rights interpretation contends that the militia clause limits the scope of the right to keep and bear arms, guaranteeing only that states can maintain a National Guard.

The flaw of this interpretation is clear in the language of the Second Amendment, which secures the rights of the "people," and not the "states," to keep and bear arms.

The right to be armed for personal protection is well recognized by common law and preserved under the Ninth Amendment.

The U.S. Supreme Court reiterated, in the 2005 case of Castle Rock vs. Gonzales, that government cannot be held liable for failure to protect the lives of its citizens. Personal self-defense remains an individual responsibility.

The Second Amendment serves two higher callings. On a practical level, armed citizens provided the ultimate security against enemies and tyrants.

On a philosophical level, the founders knew that our ultimate success depended on the character of the people.

George Mason wrote in the Virginia Declaration of Rights that "no free government, nor the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality and virtue."

Much is assured us by the Bill of Rights - but much is also expected of us.

Indeed, the American paragon is the Minuteman, typically represented as a yeoman farmer, who goes back to the plow when his martial duty is done.

The Second Amendment guarantees our sacred rights, but also reminds us of our solemn responsibilities.

Benjamin Franklin observed that "those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

The founders meant what they wrote - even if, as professor Levinson indicated, some today may find it "embarrassing."

Tom Moncure is a former assistant counsel to the National Rifle Association.


TOPICS: Crime/Corruption; Culture/Society; Front Page News; Government; Politics/Elections
KEYWORDS: bang; banglist; heller; nra; rkba; secondamendment
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1 posted on 07/03/2006 6:45:32 PM PDT by kerryusama04
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To: kerryusama04
Much is assured us by the Bill of Rights - but much is also expected of us.
2 posted on 07/03/2006 6:46:12 PM PDT by kerryusama04 (Isa 8:20)
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To: kerryusama04

OMG - do you mean the left was misleading us all these years - that the 2nd most important amendment means what it says?


3 posted on 07/03/2006 6:49:48 PM PDT by spanalot
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To: kerryusama04
One of the best to the point articles about the Second Amendment that I have read. Bookmarked for future reference.
4 posted on 07/03/2006 6:53:33 PM PDT by Hang'emAll (WE WILL NOT DISARM!!!)
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To: kerryusama04

"Then, United States vs. Miller held that a sawed-off shotgun was subject to registration because there was no evidence before the court that it had a military use."


Can someone explain how that was not successfully argued by the pro 2nd side.



5 posted on 07/03/2006 6:55:41 PM PDT by ansel12
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To: kerryusama04

OMG!! OMG!! the 2nd ammendment means what it says...


6 posted on 07/03/2006 6:55:43 PM PDT by Cinnamon
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To: kerryusama04
I like Pennsylvania's state constitution:

"The right of the citizens to bear arms in defense of themselves and the State shall not be questioned."

Now my question is why do people in Harrisburg question it?

7 posted on 07/03/2006 6:59:06 PM PDT by MilesVeritatis (War is an ugly thing, but not the ugliest of things...." - John Stuart Mill)
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Comment #8 Removed by Moderator

To: kerryusama04
The U.S. Supreme Court has not dealt directly with the Second Amendment since 1939.

Then, United States vs. Miller held that a sawed-off shotgun was subject to registration because there was no evidence before the court that it had a military use. This opinion suggests that any demonstrably military weapon should enjoy the protection of the Second Amendment.

The weapons that the 2nd Amendment was written about were the state of the art of their time. There were weapons at the time of the writing of the 2nd Amendment that would easily have been the equivalent of "sawed-off" shotguns and considered "trench sweeper"s or blunder-busters.

There are no words to overemphasize my amazement that ANYONE cannot understand that our 2nd Amendment means that the right to bear arms "shall not be infringed". If there is any uncertainty about it, read below:

Main Entry: infringe

Part of Speech: verb Definition: violate

Synonyms: borrow, breach, break, butt in, chisel in, contravene, crash, crib, disobey, encroach, entrench, impose, infract, intrude, invade, lift, meddle, muscle in, obtrude, offend, pirate, presume, steal, transgress, trespass

Thesaurus.com

I truly believe that if I wanted to have a Abrams M1 tank sitting at ready on my property - no one - government official - or not has any right to infringe upon my Constitutional right to have it.

9 posted on 07/03/2006 7:05:30 PM PDT by winston2 (In matters of necessity let there be unity, in matters of doubt liberty, and in all things charity:-)
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To: ansel12
Can someone explain how that was not successfully argued by the pro 2nd side.

It's my understanding that the "pro 2nd side" in this case, i.e. Mr. Miller, i.e. the plaintiff, was dead by the time this case got to the SCOTUS. Therefore, there was no one to argue the point.
10 posted on 07/03/2006 7:09:31 PM PDT by Jubal Harshaw
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To: winston2
I truly believe that if I wanted to have a Abrams M1 tank sitting at ready on my property - no one - government official - or not has any right to infringe upon my Constitutional right to have it.

Civilians held cannons between conflicts back in the day. The Queen Mary went back and forth from being civilian to military, too, if memory serves. I don't think the founders ever wanted us to have the military might we have today, but I agree with you that whatever the military uses, we ought to be able to own to a point. WMD excluded.

11 posted on 07/03/2006 7:12:45 PM PDT by kerryusama04 (Isa 8:20)
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To: kerryusama04
When adopted by the states, the Second Amendment generated no controversy. State and federal militia laws required citizens to keep arms and ammunition in their homes.

The greater concern, as articulated by the great orator Patrick Henry, was how to provide guns to those who could not afford them.

This is interesting in that if any modern legislator promoted either or both these positions, they would be roasted by the LSM. That's "progress" for you.

12 posted on 07/03/2006 7:13:53 PM PDT by Disambiguator (I'm not paranoid, just pragmatic.)
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To: kerryusama04
Gun control advocates point to the militia clause of the Second Amendment, arguing that it warrants a collective, rather than an individual, right to keep and bear arms.

Gun control advocates are then historically ignorant and not overly bright.
Before the 2nd amend was ratified personal gun ownership was common and widespread. I would confidently say that if one walked around any town in 18 c. America after it's ratification most men would be carrying an arm, or own one, two, or more. If the intent was against private ownership then were is the record of the mass confiscation that surely would have occurred? (Note to lurking liberal: there wasn't one).
Any 'militia' were required, a great majority of the time, to report carrying their own arms, which they took back home with them.
The Founders intent must be read in the language, (and the meaning of it's usage), of the time.
The Founders, fully endorsed private gun ownership. As a matter of fact they would have thought it unwise for one not to have arms.

13 posted on 07/03/2006 7:14:16 PM PDT by jla
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To: ansel12

The defendants naver showed up...


14 posted on 07/03/2006 7:21:33 PM PDT by craig61a
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To: Jubal Harshaw

"It's my understanding that the "pro 2nd side" in this case, i.e. Mr. Miller, i.e. the plaintiff, was dead by the time this case got to the SCOTUS. Therefore, there was no one to argue the point."



So there was something unusual, thanks.


15 posted on 07/03/2006 7:25:02 PM PDT by ansel12
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To: craig61a

I hold the NRA in incredibly high esteem, I'll bet the next case will one for the books.


16 posted on 07/03/2006 7:27:54 PM PDT by ansel12
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To: Hang'emAll
One of the best to the point articles about the Second Amendment that I have read. Bookmarked for future reference.

I whole heartedly agree with you. It is wonderful!


17 posted on 07/03/2006 7:35:23 PM PDT by basil (.)
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To: Hang'emAll
Copyright (c) 1991 by The New Gun Week and Second Amendment Foundation. Informational reproduction of the entire article is hereby authorized provided the author, The New Gun Week and Second Amendment Foundation are credited. All other rights reserved.

THE UNABRIDGED SECOND AMENDMENT

by J. Neil Schulman

If you wanted to know all about the Big Bang, you'd ring up Carl Sagan, right? And if you wanted to know about desert warfare, the man to call would be Norman Schwartzkopf, no question about it. But who would you call if you wanted the top expert on American usage, to tell you the meaning of the Second Amendment to the United States Constitution?

That was the question I asked Mr. A.C. Brocki, Editorial Coordinator of the Los Angeles Unified School District and formerly senior editor at Houghton Mifflin Publishers -- who himself had been recommended to me as the foremost expert on English usage in the Los Angeles school system. Mr. Brocki told me to get in touch with Roy Copperud, a retired professor of journalism at the University of Southern California and the author of "American Usage and Style: The Consensus".

A little research lent support to Brocki's opinion of Professor Copperud's expertise.

Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a distinguished seventeen-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for "Editor and Publisher", a weekly magazine focusing on the journalism field.

He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, "American Usage and Style: The Consensus", has been in continuous print from Van Nostrand Reinhold since 1981, and is the winner of the Association of American Publishers' Humanities Award.

That sounds like an expert to me.

After a brief telephone call to Professor Copperud in which I introduced myself but did "not" give him any indication of why I was interested, I sent the following letter:

*** "July 26, 1991

"Dear Professor Copperud:

"I am writing you to ask you for your professional opinion as an expert in English usage, to analyze the text of the Second Amendment to the United States Constitution, and extract the intent from the text.

"The text of the Second Amendment is, '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.'

"The debate over this amendment has been whether the first part of the sentence, "A well-regulated Militia, being necessary to the security of a free State," is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, "the right of the people to keep and bear Arms, shall not be infringed."

"I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary."

My letter framed several questions about the text of the Second Amendment, then concluded:

"I realize that I am asking you to take on a major responsibility and task with this letter. I am doing so because, as a citizen, I believe it is vitally important to extract the actual meaning of the Second Amendment. While I ask that your analysis not be affected by the political importance of its results, I ask that you do this because of that importance.

"Sincerely,

"J. Neil Schulman"

* *** After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the following analysis (into which I've inserted my questions for the sake of clarity):

***

[Copperud:] The words "A well-regulated militia, being necessary to the security of a free state," contrary to the interpretation cited in your letter of July 26, 1991, constitute a present participle, rather than a clause. It is used as an adjective, modifying "militia," which is followed by the main clause of the sentence (subject "the right," verb "shall"). The right to keep and bear arms is asserted as essential for maintaining a militia.

In reply to your numbered questions:

[Schulman: (1) Can the sentence be interpreted to grant the right to keep and bear arms "solely" to "a well-regulated militia"?;]

[Copperud:] (1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.

[Schulman: (2) Is "the right of the people to keep and bear arms" "granted" by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right "shall not be infringed"?;]

[Copperud:] (2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.

[Schulman: (3) Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia is, in fact, necessary to the security of a free State, and if that condition is not existing, is the statement "the right of the people to keep and bear Arms, shall not be infringed" null and void?;]

[Copperud:] (3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.

[Schulman: (4) Does the clause "A well-regulated Militia, being necessary to the security of a free State," grant a right to the government to place conditions on the "right of the people to keep and bear arms," or is such right deemed unconditional by the meaning of the entire sentence?;]

[Copperud:] (4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.

[Schulman: (5) Which of the following does the phrase "well-regulated militia" mean: "well-equipped," "well-organized," "well-drilled," "well-educated," or "subject to regulations of a superior authority"?]

[Copperud:] (5) The phrase means "subject to regulations of a superior authority"; this accords with the desire of the writers for civilian control over the military.

[Schulman: If at all possible, I would ask you to take into account the changed meanings of words, or usage, since that sentence was written two-hundred years ago, but not to take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated.]

[Copperud:] To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged."

[Schulman: As a "scientific control" on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence, "A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."

My questions for the usage analysis of this sentence would be,

(1) Is the grammatical structure and usage of this sentence, and the way the words modify each other, identical to the Second Amendment's sentence?; and

(2) Could this sentence be interpreted to restrict "the right of the people to keep and read Books" "only" to "a well-educated electorate" -- for example, registered voters with a high-school diploma?]

[Copperud:] (1) Your "scientific control" sentence precisely parallels the amendment in grammatical structure.

(2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.

***

Professor Copperud had only one additional comment, which he placed in his cover letter: "With well-known human curiosity, I made some speculative efforts to decide how the material might be used, but was unable to reach any conclusion."

So now we have been told by one of the top experts on American usage what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all government formed under the Constitution from abridging that right.

***************************************************************

I was looking at the "View" section of the LA Times from December 18, 1991 today -- an article on James Michener which my wife Kate had saved for me to read -- when the beginning of Jack Smith's column caught my eye: "Roy Copperud had no sooner died the other day than I had occasion to consult his excellent book, 'American Usage and Style: The Consensus.'"

Thus I learned of the death a few weeks ago of Roy Copperud, the retired USC professor whom I commissioned to do a grammatical analysis of the Second Amendment this past summer. (My article was published in the September 13th issue of "Gun Week".) It seems to have been one of the last projects he worked on. It is certainly one of the most important.

Roy Copperud told me afterwards that he, personally, favored gun control, but his analysis of the Second Amendment made clear that its protections of the right of the people to keep and bear arms were unaffected by its reference to militia. This sort of intellectual and professional honesty is sorely lacking in public discourse today.

In my several letters and phone conversations with Professor Copperud, I found him to be a gentleman of the old school. The planet is a little poorer without him.

J. Neil Schulman December 27, 1991

------------------------------ End of Article ---------------------------------------

18 posted on 07/03/2006 7:39:21 PM PDT by Freeper (I was culture in the 60's and now with Clinton "running things" I am suddenly Counter-Culture.)
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To: kerryusama04
Gun control advocates point to the militia clause of the Second Amendment, arguing that it warrants a collective, rather than an individual, right to keep and bear arms.

Of course they do, what can you expect from people that believe Bush created global warming, Hurricane Katrina, the Indonesian Tsunami and after all that, still found time to go to Iraq and kill 100,000 innocent babies and unicorns. Militia is defined by statute. Title 10 USC 311 defines the militia in two parts, organized and unorganized. The organized being all males and females between the ages of 17-45. The organized being the National Guard.

19 posted on 07/03/2006 7:44:44 PM PDT by Ajnin (I)
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To: MilesVeritatis
The New Hampshire State Constitution gets it right also:

[Art.] 2-a. [The Bearing of Arms.]. All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

[Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

20 posted on 07/03/2006 7:50:48 PM PDT by freeandfreezing
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To: kerryusama04

The very idea that citizens might be barred from militia membership was itself an indication of tyranny.

Bump.


21 posted on 07/03/2006 7:56:46 PM PDT by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
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To: ansel12

Miller didn't have the resources. IIRC, the case wasn't really argued.


22 posted on 07/03/2006 8:08:42 PM PDT by bvw
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To: freeandfreezing

And do not forget that Letters of Marque and Rebuke infer both private armies and private battleships, and that clause in the Constitution PRECEDES the clauses that permit the Federal Government to form and fund an Army and Navy.


23 posted on 07/03/2006 8:22:08 PM PDT by bvw (Repeated from Dec 2005 http://www.freerepublic.com/focus/news/1546913/posts)
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To: kerryusama04
Then, United States vs. Miller held that a sawed-off shotgun was subject to registration because there was no evidence before the court that it had a military use.

NO, SCOTUS DID NOT HOLD THAT A SAWED-OFF SHOTGUN WAS SUBJECT TO REGISTRATION! And I get really sick of reading that misleading claim from PRO-RKBA sources! SCOTUS remanded this case to the lower court, which was to determine WHETHER that type of gun had ever had a military use. If the lower court had proceeded with the case, it would have found that sawed-off shotguns HAD been used in military action. The case was moot by the time it was remanded, since one of the two defendants had died and the other had accepted a plea bargain and paid a small fine.

24 posted on 07/03/2006 8:40:05 PM PDT by GovernmentShrinker
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To: kerryusama04

Ping


25 posted on 07/03/2006 8:41:49 PM PDT by mr_hammer (They have eyes, but do not see . . .)
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To: ansel12
Can someone explain how that was not successfully argued by the pro 2nd side.

Miller died and was not represented before the Supreme Court. Had so much as a monkey represented him, ample docmentation could have been provided of the use of sawed off shotguns in WWI trench warfare.

 I've got a copy of just about everything you could possibly ask for on my website. See US v. Miller. Ignore the certificate error if you get one. My site is in transition at the moment.
 

26 posted on 07/03/2006 10:33:55 PM PDT by zeugma (I reject your reality and substitute my own in its place.)
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To: zeugma

The link didn't work,I'll check again in a few minutes.


27 posted on 07/03/2006 10:36:56 PM PDT by ansel12
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To: GovernmentShrinker

BTTT


28 posted on 07/03/2006 10:51:05 PM PDT by Badray (CFR my ass. There's not too much money in politics. There's too much money in government hands.)
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To: kerryusama04
2nd: The founders meant what they wrote about arms

I'd bet my life on it! ; )

29 posted on 07/03/2006 10:52:41 PM PDT by TigersEye (The ego chatters endlessly on. Mind speaks in great silence.)
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To: ansel12

This is also a good link to keep one busy for awhile.

http://www.rkba.org/research/miller/Miller.html


30 posted on 07/04/2006 2:27:03 AM PDT by Top2591
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To: Top2591

Thanks, I put it in favorites so that I can read it later, finally I get to see a case that has puzzled me for a long time.


31 posted on 07/04/2006 2:39:47 AM PDT by ansel12
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To: kerryusama04

Paging Mayor Bloomingidiot.....
Paging Mayor Nogin.....
Paging Senator Feinswizzle...
Paging Senator Boxbrains.....
Paging The Brady Bunch.....


Molon Labe


32 posted on 07/04/2006 2:47:20 AM PDT by JoeSixPack1
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To: winston2

I truly believe that if I wanted to have a Abrams M1 tank sitting at ready on my property - no one - government official - or not has any right to infringe upon my Constitutional right to have it.

Sorry, but just because you believe something, does not make it so. You started out so well, analyzing the words in the 2nd Amendment - but then you let your feelings get in the way. This is the way liberalism works, not real conservatism - liberalism says that whatever I "feel" is right or just ought to be done. Conservatism says that we must analyze and decide what is actually in the law or the Constitution and then enforce that, even if it leads to outcomes we don't like (and change the law through the established methods if we don't like the outcome).

What I am referring to in your analysis is the word "arms." In the 18th Century, there were different types of weapons. "Arms" referred to the personal weapons that the typical militia member could be expected to possess, maintain and use. We now refer to this as small arms (among other things). The other term for weapons was "ordnance" (not ordinance, which is a local law). This referred to items that were typically provided by the government - cannons, explosives, ships, etc. An individual could own ordnance, but it was not expected to be that way, so it was not considered a right and was not put in the 2nd Amendment. This means that the Federal government is free to regulate ordnance, IMO.

In the modern army, ordnance would include the M-1 Abrams Tank. It would include machine guns (in the military, a machine gun belongs to the unit, while rifles and pistols are referred to as "personal weapons."), hand grenades, grenade launchers, bombs, planes, etc. In an Infantry squad, there are typically only two soldiers allowed to fire their M-16 on fully automatic, so one could easily argue that a fully automatic weapon of any kind is "ordnance." On the other hand, to argue "assault weapons" (whatever that means) are not "arms" is ridiculous - the semi-automatic variety is exactly what would have been considered "arms" under the 2nd Amendment (IMHO).

Not sure about the sawed off shotgun in Miller - I can see the point, but think this was more likely the Court trying to introduce some of it's own Constitutional interpretation. I don't know for sure, but I think the military has used and continues to use short-barreled shotguns.

33 posted on 07/04/2006 3:06:08 AM PDT by BruceS
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To: kerryusama04
guaranteeing only that states can maintain a National Guard.

The anti-gun folks want you to believe that the founders were prescient. After all, the National Guard didn't come into existence until 100 years later.

One must remember the state of mind of the founders at the time the words were penned.

The founders knew that the People had a right, indeed a responsibility, to form groups (militia) to overthrow a cruel and callous government (Great Britain) because they wrote it during a war of rebellion.

In my opinion, the Second Amendment not only guarantees the right of the People to keep and bear arms, uninfringed, but also the right to organize as militia to defend themselves against the government. That's why the federal and state governments work so hard to neuter it.
34 posted on 07/04/2006 3:18:28 AM PDT by Beckwith (The dhimmicrats and liberal media have chosen sides and they've sided with the Jihadists.)
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To: BruceS
RE: Your post #33

Reply: Well thought out and expressed opinion.

It seems to me from the context of timing and the climate of events under which our Founding Fathers wrote the 2nd Amendment - it's most important purpose was to enable the citizens to (God help us that we never need to do so.) do battle with our own Federal Government to right excessive abuses of federal power against us the citizens. The raw ingredient that prompts my opinion about the strength of the interpretation of the 2nd Amendment is quoted below:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence indeed, will dictate, that Governments long established, should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.

United States Declaration of Independence From Wikipedia, the free encyclopedia

35 posted on 07/04/2006 6:39:45 AM PDT by winston2 (In matters of necessity let there be unity, in matters of doubt liberty, and in all things charity:-)
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To: Beckwith
The anti-gun folks want you to believe that the founders were prescient. After all, the National Guard didn't come into existence until 100 years later.

One must remember the state of mind of the founders at the time the words were penned.

The founders knew that the People had a right, indeed a responsibility, to form groups (militia) to overthrow a cruel and callous government (Great Britain) because they wrote it during a war of rebellion.

In my opinion, the Second Amendment not only guarantees the right of the People to keep and bear arms, uninfringed, but also the right to organize as militia to defend themselves against the government. That's why the federal and state governments work so hard to neuter it.

Yeah -

What he said.

36 posted on 07/04/2006 6:44:48 AM PDT by winston2 (In matters of necessity let there be unity, in matters of doubt liberty, and in all things charity:-)
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To: BruceS
Sorry, but just because you believe 'Arms' are not 'Ordnance' does not make it so.

You've let your feelings get in the way. This is the way liberalism works, - liberalism says that whatever I "feel" is right or just ought to be done.

Conservatism says that we must analyze and decide what is actually in the law or the Constitution and then enforce that.

'Ordnance' need not be enumerated in the 2nd, -- as the 9th makes clear.

One of our leading FReeper's explained the concept rather well:

"-- I support the Second Amendment. And I make no bones about its purpose or to whom it applies. It was not put in place so Bill and Hillary Clinton could go duck hunting with a shotgun or so Barbara Steisand could carry a derringer in her purse to stave off overzealous fans.
It's there because the founders wanted to ensure that we the people (ie, individuals) should remain armed to defend ourselves from a government gone bad. As far as I'm concerned, we should be allowed to park fully operational Sherman tanks in our garages and commute via fighter planes (if we wish). Now, personal nukes capable of taking out large cities.... hmmmm.... I don't know if I want to trust some of the crazier antiwar libs with those. --"

37 posted on 07/04/2006 7:18:01 AM PDT by tpaine
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To: kerryusama04
In the context of the 18th century, didn't citizens bring their own weapons to militia formations? Did militias have standing supplies of weapons and ammunition available when an activation happened?
38 posted on 07/04/2006 7:22:14 AM PDT by Bernard (God helps those who helps themselves - The US Government takes in the rest.)
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To: Bernard
Yes, to both.

The Minutemen assembled at Lexington and later Concord to keep the British Regulars from seizing arms that were stored at Concord.

They brought their personal firearms to do it.

And the rest, they say, is history.
39 posted on 07/04/2006 12:54:21 PM PDT by Beckwith (The dhimmicrats and liberal media have chosen sides and they've sided with the Jihadists.)
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To: ansel12
Sorry about the link. My IP address changed and I hadn't noticed it.

Here's a good link to it:

US v Miller

You might also be interested in the following cases:

US v. Dalton
The money quote from US v. Dalton:

  Finally, the government argues that the Gun Control Act, of which section 922(o) is a part, should not be viewed as repealing the National Firearms Act, citing a provision of the Gun Control Act passed in 1968 to that effect. The court in Rock Island Armory rejected the same government argument, observing that "the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986 and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis."

US v. Rock Island Armory. 

And for US v. RIA:

 

Finally, the prosecution quotes an enactment passed in 1968 that the provisions of Title I of the Gun Control Act shall not modify or affect the National Firearms Act. (Footnote 15) However, the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). (Footnote 16) Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986, and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis. It is the duty of the judiciary to declare such laws unconstitutional. Marbury v. Madison, I Cranch. 137, 176-77, 2 L.Ed. 60 (1803).

In sum, since enactment of 18 U.S.C. sec. 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts l(a) and (b), 2, and 3 of the superseding indictment are

DISMISSED.

Why is it that noone has ever heard of these cases? Granted, they are appelate level opinions, because the government was too frightened to take them to the Supreme Court, but they stand and are a part of caselaw. I've found citations to the above two cases in others, so they are still available to plaintiffs.

40 posted on 07/04/2006 10:35:08 PM PDT by zeugma (I reject your reality and substitute my own in its place.)
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To: zeugma

I'm familiar with them, and not sure they're relevant.

Upshot is that so long as 922(o) holds, the feds can't bust you for not paying the $200 tax on a post-'86 MG ... but you can still be busted for violating 922(o), which is harsher. The rulings simply do not go any further than that; they do NOT invalidate any part of NFA law which is not shadowed by 922(o).


41 posted on 07/05/2006 10:47:23 AM PDT by ctdonath2
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To: ctdonath2

...and...
Should 922(o) be overturned, the parts of NFA it covered would be restored.


42 posted on 07/05/2006 10:50:12 AM PDT by ctdonath2
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To: tpaine
Your post does not make any sense. You say "'Ordnance' need not be enumerated in the 2nd, -- as the 9th makes clear." is obviously correct. But neither does it mean that it ordnance is a right that is covered by the 9th. Mind you, I am not certain what is covered under the 9th, but I am sure the word ordnance is not in the 2nd Amendment. Ordnance is obviously not covered by the 2nd, since the framers of the Bill of Rights very specifically said "Arms." In my opinion, the way to resolve what is covered by the 9th is covered by the 10th - powers not given to the Feds are reserved to the States or the People. States have chosen to outlaw what I have termed as ordnance. That means that the States have spoken and the People (through their elected representatives) have not over-ruled those laws.

Also, while I respect what a "leading FReeper" may say, I reserve the right to disagree with an opinion, even one that you might agree with.

Finally, if you accept that there is the capability of the Federal government to outlaw nukes, then you are admitting that the 2nd Amendment right is not absolute with all weaponry. That only bolsters my assertion that while Arms are specifically included, ordnance is not specifically covered under the 2nd Amendment.

43 posted on 07/05/2006 4:29:51 PM PDT by BruceS
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To: BruceS
You claimed:

In the 18th Century, there were different types of weapons. "Arms" referred to the personal weapons that the typical militia member could be expected to possess, maintain and use. We now refer to this as small arms (among other things). The other term for weapons was "ordnance" (not ordinance, which is a local law). This referred to items that were typically provided by the government - cannons, explosives, ships, etc.

Yep, this is a common argument made by those who support prohibitions on ordnance like cannons and machine guns, etc. -- Al of which are 'arms', as per the 2nd.

An individual could own ordnance, but it was not expected to be that way, so it was not considered a right and was not put in the 2nd Amendment.

Pure supposition.. -- Nothing in the Constitution itself or in the documentary record leading to it's ratification supports that theory.

This means that the Federal government is free to regulate ordnance, IMO. In the modern army, ordnance would include the M-1 Abrams Tank.

The ownership of tanks [of any sort] is not regulated/outlawed. Only the arms mounted on them are unconstitutionally prohibited.

It would include machine guns (in the military, a machine gun belongs to the unit, while rifles and pistols are referred to as "personal weapons."), hand grenades, grenade launchers, bombs, planes, etc.

Again, owning "- planes -" is totally unregulated, just like tanks. Constitutionally speaking, either are 'ordnance' or arms.

In an Infantry squad, there are typically only two soldiers allowed to fire their M-16 on fully automatic, so one could easily argue that a fully automatic weapon of any kind is "ordnance."

Allowed? How confused. In battle any soldier fires any weapon at hand to kill the enemy. This is a poor argument made only to favor prohibitions on machine guns.

On the other hand, to argue "assault weapons" (whatever that means) are not "arms" is ridiculous - the semi-automatic variety is exactly what would have been considered "arms" under the 2nd Amendment (IMHO).

And so is the "full automatic variety". Only gun grabbers 'see' a difference.

Not sure about the sawed off shotgun in Miller - I can see the point, but think this was more likely the Court trying to introduce some of it's own Constitutional interpretation. I don't know for sure, but I think the military has used and continues to use short-barreled shotguns.

They do, at short ranges, they spray out more lethal 'bullets' than a submachine gun, just as fast.. -- Proving that machine guns are no more deadly 'ordnance' than small arms.


You say "'Ordnance' need not be enumerated in the 2nd, -- as the 9th makes clear." is obviously correct.

But neither does it mean that it ordnance is a right that is covered by the 9th.

Your belief that 'ordnance' is not arms is flawed. Prior to the Firearms Act of '33, all types of arms/ordnance were unregulated. -- That 'Act' was a bald unconstitutional infringement.

Mind you, I am not certain what is covered under the 9th, but I am sure the word ordnance is not in the 2nd Amendment. Ordnance is obviously not covered by the 2nd, since the framers of the Bill of Rights very specifically said "Arms."

You're nitpicking common english usage in order to 'win' a political argument that was settled by ratification of the Constitution. Cannons, machine guns, etc, -- what you call 'ordnance' were all unregulated for the first 150 years of the Republic.

In my opinion, the way to resolve what is covered by the 9th is covered by the 10th - powers not given to the Feds are reserved to the States or the People.

You're ignoring that some powers are prohibited to States; -- one is infringing on our right to arms.

States have chosen to outlaw what I have termed as ordnance. That means that the States have spoken and the People (through their elected representatives) have not over-ruled those laws.

The 'majority rule' theory you've outlined does not trump the clear words of the 2nd. State have no power to 'oulaw' arms/ordnance.

Finally, if you accept that there is the capability of the Federal government to outlaw nukes,

The feds closely regulate nuclear, bio, & chemical substances that can be used for weapons. They do not 'outlaw' them. Lots of companies & people own and use such materials, very carefully..

then you are admitting that the 2nd Amendment right is not absolute with all weaponry.

Reasonable regulations can be legislated, as long as they do not deprive people of "life, liberty or property without due process of law". --- Try to understand the principle behind the 14th.

That only bolsters my assertion that while Arms are specifically included, ordnance is not specifically covered under the 2nd Amendment.

Why do you want to give government the power to prohibit arms/ordnance? The State of CA is presently forbidding the possession or transfer of some semi-auto arms, using your type of reasoning. -- You approve?

44 posted on 07/05/2006 7:35:33 PM PDT by tpaine
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To: tpaine
I said:An individual could own ordnance, but it was not expected to be that way, so it was not considered a right and was not put in the 2nd Amendment.

You replied:Pure supposition.. -- Nothing in the Constitution itself or in the documentary record leading to it's ratification supports that theory.

And where is your documentary evidence that ordnance was included in the 2nd Amendment?

The ownership of tanks [of any sort] is not regulated/outlawed. Only the arms mounted on them are unconstitutionally prohibited.

Sorry, I was not specific enough about either tanks or planes. You are correct, when I was mentioning either, I was only referring to the weapons on them. I have known of several people who own tanks and private ownership of airplanes is obviously not prohibited.

Allowed? How confused. In battle any soldier fires any weapon at hand to kill the enemy.

How confused. The difference between a mob and the military is mainly in the discipline of the personnel. Firing a weapon on full automatic without a stabilizing attachment (such as an M-16, without a bipod) generally wastes ammunition and hits less than well-aimed semi-automatic fire. For that reason, the military regulates how personnel are to use the weapons they are given. Rambo was a joke and would have been bounced out of every unit I was ever in.

Reasonable regulations can be legislated, as long as they do not deprive people of "life, liberty or property without due process of law". --- Try to understand the principle behind the 14th.

This is actually the gun-grabbers argument. What are "reasonable" regulations? If the 2nd means ALL weaponry, arms and ordnance, then it is an absolute right (subject only to punishment for abuses of the rights of others). That is, you could own a nuclear weapon, but could be prosecuted for misusing it. The 2nd actually means all arms and it is an absolute right - subject to prosecution for misuse of the arms (such as shooting your neighbor without just cause).

By the way, "life, liberty or property without due process of law" is in the 5th Amendment. The 14th merely extends this to the individual states.

Why do you want to give government the power to prohibit arms/ordnance? The State of CA is presently forbidding the possession or transfer of some semi-auto arms, using your type of reasoning. -- You approve?

You have obviously been nit-picking my argument so much you are ignoring my points. Earlier, I specifically said that the semi-auto arems are covered under the 2nd Amendment (you even quoted that), now you are saying that I said the opposite.

This is boring - you are not debating principles, you are semantically arguing on the meaning of each phrase in my posts - looking for things like the planes vs weapons on the planes (it should have been obvious that I meant the weapons, since planes can be privately owned). I gave up this kind of argument in high school. I will go elsewhere, where I can get a reasoned argument. Thanks for playing.

45 posted on 07/06/2006 2:57:47 AM PDT by BruceS
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To: ansel12
It wasn't argued at all. The defendants never appeared to argue their case before SCOTUS.

They did win at the appellate level, though.

L

46 posted on 07/06/2006 3:27:46 AM PDT by Lurker (When decadence pervades the corridors of power, depravity walks the side streets.)
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To: BruceS
--- you are not debating principles, --

Bruce, I've argued that the principles inherent in our founding documents, and the plain words of the Constitution itself in the 2nd, 5th, 9th, 10th & 14th Amendents make it abundantly clear that our RKBA's [in your own words] "-- is an absolute right (subject only to punishment for abuses of the rights of others).
That is, you could own a nuclear weapon, [subject to reasonable regulations on safe storage] but could be prosecuted for misusing it.
The 2nd actually means all arms and it is an absolute right - subject to prosecution for misuse of the arms (such as shooting your neighbor without just cause). --"

You reject that argument.. You've claimed that 'ordnance' can be 'outlawed' by any level of government.

Case closed. -- Feel proud of arguing ~for~ 'gun control'.

47 posted on 07/06/2006 6:42:13 AM PDT by tpaine
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To: tpaine

Maybe you should learn to read before you come out in the real world. I did not say "you could own a nuclear weapon." I said, IF your argument were valid, you could own a nuclear weapon. Your deliberate misquoting is worthly of a Clinton or a Kennedy.


48 posted on 07/06/2006 5:22:54 PM PDT by BruceS
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To: BruceS
I did not say "you could own a nuclear weapon." I said, IF your argument were valid, you could own a nuclear weapon.

Learn to read. -- 'We the people' [schools, hospitals, power companies, etc.] can and do own nuclear materials that could be used as weapons. -- These materials are closely regulated, but the fact that they are available proves the validity of my basic argument. [Quoted in ~your~ words.]

Your deliberate misquoting is worthly of a Clinton or a Kennedy.

Your deliberate attempt to divert the issue is typical of those who back gun 'controls'.

49 posted on 07/06/2006 8:42:36 PM PDT by tpaine
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To: ansel12
Can someone explain how that was not successfully argued by the pro 2nd side.

There wasn't one, a pro 2nd side that is, at the Supreme Court. It was successfully argued at the district court level, during pretrial motions. The judge dismissed the case on the basis that no violation of a valid law was alleged.

Only the government was represented before the Supreme Court. The NRA did not file a friend of the Court brief, being mostly a target shooting and hunting group in those days, the persons originally charged were also not represented. Today that would not happen. Even if they could not be located, which was more or less the case then, counsel would be appointed to represent them. One of the parties was dead by the time the Court rendered its opinion.

See this collection of Miller Documents for the whole sordid story.

50 posted on 07/08/2006 7:45:33 AM PDT by El Gato
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