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Lawyers, Guns and Money (Supreme Court May Have To Define Second Amendment)
Harvard Law Bulletin ^ | Summer 2007 | By Elaine McArdle

Posted on 07/06/2007 4:34:01 PM PDT by fight_truth_decay

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To: Radio_Silence
The National Guard didn’t exist at the time of the Bill of Rights’s passing, and it is not the militia. The Guard is paid therefore owned by the government. This not what the Founding Fathers had in mind.
81 posted on 07/07/2007 9:54:13 AM PDT by oyez (Justa' another high minded lowlife.)
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To: FreedomPoster
Good stuff. Thanks.

Also, there were "the regulars," troops that were the professionals. What made them "regular" was their uniform dress, training, and arms.

When applied to the militia, that meant they were to have some kind of battlefield uniformity, the most important of which was arms.

Revolutionaries (known as "Americans", "Whigs," "Congress-Men" or "Patriots") had the active support of the population. About 15 to 20 percent of the population supported the British Crown after 1775 and were known as Loyalists (or Tories). Loyalists fielded perhaps 50,000 men during the war years in support of the King.

When the war began, the Americans did not have a professional army or navy. Each colony provided for its own defenses through the use of local militia. Militiamen were lightly armed, slightly trained, and usually did not have uniforms. Their units served for only a few weeks or months at a time, were reluctant to go very far from home, and were thus generally unavailable for extended operations. Militia lacked the training and discipline of regular soldiers but were more numerous and could overwhelm regular troops as at the battles of Concord, Bennington and Saratoga, and the siege of Boston. Both sides used partisan warfare but the Americans were particularly effective at suppressing Loyalist activity when British regulars were not in the area.[2]

German troops serving with the British were called "Hessians." (C. Ziegler after Conrad Gessner, 1799)Seeking to coordinate military efforts, the Continental Congress established (on paper) a regular army in June 1775, and appointed George Washington as commander-in-chief. The development of the Continental Army was always a work in progress, and Washington used both his regulars and state militia throughout the war. About 250,000 men served as regulars or as militiamen for the Revolutionary cause in the eight years of the war, but there were never more than 90,000 total men under arms at one time. Armies were small by European standards of the era; the greatest number of men that Washington personally commanded in the field at any one time was fewer than 17,000. This could be attributed to tactical preferences, but it also could be because of lack of powder on the American side. [3]


82 posted on 07/07/2007 9:54:38 AM PDT by xzins (Retired Army Chaplain And Proud of It! Those who support the troops will pray for them to WIN!)
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To: TigersEye
W"ho are these phantasms you refer to as "they?" Clearly the following Founders didn't intend what you claim."

They = the Founding Fathers.

"No free man shall ever be debarred the use of arms." ~Thomas Jefferson, 1776

Actually, the complete quote is, "No free man shall ever be debarred the use of arms in his own lands." (He wanted that phrasing in the Virginia State Constitution. It was rejected.)

"What is the militia? It is the whole people, except for a few public officials." ~George Mason, 1788"

Some rights are individual. Some are of the whole people (or the people at large). So I agree.

The rest have to do with "the people". I've already explained what that means.

83 posted on 07/07/2007 9:56:42 AM PDT by robertpaulsen
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To: TigersEye
"Refer us to where the Constitution spells that out and then expain how today's courts view that notion by Constitutional rulings."

The U.S. Constitution spelled out "the people", leaving it up to each state to set up their voting criteria. At the time, only white, male, citizen landowners were allowed to vote. Not all persons. That was my point -- "the people" did not mean "all persons".

84 posted on 07/07/2007 10:02:38 AM PDT by robertpaulsen
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To: Joe Brower

I think Oleg Volk just slapped any handy sight on Longarm’s A2.

I agree, that rifle needs optics with some magnification to get the most out of it.


85 posted on 07/07/2007 10:04:09 AM PDT by Travis McGee (--- www.EnemiesForeignAndDomestic.com ---)
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To: oyez
T"he Guard is paid therefore owned by the government. This not what the Founding Fathers had in mind."

True. But states are still free to form their own, well-regulated state Militia, protected by the second amendment. I believe Texas and a couple of others have their own.

86 posted on 07/07/2007 10:07:35 AM PDT by robertpaulsen
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To: TigersEye

Only wannabee gun grabbers find the 2nd Amd “ambiguous.”


87 posted on 07/07/2007 10:07:46 AM PDT by Travis McGee (--- www.EnemiesForeignAndDomestic.com ---)
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To: groanup; Joe Brower

Great post, that’s a keeper!


88 posted on 07/07/2007 10:14:14 AM PDT by Travis McGee (--- www.EnemiesForeignAndDomestic.com ---)
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To: Travis McGee

Good to see you’re back...I hope it doesn’t delay the completion of EF&D 3.


89 posted on 07/07/2007 10:16:50 AM PDT by gundog
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To: Travis McGee
The only problem with that post is that there are two too many commas in that version of the 2nd. It properly reads:

"A well regulated militia being a necessity to a free State, the right of the people to keep and bear arms shall not be infringed."

I don't know when all those extra commas got inserted, but they're not in the original document.

L

90 posted on 07/07/2007 10:17:51 AM PDT by Lurker (Comparing moderate islam to extremist islam is like comparing small pox to ebola.)
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To: SW6906; y'all
Agreeing to disagree with socialists is akin to giving away your rights.

Conventional [socialistic] wisdom holds that United States v. Cruikshank settled the question of the Second Amendment's applicability to state governments.

However, in the haste to dispose of Second Amendment claims, the background against which the Cruikshank decision took place is ignored.
Moreover, language in the opinion, as well as a half century of Supreme Court doctrine, calls into serious question the continuing viability of either the holding or the reasoning.

Cruikshank, decided during Reconstruction, "was part of a larger campaign of the Court to ignore the original purpose of the Fourteenth Amendment -- to bring about a revolution in federalism, as well as race relations."

The Supreme Court found that despite the passage of the Fourteenth Amendment, the First Amendment to the Constitution "was not intended to limit the powers of the State governments in respect to their own citizens, but to operate on the National government alone."
Under the Court's construction, because the right of the people to peaceably assemble was neither "created" by the Constitution, nor "was its continuance guaranteed, except as against congressional interference," the people must look to the states for protection of this right.

The Court relied on much the same reasoning in dismissing the claim that the defendants conspired to hinder the complainants' right to "[bear] arms for a lawful purpose."
First noting that "bearing arms for a lawful purpose" was "not a right granted by the Constitution," [was not "created" by the Constitution] the Court held that the Second Amendment's language "means no more than it shall not be infringed by Congress" seeing that internal police powers were "not surrendered or constrained by the Constitution of the United States."

The Supreme Court devoted exactly one paragraph in the entire opinion to the Second Amendment issue, an issue that was arguably ill-framed in the first place.

Not only was there little analysis, but what analysis there was with regard to the First Amendment issue is now outdated when considered in light of the Supreme Court's incorporation decisions.

Yet, socialistic lower courts continue to cite this case for the proposition that the Second Amendment poses no obstacle to state gun control legislation, even if it amounts to an outright ban on certain types of arms.

91 posted on 07/07/2007 10:45:35 AM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: Travis McGee

So Oleg did that image for you? He’s a cool guy. I’ve been watching his work, since days of the first incarnation of TheFiringLine forums. I download pretty much everything of his that I come across.

It’s amazing how many immigrants to this country appreciate their freedoms so much more, than many born and bred on these shores.


92 posted on 07/07/2007 10:46:29 AM PDT by FreedomPoster (Guns themselves are fairly robust; their chief enemies are rust and politicians) (NRA)
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To: gundog
I hope it doesn’t delay the completion of EF&D 3.

Now you're hitting a nerve.

I may have to private-post another hiatus-opus until completion of Foreign Enemies.

93 posted on 07/07/2007 10:48:01 AM PDT by Travis McGee (--- www.EnemiesForeignAndDomestic.com ---)
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To: Lurker

I agree, but the extra 2 commas have been there so long that they’re just accepted as original.


94 posted on 07/07/2007 10:49:07 AM PDT by Travis McGee (--- www.EnemiesForeignAndDomestic.com ---)
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To: FreedomPoster
Oleg is the master of RKBA photography. His website A Basic Human Right is magnificent, and I cannot recommend it highly enough, especially for those who are new to shooting and firearms.
95 posted on 07/07/2007 10:52:50 AM PDT by Travis McGee (--- www.EnemiesForeignAndDomestic.com ---)
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To: robertpaulsen
robertpaulsen said: The extra words in "A" were added because the Founding Fathers thought they looked cool."

Your reading would be that the "extra words" change the meaning such that the federal government can infringe the right to keep and bear arms for any purpose other than militia duty. Is that not so?

"A well-read electorate being necessary to a free nation, the right of the people to own and read books shall not be infringed."

The sentence above would then mean that the right own and read books is limited to books about elections. Isn't that what you support?

96 posted on 07/07/2007 10:52:56 AM PDT by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: Travis McGee
I may have to private-post another hiatus-opus until completion of Foreign Enemies

I'm reading that on another machine. Now get busy you slacker!

L

97 posted on 07/07/2007 10:54:59 AM PDT by Lurker (Comparing moderate islam to extremist islam is like comparing small pox to ebola.)
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To: Travis McGee

I concur. I send people to that site regularly.


98 posted on 07/07/2007 10:58:08 AM PDT by FreedomPoster (Guns themselves are fairly robust; their chief enemies are rust and politicians) (NRA)
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To: William Tell; robertpaulsen; groanup; Lurker

That precise point is masterfully disposed of at reply 70.

Must reading, for those who are not being intentionally obtuse.


99 posted on 07/07/2007 11:01:12 AM PDT by Travis McGee (--- www.EnemiesForeignAndDomestic.com ---)
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To: fight_truth_decay
If the ''people'' were not to bear arms the amendment would have said:

''A well-regulated militia, being necessary to the security of a free state, the right of the militia to keep and bear arms, shall not be infringed.''

Additionally, if "the people" is a code word for "the States", then the 10th Amendment really reads "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the States." 

100 posted on 07/07/2007 11:02:14 AM PDT by Redcloak (The 2nd Amendment isn't about sporting goods.)
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