Skip to comments.Law Firm Uses Online Constitutional Source Library to Prep for Gun Law Cert Petition [DC gun case]
Posted on 08/09/2007 6:06:52 PM PDT by kiriath_jearim
click here to read article
So why the press release?
Seems this law firm can only falsify history rather than represent it.
(You also have to be careful with online sources, I remember one case I had where the various online sources actually had different versions of a vital case where a vital paragraph was “edited” except in the orignal reference source.)
seems the firm is more concerned with PR than actually representing their client.
“The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument has given birth...”
- The U.S. Supreme Court, Cohens v. Virginia (1821).
[note: no mention of the Anti-Federalist]
“Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice inthe course of a year.” - Federalist Paper 29, Hamilton
Further note regarding “The Militia Act of 1792” which pretty well lays out that all citizens between 18 and 45 are to own a military grade rifle as part of their membership in the militia...
“each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service”
The DC lawyers will that that hamilton quote and say it was to have an ORGANIZED militia NOT individual rights.
You have to ASSEMBLE them in a unit. The lawyers will argue this means we no longer have militias like that there fore there is no individual right.
need better cites.
“As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.” (introduction to his discussion, and support, of the 2nd Amend) “Remarks on the First Part of the Amendments to the Federal Constitution” Philadelphia Federal Gazette, 18 June 1789, pg.2
ZACHARIA JOHNSON (delegate to Virginia Ratifying Convention): “The people are not to be disarmed of their weapons. They are left in full possession of them.” (Elliot, 3:645-6)
“Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.” - Noah Webster, An Examination of The Leading Principles of the Federal Constitution, Philadelphia, 1787
“False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm those only who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty-so dear to men, so dear to the enlightened legislator-and subject innocent persons to all the vexations that the quality alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an unarmed man. They ought to be designated as laws not preventive but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree.” - Thomas Jefferson, quoting 18th century criminologist Cesare Beccaria in “On Crimes and Punishment”, 1764
“Arms in the hands of the citizens may be used at individual discretion for the defense of the country, the overthrow of tyranny or private self-defense.” - John Adams, A Defense of the Constitutions of Government of the United States of America, 1787-88
“if the representatives of the people betray their constituents, there is no recorse left but the exertion of that original right of self-defense which is paramont to all forms of positive government.” - Alexander Hamilton, writing in The Federalist Paper No. 28
“The best we can hope for concerning the people at large, is that they be properly armed.” - Alexander Hamilton, The Federalist Papers , 184-8
“...if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.” - Alexander Hamilton, The Federalist Papers No. 29
Nope. Cites are fine. Note the use of the words “people at large.” No select militia there (e.g. National Guard). Further note ...
“All able bodied men, 17 to 45 of age, are ultimately eligible to be called up into military service and belong to the class known as the Reserve Militia, also known as the unorganized militia. Able bodied men who are not eligible for inclusion in the unorganized militia pool are those aliens not having declared their intent to become citizens of the United States (10 USC 311) and former regular component veterans of the armed forces who have reached the age of 64 (32 USC 313). All female citizens who are members of National Guard units are also included in the unorganized militia pool (10 USC 311).”
you have to look at how the lawyers will twist this.
They will use “enrolled” to show it is a collective right or a duty like jury duty.
This quote is all about how the militia will be organized.
Lawyers twist any ambiguity.
BTW 10 USC 311 is current law of the land. Basically, if you are a male, aged 17-45 your are already legally a member of the militia. Fortunately for us old guys, its a right of the people, not a right of the militia.
Please see my post 12. Not much ambiguity there.
Just being devils advocate because con law professors in law school used to twist those types of quotes in the same way.
Hopefully the advocates for the second amendment will deal with that head on.
Remember the USSC law clerks for the Justices will be those younger fresh legal minds full of mush.
The elites decide that the American people should be disarmed? If so, let’s see them enforce it. There are a hell of a lot of American citizens who will “take issue” with such an attempt, and who “will not go gently into that good night.” There is no surer path to a revolution or a civil war than the attempted disarmament of a free people. Remember Lexington and Concord, 1775. The “shot heard ‘round the world” was the report of a gun fired by a man who wanted to be free.
Fortunately the state of legal scholarship is pretty good with respect to the 2nd Amendment. It wasn’t 20 years ago. Of course our black-robed masters can just do what the hell they want (e.g. emanations and penumbras).
Now if we could only enforce the 9th and 10th Amendments. Oh well...
Thank you. That is what it comes down to. Force, pure and simple.
Also see www.WallBuilders.com for David Barton’s outstanding resources.
There are ways of throwing this back at into the gun controllers face... Saying that the Second Amendment and the Militia Act of 1792 REQUIRE every able bodied man (and now women) to own a firearm and be trained in the art of war. If I am correct, the law is still on the books.
The problem is the black robe class of appelate judges tend to be isolated from the real world and in the ivory tower delusional air of the appelate clerks, the research will be results oriented rather than constitutional oriented.
Parker v. Washington D.C. in HTML courtesy of zeugma.
The Parker decision is very comprehensive and persuasive.
Meanwhile they'd just PO'd one of the largest groups of potential customers in the Nation.
Bye bye Akin Gump Strauss Hauer & Feld.
One of their "fields" is advising cities and towns on how to retain their military bases under the BRAC process. I hope every one of them loses a base to some "arms rights friendly" location.
Who were the ones who insisted on the Bill of Rights. Although once the Constitution was passed, the Federalists too supported the creation and provisions of the Bill of Rights.
Yeah, and the theory was the enumerating rights would be a bad thing, since it would prejudice unenumerated rights (since OF COURSE, the feds would stick to enumerated powers only). Thank God for the Anti-federalists insistence. Still in all, I have yet to find a SCOTUS cite saying the Anti-Federalist Papers are to be regarded as a tool for interpreting the Constitution.
Actually they are part of the organized militia. However the parties to a contract cannot define the terms of the contract *after* the contract is written, thus the term "militia" means what it meant September 25, 1789 when the First Congress passed the Bill of Rights to be sent to the sates, and until December 15, 1791 when they were declared ratified. However the the Militia Act of 1972 does tell us what Congress thought the militia was. The states may have, and in fact *do* have different definitions. Texas defines it thusly:
Title 4 § 431.001. DEFINITIONS. In this chapter:
(1) "Reserve militia" means the persons liable to serve, but not serving, in the state military forces.
(2) "State militia" means the state military forces and the reserve militia.
(3) "State military forces" means the Texas National Guard, the Texas State Guard, and any other active militia or military force organized under state law.
(4) "Texas National Guard" means the Texas Army National Guard and the Texas Air National Guard.
§ 431.081. PERSONS SUBJECT TO MILITARY DUTY; PERSONS NOT ELIGIBLE TO ENLIST.
(a) A person is subject to military duty if the person is:
(2) a citizen or a person of foreign birth who has declared an intent to become a citizen;
(3) a resident of the state;
(4) at least 18 and not more than 60 years of age; and
(5) not exempt under Subsection (b) or (c) or United States law.
However all that really doesn't matter, the Constitution says "the right of the people not right or power of the militia, or power of the states. Militia service is a duty, not a right, keeping and bearing arms *is* a right, a right of the people. Texas' state constitution terms it a right of the citizen and they aren't protecting their own militia against being disarmed by itself.
Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State;...".
At least they've got one thing right. And of course that scares them Shiiteless.
That is how I always thought of them.
In order of importance to the law firm
The plain point of the Militia Act of 1792 - if you follow its full wording - is to ensure the general population is armed, from which a subset thereof may be assembled into a unit. It made sure that any who could be called would be ready. It also established a minimum level of preparedness, not a maximum. It also assumed one would arm himself, THEN register as being so armed.
The first principle of the 2nd Amendment is that ALL may be armed, from which subsets may be extracted/called for active service. The notion that only those subject to active service be armed is plainly preposterous, limiting national defense for no justifiable (or even articulable) reason.
Easily rebutted. The Act in question required citizens to so arm themselves BEFORE enrolling. It also punished citizens for not arming themselves to a minimum standard outside active/imminent service; absolutely nothing hinted at punishment for simply being armed, even with high-end military arms.
Modern equivalent of what our Founding Fathers actually enacted would be: every 16-year-old boy would be legally obligated to buy an M16 (plus case of ammo, 10 magazines, MOLLE pack, flak vest, and helmet), _then_ register with Selective Service System ... and, as is now, the chance of being called up for active service rather slim. (Coupled with this: the government would be obligated to provide periodic training for all enrollees in each county.)
It's not. Was replaced by the National Guard act (whatever its actual name).
Which is why DC is asking for every conceivable delay, including citing "we just hired a whole bunch of high-powered lawyers and need lots of extra time to figure out how to word 'we want to appeal the Parker verdict'."
In Federalist #29, Hamilton is actually arguing against having all individuals armed and trained to fight, saying that doing so "would be a real grievance to the people, and a serious public inconvenience and loss."
Bear in mind that the second amendment refers to a “well organized” Militia, not an unorganized militia. That’s not to say that a state cannot protect the RKBA of the unorganized militia — they can and do.
Robert, You know I don’t respond to you. Please don’t bother posting to me again.
I was quoting current Federal Code, which superceeds Texas law with respect to the Federal militia.
In a modern context, the aim of the Founders was to create an institution somewhat like the Swiss Army of today. I say somewhat because the level of training envisioned for the Militia (at least if you can call Hamilton authoritative) would be somewhat less than the Swiss system. On the other hand, the idea that (basically) all male citizens would own a military pattern rifle, ammo, and gear is certainly part of the original intent.
Yep. You have six months to arm yourself with a musket after being notified by your state.
The preferred weapon for hunting (and self defense) was the rifle due to its accuracy. But rifles were expensive, difficult to load quickly, and fouled after two or three rounds from the black powder.
The musket, though innacurate, was inexpensive, quick to load, didn't foul (due to the smoothbore design), and was ideal for Militia volley fire on the battlefield.
Which is why I don't understand the rush to put this issue in front of them.
Then why does the Militia Act of 1792 say you have six months to arm yourself after being notified? Seems to me that if the plain point of the Militia Act of 1792 was to ensure the general population is armed, there'd be no need to allow six months -- the population would already be armed.
I have personally seen too many judges in the sanctuary of their courtroom, where appeals have no possiblity to happen due to finance, simply rule how they want it to come out.
Black Robe fever is very real.
This was already done, on a smaller scale, during the aftermath of Katrina in Louisiana. As far as I know, nobody resisted when the police came for their guns.
“The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.” - Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session, Feb 1982
“The right of citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurption and arbitraty power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” - Supreme Court Justice Joseph Story, Commentaries On The Constitution, 1883
“Congress shall have no power to disarm the milita. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” - Tench Coxe, writing as “the Pennsylvanian” in the Philadelphia Federal Gazette, 1788
“As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.” - Tench Coxe in “Remarks on the First Part of the Amendments to the Federal Constitution.” Under the pseudonym “A Pennsylvanian” in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.
“The supposed quietude of a good man allures the ruffian; while on the other hand, arms, like laws, discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside...horrid mischief would ensue were one half the world deprived of the use of them...” - Pennsulvania Patriot Thomas Paine, Thoughts On Defensive War, 1775
“I am thus far a Quaker, that I would gladly argue with all the world to lay aside the use of arms and settle matters by negotiation, but unless the whole will, the matter ends, and I take up my musket and thank Heaven He has put it in my power.” - Writings of Thomas Paine 56 (M. Conway ed. 1894)
“While I cannot comment on any pending legislation, let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.” - U.S. Attorney General John Ashcroft, in a letter to James Jay Baker, Executive Director, National Rifle Association
“In recent years it has been suggested that the Second Amendment protects the “collective” right of states to maintain militias, while it does not protect the right of “the people” to keep and bear arms... The phrase “the people” meant the same thing in the Second Amendment as it did in the First, Fourth, Ninth and Tenth Amendments Ñ that is, each and every free person. A select militia defined as only the privileged class entitled to keep and bear arms was considered an anathema to a free society, in the same way that Americans denounced select spokesmen approved by the government as the only class entitled to the freedom of the press. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the 18th century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.” - Attorney/Author Stephen P. Holbrook, That Every Man Be Armed: The Evolution of a Constitutional Right
“There is no doubt in my mind that millions of lives could have been saved if the people were not “brainwashed” about gun ownership and had been well armed. ... Gun haters always want to forget the Warsaw Ghetto uprising, which is a perfect example of how a ragtag, half-starved group of Jews took 10 handguns and made asses out of the Nazis.” - Theodore Haas, Dachau Survivor
“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. [But] the supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States”. Prominent New England federalist and founding father Noah Webster, 1787
“A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.” - George Washington
“No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government” - Thomas Jefferson, Thomas Jefferson Papers, 334.
“A militia, when properly formed, are in fact the people themselves ... and include all men capable of bearing arms.” - Senator Richard Henry Lee, 1788, on “militia” in the 2nd Amendment.
“Are we at last brought to such a humiliating and debasing degradation, that we cannot be trusted with arms for our own defense? Where is the difference between having our arms in our own possession and under our own direction, and having them under the management of Congress? If our defense be the ‘real’ object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?” - Patrick Henry, speech of June 9 1788.
“Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.” - “M.T. Cicero”, in a newspaper letter of 1788 touching the “militia” referred to in the Second Amendment to the Constitution.
This could actually help the people fighting the DC ban, they can review the same documents and prepare to counter anything the DC lawyers provide.
The enrollment was automatic, based on simply being found of age & gender and within jurisdiction.
The notification was fair warning that the coming-of-age (or moving-in) youth was subject to such requirement.
It wasn’t that you were called up, it was notification that you, as a citizen, have an obligatory duty regardless of callup. All were generally expected to be armed; this notification made it clear a subset were _required_ to be armed to minimum standards.
And again (a point you keep resisting): there was NO punishment for one outside the defined militia membership being armed, nor for anyone having arms exceeding a minimum. The idea that those within a legal line could be punished for being inadequately armed, and those outside the line punished for being armed at all, is absurd.
I never said there was. All I said was that their RKBA was not protected by the second amendment.
You seem to think that implies it's somehow illegal to be armed. I don't know where you get that.
Todays socialists insist on trying to justify gun control on just that 'articulable' reason. -- Even here on FR they prattle on most every day with their specious 'reasons'.
-- it was notification that you, as a citizen, have an obligatory duty regardless of callup. All were generally expected to be armed; this notification made it clear a subset were _required_ to be armed to minimum standards.
Yep; -- yet todays socialists claim that only white men were protected by the second amendment, and that all other persons were subject to State 'law' on this issue.
Beware of the man [and amazingly there are quite a few on FR] who claim conservative credentials, while they argue that our US Constitution was not intended to protect our individual rights from fed, state, or local government infringements.
These men claim that 'We, -as a majority rules society', decide which rights we will protect.
--- For instance, if there's nothing in a state constitution about the right to keep and bear arms [and States can change their constitutions by super-majority decisions], - then --- States can ban all guns if they so chose.
You seem to think that it's OK for any/all level of government to make it illegal to be armed so long as some government-authorized subset of the population is government-authorized to possess government-authorized arms under government-authorized restrictions. I don't know where you get that.
From your prior reasoning (esp. the bit analogizing library cards), the states could ban guns outright, and the feds could ban guns so long as there is an exception for Irish-descended midgets wielding muskets while on patrol for the UN in Nigeria.
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