Surprise! ACLU Lawsuit Supports Gun Owner's Rights

[Ron 10]

Again,

Quade, you are a smart guy... Please find one quote from a founding father saying the individual should not be allowed arms... Then explain what Jefferson really meant in my sig line.

And your link just shows they debated the wording, not the intent.

It says the right will not be infringed, a well armed militia is in the best interest of the country, and that a person who has a religious objection would not be forced to serve. Still pretty cut a dry.

Like I said... Find a quote from a founding father against gun ownership.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[Ron 10]

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It's pretty clear that the "right to bear arms" was VERY closely associated with the desire to maintain militias.

Yes... Which is to say the 2nd is more about protecting an individuals right to an M16 than a duck gun.

Also, you have to look at what was considered to be a militia at that time:

"I ask, sir, what is the militia? It is the whole people, except for a few public officials."
— George Mason, in Debates in Virginia Convention on
Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788

"The militia, when properly formed, are in fact the people themselves, ... all men capable of bearing arms;..."
— "Letters from the Federal Farmer to the Republic", 1788 (either Richard Henry Lee or Melancton Smith).

"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom? Congress shall have no power to disarm the militia. 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, 1788.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[Andy9o8 3]

Forgive me from quoting from my posts in previous threads.

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The United States Code defines "militia" as follows:


TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

...and here's my analysis of why I think it is an individual right, and not merely a collective one, from a standpoint of the proper definition of "militia".

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The scholarly analysis of the Constitutional issue - some of which is found in more recent court opinions (like the Washington, DC case) - has led us to conclude that the Framers did indeed intend the 2nd Amendment to convey an individual right, and not just a collective "militia" right.

The only intellectually honest way to analyze the 2nd Amendment meaning of "militia" is to look at how the Framers defined the term in the U.S.at the turn of the 19th Century - not to how we in the 21st Century might define it today. There and then, "militia" was not just people banding together when a strictly military force needed to be raised, but also individuals using their personal arms for immediate self-defense against any domestic threat to life, property and safety, when civilian lawmen were few and far between, and not easily summoned to the scene of a crime in progress.

Those that think this definition of "militia" is obsolete in modern times may be right, or they may be wrong; but lawyers understand that they cannot use mere "modern policy" as a reason to simply ignore an existing Constitutional provision (the 2nd Amendment), or legislate it into nullity. Lawyers are trained to bear in mind: if a provision of the Constitution has outlived its usefulness, or has become contrary to modern society's principles, there is only one proper way to deal with it: engage the debate and amend the Constitution - if you can.

Sometimes principle is best illustrated by actual practice. After Hurricane Katrina, civil order in New Orleans - notably including the police force - completely broke down. True anarchy reigned, and the only way many people had to protect themselves, their families and their homes from marauding thugs - and thus maintain a modicum of civil order in the community - was by use of their personal firearms. Those individual people with their guns WERE the militia in New Orleans - EXACTLY as the Framers intended that term SOME 200 years earlier. And when some police officers - by definition, agents of the central government - confiscated some of those guns, leaving those people defenseless to protect their homes against looters and robbers - they were confiscating them from the militia - and in doing so, they violated the 2nd Amendment.

[billvon 3,162]

>Stop trying to use today's definition of a militia.

I'm not using today's definition of anything. I am pointing out why some people see it as a collective right. (Again, I think it's both.)

[Ron 10]

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Forgive me from quoting from my posts in previous threads

It's cool.

This is the big point for me:

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the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

I think when looked at from a historical perspective that there really is only one way to look at the 2nd. I think that people who want to claim it only applies to organized forces are just trying to re-create it to fit their needs.

It is interesting to note that the statute lists who is exempt from the militia:

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-STATUTE-
(a) The following persons are exempt from militia duty:
(1) The Vice President.
(2) The judicial and executive officers of the United States,
the several States, the Commonwealth of Puerto Rico, Guam, and
the Virgin Islands.
(3) Members of the armed forces, except members who are not on
active duty.
(4) Customhouse clerks.
(5) Persons employed by the United States in the transmission
of mail.
(6) Workmen employed in armories, arsenals, and naval shipyards
of the United States.
(7) Pilots on navigable waters.
(8) Mariners in the sea service of a citizen of, or a merchant
in, the United States.

That right there kinda blows the whole "the Army is the militia" argument right out of the water, IMO.

And I agree with what you said here:

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Lawyers are trained to bear in mind: if a provision of the Constitution has outlived its usefulness, or has become contrary to modern society's principles, there is only one proper way to deal with it: engage the debate and amend the Constitution

People know how hard it is to get the Constitution amended... So, they instead play legal games and try to redefine the words to get what they want.

I think that if the Amendment were written today in plain English it might read:

Since a Government needs to be protected, even from itself; The people will have the right to own and carry firearms.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[Andy9o8 3]

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That right there kinda blows the whole "the Army is the militia" argument right out of the water, IMO.

Well, the Army would still be Federal. My understanding is that most collective-rights interpreters argue that the present-day "militia" consists of state national guards and state and local police forces.

[Ron 10]

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Well, the Army would still be Federal. My understanding is that most collective-rights interpreters argue that the present-day "militia" consists of state national guards and state and local police forces.

Except the National Guard is considered part of the "armed forces" and they specifically state that members of the armed forces, except members who are not on active duty are exempt.

I would read that if you are active duty, you are not part of the militia, but if you were not active duty that you would be considered part of the militia.

Besides, I think the intent is pretty clear... The Militia is everyone but those that are already serving or those who's service would hamper the overall effort.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[nerdgirl 0]

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Well, the Army would still be Federal. My understanding is that most collective-rights interpreters argue that the present-day "militia" consists of state national guards and state and local police forces.

Except the National Guard is considered part of the "armed forces" and they specifically state that members of the armed forces, except members who are not on active duty are exempt.

Not by current US law - the US Code.

National Guard are Title 32 forces.

The “Armed Forces” are Title 10 forces.

32 USC 1.101.2: “Armed forces” means the Army, Navy, Air Force, Marine Corps, and Coast Guard.


Title 32 forces can do a lot more domestically than Title 10 forces can (by statute). Previous discussion of the scope of situations under which Title 10 forces can be deployed domestically, e.g., bugs, gas, nukes, War on Drugs.

I find the 1992 LA riots case more interesting (than Katrina personally). Federalized California National Guard and active duty US military (Marines and Soldiers) were deployed to the LA streets. It largely was the intervention of the Title 10 and federalized Title 32 forces that brought the end to the riots/rebellion/urban insurgency there.

Not sure if/how it effects the 2nd Amendment argument. Or how the history of the National Guard does either.

/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[Ron 10]

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Not by current US law - the US Code.

You can't use current definitions to alter the Constitution.

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Not sure if/how it effects the 2nd Amendment argument. Or how the history of the National Guard does either.

You can't change a definition and remove a right.

Arguing that the 2nd does not apply today would be like arguing that the 1st does not cover TV, Radio, or internet.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[nerdgirl 0]

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Not by current US law - the US Code.

You can't use current definitions to alter the Constitution.

Huh? *I'm* not doing that.

You asserted that based on an excerpt from 10 USC that Andy posted that "the National Guard is [emphasis mine, present tense verb] considered part of the "armed forces"."

That is not factual under US Law. The National Guard aren't Title 10 forces under US law.

(Unless you're arguing Title 32 of the US Code is somehow unconstitutional?)

/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[Ron 10]

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Huh? *I'm* not doing that

*I* wasn't saying you were

Just saying it again.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[warpedskydiver 0]

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That right there kinda blows the whole "the Army is the militia" argument right out of the water, IMO.

Well, the Army would still be Federal. My understanding is that most collective-rights interpreters argue that the present-day "militia" consists of state national guards and state and local police forces.

And they would still be wrong

[mnealtx 0]

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So, as to YOUR claim that I'm only repeating it enough so that people might think it's true . . . I think you might want to reconsider the propaganda you've apparently been brainwashed with.

I've given these links several times...THIS time, try actually reading them.

Linguistic analysis of the Second Amendment

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[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, constitutes 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 to keep and bear arms is asserted as an 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 a 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:] "(6) (If at all possible, I would ask you to take account the changed meanings of words, or usage, since that sentence was written 200 years ago, but not 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."

Senate Report on the Second Amendment

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The framers of the Bill of Rights consistently used the words "right of the people" to reflect individual rights--as when these words were used to recognize the "right of the people" to peaceably assemble, and the "right of the people" against unreasonable searches and seizures. They distinguished between the rights of the people and of the state in the Tenth Amendment. As discussed earlier, the "militia" itself referred to a concept of a universally armed people, not to any specifically organized unit. When the framers referred to the equivalent of our National Guard, they uniformly used the term "select militia" and distinguished this from "militia". Indeed, the debates over the Constitution constantly referred to organized militia units as a threat to freedom comparable to that of a standing army, and stressed that such organized units did not constitute, and indeed were philosophically opposed to, the concept of a militia.

That the National Guard is not the "Militia" referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to "raise and support armies" and not its power to "Provide for organizing, arming and disciplining the Militia". [65] This Congress chose to do in the interests of organizing reserve military units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions." The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec 311(a).

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.

Now...what was that about propaganda and brainwashing, again?

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[kelpdiver 2]

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>Stop trying to use today's definition of a militia.

I'm not using today's definition of anything. I am pointing out why some people see it as a collective right. (Again, I think it's both.)

It's irrelevant what people see - more precisely, what they pretend to see because otherwise they have nothing but their own unconstitutional beliefs to force on others.

Those people are either idiots, or liars. Take your pick.

[billvon 3,162]

>Those people are either idiots, or liars.

When you take an approach like that, you are guaranteed to fail. "Ah, so you disagree with me? Are you an idiot, or a liar?" When someone says this, they are basically admitting that they have no argument to make for their topic, and have to resort to insults.

Fortunately, such people are generally ignored.

[TomAiello 26]

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Fortunately, such people are generally ignored.

Actually, such people are generally given their own television and/or radio programs, and write best-selling books.

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com

[kelpdiver 2]

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>Those people are either idiots, or liars.

When you take an approach like that, you are guaranteed to fail. "Ah, so you disagree with me? Are you an idiot, or a liar?" When someone says this, they are basically admitting that they have no argument to make for their topic, and have to resort to insults.

You're free to engage idiots and liars, but I'm disinclined to. Sometimes it's good sport, but you can't have a meaningful debate with those who will deliberately use today's notion of a militia to insist that the Framers never intended for something that says "the right of the people" to actually apply to the people.

Thanks to Heller, we can ignore these people now. However, I do expect you to maintain a higher standard of intellectual integrity. Merely saying that "some people" believe otherwise doesn't make the grade.

[billvon 3,162]

>Actually, such people are generally given their own television and/or
>radio programs, and write best-selling books.

True dat.

[jcd11235 0]

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Not by current US law - the US Code.

You can't use current definitions to alter the Constitution.

From the Constitution, Article I, Section 8:

The Congress shall have Power … To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

It would appear that current definitions are not contradictory to the Constitution.

Math tutoring available. Only $6! per hour! First lesson: Factorials!

[Ron 10]

That is saying when the militia is called up for action that the govt can appoint officers. Nothing new there. During the revolution, bands of men that formed on their own were often appointed an officer to lead them as part of a combined unified front.

Also, it has already been pointed out that there are TWO standards of militia, active and everyone else. The definition given by Mason still stands... That the militia is everyone but a few govt people.

Do you care to try and find a single quote from a founding father that says the individual should not be allowed to keep and bear arms.... I have asked others to produce one and they have either refused or failed to find one.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[quade 4]

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Do you care to try and find a single quote from a founding father that says the individual should not be allowed to keep and bear arms.... I have asked others to produce one and they have either refused or failed to find one.

It's because of the way you've worded your request. It's simply not a required position for any of them to have had to have taken in order to them to have intended the wording to mean a collective right.

For instance, if I say that the people of Israel have the right to nuclear weapons, I may or may not mean individuals do. Further, just because one or even several people believe individuals should be allowed nuclear weapons, doesn't mean that's what actually rules the day when it's finally decided - if ever.

Just because you have found a quote attributed to Jefferson doesn't mean squat. He alone didn't write the US Constitution nor the Bill of Rights. In fact, I don't think you're going to find as much attributed to him as others.

FFS sake, if you wanna know who wrote most of the words, I believe you'll find that Madison is most often given the credit for that and he very specifically said:

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A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country.

source

It certainly seems as if he's talking about the collective there and not individuals. When he's specifically talking about a "well regulated militia," he's specifically NOT talking about a person's right to just go out and buy a gun willy-nilly like you can do today. He's very specifically talking about a group of people "trained in arms" for domestic military purposes.

If you want to play the game of cherry picking facts we can go on all day and night (and I believe we have in the past), but the fact remains that regardless the claims made by Kelpdiver and others about this issue being a recent development, the individual vs collective right has been debated for CENTURIES.

quade -
The World's Most Boring Skydiver

[jcd11235 0]

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That is saying when the militia is called up for action that the govt can appoint officers. Nothing new there.

As written, the Constitution actually reserves appointment of officers to the states.

Congress has been empowered by the Constitution to organize the militias/military as they see fit (e.g. US Code Title 10 & 32), as well as establish the the rules and regulations by which soldiers must abide.

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Also, it has already been pointed out that there are TWO standards of militia, active and everyone else.

Congress is empowered to establish whatever standards they deem appropriate.

Math tutoring available. Only $6! per hour! First lesson: Factorials!

[mnealtx 0]

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FFS sake, if you wanna know who wrote most of the words, I believe you'll find that Madison is most often given the credit for that and he very specifically said:

***A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country.

James Madison, Federalist #46:

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Besides the advantage of being armed, which the Americans possess over the people of almost every other nation

From Justice Story (appointed by President MADISON in 1813)
"The right of the 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 usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

I don't see any mention of 'militias' in either of the quotes - neither do I see "the right of the militia to keep and bear arms" in the amendment.

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[quade 4]

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I don't see any mention of 'militias' in either of the quotes - neither do I see "the right of the militia to keep and bear arms" in the amendment.

So you DO agree it's not a recent argument and one that has been going on for over 200 years?

Because this is ALL I was ever responding to in this thread.

quade -
The World's Most Boring Skydiver

[mnealtx 0]

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I don't see any mention of 'militias' in either of the quotes - neither do I see "the right of the militia to keep and bear arms" in the amendment.

So you DO agree it's not a recent argument and one that has been going on for over 200 years?

Because this is ALL I was ever responding to in this thread.

No - there is nothing to argue. It was ALWAYS meant to be an INDIVIDUAL right.

Go read the links I posted earlier.

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706