California: Gun Registration

[kallend 2,184]

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If you're determined to have a certain right, then you shouldn't then have to explicitly ask for it in order for it to apply to you and be told that if you don't ask you don't get it.

Then would you support a guy with no criminal record walking into a gun store and buying a Full Auto M4?

As a matter of fact, yes, once she had proved that she was in the set of people who have that right (as you pointed out, there are people who do not). The Supreme Court, however, thinks such restrictions are OK (DC vs Heller)

proving again, with your own words, that you don't consistently believe in a notion of rights by default.

Since some people (felons and loonies) do NOT have those rights (by default or otherwise), all that is needed is to show that you are in the set that does have those rights. Then you don't have to ask for them, you have them by default.

Simple, really, unless you are determined not to understand English or set theory.

...

The only sure way to survive a canopy collision is not to have one.

[SkyDekker 1,465]

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It would stop THAT suicide bomber. Remote detonation is much more complicated, and less reliable.

Hold on a second here. That is usually the logic and argument used by the "anti-gun" crowd. That killing by means other than guns is much more complicated and less reliable.

YOUR counter argument to that is that when people are determined enough to kill, they will do it by any means that they can.

Sounds to me like you will say anything as long as it supports your position.

The rest of your post is so childish I can't believe they let you have guns.

[DaVinci 0]

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I have one other question though, how is militia defined as used in the 2nd Amendment?

And a great question.

The Militia Act of 1792 " Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That 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."

Basically, anyone 18-45 that is able. Originally it was only white males, but I don't think anyone still holds those standards today. Also *in my opinion* the age of 45 is irrelevant today.

This is supported by several statements from the time period:

"I ask, sir, what is the militia? It is the whole people, except for a few public officials." George Mason (3 Elliot, Debates at 425-426)

"The militia, when properly formed, are in fact the people themselves, ... all men capable of bearing arms;..." -- Richard Henry Lee writing in "Letters from the Federal Farmer to the Republic", 1788, page 169.

"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.

My unofficial definition is: "Any citizen that is willing to take arms to defend the Constitution from all enemies, foreign and domestic."

[DaVinci 0]

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As a matter of fact, yes, once she had proved that she was in the set of people who have that right (as you pointed out, there are people who do not). The Supreme Court, however, thinks such restrictions are OK (DC vs Heller)

Thank you.... And I disagree that they think that restriction is OK... The Court's opinion refrained from an exhaustive analysis of the full scope of the right

They didn't answer that one actually. They stated; "[l]ike most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."... "should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

If you notice they do not say anything about Full Auto, only possession by felons, the mentally ill, laws forbidding the carrying of firearms in sensitive places, or laws imposing conditions and qualifications on the commercial sale of arms.

If you had said the SC has ruled felons are not granted that right... I would agree.

And the dicta in Heller already stated... "What is reasonable about a ban?" and that the DC law "amounts to a prohibition on an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense.

But thank you for your answer.

[DaVinci 0]

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The above was a personal attack

No, it is not.

No more than you claiming: "Please try to make your point without spewing forth a flurry of severely adulterated, conflated, and out-of-context "quotes" cut and pasted from NRA literature. " to me is.

Or you calling my arguments "phony" without being able to back them up.

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Several posters didn't like it, so they made personal attacks against me

No, we attacked your position.

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brought in a bunch of irrelevant phony quotes

Please prove them to be phony if you can.. Or admit they are not.

Remember, you claimed Mahatma Ghandi, and Nelson Mandela, and Jesus agreed with you... I provided PROOF you were wrong.

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I believe that people who think that they will be able to win their freedom, in this day and age, by threatening the government with their gun collections are NUTS.

And therefore you disagree with the founding fathers and they claimed ideas like this were the biggest danger to democracy..... Like I said.

And your position is not only against the FF's statements, but also history.

Revolutionary War won the US its freedom.
Civil War allowed people to fight for their freedom.
Vietnam kept the French and the US from winning.
Afghanistan rebels beat the USSR.
Iraq still gives the US trouble.

So your position *IS* against the Founding Fathers principals and they made claims that stances like yours is the biggest danger to Democracy. Again, just like I said.

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I also believe that the 2nd amendment is intended, as it says, to allow the states to maintain well "regulated" militias.

It does not say that... It says nothing about the States having the right. The majority in Heller agreed.

"that the operative clause of the Second Amendment—"the right of the people to keep and bear Arms, shall not be infringed"—is controlling and refers to a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny, based on the bare meaning of the words, the usage of "the people" elsewhere in the Constitution, and historical materials on the clause's original public meaning;"

So, your position is not supported by the Founding Fathers, The Constitution, nor the SC.

And your position is EXACTLY what the FF's warned about.... Just like I said.

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It's not the guns that make us free, it's how we think and relate to each other that makes us free.

Nice quote... and I don't disagree. But exactly how do you propose to prevent someone with more power than you forcing you to do what they want? Ask nicely?

I too would like to know what type of weapon you own.

[rehmwa 2]

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I have one other question though, how is militia defined as used in the 2nd Amendment?

The 2nd gives an additional reason for owning firearms because they always are targeted for confiscation by tyrants in power.

And, as you can see, I find that redundant with just the general right to own personal property.

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[SkyDekker 1,465]

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And, as you can see, I find that redundant with just the general right to own personal property.

And I don't disagree with that. However, most all of us can agree that there are limitations on the right to own personal property. The question is always where that line is drawn.

[Andy9o8 3]

From a legal standpoint, the current Federal militia (both organized and unorganized) is pretty much restricted those males between 17 and 45 who come within the scope of the Militia Act of 1903, possibly supplemented by all active Federal LEOs regardless of age or gender. But that's pretty much it.

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My unofficial definition is: "Any citizen that is willing to take arms to defend the Constitution from all enemies, foreign and domestic."

That may be, from a standpoint of reasonable public policy; but your definition is broader than the legal one, since it includes males outside the 17-45 age range and non-military females. If I were engaged to make a legal argument in support of your definition, I might argue something like .... anyone, regardless of age or gender, capable of being "deputized" to aid the militia is essentially an "adjunct" member of the militia. Not sure how well that might fly in front of a Federal Court judge, though.

[mnealtx 0]

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Funny thing is, you arent really a democracy and further, there are much purer democracies which do not have an armed populace to the extent the US does.

Furthermore, there are countries presently and in history where a dictator rules over a heavily armed populace.

interesting points

For me, I don't really care about some overwhelming societal need for people to own guns. What I believe is that I have the right own property. If I want a gun and I have not previously demonstrated an inability to own it responsibly, then no OTHER person should have the ability to remove my right to own and use that property.

Beyond that, my reasons are my own and I have absolutely no need to rationalize it under someone else's standards. Either with a societal, or personal protection, or hobby, or any other reason or justification.

it's pretty simple


seriously, if I wished to pass a law to confiscate all the butter knives or all the ball point pens in the country, it would be ridiculous. Same with guns, but pro-gunners seem to feel they need to state they are saving the country with the guns and "that's why they need them".

I think ownership of property is what defines personal freedom - and RESPONSIBLE ownership of property defines personal responsibility - so any government intrusion into responsibly property ownership is a bigger threat to our way of life than any specific topic or class of item. I own my labor, I own my stuff, every time the government takes those things away from me or anyone else, that's another crack in the structure.

Well said!!

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

[mnealtx 0]

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you can define the militia as clowns on unicycles and the 2nd will still read: "the right of the people to keep and bear Arms, shall not be infringed."

I thought Congress had included a definition in the 1986 Firearm Owners Protection Act, but apparently not.

The definition of militia does have relevance to the 2nd Amendment, because "militia" is expressly mentioned therein; and a basic principle of statutory/Constitutional construction is that express language in a statute, regulation or constitutional provision is there for a specific reason, and should not be dismissed as mere surplusage.

The 2nd Amendment is not just its last 14 words. It consists of 27 words, each of which is important, and reads as follows:

"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."

So, the the definitional task is at least twofold: to define "militia", but also (maybe more importantly) to define "the people". In other words, does it mean "the collective people", or "every individual person"? This remains an ambiguity under the law, and many judges and constitutional experts have disagreed with each other on the answer to this issue. Now, based on Heller, I would predict that a majority of a present-day SCOTUS would probably deem- by a split vote - that the rights under the Second are an individual, and not merely a collective right; but that remains to be seen.

Um, that's already been done, although not by the Supremes - the militia statement is irrespective to the right itself.

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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 tot he security of a free state, the right of the people to keep and bear arms shall not be abridged.'

As to the individual vs. collective right, if you can show me where in the REST of the bill of rights the Framers referred to a collective right when using the phrase 'the people', I'll be convinced.

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

[mnealtx 0]

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>and the 2nd will still read: "the right of the people to keep and
>bear Arms, shall not be infringed."

No, it won't. You are leaving out the part of the second amendment that weakens your position. (Which is foolish, since it's pretty easy to look up.)

Except it doesn't - see my response to Andy, above.

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

[DaVinci 0]

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That may be, from a standpoint of reasonable public policy; but your definition is broader than the legal one, since it includes males outside the 17-45 age range and non-military females. If I were engaged to make a legal argument in support of your definition, I might argue something like .... anyone, regardless of age or gender, capable of being "deputized" to aid the militia is essentially an "adjunct" member of the militia. Not sure how well that might fly in front of a Federal Court judge, though.

Considering sexual discrimination is considered by most to be illegal.... I think it wold fly.

[DaVinci 0]

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So you think FELONS should be allowed to keep their guns, then.

How about guys that have not been even charged with a crime?

Medford's hostage negotiators and SWAT team were called in at 3 a.m. Monday and arrived on the scene at about 5:45 a.m., he said.

About a dozen officers responded. They closed the street for about an hour and evacuated three homes to protect neighbors and prevent bystanders from gathering, he said.

After a phone conversation with negotiators, the man — who was alone in the home — agreed to come out, Hansen said.

Police seized the recently purchased firearms, as well as another .45-caliber Heckler & Koch handgun and a 12-gauge shotgun. Police are holding the weapons for safekeeping, but no criminal charges have been filed.

http://www.mailtribune.com/apps/pbcs.dll/article?AID=/20100309/NEWS/3090315

You approve of sending the SWAT teams after a guy that has not even been CHARGED with a crime?

[DaVinci 0]

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You worry about guns, and a ridiculous scenario that will never happen.

Never gonna happen huh?

Wrong again

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Medford's hostage negotiators and SWAT team were called in at 3 a.m. Monday and arrived on the scene at about 5:45 a.m., he said.

About a dozen officers responded. They closed the street for about an hour and evacuated three homes to protect neighbors and prevent bystanders from gathering, he said.

After a phone conversation with negotiators, the man — who was alone in the home — agreed to come out, Hansen said.

Police seized the recently purchased firearms, as well as another .45-caliber Heckler & Koch handgun and a 12-gauge shotgun. Police are holding the weapons for safekeeping, but no criminal charges have been filed.

http://www.mailtribune.com/apps/pbcs.dll/article?AID=/20100309/NEWS/3090315

He was not even charged, but they used a registry to confiscate his weapons.

You keep losing ground here.

[Andy9o8 3]

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That may be, from a standpoint of reasonable public policy; but your definition is broader than the legal one, since it includes males outside the 17-45 age range and non-military females. If I were engaged to make a legal argument in support of your definition, I might argue something like .... anyone, regardless of age or gender, capable of being "deputized" to aid the militia is essentially an "adjunct" member of the militia. Not sure how well that might fly in front of a Federal Court judge, though.

Considering sexual discrimination is considered by most to be illegal.... I think it wold fly.

In the absence of some manner of future amendment of the discrimination laws, and/or of the Militia Act, and/or an applicable future executive order of the President, I seriously doubt that the discrimination laws, as presently constituted, would supersede either the gender or the age restrictions in the Militia Act of 1903.

[mnealtx 0]

Congress disagrees

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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.

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

[mnealtx 0]

Congress disagrees

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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.

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

[Andy9o8 3]

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Congress disagrees

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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.

I understand; but the simple fact is that "militia" is defined by the Militia Act of 1903. The "select militia" referred to in your quote is what the Act expressly refers to as the "organized militia", while the "militia" referred to in your quote is what the Act expressly refers to as the "unorganized militia". :

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10 USCS [Armed Forces]
"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 [which deals with
membership in theNational Guard] 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."

[mnealtx 0]

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Congress disagrees

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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.

I understand; but the simple fact is that "militia" is defined by the Militia Act of 1903. The "select militia" referred to in your quote is what the Act expressly refers to as the "organized militia", while the "militia" referred to in your quote is what the Act expressly refers to as the "unorganized militia". :

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10 USCS [Armed Forces]
"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 [which deals with
membership in theNational Guard] 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."

Given that the quote shows females being eligible as member of the guard, the only real criteria left in regards to 'defining the militia' anymore is age. 64 is the max retirement age from the military and *could* be used as an upper bound, but I honestly don't think we'll *EVER* see that sort of determination made.

Also from the Senate Report:

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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.

I'd say the last paragraph pretty well covers it.

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

[Andy9o8 3]

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Given that the quote shows females being eligible as member of the guard, the only real criteria left in regards to 'defining the militia' anymore is age. 64 is the max retirement age from the military and *could* be used as an upper bound, but I honestly don't think we'll *EVER* see that sort of determination made.

Not exactly. Under the Act, the only females who are members of the Militia are "female citizens of the United States who are members of the National Guard." I think a federal court might be willing to interpret that to include active female LEOs (but maybe not). But that's it, as far as females goes, using a strict interpretation of the plain language of the Act. In other words, a strict interpretation of the plain language of the Act would not consider, say, a 28 year old civilian, non-veteran, non-LEO female to be a part of even the unorganized militia.

To that issue, you're framing an argument that a female's eligibility to join the National Guard (the organized militia) makes her a de facto member of the unorganized militia. An interesting argument; but most federal judges these days, probably about 80-90% of them, tend to interpret the language of federal statutes pretty narrowly. Thus, with the language of the Act as it currently stands, I'd assess the odds of that argument prevailing at about 10-20%.

You're also saying that members and committees of Congress have expressed an opinion that all able bodied adults are members of at least the unorganized militia. You might be correct that Congress has expressed this opinion; but in view of the plain language of the Militia Act of 1903, that opinion does not have the force of law; it is, at best, advisory. Courts act officially via issuing opinions; but constitutionally, Congress acts officially via legislation.

In other words, I think 80-90% of federal judges would rule that if Congress wants to give binding legal effect to its opinion (probably reflecting popular opinion and/or public policy) that adult civilian females are part of the unorganized militia, Congress must do so via formal legislation, i.e., to either amend, or repeal and replace, the 1903 Act.

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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.

I'd say the last paragraph pretty well covers it.

That only covers the right to keep and bear arms, which, if one considers that to be an individual and not merely a collective right (and it looks like a majority of the federal bench and the SCOTUS is leaning that way), is a broader group than the definition of "Militia". Put another way, under the "individual right" argument, all of "The People" have the right to keep and bear arms under the 2nd Amendment; while (and despite the fact that) only a smaller sub-set of The People are considered to be part of the Militia by virtue of the current language of the Militia Act of 1903.

[kelpdiver 2]

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That only covers the right to keep and bear arms, which, if one considers that to be an individual and not merely a collective right (and it looks like a majority of the federal bench and the SCOTUS is leaning that way), is a broader group than the definition of "Militia". Put another way, under the "individual right" argument, all of "The People" have the right to keep and bear arms under the 2nd Amendment; while (and despite the fact that) only a smaller sub-set of The People are considered to be part of the Militia by virtue of the current language of the Militia Act of 1903.

The 2nd writes about the right of the People, not the right of the Militia.

[Andy9o8 3]

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That only covers the right to keep and bear arms, which, if one considers that to be an individual and not merely a collective right (and it looks like a majority of the federal bench and the SCOTUS is leaning that way), is a broader group than the definition of "Militia". Put another way, under the "individual right" argument, all of "The People" have the right to keep and bear arms under the 2nd Amendment; while (and despite the fact that) only a smaller sub-set of The People are considered to be part of the Militia by virtue of the current language of the Militia Act of 1903.

The 2nd writes about the right of the People, not the right of the Militia.

Exactly (under the "individual right" argument): The People have the right; "the militia" is the expressed policy justification for that right.

[mnealtx 0]

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Exactly (under the "individual right" argument): The People have the right; "the militia" is the expressed policy justification for that right.

Disagree - even Miller didn't bring an argument regarding membership in the militia argument into play (and if it had, the case would have been dismissed on those grounds, most likely). As I recall, the pertinent point of the case was the suitability of the weapon for militia service (I guess the Justices never heard of 'trench brooms').

Linguistic analysis as well as the writings of the founders and Congressional committee reports show the INDIVIDUAL right separate from any requirement for 'militia service'.

BTW...find that 'collective right' amendment, yet?

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

[Andy9o8 3]

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Exactly (under the "individual right" argument): The People have the right; "the militia" is the expressed policy justification for that right.

Disagree - even Miller didn't bring an argument regarding membership in the militia argument into play (and if it had, the case would have been dismissed on those grounds, most likely). As I recall, the pertinent point of the case was the suitability of the weapon for militia service (I guess the Justices never heard of 'trench brooms').

Linguistic analysis as well as the writings of the founders and Congressional committee reports show the INDIVIDUAL right separate from any requirement for 'militia service'.

BTW...find that 'collective right' amendment, yet?

I think you're misapprehending my position. I'm agreeing that the individual right is separate from the militia. But the reference to the militia in the Second is not just mere surplusage; according to basic principles of statutory/constitutional construction, if the reference to militia is in there, it's there for some kind of purpose (as contrasted with no purpose at all). So the intellectual task is to discern what that purpose is.

I also analyze the Second as conveying an individual right, and not a collective one; if I were to type out that reasoning at greater length right (I just don't have time at the moment), I'll bet most NRA attorneys would probably agree with my analysis and say that it's consistent with the NRA's position on that issue.

[mnealtx 0]

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Exactly (under the "individual right" argument): The People have the right; "the militia" is the expressed policy justification for that right.

Disagree - even Miller didn't bring an argument regarding membership in the militia argument into play (and if it had, the case would have been dismissed on those grounds, most likely). As I recall, the pertinent point of the case was the suitability of the weapon for militia service (I guess the Justices never heard of 'trench brooms').

Linguistic analysis as well as the writings of the founders and Congressional committee reports show the INDIVIDUAL right separate from any requirement for 'militia service'.

BTW...find that 'collective right' amendment, yet?

I think you're misapprehending my position. I'm agreeing that the individual right is separate from the militia. But the reference to the militia in the Second is not just mere surplusage; according to basic principles of statutory/constitutional construction, if the reference to militia is in there, it's there for some kind of purpose (as contrasted with no purpose at all). So the intellectual task is to discern what that purpose is.

The point is that the linguistic analysis, writings of the founders and the Congressional report all refute that line of thought.

From the linguistic analysis:

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[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."

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I also analyze the Second as conveying an individual right, and not a collective one; if I were to type out that reasoning at greater length right (I just don't have time at the moment), I'll bet most NRA attorneys would probably agree with my analysis and say that it's consistent with the NRA's position on that issue.

Agreed - the BOR is an affirmation of individual rights.

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