Replacing white people to kill gun rights

[SecularMotion]

A professor at UCLA School of Law, writing for the Washington Post, says the battle over the Second Amendment will be won by progressives in the coming years, thanks to a secret weapon.

That weapon is immigrants, says Adam Winkler, a law professor and author of the book, “Gunfight: The Battle over the Right to Bear Arms in America.”

In his op-ed, “The NRA will fall. It’s inevitable,” Winkler argues the demographic transformation of America underway for 30 years through mass immigration – both legal and illegal – assures that the fervor Americans have for the Second Amendment will eventually run out of gas.

Why? The answer lies in the numbers, he says.

http://www.wnd.com/2015/10/professor-left-has-secret-weapon-to-kill-gun-rights/

[OakCliffDem]

1. Another drive by post with no comment

The Second Amendment will not fall until the Constitution is amended according to established law. The NRA is not the Right to Keep and Bear Arms, and failure of the NRA is irrelevant to the existence of citizen's rights.

If SecularMotion wants to ban guns, SecularMotion should begin the process to amend the Constitution. (Better start right now; it could take a long time.)

[safeinOhio]

2. Or we could change the SC make up and

return to the 200 year tradition of the 2nd as a collective right.

[OakCliffDem]

4. Except that the majority of citizens know it is not a collective right

The Second Amendment is a limitation on the Federal Government not to interfere with a natural right that existed prior to the formation of this (or any other) government.

[safeinOhio]

5. "Natural Rights" and John Locke.

Sounds great, so lets take a closer look.

Having lived through a bloody civil war, Locke seems to have shared the fears expressed by fellow Englishman Thomas Hobbes, whose Leviathan (1651) became the gospel of absolutism. Hobbes asserted that liberty brought chaos, that the worst government was better than no government—and that people owed allegiance to their ruler, right or wrong. In October 1656, Locke wrote a letter expressing approval that Quakers—whom he called “mad folks”—were subject to restrictions. Locke welcomed the 1660 restoration of the Stuart monarchy and subsequently wrote two tracts that defended the prerogative of government to enforce religious conformity.

[safeinOhio]

9. Natural law folks

http://www.rawstory.com/2015/10/these-florida-tea-partiers-plan-to-set-up-a-secret-vigilante-court-to-arrest-and-possibly-execute-obama/

[Big_Mike]

27. That genie won't go back in the bottle

In his dissent to Heller, Justice Stevens noted that all nine Justices believe that the 2A is an individual right. His dissent was how much cities and states could regulate that right.

[safeinOhio]

28. what he said

STEVENS' DISSENT

In a strongly worded dissent, Justice Stevens, after conducting his own extensive analysis of the Second Amendment's text, history, and purpose, disparaged Scalia's historical analysis, stating that the Court had based its holding on "a strained and unpersuasive reading" of the amendment. In Stevens' opinion, the amendment protects the individual right to bear arms only for certain military purposes and does not limit the authority of legislatures to regulate private, civilian use of firearms (Id., at 2822).

Stevens contends that not a word in the constitutional text supports the Court's “overwrought and novel description” of the Second Amendment as elevating above all other interests “the right of law-abiding responsible citizens to use arms in defense of hearth and home” (Id., at 2831). Rather, when each word in the text is given full effect, “the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia”(Id., at 2831). And there is no indication that the “Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution” (Id., at 2822). Instead, the historical record confirms that “the Framers' single-minded focus in crafting the constitutional guarantee to keep and bear arms' was on military uses of firearms, which they viewed in the context of service in state militias” (Id., at 2826).

Stevens argues that, in adopting the individual-right view, the Court had granted a “new constitutional right to own and use firearms for private purposes” (Id., at 2846) and had overturned long-standing precedent in Miller. In contrast to Scalia, Stevens interprets Miller to mean that the Second Amendment protects the right to keep and bear arms for certain military purposes, but it does not limit government's power to regulate nonmilitary use and ownership of weapons (Heller, at 2823).

Stevens contends that many courts have relied on Miller, which is both the most natural reading of the amendment's text and the interpretation most faithful to the history of its adoption. He contends that “even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court and for the rule of law itself would prevent most jurists from endorsing such a dramatic upheaval in the law” (Heller, at 2824). The dissent concludes:

The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons and to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court's opinion, I could not possibly conclude that the Framers made such a choice (Id., at 2847).

[Big_Mike]

29. Stevens has been very forthright in stating and restating his position on 2A

unfortunately for him, he was unable to persuade enough Justices for his to be the majority opinion, rather than a dissent. So until he gets another case that overturns Heller, his is simply a voice in the woods.

I do not think this overturn is going to happen anytime soon. The only way I see something happening in less than 40 or 50 years, is if 1) a bunch of the conservative justices pass away and are replaced by fellow travelers of the dissenters, or a Constitutional Convention is called, and then all bets are out the window. I see no way in the foreseeable future for an overturn of the 2A, given the general mood of the country.

[safeinOhio]

30. Just one vote, or one judge away from

over ruling these activist, conservative judges, that changed 200 years of the 2nd being a collective right, along with Citizens United, being overturned.

The elections next year could do it.

Thank you for bringing up Judge Stevens dissent so I could post what he actually said in it. Every one needs to read it and not just go buy what people say about it. I think it was very well written and spot on.

[DonP]

32. Just ike they ruled against gay marriage, "Obamacare" and repealed Roe v. Wade?

Somehow you and your fellow travelers confidence that "just one more progressive minded judge" will fix everything and overturn cases you do not like, doesn't really match with the court's actual behavior on other issues we agree with.

Maybe right after they overturn Heller and McDonald they'll rule concealed carry illegal too?

But gun control needs a fantasy to cling to I guess. Gotta keep hope alive.

[beevul]

33. Who is it, do you think, thats going to bring a second amendment case...

Just one vote, or one judge away from over ruling these activist, conservative judges, that changed 200 years of the 2nd being a collective right, along with Citizens United, being overturned.

Amendment 2 was never a collective right, outside the minds of those who don't like guns.

Thank you for bringing up Judge Stevens dissent so I could post what he actually said in it. Every one needs to read it and not just go buy what people say about it. I think it was very well written and spot on.

I guess you didn't actually read the entire dissent, or you wouldn't continue the beating of the 'collective rights' dead horse:

The question presented by this case is not whether the
Second Amendment protects a “collective right” or an
“individual right.” Surely it protects a right that can be
enforced by individuals. But a conclusion that the Second
Amendment protects an individual right does not tell us
anything about the scope of that right.

Oops!

And lastly, who is it, do you think, thats going to bring a second amendment case, into a supreme court known to be hostile to it?

[safeinOhio]

34. Yep I missed that as I was focused on

“the right of law-abiding responsible citizens to use arms in defense of hearth and home” (Id., at 2831). Rather, when each word in the text is given full effect, “the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia”(Id., at 2831). And there is no indication that the “Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution” (Id., at 2822). Instead, the historical record confirms that “the Framers' single-minded focus in crafting the constitutional guarantee to keep and bear arms' was on military uses of firearms, which they viewed in the context of service in state militias” (Id., at 2826). quote.

[beevul]

35. Hes just letting everyone know that he either doesn't understand...

Hes just letting everyone know that he either doesn't understand the preamble to the bill of rights, or he hasn't read it.

The preamble destroys those arguments.

You never did answer he question:

Who is it, do you think, thats going to bring a second amendment case, into a supreme court known to be hostile to it?

[safeinOhio]

36. Some really crazy gun rights person

when he swears the 2nd means he can have nuclear bomb. After all, it says arms, not guns.

[beevul]

37. The latest in a long chain of similar examples, I'm sure.

The latest in a long chain of similar examples, I'm sure.

Strange that you couldn't be bothered to cite just one of them.


Or is it your contention that "Some really crazy gun rights person" who "swears the 2nd means he can have nuclear bomb" will only surface AFTER the court becomes hostile to amendment 2?


?

[Surf Fishing Guru]

38. You are focused on an invented interpretation.

To do what Stevens has done here --giving each word full effect-- is to run counter to boringly consistent (for going on 140 years) SCOTUS explanations of the nature of the right to arms*.

The right is not granted, given, created or established by the 2nd Amendment thus is it not in any manner dependent upon anything in, or created by the Constitution for its existence.

This tenet extinguishes any consideration that the right is qualified by or conditioned upon "the militia" or a citizen's attachment to the militia (the organized state militia being a product of the Constitution.

Giving words "full effect" when in fact they have -no effect- is inventing an interpretation.



* Supreme Court, 1876: "The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, . . ."

Supreme Court, 1886: [quoting the 1876 case but exchanging the case specific language of the indictment for the familiar text of the 2nd Amendment] "the right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed, . . . "

Supreme Court, 2008: "it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in . . . 1876 , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”


So, the only thing that can be taken away from a reading of the 2nd Amendment is that the 2nd Amendment declares that "it" shall not be infringed. The "it" is of course, is "the right of the people to keep and bear arms". Those are the only words that can legitimately be given "full effect".

[safeinOhio]

39. but, but, but, but

What you are describing is the intent of a FEW people... not the intent of the COLLECTIVE will that actually made it into law. To justify your own beliefs you're selectively taking the ideas that FAILED to be approved and giving them the same, or nearly the same weight of ideas that were approved. Playing this game one can demonstrate or "prove" anything. -

[gejohnston]

40. no, he is describing the concept

of natural law. The BoR is a set of negative rights, it protects natural rights of individuals from the State, not the State granting rights. The concept of Natural rights was the basis of the Enlightenment.

[safeinOhio]

41. and the 2nd is the ONLY right

in the Bill of Rights with a justification clause stating it is a collective right.

[gejohnston]

51. said no scholar ever

at least one who actually studied the issue. If you ever read late 18th century and early 19th century literature, you will find that such dependent clauses are common. The reason the NFA imposed the, then, large transference tax instead of banning the weapons outright was because the sponsors thought a ban would be overturned.

Claiming it is a collective right is logically inconsistent for a couple of reasons. One, in every other use of "the people" is for individual right. Two, the concept of collective right is antithetical to the Enlightenment, and hence liberalism in general. The concept simply didn't exist.

[safeinOhio]

52. Really?

Saul Cornell

"There is no disputing the fact that a number of prominent constitutional experts have been won over to the individual rights view. Most historians, however, reject the individual rights interpretation. How do we explain this sharp divide between legal scholars and historians? Much of the difference has to do with the problem of context. Much Second Amendment scholarship has taken the form of “law office history,” a form of advocacy scholarship designed to influence the way courts decide constitutional questions. Legal scholarship influences the way briefs are written and may also be used by judges when deciding a case. For most historians the goal of scholarship is to reconstruct and understand the complexity of the past, not influence contemporary policy or jurisprudence. Sometimes historians do use their scholarship in a fashion similar to legal scholars. Yet, even for those historians interested in a useable past, one that can inspire or guide us, such scholarship must be judged by the same rules of evidence and argument that are used to evaluate any work of history."

So, most legal scholarship is done to influence courts, while most historians the goal is scholarship is to understand the complexity of the past. I'm afraid your blanket statement about "No scholar" was grabbed out of either thin air or some where else. It is really easy to argue when you make up shit.

[safeinOhio]

53. for more about the author

https://en.wikipedia.org/wiki/Saul_Cornell,

Seems to be an authority on 17th and 18th century history.

[gejohnston]

55. two critiques of his

post Joyce Foundation book
http://h-net.msu.edu/cgi-bin/logbrowse.pl?trx=vx&list=H-Law&month=0702&week=d&msg=1zbT2WJVl%2b4nQY2KN9d1Mw&user=&pw=

http://armsandthelaw.com/archives/2006/07/debate_on_saul.php

[safeinOhio]

57. No scholar ever.

your words now you move the bar.

[gejohnston]

54. Saul Cornell

yet he was a advocacy scholar paid for by the Joyce Foundation.

Saul Cornell, is the Paul and Diane Guenther Chair in American History at Fordham University, a former Professor of history at Ohio State University and the former Director of the Second Amendment Research Center at the John Glenn Institute.

https://en.wikipedia.org/wiki/Saul_Cornell

This “scholarly” center was one of the initiatives funded by the Joyce Foundation to support writings that opposed the academic consensus that had previously arisen that the original meaning of the Second Amendment protected an individual right. Readers of this blog will remember the infamous Joyce Foundation funded symposium at Chicago Kent from which any dissenting scholars were excluded in the interest of “balancing” all the rest of Second Amendment scholarship. Apparently, its scholarly purpose having been exhausted by the decision in Heller, it has ceased its scholarly mission. It is no more.

http://volokh.com/2009/11/25/joyce-foundation-funded-osu-2nd-amendment-center-expires/

It seems that Cornell is one of those advocacy researchers, isn't he? Or at least was when he wrote that. While a scholar, but he didn't seriously study the issue since he didn't have academic freedom at the Joyce Foundation funded center. It isn't like his paycheck depended on getting the right result.

Lawrence Tribe and Alan Dershowitz didn't work for NRA "law office history". Dershowitz would love to repeal and overturn the 2A. As for Cornell's "law office history" ad hominem, it's just that.

He maybe and expert of the history, but not legal and Constitutional law. He is a historian. He is now saying that neither theory is true. His more recent work, mostly negates what he said above.

[safeinOhio]

56. You said "NO scholar ever".

Now you complain that he is a historical scholar and not a legal scholar and that was my point.
So, you once again, move the bar after you make a blanket statement. Gun out of controllers do that a lot.

[gejohnston]

58. I also said who studied the issue seriously

and I made no reference to legal or history, he did. I simply called him a hypocrite. So, no I didn't move the bar.

gun control activists seem to have the same problems with reading comprehension as the do with critical thinking.

[safeinOhio]

60. OK, how about 15 eminent university professors of early american history

"an amicus curiae submitted to the U.S. Supreme Court in the 2008 case of District of Columbia v. Heller, signed by fifteen eminent university professors of early American history, including Pauline Maier, Fred Anderson, and Pulitzer Prizes winners Jack Rakove and Alan Taylor. It concludes,"

Historians are often asked what the Founders would think about various aspects of contemporary life. Such questions can be tricky to answer. But as historians of the Revolutionary era we are confident at least of this: that the authors of the Second Amendment would be flabbergasted to learn that in endorsing the republican principle of a well-regulated militia, they were also precluding restrictions on such potentially dangerous property as firearms, which governments had always regulated when there was “real danger of public injury from individuals.” From the New Yorker.

I'd guest they studied the issue seriously. Gun out of controllers have a very hard time with blanket statements

[gejohnston]

61. did they base their opinions on

scholarship or personal opinions like Stevens? Have they researched the specific issue and wrote papers that haven't been debunked like Bogus and Bellesiles or simply add their names to simply for the appeal to authority? Remember I said seriously studied the issue, my qualification is neither blanket and still stands.
Are they also saying Lawrence Tribe and Sanford Levinson are NRA shills too?

Actually, governments historically restricted guns because they believed in that only the State should have a monopoly of violence and to avoid political violence, usually directed at them. That was certainly the case in Europe during the red scare and the terrorism in the 1970s. They got that wrong, so I doubt they actually studied the issue.

[safeinOhio]

62. fifteen eminent university professors of early American history

What was your Phd Thesis on?

[gejohnston]

63. your logical fallacy is

appeal to authority
https://en.wikipedia.org/wiki/Argument_from_authority

Who said they were eminent? What makes them stand out more than anyone else? Again, did they sign it because they knew what they were talking about or because of personal or office politics?

[gejohnston]

64. to answer your question

https://en.wikipedia.org/wiki/Autodidacticism

To quote Frank Zappa

[safeinOhio]

65. Sure academics can get called out on what they

Publish. See John Lott.

[gejohnston]

66. they all do

however John Lott has his supporters as well. Speaking of Lott, as Gary Kleck's critique of his work pointed out, he makes the same mistake the few honest public health types on Bloomberg's and Joyce's payroll does: assuming cause and effect when coincidence without factoring in an infinite number of factors. One thing Lott does do very well, he exposes academic fraud committed by the Bloomberg and Joyce shills. Ever watch CSPAN's Washington Journal? Everytown's "research directer" refused to appear with Lott and debate him one on one.

[gejohnston]

59. Is someone who sells out to a

propaganda mill a scholar?

[safeinOhio]

67. You should do some research. Write a paper.

summit it to several journals and let other critique it. Lots of fun, but much more difficult than calling bullshit on the internets.

[gejohnston]

68. why when so many have done much better

like Bogus and Bellesiles. Oh wait, that's closer to your side. BTW, spell check is over rated.

[Surf Fishing Guru]

50. what, what, what, what . . .

I quoted 132 years of SCOTUS describing the right to arms / 2nd Amendment.

What are you talking about?

[jimmy the one]

44. how did you miss 1939 miller????

Surf Fishing Guru: * Supreme Court, 1876: ..The second amendment declares that it shall not be infringed, . . ."

Supreme Court, 1886: ..The Second Amendment declares that it shall not be infringed,

Supreme Court, 2008: "it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.

surf fishing guru: .. the only thing that can be taken away from a reading of the 2nd Amendment is that the 2nd Amendment declares that "it" shall not be infringed. The "it" is of course, is "the right of the people to keep and bear arms". Those are the only words that can legitimately be given "full effect".

Gong, Wrong. It's the 'right of the people to keep & bear arms' while in militia, is what the 'it' is.
And you missed one relevant supreme court 2ndA case, 1939 miller. How in the world did you miss Miller 1939? were you unaware of 1939 miller case? are you then a novitiate at this?:

supreme court, 1939: The Constitution, as originally adopted, granted to the Congress power -- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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.
With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Oh wait, I think I see why you missed 1939 miller. It contained more clarity than cruikshank & presser, and isn't far rightwing ideology as scalia subverted 2ndA in 2008.

[safeinOhio]

45. So,did that repeal the National Firearms act, pass a few years earlier

"All transfers of ownership of registered NFA firearms must be done through the federal NFA registry. The NFA also requires that permanent transport of NFA firearms across state lines by the owner must be reported to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF, or BATFE). Temporary transport of some items, most notably silencers, do not need to be reported." Sounds pretty restrictive to me.

All laws must be looked at in context. Gangsters caused that interpretation of the 2nd and when a big enough mass murder happens, I'll bet you context will count then too.

[Surf Fishing Guru]

49. Well . . .

Well, the "bearing arms for lawful purpose" the Cruikshank Court was describing was the right of armed self defense, in public, as exercised by two ex-slaves, then Freemen from the Night Riders / KKK in 1873 Louisiana, a state with no official state militia -- it having been disbanded by the republican governor.

Armed self defense in public by citizens who were excluded from serving in the militia is what the "it" is in those excerpts and is what the 2nd Amendment protects.

Regarding Miller, it does not support the collective right model. That was created in two lower federal court decisions a couple years after Miller. Cases v US is especially noteworthy because it offers a true (but hyperbole laden) interpretation of Miller's "rule" and what it meant for gun control laws.

The Cases court said after quoting the pertinent parts of the Miller decision:


"

Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia.

However, we do not feel that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon.

In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,--almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,--is in effect to hold that the limitation of the Second Amendment is absolute.

Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, . . . "

That exaggerated "truth" is why the Cases court invented the "militia right" interpretation in 1942 -- and likewise, in the same year, the 3rd Circuit in Tot created the "state's right" interpretation.

SCOTUS has never embraced or endorsed any permutation of any collective right theory.

[jimmy the one]

72. militia centric

surf guru: Regarding Miller, it does not support the collective right model.
SCOTUS has never embraced or endorsed any permutation of any collective right theory

1939 Supreme Court certainly did endorse a collective/militia interpretation of 2ndA. It was a unanimous decision, while heller split 5-4 with liberal dissent & a rightwing majority.

I'll ask you to read again the 1939 supreme court endorsement:
-- The Constitution, as originally adopted, granted to the Congress power -- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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.
-- With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The 1939 Miller decision was 8-0 unanimous; if they had thought it an individual rkba disconnected from militia you'd think at least one justice would've piped up 'whoa fellow justices, look how we wrote that paragraph, future generations will think we gave 2nd amendment the militia interpretation'. Yet not one did, they all thought it correct as written.

surf guru: Armed self defense in public by citizens who were excluded from serving in the militia is what the "it" is in those excerpts and is what the 2nd Amendment protects.

Though vague & ambiguous, even if so your remark comports with the militia centric view (presuming your use of 'excluded' does not imply a total 2ndA disconnect from militia as per scalia). People could own guns & use them for self defense outside of militia, that's militia centric.
Note also that by this time the dichotomy between individual & militia interpretations of course existed.

US v. Cruikshank.. in 1876 the Court ruled that {2ndA} served only to protect the states against the federal govt. Because the states in 1787 were worried that a too-powerful federal govt might trample their rights, the Court said, {2ndA} was added to the Constitution guaranteeing their right to maintain militias. {2ndA} did not, in this interpretation, provide any individual right to keep and bear arms; it only guaranteed a state's right to maintain a militia. Moreover, since these militias were to be "well regulated," and since {2ndA}was aimed only at the threat posed by the federal govt, state govts were—according to this ruling—free to regulate guns in any manner they saw fit. http://www.shmoop.com/right-to-bear-arms/united-states-v-cruikshank.html

One of the critical holdings within the Cruikshank case was affirmed a decade later in Presser v. Illinois. This case stemmed from the arrest of a man named Herman Presser, who had organized military-style drills to train his own private militia of German-American workers, with the aim of fighting back against the armed security forces often hired by industrial employers. The state argued that this sort of private militia was dangerous and illegal; Presser argued that it was protected by {2ndA}. The Court ruled that the {2ndA} only restricted the federal govt; it was not a prohibition against state action and therefore Illinois could regulate private militia. The {2ndA} the Court ruled, did not give Herman Presser the right to run his own private army.

[Surf Fishing Guru]

74. You have a very fertile mind and great skill finding souces rife with confirmation bias

jimmy the one wrote:
1939 Supreme Court certainly did endorse a collective/militia interpretation of 2ndA.

Did the Court rule that Miller had no right to possess a shotgun with a barrel length over 18 inches?

The decision was arrived at because the Court heard no evidence (and didn't go looking on its own) that a shotgun with a barrel length under 18 inches had militarily usefulness ("it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense&quot .

As the Cases court recognized, that our army used trench guns was common knowledge, that nearly every gun had military usefulness . . . if those facts of the Miller case were to be heard, the ruling would be different.

Miller said NOTHING regarding Miller and Layton's militia attachment, the case was about the function and usefulness of the gun and nothing else. That's why the Miller "test" that the Cases court decried, would demand that nearly all gun control laws would be struck down and regular citizens without having any attachment to any government military / militia organization would be protected in owning mortars, machine guns etc . . .

That is a correct interpretation of Miller (which is why the Cases court was compelled to ignore and dismiss SCOTUS and invent the "militia right" interpretation in the federal courts).

jimmy the one wrote:
It was a unanimous decision, while heller split 5-4 with liberal dissent & a rightwing majority.

So you think a unanimous decision (to reverse and remand) where the Justices only hear the government's arguments carries more weight than a split decision where both parties and numerous amici fully briefed the Court and both parties argued their positions before the Court? Really?

jimmy the one wrote:
I'll ask you to read again the 1939 supreme court endorsement:
-- The Constitution, as originally adopted, granted to the Congress power -- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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.
-- With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

You have misconstructed Miller's simple statement about the object of the 2nd Amendment and misapplied it to constrain the right to keep and bear arms (which is a separate thing, existing without reference to or any dependence upon the 2nd Amendment).

The Miller court directs us to interpret "the declaration and guarantee" with the object of the Amendment in mind; the Court doesn't tell us to apply the object to the right. One really can't discuss / dissect Miller without referring to its primer, Aymette v State, where the Miller Court drew its reasoning from for how to treat Miller's sawed-off shotgun.

jimmy the one wrote:
The 1939 Miller decision was 8-0 unanimous; if they had thought it an individual rkba disconnected from militia you'd think at least one justice would've piped up 'whoa fellow justices, look how we wrote that paragraph, future generations will think we gave 2nd amendment the militia interpretation'. Yet not one did, they all thought it correct as written.

Well, I think they assumed that Miller would be read continuing Cruikshank and Presser through it and that when they wrote "With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." people would not substitute "With obvious purpose to assure the continuation and render possible the effectiveness of government forces, the right to keep and bear arms were granted. The rights therein given must be interpreted and restricted with that end in view."

jimmy the one wrote:

Surf Fishing Guru wrote:
Armed self defense in public by citizens who were excluded from serving in the militia is what the "it" is in those excerpts and is what the 2nd Amendment protects.

Though vague & ambiguous, even if so your remark comports with the militia centric view (presuming your use of 'excluded' does not imply a total 2ndA disconnect from militia as per scalia). People could own guns & use them for self defense outside of militia, that's militia centric.

I was talking about the specific circumstances of the two citizens on whose behalf Cruikshank was being heard. Two former slaves, then citizens, armed for self defense from the KKK, in public. People who (if there was a state militia active in Louisiana in 1873) would have been excluded from joining. That was what mt statement was about. Whatever vagueness and ambiguousness you found in it, is only due to your lack of knowledge of the facts of Cruikshank.

And it can't be "militia centric", there was no militia for anyone, White or Black, to join in Louisiana thus there was no militia conditioning to apply to the Freeman's "right of bearing arms for lawful purpose" (self defense, in public) . . . Which the Court said is a right not granted by the Constitution and thus not in any manner dependent upon the Constitution for its existence.

jimmy the one wrote:
Note also that by this time the dichotomy between individual & militia interpretations of course existed.

In the south with the sole purpose of keeping Blacks disarmed. New citizens could be denied their right to arms if the right to arms could be linked to militia service. Since Blacks were barred from serving, they could be disarmed. Congratulations on at least widening the net of people you want to disarm . . . Of course back then White people didn't suffer the same rights denial as Blacks.

jimmy the one wrote:
US v. Cruikshank.. in 1876 the Court ruled that {2ndA} served only to protect the states against the federal govt.

No, Cruikshank ruled that there was no federal relief for rights abuses perpetrated by private citizens.

jimmy the one wrote:Because the states in 1787 were worried that a too-powerful federal government might trample their rights, the Court said, the Second Amendment was added to the Constitution guaranteeing their right to maintain militias.

What a bald fabrication. Please quote where the Cruikshank Court said that.

jimmy the one wrote:
One of the critical holdings within the Cruikshank case was affirmed a decade later in Presser v. Illinois. This case stemmed from the arrest of a man named Herman Presser, who had organized military-style drills to train his own private militia of German-American workers, with the aim of fighting back against the armed security forces often hired by industrial employers. The state argued that this sort of private militia was dangerous and illegal; Presser argued that it was protected by {2ndA}. The Court ruled that the {2ndA} only restricted the federal govt; it was not a prohibition against state action and therefore Illinois could regulate private militia. The {2ndA} the Court ruled, did not give Herman Presser the right to run his own private army.

Correct, there are no "militia rights" for anyone, citizen or state to be found or claimed in the 2nd Amendment.

You fail to recognize th if your theory were correct, Illinois would have also claimed the protection of the 2nd Amendment in Presser . . . After all, just 10 years prior (according to your biased source) the Cruikshank Court said the 2nd only protects state militia interests. Surely something along those lines would have been stated by the Court . . .

To go even further, Illinois could have claimed the 2nd Amendment's protections to question the Supreme Court's hearing of Presser; the 2nd being a barrier to federal interference in state militia affairs. Surely the 2nd would repel any federal court from sticking its nose into internal state affairs.

Can you explain why no state ever claimed this supposed protection the 2nd Amendment affords them? Though all the cases that decided state / federal conflicts in militia control, not one state raised the 2nd Amendment to repel federal interference. Again and again the Court found federal power preempted state interests and not one decision mentioned the 2nd Amendment as speaking to any aspect of militia law, organization, training or control.

The "militia right" is a fantasy that exists only as a counter argument to those who claim an individual right to arms. No notice of it exists in discussions outside dismissing the right of the people to keep and bear arms. It has no presence in the legal history of militias, where one would expect the claimed action to have some effect . . . No, its only presence is as sophistry in debates such as this.

[jimmy the one]

76. surfer guru in fantasy land

surf guru: The "militia right" is a fantasy that exists only as a counter argument to those who claim an individual right to arms. No notice of it exists in discussions outside dismissing the right of the people to keep and bear arms. It has no presence in the legal history of militias, where one would expect the claimed action to have some effect . .

The fantasy & sophistry are all yours, as apparent from your mental gymnastics bending over backwards to present rightwing manipulations.

Benjamin Oliver, from Right of an American Citizen, 1832 (+emph): "The {2ndA} declares ‘the right of the people to keep and bear arms shall not be infringed.’ The reason is, ‘because a well regulated militia is necessary to the security of a free state.’
. . . The provision of the Constitution declaring the right to keep and bear arms was probably intended to apply to the right to bear arms for such {militia related} purposes only, and not to prevent Congress or legislatures from enacting laws to prevent citizens from going armed. A different construction however has been given to it.” (1832)

Justice Joseph Story, 1833: .. among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see.
There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. http://press-pubs.uchicago.edu/founders/documents/amendIIs10.html

Which clause was Story writing of in the last sentence? the militia clause of course.
If story believed there was an individual right to keep & bear arms disconnected from militia, his above sentence would be contradictory to that belief - 'the people' then could be 'duly armed' by simply owning guns with no militia obligation. But that is what story is worried about, that 'the people' simply owning guns outside militia would NOT be duly armed without some organization/militia.

Story cont'd: The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.
.. 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.

Story, in the same paragraph, praised the militia and 'the people' for essentially the same thing, defense against - 'the usurpation and arbitrary power of rulers'... more evidence in context he synonymously equated militia & 'the people'. The 'people' individually armed yet unorganized, would be no match for the 'arbitrary power of rulers' with tyranny in mind.

Wm Rawle, 1825: In the second article, it is declared, that a well regulated Militia is necessary to the security of a free state; a proposition from which few will dissent.
The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed http://www.constitution.org/wr/rawle_10.htm

A corollary is of course, is derived from a higher rule or law.
One wonders why you didn't include miller in your previous scotus list.

[Surf Fishing Guru]

80. Oh Jimmy!

jimmy the one wrote:The fantasy & sophistry are all yours, as apparent from your mental gymnastics bending over backwards to present rightwing manipulations.

Mental gymnastics . . . rightwing manipulations???? All I want to see is a single example of your claimed action of the 2nd Amendment. Your "militia centric" (I assume along the lines of Saul Cornell's "conditioned individual right&quot is only offered and only exists as a counter to the unconditioned individual right protection argument . . . You can not offer any evidence that the 2nd Amendment has ever been used to direct militia action or claimed by anyone to protect militia activity (presumably to repel federal overstepping of state militia powers, ala, US v Tot.

As I said, your theory has no presence in the legal history of militias, where one would expect the claimed action to have some effect, especially in cases where federal / state conflicts in militia powers were decided such as, Houston v. Moore, 18 U.S. (5 Wheat.) (1820), Martin v. Mott, 25 U.S. (12 Wheat.) (1827), Selective Draft Law Cases, 245 U.S. 366 (1917), Perpich v. Dep't of Defense, 496 U.S. (1990).

jimmy the one wrote:Benjamin Oliver, from Right of an American Citizen, 1832

In that work he also recognizes that, "T]he right of the people to resist their rulers, when invading their liberties, forms the corner stone of American Republics. "

How can the people retain and possess the right to "resist their rulers" if their rulers claim a power to dictate who shall be allowed to possess arms and under what circumstances the citizens may use their arms?

jimmy the one wrote:Justice Joseph Story, 1833: .. among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see.
There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. http://press-pubs.uchicago.edu/founders/documents/amendIIs10.html

Which clause was Story writing of in the last sentence? the militia clause of course. If story believed there was an individual right to keep & bear arms disconnected from militia, his above sentence would be contradictory to that belief - 'the people' then could be 'duly armed' by simply owning guns with no militia obligation. But that is what story is worried about, that 'the people' simply owning guns outside militia would NOT be duly armed without some organization/militia.

In the last sentence Story speaks to the object of the 2nd Amendment (the perpetuation of the general militia concept) . . . That principle -in and of itself- is the protection he speaks of. The focus of his comments that you quote there has nothing to do with the right to arms; it speaks only to militia regulation -the Militia Act of 1792- authorized by Art I, § 8, cl. 16.

The term "duly armed" has narrow application; it describes arms possession compelled by law. "Duly armed" is a condition that can only be assigned to citizens who are liable to perform militia service and who have complied with the Militia Act and "provide[d] themselves" with an arm that meets the minimum standards as set-out in the Militia Act.

All Story is saying is that it doesn't make much sense to compel citizens to provide themselves with a militia arm if the state's obligations in militia organization has been abdicated and disintegrated.

That in no way speaks to the right to arms (the acquisition, possession and use of personal arms by private citizens outside the militia).

jimmy the one wrote:Story cont'd: The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.
.. 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.

Story, in the same paragraph, praised the militia and 'the people' for essentially the same thing, defense against - 'the usurpation and arbitrary power of rulers'... more evidence in context he synonymously equated militia & 'the people'. The 'people' individually armed yet unorganized, would be no match for the 'arbitrary power of rulers' with tyranny in mind.

Talk about mental gymnastics! Do the words you copy and paste register with you?

How can the right of CITIZENS to keep and bear arms offer any check to "the usurpation and arbitrary power of rulers" if the rulers dictate that the "right of the citizens" really only protects a narrow band of citizens who are government approved arms bearers?

Do you recognize that you are quoting the word "usurpation" and the term "arbitrary power" to argue for usurpation and arbitrary power? Again I ask, how can the people retain and possess the right to resist their rulers if their rulers can claim an undefined power to dictate who shall be allowed to possess arms and under what circumstances the citizens may use their arms?

You are spouting nonsense.

jimmy the one wrote:Wm Rawle, 1825: In the second article, it is declared, that a well regulated Militia is necessary to the security of a free state; a proposition from which few will dissent.
The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed http://www.constitution.org/wr/rawle_10.htm
A corollary is of course, is derived from a higher rule or law.

So in your world a "right" is of lower stature than a law?

I wonder why you stopped quoting Rawle. Could it be that he takes your "corollary" to a place you don't want to go?

"Wm Rawle, 1825: The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."

So, if no clause exists in the Constitution and no legitimate rule of construction can be employed to argue Congress possesses the power to disarm the citizen, from what precisely do you derive your theory that Congress can dictate to the citizen what arms can be owned and what circumstances they may be used?

jimmy the one wrote:One wonders why you didn't include miller in your previous scotus list.

My previous list was only intended to show the longstanding consistency in SCOTUS opinion on the nature of the right to arms and how the fact that the right is not granted, given, created or established by the 2nd Amendment extinguishes any "interpretation" that the right is limited by any words in the Constitution or conditioned by or qualified upon an entity that is created by the Constitution (the organized militia).

[jimmy the one]

78. barroom dancer april love

surf guru: So you think a unanimous decision (to reverse and remand) where the Justices only hear the government's arguments {,} carries more weight than a split decision where both parties and numerous amici fully briefed the Court {,} and both parties argued their positions before the Court?

Indeed I do. Jack Miller was simply the catalyst for 1939 miller case, just as emerson was the catalyst for 2008 heller. That they both were accused & 'tried' of firearm violations hasn't that much to do with the renderings of the courts regarding the militia vs the individual interpretations.
1939 scotus unanimously held for the militia view, while 2008 scotus narrowly held 5-4 for an individual rkba, split upon liberal vs conservative views. You surfer guru, argue for the far right wing interpretation of 2ndA in almost everything you present. I remind you that you oppose the dominant democrat position & we post on democrat underground. Perhaps you would prefer posting on nra or goa websites or 'rightwing republican underground' where you can prop up inter alios ted cruz rand paul & Donald trump.

surfer guru: As the Cases court recognized,

Since you introduced circuit/appellate courts, april love vs pepersack, 4th circ:
1994/95: Citing law review articles, Love argues that she has an individual federal constitutional right to "keep and bear" a handgun, and Maryland may not infringe upon this right. She is wrong on both counts. The Second Amendment does not apply to the states. Presser v. Illinois, (1886); United States v. Cruikshank, (1876).
Moreover, even as against federal regulation, the amendment does not confer an absolute individual right to bear any type of firearm. In 1939, the Supreme Court held that the federal statute prohibiting possession of a sawed-off shotgun was constitutional, because the defendant had not shown that his possession of such a gun bore a "reasonable relationship to the preservation or efficiency of a well regulated militia." United States v. Miller,(1939).
Since then, the lower federal courts have uniformly held that the Second Amendment preserves a collective, rather than individual, right. This court's precedent is United States v. Johnson,(4th Cir. 1974). In Johnson, the defendant challenged the constitutionality of the federal statute prohibiting possession of firearms by convicted felons. We were not impressed.
Johnson's argument that [18 U.S.C. §] 922(g) is an unconstitutional violation of his Second Amendment right to keep and bear arms is not new. See, e.g., United States v. Miller, (1939). The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear a "reasonable relationship to the preservation or efficiency of a well-regulated militia." Johnson presents no evidence that section 922(g) in any way affects the maintenance of a well regulated militia.
Love has likewise not identified how her possession of a handgun will preserve or insure the effectiveness of the militia. The judgment is affirmed. http://www.guncite.com/court/fed/47f3d120.html

[Surf Fishing Guru]

81. Awwww Jimmy . . .

jimmy the one wrote:

Surf Fishing Guru wrote:
So you think a unanimous decision (to reverse and remand) where the Justices only hear the government's arguments {,} carries more weight than a split decision where both parties and numerous amici fully briefed the Court {,} and both parties argued their positions before the Court?

Indeed I do.

You appear quite willing to abandon / abrogate settled standards of US law. Decisions like Miller are considered arbitrary because they violate the legal maxim, audi alteram partem.

jimmy the one wrote:Jack Miller was simply the catalyst for 1939 miller case, just as emerson was the catalyst for 2008 heller. That they both were accused & 'tried' of firearm violations hasn't that much to do with the renderings of the courts regarding the militia vs the individual interpretations.

The "catalyst"? What the heck does that mean in a legal sense? Can you stop making stuff up? I can understand why you need to employ terms that are utterly meaningless in the legal realm because you invent ridiculous conclusions from the cases . . . You refuse to understand that Miller was about the military usefulness of the sawed-off shotgun. Miller was decided on the singular point that the Court heard no evidence that a sawed-off shotgun has military usefulness, that a sawed-off shotgun was a type of arm that is any part of the ordinary military equipment or that its use could contribute to the common defense.

Miller had nothing to do with Miller and Layton's militia attachment status and it certainly said nothing limiting the possession and use of shotguns with a barrel length over 18 inches (or any other "common use" arm) by private citizens. Actually, as Cases v US said, the "Miller rule" demands an absolutist interpretation of the 2nd Amendment, rendering the federal government completely impotent in regulating modern arms, even machine guns and mortars.

I gotta commend the amazing baseless rationalization you are capable of . . . That and just how wrong you can be on the law; a prime example:

jimmy the one wrote:1939 scotus unanimously held for the militia view, while 2008 scotus narrowly held 5-4 for an individual rkba, split upon liberal vs conservative views.

Heller was 9-0 for the individual right view -- Breyer saying, "I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
(1) The Amendment protects an “individual” right" . . . "

The dissents also agreed that, "The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” " so how can you argue with a straight face that Heller actually decided that question and that the dissents actually held that the right secured by the 2nd Amendment was "collective"?

Please stop making stuff up.

jimmy the one wrote:You surfer guru, argue for the far right wing interpretation of 2ndA in almost everything you present. I remind you that you oppose the dominant democrat position & we post on democrat underground. Perhaps you would prefer posting on nra or goa websites or 'rightwing republican underground' where you can prop up inter alios ted cruz rand paul & Donald trump.

Not that I need to state my bona-fides but I am a Democrat, a second generation union building trades member (34 years) and have a hard time voting for R's that my union endorses. I am pro-choice, pro-LGBT rights, anti-religious-right.

I refuse to accept that your position is the default Democrat position, I embrace the Constitution and the principles it is founded on and if your corruption of those principles ever becomes the default position then I will become an independent.

Do you realize that your hostility to the RKBA puts privacy / abortion rights at risk? The nature of the ALL the rights secured by the Bill of Rights is the basis for penumbral rights; your desire to dissect one away threatens the "rational continuum" of liberty embodied in the Bill of Rights.

jimmy the one wrote:surfer guru: As the Cases court recognized,
Since you introduced circuit/appellate courts, april love vs pepersack, 4th circ:

Cases v US was the genesis of the "militia right" interpretation in the US federal court system. It needed to dismiss and ignore SCOTUS in Miller to arrive at that "collective right" opinion. Love v Pepersack relies on Johnson which relies on Cody which relies on Cases. Heller invalidated all that garbage (along with US v Tot's "state's right" and Tot's illegitimate progeny).

Among lower federal court decisions, Cases (inserting the militia right in the federal courts) and Tot (inserting the state's right in the federal courts) are the only ones worth discussing as they are the wobbly lamp posts that all the drunken clods of Oakes, Hale, Johnson, Cody, Stevens, Warin, etc., lean on.

[jimmy the one]

79. no louisiana militias circa reconstruction?

surfer guru: You have misconstructed Miller's simple statement about the object of the 2nd Amendment and misapplied it to constrain the right to keep and bear arms (which is a separate thing, existing without reference to or any dependence upon the 2nd Amendment).

I have not misinterpreted this: -- With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

As opposed to any scalia style individual interpretation, accd'g to 1939 scotus, duh.

Why didn't you include miller 1939 in your previous list of I-rkba arguments? A glaring omission. You are correct on some things - ie the right to self defense is a separate concept from the 2ndA, and existed thousands of years prior to 2ndA being written.

surfer guru: Since Blacks were barred from serving, they could be disarmed. Congratulations on at least widening the net of people you want to disarm..

You make me sick, with idiotic ad hominem like the above.

surf guru: And it can't be "militia centric", there was no militia for anyone, White or Black, to join in Louisiana thus..

Tenuously concede you got me on this one, temporarily at least; what was it, there was a gap during the 1870's where LA had no militia? I fear a technicality.
I don't understand what you say, here is info & state constitution, albeit not until 1879:

1865 Louisiana Blacks require police and employer approval to own guns, unless in military. Louisiana Statute of 1865 prohibited blacks, not in the military service, from “carrying fire-arms, or any kind of weapons … without the special permission of his employers, approved and indorsed by the nearest and most convenient chief of patrol.”

With passage of federal reconstruction laws between 1866 and 1870 the U.S. Army took control of the former rebel states and ordered elections to be held. These elections were the first in which African Americans could vote. Each state (except Virginia) elected Republican governments, which organized militia units. The majority of militiamen were black. Racial tension and conflict, sometimes intense, existed between the Negro freedmen and the ex-Confederate whites.
In parts of the South, white paramilitary groups and rifle clubs formed to counter this black militia; regardless of the laws prohibiting drilling, organizing, or parading except for duly authorized militia. These groups engaged in a prolonged series of retaliatory, vengeful, and hostile acts against this black militia.
"...the militia companies were composed almost entirely of Negroes and their marching and counter-marching through the country drove the white people to frenzy.
https://en.wikipedia.org/wiki/Militia_(United_States)#Reconstruction_era

Louisiana: The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person. (enacted 1974).
1879: "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 abridged. This shall not prevent the passage of laws to punish those who carry weapons concealed."

[Surf Fishing Guru]

82. Facepalm . . .

jimmy the one wrote:

Surf fishing Guru wrote:You have misconstructed Miller's simple statement about the object of the 2nd Amendment and misapplied it to constrain the right to keep and bear arms (which is a separate thing, existing without reference to or any dependence upon the 2nd Amendment).

I have not misinterpreted this: -- With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

As opposed to any scalia style individual interpretation, accd'g to 1939 scotus, duh.

LOL, yes, you have, egregiously . . .

Here's why . .. In a post Slaughterhouse Cases legal climate (a 1873 SCOTUS decision that gutted the privileges and immunities clause of the 14th Amendment) we citizens must challenge enacted law instead of enjoying a general liberty principle that binds Congress. This has reduced us to claiming specific injuries from specific government actions under "due process" -- so we are stuck with citing the 2nd Amendment as the guarantee of gun rights.

With that comes the baggage of the intent of the Amendment; the "why" framers and the states and the people demanded that the pre-existing right to keep and bear arms be formally and expressly excluded from the powers granted to the federal government.

So, Courts have examined the 'object' of the Amendment. That object was to ensure the continuation of the general militia concept so that both the states and he federal government would have a ready pool of properly equipped citizens to call up at a moments notice to aid the civil authority in a time of need.

This is where we get the primary protection sphere of the Amendment. The 2nd Amendment protects the right of private citizens to possess and use the types of arms that are useful to a citizen militia and that can be effectively used by the citizens in the types of engagements that a general, citizen militia are expected to face if called -- the, "assure the continuation and render possible the effectiveness of such {militia} forces"

US v Miller articulated those protection criteria (or tests) that should be used to determine if an arm is beyond the reach of government. The arm must be shown to be of the type:

In common use at the time by the general citizenry and
that constitute the ordinary military equipment and/or
that can be employed advantageously in the common defense of the citizens.

If the type of arm meets any one of these criteria the right to keep and bear that weapon must be preserved and the authority claimed by government to restrict its possession and use must be repelled.

In Heller, SCOTUS only used one of those criteria to strike down the DC statutes; they held that handguns are in common use at the time by the general citizenry.

"We think that Miller’s “ordinary military equipment” language must be read
in tandem with what comes after: “[O]rdinarily when called for [militia] service
[able-bodied] men were expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at 179. The traditional
militia was formed from a pool of men bringing arms “in common use at the time”
for lawful purposes like self-defense. “In the colonial and revolutionary war era,
[small-arms] weapons used by militiamen and weapons used in defense of
person and home were one and the same.” -- DC v Heller

SCOTUS has always held that the right does not depend on the 2nd Amendment but in examining why the 2nd is there, the protection sphere is informed by that intent / object. So, Heller certainly followed Miller and Heller does employ a militia focused protection criteria. You OTOH, invent a castle in the sky where SCOTUS is ignored and the clear statement of the object of the Amendment is applied to the right (which SCOTUS has said in no manner depends on the 2nd for its existence) and becomes an illegitimate and anti-constitutional straight jacket for the exercise and protection of the right to arms.

Why can't you understand the simple principle that tells us that since the right does not flow from the Amendment the Amendment can't be employed to restrict / qualify / condition / constrain the right?

[jimmy the one]

83. con artist in the surf

surf guru: Heller was 9-0 for the individual right view -- Breyer saying, "I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
(1) The Amendment protects an “individual” right" . . . "

You are wrong, your deceitful manipulation becomes apparent. To try to hoodwink readers that heller was 9-0 for an individual rkba interpretation demonstrates either your duplicitous deceptive nature, or your misconception of what was actually written.
Surfer guru cites simply ONE of the 4 interpretations of 2ndA which exist today & noted by breyer, then surf guru misleads by leaving off the other 3 considerations, thus misleading that breyer was actually an individual rkba adherent:

Justice breyer in fuller context shows surfer guru for a charlatan: In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
(Proposition) (1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred;
(2) As evidenced by its preamble, the Amendment was adopted “with obvious purpose to assure the continuation and render possible the effectiveness of forces.” United States v. Miller,(1939);
(3) The Amendment “must be interpreted and applied with that end in view.” Miller..
(4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. Robertson v. Baldwin, (1897).

Yes, those are the 4 possible constructions & rulings today which 2ndA has morphed into. Note how scam artist surf guru only mentioned proposition 1 which is individual rkba friendly.
But Breyer was NOT contending he, nor the 'entire court' of 9 justices, considered 2ndA an individual righr. Surfer guru is an unethical spin doctor.
Justice Breyer, in proposition 1 above, was simply noting that the 2ndA when considered AS an individual right was ONE of the several 2ndA interpretations which exist.
Two other propositions breyer noted (2 & 3), described that the collective/militia interpretation also existed. These 4 propositions are what justice breyer meant when he said 'all justices could agree with' existed, and thus formed the basis for further debate.
In proposition 1, breyer was simply defining what the individual right was, note his usage of i.e. which means roughly 'in example': The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred; - this then became the basis for court discussion whether the 2ndA did indeed confer an individual right. But breyer was not contending propostion 1 was what the dissent adhered to.
http://www.democraticunderground.com/?com=view_post&forum=1172&pid=117174
______________________________________________________________
surfer guru: The dissents also agreed that, "The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” " so how can you argue with a straight face that Heller actually decided that question and that the dissents actually held that the right secured by the 2nd Amendment was "collective"?

.. despite your prolific erudite double double talk talk you are quite naive about this, & rely largely on twisting about what was written, or cherry picking out of context. Stevens is contending that a hypothetical 'conclusion' that 2ndA might convey an individual right, does not say how the individual right would be applied. He implies in later text that any individual right would be a right or duty to belong to a militia.

In fuller context, the dissent surf guru cites above: The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

stevens later text: Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, (1939) , provide a clear answer to that question.
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
The opinion the {Scalia/heller} Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; post-enactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself.

The last emboldened sentence above, readers, is what the charlatan surf guru is doing as well - a feeble attempt using strained reasoning.
And of course the 1688/89 english 'have arms' decree from their bor established a militia based rkba for protestants, which scalia errantly referred to as an individual rkba (in heller).

[yeoman6987]

3. No kidding. They think the NRA disbanding will change the constitution?

We seriously need better education in this country.

[Human101948]

8. The NRA and accomplices managed to change the reading of the Second Amendment...

After the coup, the NRA ramped up donations to congressional campaigns. “And in 1977, new articles on the Second Amendment appeared” in American Rifleman, Burbick noted, “rewriting American history to legitimize the armed citizen unregulated except by his own ability to buy a gun at whatever price he could afford.” That revisionist perspective was endorsed by a Senate Judiciary Subcommittee chaired by Utah Republican Orrin Hatch in 1982, when staffers wrote a report concluding it had discovered “long lost proof” of an individual’s constitutional right to bear arms.

The NRA’s fabricated but escalating view of the Second Amendment was ridiculed by former U.S. Supreme Court Chief Justice Warren Burger—a conservative appointed by President Richard Nixon—in a PBS Newshour interview in 1991, where he called it “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.”

Burger would not have imagined that the U.S. Supreme Court in 2008—13 years after he died—led by libertarian activist Justice Antonin Scalia—would enshrine that “fraud” into the highest echelon of American law by decreeing that the Second Amendment included the right to own a gun for self-protection in one’s home

.http://www.democraticunderground.com/?com=post&forum=1172&pid=178820

[Big_Mike]

10. Accomplices? People such as

Lawrence Tribe?

Berger made his statements prior to the scholarship expended on the subject in the 80s and 90s.

And everyone points to Justice Breyers continuing statements in the newspapers; these are the same arguments he put forth in his dissent to the Heller decision. Nothing new there.

[Human101948]

11. Scholarship?

LOL!

[Big_Mike]

26. Yes, scholarship

Reviewing the information available, internalizing it, and publishing your findings for others to review. Quite a concept for some, but generally effective in communicating the results of study, regardless whether the outcome matches your initial view as was the case for Mr. Tribe.

[jimmy the one]

43. lawrence tribe misconception strikes again

big mike: Accomplices? People such as Lawrence Tribe
big mike: ... Quite a concept for some, but generally effective in communicating the results of study, regardless whether the outcome matches your initial view as was the case for Mr. Tribe.

You are apparently under some misconception regarding Lawrence tribe, I suspect due reading too much 2nd amendment mythology.
Please post evidence of what you are driving at, so I can rebut it, thanks.
And note justice burger's quote is my signature line, has been for years.

[Big_Mike]

69. I read an article on it in the NY Times years ago.

Last edited Thu Nov 5, 2015, 12:52 AM - Edit history (1)

I'll quote a relevant passage:

There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.

In those two decades, breakneck speed by the standards of constitutional law, they have helped to reshape the debate over gun rights in the United States. Their work culminated in the March decision, Parker v. District of Columbia, and it will doubtless play a major role should the case reach the United States Supreme Court.

Laurence H. Tribe, a law professor at Harvard, said he had come to believe that the Second Amendment protected an individual right.

“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Professor Tribe said. “I have always supported as a matter of policy very comprehensive gun control.”

The first two editions of Professor Tribe’s influential treatise on constitutional law, in 1978 and 1988, endorsed the collective rights view. The latest, published in 2000, sets out his current interpretation.

A Liberal Case for Gun Rights, NY Times, May 6, 2007

Interesting, as no one could ever accuse the NY Times of being a NRA shill.

Please, read the whole article and let's discuss Professor Tribe's and other scholar's work.

[jimmy the one]

70. Still think Tribe is on your side?

big mike: I read an article on it in the NY Times years ago: Laurence H. Tribe, a law professor at Harvard, said he had come to believe that the Second Amendment protected an individual right. “My conclusion came as something of a surprise to me, and an unwelcome surprise,”
Please, read the whole article and let's discuss Professor Tribe's and other scholar's work

You are reading too much into a few sentences taken out of context, vintage 2ndA mythology; Laurence Tribe is simply militia centric, like alan dershowitz, believing 2ndA based upon militia participation but not disallowing for auxiliary individual ownership:

Tribe posits that it includes an individual right, "admittedly of uncertain scope," to "possess and use firearms in the defense of themselves and their homes."

18 December 12 - constitutional interpreters .. ought to conclude that the only "individualistic right to keep and bear arms" (that is, the only right to keep and bear arms independent of the organized militia) is a limited right of self-defense that people may exercise vis-à-vis state and local "efforts at disarming people," a right derived from the 14th Amendment rather than the Second, but that "federal gun control legislation [is] essentially invulnerable under the 2nd Amendment provided the state militia [is] not undermined." http://readersupportednews.org/opinion2/265-34/15098-a-response-from-laurence-tribe-in-the-wake-of-newtown

I certainly believe that restricting the kinds of high-powered weapons and ammunition that made possible the horrific slaughters of innocent children and others in recent days and months is well within the power of government even as the Supreme Court has misguidedly interpreted the Second Amendment in Heller and McDonald, purporting to be guided by the original meaning of the text but in fact being driven by an incoherent mishmash of non-originalist considerations.

It badly distorts the meaning of everything I have written on the subject to treat me as remotely hostile to the comprehensive national regulation of firearms and ammunition possession, transfer, and use; and it even distorts my meaning to regard my views as similar to those that the Roberts Court has expressed on the subject, although I hasten to add that even this Court's unfortunate views leave very substantial room for close regulation and even prohibition of entire categories of dangerous firearms and the ammunition that makes them lethal.
The fact that many of my fellow gun control proponents were disappointed by the nuanced character of what I wrote in 2000 shouldn't be allowed to distract from my continuing conclusion that the Constitution permits, and that sane public policy demands, vastly stricter firearms regulation than exists in the United States today."
http://readersupportednews.org/opinion2/265-34/15098-a-response-from-laurence-tribe-in-the-wake-of-newtown

[Big_Mike]

75. You miss my point regarding Professor Tribe

I did not state he didn't have serious reservations regarding the 2A. My point was his (reluctant, to be sure) that it refers the individual's right to bear arms in self-defense in the home. I made no other utterance regarding his position. I referred only to the individual right.

I do not agree with everything he states, as he would no doubt disagree with many of my positions. I referred simply to his individual right position.

[hack89]

77. The 2A posits an individual right that can be strictly regulated

that is what Hellers says.

The 2A is not the reason gun control is a smoking wreck in America - it does not stop AWBs, registration and other regulation. What does stop it is the lack of committed public support.

[ileus]

6. Destroying rights is really "progressive"....what a dolt.

This fool is assuming minorities are going to be willing to give up basic human rights.

[krispos42]

7. World Nut Daily? Really?

[DonP]

12. Aren't we always lectured by our "betters" on using right wing sources?

I guess it's OK, as long as you can find one that agrees with your predisposed prejudices.

Hell, we had one DU member applauding Scott Walker down here, for banning carry in a Wisconsin state building.

Situational ethics must be a very comfortable jacket for some folks to wear.

[ileus]

13. You can use any source IF it fits an agenda.

[DonP]

14. Well, some people can. Others are pilloried for doing it.

Gun Control support from World Nut Daily = solid, reliable source

Pro Second article from Washington Post = right wing hate rag

Yeah, that works.

[GGJohn]

19. You mean this one?

http://www.democraticunderground.com/12598508

Wonder why he isn't lecturing the OP on using RW sources?
My guess would be because it fits his agenda.

[DonP]

21. Ah, the vanishing and reappearing Co-Captain of Castle Bansalot

One of the folk that demanded a "gun control only" safe haven from Skinner, got it ... and still isn't happy since the Gungeon wasn't closed and all the inhabitants thrashed for their arrogance.

Like legendary Brigadoon he gets excited, magically appears for a short time, then sinks sloooowly out of sight for another century or so to return to his grad student lounge and regale them with tales of his heroic confrontation with the evil gun owners.

[Duckhunter935]

23. So true

[sarisataka]

24. I recall a post

rather recently, extolling a renewed commitment to the cause, with obligatory cartoon. That commitment lasted about a week and mostly involved a very short lived purity campaign.

Certain gun control advocates have their boogeymen that they cite for the lack of any meaningful action but the real obstacle can be found in a common household item...

[sarisataka]

15. That's rich

WND (formerly WorldNetDaily or, as it was affectionately known to its fans, WingNutDaily or WhirledNutDaily) is an extremist conservative website founded by Joseph Farah in 1997 as a project of his Western Center for Journalism.[1] It espouses a fundamentalist Christian, creationist view of the world, and regularly engages in racist attacks against African-Americans. Its political leanings are right-wing, pro-"Christian right," and supposedly pro-United States, with strongly libertarian economic views. Its coverage provides multiple sides of the issues: the conservative viewpoint and the ultra-conservative viewpoint. It is far to the right of Fox News.

While they present themselves as news, WND is essentially a tabloid for radical right-wingers. Their publishing standards are rock-bottom, and they have run stories from extremely questionable sources on many, many occasions.[2][3] They are best known for distributing Ann Coulter's insipid columns, as well as articles written by noted political analysts Chuck Norris, Pat Boone and Charlie Daniels. They recently added disgraced baseball bigot John Rocker as well, indicating they've decided to drop the dog whistles and go with overt racism.

The scary thing is that this bilge is actually slightly influential, with made-up bullshit from WND making its way out the mouths of wingnut congressmen and cable TV pundits far too often.[4]

http://rationalwiki.org/wiki/WND

Why do so many gun control proponents spend so much time on far-right websites?

[beardown]

22. "...articles written by noted politcal analysts Chuck Norris, Pat Boone and Charlie Daniels."

This is one of the funniest phrases I've read in a long time. Even if they were just fluff pieces with light political content. If they were actually serious articles, it's even funnier. For all I know they all now have Phd's in political science. It's still funny.

[Eleanors38]

16. Ah, The Political Theory of Mass Extinction rides again.

[Eleanors38]

17. Gee, SecMo, someone was complaining in ATA 'bout using RW sources in gun discussions.

That's alright, we won't tell.

[GGJohn]

18. I thought World Nut Daily was a no no here?

But I guess if it fits your agenda, it's an acceptable source.

[Duckhunter935]

20. Nice rightwing nutbag source

http://aboutwnd.com/

That's rich from a person that complains about sources we use, lol

Care to comment or are you just going to run away, lol

[Nuclear Unicorn]

25. So the gun control movement is reduced to racism and eliminationism.

What could possibly go wrong?

[Straw Man]

31. There's no fool ...

... like an educated fool. Hispanics favor gun control by a factor of 3 to 1? On what planet?

[jimmy the one]

42. hispanics on planet pew

straw man: Hispanics favor gun control by a factor of 3 to 1? On what planet?

On Planet Pew:

And Hispanics prioritize gun control over gun rights by a wide 71% to 25% margin.
http://www.people-press.org/2014/12/10/growing-public-support-for-gun-rights/

Note since I am posting a year old graph I preface it with updated data from pew which somewhat refutes its subsequent graph title 'broad increase in support for gun rights' which was 2014.
OK, Hispanic data a year old too, but likely hasn't changed much since 2 year data 2013 & 2014:

Overall americans: PEW: "What do you think is more important -- to protect the right of Americans to own guns, or to control gun ownership?"
Protect right to own guns..... Control ownership ....Unsure
7/14, 2015 ... 47 ....................50 ............
http://www.pollingreport.com/guns.htm

Question whether protect right to own guns, or control gun ownership, to HISPANICS:



straw man: There's no fool .... like an educated fool

Do tell, mr grammar teacher.

[Straw Man]

46. Yup, Planet Pew ...

Where reality is extrapolated from tiny slices of data.

http://www.slate.com/articles/news_and_politics/politics/2012/05/survey_bias_how_can_we_trust_opinion_polls_when_so_few_people_respond_.html

straw man: There's no fool .... like an educated fool

Do tell, mr grammar teacher.

Excuse me, Jimmy. Did I make a grammatical error? I see that you left off the period in the sentence of mine that you quoted. Please strive for accuracy in your quotations; otherwise, you are misrepresenting the utterances of others.

If "mr grammar teacher" is intended to resemble a proper name, as the use of the honorific suggests, you should use title caps on each word. Also, American English usage favors the period at the end of the abbreviation "Mr."

[jimmy the one]

47. more from planet pew

straw man: Yup, Planet Pew ... Where reality is extrapolated from tiny slices of data.

That's how probability works for all pollsters. Kleck had a 5,000 person sample for his dgu study.
Did I push you so much into a corner you need rely on attacking the source rather than defending your own BS? Not sure you read your own link, but you get a footstick nonetheless:

The nonprofit Pew Research Center is one of the least biased, most reliable polling organizations in the country..

Recently, though, Pew decided to turn the spotlight on the reliability of its own research. What it found was alarming: Fewer than one in 10 Americans contacted for a typical Pew survey bothers to respond. That’s down from a response rate of 36 percent just 15 years ago.

This really is irrelevant to poll taking. Only a minute fraction of all americans are represented in a poll, yet, if done randomly with a sufficient sample size, it has a great probability of being accurate within the margin of error, to its confidence level.

straw man's link, I guess he missed it: A lower response rate, on its own, doesn’t necessarily imply flawed results. In a widely cited 2006 paper—now director of the U.S. Census Bureau—explained how efforts to increase response rates can actually lead to less reliable data. Groves cited a 1998 study in which exit pollsters offered some voters a free pen if they participated. That increased the response rate, but for some reason, Democrats were more enticed by the pens than Republicans, skewing the results.
For what it’s worth, surveys today are probably more reliable on the whole than they were 30 years ago.

straw man: There's no fool .... like an educated fool
jimmy wrote: Do tell, mr grammar teacher.

straw man: Excuse me, Jimmy. Did I make a grammatical error?

None that I realized; I was alluding to your disagreement with secmo that approx. 3 of 4 Hispanics supported gun control, your opinion one that an educated fool might have, since it appears true enough.
I bet you knew it and are just blowing smoke to save face & trying to insinuate I was amiss of something.

[Straw Man]

48. Nice cherry-picking, Jimbo.

You gleaned the few positive notes from an article that concludes this way:

“The big story is that how we measure humans is undergoing fantastic changes,” Groves says. “We’re in the middle of the revolution.” Will that revolution be the death of pollsters? Survey says: too close to call.

But you keep putting your faith in the latter-day readers of chicken entrails. Whatever floats your ideological boat.

[jimmy the one]

71. entrail auspices

straw man: .. you keep putting your faith in the latter-day readers of chicken entrails. Whatever floats your ideological boat.

Utterly pathetic straw man; to contrast modern scientific probability with dark age superstitions, only in order to save your egg face, & not have to admit your error that Hispanics did not support gun control by nearly a 3 to 1 margin.

Yes, I generally will put faith in the results of reputable polls such as pew. The two pew polls corroborate each other. There is ample reason to believe the polls to be accurate within moe, yet what does this narcissistic giant ego do to defend himself? argues the absurd that the polls are a latter day reading of chicken entrails.

straw man still can't face it that he's WRONG on this: There's no fool ...... like an educated fool. Hispanics favor gun control by a factor of 3 to 1? On what planet?

[Straw Man]

73. Polls don't tell us what people really think ...

... any more than looking in the mirror tells you what you really look like.

The two pew polls corroborate each other.

Of course they do, Jimmy. Of course they do.

There is ample reason to believe the polls to be accurate within moe, yet what does this narcissistic giant ego do to defend himself? argues the absurd that the polls are a latter day reading of chicken entrails.

Ah, there's that pesky word "believe" again. Believe what you want, Jimmy. I don't "believe" in the accuracy of polls. The constant, "Yes, but we've got it fixed now" in response to all criticism of methodology just reveals the fundamental misconception behind the entire enterprise: that you can get an accurate and meaningful picture of the opinions of the populace by having strangers ask people questions.

"Narcissistic giant ego"? Why? Because I have the temerity to disagree with you and with Pew? Puh-leeze ...