2nd Amendment; Why it's so important.

[Kleinzeit]

I'm wondering how universally applicable is the "guard against tyrannous government" justification of 2A. Meaning: is this logic attributable in part merely to the peculiarities of the American disposition, to the unique circumstances of America's creation, and to the traditions that have followed from this? Or is the argument intended as a universal principle? (So far, it has been being defended as if it were.)

So here's what I'm thinking: There are many people in other countries who see the USA as a tyrannical power or as one which is capable of becoming tyrannous. Some of those people believe that it is necessary for them to arm themselves as a check against the possibility of this happening. When they see the USA attempting to disarm nations or to limit their capacity to arm themselves, they see this as a confirmation of tyranny, as a tyrannous attempt to create the conditions under which the USA can become yet more tyrannous.

It could be argued that the USA simply isn't being tyrannous and that these people have got it all wrong. But the USA, it could be countered, has no more right to make that determination on behalf of other nations than the US government has to make it on behalf of the American populace.

I'm not trying to be facetious. Part of the reason I ask is that other nations do watch this 2A debate and do ask themselves whether the USA can really walk the walk. Whether we intend it or not, 2A has implications that go far beyond our shores.

 

[Webleymkv]

Originally posted by Tennessee Gentleman

The 'well-regulated' militia has been expressly held to have nothing at all to do with either a citizens' militia or the 'unorganized militia': U.S. v. Warin, 530 F. 2d. 103 (6th Circuit,1976) and U.S. v. Oakes, 564 F. 2d 384 (10th Circuit,1977).

The decision of the court in both cases was predicated upon the notion that the Second Amendment only guarantees the collective right of the States to raise a militia. That notion was dispelled in D.C. v. Heller when SCOTUS declared the Second Amendment to be an individual right. Thusly, if the Second Amendment was set in order to guarantee the ability to arm the militia so that it may protect the country, and it also guarantees an individual right according to SCOTUS in the Heller opinion, it would logically follow that the individual, regardless of his membership to the Organized Militia according to the Heller opinion, is indeed considered to be a member of the militia. Likewise, SCOTUS stated the following in their opinion in U.S. v Miller:

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 forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

As the federal govenrment still retains the authority to call upon the Unorganized Militia to defend the country through military conscription, it would seem that members of the Unorganized Militia are still members of the Militia as a whole.

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webleymkv
Certainly our experience in Vietnam and our current experiences in the Middle East demonstrate that even the best military will face great difficulty when they attempt to control a populace that is armed and unwilling to comply with the wishes of the force attempting to control them, even when that populace posesses inferior equipment and is not as well organized.

First of all, we haven't had that great a difficulty in Iraq and the insurgency is pretty much defeated in spite of what the newspapers might say.

If we have not had significant difficulty, why do we remain engaged there for nearly six years now? For the majority of that time, the regular Iraqi army has not been our opponent as Hussein's government was toppled fairly early on. Likewise, the formal military of no other nation has stepped into the fray to oppose us. Likewise, the Taliban is no longer the formal government of Afghanistan and the regular Afghan Army is our ally. Yet we remain unable to stabilize the country partly because a large segment of the population, though their arms and organization are inferior to our own, opposes us.

Originally posted by Tennessee Gentleman

Another gun culture legend is that in Vietnam we were dealing with poorly armed, organized and trained adversaries. Just not true. North Vietnam was supported strongly by the Soviet Union and China. They were well armed with modern weaponry, had tanks and an Air Force. We still defeated them militarily at every turn but waged a war with no real strategy and so gave up politically later on. They were not merely a group of people with guns.

So if the NVA was not difficult to defeat, why did we lose the war? The answer of course is that a large segement of the South Vietnamese population (the VC) did not support the corrupt government that we were attempting to prop up. Thusly, the VC, whose equipment and organization was inferior to our own, was able to cause us great difficulty in Vietnam. It is generally accepted by historians that a large component to our difficulties in Vietnam came from the inability to distinguish between the VC and friendly civillians, thusly rendering us unable to quell them.

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webleymkv
Yes, by legal definition it is. While it may have been modified from it's original form, it is still there.

It is also against the law in Tennessee to swim a horse across a river. You are taking a 100 plus year old law and twisting it around to suit your argument.

The age of a law has nothing to do with it's validity or purpose. Many very important laws date back to the founding of our country, yet their age has no bearing on their validity.

Quote:
Originally Posted by Webleymkv
well I guess I have a bit more faith in the Amercian People than you do.

I would argue the reverse. I have faith in our democracy which is the body of the American People. These Dr. Strangelove scenarios that many post about and cling to are really an insult to our citizenry and I would urge you to disregard such tripe. I don't think we are ever going to descend into the type of madness you might fear that would require us to revert to the law of the jungle with guns. I have more faith in the American People than that and you should too.

So was the founders lack of faith in democratic institutions in and of themselves, which caused them to include the Second Amendment into the constitution, insulting tripe as well? You have repeatedly stated that the founders feared a standing army, but if the oath of service and democratic institutions in and of themselves are sufficient to prevent military tyranny, why did the founders fear the large standing army? Remember, checks and balances were outlined in the body of the Constitution (which was ratified simultatneously with the Second Amendment) so it cannot be argued that such institutions evolved later. Likewise, the Militia Act of 1792, which you state attempted to negate the need for a large standing army, was passed after the ratification of the Constitution and its Separation of Powers. Thusly, it must be concluded that in spite of democratic institutions, the founders retained their fear of a large standing army. While their fear has yet to be realized (though it is not impossible that it might be), that does not change the purpose for their inclusion of the Second Amendment.

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webelymkv
The problem here is that, whether you acknowledge it or not, the militia does still exist. While it's structure may have changed, that does not necessarily change it's function or purpose.

But you see Webley it's function and purpose was assumed by another institution, namely the US Military. The republican ideal of a citizen militia was abandoned two decades after the COTUS was ratified. The militia has no more relevence today than privateers or Letters of Marque. Look here:http://query.nytimes.com/gst/abstrac...649D946397D6CF. This was in 1902 and even the people living then knew it was gone!

Function, perhaps but not its purpose. An editorial in the New York Times proves nothing as newspapers, that one included, have quite often published editorials in favor of measures that are unconstitutional.

Also, the militia, the Unorganized Militia included, was not abandonded as to do so would negate the government's ability to institute a draft. You see, COTUS does not grant the government the ability to conscript the people into the military; it only grants the ability to call forth the militia. By redefining the people, or at least a large segment of them, as the militia, the government is able to legally conscript that segment into the military. The government is therefore unable to completely abandon the concept of the militia without also abandoning its legal authority to conscript a segment of the people into the military should that be needed. Since the people have been conscripted into the military multiple times within the last century, it is impossible that the institution of the Militia, the Unorganized Militia included, was abandoned over 100 years ago. Thusly, because the people are still legally considered to be the militia and because the Miller decision specifically defined the purpose of the Second Amendment as ensuring that the Militia can be equipped to defend the country, it must be concluded that, legally at least, the Second Amendment's purpose is to guarantee that the people are able to be equipped in order to defend the country. While you may argue that the militia is not the same institution that it was at the time the Constitution was drafted, the fact remains that by legal definition the Unorganized Militia remains a part of the Militia. Because the Unorganized Militia, and thusly the people, remain a part of the Militia and because the purpose of the Second Amendment, as defined by SCOTUS, is to equip the militia so that it may defend the country, deductive reasoning dictates the the purpose of the Second Amendment is to equip the people to defend the country.

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webleymkv
Because hindsight is always 20/20, it is well within the realm of possibility that the military could carry out an illegal and unconstitutional order that, at the time, may appear to be both legal and constitutional. Such was certainly the case with suspension of Habeus Corpus and Japanese Internment and there is no guarantee that such an act could not be carried out against another branch of the government or the majority of the people rather than a singel small minority (Japanese Americans) or location (New York City).

I really think it is clear that to equate something like the Japanese Internment during WWII, a move supported by all three branches of government as well as most Americans at the time,to a far out scenario that a clever President could turn the US Military against the rest of the nation and it's own government is not only far fetched but a little wild. The leap of logic is unsustainable.

No, the leap of logic is not unsustainable. History shows multiple examples of Persuasive leaders convincing the military to help them seize power in spite of legal safeguards that were in place to prevent such an occurance. Julius Caesar used the military force that he commanded to seize power from the Roman senate in spite of the fact that Roman law forbade a dictatorship outside of times of crisis (which had passed). Likewise, Hitler used the SS to eliminate his potential enemies in the SA during the Night of the Long Knives in spite of German law mandating due process of law. To say that laws forbiding such an occurence and the morality of the military in and of themselves are sufficient to prevent a miitary coup is a notion that is not supported by history.

Originally posted by Tennessee Gentleman

I think your quote here:
Quote:
While I concede that the scenario I presented was highly unlikely, improbability does not equate with impossibility.

could also be applied to space alien invasion or zombie war. I guess nothing is impossible. Should we prepare for those outcomes as well?

This is nothing more than a strawman argument. To say that concern over a situtation that could be perpetrated by a large and powerful military, which we certainly posess, which posesses inherent human faults, which soldiers certainly do, equates with concern over defence from things which cannot be proven to even exist is a weak attempt to discredit a legitimate argument.

Originally posted by Tenessee Gentleman

The "Unorganized militia" in modern terms is more a draft-dodging loophole, not a Rambo clause.

Herein lies the crux of our disagreement. I think this statement as well as the picture that you posted in post #40 demonstrates that you subscibe to what I refer to the sheep/sheepdog/shepherd mentality. Basically, it seems that you view the police and military (the sheepdogs) as the only ones with a duty, or right for that matter, to use arms in order to defend the country and thusly the people. Similarly, it seems as though you view the government (the shepherd) as bearing sole duty, as well as right, to command both the police/military and the people in defense of the nation because it alone is able to determine what is best for the country with regards to defense (the flock if you will). Finally, it would seem that you view the people (the sheep) has having only one duty and right with regard to use of arms in defense: the defense of their individual selves. It seems as though you view anyone, outside of the police or military, who states that they wish to be armed in order to defend liberty as some sort of misguided redneck that wishes to play "Rambo" and is some sort of "draft-dodger" because they refuse to join the ranks of the military or police. It appears as though you believe that the "sheepdogs" are the only ones who have a right to use arms in order to defend the country and that the "sheep" should stand aside and concern themselves only with their own well being and have the right to use their arms to that end and that end only.

I reject this mentality and instead subscribe to what could be called the "Dog-pack" philosopy. While individual members of society are selected to lead and bear specific duties that ensure the well being of the "pack," each and every member of society bears both the right and duty to ensure not only his own well being, but that of the "pack" as well. This duty extends to the use of arms should that be necessary.

 

[Webleymkv]

Originally posted by Kleinzeit

I'm wondering how universally applicable is the "guard against tyrannous government" justification of 2A. Meaning: is this logic attributable in part merely to the peculiarities of the American disposition, to the unique circumstances of America's creation, and to the traditions that have followed from this? Or is the argument intended as a universal principle? (So far, it has been being defended as if it were.)

So here's what I'm thinking: There are many people in other countries who see the USA as a tyrannical power or as one which is capable of becoming tyrannous. Some of those people believe that it is necessary for them to arm themselves as a check against the possibility of this happening. When they see the USA attempting to disarm nations or to limit their capacity to arm themselves, they see this as a confirmation of tyranny, as a tyrannous attempt to create the conditions under which the USA can become yet more tyrannous.

It could be argued that the USA simply isn't being tyrannous and that these people have got it all wrong. But the USA, it could be countered, has no more right to make that determination on behalf of other nations than the US government has to make it on behalf of the American populace.

I'm not trying to be facetious. Part of the reason I ask is that other nations do watch this 2A debate and do ask themselves whether the USA can really walk the walk. Whether we intend it or not, 2A has implications that go far beyond our shores.

That is actually a very valid point. However, discussion of that point would most likely devolve into an examination of both changes to the organization of our armed forces and foreign policy, which I feel is best discussed via Private Message (which I would be more that happy to do should you wish to) as it would more than likely be off-topic for this thread and the forum as a whole.

 

[Al Norris]

Just to put a bit of scholarly history in perspective:

"And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its bur[d]ens, 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." Justice Joseph Story, Commentaries on the Constitution of the United States (1833)
-----


"The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.

"The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.

"What Arms may be kept. -- The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited." Thomas Cooley, General Principles of Constitutional Law (1880)
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"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed; where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once." Silveira v. Lockyer, 328 F.3d 567, 570 (Kozinski, J., dissenting).
-----


Two rather distinguished scholars and a current Circuit Judge. All espousing what the purpose of the amendment was and is for, from basically the beginning, middle and current history of the US.

Also, please remember that the Heller decision did not in any shape or form, address the prefatory clause. The courts have simply refused to opine on this matter, other than a brief sentence from the Miller decision.

Nor do I believe that the Court will ever pass judgment on the prefatory clause within our lifetimes. The reasons for avoiding the clause are purely political; self-defensive and self-serving. No government older than a few decades will ever admit that its citizens have the right and duty as was written into the DOI.

Like it or not, the U.S. Constitution was written with that in mind.

 

[Tennessee Gentleman]

The decision of the court in both cases was predicated upon the notion that the Second Amendment only guarantees the collective right of the States to raise a militia.

I think you should read the facts of the cases cited. Heller did not reverse them and the quote you provide is dicta.

Now, the facts of the first case would be familiar to you based on some of our previous debates about NFA weapons. A man possessed an unregistered NFA weapon and claimed that he was able to have it because he was a "member of the militia" and therefore based on Miller had a constitutional right to have it. He lost.

Were say, you for instance, try to own an unregistered NFA weapon and upon arrest by the BATFE claim that your "status" in the "unorganized militia" gave you a constitutional right to have it, do you think Heller would save you from jail? I like how the court in Warin referred to the militia as "the sedentary militia" Heller did not rule on the militia question rather decoupled correctly the right to keep and bear arms from service in the militia.

it would seem that members of the Unorganized Militia are still members of the Militia as a whole.

With no rights, duties or responsibilities. In other words meaningless and without purpose.

If we have not had significant difficulty, why do we remain engaged there for nearly six years now?

Good question and makes my point perfectly. The reason is because Iraq has no democratic institutions to guarantee the rights of it citizens and as a result has a very weak government that we have chosen for strategic reasons (not that I agree with them!) to assist until Iraq can police itself. BTW, plenty of arms there and yet still no freedom and safety. Beginning to see a pattern Webley? No political safeguards no peace in spite of a proliferation of firearms. The difficulty in Iraq is not

because a large segment of the population, though their arms and organization are inferior to our own, opposes us.

but because (as I saw first hand in Somalia) you cannot build democratic society overnight with no foundations to support to build them from. The problem is political not military.

So if the NVA was not difficult to defeat, why did we lose the war?

In short, because the American People and thus their government lost the will to continue the fight because no viable strategy was in place to win it. Once again, the problem was political and had nothing to do with the effectiveness of the VC or the NVA (which were really the same).

An important side note here Webley. I would recommend some more reading on guerrilla warfare and perhaps watch a show on the Military Channel or two. Successfuul insurgencies are not waged by disorganized, poorly armed partisans as the gun culture may lead you to believe. It requires extensive training, leadership, planning, help from an outside source or country and luck to win such a war. The real lesson here is that a mob with guns tend to do more harm than good and when faced by a trained force they normally are slaughtered. I would leave the John Ross books alone.

The age of a law has nothing to do with it's validity or purpose.

In this case it does because the idea was outmoded from the beginning and virtually abandoned within two decades of it's ratification.

Remember, checks and balances were outlined in the body of the Constitution (which was ratified simultaneously with the Second Amendment) so it cannot be argued that such institutions evolved later.

Actually, those institutions did evolve. Remember Marbury vs. Madison?
How about in 1962 with "one man one vote" in Baker vs Carr These institutions and branches were brand new and the Founders couldn't be sure they would work as this was a government never before tried in the world. The reason that the Dr. Strangelove scenarios today are insulting is because we know better after 230 years which the Founders could not know. I have read writings from some of them where they expressed grave doubts about howit would all turn out. They were far from sure. As to the military oaths, no Army before ours answered to the people and the Founders fear was that a large standing Army might pose a threat to their liberty. We have a standing Army today and know better.

You see Webley, things change and evolve as we learn. That's why the COTUS was amended 27 times. As I posted a quote in post #80 the Founders had a republican ideal (which btw did not include an unorganized militia) that every able citizen would be armed and by obligation stand up and defend when necessary the state. This was not an option but an obligation. This ideal did take care of the fear of a standing army in that the Founders believed that if the defense of the nation lay mostly in the hands of state militias that no standing army could be a threat to the liberty of all. Al Norris in his post above lays out some good quotes to illustrate this republican ideal. I agree that the COUTUS was written with that ideal in mind. However, the "unorganized militia" that you keep hangin your hat on from 1903 was NOT that ideal.
Nevertheless, it didn't work!

Here:

By the time Jefferson left office as governor of Virginia, the ineffectiveness of the militia had left him deeply disillusioned. Painfully humiliated by – and criticized for – the rout of the Virginia militia that forced him to abandon Monticello just hours ahead of British raiders, he had long been frustrated by the lack of commitment to martial obligations in the state. He had witnessed the difficulties of raising effective forces since his appointment to the Virginia Convention’s militia committee THOMAS JEFFERSON’S ARMED CITIZENRY AND THE REPUBLICAN MILITIA Albany Law Review David Thomas Konig

So, as I posted earlier the grand idea of the citizen republican militia didn't work (George Washington didn't like them either) and so the Militia of the 2A went away over time and today we have a large standing army. Jefferson wouldn't like it if he saw it today at first. But once he understood how the world had changed he would see the need.

An editorial in the New York Times proves nothing as newspapers, that one included, have quite often published editorials in favor of measures that are unconstitutional.

OK, how about Teddy Roosevelt who at his first State of the Union declared the militia law to be "obsolete and worthless". My point is that even 100 years ago the militia was a dead letter and it is even deader today.

You see, COTUS does not grant the government the ability to conscript the people into the military; it only grants the ability to call forth the militia.

The SCOTUS says otherwise. See Arver v. United States in which the court says:

The power ... was clearly an unmixed federal power dealing with the subject from the sphere of the authority given to Congress to raise armies and not from the sphere of the right to deal with the militia as such, whether organized or unorganized.

The draft authority comes from Article One Section Eight. Congress has the right to raise armies. The militia of the 2A referred to the states. When we are called to active duty by a draft by congressional law it is through Article One Section Eight and not the 1903 Militia Act.

To say that laws forbiding such an occurence and the morality of the military in and of themselves are sufficient to prevent a miitary coup is a notion that is not supported by history.

No other nation in the history you mention has had our government or our democratic institutions either. History is fine but you need to consider it in context before you draw too many modern day proofs from it.

To say that concern over a situtation that could be perpetrated by a large and powerful military, which we certainly posess, which posesses inherent human faults, which soldiers certainly do, equates with concern over defence from things which cannot be proven to even exist is a weak attempt to discredit a legitimate argument.

Human weakness is not the issue or the problem. It is power and who has it and can they be checked. In our system government no one has the type of power to do what you have suggested regardless of the "human frailty of soldiers". I really think Webley you don't understand the military and how it functions either and that is why I have warned you against believing the Dr. Strangelove scenarios, they aren't real and are as plausible as martians. Checks and balances acutally assume that power corrupts (human frailty) and that no one person or group should have too much of it.

Thusly, because the people are still legally considered to be the militia and because the Miller decision specifically defined the purpose of the Second Amendment as ensuring that the Militia can be equipped to defend the country, it must be concluded that, legally at least, the Second Amendment's purpose is to guarantee that the people are able to be equipped in order to defend the country.

I don't think Miller says any such thing as you conclude. I think you should reread it

that you subscibe to what I refer to the sheep/sheepdog/shepherd mentality.

How wrong you are my friend. I despise the sheep/wolf/dog/shepard crap I read posted about. To my mind it is nothing more than romantic hollywood superhero garbage. What I believe in is first; our democratic institutions, a free press, free elections, an independent judiaciary and respect for the rule of law protect us against tyranny. No dogs or sheep involved. I secondly believe that our professional military protects us from enemies foreign and domestic and our police generally protect us from criminality but that we as citizens have a personal right to self defense and that means the keeping and bearing of arms.

I further believe there is no more militia and the people you describe "who wish to be armed in order to "defend liberty" and refuse to join the ranks of the military or police" otherwise known as the modern militia, are nothing more than unauthorized paramilitary organizations who answer to no one and who could be an even greater real danger than any stnding army could ever be. I am beginning to think that your belief that the militia still exists stems from your support of these extralegal entities and I would warn you again about the dangers of:

They keep nobody free and might be dangerous to your liberties if you got on the wrong side of them.

 

[Webleymkv]

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webleymkv
The decision of the court in both cases was predicated upon the notion that the Second Amendment only guarantees the collective right of the States to raise a militia.

I think you should read the facts of the cases cited. Heller did not reverse them and the quote you provide is dicta.

http://www.guncite.com/court/fed/530f2d103.html

Within a few years after Miller v. United States was announced the First Circuit dealt with arguments similar to those made by Warin in the present case. In Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied sub nom., Velazquez v. United States, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943), the court held that the Supreme Court did not intend to formulate a general rule in Miller, but merely dealt with the facts of that case. The court of appeals noted the development of new weaponry during the early years of World War II and concluded that it was not the intention of the Supreme Court to hold that the Second Amendment prohibits Congress from regulating any weapons except antiques "such as a flintlock musket or a matchlock harquebus." 131 F.2d at 922. If the logical extension of the defendant's argument for the holding of Miller was inconceivable in 1942, it is completely irrational in this time of nuclear weapons.

Agreeing as we do with the conclusion in Cases v. United States, supra, that the Supreme Court did not lay down a general rule in Miller, we consider the present case on its own facts and in light of applicable authoritative decisions. It is clear that the Second Amendment guarantees a collective rather than an individual right. In Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971), this court held, in a case challenging the constitutionality of 18 U.S.C. App. § 1202(a)(1):

Since the Second Amendment right "to keep and bear Arms" applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.

The whole argument of D.C. v Heller was whether the Second Amendment guarantees an individual or collective right. The court affirmed that it is indeed an individual right which would seem to be in contradiction to the bolded section.

http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/us_v_oakes.txt

The second constitutional argument that appellant advances is
that the prosecution here violated his right to bear arms guaran-
teed by the second amendment. [footnote 1] Defendant presents a
long historical analysis of the amendment's background and purpose
from which he concludes that every citizen has the absolute right
to keep arms. This broad conclusion has long been rejected. United
States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206.
However, as in his search and seizure argument, appellant attempts
to avoid the seemingly dispositive nature of the case law by
arguing a factual distinction. He contends that, even if the
second amendment is construed to guarantee the right to bear arms
only to an organized militia, he comes within the scope of the
amendment. He points out that under Kans. Const. art. VIII,
section 1, the state militia includes all "able-bodied male
citizens between the ages of twenty-one and forty-five years . .
.." He further points out that he is a member of "Posse Comita-
tus, a militia-type organization registered with the state of
Kansas."

The purpose of the second amendment as stated by the Supreme
Court in United States v. Miller, supra at 178, 59 S.Ct. 816, was
to preserve the effectiveness and assure the continuation of the
state militia. The Court stated that the amendment must be
interpreted and applied with that purpose in view. Id. To apply
the amendment so as to guarantee appellant's right to keep an
unregistered firearm which has not been shown to have any
connection to the militia, merely because he is technically a
member of the Kansas militia, would be unjustifiable in terms of
either logic or policy. This lack of justification is even more
apparent when applied to appellant's membership in "Posse
Comitatus," an apparently nongovernmental organization. We
conclude, therefore, that this prosecution did not violate the
second amendment.

The court, while conceding that the defendant is indeed a member of the militia, upheld his conviction because the firearm in question showed no connection to the militia thusly not meeting the Miller definition of "preservation or efficiency of a well regulated militia." Thusly, the decision of the court was based on the type of firearm the defendant posessed rather than his membership status in the militia.

Originally posted by Tennessee Gentleman

Now, the facts of the first case would be familiar to you based on some of our previous debates about NFA weapons. A man possessed an unregistered NFA weapon and claimed that he was able to have it because he was a "member of the militia" and therefore based on Miller had a constitutional right to have it. He lost.

The court based its ruling against the defendant on the notion that the Second Amendment does not guarantee and individual right. That notion was overturned by Heller.

Originally posted by Tennessee Gentleman

Were say, you for instance, try to own an unregistered NFA weapon and upon arrest by the BATFE claim that your "status" in the "unorganized militia" gave you a constitutional right to have it, do you think Heller would save you from jail? I like how the court in Warin referred to the militia as "the sedentary militia" Heller did not rule on the militia question rather decoupled correctly the right to keep and bear arms from service in the militia.

The discussion at hand has nothing to do with NFA weapons. I have not contended that Heller overturned the Miller decision, it simply dispelled the notion that the Second Amendment only afforded protection at the federal level and that states and cities were not bound by it. Miller did not deny that the individual was a member of the militia, but rather ruled that firearms which were not common or suitable for militia use are not protected by the Second Amendment. However, as Miller did state that the purpose for the Second Amendment was to ensure the effectiveness of the Militia while Heller states that the protection of 2A extends to the individual rather than the collective. So, if the amendment's purpose is the arming of the militia, and it's protection extends to the individual, it is logical to conclude that the purpose, and therefore membership in the militia, also extends to the individual. I find it illogical to presume that the purpose and protection afforded by the Second Amendment are somehow unconnected, and SCOTUS does not refute that. Therefore, the notion that the purpose of the amendment changed within 20 years after it's adoption does not hold as SCOTUS refuted that in the 20th Century.

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webleymkv
it would seem that members of the Unorganized Militia are still members of the Militia as a whole.

With no rights, duties or responsibilities. In other words meaningless and without purpose.

But still members nonetheless. Purpose is not predicated on usefulness, and usefulness with regards to the current debate is in and of itself debatable.

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webleymkv
If we have not had significant difficulty, why do we remain engaged there for nearly six years now?

Good question and makes my point perfectly. The reason is because Iraq has no democratic institutions to guarantee the rights of it citizens and as a result has a very weak government that we have chosen for strategic reasons (not that I agree with them!) to assist until Iraq can police itself. BTW, plenty of arms there and yet still no freedom and safety. Beginning to see a pattern Webley? No political safeguards no peace in spite of a proliferation of firearms.

I have never argued that arms in and of themselves guarantee liberty. However, my point that an inferiorly armed and organized population can cause great difficulty for a military with superior arms and organization still stands.

Originally posted by Tennessee Gentleman

The difficulty in Iraq is not
Quote:
because a large segment of the population, though their arms and organization are inferior to our own, opposes us.

but because (as I saw first hand in Somalia) you cannot build democratic society overnight with no foundations to support to build them from. The problem is political not military.

My point that superiority of arms and organization does not guarantee that a population can be controlled. As you point out, no amount of military might can easily overcome an armed population without the democratic institutions that we posess. The Second Amendment ensures that a government, be it foreign or domestic, cannot control the population of our country without the democratic institutions you speak of.

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webleymkv
So if the NVA was not difficult to defeat, why did we lose the war?

In short, because the American People and thus their government lost the will to continue the fight because no viable strategy was in place to win it. Once again, the problem was political and had nothing to do with the effectiveness of the VC or the NVA (which were really the same).

And we lost the political will to do so partly because we realized that the country's populace did not sufficiently support our efforts. The populace did not support us because the government that we were attempting to prop up did not share our democratic institutions. My point still stands that an armed populace can cause great difficulty for even the best military if they do not support rule by that military.

Originally posted by Tennessee Gentleman

An important side note here Webley. I would recommend some more reading on guerrilla warfare and perhaps watch a show on the Military Channel or two. Successfuul insurgencies are not waged by disorganized, poorly armed partisans as the gun culture may lead you to believe. It requires extensive training, leadership, planning, help from an outside source or country and luck to win such a war. The real lesson here is that a mob with guns tend to do more harm than good and when faced by a trained force they normally are slaughtered. I would leave the John Ross books alone.

I never said that insurgencies could be successfully carried out without organization of any kind, but rather that they could overcome superior organization and armament. Certainly the U.S. military was in posession of superior arms and organization.

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webleymkv
The age of a law has nothing to do with it's validity or purpose.

In this case it does because the idea was outmoded from the beginning and virtually abandoned within two decades of it's ratification.

You have yet to prove that it was abandoned.

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webleymkv
Remember, checks and balances were outlined in the body of the Constitution (which was ratified simultaneously with the Second Amendment) so it cannot be argued that such institutions evolved later.

Actually, those institutions did evolve. Remember Marbury vs. Madison?
How about in 1962 with "one man one vote" in Baker vs Carr These institutions and branches were brand new and the Founders couldn't be sure they would work as this was a government never before tried in the world. The reason that the Dr. Strangelove scenarios today are insulting is because we know better after 230 years which the Founders could not know. I have read writings from some of them where they expressed grave doubts about howit would all turn out. They were far from sure. As to the military oaths, no Army before ours answered to the people and the Founders fear was that a large standing Army might pose a threat to their liberty. We have a standing Army today and know better.

The court's ability to strike down law was not formed through Marbury v Madison rather this was the first time it was exercised. The court's authority to do so is drawn from the Constitution itself rather than a seizure of such power through a single case. Likewise, the court did nothing more than oblige the Tennessee State Legislature to abide by the State Constitution in Baker v Carr, the authority of the court to oblige the other branches of the Government to do so is also outlined in COTUS. So, the court did not derive new power from either case, they simply chose to exercise it for the first time.

Also, simply because something has worked for an extended period of time does not guarantee that it will continue to do so as neither you, I, nor anyone else knows what the future holds. History is ripe with systems of government that endured much longer than our own which ultimately failed. There is no way that you, the founders, or I can know whether or not our system of government will continue to work so well. Our system of government is not an experiment that was carried out successfully, but rather a continuing experiment that has thus far been successful.

 

[Webleymkv]

Originally posted by Tennessee Gentleman

You see Webley, things change and evolve as we learn. That's why the COTUS was amended 27 times. As I posted a quote in post #80 the Founders had a republican ideal (which btw did not include an unorganized militia) that every able citizen would be armed and by obligation stand up and defend when necessary the state.

The people still bear obligation to stand up and defend the state and they have been called upon to do so 4 times in the last century alone through conscription into the military. Also, while the Constitution had indeed been modified 27 times through amendments, none of those other 26 removed or modified the 2nd Amendment in any way.

Originally posted by Tennessee Gentleman

This was not an option but an obligation. This ideal did take care of the fear of a standing army in that the Founders believed that if the defense of the nation lay mostly in the hands of state militias that no standing army could be a threat to the liberty of all.

Last time I checked, the draft was not optional. As I have already demonstrated, armed people can and have demonstrated a significant obstacle to rule by force. I see no evidence that should a military, be it foreign or domestic, attempt to overpower the people of our country that the armed citizens would not give them great difficulty. Therefore, the founders were right, a standing army such as we have today cannot be a threat to liberty so long as we have armed, liberty-loving people.

Originally posted by Tennessee Gentleman

Al Norris in his post above lays out some good quotes to illustrate this republican ideal. I agree that the COUTUS was written with that ideal in mind. However, the "unorganized militia" that you keep hangin your hat on from 1903 was NOT that ideal.
Nevertheless, it didn't work!

Your whole argument hinges upon the notion that the armed citizenry, through compromise to practicality, is now so ineffective that they are rendered a moot point. However, you forget that the original republican ideal that was outlined in the Militia Act of 1792 was in and of itself a compromise. Hamilton admitted in the Federalist Papers that a militia regulated in accordance with specifications almost identical to those of the Militia Act of 1792 would not be as effective in defense of the country as a standing army (which was not prohibited by the constitution), yet he remained confident that in spite of such compromise the militia could nonetheless remain effective enough to serve its purpose. I do not see how further compromise (and not really all that great a compromise as the required duties of the militia under the 1792 Militia Act were pretty rudimentary to begin with) necessarily renders the militia ineffective and thusly useless. Remember, prior to the Militia Act of 1903, the Volunteer Militia and Conscripted Militia were commonly recognized as different institution although both served the same basic purpose and were subject to the authority of their individual state governments and the federal government in times of crisis. The 1903 Act simply removed the inconvenient requirements of the Conscripted Militia (which were already rather rudimentary), and legally redefined the Volunteer and Conscripted Militias as the Organized and Unorganized Militias respectively. The basic duty of defense of the the country remained unchanged as the Unorganized Militia may still be called upon through conscription into the regualr military.

Originally posted by Tennessee Gentleman

Quote:
By the time Jefferson left office as governor of Virginia, the ineffectiveness of the militia had left him deeply disillusioned. Painfully humiliated by – and criticized for – the rout of the Virginia militia that forced him to abandon Monticello just hours ahead of British raiders, he had long been frustrated by the lack of commitment to martial obligations in the state. He had witnessed the difficulties of raising effective forces since his appointment to the Virginia Convention’s militia committee THOMAS JEFFERSON’S ARMED CITIZENRY AND THE REPUBLICAN MILITIA Albany Law Review David Thomas Konig

So, as I posted earlier the grand idea of the citizen republican militia didn't work (George Washington didn't like them either) and so the Militia of the 2A went away over time and today we have a large standing army. Jefferson wouldn't like it if he saw it today at first. But once he understood how the world had changed he would see the need.

The basic principle of the citizen republican militia, while some of the details have been modified, did work and is still in effect as I have already demonstrated.

Quote:
Originally Posted by Webleymkv
An editorial in the New York Times proves nothing as newspapers, that one included, have quite often published editorials in favor of measures that are unconstitutional.

OK, how about Teddy Roosevelt who at his first State of the Union declared the militia law to be "obsolete and worthless". My point is that even 100 years ago the militia was a dead letter and it is even deader today.

First of all, Presidents in and of themselves are not necessarily Constitutional scholars and have supported unconstitutional measures on several occasions in the past. Secondly, Roosevelt declared the Militia law not the militia itself to be "obsolete and worthless." The law was subesquently changed with the Militia Act of 1903, yet the most basic duty of the militia remained unchanged.

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webelymkv
You see, COTUS does not grant the government the ability to conscript the people into the military; it only grants the ability to call forth the militia.

The SCOTUS says otherwise. See Arver v. United States in which the court says:
Quote:
The power ... was clearly an unmixed federal power dealing with the subject from the sphere of the authority given to Congress to raise armies and not from the sphere of the right to deal with the militia as such, whether organized or unorganized.

The draft authority comes from Article One Section Eight. Congress has the right to raise armies. The militia of the 2A referred to the states. When we are called to active duty by a draft by congressional law it is through Article One Section Eight and not the 1903 Militia Act.

Article One Section Eight grants congress the authority to raise an army. British law, prior to the Revolution, did not grant the government the power to conscript British citizens into the army, and the British government did not do so (though they did gain volunteers often through trickery or outright deception) so it is illogical to think that the founders did not know that it was possible to raise an army through means other than conscription. As the Constitution does grant the government the power to call forth the militia, defining an entire segment of the population gives the government the power to call upon that segment and thus makes conscription of that segment legal. Arver v Unitied States makes clear that the power of congress to call forth the militia, and thusly the entire segment of the population defined as the militia, does not hinge upon that segments inclusion in the Organized Militia. Certainly, congress does not have the power to conscript members of the population who are not defined as members of the militia, such as women and men who are either too young or too old, into the military.

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webleymkv
To say that concern over a situtation that could be perpetrated by a large and powerful military, which we certainly posess, which posesses inherent human faults, which soldiers certainly do, equates with concern over defence from things which cannot be proven to even exist is a weak attempt to discredit a legitimate argument.

Human weakness is not the issue or the problem. It is power and who has it and can they be checked. In our system government no one has the type of power to do what you have suggested regardless of the "human frailty of soldiers". I really think Webley you don't understand the military and how it functions either and that is why I have warned you against believing the Dr. Strangelove scenarios, they aren't real and are as plausible as martians. Checks and balances acutally assume that power corrupts (human frailty) and that no one person or group should have too much of it.

It is not that I misunderstand the military, it is that I realize that power can be seized through means that are both illegal and immoral. The founders understood this and thusly feared a standing army without an armed citizenry to check its power. To say that an army who cannot be opposed by an armed citizenry would be unable to sieze power is the notion that is as implausible as martians.

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webleymkv
Thusly, because the people are still legally considered to be the militia and because the Miller decision specifically defined the purpose of the Second Amendment as ensuring that the Militia can be equipped to defend the country, it must be concluded that, legally at least, the Second Amendment's purpose is to guarantee that the people are able to be equipped in order to defend the country.

I don't think Miller says any such thing as you conclude. I think you should reread it

I assure you that I have read it several times. Perhaps it is you who should review the Miller decision as well as the other historical documents that I have mentioned.

Originally posted by Tennessee Gentleman

Quote:
Originally Posted by Webleymkv
that you subscibe to what I refer to the sheep/sheepdog/shepherd mentality.

How wrong you are my friend. I despise the sheep/wolf/dog/shepard crap I read posted about. To my mind it is nothing more than romantic hollywood superhero garbage. What I believe in is first

That being the case, I find myself wondering why you display such disdain and fear of the armed citizenry of the country. It would seem as though you equate any mention of armed citizens as defenders of liberty to the stereotypical gun-toting rednecks displayed in your image (which I find offensive as it implies that anyone disagreeing with you is the same as the people in the image).

It is because of this dogmaticism that I grow tired of this debate. It has become clear to me that neither of us will sway the other from his position and thusly the debate becomes pointless. You are indeed an intellegent and skilled debater and thus far we have been able to conduct our argument in a respectable fashion. It would seem though that we are drawing dangerously close to a debate of emotion and pure ideology and such a debate is not one in which I wish to participate (and I doubt that you wish to either). Because of this, I choose to leave the field of debate while it still remains on the high road, and I wish you the best Sir.

 

[Glenn E. Meyer]

An interesting debate and at a high intellectual level! Well done.

Reading about the John Yoo memos - it would seem that the violation of the BOR for expediency was high on his mind. I wondered if he was deterred by Bush's support of the 2nd Amend.

Or am I being a trouble maker here?

 

[Tennessee Gentleman]

Webley,

It was a good run. I enjoyed it. Thank you Sir. We have discussed things before and it was also enjoyable. I think this one was good and well thought out.

Rather than post a lengthy repost (I have some work to do tonight)to numerous points I will close my part of the discussion with Webley on a couple of points.

1) While the militia was a grand republican ideal in the 18th Century and one of the dreams of the Founding Fathers, it soon faded due to the general dislike of military service by the great majority of early American citizens (that even persists today with our All-Volunteer Military) and changed into the professional standing military who serve us today. Though some may argue accurately that a de jure unorganized militia, one unorganized, unarmed, undisciplined, untrained, unsupplied, undeployed, and unwanted as a matter of statute--thoroughly disregarded by Congress, exists in a 100 year old statute today. However, De facto it is clear such a system as our Founding Fathers dreamed of and wrote the 2A partially to protect is a dead letter. I could point out law and court cases to prove that and have done some of that already, however, the most undeniable prove is the mere fact that when you look around in America today you will not see a miltia. Some on TFL will argue that all Americans who own guns are the militia, but that idea flies in the face of any definition one might produce of the militia. Aside from the paramilitary organizations, who call themselves militia and are fading, you won't find them. Like the horse cavalry (still on the statutes) the militia of 1789 was replaced by a modern and professional military.
2) I must confess a bias in that I served in the military for a career and am rather defensive about ideas that I feel attack the integrity of it. Some of my friends who took their oaths to the letter are no longer on this earth because of that fidelity. So, at times I will give voice to hard protests when I read that we must have an "armed citizenry" to protect our liberty against those who have stepped up and submitted to national service because they might be "seduced" to turn against our government and our own people. For sure there are bad apples in every bunch and my service, the US Army has not had a spotless record indeed in its conduct. However, the idea that this service would turn on those through "seduction" it's members have sworn to protect is repugnent to me in the extreme. Others have the right to say such things but I will generally rail against them when they do. BTW I have seen in other countries what "armed citizenrys" can do to their own people and thus when I post a picture as I did in another post it is to warn you that mobs with guns are no friend to freedom.
3) If you want to serve your country with arms, by all means do so. But don't do it in a cheap way. Don't just buy a gun and sit and say "I am in the militia!" Step up to the bar and make the sacrifice, take the oath and serve! That service and sacrifice I say is the real purpose and the heart and soul of the militia that our founders wrote of.

 

[Tennessee Gentleman]

I wondered if he was deterred by Bush's support of the 2nd Amend.

Lets visit him in jail and ask

 

[Socrates]

My issue is why the LEO, mil, etc. are somehow gifted with a different status then the rest of us?

Why, with my Juris Doctrate degree, are people telling me I'm not competent to own, and shoot certain firearms, like machine guns, laws rockets, etc.
Sure, I did these things as a Reserve grunt wantabe.
Including shooting a 105 MM out of an M60 tank.

I'm not much for classes. I think if Bubba wants a machine gun, he should have one. I don't think some ex-mil guy is superior one way or another, to someone like Ross Seyfried, John Linebaugh, Jack Huntington, or myself...

 

[Tennessee Gentleman]

My issue is why the LEO, mil, etc. are somehow gifted with a different status then the rest of us?

Because they have taken the oath to serve and have subordinated their own self interest to serve a greater good. Bubba hasn't done that. It's not because they are superior (maybe more noble) but they are public servants.
Bubba isn't. So they are entrusted with things like nuclear weapons and such.
If Bubba joins up he can have some fun too!

 

[Socrates]

Sorry, but, that is the basic argument that we'll disagree on.
Oaths are like TP, at least with our current Congress, and gang members on the streets, trained by the military.

I don't hold the military in high regard. I find a VERY negative attitude, and, a one strike, and your out situation with the military.

While I have great respect for the folks that actually fought in wars, piece time military is the worst we have to offer...

 

[Tennessee Gentleman]

I don't hold the military in high regard.

Well, they stand on the wall for you too.

 

[Socrates]

NO. They didn't stand in the Pacific Palisades/West Hollywood/ Brentwood when the bad guys where coming up during the Rodney King riots. When the LAPD, and LAFD had pulled out, the people in these areas were on their own. No PD, no national guard, no army.

Private citizens protected, and stopped gangs from invading their homes, stealing their property, and put up barricades.

 

[zukiphile]

Well, they stand on the wall for you too.

NO. They didn't stand .... No PD, no national guard, no army.

I don't think it is necessary to impugn public or military service to note the manner in which this point displays the 2D Am. as part of a network of individual liberties.

It is not the duty of the police, national guard, or any branch of the services to protect you individually. We all benefit inicidentally and in varying degrees from security provided by the state as it sees fit. However, it should not be in the political character of people who consider themselves "free" to any appreciable degree to turn over decisions about personal security or safety to the state entirely.

People who take measures to keep themselves or neighbours safe can be derided as "bubbas", but I will guess that the people in the picture that is relentlessly reproduced here enjoyed a low probability of victimisation while that picture was being taken.

We can't very well complain about people not showing individual responsibility if we remove the means by which they can demonstrate it.

 

[Glenn E. Meyer]

We have had a good run but the last few posts indicates that our intellectual magazines have run dry and we may start to be throwing sticks.

Thus, on the high road and before the low, I think we are done.

I thank TNG, WeblyMKV and Zukiphile for their erudition as the debate continued.

GM