Thanks to Jeff for posting this in an argument/thread I was involved in. His postings, as well as questions and answers have been consildated here.
ANTI:
"First, the first clause, the subject of the sentence speaks of a militia. You may have had an argument, if the last clause and first were reversed."
PRO: I disagree with you here, but will argue your point, then present my own. Many people think that the 2nd Amendment 'militia' is the National Guard. The Bill of Rights was ratified in 1791, the National Guard was not formed until 1903. The National Guard is equipped and under control of the federal government, that is why the Guard can be called up for active duty in foreign conflicts. The 'militia' as intended by the founding fathers are a 'peoples army'. I give you U.S. Code, Title 10, Chapter 13, Section 311:
Sec. 311. Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.
This may be found at:
http://www4.law.cornell.edu/cgi-bin/htm_hl?DB=uscode10&STEMMER=en&WORDS=militia+&COLOUR=Red&STYLE=s&URL=/uscode/10/311.html#muscat_highlighter_first_match
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The 'militia' which you refer to is the 'organized militia' under U.S. Code and you seem to completely ignore the 'unorganized militia'. I would also like to include some quotes from our founding fathers as to the intent of the 2nd Amendment term 'militia'.
"No free government was ever founded, or ever preserved its liberty, without uniting the characters of citizen and soldier in those destined for the defense of the State. Such are a well regulated Militia, composed of the freeholders, citizen, and husbandman; who take up arms to preserve their property, as individuals, and their rights as freemen." James Madison, United States Congress, Bill of Rights Ratification, 1779
Amendments to the Constitution proposed in various states (which eventually became the Bill of Rights): (Quoted from Edward Dumbauld, The Bill of Rights and What It Means Today, University of Oklahoma Press, Norman OK, 1957)
- Virginia, 1788:
"Seventeenth, That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms is the proper, natural and safe defense of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power."
- North Carolina, 1788:
(Same text as Virginia)
"The right of the people to keep and bear ... arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country ...." James Madison, I Annuals of Congress 434 (June 8, 1789).
"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom? Congress shall have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ... The unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the People." Trench Coxe, Pennsylvania Gazette, 20 February 1788.
"What, sir, is the use of a militia? Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins." Rep Elbridge Gerry, Mass., I Annals of Congress at 750, 8/17/1789
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Now to address the founding fathers feeling on whether or not the 'people' are the individual citizens and the intent of the term 'people' as used in the 2nd Amendment.
"To disarm the people - that was the best and most effective way to enslave them ...." George Mason ( Framer of the Declaration of Rights, Virginia, 1776, which became the basis for the U.S. Bill of Rights ) 3 Elliot, Debate at 380.
"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States." Noah Webster, "An Examination into the Leading Principles of the Federal Constitution" (1787), in Pamphlets on the Constitution of the United States (P. Ford, 1888).
"To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them." Richard Henry Lee, 1788, Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights.
"The great object is that every man be armed" and "everyone who is able may have a gun." Patrick Henry, in the Virginia Convention on the ratification of the U.S. Constitution (1788).
"The best we can hope for concerning the people at large is that they be properly armed." Alexander Hamilton
"No Freeman shall be debarred the use of arms in his own lands or tenements." Thomas Jefferson, from the Virginia Constitution, Third Draft
"the people are confirmed by the next article [the Second Amendment] in their right to keep and bear their private arms." Trench Coxe in "Remarks on the First Part of the Amendments to the Federal Constitution", under the pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, 18 June 1789
"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation. ... Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." James Madison, author of the Bill of Rights, in Federalist Paper No. 46. at 243-244
"The people are not to be disarmed of their weapons. They are left in full possession of them." Zachariah Johnson, 3 Elliot, Debates at 646
"Arms in the hands of citizens [may] be used at individual discretion...in private self-defense..." John Adams, A Defense of the Constitutions of the Government of the USA, 471 (1788)
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As far as how we should NOW interpret the 2nd Amendment of the U.S. Constitution.
"...the people are confirmed by the next article in their right to keep and bear their private arms" from article in the Philadelphia Federal Gazette ten days after the introduction of the Bill of Rights ... Philadelphia Federal Gazette June 18, 1789 at 2, col.2
"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms ...." Samuel Adams, "Philadelphia Independent Gazetteer", August 20, 1789
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals...It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." Albert Gallatin of the New York Historical Society, October 7, 1789
And one that I believe is one of the most important.:
"On every question of construction (of the constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." Thomas Jefferson, letter to William Johnson, June 12, 1823,
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As far as how the Supreme Court feels, I recommend reading UNITED STATES v. VERDUGO-URQUIDEZ, 494 U.S. 259 (1990)
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&vol=494&invol=259
an excerpt of the link:
"The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the people of the several States") (emphasis added)....it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
In other words the term 'the people' has the same meaning throughout the U.S. Constitution as it is used in the Preamble and Amendments 1, 2, 4, 9, and 10. It is NOT used to be an individual right everywhere EXCEPT the 2nd Amendment, which, as you claim, is suppose to have some 'collective' meaning.
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Second, in Miller, the Supreme Court, the court by constitutional law empowered to interpret it, in its only holding on the issue clearly stated its a state, not individual right. If its not an individual right, then it is a "privilege" that can be curtailed or revoked by state action.
The Militia comprised all males physically capable of acting in concert for the common defense .... And ... these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Supreme Court of the United States, U.S. v. Miller (1939).
I., as Lawerence Tribe believes, do not believe that any 'right' is absolute, as it is not a 'right' to yell fire in a crowded theater. There can be reasonable restrictions, but only to protect the rights of others that might be infringed.
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As an aside, should, somehow, the intent of the founding fathers be ignored, the Supreme Court rule that the 2nd Amendment was intended to arm a National Guard type of military group with federal money and equipment, or the 2nd Amendment is repealled as part of a Constitutional Congress, then NOWHERE in the U.S. Constitution is Congress given the power to regulate the private ownership of firearms. Therefore we must look elsewhere in the Constitution.
The 9th:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
and the 10th:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
By the 9th Congress shall not deny rights and by the 10th any gun control is reserved to the individual states, NOT the federal government.
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Regarding your implication that the sentence structure of the 2nd Amendment somehow implies a 'collective' right. This is a link to the opinion of Roy Copperud, a retired professor of journalism at the University of Southern California and the author of "American Usage and Style: The Consensus".
[Copperud:] (1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.
[Copperud:] (2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.
[Copperud:] (3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.
For the complete text of the analysis go to:
http://www.columbia.mo.us/~smcghee/unabr2nd.htm
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ANTI: My prior impression, and that of some constitutional scholars far more informed than I, are that most of the comments you list, and others than may be found, must be placed in proper context of concern for state's to have ability to raise militia to defend against a federal gov't that may, in the future in their mind, raise a permanent army which, after their experience with Britain, frightened them to death. I will, temporarily defer to your analysis of the statements
PRO: You are correct that future invasions were a concern, as occurred in 1812, and a concern also was that the new federal government may raise a standing army. HOWEVER, that is not the only reason the founding fathers and people of the time believed in the 'right to keep and bear arms.' Here are more quotes regarding the self-defense aspect, supporting the individual right;
"Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our own defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?", Patrick Henry [3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836]
"The right of self-defense is the first law of nature. In most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited; liberty, if not already annihilated, is on the brink of destruction." St. George Tucker, Judge of the Virginia Supreme Court and U.S. District Court of Virginia in, I Blackstone COMMENTARIES St. George Tucker Ed., 1803, pg. 300 (App.) (self-defense by individuals in terms of fighting against a standing army to preserve liberty)
"Arms in the hands of citizens [may] be used at individual discretion...in private self-defense..." John Adams, A Defense of the Constitutions of the Government of the USA, 471 (1788) (I think that I used this on before, but it is pretty clear what he meant.)
"Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.", Richard Henry Lee
"...while the legislature has power in the most comprehensive manner to regulate the carrying and use of firearms, that body has no power to constitute it a crime for a person, alien or citizen, to possess a revolver for the legitimate defense of himself and his property. The provisions in the Constitution granting the right to all persons to bear arms is a limitation upon the power of the legislature to enact any law to the contrary." PEOPLE v. ZERILLO 219 Mich 635
"No kingdom can be secured otherwise than by arming the people. The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses; else he lives precariously, and at discretion." --James Burgh, Political Disquisitions: Or, an Enquiry into Public Errors, Defects, and Abuses [London, 1774-1775].
Then a few from the Thomas Jefferson web site at the University of Virginia:
In a nation governed by the people themselves, the possession of arms to defend their nation against usurpers within and without was deemed absolutely necessary. This right is protected by the 2nd Amendment to the Constitution. A gun was an everyday implement in early American society, and Jefferson recommended its use. "A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun, therefore, be the constant companion of your walks." --Thomas Jefferson to Peter Carr, 1785. ME 5:85, Papers 8:407
"The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed." --Thomas Jefferson to John Cartwright, 1824. ME 16:45
"No freeman shall be debarred the use of arms (within his own lands or tenements)." --Thomas Jefferson: Draft Virginia Constitution (with his note added), 1776. Papers 1:353
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ANTI: Regardless, US v. Miller, 307 US 174 (1939), is still the overiding interpretation of the 2d amend:"With obvious purpose to assure the continuation and render possible the effectiveness of such forces [a militia] the declaration and guarantee of the Second Amendment was made. It must be interpreted and applied with that end in view."
PRO: Check Printz v. U.S. (1997) which basically says Miller did NOT decide the issue.
ANTI: I point out two obersations. First, your Printz reference is of very little legal relevance. It comes from a footnote in a concurring opinion. Thus, at best it is mere dicta with no legal authority.
PRO: OOPS! Sorry. I am not an attorney and did not know that.
NOTE:
dicta
n. the plural of dictum.
dictum
n. Latin for "remark," a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle as the judge understands it. While it may be cited in legal argument, it does not have the full force of a precedent (previous court decisions or interpretations) since the comment was not part of the legal basis for judgment. The standard counter argument is: "it is only dictum (or dicta)."
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ANTI: "In the absence of any evidence tending to show that possession or use [of the shotgun in question] has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
PRO: There are other cases regarding the 2nd Amendment that have been addressed by the Supreme Court. I will get into those later. So that others may keep up with our discussion this is the link to the U.S. v. Miller (1939) Supreme Court ruling:
http://caselaw.findlaw.com/scripts/getcase.pl?court=US&vol=307&invol=174
You clearly point out in the Miller cite exactly what I have been saying. This is the complete text, "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." The Supreme Court determined that a SBS (short barrelled shotgun) as defined by the National Firearms Act of 1934 (NFA '34) (Link to text of NFA '34:
http://www.atf.treas.gov/regulations/27cfr179.htm) is not protected by the 2nd Amendment from regulation which is why they wrote "keep and bear SUCH an instrument" referring ONLY to a SBS, BUT there was a reason for this. Note that it states "in the absence of any evidence". The reason for this was that Miller never showed to offer testimony as to WHY a short-barreled shotgun should be considered a militia type weapon.
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ANTI: And, "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of the Colonies and States, and the writings of approved commentators."
PRO: Addressing this part of your cite I offer the complete text of the paragraph.
"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically CAPABLE of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms SUPPLIED BY THEMSELVES and of the kind in common use at the time."
This tells us that in Miller, the Supreme Court:
1. Identifies members of the militia as it relates to the 2nd Amendment as "all males physically capable of acting in concert for the common defense." They don't have to be 'acting in the common defense' as they would if they were part of the National Guard, but only 'PHYSICALLY CAPABLE' of it. That would make me a militia member.
2. The members of the militia "were to appear bearing arms SUPPLIED BY THEMSELVES". Clearly showing the militia were individuals who are to own their own firearms since they were expected to bring them.
3. Most importantly those arms (guns) that the militia (individuals as defined by U.S. Code, Title 10, Section 311) are to have arms that are 'of the kind in common use at the time." Unfortunately this has not ever been questioned, but seems to indicate that the private ownership of 'assault weapons' are the type of arm PARTICULARLY protected by the 2nd Amendment.
4. You will also note in the Footnotes of Miller:
"Sec. 1 (Section 1132). (a) The term 'firearm' means a shotgun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition, (The Act of April 10, 1936, c. 169, 49 Stat. 1192, 26 U.S.C.A. 1132, added the words) but does not include any rifle which is within the foregoing provisions solely by reason of the length of its barrel if the caliber of such rifle is .22 or smaller and if its barrel is sixteen inches or more in length." This clarifies further that in Miller the Supreme Court was strictly addressing those items included in the NFA '34 and specifically EXCLUDED pistols, revolvers, shotguns with barrels over 18 inches, and rifles with barrels over 16 inches.
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ANTI: See also, Sandidge , US, 520 A.2d 1057 (D.C Court of Appeals), "we agree with numerous other courts that 'the Second Amendmendment guarantees a collective rather than an individual right.'..... The second amendment says nothing that would prohibit a state... from restricting the use or possession of weapons....
PRO: See below where I address NON-Supreme Court cases.
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ANTI: In sum, '[t]he right to keep and bear arms is not a right conferred upon the people by the federal government."
PRO: This is absolutely correct!!! The reason for this is that these rights exist WITHOUT the federal government. ALL PEOPLE ARE BORN WITH THESE RIGHTS. They need not me 'conferred upon the people'. These are the unalienable rights.
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals...It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." Albert Gallatin of the New York Historical Society, October 7, 1789.
"It can't be repeated too often that, in the Declaration of Independence, our Founding Fathers asserted the revolutionary and "self evident" truth that "men...are endowed by their Creator with certain unalienable Rights." The Founders went on to assert, "to secure these Rights, Governments are instituted among Men." Note the logical sequence: 1) God exists; 2) God creates man and endows him with rights; and 3) Man creates government to protect those rights. The individual precedes and is superior to government. Our Constitution is not a body of law to govern the people; it was formulated to govern the government, to make government the servant and not the master of the people. William F. Jasper, 1992, "Global Tyranny: Step By Step", p.147
The government doesn't grant us rights, we are born with them. The Constitution enumerates those rights to prevent the government from taking them away. As an example; do we not believe that a person born in China has the right to speak freely, to peaceably assemble, and to worship, as they desire? Of course that person has that right. They were born with it. Just because they happen to be born in China doesn't mean that they don't have the right no more than it means that those born in Russia never had that right. The laws of China or Russia may deny those rights to them, but that doesn't mean that the people don't have them. Those rights are taken away from them by their government, as was done to the students at Tiennamin Square (I have no idea how to spell it). Did those students not have the right to free speech? Of course they did. An unalienable right is not something that is given to you; it is something everyone is born with. Some are just not permitted to exercise those rights.
And in closing this section I offer an excerpt from United States v. Cruikshank, 92 U.S. 542, 551 (1876) (and one of my favorites):
"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; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government".
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ANTI: And, US v. Rybar, 103 F,3d 273 (3d Cir,. 1996), "this court has on several occasions emphasized that the Second amendment furnishes no absolute right to firearms."
PRO: I do not keep up with lower court rulings because it is difficult. Researching these cites will take some time. I do offer the website of the U.C.L.A School of Law who have compiled an anthology of 2nd Amendment work including many Supreme Court descisions:
http://www.law.ucla.edu/faculty/volokh/2amteach/sources.htm
As far as what the Supreme Court has said, we already covered United States v. Miller, 307 U.S. 174 (1939), I cited United States v. Cruikshank, 92 U.S. 542, 551 (1876) in a previous section, and I covered United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990), the most recent ruling, in my last post.
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ANTI: And, US v. Warin, 530 F.2d 103 (6th Cir. 1976), "It is clear that the Second Amendment guarantees a collective rather than an individual right.... 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.... Thus we conclude that the defendant has no private right to keep and bear arms under the Second Amendment.... [bearing arms has been] regulated by statute as to time and place as far back as the Statute of Northhampton in 1328."
PRO: Francis J. Warin was convicted by an Ohio district court for possessing an unlicensed submachine gun, in violation of federal law. As we already know from Miller, that is a firearm regulated under NFA '34. Most of your cite is actually from Stevens v. United States 440 F.2d 144 (6th Cir. 1971), but was used in 1976 for this case. I suggest: CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATE V. MILLER AND THE SECOND AMENDMENT, published in the Cumberland Law Review as 26 Cumb. L. Rev. 961-1004 (1996). It is pointed out that this case is based on Cases v. Unitied States and United States v. Tot where lower courts began to deviate from the meaning of Miller and the lower court is referred to as 'going off the rails.' In Tot the court either discriminated against material that did not support its desired outcome, or simply cited sources that did not support its position. In fact, the part of your cite regarding "the Statute of Northampton" is actually from Tot and mentioned in the law review. It involves a time when the courts were concerned about people using the 2nd Amendment for justification to privately own nuclear weapons.
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ANTI: One may argue construction of Second amendment, certain statement of fouding fathers all you want, until Miller is reversed (which by the way Reinquist does not in case you cite as it is merely dicta, plus look at his use of "community"), the law of this land is that there is no individual right to bear arms.
PRO: We are, of course, hoping that Miller is reviewed and read as what it really says when the Emerson decision is reviewed by the Supreme Court. If the SC lets the 5th Circuit Court decision stand, MANY gun control laws will be overturned.
ANTI: PRO, thanks for your reply. I respect your opinion, especially as it appears that you have delved more deeply into the issue. While I'll take your comments to heart and will spend more time researching the issue,I still respectfully disagree with your conclusions.
PRO: Thanks again. I am beginning to believe that we may need to 'respectfully agree to disagree' on this subject. There are many cases to support both sides. This is why there is so much disagreement on the issue and why I have focused on cases that the Supreme Court has actually reviewed.
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ANTI: While law review articles are great fun and can be informative, the fact that an article despite the interpretation of Miller does not significant pain me, I will always defer to the courts (as will the courts, in the vast majority of instances).
PRO: Okay then, in that case: U.S. v. Warin, 530 F.2d 103 (6th Cir 1976), cert. denied, 426 U.S. 948 (1976). The court did conclude, without any reference to the history of the 2nd Amendment, as you stated, "is clear the Second Amendment guarantees a collective rather than an individual right." This still goes back to Cases v. U.S., 131 F.2d 916 (1st Cir. 1942) where the court held that Miller did not protect all arms and referred to the 2nd Amendment when it stated that it "undoubtedly curtails to some extent the rights of individuals to keep and bear arms..." Id. at 921. Note that they concluded the 2nd Amendment refers to "the rights of individuals to keep and bear arms" yet concluded that in U.S. v. Miller it did not hold that the 2nd Amendment guaranteed the right to possess or use NFA items or large weapons not intended for use by an 'individual'. U.S. v. Warin was wrong in concluding that Warin's relationship to the militia had anything to do with determining whether his possession of a machine gun was protected by the 2nd Amendment since the Supreme Court in U.S. v. Miller focused on the firearm itself, not on the individual. Warin also mentioned U.S. v. Tot, 131 F.2d 261 (3rd Cir. 1942), rev'd on other grounds, 319 U.S. 463 (1943) which involved the use of firearms by a convicted felon. In this case it is obvious that courts have ruled that there is nothing wrong with restricting the rights of individuals who misuse those rights to infringe upon the rights of others. As we restrict ones right to free speech when one is not permitted to yell 'fire' in a crowded theater or when we remove the right to vote from convicted felons. According to Tot, those 'rights' are not absolute and could be restricted for certain classes of persons "who have previously...been shown to be aggressors against society."
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ANTI: Could you cite me the Emerson holding you speak of. I can't seem to find a case of that name dealing with 2d amendment issue (by that, I'm definitively not saying that I question your statements, but only my likely research error).
PRO: U.S. v. Emerson, 6:98-CR-103-C (5th Cir. 1999). I am in Indy working, but I live in Austin, Tx. Emerson was decided by Judge Cummings in Abilene, Tx. The federal government did not like the reversal of 18 U.S.C. 922(g)(8)
http://www4.law.cornell.edu/uscode/18/922.text.html which denies gun ownership to a person under a restraining order. The 5th Circuit heard this case in June and held with the lower court in a unanimous decision. I do not know if the ruling has been published yet, but I will include a link to the most comprehensive Emerson information that I have been able to find.
http://www.saf.org/EmersonViewOptions.html
But of the greatest interest to me were the amicus briefs filed. GREAT READING!!!! Linked off the above page, but I am including the direct link:
http://www.saf.org/EmersonAll.html
I think that the gun rights briefs are much better and I pretty much ignored the brief from the Potomic Institute. I think about as much of him as you do of Justice Thomas.
I am not trying to rush you. I know that you are researching and I thought that I should probably make my questions more specific because I am especially interested in how you drew your conclusions on U.S. v. Miller. It may help you if I clarify my points and interpretation. I am also adding this to get the topic back to the top.
1. Thanks to the internet I have read may documents written by the founding fathers or items published during that period. There was great belief in small government, personal responsibility, and lack of government involvement in a person's life. See 'Common Sense' by Thomas Paine or the great Thomas Jefferson site I referenced earlier. As a result I have seen many instances where the intent of the
founders support the individual right to bear arms, yet I have never seen a case where individuals were not to be permitted the private ownership of arms. The closest that I ever came was one that seemed to believe that the armed individuals should be well trained, but it says nothing about the government, federal or state, providing the
training. Do you know of any founders who did not support the individual right to keep and bear arms?
2. If all founders support 'the right of the people to keep and bear arms', how could the intent of the 2nd Amendment mean only the people when acting under the direction of an organized, government controlled, militia? I do not believe for on minute that the founding fathers intended the 'militia' to mean the National Guard as we found at Kent State. This is exactly what the 2nd Amendment was designed to prevent. To protect the rights enumerated in the other amendments.
3. The Bill of Rights ratification was occurred in the 18th century, yet the National Guard was not formed until the 20th century. Knowing the definition of the 'militia' as found in U.S. Code Title 10 Section 311, how could the 'people' in the 2nd Amendment be considered to mean only the members of the 'organized militia'?
4. If the 2nd Amendment does not grant an individual right to keep and bear arms, why does the term 'the people' mean something different in the 2nd Amendment than it does when used everywhere else in the Constitution and contrary to the finding the U.S. v. Verdugo-Urquidez (1990)?
5. Going to the points which I made on U.S. v. Miller (1939):
a. Miller states "all males physically capable of acting in concert for the common defense" are the militia. How does Miller support the 'collective rights' view if it describes the militia to includes all physically capable males?
b. Miller states that the militia members (what we now know as the 'unorganized militia') "were to appear bearing arms supplied by themselves." If people didn't have their own arms, how would they be able to supply them themselves and how does this support the 'collective rights' theory?
c. Miller refers to the fact that members of the militia are to have arms "of the kind in common use at the time." What kind of gun would this be now?
6. Do you agree that the U.S. Constitution and Bill of Rights is a declaration recognizing the pre-existing rights of individuals in an effort to limit the power of an overbearing government? Do you think that it is a government document BESTOWING rights upon groups of people? This will also tell me what you think of my example of free speech in China.
My father is an attorney, I have many friends who are attorneys, and I have heard from all of them that law school does not do an in depth study of the 2nd Amendment when studying Constitutional Law and that it is usually glossed over as 'Miller determined that there was no individual right, let's move on.' Much the way the 3rd Amendment is treated in fact. You may find this interesting; it is some law professors, including Sanford Levinson at U.T. Austin, writing on using the 2nd Amendment as a teaching tool. This would allow better coverage for law students.
http://www.law.ucla.edu/faculty/volokh/2amteach.htm
I think that Miller has been BROADLY misinterpreted because people don't read the whole thing. Only bits and pieces that suit what they want. Usually Miller is used to broadly when, in fact, it was narrow in focus. The Emerson case will be the same thing. Specifically Congress passed a law restricting an individual under a VPO from possessing firearms. Miller and other cases have shown that gun ownership MAY be restricted in some cases as can free speech. All a Supreme Court ruling against Emerson will be is a statement that if you are a potentially violent person under a VPO, you may not have free access to firearms. As Miller determined with the NFA weapons.
ANTI: Court has interpreted the 2d amend not to give an absolute individual right to bear arms and the the fed gov't acting through congress can restrict, if not totally limit, that right with sufficient case.
PRO: Absolutely. See above. Convicted felons may not own firearms at all. NFA weapons have heavy restrictions on ownership. Legal ownership of machine guns, hand grenades, and land mines is impossible in some states without being an infringement under the 2nd Amendment. Fortunately not the case in states where I choose to live.
ANTI: For example, based on Miller, I believe it would be perfectly constitutional for a federal law that allows individual "possession" of firearms, but only for use when called as member of militia. Such a law would meet the constitutional mandate.
PRO: This is the way it is in Switzerland. Fully automatic SIG rifles in each home and ammunition, all provided free of charge by the Swiss government. They also require mandatory qualification of all 'militia' members twice a year. Members are also permitted to own personal weapons since they are all trained.
ANTI: I think people, at times, read too much into what the founding fathers said as being "all knowing." One must look at the historical times and then pressing circumstances.
PRO: Which is why I included the quotes showing how they intended the Constitution to be interpreted.
Suggested reading from experts who actually know what they are talking about and get things published. All these support the individual rights view, but do allow for some restrictions. Constitutional scholars with special work on the 2nd Amendment. Check out their work:
Lawrence Tribe's book American Constitutional Law (Harvard)
(I hear that Tribe has been quoted in at least 50 Supreme Court rulings as the authority on the Constitution.)
Sanford Levinson's article The Embarrassing Second Amendment (Texas)
William Van Alstyne (Duke)
Akil Reed Amar (Yale)
and to a lesser degree Glenn Harlan Reynolds (Tennessee)
One other thing. We all know that the U.S. government is composed of three branches. The Judicial (courts), Legislative (Congress), and Executive (President). This was done so that any law must pass tests in all three branches to be valid. To see an interpretation of the 2nd Amendment by the legislative branch read this:
http://www.access1.net/rdotson/SecondAmend.htm
For those of you that are lazy it supports the 'individual' rights interpretation in the 2nd Amendment.
I suggest everyonelse spits a word or two on this fella also 