D.C. vs. Heller (Supreme Court and the 2A) - Mega Thread

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What weight do these opinions have on law? do minority opinions carry any weight in subsequent lower case rulings. Which one or ones do the lower courts follow. this assumes they follow at at all.
 
by rwilson452
Their opinion will be phrased in that context. the majority opinion may be very short and concise either the appellate court got it right or wrong. They are under no obligation to expand. I heard at least one suggestion indicating that might just happen. Even the question was brought up about bear arms in orals they are under no obligation to render an opinion on the bearing of arms. They are not actually under any obligation to render a ruling on level of scrutiny they could let the appellate ruling stand in total.
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At least one other person seems to agree with you.

CHIEF JUSTICE ROBERTS: Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those?
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do minority opinions carry any weight in subsequent lower case rulings.
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They detract from the authority of the majority opinion. If I can state a propostion as a 9-0 winner, I have better authority than if it were only supported 5-4.

Which one or ones do the lower courts follow.
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Just the ones they would find intrinsically persuasive. If you are arguing for a change in law, it could be persuasive to let a court know that other justices have supported your proposed change in the past.
 
Antipitas wrote:

Further, well regulated did not have the meaning that you and Justice Breyer and SG Clement seem to attribute to it. As Justice Scalia corrected in the orals, it means "trained." Trained to what? Trained to the use of arms of the unorganized militia: i.e. Civilian weaponry. Which at the time, were the same arms that the soldier used.

Regarding this "well regulated" business, in the 18th, 19th centuries, now too, I would think, the term "well regulated" referenced to a situation some thing was properly adjusted or maintained, as with the "regulation" of the barrels of a double barreled rifle.
 
Here is a definition of regulated: 1 a: to govern or direct according to rule b (1): to bring under the control of law or constituted authority (2): to make regulations for or concerning <regulate the industries of a country>
2: to bring order, method, or uniformity to <regulate one's habits>

As to the "unorganized militia" The subtle rhetoric trick here is to claim the "unorganized militia", (a term simply meaning eligible citizens) is the same as the "organized militia" (a term meaning near-army) - EXCEPT when it comes to any State and Federal controls. They thus you try to have it both ways, all the good things about the term (military connotations), without any of the restraints implied (government authority). However, it's very much an invention without any basis in fact.
 
It is not a rhetorical trick to note that the militia encompasses both the organised and unorganised militias. It is a matter of reading the federal code.
 
The text of 2A does not stipulate the Organized / Unorganized militia... it simply states "militia."

Your stance, TG, is not unlike reading a law that says "all men over the age of 18 may vote" and coming to the assumption that illiterate men are obviously excluded from being able to vote, as they lack the knowledge to accomplish a successful vote.

Furthermore, your argument is predicated on the idea that once a man is illiterate, he would ALWAYS be illiterate. Or, an unregulated militia member will never acheive regulation.

How, sir, can the militia regulate itself if it has no arms with which to practice such regulation as it sees fit?
 
TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311

§ 311. Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
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Let's not use that definition for "militia." I'll be 45 in about 7 years, and I have no intention of giving up my guns at that point. (Nor does my father, who served in the "formal militia" but is over the age of 64.)
 
Hello Tennessee Gentleman,

My understanding of the historical use of the word, "regulated" is that at one time it was used in reference to a concept we now more frequently call "trained". When you were well regulated you were a regular, trained. Of course, that does not mean you didn't have regulations, but you were regulated if you were skilled in your duties, especially care, cleaning, loading and shooting your weapon, as well as other duties.

I grabbed the following off the pages of the hearing,

JUSTICE SCALIA:
It means "well trained,"
doesn't it?

Page 26, top of page, in the coverage I read.

So, I'm not alone in this understanding.

Take a look:

http://www.supremecourtus.gov/oral_a...pts/07-290.pdf

One of the first laws President George Washington pushed upon being elected was that ever citizen keep a "fire lock" musket or rifle and 20 rounds of ammunition. Fire lock ment flint lock. I guess he was, during the Revolutionary War, irritated by the number of militia that showed up with old match lock muskets, unserviceable in his opinion. Perhaps thats why they kept their muskets over the fireplace. Hear a fox in the chickenhouse, and there would probably be enough coals in the fireplace to ignite the rope or fuse of the matchlock. Actually, the matchlock was not as bad as it might seem. They go off fast when the fuse hits the pan, no fizzle - flash - BANG, of the flintlock. Accurate, but untrustworthy in the field, on account the fire goes out. 20 rounds? So thats possibly why rifle rounds come 20 to a box, perhaps.
 
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GoSlash said:
mvpel,
I wouldn't be so sure of that given the concepts they were throwing around. If they go for an individual right but leave the bar low (perhaps rational basis), they might treat it more like the right to peaceable assembly.
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A state may not impose a charge for the enjoyment of a right granted by the federal constitution... The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down... a person cannot be compelled ‘to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.’
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— MURDOCK V. PENNSYLVANIA 319 US 105 (1942)

So, license to possess? License to purchase? California can kiss their BFSC goodbye. Illinois residents could throw FOID-burning parties at the ranges.

Ammo tax? Kiss that goodbye as well, thanks to Grosjean v. American Press Co. (tax on newspaper ads) and Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue (tax on newsprint and printing press ink).

The dominoes which will fall in the wake of a strong individual rights ruling will make the scene in the movie "Robots" look like child's play.

SHHHHHHHH!!!!!!
 
Tennessee: Your definition of well regulated is probably correct in that, in colonial times, IIRC, well regulated meant well organized, etc.

However, you're putting the cart before the horse so to speak IMHO.

The framers believed a well regulated militia was necessary for the security of a free State but that was a desired end that could only be realistically achieved if ordinary citizens were allowed to keep and bear arms IMHO.

In times of need, those ordinary citizens, who were allowed to keep and bear arms, could be called upon to become part of a well regulated militia. The training could occur at that time (i.e., not necessarily before being called upon to join the militia, or before it reached the status of well regulated).

The training and organization didn't have to occur first in order for people to keep and bear arms. (That's what so many anti-gunners miss when they raise the red herring, well regulated militia argument IMHO.)

The provision allowing people to keep and bear arms was necessary in order for people to be "ready" to be called upon to "join" the militia. You could achieve the status of "well regulated" after the need to assemble the militia into a well organized and trained group was recognized and/or desired.

Hamilton discussed this "well regulated" topic in Federalist No. 29:

http://thomas.loc.gov/home/histdox/fed_29.html

Quoted, in part:

"The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist
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So, you are partly correct, however, allowing ordinary citizens to keep and bear arms provided an efficient scheme for those ordinary citizens to become well regulated when needed.

I do admit you are correct in that a formal, "pre-trained" group of ordinary citizens was also necessary according to Hamilton.

I think if you look at "well regulated" in that light you can see that allowing ordinary citizens to keep and bear arms before they became "well regulated" was a necessary objective if there was ever a need to form/develop a "well regulated" militia.

I think that's all Scalia was saying when he stated "you mean trained" IMHO (i.e., that, at some point, the citizenry could become trained into a well regulated militia). Allowing them to keep and bear arms was a necessary right in order for that objective to be achieved realistically IMHO.
 
For those new to all this discussion, and I know many here have reviewed this stuff already, but its important to the discussion.

Here is the "Dick Act", setting up the National Guard as we know it today. I could not find the original script, but this is pretty good.

http://en.wikipedia.org/wiki/Militia_Act_of_1903

Following is the National Guard Charter, resulting from the above law.

http://www.arng.army.mil/constitution.aspx

More than just a few people feel the "Dick Act" supersedes and replaces the Second Amendment. I think though, that would require a new Constitutional Amendment, requiring 2/3 of the states etc. Anyway, no where in the law does it even hint at such an interpretation. I'm no Constitutional lawyer though.

Hope those not familiar with this stuff read it through.
 
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We the citizens have "a well regulated militia"
The minutemen and the work they do along our southern boarder.
No cases of them acting illegally and they stop crime.Only the Government doesn't like or want help from the minutemen movement.

Another term for militia would be posse,in a more current term.

Do we have access to a dictionary that is dated from the same time the term "a well regulated militia " was coined :confused:
 
You can find such references in the archives, 45reloader, but you really need look no further than Federalist 29.

To oblige the great
body of the yeomanry, and of the other classes of the citizens, to be
under arms for the purpose of going through military exercises and
evolutions, as often as might be necessary to acquire the degree of
perfection which would entitle them to the character of a well-regulated
militia, would be a real grievance to the people, and a serious public
inconvenience and loss.
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It meant well-trained in the military sense. They also used "regulated" to mean what we might mean by adjusting or tuning or sighting in a rifle, strictly with respect to weapons, but that has nothing to do with what they meant in the 2A, which should be very obvious from Hamilton's comment, above.
 
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I'm playing catch-up with several posts here...

WildAlaska said:
Au contraire, I think that point will be troubling to the justices, and is in addition thereto, further evidence of the skepticism inherent in the development of the 2nd vis a vis the controlling of arms....
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As I read the history of the English rights, I perceived the exclusion of non-Protestants and Scots as a loyalty or allegiance exception. If you were not loyal to the English King (Government) you were not permitted to have arms.

In addition, the "suitiable to their condition and as allowed by law" condition acknowledged the loyalty restrictions and allowed militia to have arms suitable to their economic "condition" -- i.e. you didn't expect a local poor farmer to appear with a metal breastplate, shield and a fine sword when all he could afford was a pike.

But, WA, I suspect that those exceptions will not give the liberal members as much indigestion as the last 4 words - "Shall not be infringed". Combine the above exceptions with that phrase and it muddies the waters.
 
45reloader said:
Do we have access to a dictionary that is dated from the same time the term "a well regulated militia " was coined?
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Yes we do. Webster's Revised Unabridged Dictionary (1913 + 1828). With this, you can look up words for both dictionaries and see the change in meaning(s).

For Regulated, the 1828 says: Adjusted by rule, method or forms; put in good order; subjected to rules or restrictions.

To see the word in both times, you must use the root word, regulate.

1911: 1. To adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.

The laws which regulate the successions of the seasons. Macaulay.

The herdsmen near the frontier adjudicated their own disputes, and regulated their own police. Bancroft.​

2. To put in good order; as, to regulate the disordered state of a nation or its finances.

3. To adjust, or maintain, with respect to a desired rate, degree, or condition; as, to regulate the temperature of a room, the pressure of steam, the speed of a machine, etc. To regulate a watch ∨ clock, to adjust its rate of running so that it will keep approximately standard time. Syn. -- To adjust; dispose; methodize; arrange; direct; order; rule; govern.

1828: 1. To adjust by rule, method or established mode; as, to regulate weights and measures; to regulate the assize of bread; to regulate our moral conduct by the laws of God and of society; to regulate our manners by the customary forms.

2. To put in good order; as, to regulate the disordered state of a nation or its finances.

3. To subject to rules or restrictions; as, to regulate trade; to regulate diet.
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Here, it is easy to see the change in emphasis.
 
But, WA, I suspect that those exceptions will not give the liberal members as much indigestion as the last 4 words - "Shall not be infringed". Combine the above exceptions with that phrase and it muddies the waters.
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I submit that it does not muddy the waters, rather, when the above exceptions are mixed with "shall not be infringed," the restrictions chelate and solidify into little ugly clumps and fall to the bottom, leaving only the crystal-clear pure waters of the fundamental individual right to armed defense.
 
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strict scrutiny?

I see Alito, Scalia and Thomas in the strict scrutiny camp. What will they give up to keep two more justices in the majority. Evidently Roberts doesn't want to touch it scrutiny at all but I suspect he will come around to an extent. Kennedy is the nut to crack I'm thinking. Then again Roberts could have tossed that out there it get a reaction. I also think the longer it takes to get an opinion the more watered down it will be.

All the pundits think this is going to be a hard fought battle in the court. So we wait, and wait, and wait.

This may be the case that history will use to define the "Roberts Court" and he knows that.
 
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