Justice Stevens - bye bye to the 2nd as we know it.

I thought I'd remembered reading posts of yours where you cited some passages from the Federalist Papers and other writings of the framers which supported [how most on this forum interpret the 2A].
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Nope, I doubt I've ever cited the Federalist Papers. At least not knowingly, I may have quoted something else that was quoting the Federalist Papers, I suppose.

As for the position I maintain:

The Founding Fathers never fully disbanded the Army. Many of the Framers became our initial Statesmen and comprised much of the first few US Congressional sessions. They still never fully disbanded the Army. They did pass a peacetime army plan. I don't believe they ever expected to have NO army what-so-ever. I believe they wanted to keep the Army small- to act as caretakers and guards over the various forts, and arsenals- and a delaying force (Especially on the Frontiers) until the militia could be raised and combined with that Army.

zukiphile raises much the same point about the 2 year limit as I would have. Though I would extend it one more level. It also provides a time limit on those appropriations, should the citizenry not approve and decide to vote out those who passed the appropriations.
 
As a matter of history, it should be fairly apparent that the colonial militias did not fare exceedingly well against British regulars. Washington had to seek out European soldiers to help train his men into a viable military force.
 
Indeed. The militia system also didn't do well in our incursion into Canada either.

Those are important observations about how to best organize an army and navy. Section 8 and the 2d Am. serve a different function though: to control a monopoly of force by an over-bearing state, a legal and political matter.

The framers presumably knew that there were more potent army systems; they were fighting one after all. They just didn't want to live in one.
 
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JimDandy said:
"That's the point I was making. That some are trying to say this or that infringes. That anything infringes.

Nor is the logic broken. The logic is what is used. We don't consider indirect fire siege weapons of mass destruction arms for the purposes of the second amendment."
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AFAIK we cannot legally buy, own, transfer, etc. 105mm howitzers. So any 'absolute' right has already been 'infringed'.

The issue today remains more a matter of where the government may and may not draw the line.
 
The militia is everybody capable of bearing arms, the people, the general population. The Militia Act does not define the militia as the Constitution means it.

Regarding arms, IMO, all arms are weapons of war, but not all weapons of war are arms. Armies have been using diseased corpses as weapons of war for hundreds of years when the Constitution was drafted by tossing them over the walls of cities and castles under siege via catapult, but that doesn't mean that such weapons of war were arms. The Second Amendment doesn't mean you have the right to keep plague-infested corpses in your home. It doesn't mean you have a right to say your own copy of the Stuxnet virus, also a weapon of war. Arms a particular type of weapon of war.

To me, arms are the basic tools of war, i.e. melee weapons (swords, spears, axes, knives, clubs, etc...) along with projectile weapons (slings, spears and spear throwers, bow and arrow, crossbow, etc...), and firearms (I'd say that while all firearms are guns, not all guns are firearms).

The basic tools of war are those that would be utilized by an individual and do not allow that individual to harm society (such as possession of bombs for example does). Warfare can entail individual self-defense (if a criminal is trying to severely harm or kill you, that individual has declared a state of war on you) and war against the State, which one has a right to engage in if the State is being tyrannical.

Together, the people, exercising their individual right to keep and bear arms, can check a tyrannical state, and if necessary, use said arms to capture bigger and better weapons, to use for themselves or to prevent the State from making use of them. The people can never be as well-armed or as well-trained as the State's forces, but they check the State in terms of sheer numbers.
 
The Militia Act does not define the militia as the Constitution means it.
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I think it's pretty close. Even the Continental Army had an age cut-off. Minimum 16, or 15 with parental permission. They weren't real big on inviting women either.
 
I think it's pretty close. Even the Continental Army had an age cut-off. Minimum 16, or 15 with parental permission. They weren't real big on inviting women either.
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One could maybe argue that by "militia," they meant all white males able to bear arms in the way that by "the people" in the Constitution, they tended to mean white males as well, and not women and non-whites. But today we acknowledge "the people" to mean everyone and similarly, "militia" should mean everyone or everyone able to bear arms (the right to keep and bear arms is protected for the people, not just the militia).
 
LogicMan said:
One could maybe argue that by "militia," they meant all white males able to bear arms in the way that by "the people" in the Constitution, they tended to mean white males as well, and not women and non-whites. But today we acknowledge "the people" to mean everyone and similarly, "militia" should mean everyone or everyone able to bear arms (the right to keep and bear arms is protected for the people, not just the militia).
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You can argue all you want that where the Bill of Rights said "militia" it meant "the People," but if that were the case ... why did they use the word "militia" instead of "the People"?

You can certainly argue that by "militia," they meant all white males able to bear arms, but they didn't say that. What they meant by "militia" is not defined anywhere in the Constitution. However, there was a Militia Act put into effect about the time the Constitution was adopted. It defined what constituted the militia, and it was not "all able-bodied males."

The Militia Act of 1792 said:
I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. ...
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Source: http://www.constitution.org/mil/mil_act_1792.htm
 
I don't think you are going to get anywhere (with a court anyway) that the "militia" means everybody and then that everybody can own and carry whatever weapon they want. The Militias were always (pre-COTUS and after) controlled by the states. They were never a mob of people who chose to be armed.

Some case law: U.S. v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978). U.S. v. Warin, 530 F.2d 103 (6th Cir 1976), cert. denied, 426 U.S. 948 (1976).

Membership in the "unorganized" militia confers no rights, duties or responsibilities.

Finally, if you have an unregistered Class 3 weapon and claim you have a right to it via membership in an unorganized militia be prepared to spend a long time in Club Fed.
 
I don't think you are going to get anywhere (with a court anyway) that the "militia" means everybody and then that everybody can own and carry whatever weapon they want. The Militias were always (pre-COTUS and after) controlled by the states. They were never a mob of people who chose to be armed.

Some case law: U.S. v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978). U.S. v. Warin, 530 F.2d 103 (6th Cir 1976), cert. denied, 426 U.S. 948 (1976).

Membership in the "unorganized" militia confers no rights, duties or responsibilities.

Finally, if you have an unregistered Class 3 weapon and claim you have a right to it via membership in an unorganized militia be prepared to spend a long time in Club Fed.
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USSC seemed to think it was a legitimate claim in Miller. We only lost that one because nobody showed up -- but it wasn't a total loss if anyone actually reads it.
 
He proposes a new 2nd that removes all gun rights:


“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”
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Former Justice Stevens may wish that the Second was written that way, but it's not. If he wants to change it all he has to do is:

Write an new amendment and have it proposed by a two-thirds majority vote in both the House and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. (The constitutional convention option has never been used).

Once officially proposed, the amendment becomes part of the Constitution as soon as it is ratified by 3/4 of the States (38 of 50 States).

Good luck with that.

As awful as such an attempt would be, it at least has some intellectual honesty, a quality usually lacking in gun control efforts.
 
Well, then I think Just. Stevens should bring it on - get a Senator to introduce it in the Senate, and get the blissninny states to start passing it - we'll see how far that goes. It will bring focus to the reason for the 2A. Such a focus / debate is a very GOOD thing.
 
Brian Pleuger said:
That "presumptively lawful" phrase didn't strike me as particularly bothersome. In fact, I assume (I could be wrong) that the concept is an underpinning of our entire system. In other words, are not ALL standing laws "presumptively lawful" until and unless they are struck down? Otherwise, all laws would be unenforceable until a court unheld them, as the only other possible choice would be "presumptively UNlawful".
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The problem with "presumptively lawful" is that lower courts and administrative jurisdictions aren't looking at it as meaning "This law is 'presumed' lawful until it has been examined," they are doing their best to frame all such laws as "It's lawful because the Supreme Court said so in Heller."

Much the same as we see brief after brief, and lower-level decision after lower-level decision, saying that the 2A protects only a right that possess a firearm within the home "Because that's what the Supreme Court said it meant in Heller."

If the goal of the Supremes was to provide a convenient mechanism for the district courts to dispose of the nuisance suits, I'd say they failed miserably. Mr. Scalia's throw-away comment about "presumptively lawful" (I don't think he needed to say that at all) just gave anti-gun lawmakers a rack on which to hang their hats. And they are doing it, all over the country. It doesn't bother me too much that the political appointee lawyers who work for the cities and towns who pass such laws try to defend the laws by pretending that Heller said a lot less than it actually said. What bothers me is that lower courts and appellate courts are accepting those phony arguments, and parroting them in decisions.
 
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One of the things we're missing out of all of this, is Stevens has just reinforced Heller himself. He's admitted that for the 2A to read the way he wants it to, the 2A has to be re-written.
 
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