That "militia thing"

[Gallstones]

I don't think the SCOTUS said that militia service or membership is "unconnected" to or "divorced from" the RKBA. I think what they said is that the RKBA is not dependent on being a member of the militia. The connection is there and it seems to me that both Scalia and Alito recognized it, but they were clear in saying that the core right to keep and bear arms does not require that one be a member of the militia.

To say otherwise would raise a lot of issues nobody wants raised. For example, the Militia Act defines the militia as able-bodied males 18 to (I believe) 45 years of age, plus female members of the National Guard and Naval Auxiliary (or whatever the naval militia is called in the act). So ... I'm a Vietnam veteran and now very much a senior citizen. I'm several decades past the upper limit for the militia. Does that mean I have no RKBA? What about (oh,oh!) wimmin? If the RKBA were to be strictly based on membership in the militia, NO women other than National Guard and Naval Whatever would have any RKBA.

I don't think even the ardent gun grabbers want to tell women they have less rights than a class of men aged 18 to 45.

I have been up against this very argument the past three months on one of the liberal, Brit centric forums I used to frequent. This is the very assertion being made, that I not being male, would have no RKBA despite the fact that I am an Honorably Discharged Army Veteran.

 

[Aguila Blanca]

I have been up against this very argument the past three months on one of the liberal, Brit centric forums I used to frequent. This is the very assertion being made, that I not being male, would have no RKBA despite the fact that I am an Honorably Discharged Army Veteran.

I can see why that's a forum you "used to" frequent.

Welcome to The Firing Line. I think you'll find most of us here a bit more egalitarian -- even though some of us still open doors for ladies.

 

[Gallstones]

I open and hold doors for gentlemen.

 

[Gallstones]

But seriously, if we rest solely on the wording of the US Code 10 Chapter 13 I have a problem rebutting the claims.

http://uscode.house.gov/download/pls/10C13.txt

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.

What rebuttals have we? Can anyone refer me to any?

 

[JimDandy]

I'm not entirely sure what you're looking to rebut, however, the act itself would be unconstitutional today as discriminatory- ESPECIALLY if one wanted to tie the act to the militia to the right to keep and bear arms.

 

[tpmbc]

In states such as those, a group conducting paramilitary training for the purpose of taking over the state and seceding from the United States might be prohibited.

My understanding of the 2nd amendment is to protect the People from government, making any prohibition of a group from conducting paramilitary training instinctively unconstitutional. The absence of such training, in my opinion, prevents the People from fulfilling what our Founders felt only a matter of time, and the basis of the 2nd amendment.

 

[Frank Ettin]

First, note that 10 USC 311 appears to date back to 1916 and was last amended 20 years ago. A lot has changed in those periods.

...This is the very assertion being made, that I not being male, would have no RKBA despite the fact ...

if we rest solely on the wording of the US Code 10 Chapter 13 I have a problem rebutting the claims....

...What rebuttals have we? Can anyone refer me to any?

The simple answer is that Chapter 13 of Title 10 of the Unites States Code is completely irrelevant to your RKBA. The Supreme Court in Heller ruled that the RKBA was (1) an individual right; and (2) independent of any service in a militia.

 

[Evan Thomas]

And that's exactly why I get really crabby when people on either side of the debate want to tie the right to bear arms to membership in the unorganized militia as defined in that statute. (And yes, I have, post Heller, seen some pro-gun people make that argument, for whatever reason. ) I'm not the least bit keen on losing my rights under that definition...

Heller was a good decision, as far as it went, and I'd hate to see it overturned.

 

[Aguila Blanca]

What rebuttals have we? Can anyone refer me to any?

As Frank Ettin wrote above: Heller/ In the ruling, Justice Scalia wrote in the majority decision:

Held:
Held:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms bearing
rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

1. Operative Clause.
a.
“Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.5

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset.

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

That should give you a start. Here's a link to the full decision. It makes a good read, and a good reference.

http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

 

[Ronbert]

Hmm! If you don't know something as fact, you shouldn't have stated it as one.

I was asserting. I assert that the sun will rise tomorrow. The only proof is by long observation that there seems to be a trend one can rely upon.

I assert that if one tries this stunt that the expressed derailing of the event will occur. Such derailings have happened before and there's no reason to think this one would be immune. In fact, our political opposition has every reason to intervene.

Even if I have no facts to back up my assertion- it's still a bad idea.

 

[Frank Ettin]

I was asserting. I assert that the sun will rise tomorrow. The only proof is by long observation that there seems to be a trend one can rely upon....

Actually, there is an enormous amount of data supporting that -- including some very robust theories regarding the dynamics of bodies orbiting the Sun.

...I assert that if one tries this stunt that the expressed derailing of the event will occur. Such derailings have happened before and there's no reason to think this one would be immune. In fact, our political opposition has every reason to intervene...

But unless you have some actually evidence to support that assertion, it's just your guess and not worth anyone's attention.

...Even if I have no facts to back up my assertion- it's still a bad idea.

It might well be a bad idea, but your assertion, based apparently on your guess, really has nothing to do with it.

 

[Al Norris]

Restating what Frank has written:

I assert that the sun will rise tomorrow. The only proof is by long observation that there seems to be a trend one can rely upon.

Um, no.

We have enough tools at anyone’s disposal to calculate the orbit of the earth, to calculate the rotational speed of the earth around its own axis and to calculate the tilt of the axis in relation to its orbit. With these tools, we can empirically state that the "sun will rise tomorrow," barring a cataclysmic event that would immediately alter the mathematics of the equation. The tools and mathematics have been available for centuries.

That is not assertion. That is established fact.

Your "assertions," on the other hand, are no more than guesses (I assume based upon your own experiences and/or observations). This is the same as my own "guesses" of how a particular case might go.

 

[Gallstones]

Thanks for the replies. I have some careful reading to do thanks to the links, and a stronger tack to take.

Excellent info. Appreciated.

 

[JimDandy]

barring a cataclysmic event that would immediately alter the mathematics of the equation.

As far as I understand, we also have at least a general idea of how much longer the Sun will remain the Sun.

 

[Al Norris]

Give or take a couple of billion years, yes we do.