One argument that the dissenters made was that different areas had different circumstances, Chicago being different from the Wild West locales that some of us live in. Thus, Chicago might be unable to fight off a total ban on handguns but still maintain an AR ban as not being suited for apartment defense. Defense against tyranny being a different beast as tyranny is not locale specific.
Extending the limitation of federal power to the states does some violence to the corpse of federalism, but we should not pretend we've witnessed a murder. The victim was gravely ill decades before any of us were born.
Is Federalism a pale shadow of its former self? Yes, but I'd blame abuses of the commerce clause, not the 14th Amendment.Federalism was substantially gutted by the civil war and the subsequent consitutional amendments.
Many (most?) of us already have the right to form militias. Most of us, in fact, ARE the (unorganized) militia. My state does not prohibit the establishment of a private militia; we only prohibit using same to overthrow the government. I know of several other states whose laws substantially mirror that position.Tom Servo said:I imagine we'd have a chance to refute Presser used as a precedent. Still, I wonder what kind of case we could bring that would (re)establish the right to form militias...
Reading that actually made me shudder ... the intent of the 14th is not nearly as clear as some people imagine ... I tend to see it as an antidiscriminatory amendment ... and it most certainly was not done through the amendment process ... I've read that Virginia considered the 14th Amendment and it received 0 votes in our house and 0 votes in our senate ... so the US put Virginia under military rule, reducing us to "US Military District Number One", until we voted for an amendment we did not want. That is not the amendment process, consentual government, or anything of that nature. In fact, it is the very thing that the Second Amendment is intended to prevent. There seems to be room for doubt about what the 39th Congress intended the 14th Amendment to do, and little doubt that the amendment failed the amendment process.The intent of the 14th amendment was clearly to apply consitutional rights and protections to actions by state governments and thus change federalism. And I don't really have a problem with that because it was done through the process laid out in the consitution.
I wasn't clear on that. In theory, we have the right in many places. In practice, it's not so clear.Many (most?) of us already have the right to form militias. Most of us, in fact, ARE the (unorganized) militia.
Tom Servo said:...and let's please not use the term "state's rights." Individuals have rights; governments have powers. Those are two completely different animals.
The Articles of Confederation, Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.
James Monroe, Views of the President of the United States on the Subject of Internal Improvements
This view of the exclusive jurisdiction of the several States over the territory within their respective limits, except in cases otherwise specially provided for, is supported by the obvious intent of the several powers granted to Congress, to which a more particular attention is now due.
... the right to declare war ...
The right to lay taxes, duties, imposts, and excises ...
... the right to raise and support armies ...
To the other powers of the General Government the same remarks are applicable and with greater force.
The right to regulate commerce with foreign powers ...
The right to borrow and coin money ...
... the right to punish piracy ...
The right to establish an uniform rule of naturalization ...
The right to promote the progress of useful arts and sciences ...
The right to constitute courts inferior to the Supreme Court ...
The right to establish post-offices and post-roads ...
Aguila Blanca said:Many (most?) of us already have the right to form militias.
Aguila Blanca said:Most of us, in fact, ARE the (unorganized) militia.
Individuals have no constitutional right to form a militia. Your state may not prohibit one but many do and that prohibition would withstand any constitutional challenge.
Tom, the militias you speak of are unauthorized paramilitary organizations. they are not protected by the Second Amendment.
Just a small correction: the Court did not rule that the RKBA was "fundamental." That may have been the fly in the ointment for a couple of minor post-Heller suits.I believe in Heller, the Supreme Court of the United States ruled by 5-4 that the Second Amendment in the US Constitution protected a FUNDAMENTAL, INDIVIDUAL right.
In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. [Majority Opinion, p. 31]