I think you are being disingenuous now . . . Isn't that "proposition" you mention Miller's holding?
From where else does the Miller Court draw their reasoning from? Only the government briefed the Court (and in it citing Aymette at 158), no amicus were filed . . .
And I find the Court's inclusion of "common defence" telling; that term is not found in the 2nd, in fact its inclusion was specifically struck from [what would be] the 2nd. It is central in the Aymette exposition though.
I would think that this would be the infancy of the "Arms for Militia" movement (there seems to have been an earlier bill introduced but it apparently did not move) and it seems to be a contentious issue and quite a departure to what was NOP, the citizens just arming themselves.
Congress does not seem to be debating this because they felt they were the only entity constitutionally empowered to arm the militia under either Art I § 8 powers or your interpretation of the 2nd . . .
Jeerleader wrote:I would think that this would be the infancy of the "Arms for Militia" movement (there seems to have been an earlier bill introduced but it apparently did not move) and it seems to be a contentious issue and quite a departure to what was NOP, the citizens just arming themselves.
Congress does not seem to be debating this because they felt they were the only entity constitutionally empowered to arm the militia under either Art I § 8 powers or your interpretation of the 2nd . . .
You're indulging strawmen. I did not state that Congress felt that they were the only entity constitutionally empowered to arm the militia. I made no argument from an interpretation of the second amendment which stated or implied that Congress is the only entity which was constitutionally empowered to arm the militia.
If you wish to argue those points, perhaps you should first find someone who is making such an argument. My point in responding to Brandon is, as i stated more than once, that nowhere in the constitution, neither in Article One, Section Eight, nor in the Second Amendment, is there an explicit statement nor an implied statement to the effect that members of the militia are required to arm themselves.
Saying that the constitution does not require citizens to arm themselves does not constitute a statement that Congress is the sole entity empowered to arm the militia. It is simply an observation to the effect that Brandon's argument from a contention that the members of the militia are required to arm themselves is false.
As for your reference to the Congressional record for 1798, and Fishin's remarks concerning the 1792 militia act, those provide good inferential evidence that Congress considered that it had the power to decide those matters. So long as the courts do not rule that the Congress violates the constitution, the Congress giveth and the Congress taketh away. If the Congress can require members of the militia to provide themselves with arms, they can equally well revoke that requirement, and implement a different policy.
Setanta wrote:Jeerleader wrote:I would think that this would be the infancy of the "Arms for Militia" movement (there seems to have been an earlier bill introduced but it apparently did not move) and it seems to be a contentious issue and quite a departure to what was NOP, the citizens just arming themselves.
Congress does not seem to be debating this because they felt they were the only entity constitutionally empowered to arm the militia under either Art I § 8 powers or your interpretation of the 2nd . . .
You're indulging strawmen. I did not state that Congress felt that they were the only entity constitutionally empowered to arm the militia. I made no argument from an interpretation of the second amendment which stated or implied that Congress is the only entity which was constitutionally empowered to arm the militia.
If you wish to argue those points, perhaps you should first find someone who is making such an argument. My point in responding to Brandon is, as i stated more than once, that nowhere in the constitution, neither in Article One, Section Eight, nor in the Second Amendment, is there an explicit statement nor an implied statement to the effect that members of the militia are required to arm themselves.
Saying that the constitution does not require citizens to arm themselves does not constitute a statement that Congress is the sole entity empowered to arm the militia. It is simply an observation to the effect that Brandon's argument from a contention that the members of the militia are required to arm themselves is false.
As for your reference to the Congressional record for 1798, and Fishin's remarks concerning the 1792 militia act, those provide good inferential evidence that Congress considered that it had the power to decide those matters. So long as the courts do not rule that the Congress violates the constitution, the Congress giveth and the Congress taketh away. If the Congress can require members of the militia to provide themselves with arms, they can equally well revoke that requirement, and implement a different policy.
Just to make a little correction, I didn't intend to say that the members of members of militias are required to arm themselves. It was my intention only to express the opinion that the first phrase of the amendment isn't a limitation on the second.
Some preliminary thoughts on the supreme court's recent decision in District of Columbia v. Heller (.pdf), which marks the first time the court has held that the second amendment guarantees an individual right to bear arms.
Scalia, in his majority opinion, explains that the second amendment can be divided into a prefatory clause ("A well regulated Militia, being necessary to the security of a free State...") and an operative clause ("...the right of the people to keep and bear Arms, shall not be infringed"). Although Scalia admits "[l]ogic demands that there be a link between the stated purpose and the command," that link need only be explanatory. In other words, the prefatory clause clarifies any ambiguity in the operative clause, but it does not limit the right granted in the operative clause. Indeed, the right can go well beyond the prefatory clause.
Scalia also writes (p. 8):Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. [b]We do not interpret constitutional rights that way[/b]. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
(emphasis added) I'm glad Scalia finally recognizes that the constitution is a "living" document.
parados wrote:No doubt this is going to lead a ton of litigation about what constitutes common weapon. What might be "common" if it wasn't already restricted?
I doubt there will be a "ton" of litigation. I suspect a few small cases and things will sort themselves out fairly quickly.
Despite Scalia's extensive historical research, he seems to have missed something potentially important. Regarding the scope of US v. Miller, he states:We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. ... [i]Miller[/i] said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."
There's just one problem with this analysis: Miller upheld a federal law prohibiting the possession of sawed-off shotguns, yet such weapons (or their equivalents) were "in common use at the time" of the adoption of the second amendment. A blunderbuss, for instance, "is a muzzle-loading firearm with a flared, trumpet-like barrel which discharges lead shot upon firing. It is a kind of fowling piece or shotgun." Like a sawed-off shotgun, it has a barrel shorter than that of a rifle and is meant to be fired from the hip rather than from the shoulder. And it was even used by soldiers in the American War of Independence.General George Washington wrote to the Board of War on April 4, 1779, stating: "It appears to me that Light Blunderbusses on account of the quantity of shot they will carry, will be preferable to Carbines, for Dragoons, as the Carbines only carry a single ball especially in case of close action."
So if Miller truly stood for what Scalia now says it stood for, then the decision should have gone the other way. The supreme court should have found in favor of Miller, because he was carrying around a type of weapon that would have been in common use at the time of the second amendment's adoption. Indeed, he was carrying around a type of weapon that probably would have been used by the military at that time.
While Miller constrained the right to those cases where the gun's ownership was beneficial to the militia, they did not say it wasn't an individual right.
I've always read the first and second halves as entirely independent from each other, with the first half being a requirement that the government have a militia on hand, and the second half ensuring the militia was well-armed.
Letting the intent of the Framers apply to modern technology isn't quite what I'd call "living document" ideology.
I've always seen "living document" ideology as allowing any interpretation regardless of what the original writers intended.
However, the right to carry a gun for self defense was part of English Common Law, and that would have been covered by the Ninth Amendment, so Scalia is protecting an actual constitutional right here.
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. (emphasis added)
oralloy wrote:However, the right to carry a gun for self defense was part of English Common Law, and that would have been covered by the Ninth Amendment, so Scalia is protecting an actual constitutional right here.
I'm not so sure that the right to carry a firearm was part of the English common law. The English Bill of Rights declares: "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law." That's a pretty weak right, if it's a right at all. Presumably, Parliament could have just passed a law saying that no arms were allowed, and that would have been consistent with the "right" protected by the Bill of Rights.
Following the adoption of the English Bill of Rights, a series of English cases helped define the right to arms enjoyed by English subjects. These cases held that the Game Acts did "not extend to prohibit a man from keeping a gun for his necessary defence"26; "the mere having a gun was no offense . . . for a man may keep a gun for the defense of his house and family . . ."27; and "a gun may be kept for the defense of a man’s house."28 The individual nature of the right to arms protected by the English Bill of Rights was affirmed by the Recorder of London29 in a legal opinion which specifically provided that one of the rights protected thereby was individual self-defense.30 Finally, a common contemporary jury instruction on the meaning of the right to arms in the English Bill of Rights stated in part: "A man has a clear right to arms to protect himself in his house. A man has a clear right to protect himself when he is going singly or in a small party upon the road where he is traveling or going for the ordinary purposes of business."31
26 Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739).
27 Mallock v. Eastley, 87 Eng. Rep. 1370, 1374 (K.B. 1744).
28 Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752); accord, The King v. Thompson, 100 Eng. Rep. 10, 12 (K.B. 1787) (it is "not an offence to keep or use a gun"), and Rex v. Hartley, II Chitty 1178, 1183 (1782) ("a gun may be used for other purposes, as the protection of a man's house.").
29 A position roughly equivalent to the chief justice and general counsel of the City. See JOWITT'S DICTIONARY OF ENGLISH LAW 1510 (2d ed. 1977).
30 "Legality of the London Military Foot-Association" (July 24, 1780), reprinted in William Blizard, Desultory Reflections on Police: With an Essay on the Means of Preventing Crimes and Amending Criminals 59-63 (London 1785). " The lawful purposes, for which arms may be used, (besides immediate self-defence,) ..."
31 I REPORTS OF STATE TRIALS (New Series) 601-02(1970).
I'm not looking to the text of the English Bill of Rights for the self-defense-related right. I see that text as stating the militia-related right -- what later became the core of the Second Amendment.
oralloy wrote:While Miller constrained the right to those cases where the gun's ownership was beneficial to the militia, they did not say it wasn't an individual right.
So?
oralloy wrote:I've always read the first and second halves as entirely independent from each other, with the first half being a requirement that the government have a militia on hand, and the second half ensuring the militia was well-armed.
Even Scalia believes that the two clauses are linked.
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 defence 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.
Nineteenth, That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.
http://avalon.law.yale.edu/18th_century/ratva.asp
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss11.html
(the part where he proposed the amendments is sort of buried in the middle of the debate)
oralloy wrote:I'm not looking to the text of the English Bill of Rights for the self-defense-related right. I see that text as stating the militia-related right -- what later became the core of the Second Amendment.
Since you made a point about the English common law, and aren't looking to the English Bill of Rights for its source -- which statutes and precedents of English common law are you referring to as the source of the right?
Following the adoption of the English Bill of Rights, a series of English cases helped define the right to arms enjoyed by English subjects. These cases held that the Game Acts did "not extend to prohibit a man from keeping a gun for his necessary defence"26; "the mere having a gun was no offense . . . for a man may keep a gun for the defense of his house and family . . ."27; and "a gun may be kept for the defense of a man’s house."28 The individual nature of the right to arms protected by the English Bill of Rights was affirmed by the Recorder of London29 in a legal opinion which specifically provided that one of the rights protected thereby was individual self-defense.30 Finally, a common contemporary jury instruction on the meaning of the right to arms in the English Bill of Rights stated in part: "A man has a clear right to arms to protect himself in his house. A man has a clear right to protect himself when he is going singly or in a small party upon the road where he is traveling or going for the ordinary purposes of business."31
26 Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739).
27 Mallock v. Eastley, 87 Eng. Rep. 1370, 1374 (K.B. 1744).
28 Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752); accord, The King v. Thompson, 100 Eng. Rep. 10, 12 (K.B. 1787) (it is "not an offence to keep or use a gun"), and Rex v. Hartley, II Chitty 1178, 1183 (1782) ("a gun may be used for other purposes, as the protection of a man's house.").
29 A position roughly equivalent to the chief justice and general counsel of the City. See JOWITT'S DICTIONARY OF ENGLISH LAW 1510 (2d ed. 1977).
30 "Legality of the London Military Foot-Association" (July 24, 1780), reprinted in William Blizard, Desultory Reflections on Police: With an Essay on the Means of Preventing Crimes and Amending Criminals 59-63 (London 1785). " The lawful purposes, for which arms may be used, (besides immediate self-defence,) ..."
31 I REPORTS OF STATE TRIALS (New Series) 601-02(1970).
I'm not looking to the text of the English Bill of Rights for the self-defense-related right. I see that text as stating the militia-related right -- what later became the core of the Second Amendment.
I'm getting the self-defense right from case law from the time.
Note this excerpt from pages 8 & 9 of a Heller amicus:
Quote:Following the adoption of the English Bill of Rights...
joefromchicago wrote:oralloy wrote:While Miller constrained the right to those cases where the gun's ownership was beneficial to the militia, they did not say it wasn't an individual right.
So?
I'd count Miller as being the first time the Supreme Court held that the Second Amendment was an individual right.
Well, I respect Scalia immensely, but I'm pretty sure he is wrong there.
If you look at earlier drafts of the Second Amendment, it seems pretty clear that they were lumping different ideas together into the same text.
oralloy wrote:I'm not looking to the text of the English Bill of Rights for the self-defense-related right. I see that text as stating the militia-related right -- what later became the core of the Second Amendment.
I'm getting the self-defense right from case law from the time.
Note this excerpt from pages 8 & 9 of a Heller amicus:
Quote:Following the adoption of the English Bill of Rights...
Uh, you do see the problem here, don't you? You claim that you're not relying on the English Bill of Rights, it's just that the source that you're relying on is relying on the English Bill of Rights.
oralloy wrote:joefromchicago wrote:oralloy wrote:While Miller constrained the right to those cases where the gun's ownership was beneficial to the militia, they did not say it wasn't an individual right.
So?
I'd count Miller as being the first time the Supreme Court held that the Second Amendment was an individual right.
Because the court didn't say that it wasn't an individual right? You're kidding, right?
oralloy wrote:If you look at earlier drafts of the Second Amendment, it seems pretty clear that they were lumping different ideas together into the same text.
The 2d amendment says what it says, and the text must be the beginning of any interpretation of that text. First drafts don't count.
