Gun Control: Bill to Ban Clips Over 10 Rounds

In US v. MILLER 3O7 US 174,(1939)
the US Supreme Court approved the
Second Amendment commentary of Judge Thomas M. Cooley:
"The right declared was meant to be a strong moral check
against the usurpation and arbitrary power of rulers and as
a necessary and efficient means of regaining rights when
temporarily overturned by usurpation.

"The right is general- It may be supposed from the
phraseology of this provision that the right to keep and
bear arms was only guaranteed to the militia but this would
be an interpretation NOT warranted by the intent....But the
law may make provision for the enrollment of all who are fit
to perform military duty, or of a small number only, or it may
wholly omit to make any provision at all and if the right were
limited to those enrolled, THE PURPOSE OF THE GUARANTY
MIGHT BE DEFEATED ALTOGETHER BY THE ACTION OR
NEGLECT TO ACT OF THE GOVERNMENT IT WAS MEANT
TO HOLD IN CHECK.

The meaning of provision undoubtedly
is that THE PEOPLE from whom the militia must be
taken shall have the right to keep and bear arms and
THEY NEED NO PERMISSION OR REGULATION OF LAW
FOR THE PURPOSE." [All emphasis has been added by David.)

1 Reply

@High Seas,

High Seas wrote:

Since the 2 promoters of this Bill freely admit it has not the slightest chance of passage, what do you think is the purpose for which they propose it to begin with? I'm asking you because my impression is that you're generally sympathetic to restrictions on guns and ammo, and I genuinely want to know.

Presumably, it would be to gauge support for such a bill in the future, put legislators on record as either for or against the measure, payback for supporters, etc. In other words, the same reasons that the Republicans in the House passed a bill to overturn health insurance reform.

1 Reply

@joefromchicago,

High Seas wrote:

Since the 2 promoters of this Bill freely admit it has not the slightest chance of passage, what do you think is the purpose for which they propose it to begin with? I'm asking you because my impression is that you're generally sympathetic to restrictions on guns and ammo, and I genuinely want to know.

joefromchicago wrote:

Presumably, it would be to gauge support for such a bill in the future, put legislators on record as either for or against the measure, payback for supporters, etc. In other words, the same reasons that the Republicans in the House passed a bill to overturn health insurance reform.

That can only happen if the bill comes to a vote.
In the House, the bill is most likely
to be forgotten to death in committee.

Possibly, there might be a vote in the Senate.
I doubt that the Senators will desire that to happen.

David

0 Replies

@OmSigDAVID,

OmSigDAVID wrote:

The meaning of provision undoubtedly
is that THE PEOPLE from whom the militia must be
taken shall have the right to keep and bear arms and
THEY NEED NO PERMISSION OR REGULATION OF LAW
FOR THE PURPOSE." [All emphasis has been added by David.)

Evidently the framers of the constitution were wrong, then, when they wrote about "a well-regulated militia", not just any militia, "being necessary for the security of a free state".

2 Replies

@Thomas,

OmSigDAVID wrote:

The meaning of provision undoubtedly
is that THE PEOPLE from whom the militia must be
taken shall have the right to keep and bear arms and
THEY NEED NO PERMISSION OR REGULATION OF LAW
FOR THE PURPOSE." [All emphasis has been added by David.)

Thomas wrote:

Evidently the framers of the constitution were wrong, then,
when they wrote about "a well-regulated militia",
not just any militia, "being necessary for the security of a free state".

No. In the parlance of the times and of earlier centuries leading up thereto,
there were 2 species of militia:

1) "selected militia" whose members were chosen by government

and

2) "well regulated militia" the guys in the naborhood
who were supposed to come running
when an alarm bell was rung, (like a private volunteer fire dept.)

In Article I Section 8, subsections 15 & 16
of the Constitution, we see the creation
of a selected militia.
We know it to be such because it is expressly
sponsored by governments.

On the other hand, "well regulated militia"
referred to militia who were private
and were trained to the discipline of battle;
the manuvers of infantry combat.
That sense also meant that the young fellows
woud not shoot up the town, when thay felt frisky
and thay were well equipped with their own guns
and their own ammunition and accoutrements of war,
which were the men's own property brought from home.

In theory, "well regulated militia" coud be brought
into combat with "selected militia".

Something like that happened in 1857,
when the City of New York had 2 police departments.
Thay went to war with each other at City Hall
when one of them arrested Mayor Fernando Wood.

1 Reply

@Thomas,

In other words,
"a well-regulated militia being necessary to the security of a free state" was intended to mean:
"an armed, trained citizenry being being necessary to the security of a free state. . . "

David

0 Replies

@OmSigDAVID,

That wasn't my point, David. On what legal theory does the term "well-regulated militia" preclude the government from regulating what the Militia Act calls "the unorganized militia", and what you call "the guys in the naborhood"?

1 Reply

@Thomas,

Thomas wrote:

That wasn't my point, David. On what legal theory does the term "well-regulated militia" preclude the government from regulating what the Militia Act calls "the unorganized militia", and what you call "the guys in the naborhood"?

Thomas, I am not aware of any conflict between that statute
and the 2nd Amendment.

I woud only add to that,
that because of the 2nd Amendment,
the citizens have a Constitutional Right
to organize themselves into units of militia,
if such be their choice, the same as thay can
begin a bird watching society (altho there is NO explicit Constitutional Right to watch birds,
but there IS one to organize private militia).

For anyone who cares:
I am not a member of any private militia.

David

1 Reply

@OmSigDAVID,

OmSigDAVID wrote:

Thomas, I am not aware of any conflict between that statuteand the 2nd Amendment.

Thanks for clarifying. I thought you did see a conflict. After all, the proposed bill would do nothing but regulate the unorganized militia, and you did seem to have a problem with that on Second-Amendment grounds.

2 Replies

@Thomas,

OmSigDAVID wrote:

Thomas, I am not aware of any conflict between that statute and the 2nd Amendment.

Thomas wrote:

Thanks for clarifying. I thought you did see a conflict. After all, the proposed bill would do nothing but regulate the unorganized militia, and you did seem to have a problem with that on Second-Amendment grounds.

I am perplexed.
HOW woud the unorganized militia be affected?

Are we still discussing Carolyn 's magazine ban ?

Is an amendment to the Militia Act
being contemplated? Maybe I 'm missing something.

David

1 Reply

@OmSigDAVID,

As far as I am concerned, we are still discussing the magazine ban, and whether it's permissible under the Second Amendment

My position on it is this: One of the ways in which the law regulates the militia---organized or not---is by defining which kinds of weapons it can use. On the face of it, this doesn't infringe on the right to bear arms because the right itself had never been absolute. Before the Second Amendment, the 1689 English Bill of Rights governed the right to bear arms in America. It clearly envisions legal regulations about permissible kinds of arms: "[T]he subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law." (Emphasis added---T.) So if the government passes a law saying that magazines with more than 10 rounds are not suitable for a citizen's self-defense, that would have been fine under the old English Bill of rights.

Is it your position that the Second Amendment abolished the law's power under the English Bill of Rights to control which arms are deemed suitable for a citizen's defense? If so, please show me evidence from its drafting and ratification process.

3 Replies

@Thomas,

Thomas wrote:

As far as I am concerned, we are still discussing the magazine ban,
and whether it's permissible under the Second Amendment

I assert that it is NOT
because of the operative language of the 2nd Amendment, to wit:
". . . the right of the people to keep and bear arms
shall not be infringed." The earlier militia clause
explains the reason that the rights to keep and to carry arms
must be left inviolate, and it adds a right of the
armed citizens to organize themselves into units
of private militia, if thay like.
We shoud bear in mind that there were NO police
anywhere in the USA, nor in England in the 1700s,
when the Bill of Rights was enacted.
Accordingly, the citizens might need
to defend themselves either individually,
or in a group of friends to give chase
to some criminals or a pack of wolves, as the case may be.

Thomas wrote:

My position on it is this: One of the ways in which the law regulates the militia---organized or not---is by defining which kinds of weapons it can use. On the face of it, this doesn't infringe on the right to bear arms because the right itself had never been absolute. Before the Second Amendment, the 1689 English Bill of Rights governed the right to bear arms in America. It clearly envisions legal regulations about permissible kinds of arms: "[T]he subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law." (Emphasis added---T.) So if the government passes a law saying that magazines with more than 10 rounds are not suitable for a citizen's self-defense, that would have been fine under the old English Bill of rights.

Is it your position that the Second Amendment abolished the law's power under the English Bill of Rights to control which arms are deemed suitable for a citizen's defense? If so, please show me evidence from its drafting and ratification process.

The liberty of the English Bill of Rights (such as it was) of 1689 was preserved intact
by the 9th Amendment of the US Constitution.
That lesser freedom is added to the universal
freedom to keep and carry arms that is protected
by the 2nd Amendment; it was freedom added to greater freedom.
The 2nd Amendment simply ensured that government
will remain with NO jurisdiction over
a citizen's possession of defensive personal weapons.

Some things were put beyond the reach
of government by the Bill of Rights, including guns and their appurtenances.

David

1 Reply

@Thomas,

My position is that restricting ammunition capacity in small arms is not permissible under the second amendment.

0 Replies

@OmSigDAVID,

OmSigDAVID wrote:

The liberty of the English Bill of Rights (such as it was) of 1689 was preserved intact by the 9th Amendment of the US Constitution.

So far, I agree.

OmSigDAVID wrote:

That lesser freedom is added to the universal freedom to keep and carry arms that is protected by the 2nd Amendment; it was freedom added to greater freedom. The 2nd Amendment simply ensured that government will remain with NO jurisdiction over a citizen's possession of defensive personal weapons.

I understand that this is what you think. But the more important question is, did the framers of the US constitution think so, too? Did they actually intend to revoke the power of legislatures to regulate which weapons are suitable to the citizens' conditions pertaining to self-defense, and hence allowed by law? To accept that they did, I would need to see evidence from the Second Amendment's drafting or ratification. Nobody in this thread has offered such evidence yet.

2 Replies

@Thomas,

Thomas wrote:

OmSigDAVID wrote:
The liberty of the English Bill of Rights (such as it was) of 1689 was preserved intact by the 9th Amendment of the US Constitution.

So far, I agree.

OmSigDAVID wrote:
That lesser freedom is added to the universal freedom to keep and carry arms that is protected by the 2nd Amendment; it was freedom added to greater freedom. The 2nd Amendment simply ensured that government will remain with NO jurisdiction over a citizen's possession of defensive personal weapons.

I understand that this is what you think. But the more important question is, did the framers of the US constitution think so, too? Did they actually intend to revoke the power of legislatures to regulate which weapons are suitable to the citizens' conditions pertaining to self-defense, and hence allowed by law? To accept that they did, I would need to see evidence from the Second Amendment's drafting or ratification. Nobody in this thread has offered such evidence yet.

The drafting was done in secret, Thomas;
open to Delegates only, so far as I understand,
so qua such requested proof,
I don 't believe that I can go that route.
I doubt that anyone can do that.

I 'll see what I can find,
but some of it might be redundant
from what I have posted here or elsewhere.
I have no way of knowing what u have already seen and read,
unless u responded to it.

I know that u r a physicist,
but I recognize in u a good legally talented mind, Thomas.
I believe that u 'd have made an admirable lawyer.

David

1 Reply

@Thomas,

I shoud add this:
we can delight ourselves in examining the relevant Constitutional history
qua the Bill of Rights and argue what is right or rong,
but I cannot predict the moods and sentiments
of 5 Justices of the USSC.

Thay can be fully faithful to their oath
to support the Constitution (NOT to amend it),
or thay can jiggle it around.
The Founders can 't speak up in defense.
The Founders can 't fight back.

The future will reveal.

0 Replies

@Thomas,

Thomas, take a look at the language marked in red
and see what u think. The judge's point
is that one of the reasons for the 2nd Amendment
was to facilitate the removal of a tyrannical government by the citizens;
another Revolution, if that proved to be necessary.
One adversary cannot be expected to regulate
what weapons will be brought against it in war.
What do u think of that ?

David

In US v. MILLER 3O7 US 174,(1939)
the US Supreme Court approved the
Second Amendment commentary of Judge Thomas M. Cooley:
"The right declared was meant to be a strong moral check
against the usurpation and arbitrary power of rulers and as
a necessary and efficient means of regaining rights when
temporarily overturned by usurpation.

"The right is general- It may be supposed from the
phraseology of this provision that the right to keep and
bear arms was only guaranteed to the militia but this would
be an interpretation NOT warranted by the intent....But the
law may make provision for the enrollment of all who are fit
to perform military duty, or of a small number only, or it may
wholly omit to make any provision at all and if the right were
limited to those enrolled, THE PURPOSE OF THE GUARANTY
MIGHT BE DEFEATED ALTOGETHER BY THE ACTION OR
NEGLECT TO ACT OF THE GOVERNMENT IT WAS MEANT
TO HOLD IN CHECK.

The meaning of provision undoubtedly
is that THE PEOPLE from whom the militia must be
taken shall have the right to keep and bear arms and
THEY NEED NO PERMISSION OR REGULATION OF LAW
FOR THE PURPOSE." [All emphasis has been added by David.]

1 Reply

@OmSigDAVID,

OmSigDAVID wrote:

The drafting was done in secret, Thomas; open to Delegates only, so far as I understand,
so qua such requested proof, I don 't believe that I can go that route. I doubt that anyone can do that.

The Second Amendment may have been drafted in secret---I don't know---but it certainly was ratified in the open. The public, the press, and state legislatures of the time must have discussed openly what they were about to ratify. This should shed light on the meaning of the amendment's language, as Americans of the 1790s understood it. If they really understood the Second Amendment to abolish all gun control regulations that the English Bill of Rights would have approved of, that would have been a drastic change in public policy, which people must have discussed.

0 Replies

@OmSigDAVID,

OmSigDAVID wrote:

Thomas, take a look at the language marked in red and see what u think. [...]

I think it means that people have the right to bear and hold arms even if the government doesn't regulate anything. And it implies that the government cannot repeal the right under the guise of regulating gun ownership. But it doesn't mean that all gun control regulations are unconstitutional on their face. We know the Miller court didn't mean that, because it proceeded to uphold a gun control regulation banning sawed-off shotguns.

0 Replies

@High Seas,

High Seas wrote:

Krumple wrote:

.... by banning these clips it will only make things worse not better. People who want the clips will still find them so banning does absolutely nothing.

I disagree, and have stated reasons for that: attempts to ban clips over 10 rounds will accomplish something, an increased contempt for any such new legislative attempts. Any actual ban via passing a - hypothetical - law will of course result in increasing general lawlessness and contempt for all laws.

That's the immutable law of unintended (by those 2 legislators) consequences, and I wonder why they don't see that - or do they?

Here is one example for you. In mexico just having ammunition can get you a prison sentence. You don't even need to have a gun to go with it, just the bullets is good enough. Yet they still have huge amounts of gun violence, but why? Because banning dose nothing but make it evident to a criminal who has a gun and who doesn't. It's free advertisement for those who are already willing to break laws. When you know your victim is unarmed, it gives you the upper hand if you want to take advantage of them. That is the ONLY thing that banning weapons does. It doesn't provide any additional security what so ever. It is a fallacy that anti gun activists try to spread, but it is unsupported and in fact there is mounds of evidence that says just the opposite of what they try to proclaim. Banning weapons does nothing to make people safer and that is a fact.

1 Reply

Gun Control: Bill to Ban Clips Over 10 Rounds

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