Constitutional Conundrum?

joefromchicago wrote:

Well, I see only one case that says that the second amendment protects the state: that's US v. Tot, which is a circuit court decision. . . .

I'm not attaching any importance to Tot. I don't think it's a very well-reasoned opinion. If anyone is placing undue emphasis on this sixty-five year old lower court opinion, it's you and Heath. . . .

Actually, I doubt that Tot is used to dismiss much of anything these days..

I agree that Tot is a mess but it is the genesis of the "state's right" opinion in the lower federal courts. As time has passed court's now cite Stevens and Warin, these opinions repeat Tot's reasoning but are insulated from the illogical Tot dicta. Each of these cases lean on each other but make no mistake, it is Tot that is the foundation.

Stevens says:

"Since the Second Amendment right 'to keep and bear Arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm." -- Stevens v. United States, 440 F.2d 144 (6th Cir. 1971)

Warin repeats Stevens some five years later and cites Tot and seeks to officially close the book on individual rights claims.

It is clear that the Second Amendment guarantees a collective rather than an individual right. In Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971), this court held, in a case challenging the constitutionality of 18 U.S.C.App. s 1202(a)(1): [list]Since the Second Amendment right 'to keep and bear Arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.

See also, United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974); United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942), rev'd on other grounds, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943).

It would unduly extend this opinion to attempt to deal with every argument made by defendant and amicus curiae, Second Amendment Foundation, all of which are based on the erroneous supposition that the Second Amendment is concerned with the rights of individuals rather than those of the States.[/list]

U.S. v. Nelsen in 1988 follows the illustrious precedent and begins what I guess is phase II of the effort to dismiss individual rights claims by perverting a fundamental tenet of American government into a weapon against the Bill of Rights . . . Because the COTUS does not grant the right, none exists . . . Have these traitors no shame?

We also decline to hold that the Act violates the second amendment. Nelsen claims to find a fundamental right to keep and bear arms in that amendment, but this has not been the law for at least 100 years. In United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876), the Supreme Court overturned criminal convictions based on interference with supposed second amendment rights. "The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution." Id. at 553. Later cases have analyzed the second amendment purely in terms of protecting state militias, rather than individual rights. See, e.g., United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939); United States v. Oakes, 564 F.2d 384 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978); United States v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976). Nelsen has made no arguments that the Act would impair any state militia, and we do not see how such a claim could plausibly be made.

These Circuit court opinions have built on each other for years, each cribbing on a new twist to Tot's poor reasoning. No matter how pretty the paint and trim and shutters look from the outside, it's really an outhouse when you look inside.

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fisherman_obx wrote:

cjhsa wrote:
Big deal, so I join a mililtia. The fact that I purchase multiple hunting licenses every year, whose fees cover things such as conservation, wildlife management, and conservation officers, likely qualifies.

Actually, to be a member of the militia (as understood by the founders) the only qualification is that you, be capable of bearing arms and working in concert. Madison wrote that the militia constitutes 25% of this nation's total population and of those, 80% will "have arms in their hands." He presumed a number of militia would not, at any given time time, actually own a firearm.

Amazingly, his ratios have withstood the centuries and remain virtually spot-on today.

Is your last post directed at me?

No, just anyone who will listen.

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fisherman_obx wrote:

Setanta wrote:
This is false. In Presser versus the State of Illinois (1886), the court held . . .

Presser has nothing to do with the cases I cited, in the cases I cited my statement is proven correct.

So what? The cases you cite are not Supreme Court decisions. Perhaps it will surprise you to learn that Supreme Court decisions which conflict with appellate decisions void those appellate decisions. But this insistence on your part about the force of lower court decisions leads us to this:

Quote:

You do realize that I am discussing an entirely different series of cases touching on different issues than the familiar 2nd Amendment cases? When the issue is Roe v Wade do you introduce Lemon v. Kurtzman?

Look, I want to keep this thread focused on the state's right vs. judicial history theme. If you would be interested in exploring just how badly you are misreading Presser, (and Cruikshank & Miller too I fear) please start a new thread.

If you want to discuss abortion, or establishment clauses cases, perhaps you should start a new thread. Presser, Cruikshank and Miller are all germane because they refer to the applicability of the Second Amendment. I quoted the decision in Presser because the Court held that the Amendment binds the Federal Government, and not the states--the same is true of Cruikshank, although i did not quote it. Miller is significant because it is evidence that the Court holds that the Federal Government does have regulatory powers over firearms, in that it upheld the 1934 National Firearms Act. You're bleating about what is or is not unconstitutional, but you not only have no evidence that the Supreme Court finds firearms regulation unconstitutional, Miller is evidence that they do think so. Presser and Cruikshank provide evidence that the Supreme Court consistently considers that the Second Amendment binds the Federal Government, but not the states.

You can cite as many lower court decisions as you like, it won't change the clear evidence that in those cases in which the Supremes have visited or commented on the Second Amendment, they have found two things: that the Federal Government can regulate firearms, and that the states are not bound by the Second Amendment. The strong implication of your screed here is that you intend to suggest that no one in the United States has the right to regulate firearms. You fail to make your case.

Setanta wrote:

The point about "a well regulated militia" is that the militia can be regulated

Quote:

I will address this, just to get it out of the way. Of course regulations may be written for the organized militia but "well regulated" in the 2nd does not demand, command, qualify or establish such a legislative scheme to be extended to the private citizens.

The term "well regulated" certainly has a meaning and it has nothing to do with being under legislative or "regulatory" control, it is all about fitness for battle.

Well regulated is an accolade for a corps of troops who demonstrate a high level of precision and performance in military affairs, it describes the character of the force. If you doubt this please offer to me a new antonym for well regulated because the one that I've been using must be wrong . . .

Just like well regulated, the term I use for its antonym is a term that has been used in reference to the military and militia for centuries and surprisingly, is still used today. I guess that's because, unlike "well regulated" its definition has not undergone a mutation for political reasons.

The definition of the term I use is a characterization given to troops not equipped properly and that demonstrate substandard military exercises and/or when general conditions render them unfit for battle.

What term do I consider an antonym for well regulated? Without much brain stretching that term would be, "ILL-REGULATED."

If you know of a different term that would serve as a proper and logical antonym for "well regulated" please offer it, I would like to scrutinize it.

You may dance to your heart's content--as Miller clearly shows, the Supreme Court holds the well regulated clause as defining in the meaning of the Second Amendment. You may attempt more erudition and sophistication, but your argument is essentially the same as the argument of opponents of gun regulation who claim that the first clause of the Amendment is meaningless. You fail to make your case, despite your sneers and sarcasm about the meanings of words or terms. No part of any law, including amendments to the constitution, is simply window dressing. The Second Amendment guarantees to private citizens the right to keep and bear arms as members of a well regulated militia, and not merely as private citizens. On that basis, the power of the Federal Government to regulate firearms ownership has been upheld by Miller, and the right of the states to regulate firearms is inferentially upheld in Presser and Cruikshank--and decisions by the Supreme Court always trump appellate decisions. Cite other cases as much as you please, you won't change those basic facts.

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If SCOTUS were to truly review it, especially the D.C. case, I think us gun owners would have the last laugh, at least right now. God help us all if 2A ever gets shot down and we are forced to fight or bleat.

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You seem to think that this is an all-or-nothing matter--that your quixotic interpretation of the Second Amendment which holds that no one has any power to regulate firearms is the only valid interpretation, and that therefore any decisions will come down to whether or not you can keep firearms at all. That is false. Anyone who attempts to claim that the Second Amendment prohibits the right of the Federal or the state governments to regulate firearms is going to lose--but that won't mean that you can't keep firearms, it will just mean that you can't keep any damned gun you want, but rather, only those weapons permitted by law. So sad, too bad.

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I don't hunt with a fully automatic gun, but if I did, what would be your issue with that?

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I wouldn't have an issue with it--but if it were prohibited by state or federal law, someone with a badge might have an issue with it. You'll have to deal with them, not me--not me in the sense that you won't have to deal with me, and not me in the sense that i won't have to deal with them.

So, Bubba, do you shoot from the hip, and bring down one deer after the other? How does that work in Michigan, do you get more than one deer tag at the same time? Guys like you crack me up.

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The deer tag allocation varies from year to year, and within the various hunting periods. There's not only firearm, but muzzleloader and archery seasons (two). And don't forget minivan season. The tags issued are based on deer population estimates, which have gotten quite accurate over the last 100+ years.

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Which of course, is pretty standard--and doesn't answer my questions.

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? Which question doesn't it answer ?

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There were two questions, which you might have noticed, if you had paid attention to the question marks which ended those sentences.

Do you shoot from the hip, bringing down one deer after the other?

Do you get more than one deer tag at the same time?

In other words, do you use an automatic to hunt deer because you are allowed to shoot more than one deer on the same day, and you find it more efficient to use the automatic function of the weapon to shoot several deer within a few seconds? I'm just pointing up the hilarity of your comment about hunting with an automatic.

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I know a guy who used to hunt deer with an airplane using an automatic cannon. His name was Chuck Yeager.

I still don't understand your concern. I can load a fully automatic weapon with a single round.

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I'm not concerned, i'm amused.

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I can be pretty entertaining. Enlightening in fact, if you pay attention.

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You have never spewed any idiocy which i haven't heard hundreds of times before.

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So, you choose to ignore simple facts and truth. Why?

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fisherman_obx wrote:

He's not saying that, he's just dismissing a facet, a parallel of the state's right model. He's.saying the right stands apart from any qualification for exercise one MIGHT read into the provision (as an unavoidable outcome of reading it as a collective / state's right).

I have no reason to prefer your characterization of Heath's argument over mine when I cite Heath's own words and you don't. If there's something in Heath's article that contradicts my interpretation of his argument, then show it to me.

fisherman_obx wrote:

You are the one perpetuating the conflict and forcing the 2nd Amendment into being a nullity by applying the very construction Heath is attacking, release the 2nd for a moment from the confines of the collective / state's right model and the conflict with COTUS §8 powers is relieved.

That would be begging the question.

fisherman_obx wrote:

All Heath is saying is that enjoying or claiming the protection of the 2nd can not have any of those membership or activity burdens to meet, Heath is only pointing out another hurdle the state's right theory fails to clear. Such qualifications can not exist because apparently, the state's authority to authorize or demand such militia action has been ruled inoperative . . .

Not true. As I pointed out (and, indeed, as even Heath pointed out), the militia clause does not permit the federal government to abolish the state militias. Consequently, there will always be something for the second amendment to protect.

fisherman_obx wrote:

And that tiny sliver of power (whatever it may be) is retained without any appeal to the 2nd Amendment so Heath's and my point stands. Under Perpich, what the state is left with that falls under its exclusive control is not militia, it is called a "defensive force." From Heath: "Congress, under 32 U.S.C. Section 109(c) allows the states to keep, at their own expense, "defense forces" which are exempt from conscription into national service. These "forces," being not subject to federal call, are not the "militia" of Article I, Section 8, which is explicitly subject to federal call, and is presumably the same militia referred to in the Second Amendment." (emphasis added)

That, to put it mildly, is utter nonsense. Here's what the supreme court said in Perpich:

Congress has provided by statute that [i]in addition to its National Guard[/i], a State may provide and maintain at its own expense a defense force that is exempt from being drafted into the Armed Forces of the United States. See 32 U.S.C. 109(c). As long as that provision remains in effect, there is no basis for an argument that the federal statutory scheme deprives Minnesota of any constitutional entitlement to a separate militia of its own.
(Emphasis added) So, in other words, a state can have both a defense force and its National Guard, and both constitute the state's militia. Just because the federal government can federalize the National Guard doesn't mean that the state is deprived of its own militia.

fisherman_obx wrote:

You wouldn't be so out of breath if you weren't forcing yourself to jump through that "collective right" hoop. The basis for the collective / state's right model is now reduced to a thimbleful of residual powers that the federal courts have allowed the states to retain. Talk about "trickle down", it's a wonder why the framers bothered to waste the ink on something that has such a small influence and narrow scope. That is pitiful.

A waste of ink or not, that's what the second amendment says.

fisherman_obx wrote:

I just find it instructive that the laws impacting the arms of the private citizen are all written under the commerce clause. Another example that the constitutional militia powers have nothing to do with the arms of the private citizen...

I agree.

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cjhsa wrote:

So, you choose to ignore simple facts and truth. Why?

You need to be standing in front of a mirror when saying this.

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I tried it. I looked in a mirror and said "So, Set chooses to ignore simple facts and truths. Why?". But I couldn't answer the question.

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What a clown.

Rather than just puking up your silliness, why don't you specify what those "facts" are, and, in simple, unambiguous language, state the truth you claim i am ignoring.

Talk is cheap, and you prove it every time you put your fingers to the keyboard. Put your money where your big mouth is for once.

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