New Gura suit vs DC on 3/9

[Librarian]

“The Springfield XD-45 is approved for sale in Washington,” Gura noted, “so long as it is black, green, or brown, but her bi-tone version is supposedly ‘unsafe’.”

It's a carefully calculated presentation. Each firearm mentioned was specifically chosen to highlight a defect either in the California list or in DC's use of it.

In this case, Springfield apparently did not care to pay the bribe to get the particular model on the list, but it's readily apparent that all the XD-45's of that size are functionally identical - same materials and that sort of thing. One then asks 'why would the black one be acceptable but the bi-tone one not acceptable?'. There isn't a logical reason - there can't be even a 'rational basis' for this restriction, and the court has already explicitly rejected a 'rational basis' standard of review of laws regulating owning firearms for self-defense, in Heller; it isn't clear exactly what the standard of review is, but pretty good legal analysis I've heard suggests 'strict scrutiny' leads to contradictions, so it's likely to be a standard someplace in between.

This case might even get the courts to specify a standard of review, which would be helpful.

 

[cbrgator]

It's a carefully calculated presentation. Each firearm mentioned was specifically chosen to highlight a defect either in the California list or in DC's use of it.

That's absolutely right. Gura and Co. have sought out these plaintiffs, not vice versa. He and his associates have a carefully constructed framework with which they intend to overhaul the federal gov't's regulation of the 2A.

 

[yokel]

While were at it, let us clear up some confusion and lingering misunderstandings.

The Second Amendment preserves and guarantees an individual right for a collective purpose. That does not transform the right into a "collective right." The militia clause was a declaration of purpose, and preserving the people's right to keep and bear arms was the method the framers chose to, in-part, ensure the continuation of a well-regulated militia.

The reason the Second Amendment guarantees individual people the right to keep and bear arms, not the militia companies, is that there was a fear that the federal government would use its power to equip and call the militia to duty as a means to disarm the general population. It was therefore necessary that individuals, in their individual capacity, not their military capacity, have the right to have guns.

Although the National Guard is sometimes referred to as the modern-day militia, it is in fact a federal force, subject to the control of the president in almost the same fashion as regular troops. The patina of state control that remains is almost entirely cosmetic. As Yale law professor Akhil Amar writes: "Nowadays it is quite common to speak loosely of the National Guard as `the state militia,' but 200 years ago any band of paid, semiprofessional part-time volunteers, like today's Guard, would have been called 'a select corps,' or 'select militia'--and viewed in many quarters as little better than a standing army. In 1789, when used without any qualifying adjective, `the militia' referred to all Citizens capable of bearing arms." The statute books continue to reflect this distinction in vestigial form: Title 10, Section 311 of the U.S. Code declares that all military-age males, and some females, are members of "the unorganized militia of the United States."

Following the decision of the Supreme Court in District of Columbia v. Heller(2008), the de jure definition of "militia" as used in United States jurisprudence broadened once again. The court's opinion made explicit, in its obiter dicta, that the term "militia", as used in colonial times, and still today in this originalist decision, included both the federally-organized militia and the citizen-organized militias of the several States: "... the 'militia' in colonial America consisted of a subset of 'the people'—those who were male, able-bodied, and within a certain age range" (7) ... Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them"(23).

Justice Scalia writes that “when able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.” Maj. Op. at 25, an argument that may at first blush seem anachronistic and impractical but that history shows ought not be taken lightly.

The people cannot hope to realize their future warfighting militia capability without the appropriate hardware providing extremely robust firepower against ground-based infantry and armored vehicle targets.

In our defense of Second Amendment rights, we must emphasize the fundamental purpose of the amendment. If we leave the impression that we think that the right to keep and bear arms only concerns hunting and sports shooting, thwarting your general street-level criminal, and making sure Americans have the right to entertain themselves with guns, we will actually contribute to the false view that the Second Amendment is a historical curiosity.

 

[Gamera]

Great post yokel, but you're preaching to the choir here

 

[ServiceSoon]

If congress decides that the militia should be armed with brooms and shovels, then that is what the militia gets. The militia argument is not going to get the NFA or 922 declared unconstitutional. The constitution is very clear that congress provides for the arming of the militia.

I have a problem with this statement. Which you start to discuss in your next paragraph.

I know that what the constitution says is contrary to all of the comments I read here all the time about the militia clause protecting private ownership of basic Infantry weapons and the comments that since in the founding fathers time cannon and other artillery was privately owned. It's true they were privately owned, but simply because they weren't regulated. Congress clearly has the authority to decide how the militia is armed. Sorry to burst some bubbles.

We know there is two groups of the militia. In absence of Heller, by your reasoning congress could simply say "The unorganized militia can't have weapons." The organized militia has machine guns. How do we determine, based on the constitution or federalist papers, what weapons the unorganized militia should be allowed to have? I happen to agree with Gura that no judge would rule that the 922(o) infringment on machine guns should be overturned.

Please, one of the biggest things to come out of Heller was the complete divorce of 2A from "militia", it's an individual right, look forward not backwards.

Agreed. But then how do we answer the question in bold above?

 

[yokel]

Beyond applicability to the states or not, the standard of review is uncertain for laws that differ from the District of Columbia handgun ban that was nullified. Justice Scalia seems to eliminate rational basis as an insufficient standard, but not much else.

Depending on the standard of review to be named later, it is supposed that we will learn the answers to the questions that bedevil us now, including why carrying a concealed weapon beyond the home and hearth is not protected and also why licensing laws do seem - so long as they are not disguised as prohibitions - not to offend the "right." Similarly, we will know whether switchblades or mace or tazers are beyond "weapons typically possessed by law-abiding citizens for lawful purposes."

 

[Jeff White]

The people cannot hope to realize their future warfighting militia capability without the appropriate hardware providing extremely robust firepower against ground-based infantry and armored vehicle targets.

Yokel,
You want to point me to where Scalia mentioned antiarmor wepons? I can't seem to find it in my copy of the decision. I think you are reaching very hard to grasp something that isn't there.

We know there is two groups of the militia. In absence of Heller, by your reasoning congress could simply say "The unorganized militia can't have weapons." The organized militia has machine guns. How do we determine, based on the constitution or federalist papers, what weapons the unorganized militia should be allowed to have? I happen to agree with Gura that no judge would rule that the 922(o) infringment on machine guns should be overturned.

Article I Section 8 of the US Constitution says absolutely nothing about the organized and unorganized militia. It simply says that congress has the power to provide for the arming of the militia. Why do you think the antis so desperately wanted to tie RKBA to membership in the militia? Because congress can say how the militia is armed is why.

You won't find organized and unorganized militia mentioned in the Federalist Papers. The concept didn't exist until over 100 years after the Federalist Papers were written. We just had a militia until the Dick Act created the beginnings of the National Guard as we know it. The Dick Act was passed in 1903 and was the first federal reference to an organized and unorganized militia.

Try as hard as you like, you will never get a judge to go along with the idea that you have a right to own military weaponry so that you may fulfill your duty as a member of the militia. There is no way past Article I Section 8. You do not now, nor have you ever had a constitutional right to keep and bear any arm other then what congress provides for to fulfill your obligation as a militia member.

The Militia Act of 1792 was the first federal law that congress enacted under the authority granted to it in Article I Section 8 of the constitution:

http://www.constitution.org/mil/mil_act_1792.htm

The Militia Act of 1792, Passed May 8, 1792, providing federal standards for the organization of the Militia.

An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States.

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

II. And be it further enacted, That the Vice-President of the United States, the Officers, judicial and executives, of the government of the United States; the members of both houses of Congress, and their respective officers; all custom house officers, with the clerks; all post officers, and stage-drivers who are employed in the care and conveyance of the mail of the post office of the United States; all Ferrymen employed at any ferry on the post road; all inspectors of exports; all pilots, all mariners actually employed in the sea service of any citizen or merchant within the United States; and all persons who now are or may be hereafter exempted by the laws of the respective states, shall be and are hereby exempted from militia duty, notwithstanding their being above the age of eighteen and under the age of forty-five years.

III. And be it further enacted, That within one year after the passing of the Act, the militia of the respective states shall be arranged into divisions, brigades, regiments, battalions, and companies, as the legislature of each state shall direct; and each division, brigade, and regiment, shall be numbered at the formation thereof; and a record made of such numbers of the Adjutant-General's office in the state; and when in the field, or in serviced in the state, such division, brigade, and regiment shall, respectively, take rank according to their numbers, reckoning the first and lowest number highest in rank. That if the same be convenient, each brigade shall consist of four regiments; each regiment or two battalions; each battalion of five companies; each company of sixty-four privates. That the said militia shall be officered by the respective states, as follows: To each division on Major-General, with two Aids-de-camp, with the rank of major; to each brigade, one brigadier-major, with the rank of a major; to each company, one captain, one lieutenant, one ensign, four serjeants, four corporals, one drummer, and one fifer and bugler. That there shall be a regimental staff, to consist of one adjutant, and one quartermaster, to rank as lieutenants; one paymaster; one surgeon, and one surgeon's mate; one serjeant-major; one drum- major, and one fife-major.

IV. And be it further enacted, That out of the militia enrolled as is herein directed, there shall be formed for each battalion, as least one company of grenadiers, light infantry or riflemen; and that each division there shall be, at least, one company of artillery, and one troop of horse: There shall be to each company of artillery, one captain, two lieutenants, four serjeants, four corporals, six gunners, six bombardiers, one drummer, and one fifer. The officers to be armed with a sword or hanger, a fusee, bayonet and belt, with a cartridge box to contain twelve cartridges; and each private of matoss shall furnish themselves with good horses of at least fourteen hands and an half high, and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps. Each dragoon to furnish himself with a serviceable horse, at least fourteen hands and an half high, a good saddle, bridle, mail-pillion and valise, holster, and a best plate and crupper, a pair of boots and spurs; a pair of pistols, a sabre, and a cartouchbox to contain twelve cartridges for pistols. That each company of artillery and troop of house shall be formed of volunteers from the brigade, at the discretion of the Commander in Chief of the State, not exceeding one company of each to a regiment, nor more in number than one eleventh part of the infantry, and shall be uniformly clothed in raiments, to be furnished at their expense, the colour and fashion to be determined by the Brigadier commanding the brigade to which they belong.

V. And be it further enacted, That each battalion and regiment shall be provided with the state and regimental colours by the Field-Officers, and each company with a drum and fife or bugle-horn, by the commissioned officers of the company, in such manner as the legislature of the respective States shall direct.

VI. And be it further enacted, That there shall be an adjutant general appointed in each state, whose duty it shall be to distribute all orders for the Commander in Chief of the State to the several corps; to attend all publick reviews, when the Commander in Chief of the State shall review the militia, or any part thereof; to obey all orders from him relative to carrying into execution, and perfecting, the system of military discipline established by this Act; to furnish blank forms of different returns that may be required; and to explain the principles of which they should be made; to receive from the several officers of the different corps throughout the state, returns of the militia under their command, reporting the actual situation of their arms, accoutrements, and ammunition, their delinquencies, and every other thing which relates to the general advancement of good order and discipline: All which, the several officers of the division, brigades, regiments, and battalions are hereby required to make in the usual manner, so that the said adjutant general may be duly furnished therewith: From all which returns be shall make proper abstracts, and by the same annually before the Commander in Chief of the State.

VII. And be it further enacted, That the rules of discipline, approved and established by Congress, in their resolution of the twenty-ninth of March, 1779, shall be the rules of discipline so be observed by the militia throughout the United States, except such deviations from the said rules, as may be rendered necessary by the requisitions of the Act, or by some other unavoidable circumstances. It shall be the duty of the Commanding Officer as every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained, agreeably to the said rules of said discipline.

VIII. And be it further enacted, That all commissioned officers shall take rank according to the date of their commissions; and when two of the same grade bear an equal date, then their rank to be determined by lots, to be drawn by them before the Commanding officers of the brigade, regiment, battalion, company or detachment.

IX. And be it further enacted That if any person whether officer or solder, belonging to the militia of any state, and called out into the service of the United States, be wounded or disabled, while in actual service, he shall be taken care of an provided for at the publick expense.

X. And be it further enacted, That it shall be the duty of the brigade inspector, to attend the regimental and battalion meeting of the militia composing their several brigades, during the time of their being under arms, to inspect their arms, ammunition and accoutrements; superintend their exercise and maneuvres and introduce the system of military discipline before described, throughout the brigade, agreeable to law, and such orders as they shall from time to time receive from the commander in Chief of the State; to make returns to the adjutant general of the state at least once in every year, of the militia of the brigade to which he belongs, reporting therein the actual situation of the arms, accoutrement, and ammunition, of the several corps, and every other thing which, in his judgment, may relate to their government and general advancement of good order and military disciple; an adjutant general shall make a return of all militia of the state, to the Commander in Chief of the said state, and a duplicate of the same to the president of the United States.

And whereas sundry corps of artillery, cavalry and infantry now exist in several of the said states, which by the laws, customs, or usages thereof, have not been incorporated with, or subject to the general regulation of the militia.

XI. Be it enacted, That such corps retain their accustomed privileges subject, nevertheless, to all other duties required by this Act, in like manner with the other militias.

[Act of February 28, 1795, made small revisions in Sections 2, 4, 5, and 10 of Act of May 2, 1792. The 1795 act was the authority for ruling in Houston v. Moore, 1820. Other revisions were enacted April 18, 1814]

Sec. 2. And be it further enacted, That whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, [words requiring notification by an associate justice or district judge were omitted in 1795 revision. The revision gave the President more authority] the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed. And if the militia of a state, where such combinations may happen, shall refuse, or be insufficient to suppress the same, it shall be lawful for the President, if the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states most convenient thereto, as may be necessary, and the use of militia, so to be called forth, may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.

Sec. 4. And be it further enacted, That the militia employed in the service of the United States, shall receive the same pay and allowances, as the troops of the United States, [omitted in 1795: "who may be in service at the same time, or who were last in service, and shall be subject to the same rules and articles of war"]: And that no officer, non-commissioned officer or private of the militia shall be compelled to serve more than three months in any one year, nor more than in due rotation with every other able-bodied man of the same rank in the battalion to which be belongs.

Sec. 5. And be it further enacted, That every officer, non-commissioned officer or private of the militia, who shall fail to obey the orders of the President of the United States in any of the cases before recited, shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a court martial; and such officers shall, moreover, be liable to be cashiered by sentence of a court martial: [words added in 1795:] and be incapacitated from holding a commission in the militia, for a term not exceeding twelve months, at the discretion of the said court: and such non-commissioned officers and privates shall be liable to be imprisoned by the like sentence, or failure of payment of the fines adjudged against them, for the space of one calendar month for every five dollars of such fine.

Sec. 10. [revised to read:] And be it further enacted, That the act, intitled "Act to provide for calling forth the militia, to execute the laws of Union, suppress insurrections, and repel invasions," passed the second day of May one thousand seven hundred and ninety-two, shall be, and the same is hereby repealed.

APPROVED, February 28, 1795.

If you read the part I highlighted you will see what equipment congress proscribed for the militia. If Dame Sarah Brady had been alive then, she would have had a good legal argument that the government had a right to prohibit possession of weapons other then what is called for in the militia act. That is why Heller is so important. Heller split the second amendment the way the founders intended it to be read and gave us a right to keep and bear arms totally exclusive of membership in a militia.

 

[yokel]

Don't fall for the bogus either/or fallacy propogated by the gun control and confiscation cliques.

Again, it was meant to preserve and guarantee an individual right for a collective purpose. (That does not transform the right into a "collective right" or the right of a "collective.") The militia clause was a declaration of that purpose, and the clause following was the method the framers chose to, in-part, ensure the continuation of a well-regulated militia.

The majority opinion did not "split" the Second Amendment as you claim it did.

When Justice Scalia speaks of resisting tyranny in Heller, do you reckon that he's referring to private thugs instead of government tyrants?

 

[Jeff White]

Don't fall for the bogus either/or fallacy propogated by the gun control and confiscation cliques.

Again, it was meant to preserve and guarantee an individual right for a collective purpose. (That does not transform the right into a "collective right" or the right of a "collective.")

I'm not falling for anything. Where did I say it was a collective right? What I am saying is that if the court had not established an individual right totally separate from membership in a militia like it did, we would have been screwed.

The RKBA movement needs to drop any references to the militia. It's not needed and as I have proven, the government has the power in Article I Section 8 of the constitution to say what weapons are proper for the militia to use.

When Justice Scalia speaks of resisting tyranny in Heller, do you reckon that he's referring to private thugs instead of government tyrants?

The RKBA movement also needs to drop the stupid and totally unsupportable notion that the militia exists as some kind of check on government power. It never has. The militia is government power. Nothing in Heller overturned a word of Presser v. Illinois. Military organizations are still the job of the government. We used the militia as government power right after the nation was born to put down Shay's Rebellion. The militia as called for in the constitution, the various state laws and every federal law pertaining to it since the militia act of 1792 is an armed force controlled by the government. Anyone acting to resist tyranny by force of arms would be a criminal, revolutionary or insurrectionist, just like the founding fathers were.

Scalia was not referring to militia when he said we needed arms to resist tyranny. He was saying we needed arms to fight the militia to resist tyranny.

And you are stretching more then a little bit if you think that Heller is going to permit you to have machine guns, grenade launchers, AT4s, M72A3 LAWs or any other arm of that type without regulation.

We don't need the militia argument anymore, we have an individual rights ruling, it's time we dropped it from our arguments.

 

[natman]

Heller could actually mean the abolition of California?

My faith in the federal judiciary is beginning to be restored!

Not the whole thing!

Just the Handgun List would do.

 

[yokel]

The RKBA movement also needs to drop the stupid and totally unsupportable notion that the militia exists as some kind of check on government power. It never has. The militia is government power.

Scalia was not referring to militia when he said we needed arms to resist tyranny. He was saying we needed arms to fight the militia to resist tyranny.

So, what you're saying is that we need arms in order to resist the miltia, i.e., the government's military power.

Have I got that right?

I fail to see how that might work for an oppressed people who are totally unorganized, undisciplined and outgunned.

 

[Jeff White]

So, what you're saying is that we need arms in order to resist the miltia, i.e., the government's military power.

Yep

Have I got that right?

You certainly do.

I fail to see how that might work for an oppressed people who are totally unorganized, undisciplined and outgunned.

See American Revolution. The founding fathers did not use the existing militias and they created the Continental Army out of whole cloth. They created their own government, they formed their own militia units. They were declared to be criminals by the Crown and by the loyalists who lived in the colonies. There were loyalist militia units who fought on the side of the British. Much of the bloodiest fighting in the South, particularly in South Carolina was American on American.

The militia as defined in the US constitution, the state laws and codes is part of the government, not a check against it. Show me one federal or state law that gives a private citizen the power to call up the militia and overthrow an oppressive government. You can't because it doesn't exist. The militia system was chosen because the founders had a great distrust of a large standing army. They recognized that they had to provide some form of defense for the nation, but they didn't want a large standing army that a president might use in foreign adventures. So they put most of the burden of defending the nation on the militia.

They made certain that military power rested almost totally in the hands of the federal government. Article I Section 10 of the Constitution forbids the states from keeping troops (which is what the militia is when called up, a military force) in peacetime:

http://www.usconstitution.net/const.html#A2Sec1

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

If you have any doubt that the militia as provided for in the constitution is a military force that is at the disposal of the government all you have to do is read Article I Section 8 of the constitution:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

When someone decides the government is to tyrannical to live under and resists by force of arms, that person has started an insurrection. And Article I Section 8 provides for the calling forth of the militia to suppress the insurrection. Which is exactly what President Washington did to put down Shay's rebellion.

The militia clause in the second amendment is about defending the country, not about overthrowing the government. The right to keep and bear arms to over throw a tyrannical government comes from the individual right to keep and bear arms that was recognized in Heller.

You have no right under the second amendment or any other amendment to be a member of a private military organization. In Presser v. Illinois the court said this:

http://supreme.justia.com/us/116/252/case.html

The right voluntarily to associate together as a military company or organization or to drill or parade with arms without and independent of an act of Congress or law of the state authorizing the same is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system, they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine.

Scalia didn't overturn this in Heller. The militia is the government. When you decide to over throw the government by force of arms, you aren't the militia as defined in the constitution. You are a criminal and an insurrectionist unless you win.

The second recognizes the right to keep and bear arms to throw off a tyrannical government, but under the individual night, not under the militia clause.

 

[Dr. Fresh]

Jeff, you have established that the government has the power to arm the militia as it sees fit. What I do not see is where it has the power to limit the arms of the militia as it sees fit. The way I read it, they can arm, but not disarm, the militia (other than taking back military arms at the end of a conflict perhaps).

 

[Jeff White]

Jeff, you have established that the government has the power to arm the militia as it sees fit. What I do not see is where it has the power to limit the arms of the militia as it sees fit.

Article I Section 8 says:

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

When you provide for the organizing and arming of a military unit, (and that's exactly what the militia is when called into service) you say how many men each unit has and how they are to be equipped. The militia act of 1792 spelled out exactly what each unit was to have. Congress even stated that:

And whereas sundry corps of artillery, cavalry and infantry now exist in several of the said states, which by the laws, customs, or usages thereof, have not been incorporated with, or subject to the general regulation of the militia.

In other words, those units that existed but didn't fit into the force structure that congress wanted when they wrote the militia act were left to the states and were not to be part of the militia when called into federal service.

This continues today with all military units in the US Army having a Table of Organization and Equipment. For example a rifle company can't have fighter planes.

Perhaps a state guard force that isn't part of the militia available to federal government would not have to follow what congress proscribes in the way of equipment, but it would certainly have to follow what the state legislature decided they should have.

The constitution and the Presser decision are very clear in that the government can tell the militia what equipment it may use.

We need to forget the militia clause. The militia is under government control. Being a member of the militia only entitles you to have what congress or the state government says that you can have.

 

[JWF III]

He thinks there is no shot for full-autos. In his words, "there is nobody in this country that wears a robe to work who will overturn that regulation." He also does not find them necessary for civilians.

I'd just be happy to get rid of the '86 law and open up the books again. And get rid of the '68 law and have them imported again. Get the prices down to where they should be, even though present owners wouldn't be happy. The $200 is the easy part now., it's price of the weapon that has most people priced out of them.

Wyman

 

[Flyboy]

Where did I say it was a collective right?

You do not now, nor have you ever had a constitutional right to keep and bear any arm other then what congress provides for to fulfill your obligation as a militia member.

Seems to me that you said quite clearly that your Constitutional right is limited to what Congress provides for the [collective] militia.

The RKBA movement also needs to drop the stupid and totally unsupportable notion that the militia exists as some kind of check on government power. It never has. The militia is government power.

The concept of American government at the time of the Founders was a collection of strong state governments that held considerable power. I agree with you that the individual citizen was not meant to be a check on the power of the Federal government, but the militia was intended to allow the states to keep the Feds in check.

I grant you, two-and-a-quarter centuries have led to substantial evolution (some would say "devolution") of the relationship between State and Fed that render this particular idea obsolete, but in context, it makes good sense.

 

[Flyboy]

The founding fathers did not use the existing militias....

Some units chose to be loyal to the King, but we used a lot of local militia, starting with Capt. Parker's Lexington Militia on 19 April 1775. Capt. Davis's Acton Militia did a fine job of pushing the regular troops back across North Bridge at Concord, and uncountable militiamen drove the regulars back to Boston under heavy fire, inflicting nearly 20% casualties upon the regulars who came out that fateful day.

 

[legaleagle_45]

everallm wrote:

Please, one of the biggest things to come out of Heller was the complete divorce of 2A from "militia", it's an individual right, look forward not backwards.

I do not believe this is correct. What Heller establishes is that the 2nd "includes" the individual right of self defense. This does not exclude an "individual militia right" as well.

I think this is the biggest problem for both sides of the argument... the right to keep and bear arms has always served two distinct purposes and protected two distinct underlying individual rights. Blackstone identified these two seperate individual rights as the individual right of "resistance" (for lack of some better terminology, I will call this the militia right) and the individual right of "self preservation" (which is quite clearly the right of self defense, despite the idiotic claims of Saul Cornell).

The gun grabbers like to pretend that the right of "resistance" is the only thing there and use an amazing act of contortion to try to transform it into a collective right. Since Heller, we have been emphasizing the right of "self preservation" and merely giving lip service to the resistance aspect. IMHO the 2nd includes and protects both and Heller in no way forecloses that methodology.

I have edited this post to include a copy of the complaint filed by Gura for the benefit of the legal nerds amongst us...

 

[everallm]

The finding is

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
2 DISTRICT OF COLUMBIA v. HELLER
Syllabus
of the operative clause. The “militia” comprised all males physically
capable of acting in concert for the common defense. The Antifederal-
ists 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.


Divorced from an exclusive linkage to the militia

 

[legaleagle_45]

Divorced from an exclusive linkage to the militia

Agreed... with "exclusive" being the key term.

 

[Frog48]

Article I Section 8 of the US Constitution says absolutely nothing about the organized and unorganized militia. It simply says that congress has the power to provide for the arming of the militia.

The function of a constitutional amendment is to alter or nullify a previous article, section, clause, or amendment of the constitution.

In this case, the the Second Amendment could be interpreted as to alter or nullify Art. I Sec. 8's prescription that Congress determines the arming of the militia.

 

[Jeff White]

Quote:
Originally Posted by Jeff White
You do not now, nor have you ever had a constitutional right to keep and bear any arm other then what congress provides for to fulfill your obligation as a militia member.

Seems to me that you said quite clearly that your Constitutional right is limited to what Congress provides for the [collective] militia.

What part of to fulfill your obligation as a militia member is so hard to understand? Article I Section 8 gives congress the power to provide for arming the militia. Which is why Heller separating the right to keep and bear arms, from militia membership is so important. It eliminates the collective right argument entirely.

The concept of American government at the time of the Founders was a collection of strong state governments that held considerable power. I agree with you that the individual citizen was not meant to be a check on the power of the Federal government, but the militia was intended to allow the states to keep the Feds in check.

It never worked out that way in practice. What would have kept a president from calling the militia into federal service and using it to enforce the will of the federal government if a state decided to use it as a check on federal power? That exact scenario happened in 1954 when the governor of Arkansas tried to use the militia (national guard) to prevent the integration of schools. President Eisenhower federalized the Arkansas ARNG and the next day they were standing beside the federal troops enforcing integration. A states militia being a check on federal power is a quaint idea, but it was rendered useless by the provision in the constitution making the militia available to the federal government. Seems to me the founders paid lip service to the idea of an armed check on federal power.

Some units chose to be loyal to the King, but we used a lot of local militia, starting with Capt. Parker's Lexington Militia on 19 April 1775. Capt. Davis's Acton Militia did a fine job of pushing the regular troops back across North Bridge at Concord, and uncountable militiamen drove the regulars back to Boston under heavy fire, inflicting nearly 20% casualties upon the regulars who came out that fateful day.

I don't dispute this. But the idea that all 13 colonies called up their militias to throw the British out is not true. The country was divided and both sides formed their own militias. The revolution in South Carolina was closer to being a civil war then a fight to throw the British out.

The function of a constitutional amendment is to alter or nullify a previous article, section, clause, or amendment of the constitution.

In this case, the the Second Amendment could be interpreted as to alter or nullify Art. I Sec. 8's prescription that Congress determines the arming of the militia.

Nice try Grant, but I doubt the writers of the constitution would write something into the Constitution and at the same time nullify it. The only place the militia clause in the second amendment is going to give everyone the right to possess any weapon they want without regulation is in the dreams of the gun culture.

 

[Frog48]

Nice try Grant, but I doubt the writers of the constitution would write something into the Constitution and at the same time nullify it.

It wasnt at the same time. The original text of the Constitution was completed September 17, 1787. The Bill of Rights was not proposed until 1789, nor ratified until December 15, 1791.

I'm not saying I'm right, just that it could be argued that way.

 

[Dave Markowitz]

(He does draw the line at automatic weapons though. He has no intention to fight that issue. Just in case you were curious.)

I heard him say that it's not viable to pursue atm, not that he thinks automatic weapons should be illegal.

This is correct. I asked him this in person. Gura feels that (at least for now) it is a losing proposition to try to get a court to recognize that the 2A protects individual ownership of MGs. It's a case of picking your battles.

 

[cbrgator]

This is correct. I asked him this in person. Gura feels that (at least for now) it is a losing proposition to try to get a court to recognize that the 2A protects individual ownership of MGs. It's a case of picking your battles.

When I spoke with him, he also stated that he was not in favor of MG ownership... in addition to it being a losing proposition.