A question regarding the US v Miller decision.

[hansberrym]

If Miller did not have standing to bring a second amendment defense in the lower court case which was decided in his favor, why didn't the Supreme Court simply say so and end the case right there instead of overturning and sending it back to the lower court for further hearings on the basis of whether or not a sawed-off shotgun was any part of the ordinary military equipment?

Since the Supreme Court reviewed the case without finding any lack of standing on Miller's part, the logical conclusion is that Miller did in fact have standing in the eyes of the Supreme Court to bring a Second Amendment challenge. Furthermore the history provided by the Court in US v. Miller showing that the militia meant every able bodied man, and that each man was to supply his own weapon, further illustrates the court's view on whether the second amendment applied to individuals, as opposed to the states only, or to the people in a collective sense only.

It could not have escaped the Supreme Court's attention that Mr. Miller was not a state, nor was he the people in a collective sense. He was obviously a private individual who successfully challenged a conviction on second amendment grounds in a lower court and had won in the lower court. If the Supreme Court had actually interpreted the second amendment to refer only to a collective or state's right as the Ninth Circuit claims in Silveira, then the Supreme Court surely would have ruled that Miller had no standing to bring the second amendment challenge in the first place and would have overturned the lower court ruling on that basis.


From US v. Miller:
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. Blackstone’s Commentaries, Vol. 2, Ch. 13, p. 409 points out ‘that king Alfred first settled a national militia in this kingdom’ and traces the subsequent development and use of such forces.(end quote from Miller) (my emphasis)




Note how differently the Ninth Circuit defines the militia and treats the issue of standing.



From SILVEIRA v. LOCKYER:

22 SILVEIRA v. LOCKYER
B. Appellants Lack Standing to Challenge the Assault
Weapons Control Act on Second Amendment
Grounds.
<2> Appellants contend that the California Assault Weapons
Control Act and its 1999 revisions violate their Second
Amendment rights. We unequivocally reject this contention.
We conclude that although the text and structure of the
amendment, standing alone, do not conclusively resolve the
question of its meaning, when we give the text its most plausible
reading and consider the amendment in light of the historical
context and circumstances surrounding its enactment we
are compelled to reaffirm the collective rights view we
adopted in Hickman: The amendment protects the people’s
right to maintain an effective state militia, and does not establish
an individual right to own or possess firearms for personal
or other use. This conclusion is reinforced in part by
Miller’s implicit rejection of the traditional individual rights
position.16 Because we hold that the Second Amendment does
not provide an individual right to own or possess guns or
other firearms,17 plaintiffs lack standing to challenge the
opinion. Instead, we would be required to call for en banc review. See
Morton v. De Oliveira, 984 F.2d 289, 292 (9th Cir. 1993) (“nly the
court sitting en banc may overrule a prior decision of the court.”). Because we reaffirm Hickman here, however, an en banc call by the panel is not necessary.
16Although Miller is consistent with both the limited individual rights position and the collective rights view, for reasons we explain below we continue to adhere to the collective rights view we adopted in Hickman.
17We concluded in Hickman that because the individual plaintiff had no legally protectable interest under the Second Amendment, he lacked constitutional standing to bring a claim under that provision. Other courts have addressed Second Amendment claims on the merits, rather than under the rubric of standing doctrine. See, e.g., Gillespie, 185 F.3d at 710 (offering an informed discussion not only of the standing issue but also of some of the amendment’s possible applications). Although in every case we are required to examine standing issues first, see

(end quote)

[WhiskeyTangoFoxtrot]

1. I'll only comment to say

There are those around here that tend to selectively read Miller and to a degree Emerson as well, while believing whole heartedly in the Ninth Circuit's decisions.


Call it selective reading, selective thinking, whatever. They also believe that the second amendment was placed into the Constitution for the National Guard which came ~130 years after.

Good luck on this topic.

[Romulus]

2. don't forget

some in the same crowd argue their point by claiming that the Fourth Amendment is a "collective" right that no individual can assert. :eyes:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

[library_max]

3. You're arguing a distinction without a difference.

Both Miller and Silveira make the same point - that the Second Amendment does not confer a RKBA on private citizens outside the context of the militia. The difference was that Miller was decided in 1939, when the potential for an armed citizen militia still existed, and Silveira was decided recently, when that potential was dead, dead, dead.

This fixation on the appellant's standing proves nothing and means nothing. It does, I suppose, give you an excuse to ignore the clear and specific language of the Miller decision itself (which is still the law of the land) if you really, really want to.

[hansberrym]

4. Miller and Silveira do not make the same point,...

nor were they decided on the same reasoning. Miller and Aymette were decided on the TYPES of arms, but Silveira and Hickman were decided on STANDING, or to put it another way, WHOSE right was protected by the second amendment. In fact, Aymette specifically states that citizens have the right to keep arms, provided the arms be of the type useful for the common defense.



Silveira does not merely say that the Second Amendment does not confer a RKBA on private citizens outside the context of the militia, it says that the RKBA is ONLY a collective right. Silveira in fact rejects the limited individual right interpretation.

On the other hand, Miller does not even come close to saying as much as you coyly suggest that it does. The Miller decision (like Aymette) recognizes limits only on the types of arms that can be kept by the individual, not who can own them.



As to your comment on ignoring the language of the Miller decision,
how do you square the Silveira definition of "militia" with the Supreme Court's definition in Miller?

How do you square the Silveira definition of "bearing arms" with the Supreme Court's definition in Miller? Note that the Miller court itself used the term to mean carrying arms.

"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time



Note that both terms are used in the actual Miller opinion, so it is disingenuous at best for the Silveira Court to claim fidelity to that precedent while ignoring the meanings given to the individual words of the opinion by that Supreme Court.

Add the word "keep" to the list for good measure. Why do you suppose that the Miller court supplied a history lesson showing that various states had laws on the books requiring each man to provide himself, or "keep", a supply of arms? The Silveira court claims not to know the significance of the term "keep" while at the same time rejecting the teaching of the Supreme Court.

[library_max]

5. Miller was decided in 1939

Before the US entered World War II, before the draft was reinstated, when there was some reasonable expectation that a militia of armed citizens might again be called upon to provide their own weapons for the common defense. Silveira was decided in recent times, when such a citizen militia is nothing more than a fantasy.

From US v. Miller:

"In the absence of evidence tending to show that possession or use of a "shotgun having a barrel of less than 18 inches in length," which is the subject of regulation and taxation by the National Firearms Act of June 26, 1934 (26 U. S. C. 1132c), has some reasonable relationship to the preservation or efficiency of a well-regulated militia, it cannot be said that the Second Amendment to the Federal Constitution guarantees the right to keep and bear such an instrument, or that the statute violates such constitutional provision." (bolding for emphasis mine)

Also from US v. Miller:

"The Second Amendment must be interpreted and applied with a view to its purpose of rendering effective the Militia."

Thus making it clear that the decision in US v Miller was based on the interpretation that the Second Amendment applies only in the context of a militia and does not protect individual ownership of firearms by private citizens for other purposes. And this interpretation is still the law of the land.

[WhiskeyTangoFoxtrot]

6. So are you trying to say

That the 2nd, according to Miller, protects my right to own military arms, and not a goose gun?

[mosin]

7. Yes

Yes. That was the holding of Miller, essentially. It was a factual holding that a sawed-off shotgun was not shown to be useful to service in a militia. Of course the problem was that no one appeared to argue for Miller and Miller died shortly thereafter. It is hardly a very convincing case for either side to hang their hats on.

[library_max]

10. And yet it is the one watershed case cited in every single 2nd Amendment

case since. So I guess a whole bunch of Supreme Courts have found it convincing enough for their purposes.

[MrBenchley]

11. And you will notice

it is always quoted to uphold gun control...and never by those pushing gun rights.

[Columbia]

14. Too bad Miller never actually addressed the substantive right

U.S. Supreme Court

Nos. 95-1478 and 95-1503

JAY PRINTZ, SHERIFF/CORONER, RAVALLI COUNTY, MONTANA, PETITIONER 95-1478 v. UNITED STATES RICHARD MACK, PETITIONER 95-1503

on writs of certiorari to the united states court of appeals for the ninth circuit

June 27, 1997

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/000/95%2D1478.html

Our most recent treatment of the Second Amendment occurred in United States v. Miller, 307 U.S. 174 (1939), in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Id., at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.

[FeebMaster]

15. Miller's lawyer should have gone to Washington

whether Miller was dead or not. Come on, how often does a lawyer get to argue a case before the Supreme Court?

[Columbia]

16. Yes, that seems quite strange

I'm not a big conspiracy theorist, but you're right, how often does that sort of thing happen? Could there be a "vast anti-gun conspiracy"? Was Miller killed and his lawyer threatened so the NFA could live on? What gives?

[happyslug]

27. If you have read anything about Miller, his demise was not unexpected.

Miller lead a wild life and sooner or later one of Friends or enemies (or business partners which tended to be Friends AND enemies) would have gunned him down:

For more details see:

http://www.enterstageright.com/archive/articles/0801/0801usvmiller.htm

http://www.geocities.com/hollywood/academy/9884/bp_Miller.html

http://caselaw.lp.findlaw.com/data/constitution/amendment02 /

For the Miller case itself:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&v...

[library_max]

17. In that case, please post a case that did.

Other cases have ruled, based on Miller, that the Second Amendment does not provide a Constitutional guarantee of individual RKBA outside the context of an armed citizen militia. Miller clearly established that principle and is so interpreted to this day. Can you find any case to the contrary?

[Columbia]

28. That is the point, that case does not exist

The USSC refuses to rule on a true 2nd Amendment case. There are lower circuit cases out there that conflict on the individual rights standing, and the issue is just yelling to be addressed. However, the court is just too scared to take on such a controversial topic. They prefer to maintain the status quo than causing a huge public uproar either way they rule.

[library_max]

33. The case that supports gun controls exists.

Its name is US v Miller. There are others, but they all go back to that one.

The case that doesn't exist is a case that supports RKBA. I don't know why you guys think that a total absence of a case supporting your side of the argument (when all the actual cases support our side) supports your argument.

[Columbia]

71. Miller is meaningless

Both sidse cite it as support. If you go by the literal meaning, all one has to do is show that a weapon is part of "ordinary military equipment" to own it. If Miller was alive and had representation, he could have easily shown instances of a short barrel shotgun being used as a military weapon during WWI and the NFA very likely would not exist today. Unfortunately, no case was made and it was remanded.

Oh, and look up Emerson v US and you will find an individual rights interpretation of the 2nd. Thus, you have your conflicting rulings in lower courts and yet the USSC still refuses to take up anything related to gun rights.

[library_max]

77. Both sides do not cite it as support.

Not in court, they don't. On DU, I guess you can get away with it.

Every Second Amendment case since has been decided based on the reasoning in the "meaningless" Miller case.

Perhaps a quote from Emerson (or even better, a link) would help to make the case you are trying to make with it. The USSC is treating the issue as settled, by Miller.

[Columbia]

81. Actually they do.

Others have already posted Emerson quotes and links recently, so I'm sure you've seen it by now. The issue is not settled, no matter how often you try to tell yourself it is.

[library_max]

85. Fine. Since you ask so nicely, I will do your research for you.

Here is the text of the Fifth District Appeals Court on Emerson. Note in the penultimate paragraph (second from the end) it declares Emerson's Second Amendment argument to be "without merit." It also affirmed his conviction and rejected his other Constitutional arguments.

The complete text of the Emerson decision (January 2004):

Timothy Joe Emerson has appealed his convictions for possession of a firearm while under a restraining order in violation of 18 U.S.C. § 922(g)(8). Previously this court reversed the district court's order dismissing the indictment on constitutional grounds. See United States v. Emerson, 270 F.3d 203, 264-65 (5th Cir. 2001).

Emerson first contends that <**2> his convictions should be reversed because the facts of the case establish the defense of entrapment by estoppel and that his attorney rendered ineffective assistance in failing to request a jury instruction on that defense. Emerson raised these questions for the first time in his motions for judgment of acquittal and for a new trial.

Because Emerson did not request a jury instruction on the defense of entrapment by estoppel, we review for plain error the district court's failure to give the instruction. See United States v. Hickman, 331 F.3d 439, 443 (5th Cir. 2003). The district court's denial of the motion for judgment of acquittal is reviewed de novo. See United States v. Izydore, 167 F.3d 213, 219 (5th Cir. 1999). The denial of a motion for a new trial, a disfavored motion, is reviewed for an abuse of discretion. See United States v. Sullivan, 112 F.3d 180, 182 (5th Cir. 1997). Although questions of ineffective assistance of counsel are generally not resolved on direct appeal, we reach the issue in this case because the issue was raised in Emerson's motion for a new trial and because the record has been developed adequately. <**3> See United States v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999).

Under governing Fifth Circuit law, the defense of entrapment by estoppel was not available to Emerson. Emerson was not "actively misled" by a duly empowered federal official about the legality of his possession of firearms while under the state restraining and protective orders. See United States v. Ortegon-Uvalde, 179 F.3d 956, 959 (5th Cir. 1999); United States v. Spires, 79 F.3d 464, 466-67 (5th Cir. 1996). This court has already held that Emerson was placed on constructive notice of the existence of federal firearms laws pertaining to domestic relations cases. See United States v. Emerson, 270 F.3d at 216. To the extent that Emerson actually perceived a conflict between his duties under the state court order and federal law, Emerson could have sought clarification from the state court. It would not have been objectively reasonable for Emerson to rely on the state court's order requiring him not to dispose of property as a pretext for possessing firearms. See United States v. Trevino-Martinez, 86 F.3d 65, 69 (5th Cir. 1996). <**4> No error has been shown, plain or otherwise. Because Emerson has not shown that he has a valid entrapment-by-estoppel <*699> defense, he cannot show that his attorney's failure to request an instruction on the defense or to object to the lack of an instruction was professionally unreasonable or that he was prejudiced. See Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

Next, Emerson has raised various constitutional challenges to the legality of 18 U.S.C. § 922(g)(8). The constitutionality of the statute was considered in the prior appeal in this case. See Emerson, 270 F.3d at 212-72. Under the law-of-the-case doctrine, "an issue of fact or law decided on appeal may not be reexamined . . . by the appellate court on a subsequent appeal." United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002).

The argument that Congress exceeded its authority under the Commerce Clause by enacting 18 U.S.C. § 922(g)(8) has been rejected by this court. See Emerson, 270 F.3d at 217; see also United States v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998). <**5> Citing a footnote in our prior opinion, see 270 F.3d at 217 n.8, Emerson argues that his possession of firearms was purely passive as the firearms were purchased prior to 1993 and that, since that date, the weapons had never left Tom Green County, Texas. Emerson argues also that counts one and two charged him with "purely passive" possession of firearms on December 10, 1998. These arguments are without merit. "Possession of a firearm is active, not passive, conduct." United States v. Shelton, 325 F.3d 553, 564 (5th Cir. 2003). Moreover, Emerson never attempted to dispute that the weapons charged in the indictment never traveled in interstate commerce after 1994. See Emerson I, 270 F.3d at 217, n.8; see also United States v. Lee, 310 F.3d 787, 788 (5th Cir. 2002); United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).

Emerson's Tenth Amendment argument is barred because it was waived in the prior appeal, see Emerson I, 270 F.3d at 218. "The waiver doctrine bars consideration of an issue that a party could have raised in an earlier appeal in the case." United States v. Castillo, 179 F.3d 321, 326 (5th Cir. 1999), <**6> rev'd on other grounds, 530 U.S. 120, 147 L. Ed. 2d 94, 120 S. Ct. 2090 (2000). His contention that this statute violates the Second Amendment was rejected in the court's prior opinion. See Emerson, 270 F.3d 203 at 260 at 260-63.

Emerson contends that 18 U.S.C. § 922(g)(8) violates the Fifth Amendment guarantee of due process, facially and as applied to him. Emerson complains: (1) that the statute does not require express notice of the deprivation of the right to keep and bear arms; (2) that application of the statute in this case was fundamentally unfair because it was impossible for him to maintain the assets of the marital estate and to divest himself of possession of his guns; and (3) that the statute criminalizes passive activity in violation of the rule in Lambert v. People of the State of California, 355 U.S. 225, 228-30, 2 L. Ed. 2d 228, 78 S. Ct. 240 (1957). Emerson distinguishes between his firearms possession on November 16, 1998, as charged in count three of the superseding indictment, and his possession on December 10, 1998, as charged in counts one and two, suggesting that the former possession was "active" and the latter was <**7> "passive."

As was previously discussed, a similar argument was rejected in Shelton, 325 F.3d at 564, in which we clarified that "possession of a firearm is active, not passive, conduct." Moreover, Emerson's first and third contentions have been rejected and are without merit. In Emerson I, 270 F.3d at 216-17, the court noted in a footnote that this case does not present a situation in which possession of the firearm was incident to a good faith effort by the defendant to rid himself of continued <*700> possession of a previously possessed firearm. Id. at 216 n.6. The panel also rejected the Lambert argument. Id. Application of the statute to Emerson was not fundamentally unfair.

Regarding his sentence, Emerson objects to the assessment of a criminal history point pursuant to U.S.S.G. § 4A1.1(c). Because, as he admits, assessment of the criminal history point did not affect his sentence, any error by the district court was harmless. See Williams v. United States, 503 U.S. 193, 202-03, 117 L. Ed. 2d 341, 112 S. Ct. 1112 (1992); United States v. Jackson, 22 F.3d 583, 585 (5th Cir. 1994).

Emerson also objected in <**8> the district court that U.S.S.G. § 2K2.1(a)(5) violates the Second Amendment as applied to him. The probation officer concluded that Emerson's base-offense level was 18, under U.S.S.G. § 2K2.1(a)(5), because the offense involved a firearm described in 18 U.S.C. § 921(a)(30) (defining the term "semiautomatic assault weapon"), i.e., a Polytech Model AK47S. Emerson argues that he legally possessed the Polytech AK47S prior to entry of the state court order. He argues also that the Guideline makes no distinction between semiautomatic assault weapons grandfathered under 18 U.S.C. § 922(v) and those which are not. In so doing, he contends, " § 2K2.1(a)(5) artificially inflates the punishment for those who lawfully exercise their Second Amendment right to own a grandfathered semiautomatic assault weapon and later become subject to a prohibition . . . ." This argument is without merit.

Under 18 U.S.C. § 922(v)(1) it is generally unlawful to possess a semiautomatic assault weapon. The assault-weapon ban does not apply "to the possession or transfer of any semiautomatic assault weapon otherwise lawfully possessed under <**9> Federal law on the date of the enactment" of subsection 922(v). See 18 U.S.C. § 922(v)(2). The exemption in 18 U.S.C. § 922(v)(2) applies only to prosecution for violations of 18 U.S.C. § 922(v)(1). Congress enacted 18 U.S.C. § 922(v) to address the increased threat and harm resulting from criminals and mentally deranged individuals using semiautomatic assault weapons to commit unlawful violence. See H. R. REP. NO. 103-489, 12-20 (1994), reprinted in 1994 U.S.C.C.A.N. 1801, 1820-28. The sentencing guideline does not exempt pre-ban weapons. See U.S.S.G. § 2K1.2(a)(5). The Sentencing Commission's decision to punish offenses involving such weapons more severely is "reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms . . . ." Emerson, 270 F.3d at 261.

For the foregoing reasons, the judgment and sentence are AFFIRMED.

[hansberrym]

121. More from the Emerson decision

We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller. However, because of our holding that section 922(g)(8), as applied to Emerson, does not infringe his individual rights under the Second Amendment we will not now further elaborate as to the exact scope of all Second Amendment rights.
VI. Application to Emerson
The district court held that section 922(g)(8) was unconstitutionally overbroad because it allows second amendment rights to be infringed absent any express judicial finding that the person subject to the order posed a future danger. In other words, the section 922(g)(8) threshold for deprivation of the fundamental right to keep and bear arms is too low.(61)

Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. Indeed, Emerson does not contend, and the district court did not hold, otherwise. As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms. See note 21, supra.(62) Emerson's argument that his Second Amendment rights have been violated is grounded on the propositions that the September 14, 1998 order contains no express finding that he represents a credible threat to the physical safety of his wife (or child), that the evidence before the court issuing the order would not sustain such a finding and that the provisions of the order bringing it within clause (C)(ii) of section 922(g)(8) were no more than uncontested boiler-plate. In essence, Emerson, and the district court, concede that had the order contained an express finding, on the basis of adequate evidence, that Emerson actually posed a credible threat to the physical safety of his wife, and had that been a genuinely contested matter at the hearing, with the parties and the court aware of section 922(g)(8), then Emerson could, consistent with the Second Amendment, be precluded from possessing a firearm while he remained subject to the order.

[Columbia]

124. Nice try, sneakster

The real, actual decision is here - http://laws.lp.findlaw.com/5th/9910331cr0.html

Some excerpts:

We conclude that Miller does not support the government's
collective rights or sophisticated collective rights approach to
the Second Amendment. Indeed, to the extent that Miller sheds
light on the matter it cuts against the government's position.
Nor does the government cite any other authority binding on this
panel which mandates acceptance of its position in this
respect.(21) However, we do not proceed on the assumption that
Miller actually accepted an individual rights, as opposed to a
collective or sophisticated collective rights, interpretation of
the Second Amendment. Thus, Miller itself does not resolve that
issue.(22) We turn, therefore, to an analysis of history and
wording of the Second Amendment for guidance. In undertaking
this analysis, we are mindful that almost all of our sister
circuits have rejected any individual rights view of the Second
Amendment. However, it respectfully appears to us that all or
almost all of these opinions seem to have done so either on the
erroneous assumption that Miller resolved that issue or without
sufficient articulated examination of the history and text of
the Second Amendment.

...


We turn now to the Second Amendment's preamble: "A well-regulated
Militia, being necessary to the security of a free
State." And, we ask ourselves whether this preamble suffices to
mandate what would be an otherwise implausible collective rights
or sophisticated collective rights interpretation of the
amendment. We conclude that it does not.

Certainly, the preamble implies that the substantive
guarantee is one which tends to enable, promote or further the
existence, continuation or effectiveness of that "well-regulated
Militia" which is "necessary to the security of a free State."
As the Court said in Miller, immediately after quoting the
militia clauses of Article I, § 8 (cl. 15 and 16), "ith
obvious purpose to assure the continuation and render possible
the effectiveness of such forces the declaration and guarantee
of the Second Amendment were made." Id., 59 S.Ct. at 818. We
conclude that the Second Amendment's substantive guarantee, read
as guaranteeing individual rights, may as so read reasonably be
understood as being a guarantee which tends to enable, promote
or further the existence, continuation or effectiveness of that
"well-regulated Militia" which is "necessary to the security of
a free State." Accordingly, the preamble does not support an
interpretation of the amendment's substantive guarantee in
accordance with the collective rights or sophisticated
collective rights model, as such an interpretation is contrary
to the plain meaning of the text of the guarantee, its placement
within the Bill of Rights and the wording of the other articles
thereof and of the original Constitution as a whole.(32)

...

We agree with the district court that the Second Amendment
protects the right of individuals to privately keep and bear
their own firearms that are suitable as individual, personal
weapons and are not of the general kind or type excluded by
Miller, regardless of whether the particular individual is then
actually a member of a militia.(66)

[library_max]

127. You're both quoting the 2001 decision, which was superseded by the 2004

decision. I quoted the entire text of the 2004 decision in post #85. It was the last word on the subject, and it said simply that Emerson's Second Amendment argument was without merit.

Regarding the 2001 decision by a lower court, it included a lot of pointless verbiage about the Second Amendment, but when it came to actually applying it to the Emerson case, it concluded that there was no application. So this was just an attempt to "make a statement" in contradiction of all the other circuits (as the 2001 decision explicitly admits) without applying it to the case at hand, so that it could not be overturned. As the appeals court rejected Emerson's Second Amendment argument out of hand, presumably it would have overturned the district court's ruling if it had been based on that Second Amendment interpretation, which it wasn't.

Why try to palm off an older case by a lower court and pretend that it's the "real" case? And then try to pretend that I'm the one who's lying? Try to tone down the bullshit a notch, please, gentlemen.

[hansberrym]

140. Yes, the 2004 case superceded AND upheld the 2001 decision.

It also agreed with the reasoning and even managed to get the phrase "the right of Americans generally to keep and bear their private arms" into their actual holding. Indeed that was the Emerson Court's last word on the subject.



From the 2004 Emerson decision provided earlier by Library_max:

"The Sentencing Commission's decision to punish offenses involving such weapons more severely is "reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms . . . ." Emerson, 270 F.3d at 261
(end quote)


The meaning of the phrase "the right of Americans generally to keep and bear their private arms" can not be misunderstood. It is a recognition of an individual RKBA by the 2004 Emerson Courtin their actual holding.

The 2004 did not disagree with this aspect of the 2001 decision, nor with what the 1999 court said in general about an individual RKBA. The disagreement with the 1999 court was on specifics of where to draw the line concerning an individual RKBA and public order. This was also the heart of the matter in Miller and Aymette.

[library_max]

142. The phrase cannot be misunderstood?

Better go explain it to the Ninth Circuit and the other courts then. All the actual decisions are going against your interpretation, with not one single exception. Not one single case has been decided in favor of the gun owner and against the gun control law on Second Amendment grounds. Not one.

[hansberrym]

155. Judge Reinhardt is not unaware of his own lies, therefore explaining

his "error" to him would be pointless.

[library_max]

160. Wow. Nice attitude. Thank goodness gun owners respect the law.

:eyes:

[hansberrym]

174. You are confused again. Judge Reinhardt is NOT the Law.

What respect had Judge Reinhardt shown for the Law?, for precedence?

His feigned ignorance of the meaning of "keep" and his use of the John Adams quote from A Defense of the Constitution demonstrate that he is not worthy of respect.

[library_max]

180. No, he just interprets the law.

And his interpretations have the force of law, unless overturned. Which they have not been. Somehow, your personal opinion has not been enough to keep Silveira from being a binding precedent, at least in the Ninth.

[hansberrym]

188. Do you support his interpretation : "the state" = "the people" ? (n/t)

[library_max]

196. Well, since he DIDN'T SAY THAT, I guess I don't have to support it.

[hansberrym]

204. No? Throughout Silveira, the court swaps

"right of the state" for "right of the people".


How else does "the right of the people to keep and bear arms" become a "right of the state to arm thier militia", if not by equating "state" and "people".


There is NO "right of the state" in the second amendment, there is only "a right of the people". Even if taken as a collective right of the people, it can not become a right of the state without equating/ or purposely bluring the lines between the terms "State" and "People".






(from Silveira)
After conducting our analysis of the meaning of the
words employed in the amendment’s two clauses, and the
effect of their relationship to each other, we concluded that
the language and structure of the amendment strongly support
the collective rights view. The preamble establishes that the
amendment’s purpose was to ensure the maintenance of effective
state militias, and the amendment’s operative clause
establishes that this objective was to be attained by preserving
the right of the people to “bear arms” — to carry weapons in
conjunction with their service in the militia. To resolve any
remaining uncertainty, we carefully examined the historical
circumstances surrounding the adoption of the amendment.
Our review of the debates during the Constitutional Convention,
the state ratifying conventions, and the First Congress,
as well as the other historical materials we have discussed,
confirmed what the text strongly suggested: that the amendment
was adopted in order to protect the people from the
threat of federal tyranny by preserving the right of the states
to arm their militias. The proponents of the Second Amendment
believed that only if the states retained that power could
the existence of effective state militias — in which the people
could exercise their right to “bear arms” — be ensured. The
historical record makes it equally plain that the amendment
was not adopted in order to afford rights to individuals with
respect to private gun ownership or possession. Accordingly,
we are persuaded that we were correct in Hickman that the
collective rights view, rather than the individual rights mod-
(end quote)


Furthermore "keep and bear arms" referred to the actions of an individual person so it hardly makes sense that the RKBA would be a reference to an EXCLUSIVELY collective right.

“Keep” means to provide oneself with arms and to constantly maintain supply (as in the contemporary militia acts of NY, MA, VA, and the and federal 1792 Militia Act). From the Virginia Act cited in Miller; “every officer and private …shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by the commanding officer…” (my emphasis)

“Bear arms” At a minimum this phrase refers “to render military service in person” as per Madison’s draft of the amendment and other references describing “bearing arms” as the action of an individual person.

Madison: “…no person scrupulous of bearing arms, shall be compelled to render military service in person ”. (my emphasis)

George Wyethe of the Virginia convention: “…that any person scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.”

Also the court quoted from the Rhode Island convention: (Nearly identical to Wyethe) “…that any person scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.”

Note that all three sources cited by the 9th Circuit use the term “bearing arms” to indicate an individual’s action- as opposed to a collective or state action.

And while these specific references concern military service, just as the collective rights advocates claim, this does not preclude a broader meaning. Note that there is nothing in the wording to make it a conditional ( such as; if, when, only, etc.) However the clear reference to individual action, does disprove the court's claim that ONLY Collective Rights are intended.

The Silveira Court has taken the untenable position of saying ONLY Collective rights, when in fact there are unmistakable references to individual action during the congressional debates. The same argument can be used against those who advocate an exclusively individualistic interpretation- these advocates must explain away the references to military service or yield. The only position supported by all of the facts is the one that says both individual rights and security of the state are protected by the Second Amendment.

[library_max]

211. This is merely your unsupported opinion.

In the writing style of the Eighteenth Century, an introductory clause constructed like the one in the Second Amendment would mean, in modern English, "Because a well-regulated militia is necessary . . ." or "Insofar as a well-regulated militia . . . "

If the Silveira Court's opinion is "untenable," why hasn't it been reversed? It was the basis for their decision, so it can be reversed, unlike the irrelevant verbiage in Emerson.

[hansberrym]

219. "Because" has a different meaning than "if" or "when".

The words "if" or "When" introduce a conditional. But there is no "if" or "when" in the second amendment.

Even if the amendment began as you suggest "Because a well regulated..." it would still be a DECLARATIVE statement and not a conditional or qualifier.


Furthermore the preamble (as it is sometimes called) to the Second Amendment, has paralells to the preamble of the 1785 militia act of Virginia shown below.

{excerpted from US V. Miller}
The General Assembly of Virginia, October, 1785 (12 Hening’s Statutes c. 1, p. 9 et seq.), declared:

‘The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.’

It further provided for organization and control of the Militia and directed that ‘All free male persons between the ages of eighteen and fifty years,’ with certain exceptions, ‘shall be inrolled or formed into companies.’ ‘There shall be a private muster of every company once in two months.’ Also that ‘Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o’clock in the forenoon, armed, equipped, and accoutred, as follows: ... every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good <307 U.S. 174, 182> powder, and four pounds of lead, including twenty blind cartridges; and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer. If any private shall make it appear to the satisfaction of the court hereafter to be appointed for trying delinquencies under this act that he is so poor that he cannot purchase the arms herein required, such court shall cause them to be purchased out of the money arising from delinquents.’
{end of excerpt}



Note the similarities between the 2 preambles.

Preamble to the 1785 Virginia act cited in US v. Miller(above):
”The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.”

Preamble (for lack of a better word) to Second Amendment:
”A well regulated militia, being necessary to the security of a free state,...”



The phrase "A well regulated militia" is similar in meaning to the phrase "citizens properly armed and taught the knowledge of military duty". (see Federalist 29 for Hamilton's views of a well regulated militia)

The phrase "the defense and safety of the commonwealth" is similar in meaning to the phrase "security of a free state".

The relationship A "is necessary" to B, is similar to the relationship
that B "depends" on A.



Since it can be shown that individuals at that time had a DUTY to "Keep" arms and to serve in the militia in person, a RIGHT to do the same is certainly a plausible reading of the amendment. What objection could there be to recognizing a broad RIGHT to keep arms, considering there was at that time a broad DUTY to keep arms?


Note also from the above citation the use of the term militia is a reference to the people rather than the organization:

Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. (end quote)


Also note that these militia were allowed to carry rifles instead of the usual muskets. These men owned rifles for hunting and it would have been a great expense to own a second firearm for militia duty.
This shows that other uses of firearms ownership was contemplated.

[library_max]

225. So if a Constitutional Amendment read,

"Because transportation by horse is the only feasible form of modern transporation, the right of citizens to own and raise horses shall not be infringed," you would think we still have a Constitutionally-protected right to own and raise horses. Even though it is obvious even to the merest child that transportation by horse is NO LONGER the only feasible form of modern transportation, just as a well-regulated militia is NO LONGER necessary to the security of a free state.

A rifle is a superior firearm to a musket, so that's a ridiculous point.

Interesting about the Virginia militia act. Does the state of Virginia still arm its citizens and train them in the "knowledge of military duty"? If not, why not, do you suppose?

[Columbia]

141. W r o n g

You are woefully misinformed about the US justice system.

There is no disagreement regarding individual rights in these rulings as you believe. Every word of the original Emerson ruling supporting individual RKBA still stands today. Both rulings are from the SAME court - the 5th Circuit Court of Appeals. The only court able to overturn their decision now is the US Supreme Court and they have chosen not to do so.

The court did determine that Emerson, through his previously violent behavior, lost his 2nd Amendments rights, however, they affirmed the specific right for individuals to keep and bear arm irregardless of "militia" affliation.

So, in closing, please do a bit more research yourself before making things up like you do in your last post.

[library_max]

143. Open your eyes, open your brain.

The verbiage about the Second Amendment in Emerson 2001 had no bearing on the decision. Read the part of that decision where it discusses the application of the Second Amendment to the case - it says that the Second Amendment DOES NOT APPLY. Therefore, since the Second Amendment "reasoning" had no part in the decision, the case could not be overturned to correct that reasoning. What part of this do you not understand? I'm not making anything up. A higher court can only overturn a decision. They can't overturn some of the verbiage but affirm the decision.

Why would the Supreme Court overturn the decision? It was already ruled AGAINST Emerson. The appeals court already found that Emerson's Second Amendment argument was WITHOUT MERIT. I'm not making that up either, that's a direct quote.

And the 2001 Emerson decision admitted that the "individual rights" interpretation of the Second Amendment had not been embraced by any of the other circuits. It's right there if you care to read it.

[Columbia]

158. The devil is in the details

And you refuse to look at them.

We are covering the same territory over and over again. I'm not going to waste any more time posting the exact wording of the case and have you just ignore it and make up your own interpretation of what is obvious support for individual rights.

[library_max]

161. Backatcha.

You describe exactly the reverse of the present situation.

[Hrumph]

23. Miller is as close as SCOTUS ever came to the 2nd.

And it still didn't difinitively answer the issues we're arguing here. Miller HAS been mis-cited by lower courts on many occasions in order to justify the decisions the justices were predisposed to making, regardless of the facts.

Just because some judge says "Miller say that..." doesn't make it so.

[library_max]

34. Miller said that the Second Amendment confers rights only in the context

of the militia. That definitively answers the issues we're discussing here. Not wanting to believe it won't make it not true. Sticking your head in the sand won't make it disappear.

[Columbia]

72. Sure

And that means I have a right to own a full-auto M60 machinegun since it is a weapon a militia would surely use.

[library_max]

78. Since there is no such thing as an armed militia in this country,

there is no such thing as a weapon a militia would surely use.

[Columbia]

80. Don't you wish

Oh, you mean how Miller was part of the organized "militia" right and how the court said that only "militias" had the right to be armed. Oh wait, he was a criminal and they said nothing of the sort.

library_max, I hate to break it to you, but you are part of the militia, because the whole body of citizenry is the militia. Read up on your founding fathers literature. Start with Federalist No. 29.

[library_max]

84. This isn't 1776. It isn't even 1939.

Get a calendar, and, possibly, a clue. The whole body of citizenry is not a militia and has not been since frontier times. Hence the decisions in Silveira, etc.

[slackmaster]

95. Cite please

Show where and when the law changed so that the whole body of the citizens is no longer a militia.

I've already proved that the state of California considers every able-bodied citizen to be a member of one component of the state militia, and others have posted federal law showing same at the national level.

[library_max]

101. Your computer has no calendar function? I have to prove it's 2004?

The militia verbiage you cite has no relevance to the Second Amendment. For a militia to be relevant to the RKBA, it would obviously have to be an armed militia, and no one has shown any definition that mentions arms (excepting arming of the "organized militia," i.e. the military).

Anyway, every modern Second Amendment case agrees with my interpretation and none agrees with yours.

[slackmaster]

104. Egad, now you're confusing the organized militia with the military

They're really not the same thing.

[library_max]

107. When you cited a definition of militia,

it included army militia, navy militia, etc., and the "unorganized militia." The former are military. The latter are unarmed.

[slackmaster]

109. OK, I can agree with that

And the unarmed, unorganized militia consists of individual able-bodied citizens who are subject to conscription.

[Hrumph]

113. wha... WHAT?

Where the hell do you get that????


unorganized <> unarmed

[library_max]

114. Sorry, you weren't here.

Slackmaster gave me a California government site which gave definitions for different militias under California state law, including the "unorganized" militia of all able-bodies citizens. But in the section where it talked about providing armaments, none were provided for that unorganized militia. So we're not talking about an armed citizen militia. And, obvious, an unarmed militia is not pertinent to any discussion of RKBA.

[slackmaster]

118. He's talking specifically about the California unorganized militia

The state of California provides all arms for its militia members when they are on duty.

It's very much a side discussion.

[library_max]

9. Not any more.

There's no more citizen militia, therefore no more Second Amendment right to own guns of any kind.

But hey, why take my word for it? Look at the Supreme Court cases since Miller. Look at all the Second Amendment cases since Miller. There's not a one of them that has upheld the private ownership of firearms on Second Amendment grounds.

[hansberrym]

12. As long as there are citizens, there will be a citizen militia.

(from Miller)
With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.


What do you suppose "assure continuation" meant?


Who do you suppose has the authority to abolish the citizen militia?


What other rights of the people can be abolished in your opinion?

[library_max]

18. Nobody abolished it. It died.

Who abolished the dodo? Who abolished Ronald Reagan? Nobody, but they're both dead and gone nevertheless. Any body of law depending on the continued existence of the dodo or of Ronald Reagan would have to be considered moot.

"Assure continuation" meant that in 1939 there was some reason to believe that an armed citizen militia might still be relevant. That was in 1939. The body of case law since then suggests that that point has become moot.

I ain't abolishing nothing. It isn't my fault that you folks made up a make-believe right. If I tell a kid that there is no Santa Claus, did I just abolish Santa Claus? Is it murder if I don't clap at a performance of Peter Pan when Peter asks the audience to clap if they believe in fairies?

[Hrumph]

24. You're the only one claiming it's dead.

It's not dead, it's just been neglected for lo these many decades.

[slackmaster]

31. Every able-bodied citizen in my state is subject to being conscripted

...into the state militia at the pleasure of the Governor.

http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=mvc&codebody=&hits=20

Despite the fact that ordinary Californians haven't been pressed into military service in that way since the 1930s (when they were used to discourage immigration by Dust Bowl refugees), the potential for being ordered to help out in the event of a major disaster like an earthquake continues. The laws are still on the books, the Governor is still commander in chief, and every able-bodied citizen carries the same societal obligation.

[library_max]

35. Armed militia?

Because obviously the RKBA has no relevance to an UNarmed militia. I see nothing in your code section that mentions weapons for the unorganized militia.

[slackmaster]

43. That's covered elsewhere in state law

In California the state provides all arms for militia use.

Look it up yourself at http://www.leginfo.ca.gov/ if you care. To me its a peripheral issue. You said the state militias no longer exist. That was incorrect.

[library_max]

46. An unarmed militia is obviously irrelevant to the Second Amendment.

The arms provided by the state for militia use are presumably for the other militias, the "organized" militias that are really branches of the official military.

[slackmaster]

89. The militia is the people whether armed at the moment or not

The arms provided by the state for militia use are presumably for the other militias, the "organized" militias that are really branches of the official military.

If the organized militias are branches of the standing military, then they are not the militias referred to in the Second Amendment.

[library_max]

94. Saying that's so doesn't make it so.

All the recent Second Amendment cases disagree with you.

[slackmaster]

96. I haven't seen a case that address that issue

i.e. whether or not the whole body of the people constitutes a militia. Have you?

[library_max]

102. Appellants have been denied standing because they are not in the militia.

Those appellants were among "the whole body of the people." So I guess Silveira for one would be a case that addresses that issue.

[hansberrym]

122. But they have not been denied standing in other cases; Miller, Aymette,

and Emerson.

[library_max]

128. No, they were just ruled against.

Big difference. There still is no case in which someone sued to keep and bear arms (to overrule a gun control law, any gun control law) that was decided in the gun owner's favor on Second Amendment grounds.

[hansberrym]

137. On the narrow grounds that the particular arms in question

were not of the type that those defendants would have the right to keep and bear. Those defendants (in Miller and Aymette) were individuals. An intellectually honest person would take note of that fact.

IN Emerson, it was an issue of under what circumstances (a court order had been made w/o a hearing) in addition to which type of arms.

[library_max]

144. Keep clutching at straws.

The fact remains that there has never been a standing court decision at any level that has voided any gun control measure on Second Amendment grounds. There has never been a standing court decision at any level that has been decided in favor of any gun owner on Second Amendment grounds.

[hansberrym]

76. See your favorite court case US v. Miller.

(quoting Miller)
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
(end quote)


So according to Miller, the militia comprises all able-bodied persons and ordinarily each person was to supply himself with arms.

Note that the CA statutes say the unorganized militia is all other able bodied persons not in service to the organized militia. The CA statutes categorize the militia further but otherwise is in agreement with Miller on who comprises the militia.


You said:
"Because obviously the RKBA has no relevance to an UNarmed militia". That statement reeks of the logic of Stalin.

The unorganized militia are not UNarmed, though you may wish to DISarm them. Simply because the state does not arm them, does not cause them to be UNarmed, since they can of course arm themselves as the Supreme Court has said.

You seem to want to reduce the second amendment to a statement that those people that the state choses to arm, may be armed under the second amendment.

But the second amendment is a "right of the people". It is not a "right of the state", as those words appear nowhere in the amendment.

[library_max]

79. The logic of Stalin? Smear much?

You keep accusing me of trying to "reduce" or do something else to the Second Amendment. All I am doing is quoting the relevant court cases and pointing out the legal reasoning on which they have been decided. Every constitutional authority agrees with this position. I'm sorry you don't like it or agree with it, but that really changes nothing.

Miller was decided in 1939, when there was still a potential for an armed citizen militia. That potential is long gone. We don't even have a draft any more. Look at the more recent cases (Silveira for instance, all still standing, none overturned) to see that the courts have acknowledged this reality.

[hansberrym]

120. I see you are running away from your own argument again.

Sadly it is becoming a pattern.


You are claiming that because one class of the militia is not armed by the state of California, then that class of militia (the unorganized militia defined in previous posts) is UNarmed.

That is indeed Stalin-like reasoning.

In fact, there are many millions of able bodied citizens who are not in the organized militia (thus making them members of the unorganized militia according to the statutes) and who have armed themselves.

Your claim that there is no armed citizen militia does not fit the known facts. The unorganized militia is in fact fairly well armed, having armed themselves as the Supreme Court in Miller
states wass the ordinary way for them to be armed.

You say "Every constitutional authority agrees with this position" and yet recently you have been reminded that the Emerson decision does not agree, nor do Constitutional authorities such as Laurence Tribe and others.

[library_max]

129. There is nothing to say about your "Stalin" characterization

except that it has no basis in fact, rationality, or reality.

You started this subthread by jumping into a conversation slackmaster and I were having about the unorganized militia in California state law. Which is fine, except you need to understand that we were discussing the specific language of that law regarding organized and unorganized militias.

It doesn't matter that people who think they belong to the general militia or who in California are members of the unorganized militia have, as a private matter and on their own initiative, armed themselves. The California unorganized militia is not defined as an armed militia. There is no mention of arms for them. So the fact that individual citizens have armed themselves does not make them members of an armed militia.

Miller was decided in 1939. The situation regarding citizen militias has radically changed since then. We don't even have a draft any more.

Maybe if you actually quoted something Laurence Tribe said, I might be impressed, but to simply throw his name around proves nothing.

The Emerson decision of 2001 includes a lot of irrelevant verbiage about the Second Amendment, but when it came time to apply it to the case, they decided that it didn't apply. So it was just verbiage. The 2004 decision, which is the definitive one, simply said that Emerson's Second Amendment argument was "without merit."

Far from "running away from my own argument," I have made and substantiated these arguments over and over, and yet you keep parroting back the same unsupported and refuted arguments. Maybe that's why you feel the need to use insults and personal attacks.

[hansberrym]

135. "So the fact that individual citizens have armed themselves ...

does not make them members of an armed militia", Or so you say.

Your claims do have a Stalin-like quality to them:
Only the armed militia may have arms!
Unless armed by the STATE, we consider you to be UNarmed!
Rights of the people are actually rights of the STATE!


It is not 1776, and it is not 1939, but it sure ain't "1984" either. Your insistence on claiming that the militia is UNarmed is factually incorrect. The Militia as defined in law are quite well armed, and thier arms have been supplied by themselves as the Miller court said was the ordinary way. That the state of CA will supply arms when called to actual service would not prevent people from keeping arms on thier own. Note that the Miller court equated keeping arms with possessing arms:

"In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument"




The Emerson decision of 2001 did in fact grant standing to the Mr. Emerson to make a second amendment claim. That puts it in the same category as the Miller decision, and at adds with Hickman and Silveira which found that individual citizens had no standing to bring a second amendment defense. Again you claim this is insignificant only because you choose to ignore the significance. It is strange that the Silveira court considered standing to be the most significant issue, yet you claim it isn't significant at all.


I feel no particular need to hurl personal attacks at you. But you claimed that I took words out of context, when it is clearly YOU who have been using a different definition for the "militia" than what the Miller court actually said, and then you claim that that opinion supports your argument. IN CONTEXT, the actual holding of Miller does not support your argument.

If you think the Miller decision is in error or somehow no longer fits the facts, you ought to argue for a new case to go before the court. But to continue using Miller out of context is dishonest.

[library_max]

145. Same old useless, dishonest stuff.

Miller was decided in 1939. The facts have changed since then regarding the citizen militia.

I can't avoid the conclusion that you are being deliberately obtuse about the armed vs. unarmed militia. The unorganized citizen militia described in California law is clearly an unarmed militia. No arms are provided or provided for. The point is not that only the state can provide arms. The point is that the unorganized militia, as defined, is not an armed militia. Arms play no part in the militia as defined. Therefore, such a militia cannot be considered relevant to any Second Amendment right to keep and bear ARMS. Get it now? That is, if you can bear to stop calling me Stalin long enough to think for a second.

The Emerson decision of 2001 decided diddley about Emerson's Second Amendment rights. It went on and on about the history of the Second Amendment and its interpretation thereof, but when it got to the point of applying the Second Amendment to Emerson's case, it had to admit that there was no application. It neither granted nor denied "standing." It simply said that the Second Amendment did not apply. The 2004 decision agreed, saying that Emerson's Second Amendment argument was without merit and had no bearing on RKBA one way or the other.

This "standing" bunkum of yours is the straw you choose to clutch at, in the face of unanimous decisions against gun owners and in favor of gun control laws. Miller, Emerson, Hickman, and Silveira are all quite in agreement in their effect and in their judgements. That's why none of them has been overturned. Nobody sues to overturn irrelevant verbiage. Only a decision may be appealed, and all the decisions were in favor of gun controls and against gun owners. That's the fact. Deal with it.

[hansberrym]

157. Then facts have not changed since 1939. The dick act was passed

in 1903, the National Defense act in 1916, and the Natioanl Defense Mobilization act in 1933, all well before the Miller Decision of 1939.

If you could stop thinking like a Statist for a moment, perhaps you could see the distinction between a militia that is not armed by the state and one that is in fact UNarmed. The California act cited previously does NOT say that the unorganized militia shall be UNarmed now does it? Your claim that because there is no provision in that law for the citizens who comprise the unorganized militia to arm themselves means that they are to be UNarmed speaks volumes about your view of the law.

You might check out the section on uniforms for example. It states that only members of the organized militia may wear that uniform (with certain specified exceptions; i.e. actors in movies). There is no such provision concerning arms ownership which would limit ownership to those in the organized militia.


See your OWN post on the 2004 Emerson decision. Check out the "last words". What do you suppose they meant if not a recognition of a right of Americans generally to keep and bear their private arms.


If standing is such "bunkum" why does your pal "judge" Reinhardt claim that it is the MOST IMPORTANT thing and MUST be decided before reviewing the merits of the specific case. That is inconsistent with the facts of the US v. Miller decision, since of course the Supreme Court did rule on the merits of the case they MUST have weighed the issue of standing and agreed with the lower court on that issue.


The narrow grounds of the Miller decision have little to do with the sweeping claim by Silveira that individuals do not have standing to bring a second amendment defense. In fact, Silveira ignored the Supreme Court's treatment of standing, and then used the standing issue to avoid hearing the actual merits of the case (Because, obvously, militiary style weapons would fall into the protected class of weapons described in Miller and Aymette, "Honest Abe" Reinhardt had to come up with some excuse to avoid the merits of the case)

[library_max]

162. Whether or not the members of the militia are allowed to arm themselves,

they are not, as defined, an armed militia. Arms would be need to have been included in the definition, and they were not. You yourself corroborate that California law (and never forget that we are arguing only about California law, not federal law) distinguishes between the organized and unorganized militia - things are allowed to the one that are not allowed to the other.

Of course the law doesn't forbid the unorganized militia to privately own firearms, because California law doesn't forbid citizens to privately own firearms. That's not a Constitutional point, that is simply something that is currently allowed in the statutory law. It doesn't mean that AS A MILITIA they are armed or to be armed. The law doesn't have to specify that they are not an armed miltia. The lack of any mention of arms leaves it to be assumed. The law doesn't say that they don't have to report for duty on pogo sticks either, but it would be silly to assume that they should just because it doesn't say otherwise.

It would really help your argument, or at least the respectability thereof, if you could manage to stop the name-calling. It doesn't prove a GD thing.

The "narrow grounds" of Miller established that Second Amendment RKBA only applies in the context of the militia. The Miller decision repeats that over and over, very plainly. Now, the prospects for an armed citizen militia in 1939, before World War II, before the development of the modern US military, were very different than they are now, and Silveira, among other cases, recognizes that.

Ask yourself why Silveira has never been reversed on appeal, if you're so contemptuous of the ruling. Also, ask yourself why the AWB has never been successfully challenged on Second Amendment grounds since it specifically restricts military style weapons. Maybe all these judges and Supreme Court Justices understand something you don't understand. It's possible.

[hansberrym]

169. Show me where they are defined as UNarmed.

Posted by library_max
"Whether or not the members of the militia are allowed to arm themselves," they are not, as defined, an armed militia. Arms would be need to have been included in the definition, and they were not. You yourself corroborate that California law (and never forget that we are arguing only about California law, not federal law) distinguishes between the organized and unorganized militia - things are allowed to the one that are not allowed to the other".


reply:
1) They are not defined as unarmed militia either.
2) That there is no law against their being armed, allows them to be armed, and in fact they are armed.

3) We are talking about the second amendment are we not? Furthermore every member of the mitia is a memebr of both the militia of the state he resides and the militia of the United States.
4) The list of things that are allowed to one group, and not the other, includes uniforms, but NOT arms.



Posted by Libray_max:
"Of course the law doesn't forbid the unorganized militia to privately own firearms, because California law doesn't forbid citizens to privately own firearms. That's not a Constitutional point, that is simply something that is currently allowed in the statutory law. It doesn't mean that AS A MILITIA they are armed or to be armed. The law doesn't have to specify that they are not an armed miltia. The lack of any mention of arms leaves it to be assumed. The law doesn't say that they don't have to report for duty on pogo sticks either, but it would be silly to assume that they should just because it doesn't say otherwise".

reply:
The defendants in Silveira did not claim rights "as a militia", they claimed individual rights. Furthermore many states forbid citizens from forming armed groups, while protecting the individual RKBA.

You are are confused about the law.
If the law does not forbid a thing, it is allowed.
If the law does not require a thing, it is not required.
The law does not require the citizens to be unarmed, therefor they can be armed. The law does not forbid them from wiping their asses, therfor they can. The law does not require them to use pogo sticks, therefor they are not required to do so.
State laws do not overide federal law.
State laws do not overide the Constitution.


Library_Max Said:
"The "narrow grounds" of Miller established that Second Amendment RKBA only applies in the context of the militia. The Miller decision repeats that over and over, very plainly. Now, the prospects for an armed citizen militia in 1939, before World War II, before the development of the modern US military, were very different than they are now, and Silveira, among other cases, recognizes that."


Be specific if you can, but then ambiguity is all you got. The actual ruling in Miller does not support the collective rights argument.
The "context of the militia" would be a that the arms possessed or used by the defendant would have to have had some "reasonable relationship" to the preservation of a well regulated militia as defined by the court. The court did not claim the Mr. Miller was not a member of the organized militia and therfor did not have an individual RKBA. The Dick Act was in effect at the time of the ruling.
A collective right interpretation makes no sense in the context of the Miller decision considered in its entirety: actual holding, facts of the case, and dicta.

Furthermore you are confusing the regular Army with the Militia, from Miller: "The Militia which the States were expected to maintain and train is set in contrast with Troops which they <307 U.S. 174, 179> were forbidden to keep without the consent of Congress."

Library_max says:
"Ask yourself why Silveira has never been reversed on appeal, if you're so contemptuous of the ruling. Also, ask yourself why the AWB has never been successfully challenged on Second Amendment grounds since it specifically restricts military style weapons. Maybe all these judges and Supreme Court Justices understand something you don't understand. It's possible."

If you read the dissents in Silveira, you will find that I am not the only one contemptuous of the distortions of Judge Reinhardt. I take notice that you do not defend his feigned ignorance on the meaning of the term "keep" or of the the phrase "the right of the people". Note that the term "keep" is used as meaning "possession" in the actual holding of Miller. That sort of lying is deserving of contempt. But it is not the first sort of lying to escape a smack down by the Supreme Court, and sadly, will not be the last.

[library_max]

171. My goodness, you do go on and on.

And yet you can't seem to grasp fairly simple points. The fact that California citizens aren't forbidden to own guns means that they are allowed to own guns. It doesn't mean that they are members of an armed citizen militia. Arms do not make up any part of the definition or the mission of the unorganized militia described in California law. Therefore, arms, while some members may privately own them, are irrelevant to that militia as defined, which makes it irrelevant to RKBA and the Second Amendment. Some of the members of the California unorganized militia would be ordained ministers, too (since it is every able-bodied male), but that doesn't make it a religious organization.

Try to untangle the two ideas. Yes, California citizens may own some kinds of guns under some circumstances. No, their ownership of those guns has nothing to do with their membership in the "unorganized militia" as defined in California law. It is permitted because it is not forbidden. It is not permitted because of the unorganized militia. It is irrelevant to the unorganized militia. Therefore the unorganized militia, as defined, is an unarmed militia, even though some of its members may privately possess some legal firearms. Get it now? I'm betting not, but we'll see.

You depend entirely too heavily on purely semantic arguments. "The collective rights argument" is not a single factual entity. It is a characterization of a variety of different arguments. What Miller does do is establish that there is no Second Amendment right outside of the context of the preservation and effectiveness of the militia. Whether that supports "the collective rights argument" is a matter of definition, and arguments about definitions are a waste of anybody's time.

Silveira has not been overturned on appeal. That's the fact. Your opinion of it is just that, your opinion. The fact that others share your opinion does not mean one single thing regarding the actual law. Not only has Silveira not been overturned, but it fits perfectly into the rest of the standing case law. All of the standing case law on the Second Amendment has supported restrictions on gun ownership. Not a single case has overruled any gun control measure or supported any gun owner.

It must be tough to have every single case decided against you. I sure wouldn't want to be stuck on your side of this argument.

[Name removed]

175. Deleted message

Message removed by moderator. Click here to review the message board rules.

[library_max]

181. Silveira was decided on standing. Miller wasn't.

When a case is decided on an issue, that means that that issue was crucial to the case. When a case is not decided on an issue, it means that that issue is irrelevant to the case. See? It's not particularly complicated.

The definition you are referring to is a 1939 definition. I'm betting you weren't even born in 1939. That was before World War II, before the development of the modern military. It doesn't describe the modern world. The unorganized militia slackmaster pointed out in California law does things like pile sandbags during a flood or help pick people out of the rubble after an earthquake. Arms are utterly irrelevant to it. If you can point out any use of any armed militia by the federal government or any state in the last fifty years, go to it. Otherwise, you are just clinging to a definition that is as out of date as the adding machine.

You want to focus on certain phrases of the Second Amendment, out of context. The introductory phrase regarding a well-regulated militia was ruled by Miller to mean that the right to keep and bear arms is relevant only in the context of the militia. Taking other words and phrases out of context does not change that fact. It is as if I said "If Ralph Nader is elected President, I will give hansberrym a million dollars," and you wanted to argue that the definition of "a million dollars" means I have to give you same whether or not Nader is elected President.

[hansberrym]

187. So is standing crucial or not? Is it telling that Mr Miller had standing

in US v. Miller?
Do the details matter at all?
If you read the holding carefully(un-obtusely in your jargon) the Supreme Court did NOT say that Mr Miller did NOT have a right to keep and bear the sawed-off shotgun in question. THey said only that there had been no showing, therefor they could not say that he DID have that right. They sent the case back down to resolve that question. But they did not conclude that he did NOT have the right, which they certainly would have is they had a Collective right in mind.

That there has been no occassion to call up the unorganized militia in many years does not mean that the militia, or its purpose as articulated in Miller, ceases to exist. To paraphrase your argument, neither you nor Judge Reinhard have a crytal ball, and so you can not guarantee that there will never be an occasion such as the second amendment was designed. It sure wasn't put there to protect our right to pile sand bags.

The printing press circa 1789 is also out of date, and has been out of date for more than a hundred years. However that right has expanded, or at least was expanding until just lately.

Can you really say that there is no chance that our government will turn tyrranical? No you can not.

Can you guarantee that there will never be another war on american soil? No you can not.

Can you say that the police will ALWAYS be there to protect people? No you can not.


I have in fact been focusing on the words in context.
What you described is a CONDITIONAL as evidenced by the word "IF". The amendment is not written as a conditional. It does not contain an if/then. Nor is it written as a qualifier.

(quoting Library_max)
It is as if I said "If Ralph Nader is elected President, I will give hansberrym a million dollars," and you wanted to argue that the definition of "a million dollars" means I have to give you same whether or not Nader is elected President.(end quote)


YOU are reading 2A as if it began:

If a well regulated... (or)

Should a well regulated...

but that is not how it is written.

[library_max]

197. I don't know whether the "details" matter, but the facts matter.

Miller repeats, over and over again, that the RKBA is supported by the Second Amendment only insofar as it involves the preservation and effectiveness of the militia. Since it was not decided on the basis of standing, standing has no relevance to the decision.

Regarding the wording of the Second Amendment, you have to have read enough Eighteenth Century rhetoric to recognize the construction and what it means. "A well-regulated militia, being necessary to the security of a free state," would be, in modern language, "Because (or insofar as) a well-regulated militia is necessary to the security of a free state, . . ." There was no question of "if" back in 1789. They did need a citizen militia to maintain a free state. We don't.

And again, you don't need to accept my interpretation of the Second Amendment - every Second Amendment case that stands as a precedent is based on that same interpretation, from Miller on down.

Regarding the rest of your argument: if you need to talk to yourself in order to argue both sides of an issue so that the argument comes out the way you want it to, could you please consider doing that somewhere else?

[hansberrym]

194. Actually it is the SIlveira decision that rests entirely on a semantic

argument. That court claims that Militia is a reference to a STATE Militia as an ORGANIZATION rather than the group of people who are the militia as Miller defined the term.

This is a house of cards really, built entirely on that semantic argument. It must ignore the ordinary meaning of "the right of the people", and the actual usage of the words "keep and bear arms" by the Miller court in that actual holding AND in dicta, to keep from falling in on itself.

The Silveira court also ignores the usage of those same terms before, during, and after the ratification of the second amendment of the US Constitution and the various RKBA amendments in state constitutions.

[library_max]

198. Gee whiz. If you're right, how come Silveira hasn't been overturned?

Maybe it's because you're wrong. Ever think of that?

[hansberrym]

205. Do you ever consider how weak your arguments are?

Was Plessy CORRECT UNTIL it was overturned by Brown?

Were all those decisions denying the full force of the 14th amendment CORRECT until they were overturned?

NO, they were both wrong, but the courts, including the supreme court, refused to go along with the changes made to the constitutional order by the 14th amendment.


An error is no less an error simply because it is uncorrected.
Note that Silveira is only a few years old, so it is hardly a long standing precedent.


If you haven't already done so, you ought to read the dissent's from the last Silveira (rejecting an en banc review). You will see that it is not just the RKBA crowd in the dungeon pointing out the deficiencies of the ruling.

[library_max]

212. Your arguments are based on your opinion, mine on established law.

So if my arguments are weak, yours are nonexistent. But again, you guys are so sure that you're right that you deify your personal opinions into facts and then can't understand why anyone can refuse to acknowledge those "facts."

Plessy, right or wrong, was THE LAW until Brown. Your argument, if I understand it, is that 20th and 21st Century US Supreme Courts are refusing to acknowledge the "innovation" of the Second Amendment, which was written in 1789. That's simply absurd.

And Silveira did not establish anything independently. Hickman and other cases confirm the logical line from Miller to Silveira. That Silveira is not an appropriate application of the Miller precedent is your opinion, one in which you are completely insupported by any higher court decision. You presume to know the law better than superior court judges. That's what makes your argument sound so ridiculous.

[hansberrym]

220. Plessy was the law, AND it was(is) wrong. Non-incorporation was the law

AND it was(is) wrong.

In fact it is Silveira that argues for an INNOVATIVE reading of the term "militia" which you acknowledged previously.

I do not presume to know anything better than anyone else. What I have done is point out, with supporting citations from MILLer, that
Silveira relies on different defintions of each of the key terms of the amendment than were given in MIller and yet claims to be faithful to precedent.

What is ridiculaous would be if intelligent persons such as yourself would blindly follow a courts interpretation without questioning the reasoning.


It is not logical to define each term (Militia, Keep arms, bear arms, people) differntly than they were defined/used in Miller, and then to claim that Hickman/Silveira are a logical line from Miller. Also there is the different treatment of the standing issue that this thread began with.

[library_max]

226. But again, there is nothing to this except your personal opinion.

The standing issue is irrelevant to Miller because Miller wasn't decided on the basis of standing. The rest of the straws are just that, straws. Clutch at them if you like. If Silveira and Hickman weren't solid as a matter of law, they'd have been overturned by now. It's not as if people aren't spending millions of dollars trying to prove that the AWB and similar measures are unconstitutional.

[library_max]

41. So that's one clap for fairies, yes? /nt

[hansberrym]

30. I ain't abolishing nothing. It isn't my fault that you folks made up a mak

or so you say.

But it is odd that the lower court in Miller recognizes a right that never existed - or so you say.

And odd that the Supreme Court in Miller discusses a right that never existed - or so you say.

And odd that the framers of the 14th amendment discuss a right that never existed, and seek to extend that same protection against state action. (you might remember that conversation from last week)

And the framers of the second amendment drafted and ratified a right that never existed.

And odd that some 43 out of the 50 states have RKBA amendments in their constitutions.


Maybe, just maybe, the logical conclusion is that the right does exist.

[library_max]

36. Miller reversed the lower court's ruling.

That's why it was heard and that's what it decided. Jeesh, the straws you guys clutch at.

You can say this is odd and that is odd and the other silly thing is odd all you want. There is no standing precedent that supports the notion that the Second Amendment confers any RKBA outside the specific context of the militia. But Miller and all the cases based on it deny that it does so. That's the fact and that's the law.

[hansberrym]

75. Facts are stubborns things aren't they?

Fact is the framers of the second amendment spoke of the right in individualistic terms, as did the framers of the 14th amendment.


BTW:

Whose definition of "militia" do you suppose should be used when interpreting the Miller holding?

Should we use the Suprem Court's definition from the Miller
Decision? (sounds logical to me)

Should we use Judge Reinhardt's definition?

Or maybe Library_max's definition?


I suppose that if we wanted to interpret US v. Miller IN CONTEXT,
then we would use the Miller Court's definition.

[library_max]

82. Let me know when you run across one.

Once again, Miller was decided in 1939. A few things have changed since then, as subsequent cases such as Silveira (not overturned) have acknowledged. There is no armed citizen militia in the United States. Period. There is none. That is a "fact" if you like. That is reality. Old definitions may exist in law, but they are defunct in practice and in fact. And every recent Second Amendment case acknowledges that fact.

The NRA and similar organizations spend millions of dollars crying that current laws are in violation of the Second Amendment. Why, then, has there been no case (not one, not ever) that has rejected any gun control measure on Second Amendment grounds?

[Hrumph]

100. No matter how many times you tell a lie, it's still a lie.

As a member of the Militia (as defined by US Code), and being armed, and since I personally know quite a few other armed members of the Militia (as defined by US Code) I'm afraid you're going to have to work REAL HARD to prove to me that we don't exist.

And, just for yucks and grins, read up on The Battle of Athens, Tennessee. That sounds to me like the Citizen Militia at work.


And for the record, I'm more than a bit miffed that the state governemnts have ignored their Constitutional mandate to train the militia. Never the less, a failure on their part does not constitute the equivocation of my rights.

[MrBenchley]

105. And yet the RKBA continues to post them with dreary regularity

And what a site your link is from...their favorite judge is Calrence Thomas, their favorite Congresscritters are Ron Paul, Bob Smith, O.J. Watts, and Helen "Black Helicopters" Chenoweth, and the first group they link to is Ed Meese's scummy Federalist Society. Those are a constant source of "yuvks and grins" for those amused by far right wing dishonesty and idiocy.

http://www.constitution.org/cs_peopl.htm

[library_max]

106. You should know about repeating lies.

Just because you have a gun and you think you're part of the militia doesn't mean you are part of an armed citizen militia. It simply does not exist. You and your buddies can kid yourselves all you want, but you're not part of an armed citizen militia. Who is your commanding officer? How often do you report? What was your last assigned duty as a member of the militia? Playing soldier doesn't mean you're a member of a militia.

The Battle of Athens sounds a lot like an armed riot to me. Interesting to note the number of pro-gun and right-wing sites (including Free Republic) that feature the account you linked, verbatim.

You can be miffed all you want, but rights you make up are not rights recognized in law.

[Hrumph]

110. This is nothing more than your opinion.

Last I checked, the US Code has not been changed.

BLAH BLAH BLAH. You don't like something so you try to smear me as a freeper. If they had lost the Battle of Athens, wherein armed citizens overthrew a corrupt government and prevented any tampering with the honest, open election process, I'm sure they would have beel labeled as just that, a mob. But then if the Colonies had lost the revolutionary war they would have been labeled much the same.

I'm not making up anything. Please provide some documentation showing that the militia has been disolved. You keep saying "it doesn't exist" but you have yet to provide any evidence of this.

[library_max]

115. There is not a single court case that has overruled a gun control measure

on Second Amendment grounds. Silveira and other recent cases have been decided on the grounds that plaintiffs were not members of a militia, thus negating the argument that every able-bodied adult is automatically a member of the militia. The law as the courts have interpreted it is that the Second Amendment does not confer a RKBA on private citizens. That's not my opinion, that's a fact. There is no case that you can cite to the contrary.

Opinions at the time differed about the Battle of Athens. At most, it hardly mattered outside McGill County. And it hardly made any kind of case for a militia. A militia would have involved every able-bodied adult, or every able-bodied adult male, right? This was a bunch of veterans who put their heads together. I am willing to believe that what they did was right, but that doesn't make them a militia, much less does it make the fact that what they did almost fifty years ago means that there is such a thing as an armed citizen militia today.

The evidence you are asking for is in the court cases I have cited. They are the established law regarding the Second Amendment. I can show you the facts, but I can't make you believe them or care about them.

[hansberrym]

119. The answer is: Library_max's definition of militia supercedes

the Suprem Court's definition.


What is the expiration data on Supreme Court rulings?

Do you or Judge Reinhardt get to ignore the Supreme Court because it is "not 1939". Your claim that "old defintions may exist in the law but they are defunct in practice and in fact" is an admission that you are aware of and are willfully ignoring the definition of militia given by the supreme court in Miller.

YOU are the one reading the opinion out of CONTEXT, and your only justification seems to be that it is "not 1939".


I have posted quite a few facts regarding the Miller decision. That you do not respond to them head-on says a lot.


The most pertinent fact to this series of posts is that Mr. Miller was not, and did not claim to be, a member of any organized militia, yet he had standing to bring a second amendment challenge in the lower court. The Supreme Court's ruling did not find on the basis of standing. This is an obvious disagreement with Judge Reinhardt's reasoning in Silveira. Judge Reinhardt willfully ignored the Supreme Court on the definitions of "militia", "bearing arms", and "Keeping arms". He also ignored Supreme Court precedent on the phrase "the right of the people". That can hardly be an example of faithfully applying precedent.

[library_max]

131. That's your opinion.

For which you have no basis except your own opinion. The recent case law disagrees with you. The 2001 Emerson decision tried to throw you a bone, but even they couldn't decide a case based on that interpretation for fear that it would be overturned.

[hansberrym]

134. Are you denying this definition comes directly from US V Miller?

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. Blackstone’s Commentaries, Vol. 2, Ch. 13, p. 409 points out ‘that king Alfred first settled a national militia in this kingdom’ and traces the subsequent development and use of such forces.(end quote from Miller) (my emphasis)



Or is it just my opinion that the Supreme COurt actually defined the militia as above?

[library_max]

146. Defined. Past tense. Seventy-five years past, in fact.

Current case law (Silveira, Hickman, etc.) demonstrates that the definition has changed.

[Hrumph]

150. The 9th circuit court does not make the "law of the land."

It makes law for the 9th circuit. Evidently, when citizens assert their rights they're just "making them up." But when reinhardt changes the definition of the terms in the case HE cites in order to justify his otherwise unjustifiable position, and pulls some screwed up decision right out of his nast ass, then that's "the law of the land and we have to respect it." Yeah, baby, like THAT'S at all consistent.

Anyone care to tell me again how rediculous is the notion that American government can ever be oppressive?

reinhard's a lying sack of shit and it's obvious to everyone. The 9th circuit court is agregiously fraudulent, IMHO, and it'll be a cold day in hell before I take anything from them at face value.

I thank GOD every day that I do not live in THAT land, under THAT law.


EDITED to ask:

Why is it that when WE quote the particulars of the Miller case it's "75 years old" and obviously not relevant. But when reinhardt lies out of his ass and is COMPLETELY dishonest, then his decision is valid and relevant? Oh, I see... Evidently you have to LIE in order to be relevant. My mistake, I didn't know the rules.

[library_max]

163. Wipe the spittle off your computer screen, please.

Miller established that Second Amendment rights are relevant only in the context of a militia, as opposed to a purely private RKBA just because you're in America. The question, then, is is there or is there not an armed citizen militia in 2004? Whether there was one or the potential for one in 1939 is irrelevant. I am not arguing that the Miller decision is irrelevant - it's the law of the land - only that the facts on the ground regarding militias have changed dramatically since then.

There is no such thing as an armed citizen militia anywhere in this country. And no, the sum of all private gun owners does not equal a militia, even if they call themselves that. Saying something doesn't make it so. In a militia, there is a chain of command, reportage, duty assignments, etc. Big fat zilch in that department in modern America.

Now you can say that that's my opinion and that yours differs all you want. And in the abstract, you'd be right. But in the real world, there are court cases being decided on this subject, and they're all being decided according to the interpretation I've put forth, not yours. You can rant and rave about Silveira and it doesn't change the fact that it's the law. It has not been overturned on appeal. There is NO CASE that has overruled the AWB or any other firearms restriction on Second Amendment grounds - not one, not ever. You don't have to be happy about that, but you might as well acknowledge the reality of it.

[Hrumph]

195. There is no such thing as an UNARMED militia.

An unarmed militia isn't a militia.

Title 10, Section 311 of the U.S. Code legally defines the militia. Constitutionally, it is the States' responsibility to call forth the militia and to assign officers. You may speculate that that means the is no more militia, but you are wrong. The States have simply neglected their responsibilities.

You are right that no cases have been reversed on 2nd Amendment grounds but that's not the whole story.

First, the 9th circuit court is absolutely dishonest. The have lied, mis-cited and mis-quoted whatever was convenient to avoid having to recognize the Amendment. In Hickman v. Block the court repeats the erroneous statement that "no individual has ever succeeded in demonstrating such injury in federal court." Patently false. (In U.S. v. Miller the Western District Court agreed with the defendants that the NFA violated the 2nd Amendment and quashed the endictment.) Further, the 9th circutit court maintains that the decision in Miller "upheld a conviction under the National Firearms Act." This is unbelievably incorrect. In the lower court, Miller and Layton WON. There was, in fact, no conviction to uphold. In fact, there wasn't even a trial. The Western District quashed the indictment! The Supreme Court in Miller merely vacated the lower court decision that quashed the indictment of the defendants on the grounds that they could take no judicial notice of the fact that a short-barreled shotgun is a weapon that had any value to a militia and, therefore, would be an item whose possession was protected under the Amendment. One is forced to wonder if the author of the decision is being intentionally deceitful or if she just didn't read the Miller decision. Never the less, such is how BAD case law is made. Subsequent decisions build on the faulty foundation of the cases that came before.

We say that decisions like this are fundamentally flawed and this is not right. You're telling us, basically, that "that's the way the cookie crumbles and you guys will just have to suck it up." I guess it's easy for some people to be cavalier about such things when the decisions are going your way. Sooner or later they will start going against you on other issues that are important to you. Then you'll be the ones that are screaming about the injustice of judicial activism. I tell you now that if you support this practice of substituting emotionalism for truth you're simply feeding the beast that will eventually destroy you.

[library_max]

199. One of us is right and one of us is wrong.

I've got every Supreme Court case and every other standing US court precedent on my side of the argument. What have you got? Your personal opinion, right?

[hansberrym]

207. Which Supreme Court case supports the Collective Rights argument?

And in what way does it support a Collective Rights argument?


Earlier someone else posted a link to a summary of the 30+ other Supreme COurt cases mentioning the RKBA of the 2nd amendment, and overwhelmingly those cases seem to support the Individual rights argument.

Are there other Supreme Court cases not included in that post?

http://i2i.org/SuptDocs/Crime/35.htm

[library_max]

213. Miller.

The summary is bullshit, made by a paid right-wing propagandist. Read the actual cases and see if you can find anything to justify Kopel's conclusions. In fact, none of them decided in favor of a gun owner or against a gun restriction on Second Amendment grounds.

And I know, you don't interpret Miller the same way I do. But the superior court judges who have decided cases based on the Second Amendment all agree with me.

[hansberrym]

223. What about Miller supports the collective rights argument? Is it ...

the definition of Militia used in Miller? NO

the definition of keep arms used in Miller? No

the definition of bear arms used in Miller? NO

The Miller court's statement of the purpose of 2a? NO

As was the whole point of this thread, Silveira ignores each of the above in addition to the definition of "the people" and the treatemnt of who has standing to bring a second amendment defense.

What Silveira hangs onto is that Miller reads the RKBA in a militia context, but Silveira muddies the water on just what that context is.


(from Miller))
In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158. (end quote)


The Miller court ruled that there only needs to be a "reasonable relationship" which is usually taken to be broad language. Note that there is no requirement in MIller or Aymette (which is cited in the ruling), that the persons making a second amendmnet claim need be members of an organized militia, only that the arms in question be of the type normally used.

Aymette says that the right to keep arms is an unqualified right, but the state retains some power to restrict the way in which arms may be carried in order to protect public safety, providing that the right to carry may not be banned altogether.

[library_max]

227. Miller is not so specific about its legal reasoning.

It says that the Second Amendment applies only in the context of preserving and making effective the militia. It does not draw the distinction between weapons and persons that you say it draws. There is no such language in the decision. It also does not say that there is an individual right to bear arms. You can read that in if you want, but it's not there.

Aymette, like Emerson, commented on matters beyond the scope of its decision. Its decision upheld the firearms restriction under consideration. The rest was verbiage, not the basis of the decision and therefore not subject to reversal and also therefore no part of the precedent.

[hansberrym]

153. Those courts are bound by precedent. Do you agree? (n/t)

[library_max]

164. Probably the judges and appeals judges would best answer that.

My understanding would be that they would be bound to take precedent into account, but not necessarily be bound by it, especially if the facts on the ground have changed materially. The Warren Court in Brown vs. Board didn't consider themselves "bound" by Plessy vs. Ferguson.

[hansberrym]

176. The Brown court and the Plessey court were on the same level.

Lower courts do NOT overturn Higher courts.


Rights do not evaporate or dissappear because you claim the facts have changed. This is especially obvious since the rights in question were never found to be dependent on any circumstances to begin with.

The Miller Court ruled that the Second amendment's purpose was to insure the efficacy and continuance of the citizen militia. So your claim that it has no relevance since the citizen militia is defunct, really ignores the courts ruling.

[library_max]

182. Actually, no.

My claim just takes reality (modern reality) into account. You ought to try it some time - it's fun.

[hansberrym]

189. The Supreme court said...

"With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." (end quote)


It did not qualify that ruling.
They did NOT say for instance: assure the continuation and render possible the effectiveness of such forces as long as the militia is thought to be relevantor any other such qualification.

[library_max]

200. It didn't have to.

Supreme Court decisions don't have to predict the future. That's why future courts continue to interpret the law, because circumstances change. For another example, more things are considered "cruel and unusual" in 2004 than in 1789.

And, once again, all the standing precedents agree with me, not with you.

[hansberrym]

206. Lower courts are bound by the decisions of Higher courts.

And in this case the Suprem Court in Miller stated the purpose of the 2nd amendment, and how the 2nd amendment must be interpreted.


That you have not responded directly to the question tells me that you do not have a response.

[library_max]

214. That you have not asked a question or made an unrefuted point

tells me that you don't have either one.

[hansberrym]

13. So you want to intepret the second amendment to render

the militia unarmed and ineffective. That is hardly in keeping with the Miller decision.



Has the war on terror made the first amendment obselete and thus void?

Is the freedom of the press also only a "fantasy" in your opinion?

[library_max]

19. Once again, it's got nothing to do with me.

The courts interpret the Second Amendment, not me. They're the ones who have never decided a case in favor of personal ownership of firearms on Second Amendment grounds. Direct complaints to the Hon. William Hubbs Rehnquist.

And what in tophet has the war on terror got to do with it, or with the First Amendment? The First Amendment does not have any qualifying phrase limiting its application to a specific institution, and none of the instititutions to which the First Amendment most classically applies have become obsolete. Check with Molly Ivins, Al Franken, etc. before you hold that funeral for freedom of the press.

[Hrumph]

26. Too bad the courts are so fraudulent.

Judges are appointed by virtue of their fidelity to the truth but on the basis of their political standing in the party and their artfulness at making shady deals in smoky rooms behind locked doors.

[library_max]

37. Oh well, that's a different view of the matter.

After Bush v Gore, you won't hear anything from me about the infallibility of the SCOTUS. But it is still true that the law means what they say it means, whether it seems right to us or not.

[TX-RAT]

93. What a crock

[hansberrym]

29. The courts have in fac t interpreted the second amendment to secure an

individual right to keep and bear arms.

As I said earlier, Miller in fact won his case on second amendment grounds in the lower court, and the Supreme Court overturned on narrow grounds that the weapon was not of the type suitable, NOT that Mr Miller himself had NO individual right. The Supreme Court did not overturn the lower courts reasoning as to whether Mr. Miller had a second amendment claim.

Once again, it the Supreme Court had decided that Mr. Miller had no individual right regarding the second amendment, then they would have decided the case on the basis of standing as the Silveira court has done.



It has everything to do woth you.
Your argument is based on your own opinion that the second amendment is obselete. You then conclude that the right no longer exists. That is concise to the point of circularity.



Qualifying phrase? The Miller court refers to the two clauses of the second amendment as the "declaration and guarantee". It also speaks of the purpose fo the second amendment, but does not say that the only people who have a right to bear arms are those who are actually enrolled in the state militia. The Miller court presents a history of the militia in which every man was to supply his own weapon. There are no qualifications placed on the persons who have a right to keep and bear arms by the Miller court. Mr. Miller was not asked whether he met any qualifications.

Silveira goes further and rejects the Limited Individual Rights argument.

[library_max]

38. Miller upheld the NFA.

The NFA was a restriction on the RKBA. The reasoning in Miller is that any RKBA that is not specifically relevant to the preservation and effectiveness of the militia is not supported by the Second Amendment. Taking words out of context won't change that. Quibbling about the appellant's status won't change that. The precedent is clear and it has been consistently followed. Every restriction, including outright bans, that has been challenged on Second Amendment grounds has been upheld.

No matter how thin you slice it, you guys' side of this argument is still baloney.

[slackmaster]

45. Can you name even one "outright ban" by the federal government?

Or by any state or locality?

Under scrutiny, every so-called "ban" on firearms turns out to be a licensing requirement. I suppose you could look at the availability of licenses as a "loophole" for the rich, powerful, or well-connected, but there's always one available at least on paper. No gun has ever been banned outright AFAIK, certainly not by the federal government.

The NFA puts conditions on manufacturing, possession, and transfers on certain kids of weapons, but it doesn't ban any of them.

[library_max]

47. The AWB.

[slackmaster]

52. Nope

Temporary moratorium on manufacture and unrestricted sales. No weapons confiscated or destroyed (other than a small number from people prosecuted for having or or making or selling them illegally.)

The guns are still here, so they aren't banned.

[library_max]

55. Answered below.

[hansberrym]

74. Taking words out of context seems to be your forte.

How can you ignore Supreme Court's history lesson in Miller where they point out that the militia refers to every able bodied man and that they were expected to appear bearing arms supplied by themselves. Only by carving the the actual ruling out of the context of the Miller decision can you make the claim that there is no individual right. The Miller court supplies definitions for the key terms of the holding ("militia", "bearing arms", and "Keep" arms) which you ignore.

YOU are ignoring the CONTEXT of the Miller holding by ignoring the facts of the case, and the Supreme Court's explantory statemnts.

You say:
"The reasoning in Miller is that any RKBA that is not specifically relevant to the preservation and effectiveness of the militia is not supported by the Second Amendment"
(end quote)

But of course if one uses the Miller Court's definitions for Militia, bear arms, and keep arms, then the RKBA protected by the second amendment is a broad individual right.

Note also the actual words in Miller were "reasonable relationship" not "specifically relevant". Again the actual wording of Miller is broader than you suggest.


Taking words out of context won't change that.
Please be specific as to which words have I taken out of context.


Quibling about the appellant's status won't change that?
Standing is the basis for the Silveira and Hicknam rulings. So you charge of "quibling" is a bit over the top. You want to ignore the issue since it does not fit your argument.

[library_max]

86. No matter how thin you slice it, it's still baloney.

This tap dance around the legal reasoning of the case really proves nothing. If your interpretation was valid, why has it never been invoked in any subsequent case? Why has there never been a case in which anyone's right to own any kind of firearm was upheld by a Supreme Court decision, or any court decision? Emerson, on which you seem to want to hang your hat, upheld Emerson's convictions on gun charges. It did not affirm his RKBA at all.

Be specific about words you've taken out of context? Here they are:
"The Miller court refers to the two clauses of the second amendment as the "declaration and guarantee"."

The Miller court elaborates on the history of the militia, but lacking a crystal ball they could hardly discuss the fact that it would become dead, deceased, and defunct during the following sixty-five years.

And again, where's the case that verifies your interpretation? I've got mine, where are yours?

[hansberrym]

126. You are batting .000

(quoting Library_max)
Be specific about words you've taken out of context? Here they are:
"The Miller court refers to the two clauses of the second amendment as the "declaration and guarantee"."
(end Quote)

My statement was made in response to your earlier statement:
"The First Amendment does not have any qualifying phrase limiting its application to a specific institution..."
By that statement you imply that the second amendment has a qualifying phrase limiting its application to a specific institution.
DO you agree that was your intent?

However the Supreme Court in Miller refers to the two clauses of the second amendment as the "declaration and guarantee". It does NOT refer to the first clause as a qualifying phrase, rather it is refered to as a "declaration". Nor does it refer to the Militia as an institution.



From Miller:
"With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

The Court makes additional statements that make it clear that the 2nd part (the RKBA shall not be infringed)is what is referred to as the "Guarantee" of the second amendment in the previous paragraph.

"Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed"

and

"In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument"

Furthermore the court cites a similar preamble in a contempoary militia law and also characterizes this preamble as a declaration:

"The General Assembly of Virginia, October, 1785 (12 Hening’s Statutes c. 1, p. 9 et seq.), declared: ‘The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.’



Moreover the Supreme COurt does not refer to the Militia as an institution. It refers to the Militia as a body of citizens.


The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. Blackstone’s Commentaries, Vol. 2, Ch. 13, p. 409 points out ‘that king Alfred first settled a national militia in this kingdom’ and traces the subsequent development and use of such forces



The Supreme Court's use of the term "militia" plainly shows that they are not referring to an instution, but rather to those citizens capable of bearing arms.

[library_max]

132. The guy who thinks he is the umpire is calling balls strikes.

The recent case law says you're wrong. What more is there to say?

[hansberrym]

139. Why don't you explain what was wrong with the reasoning. Surely

you can demonstrate the error.


Or maybe not, that would explain your response.

[library_max]

147. I have demonstrated your errors over and over again.

You aren't listening.

What's wrong with your reasoning is that it isn't reasoning at all. It's special pleading for a point of view, made without any concern for the facts or reality - just a desperate search for specks and straws to enable you to pretend that the case law is on your side.

[Hrumph]

151. In kalifornia, you might be right.

Case law there may indeed be on your side. Here, in the 5th District, it is not so.

There was a time when slavery was the law of the land in some parts of this country. I guess that made it OK, then, right?

Obviously, justice, morality, right and wrong cannot be decided by virtue of the case law.

Obviously, bad law can be changed.

Obviously, such a thing will be impossible while the same judges sit on the 9th circuit bench.

Obviously, they should be removed.

[library_max]

165. You have the slavery - gun analogy exactly backwards, IMO.

Like gun control, abolition was once a losing issue politically. No candidate for office would publicly admit to being an abolitionist except in very narrow freesoil venues. But eventually sanity and decency won out.

Enjoy your side's control of politics (especially Republican politics) while it lasts. Because the law is NOT on your side. Before you look into getting Reinhardt removed from the bench, how about trying to get Silveira appealed? How about bringing a Second Amendment case against the AWB in ANY district?

Not going to happen, because you couldn't hope to win. Much better to stick to controlling the politics, while it lasts.

[hansberrym]

179. Those who control the past control the future...

Those who control the present control the past. -George Orwell. ...



He was speaking of those like Judge Reinhardt who will lie through their teeth regarding the past ( US v. Miller, John Adam's "A Defense of the Constitution", the Address of the Pennsylvania Minority, etc.)
in order to control the future -meaning to disarm and prevent any resistance to the enslavement of the citizens of this country.

[library_max]

186. Orwell was talking about Judge Reinhardt, was he?

I never heard that Mr. Blair was a crystal-ball gazer. But I guess there's about as much sense in that as in the paranoid fantasy that our 200-years-democratic government (the oldest functioning democracy in the world) is suddenly going to turn into a totalitarian dictatorship the minute RKBAers have to give up their guns.

[hansberrym]

192. Mr. Blair was a keen observer. He recognized what was happening..

as much of the world seemed to be embracing the Total State and its lies and manipulations of history/facts/information that allowed the Total State to remain in control, and which prevented the people from organizing themselves to effectively oppose the tyranny.

The quote meant something like this:
Persons in power will seek to increase thier power by manipulating the past. (Such as in Reinhardt's treatment of John Adams' "Defense of The Constitution", and his treatment of "The Address of the PA Minority" in order to make it seem as if no one was speaking of an individual right to bear arms at the time of the drafting of 2A)


Having rewritten the past, they can then parlay this to gain more power in the future.(using this false history to Disarm the people is just one step along the way)

Obviously Orwell was not speaking of Reinhardt directly, but he was speaking about people LIKE judge Reinhardt who are willing to REWRITE the past. The shoe fits in Reinhardt's case.

[library_max]

201. That's your personal opinion. Don't try to palm it off on Orwell/Blair.

[hansberrym]

208. Do YOU think Reinhardt's arguments are historically accurate?

Please STOP Dodging.

If you believe Reinhardt's claims say so, and show me where I am wrong.

[library_max]

215. Your claims about Reinhardt's argument are so far out in left field

and so divorced from anything that Reinhardt actually said, that they cannot be argued. One cannot refute babble. The simple fact is that Silveira has not been overturned, despite millions of dollars being spent to support the claim that the AWB is unconstitutional.

[hansberrym]

159. Perhaps you have your own definition for "demonstrated" also...

(you said)
Be specific about words you've taken out of context? Here they are:
"The Miller court refers to the two clauses of the second amendment as the "declaration and guarantee"."

The Miller court elaborates on the history of the militia, but lacking a crystal ball they could hardly discuss the fact that it would become dead, deceased, and defunct during the following sixty-five years.

And again, where's the case that verifies your interpretation? I've got mine, where are yours?
(end quote)

That is not demonstration or argument.

Note that I presented quotes from the Miller decision to back up my claim, but where are your quotes from the Miller decision, or any decision?

When did the Supreme Court reverse itself?

As I said numerous times before the Silveira court IGNORED the Miller Court's definition of "militia", and feigned ignorance of the Miller Court's meaning for "keep and bear" used in the actual holding so it can not be dismissed as mere dicta, or to use your term "Verbiage". That is hardly upholding precedent.

[library_max]

166. None so blind as they that will not see. /nt

[hansberrym]

177. You said it, I But is there an argument in there somewhere?

You said:
What's wrong with your reasoning is that it isn't reasoning at all. It's special pleading for a point of view, made without any concern for the facts or reality - just a desperate search for specks and straws to enable you to pretend that the case law is on your side.
(end quote)


But of course you have NOT challenged any of those "specks" and "straws" which come, of course, directly from the Miller decision.

[library_max]

183. I have pointed out your errors all up and down this board.

To summarize, basically:

1) The history and definition of the militia given in Miller is now 65 years old and at a great distance from modern reality. There has been no instance of any use of any armed citizen militia, or any organization of any armed citizen militia, or any steps toward organizing an armed citizen militia, anywhere in the United States for more than fifty years. It's dead and gone. Get over it.

2) Silveira and other recent case law is based on this understanding.

3) Your opinion and mine don't amount to a hill of beans compared to the actual judges who determine the actual interpretation of the law. No matter how much contempt you personally have for a decision, it stands as law unless and until reversed on appeal. And Silveira hasn't been.

4) All the standing case law, including Miller, Silveira, and Emerson, has one thing in common - they were all decided in favor of the gun control restriction and against the gun owner. They were all decided against RKBA. In not one case was the Second Amendment invoked to decide a case in favor of a gun owner.

[hansberrym]

193. You have side-stepped up and down this board

1) The history and definition of the term "militia" given in Miller in 1939 is STILL the history and definition given in Miller today. Modern reality can influence what we do today (perhaps repeal the amendment if no longer needed) but it can't change the past. Nor does it justify Reinhardt's attempt's to rewrite the past. Nor can you guarantee that the militia will not be needed tommorrow or ten years from now. Yes it has been a long time since the Revolutionary War, War of 1812, the Civil war, and NOW. But that does not mean we will never need the armed citizen militia again, or that we should give up that right since it is not NEEDED right NOW, in your opinion, or the opinion of any court. If that were the standard, all rights would constantly be in jeopardy of some judge deciding that some right was no longer needed and thus the provision of the Constitution guaranteeing its continuation is void.

2) "Silveira and other recent case law is based on this understanding." But that "understanding" flows from case law developed by those very same lower court rulings, not from any change in the constitution, or even any supreme court ruling. Can't you see that is circular reasoning?

3) The old "our opinions don't matter" is just a dodge for not addressing the merits of Silveira's arguments. Why should Silveira stand as law, when Silveira ignored Miller repeatedly. Does every court get to ignore what the previous has said by simply claiming that times have changed? Actually Silveira does not rely on that claim, Silveira relys on the claim that the Militia in the US Constitution always meant the STATE MILITIA and that it was a reference to that ORGANIZATION rather than as Miller defined the term.

4) Miller was reversed and sent back for further hearing on whether a shot gun less than 18 inches was part of the ordinary militiary equipment. They did NOT find against an individual RKBA in general as did Silveira. Miller said only that there wasn't any showing that the arms in question fit the definition. And the "Last Word", as you put it , in Emerson (2004 decision last paragraph)also recognizes an indvidual RKBA in general.

[library_max]

202. That's bull and you know it.

I've addressed your points a lot more than you've addressed mine.

1) Miller was decided again today? How come I didn't hear about that? And here I was thinking it was decided in 1939! The definition in Miller is 65 years out of date. It doesn't matter whether you think so, it is so. And that fact explains the difference in understanding of the militia issue between Miller and Silveira.

2) It's not circular reasoning to say that Silveira is based on the reasoning it's based on. It's just stating the obvious, for those who have difficulty grasping it.

3) You can try to canonize your personal opinion all you want and it doesn't elevate it one inch above being just your personal opinion. The Silveira decision, on the other hand, has the force and authority of law.

4) Miller said that the Second Amendment was no relevant to anybody's right to own any weapon outside the specific context of the militia. That was the basis for the decision, explicitly stated and restated throughout the text. Emerson 2001 yammered about the Second Amendment and Emerson 2004 briefly mentioned it, but in both cases the Second Amendment was found inapplicable and therefore irrelevant to the case at hand. The Second Amendment interpretation in Emerson (either version) played no part in the decision and therefore is no part of the precedent. A decision can be overturned on appeal - irrelevant verbiage cannot, and therefore carries no legal weight.

[hansberrym]

209. Then why all of the dodging?

My statement:
1) The history and definition of the term "militia" given in Miller in 1939 is STILL the history and definition given in Miller today. Modern reality can influence what we do today (perhaps repeal the amendment if no longer needed) but it can't change the past. Nor does it justify Reinhardt's attempt's to rewrite the past. Nor can you guarantee that the militia will not be needed tommorrow or ten years from now. Yes it has been a long time since the Revolutionary War, War of 1812, the Civil war, and NOW. But that does not mean we will never need the armed citizen militia again, or that we should give up that right since it is not NEEDED right NOW, in your opinion, or the opinion of any court. If that were the standard, all rights would constantly be in jeopardy of some judge deciding that some right was no longer needed and thus the provision of the Constitution guaranteeing its continuation is void.


Your response:
1) Miller was decided again today? How come I didn't hear about that? And here I was thinking it was decided in 1939! The definition in Miller is 65 years out of date. It doesn't matter whether you think so, it is so. And that fact explains the difference in understanding of the militia issue between Miller and Silveira

Comment:
Predictably your "response" does not address what I wrote, instead you make yet another snide remark for the purpose of side-stepping.




My Statement:
2) "Silveira and other recent case law is based on this understanding." But that "understanding" flows from case law developed by those very same lower court rulings, not from any change in the constitution, or even any supreme court ruling. Can't you see that is circular reasoning?

Your Response:
2) It's not circular reasoning to say that Silveira is based on the reasoning it's based on. It's just stating the obvious, for those who have difficulty grasping it.

Comment:
What is obvious, is that there is no basis for Silveira, other than its own claims, which you refuse to defend other than by stating that recent case law(based on Silveira) supports Silveira and is proof of its correctness.




My Statement:
3) The old "our opinions don't matter" is just a dodge for not addressing the merits of Silveira's arguments. Why should Silveira stand as law, when Silveira ignored Miller repeatedly. Does every court get to ignore what the previous has said by simply claiming that times have changed? Actually Silveira does not rely on that claim, Silveira relys on the claim that the Militia in the US Constitution always meant the STATE MILITIA and that it was a reference to that ORGANIZATION rather than as Miller defined the term.

Your Response:
3) You can try to canonize your personal opinion all you want and it doesn't elevate it one inch above being just your personal opinion. The Silveira decision, on the other hand, has the force and authority of law.

Comment:
Again you use the same dodge. Is it really just my personal opinion that Silveira said the following?

(taken from SILVEIRA v. LOCKYER)
"We agree that the interpretation of the first clause and
the extent to which that clause shapes the content of the second
depends in large part on the meaning of the term “militia.”
If militia refers, as the Fifth Circuit suggests, to all
persons in a state, rather than to the state military entity, the
first clause would have one meaning — a meaning that would
support the concept of traditional individual rights. If the term
refers instead, as we believe, to the entity ordinarily identified
by that designation, the state-created and -organized military
force, it would likely be necessary to attribute a considerably
different meaning to the first clause of the Second Amendment
and ultimately to the amendment as a whole.
<4> We believe the answer to the definitional question is the
one that most persons would expect: “militia” refers to a state
military force. We reach our conclusion not only because that
is the ordinary meaning of the word, but because contemporaneously
enacted provisions of the Constitution that contain the
word “militia” consistently use the term to refer to a state military
entity, not to the people of the state as a whole. (end quote)

While US v. MIller defined the militia this way:
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. Blackstone’s Commentaries, Vol. 2, Ch. 13, p. 409 points out ‘that king Alfred first settled a national militia in this kingdom’ and traces the subsequent development and use of such forces.(end quote from Miller) (my emphasis)








My Statement:
4) Miller was reversed and sent back for further hearing on whether a shot gun less than 18 inches was part of the ordinary militiary equipment. They did NOT find against an individual RKBA in general as did Silveira. Miller said only that there wasn't any showing that the arms in question fit the definition. And the "Last Word", as you put it , in Emerson (2004 decision last paragraph)also recognizes an indvidual RKBA in general.


Your Reply:
4) Miller said that the Second Amendment was no relevant to anybody's right to own any weapon outside the specific context of the militia. That was the basis for the decision, explicitly stated and restated throughout the text. Emerson 2001 yammered about the Second Amendment and Emerson 2004 briefly mentioned it, but in both cases the Second Amendment was found inapplicable and therefore irrelevant to the case at hand. The Second Amendment interpretation in Emerson (either version) played no part in the decision and therefore is no part of the precedent. A decision can be overturned on appeal - irrelevant verbiage cannot, and therefore carries no legal weight.

Comment:
Thankfully you did not dodge on this one.

Please cite a referece in Miller supporting your statement: "Miller said that the Second Amendment was no relevant to anybody's right to own any weapon outside the specific context of the militia. That was the basis for the decision, explicitly stated and restated throughout the text"

Actulally, the Miller court says "these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time", and goes on to cite the militia acts of 3 states to back up this statement. The court also uses the terms "keep and bear" to mean to mean "possession or use" in the actual holding shown below..

(Miller holding)
In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
(end quote)(my emphasis)


The CONTEXT that you are so vague about is specifically a "reasonable relationship the preservation and efficacy of a well regulated militia". The words "reasonable relationship" are generally broad language, and this is evidenced in this case in that the Court did require that Mr. Miller be an actual member of a state militia or any organized militia, only that the weapon in question have that relationship. This is evidenced further by the citation of Aymette in the actual holding.


I do not think you are correct about the 2004 Emerson decision.
The interpretation of the second amendment does figure in the decision to uphold the sentencing. That last line including the right of americans generally... does appear to be a holding.

[library_max]

216. Your arguments are irrelevant, unsupported opinion.

You want to make semantic arguments about the meaning of words and phrases you have picked out of the text of the decisions. Those are meaningless arguments, because they do not address the actual precedents set by the decision. Judge Reinhardt, in Silveira, meant what he meant and not what you think he must have meant. The foremost authority on what Judge Reinhardt meant must, obviously, be Judge Reinhardt. The fact is that his decision stands, although a huge lobby which has plenty of money for lawyers is arrayed against it, indicates that it is not as devoid of merit as you wish to pretend it is.

Not arguing about silly semantic muck is not "dodging," it's simply recognizing silly semantic muck for what it is.

[hansberrym]

224. Why don't you just say "resistance is futile"

I posted an entire unedited paragraph from each opinion giving the definiiton of Militia used in each opinion.

Your argument that I have picked words and phrases out of the text of the decisions is hardly accurate.

But dodging is becoming your MO.


Roger dodger, over and out.

[Hrumph]

91. Not really.

The Miller Court really decided nothing except that, in the Court's view, the case had not been proven either way in the lower court. The case was remanded back to the Western District to be re-tried.

In any case, the question seems moot. You've already admitted the falability of the courts. How can you or I trust anything they say?

To SCOTUS, the Miller case was all about the particular weapon involved, not the right itself. The US Attorney was, in fact, arguing in favor of that lie known as "collective rights" and, as such, Miller had no standing under the Amendment. Even unopposed, he STILL couldn't win that argument.

If you think that a case that was tried under those circumstances actually settles anything, you're deluding yourself. That's like running a race with only one contestant and declaring him the fastest man alive.

[library_max]

97. The Miller case is the precedent used in all the other 2nd Amendment cases

Sorry you don't like the law or the ruling(s). It doesn't change the fact that they are the law of the land.

[Hrumph]

112. And you've already admitted that the courts

cannot be counted on to render just decisions.


So where does that leave us?

[library_max]

116. It leaves us with the fact that the courts interpret the law.

And their interpretation, like it or not, is the law of the land. Anything else is just individuals making up rights to suit themselves.

[hansberrym]

123. Yes, the Miller decision is the law of the land. Anything else is just

individuals denying other people's rights to suit themselves.



Judge Reinhardt's denial of the definitions of "militia", "bearing arms", and "keeping arms" from the Miller decision is appalling.
His denial of the term "people" is yet another in his pattern of deception.

It may suit Judge Reinhardt and his fellow Statists to disarm the people, but it offends the Constitution.

[library_max]

130. Well, you'd be the authority.

I mean, who does this Judge Reinhardt guy think he is? A judge or something?

[hansberrym]

138. May a judge claim to faithfully uphold a prior ruling, while changing

the definitions of the key terms used in the prior ruling?

Is taking a words out of context the proper role of a judge?
It seems to the the MO of "judge" Reinhardt.




(Quoting "Honest Abe" Reihardt from Silveira )
Moreover, in other public fora, some of the framers explicitly
disparaged the idea of creating an individual right to personal
arms. For instance, in a highly influential treatise, John
Adams ridiculed the concept of such a right, asserting that the
general availability of arms would “demolish every constitution,
and lay the laws prostrate, so that liberty can be enjoyed
by no man — it is a dissolution of the government.” 3 JOHN 50
(end quote)


The actual quote in context exposes the Judge's lie.


Defense of the Constitution, John Adams
”To suppose arms in the hands of citizens, to be used at individual discretion, EXCEPT IN PRIVATE SELF-DEFENCE, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws..."
(My emphasis)


The good judge could not have missed John Adams exception for
PRIVATE SELF-DEFENCE, nor could he misunderstand the meaning.
He is a liar.

Can anyone explain how the phrase "private self-defence"
could plausibly have any collective meaning?

Or why a Federal Judge would misuse the quote in the way that he did?

[library_max]

148. May a judge interpret differently from hansberrym and remain a judge?

Yup, apparently so. Also, apparently, he can do so without being overturned on appeal.

[Hrumph]

152. I'd rather he didn't (j/k)

.

[hansberrym]

154. Roger... DODGER! Your non-response speaks volumes (n/t)

[library_max]

167. It was a perfect response.

You have this ridiculous idea that your interpretation of the Miller decision and the body of Second Amendment law generally is FACT, a fact which all intellectually honest people must acknowledge. But it isn't a fact, it's your OPINION. Judge Reinhardt's opinion differs, and carries perhaps a tad more weight than yours.

If he's so wrong, why wasn't Silveira overturned on appeal? Why has there been no case, in any district, to overrule the AWB on Second Amendment grounds?

[hansberrym]

173. No, but an intellectually honest person would provide a counter-argument

rather than bluster.

I presented an argument, based on facts gathered in support of that argument. You have neither addressed the argument, nor the facts gathered -other than to say the facts no longer matter.


Your arguments thus far:

You say: It no longer matters that the Supreme Court defined the militia broadly, since Silveira (a LOWER COURT decision I point out) has interpreted differently.


You say: Facts changed, that is the justification for Silveira.
I say: Where is the proof. Show me some facts.
You say: Reference recent case law (Silveira)

[library_max]

184. A person with a brain would recognize a counter-argument when he saw one.

Such a person would also be able to distinguish between facts and his own opinion. Sadly, I am not arguing with such a person.

When you make an argument based solely on your own personal and, how shall I say, peculiar interpretation of isolated words and phrases in the Miller case, it is sufficient counter-argument to point out that your opinion is only that (your opinion) and nothing more.

I have refuted your point about the definition of militia in Miller over and over again. Are you really asserting that nothing has changed militarily in the US since 1939? Did you read the history of the militia given in Miller? At one time there really was an armed citizen militia, and it figured importantly in wars such as the revolution, 1812, and the Civil War. But there's been no whisper of it since World War II, since the US entered the modern military era. These are facts.

The reason I keep coming back to Silveira (which is just one case of several) is to establish that my view of the matter is the one that is accepted in modern US law. Your view is just your view.

[hansberrym]

191. I posted the entire paragraph, it was the judge who edited, snipped,...

and took "isolated words" from the quote out of context. I do not understand fully why you are dodging the earlier post. The lie is the judge's, it is NOT yours, so why be so defensive? It is because you KNOW the rest of his arguments are equally fallacious?

You did not refute my argument about the definition of Militia. You have in fact recognized that the Miller court defined the Militia differently than Silveira defined it, but you have tried to justify that difference by saying "something" has changed (though you can't put your finger on what). That is not what the Silveira court argued.

The Silveira court argued that "militia" in the Constitution including 2A was a reference to the ORGANIZATION (State Militia) and not to the PEOPLE who comprise it. Reinhardt IGNORED the definition of "militia" in Miller and also the Miller definitions for "keep" and "bear".




(Please respond to my earlier post repeated below)
The actual quote in context exposes the Judge's lie.


Defense of the Constitution, John Adams
”To suppose arms in the hands of citizens, to be used at individual discretion, EXCEPT IN PRIVATE SELF-DEFENCE, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws..."
(My emphasis)


The good judge could not have missed John Adams exception for
PRIVATE SELF-DEFENCE, nor could he misunderstand the meaning.
He is a liar.

Can anyone explain how the phrase "private self-defence"
could plausibly have any collective meaning?

Or why a Federal Judge would misuse the quote in the way that he did?

[library_max]

203. Disagreeing with you is not the same thing as telling a lie.

You have to get over this idea that your opinions and interpretations are facts. They are not. A person may interpret something differently from the way you interpret it and not be lying. This applies to the Silveira/Adams quote and to a great many other issues we have been discussing.

Specific to the Silveira/Adams quote, when you show me a gun that can be used only for self-defense and automatically jams and refuses to fire when used for any other purpose, then I'll consider the possibility that Judge Reinhardt was lying about Adams's quote. Until then, I will maintain that he was just interpreting it logically. There is no way to assure that privately owned firearms will be used only in self defense, as Adams must surely have known.

Something changed since 1939 but I can't put my finger on what? Well, let's see, there was World War II, the development of the modern military, the development of tanks, military aircraft, modern artillery, bombs, missiles, pushbutton warfare, and the end of the draft. You're right, there's too much that has changed for me to "put my finger" on all of it. In World War I (the last US war before 1939), cavalry troops still rode around the battlefield on horses, for godsake.

[hansberrym]

210. More dodging.

What does the non-existence of a certain type of gun have to do with Reinhardt's selective deletion of words which are unambiguously related to the private self defence that Rheihhardt claims was not contemplated?

YOU might note that there is also no such thing as a a gun that can only be used to defend the all important STATE, but that jams or becomes unusable if one attempts to use it for Private Self Defense.


Why does Adams make that exception to his statement if not to allow for the use of arms by individuals at thier own discretion in cases of private self defense?


Was Reihardt editing to save space do you think?

Or was Reinhardt trying to give the impression that Adams did not support individual rights to own guns to defend ones self.



THis is what Reinhardt Claimed:
Moreover, in other public fora, some of the framers explicitly
disparaged the idea of creating an individual right to personal
arms. For instance, in a highly influential treatise, John
Adams ridiculed the concept of such a right, asserting that the
general availability of arms would “demolish every constitution,
and lay the laws prostrate, so that liberty can be enjoyed
by no man — it is a dissolution of the government


When one reads the actual Adams quote in its entirety it is obvious to all but the "obtuse" that John Adams made no such claim. John Adams, in fact, makes an exception for PRIVATE SELF DEFENCE, which argues strongly against the Exclusively COllective Rights crap spouted by Reinhardt.

[library_max]

217. It seems clear to me

that Adams was arguing that firearms owned privately and not subject to any particular military discipline or discipline of the state was a bad idea and would inevitably lead to trouble. He acknowledged self-defense as a legitimate use of firearms probably to forestall counterargument; but as it is obvious that there is no such thing as a firearm that can be used for self defense and for no other purpose, it is clear that he still meant that private ownership of firearms per se was a bad idea. Reinhardt never claimed to be quoting the entire passage, only the sense of it, and it seems to me that he got the sense of it exactly right. You disagree, but that's just your opinion.

[hansberrym]

222. Did John Admas ridicule the concept of a right to personal arms?

Quoting Reinhardt:
Moreover, in other public fora, some of the framers explicitly
disparaged the idea of creating an individual right to personal
arms. For instance, in a highly influential treatise, John
Adams ridiculed the concept of such a right, asserting that the
general availability of arms would “demolish every constitution,
and lay the laws prostrate, so that liberty can be enjoyed
by no man — it is a dissolution of the government




That is NOT what Adams asserted or ridiculed now is it. Adams made a highly qualified statement amkleing an exception for Private Self defnse and also qualifying the other statment with "partial orders...". Partial orders would be the opposite of IMpartial orders.

Adams was against individuals taking up arms to defend their own town or region on thier own initiative or on orders partial to the local interest above the interest of the state.

That Adams explicitly stated an exception for Private Self Defense in this treatise turns Reinhardts assertion that Admas "ridiculed such a right" to personal arms on its head.

Why else would Reinhardt delete that portion of the quote if not in an attempt to prop up his claim? Reinhardts claim is non-sensical when the citation is shown in full.

[Hrumph]

20. So you're a "living document" fan, eh?

You believe that "we" can re-interpret the Constitution whenever it's convenient? Clearly you belong on the 9th Circuit Court because they do it all the time.

Rules mean nothing if they change at the whim of the referee. The Constitution contains within it the process for changing it. It's called ammendment. You don't get to just re-define the terms as you see fit.

And... I'm still waiting for you to tell us WHY there's no such thing as the Militia anymore. It's still codified in Title 10, Sect. 311 of the U.S. Code.

[library_max]

21. You're right. I don't get to interpret the Constitution.

The courts get to do that. And they've done it. And there's not a case on the books in which the Second Amendment was found to guarantee the right of an individual to keep and bear arms. Every gun control measure challenged on Second Amendment grounds, up to and including outright bans, has been upheld.

[Hrumph]

22. Emerson.

.

[library_max]

40. Ralph Waldo, or Lake and Palmer?

Possibly it would be more helpful if you were to include some details, a quote, anything. I'm not going to research your side of the argument and mine as well.

[NorthernSpy]

73. heh! :)

Library Max, I think Hrumph is referring to US v Emerson.

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/emerson.html


Mary

[library_max]

87. Heh! Indeed. That decision was overturned by the 5th District.

See post #85 above. It quotes the complete text of the decision. Emerson's Second Amendment argument was ruled "without merit." Decided in January 2004.

[Hrumph]

99. No, not really.

Emerson was, evidently, a bit of an ass hat. Still, the court went to great lengths to affirm that the Amendment DOES, in fact, guarantee an INDIVIDUAL RIGHT.

Can rights be taken away? I would have to say yes. It is an axiom that we have the right to be free but if we go around victimizing others the the State will lock us away. That's as it should be. SIMILARLY, there can be legal mechanisms in place to separate someone from their RKBA. The law says that the parties must go before the court and plead their respective points of view before one (or both) of them is hit with a restraining order. Once the order has been issued, then any subject of that order is prohibited from posessing firearms for the duration of that protective order. The 5th District found that since Emerson had he opportunity to plead his case before the judge, that the system provided adequate 2nd Amendment safeguards.

My own divorce took place before such laws were in place but it is my understanding that requests for protective orders are just part of the boilerplate many attornies file in divorce cases. I don't know if Emerson did, in fact, have the opportunity to argue on his own behalf or not. At any rate, he did something stupid for which he got himself arrested. The 5th district ruled that since the process of obtaining such a protective order provided (in its view) adequated 2md Amendment safeguards, then they would not reverse the lower court on 2nd Amendment grounds. But again, the District Court went to GREAT lengths to affirm the individual rights nature of the Amendment.

Predictably, both sides of the gun control argument claimed victory.

[library_max]

108. You need to read the 2004 case cited in #85 above.

It supersedes and overturns the decision you're quoting. The entire text of the decision is in post #85, so there's no point it trying to pretend that it says something that it doesn't say.

[Hrumph]

111. I'm not the one pretending, my friend, you are.

The relevent part of the text simply says that the Court had already decided the 2nd Amendment question and wasn't going to revisit it. In fact, NOTHING in the latter appeal overturned ANYTHING in the previous one.

Everything in the latter appeal is consistent with the decision in the first appeal.

[library_max]

117. Are you talking about the 1999 decision or the 2001 decision?

The 1999 decision was the one quoted by those saying that it supported the Second Amendment RKBA. That decision vacated Emerson's conviction.

The 1999 decision was overturned in the 2001 decision and Emerson's conviction was reinstated. The 2004 decision confirmed the 2001 decision.

The pro-RKBA language quoted was from the 1999 decision. The 2001 decision and the 2004 decision ruled against the reasoning of the 1999 decision. In those, Emerson's Second Amendment arguments were ruled to be without merit. I pasted the entire text of the 2004 decision in message #85, and you can see that it says that it was against the law to possess a semi-automatic firearm, and that there was no valid Second Amendment complaint to be made against that law.

[hansberrym]

125. All three Emerson decision support an individual RKBA. The issue is

a question of line drawing. The lower court in 1999 held that the RKBA was an individual right and the court ordered turning in of weapons without a hearing was a violation of that right.


The 2001 Emerson case agreed with the lower court that there is an individual RKBA, but disagreed on the issue of whether the court order for Mr. Emerson to turn in his weapons was a violation of that right, and overturned the decision on that ground. The 2001 decision goes into a lengthy historical review and concludes as did the 1999 court that the RKBA is an individual right and so does not deny standing.


The 2004 decision was on the even narrower ground that there was no distinction made about pre-ban AW and post-ban used in crime. The crime being the failure to comply with the court order. Mr. Emerson lost on this ground also, and the previous judgement was affirmed quoting a portion of the earlier decision-

From Emerson:
The Sentencing Commission's decision to punish offenses involving such weapons more severely is "reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms . . . ." Emerson, 270 F.3d at 261
(end quote)

The meaning of the phrase "the right of Americans generally to keep and bear their private arms" can not be misunderstood. It is a recognition of an individual RKBA by the 2004 Emerson Court. The 2004 court did not disagree with this aspect of the 2001 decision, nor with what the 1999 court said in general about an individual RKBA.

The disagreement was on specifics of where to draw the line concerning an individual RKBA and public order.



.

[library_max]

133. You can say so all you want, but that doesn't make it so.

The verbiage in the 2001 Emerson case had no bearing whatsoever on the decision in the case. The text of the decision says that explicitly - when it came to the case itself, the Second Amendment had no application. So it was just verbiage, not any part of the legal reasoning on which the case was decided. This is important, because verbiage can't be appealed or overturned - therefore, it does not constitute a precedent.

Also, even in that verbiage, the Fifth District acknowledged that it was alone, that all the other districts interpreted the Second Amendment otherwise, as a collective or "sophisticated collective" right.

The 2004 Emerson decision decided that Emerson's claim had nothing to do with the Second Amendment. Again, you can place all the emphasis on verbiage you want, but that verbiage was no part of the actual decision.

Every case which has depended on interpretation of the Second Amendment has been decided in favor of gun control laws and against gun owners. Deal with it.

[hansberrym]

136. Is this not a holding of the 2004 Emerson decision?

From Emerson:
The Sentencing Commission's decision to punish offenses involving such weapons more severely is "reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms . . . ." Emerson, 270 F.3d at 261
(end quote)


The meaning of the phrase "the right of Americans generally to keep and bear their private arms" can not be misunderstood. It is a recognition of an individual RKBA by the 2004 Emerson Court. The 2004 court did not disagree with this aspect of the 2001 decision, nor with what the 1999 court said in general about an individual RKBA.

The disagreement was on specifics of where to draw the line concerning an individual RKBA and public order.

[library_max]

149. You keep insisting on your interpretation of that phrase,

but there's not a single case in which the actual decision was based, in any part, on an interpretation that agrees with yours. Verbiage in the 2001 Emerson decision was not material to the case. It didn't apply, as that court itself decided.

[hansberrym]

156. You posted it and now you run from It! It is the 2004 decision!

Is this not a holding of the 2004 Emerson decision?


From Emerson:
The Sentencing Commission's decision to punish offenses involving such weapons more severely is "reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms . . . ." Emerson, 270 F.3d at 261
(end quote)


The meaning of the phrase "the right of Americans generally to keep and bear their private arms" can not be misunderstood. It is a recognition of an individual RKBA by the 2004 Emerson Court. The 2004 court did not disagree with this aspect of the 2001 decision, nor with what the 1999 court said in general about an individual RKBA.

The disagreement was on specifics of where to draw the line concerning an individual RKBA and public order.

[library_max]

168. You can say "can not be misunderstood" all you want,

but apparently you've misunderstood it, because all the standing cases have been decided in opposition to your reasoning. There is not one single standing case that has overruled any firearms restriction on Second Amendment grounds.

[hansberrym]

170. THe 2004 case is the standing case, or as you said,, the "last word" (n/t)

[library_max]

172. Yes, and it upheld Emerson's conviction on a firearms charge.

It didn't overrule a single firearms restriction. Not one.

[hansberrym]

178. What is you definition of this phrase?

Perhaps you CAN misunderstand it.


From Emerson:
The Sentencing Commission's decision to punish offenses involving such weapons more severely is "reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms . . . ." Emerson, 270 F.3d at 261
(end quote)


.

[library_max]

185. Me don't define phrases out of context.

That's you style of argument. Me talk about actual history and actual decisions in actual cases.

[hansberrym]

190. Ye posted it. Can ye explain it?

Or perhaps ye CAN NOT misunderstand it after all, and that is why ye refuse to answer.


From Emerson:
The Sentencing Commission's decision to punish offenses involving such weapons more severely is "reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms . . . ." Emerson, 270 F.3d at 261
(end quote)

[library_max]

218. It's not that hard. Only two of the words have more than two syllables.

Possibly the gibes at your spelling and grammar are what confused you.

Anyway, to reiterate, I have no intention of arguing about the meaning of a phrase taken entirely out of context. Neither the 2001 nor the 2004 Emerson decision was made on Second Amendment grounds. That's the fact, jack. The rest is mere verbiage, so it doesn't matter what it means.

[hansberrym]

221. This phrase is not out of context, it is right there in the actual holding

See below in Boldface. That sentence in boldface is the actual holding, is it not? It is NOT mere verbiage, it is the actual decision affirming the sentencing court.

Ye Posted earlier:
Emerson also objected in <**8> the district court that U.S.S.G. § 2K2.1(a)(5) violates the Second Amendment as applied to him. The probation officer concluded that Emerson's base-offense level was 18, under U.S.S.G. § 2K2.1(a)(5), because the offense involved a firearm described in 18 U.S.C. § 921(a)(30) (defining the term "semiautomatic assault weapon"), i.e., a Polytech Model AK47S. Emerson argues that he legally possessed the Polytech AK47S prior to entry of the state court order. He argues also that the Guideline makes no distinction between semiautomatic assault weapons grandfathered under 18 U.S.C. § 922(v) and those which are not. In so doing, he contends, " § 2K2.1(a)(5) artificially inflates the punishment for those who lawfully exercise their Second Amendment right to own a grandfathered semiautomatic assault weapon and later become subject to a prohibition . . . ." This argument is without merit.

Under 18 U.S.C. § 922(v)(1) it is generally unlawful to possess a semiautomatic assault weapon. The assault-weapon ban does not apply "to the possession or transfer of any semiautomatic assault weapon otherwise lawfully possessed under <**9> Federal law on the date of the enactment" of subsection 922(v). See 18 U.S.C. § 922(v)(2). The exemption in 18 U.S.C. § 922(v)(2) applies only to prosecution for violations of 18 U.S.C. § 922(v)(1). Congress enacted 18 U.S.C. § 922(v) to address the increased threat and harm resulting from criminals and mentally deranged individuals using semiautomatic assault weapons to commit unlawful violence. See H. R. REP. NO. 103-489, 12-20 (1994), reprinted in 1994 U.S.C.C.A.N. 1801, 1820-28. The sentencing guideline does not exempt pre-ban weapons. See U.S.S.G. § 2K1.2(a)(5). The Sentencing Commission's decision to punish offenses involving such weapons more severely is "reasonable and not inconsistent with the right of Americans generally to keep and bear their private arms . . . ." Emerson, 270 F.3d at 261.

For the foregoing reasons, the judgment and sentence are AFFIRMED.

[slackmaster]

32. Not quite correct

And there's not a case on the books in which the Second Amendment was found to guarantee the right of an individual to keep and bear arms.

Here's a summary you might find interesting:

http://www.i2i.org/SuptDocs/Crime/35.htm

Every gun control measure challenged on Second Amendment grounds, up to and including outright bans, has been upheld.

The federal government has never even attempted to ban any type of gun.

[library_max]

39. Your summary is a chunk of propaganda

from a right-wing propaganda mill. Look at the www.i2i.org homepage (featuring a memorial to Ronald Reagan) if you don't believe me.

Funny, I thought the AWB was a federal law.

Please go ahead and cite an actual case, if you have one. Kopel's bull does not impress me.

[slackmaster]

42. Funny how you still don't understand the AWB

I didn't take any firearms out of circulation.

It didn't ban ownership of any firearms that existed at the time.

It's a 10-year moratorium on firearms with certain physical features.

The gun manufacturers made small changes to their designs and kept selling essentially the same weapons.

Look at Kopel's chart and read cases for yourself.

[library_max]

48. It banned certain firearms.

It is irrelevant that manufacturers found a way to circumvent the law. The law banned the manufacture and sale of certain firearms. It was never successfully challenged on Second Amendment grounds. Whether or not it achieves its apparent objective has no bearing on its Constitutionality or lack of same.

You challenged me to find a federal law which bans some firearms. The AWB is a federal law which bans some firearms. Back to you.

[FeebMaster]

50. If it banned certain firearms

why hasn't the government confiscated those firearms? Why can people legally still buy and sell those firearms? It banned the manufacture of those firearms not the sale. Really, you should try reading the laws you're discussing some time.


"You challenged me to find a federal law which bans some firearms. The AWB is a federal law which bans some firearms. Back to you."

Thanks for playing. Try again.

[library_max]

53. The law bans the manufacture and sale of those firearms.

True, there is no provision for confiscation of current weapons. So what? The AWB is certainly an "infringement" on the right of individuals to keep and bear arms. There has been no Second Amendment challenge. Every infringement that has been challenged on Second Amendment grounds has been upheld, bar none.

And since we've been at this a while, may I ask what's the point anyway? The SCOTUS has jurisdiction over all issues regarding the Second Amendment, state and federal. The 14th Amendment and the law pertaining to it make the Bill of Rights equally binding on the states. So what difference does it make, after all, if you can jink the definition of "ban" to the point where you can claim that there has been no federal ban? There have certainly been federal laws which infringed on the RKBA.

Keep "playing" if you like. I'm not playing.

[FeebMaster]

56. Nice backpedaling.

We weren't talking about infringements of the right to bear arms or second amendment challenges, we were talking about federal laws that ban firearms. You made the claim that the AWB banned guns, you were wrong.

I like how you're still insisting that the AWB bans the sale of weapons. I wonder why they're still being sold? Maybe you could quote the NFA again to prove you're right.

[library_max]

58. Once more with feeling.

What does any of this have to do with Miller or the Second Amendment?

You're trying to win an argument by redefining the terms. The problem with doing so is that it makes the whole argument irrelevant, to any substantial point and to reality in general. Fine, according to your own definition of "ban" there has never been a federal law banning any kind of weapon, at least not that I can cite for you. So what? We are talking about the fact that the Second Amendment has never been successfully invoked to overturn any gun control measure of any kind whatsoever, state, federal, or otherwise. But there have been cases, most notably Miller, in which the courts explicitly denied a general individual RKBA outside the context of the militia. Cases since Miller have clarified the militia issue to the point of essentially making the Second Amendment as a whole moot.

Word games and trick questions won't change that reality.

[FeebMaster]

60. This subthread was about the federal government and gun bans.

Redefining the terms? Which terms? Ban seems pretty clear to me.

Talk about Miller or the second amendment all you want, it's irrelevant to the question you were asked. You were asked to point out a federal law that bans weapons. You claim the AWB does. You are wrong.

Word games and trick questions won't change that reality.

What word games? What trick questions. You were asked a simple question which you haven't been able to provide a correct answer to.



By the way, I'm still wondering how you plan on getting guns banned in the United States.

[library_max]

62. More word games and more trick questions still won't change the reality.

Even if two or three more of you jump in and support slackmaster's definition of "ban," it won't change anything. What you all think you're accomplishing by making these little debaters' points is beyond me.

[FeebMaster]

64. Ok.

Define ban for us, so we can use your definition.

[library_max]

66. If you or slackmaster has a point to make, now would be time to make it.

Otherwise, this whole subthread has just been one long pointless quibble about the definition of "ban."

[FeebMaster]

67. Well, I don't know about

slackmaster, but I guess I'm done since I don't expect an answer.


Maybe you could answer this one for me, since we're done with the bans that don't ban anything:

How do you plan on getting firearms banned in the United States?

[slackmaster]

90. Definition of ban

The substance known as heroin is banned because even possessing it is illegal.

The objects known as assault weapons are not banned because possessing them is legal.

The act of manufacturing heroin is banned.

The act of manufacturing an assault weapon for civilian use is banned, at least until September 13.

People really get off the track when they start referring to post-ban (i.e. AWB-compliant) firearms as assault weapons.

[library_max]

98. Point?

FeebMaster couldn't find one. Do you have one?

[slackmaster]

103. Just answering your question

The AWB doesn't ban any firearms, nor has any other federal law in history.

[FeebMaster]

44. Gee Golly

since it's called the Assault Weapons Ban it must ban assault weapons. I guess there's no need for me to actually read the law.

[library_max]

49. Well, I've read it and I've quoted on earlier threads

the section where it prohibits the manufacture and sale of certain classes of firearms. So maybe there is a need for you to read it, if you want to catch up.

[FeebMaster]

51. To my recollection

the only section of federal law you've ever quoted was a portion of the National Firearms Act which you claimed was the Assault Weapons Ban.

[library_max]

54. I'm not responsible for the incompleteness of your recollection.

Not going to dig for quotes again to satisfy it, either.

[FeebMaster]

57. My recollection is complete enough.

Maybe you'll oblige me above by quoting the NFA again to show how the AWB bans the sale of some guns.

[library_max]

59. See post #54, with special attention to the second line.

[FeebMaster]

61. I wasn't asking you to quote yourself.

I was hoping you'd respond to post #56 with something about the NFA in an attempt to show that the AWB bans the sale of assault weapons.

[library_max]

63. Well, hope springs eternal.

Not unlike pointless posts.

[FeebMaster]

65. Sadly, my hopes were crushed. (nt)

[MrBenchley]

25. What a pe-culiar post.....

Funny, seems like somebody else was voicing that same sort of horsepucky just the other day....

"The Constitution is an enduring document but not a "living" one, and its meaning must be protected and not repeatedly altered to suit the whims of society, U.S. Supreme Court Justice Antonin Scalia said in Milwaukee on Tuesday.
Scalia, often reviled as an arch-conservative who would do the nation harm, admitted to a respectful crowd of more than 1,000 people at Marquette University that his "originalist" judicial philosophy is not popular."

http://www.jsonline.com/news/metro/mar01/scalia14031301a.asp

[MrBenchley]

8. Write and tell them how wrong they all are, hans....

I'm sure they could use a BIG laugh....

[yorgatron]

68. if we can have "an army of one"

why can't i be "a militia of one"? i believe i am well within my rights to protect myself,family,and friends from freepers,aryan nations/nazi scum,and the KKK.

[library_max]

69. Possibly because a PR slogan has no bearing on Constitutional law.

Possibly also because what you personally believe has no bearing on Constitutional law.

You can't arrogate legal rights and privileges to yourself by fiat, no matter how firmly you believe that you are right.

[MrBenchley]

70. freepers,aryan nations/nazi scum,and the KKK

will all be quite happy to pretend you can be a militia of one. Of course, that doesn't mean dick.

[Romulus]

83. <snicker>

You anti-gun-owner types can stand over by the "Mr. & Mrs. America, turn them all in!" crowd.



I'll stand over by this guy:

"By calling attention to 'a well regulated militia,' the 'security' of the nation, and the right of each citizen 'to keep and bear arms,' our founding fathers recognized the essentially civilian nature of our economy. Although it is extremely unlikely that the fears of governmental tyranny which gave rise to the Second Amendment will ever be a major danger to our nation, the Amendment still remains an important declaration of our basic civilian-military relationships, in which every citizen must be ready to participate in the defense of his country. For that reason I believe the Second Amendment will always be important."

John F. Kennedy, "Know Your Lawmakers," Guns, April 1960, at 4.
(cited in by the dissent in Nordyke v. King, (9th Cir, 2003))

[library_max]

88. Go stand by him then. I think you'll find him in a cemetary.

With most of the other people who were running the country in 1960, 44 years ago. Things have changed since then.

[MrBenchley]

92. Whatever happened to that guy Kennedy, anyway?

Oh yeah...some asswipe with a gun shot him.

[Wickerman]

228. At 220+ this is modem hell - those of you still discussing - get a room

locking