|
Edited on Sat Jun-26-04 12:37 AM by hansberrym
Note that each act required the individual to "keep", or "provide himself", or "equip himself" with arms. The General Court of Massachusetts, January Session 1784 (Laws and Resolves 1784, c. 55, pp. 140, 142), provided for the organization and government of the Militia. It directed that the Train Band should ‘contain all able bodied men, from sixteen to forty years of age, and the Alarm List, all other men under sixty years of age, ....’ Also, ‘That every non-commissioned officer and private soldier of the said militia not under the controul of parents, masters or guardians, and being of sufficient ability therefor in the judgment of the Selectmen of the town in which he shall dwell, shall equip himself, and be constantly provided with a good fire arm, &c.’
By an Act passed April 4, 1786 (Laws 1786, c. 25), the New York Legislature directed: ‘That every able-bodied Male Person, be- <307 U.S. 174, 181> ing a Citizen of this State, or of any of the United States, and residing in this State, (except such Persons as are herein after excepted) and who are of the Age of Sixteen, and under the Age of Forty-five Years, shall, by the Captain or commanding Officer of the Beat in which such Citizens shall reside, within four Months after the passing of this Act, be enrolled in the Company of such Beat. ... That every Citizen so enrolled and notified, shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack; ....’
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.’ 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. But none of them seem to afford any material support for the challenged ruling of the court below. (end quote) Note also that the Federal Militia act of 1792 also required the individual person to supply his own arms. And what source does Silveira cite for the meaning of "keep"? That would be the Articles of Confederation which were REPLACED by the Constitution; the second amendment being an amendment to the Constitution, and the Militia act of 1792 being authorized by that same Constitution. And then there is the actual holding of 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. Miller, 307 U.S. at 178. Reinhardt's claim to be unable to know the meaning of the term "keep" in the second amendment, and in the Miller holding, is further undermined by his own words: (from Silveira) Thus, in Miller the Supreme Court decided that because a weapon was not suitable for use in the militia, its possession was not protected by the Second Amendment. As a result of its phrasing of its holding in the negative, however, the Miller Court’s opinion stands only for the proposition that the possession of certain weapons is not protected, and offers little guidance as to what rights the Second Amendment does protect. Accordingly, it has been noted, with good reason, that “he Supreme Court’s jurisprudence on the scope of mendment is quite limited, and not entirely illuminating.” Gillespie v. City of Indianapolis, 185 F.3d 693,710 (7th Cir. 1999). What Miller does strongly imply, however, is that the Supreme Court rejects the traditional individual rights view. (end quote)
If the possession of any type of weapon is NOT protected by the second amendment, Why send it back down to determine if the possession of A PARTICULAR type of weapon is guaranteed?
Judges are required to give a ruling a plausible reading if one exists, but "Judge" Reinhardt choses an interpretation which renders the Miller holding utterly pointless.
Of the three possible interpretations laid out in Silveira, the only one excluded by a fair reading of the actual holding is the Exclusively Collective Rights argument that Reinhardt ultimately selects as "best".
Silveira says:
There are three principal schools of thought that form the basis for the debate.
The first, which we will refer to as the “traditional individual rights” model, holds that the Second Amendment guarantees to individual private citizens a fundamental right to possess and use firearms for any purpose at all, subject only to limited government regulation. This view, urged by the NRA and other firearms enthusiasts, as well as by a prolific cadre of fervent supporters in the legal academy, had never been adopted by any court until the recent Fifth Circuit decision in United States v. Emerson, 270 F.3d 203, 227 (5th Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002).
The second view, a variant of the first, we will refer to as the “limited individual rights” model. Under that view, individuals maintain a constitutional right to possess firearms insofar as such possession bears a reasonable relationship to militia service.8
The third, a wholly contrary view, commonly called the “collective rights” model, asserts that the Second Amendment right to “bear arms” guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons. Under this theory of the amendment, the federal and state governments have the full authority to enact prohibitions and restrictions on the use and possession of firearms, subject only to generally applicable constitutional constraints, such as due process, equal protection, and the like. Long the dominant view of the Second Amendment, and widely accepted by the federal courts, the collective rights model has recently come under strong criticism from individual rights advocates. After conducting a full analysis of the amendment, its history, and its purpose, we reaffirm our conclusion in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), that it is this collective rights model which provides the best interpretation of the Second Amendment. (end quote)
If it were true that 2A "does not provide any type of individual right to own or possess weapons" then the Miller holding is completely pointless, and the sending back down for further hearing was an utter waste of time.
Either of the other 2 choices laid out by Silveira, make sense in that they can explain why the case was remanded for further hearings.
The Exclusively Collective Rights argument does not hold water because
it is inconsistent with the ruling of the Miller case.
|
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
