Re: Federal Appeals Court: assault weapons have No 2A protec

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YankeeTarheel wrote:AndyH:

What I'm about to say is addressed at your argument, not you, so please don't take it personally. It's taken me several hours to put this together, which is why my response is so delayed. I was trained initially as an historian, and part of that was not to rely on "authorities" but rather my own knowledge of facts and my ability to connect the dots and then draw logical inferences, regardless of what the "authorities" say.

I'm not impressed by any argument that attempts to rationalize why the first 14 words of the 2nd are somehow less important than the rest of it, when no other clause in the Constitution, either the body or the other 26 Amendments, can likewise be discounted and, effectively ignored. Linguistic gymnastics notwithstanding, it demeans both the brilliance and intent of the author, James Madison, who wrote 11 other proposed Amendments, none of which had clauses that could be down-graded, deemed less important, or downright ignored. That it can be effectively ignored, is basically a self-justification, and a rationalization to avoid the consequences of recognizing its full meaning and intent.

The argument you make is fallacious to its core and here's why:
With respect, I cut off what I think is the material that appears as a result of an unfortunate tangent. As I see it, you're missing the point of the 2A and reading in a TON of baggage in order to end up on the side of dissenting justices that keep saying the 2A is about the militia and not an individual right. All of your posts seem to be consistently reading the amendment from that perspective, and then you appear to bring a bunch of other material to bear in order to support the incorrect view. While you seem to think that Scalia is 'downgrading' one or the other clause, that's not the case. The dissenting justices, on the other hand - the ones that want more gun control - are ignoring the primary clause and hanging their argument on the subordinate. You seem to be blaming Scalia for something others are doing.
YankeeTarheel wrote:The fact that he endorsed the false premise that the second part is the "operative clause" and the first is not, endangers the ENTIRE Constitution (something Trump does everyday). The SCOTUS was not constructed to decide which clauses of the Constitution are "operative" and which are not. Again, this is not how the Constitution works, like a cafeteria menu. We don't get to pick and choose what's "operative" and what's not.
Yet again: Neither Scalia nor the Supremes as a whole are selecting clauses - the FOUNDERS DID THAT.

The same sort of arguments are all over the internet. There's one written by an English professor that attempts to parse the amendment from modern usage and provides a massive word salad that seems to 'prove' that the primary clause is about the militia and therefore there is no individual right. Various judges have done the same, which provides plenty of case law for justices to cite in their dissenting opinions. Their words are well chosen and their logic is impeccable but because they're divorced from the origin and intent of the BOR, they're wrong.

David E Young's volume of independent history, "The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787-1792" is excellent. His shorter book, "The Founder's View of the Right to Bear Arms" is also good and was cited multiple times in Heller.
http://www.secondamendmentinfo.com/Foun ... index.html
https://www.amazon.com/Origin-Second-Am ... 0962366439
https://www.amazon.com/Founders-View-Ri ... 0962366471

When one reads the letters, articles, and debates about the formation of the Constitution and the Bill of Rights, they are reminded that our 2A and the absolute view that it's an individual right came from British common law and beyond that, what they saw as natural law that predates any government. There's plenty of writing and debate about the militia as well - yet it was all viewed through the natural law lens - these two concepts are not separate.

What your posts seem to be doing, as well as the anti-gun point of view of some modern justices, is akin to an archaeologist trying to figure out why each chamber in the Great Pyramid exists without any ancient context. Until they find source documents that tell exactly why the builders did what they did, they'll have to keep guessing, and the story will continue to change. Thankfully, we don't have to float in the wind when we want to understand the 2A - the writings and context are freely available.

Ultimately, to swing this Titanic back around to the course, that the anti-gun case law is incorrect is why the topic appeals court ruling must be overturned.

Edit...autocorrect + editing fail
Last edited by AndyH on Sun Nov 12, 2017 2:59 pm, edited 1 time in total.

Re: Federal Appeals Court: assault weapons have No 2A protec

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AndyH wrote:
YankeeTarheel wrote:AndyH:

What I'm about to say is addressed at your argument, not you, so please don't take it personally. It's taken me several hours to put this together, which is why my response is so delayed. I was trained initially as an historian, and part of that was not to rely on "authorities" but rather my own knowledge of facts and my ability to connect the dots and then draw logical inferences, regardless of what the "authorities" say.

I'm not impressed by any argument that attempts to rationalize why the first 14 words of the 2nd are somehow less important than the rest of it, when no other clause in the Constitution, either the body or the other 26 Amendments, can likewise be discounted and, effectively ignored. Linguistic gymnastics notwithstanding, it demeans both the brilliance and intent of the author, James Madison, who wrote 11 other proposed Amendments, none of which had clauses that could be down-graded, deemed less important, or downright ignored. That it can be effectively ignored, is basically a self-justification, and a rationalization to avoid the consequences of recognizing its full meaning and intent.

The argument you make is fallacious to its core and here's why:
With respect, I cut off what I think is the material that appears as a result of an unfortunate tangent. As I see it, you're missing the point of the 2A and reading in a TON of baggage in order to end up on the side of dissenting justices that keep saying the 2A is about the militia and not an individual right. All of your posts seem to be consistently reading the amendment from that perspective, and then you appear to being a bunch of other material to bear in order to support the incorrect view. While you seem to think that Scalia is 'downgrading' one or the other clause, that's not the case. The dissenting justices, on the other hand - the ones that want more gun control - are ignoring the primary clause and hanging their argument on the subordinate. You seem to be blaming Scalia for something others are doing.
YankeeTarheel wrote:The fact that he endorsed the false premise that the second part is the "operative clause" and the first is not, endangers the ENTIRE Constitution (something Trump does everyday). The SCOTUS was not constructed to decide which clauses of the Constitution are "operative" and which are not. Again, this is not how the Constitution works, like a cafeteria menu. We don't get to pick and choose what's "operative" and what's not.
Yet again: Neither Scalia nor the Supremes as a whole are selecting clauses - the FOUNDERS DID THAT.

The same sort of arguments are all over the internet. There's one written by an English professor that attempts to parse the amendment from modern usage and provides a massive word salad that seems to 'prove' that the primary clause is about the militia and therefore there is no individual right. Various judges have done the same, which provides plenty of case law for justices to cite in their dissenting opinions. Their words are well chosen and their logic is impeccable but because they're divorced from the origin and intent of the BOR, they're wrong.

David E Young's volume of independent history, "The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787-1792" is excellent. His shorter book, "The Founder's View of the Right to Bear Arms" is also good and was cited multiple times in Heller.
http://www.secondamendmentinfo.com/Foun ... index.html
https://www.amazon.com/Origin-Second-Am ... 0962366439
https://www.amazon.com/Founders-View-Ri ... 0962366471

When one reads the letters, articles, and debates about the formation of the Constitution and the Bill of Rights, they are reminded that our 2A and the absolute view that it's an individual right came from British common law and beyond that, what they saw as natural law that predates any government. There's plenty of writing and debate about the militia as well - yet it was all viewed through the natural law lens - these two concepts are not separate.

What your posts seem to be doing, as well as the anti-gun point of view of some modern justices, is akin to an archaeologist trying to figure out why each chamber in the Great Pyramid exists without any ancient context. Until they find source documents that tell exactly why the builders did what they did, they'll have to keep guessing, and the story will continue to change. Thankfully, we don't have to float in the wind when we want to understand the 2A - the writings and context are freely available.

Ultimately, to swing this Titanic back around to the course, that the anti-gun case law is incorrect is why the topic appeals court ruling must be overturned.
Andy, we don't seem to have a common point of reference on this. We don't agree on the basic facts. I did my own research and analysis, not rehashing someone else's work or ideas. There's no way you can look at what Scalia wrote and NOT see him discounting the first 14 words. And his comment on the 9th Amendment shows he was perfectly willing to discount and even ignore "inconvenient" parts of the Constitution.

I also don't believe that Madison didn't weigh with incredible care every single word he wrote, and intended them to have profound meaning. It's true in all the 10 and 27th Amendment. Clear, clean, precise, careful language, yet you and others seem willing to infer that he wrote the 2nd backwards. Sorry, but I prefer to think that Madison meant exactly what he wrote. I believe you missed my main point:

To prevent the anti-gun folks from having an opening to outlaw AR-15s and semis, a different interpretation of the 1st 14 words would have "inoculated" against it. Instead, Scalia left them an opening by trying to be too clever (a flaw of his). Now we have to hope the reactionaries on the SCOTUS will rule such laws unconstitutional because surely they'll be passed here in NJ.

I may have to transfer my Kel-Tec and Cx4 Storm to my brother in NC and look into a shotgun and lever-action rifle instead, so I'm not sanguine about such laws.

Now I'm done and I'm going get coffee and dessert and hope the Kardiac 'Kats of Northwestern can keep winning and hold off the Boilermakers.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

Re: Federal Appeals Court: assault weapons have No 2A protec

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YankeeTarheel wrote:Andy, we don't seem to have a common point of reference on this.
I agree.
YankeeTarheel wrote:We don't agree on the basic facts. I did my own research and analysis, not rehashing someone else's work or ideas.
I've continually recommended Young's larger work because he's the EDITOR, not the author. His contribution was to pull together and publish documents that used to be sequestered in microfiche and back shelves in the Library of Congress.
http://www.secondamendmentinfo.com/

Since the point of understanding the 2A is specifically about someone else's "work or ideas" (the founders), I found it amazingly beneficial to actually read what they wrote. I suggest that when you do the same you'll understand exactly why the decision of the court was the correct one and why Scalia actually isn't giving the antis a way in (as if they need another - all one has to do is read the dissenting opinions in Heller to see that the antis are already suffering from an advanced case of revisionist history).

Enjoy the rest of your weekend.

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wanzer777 wrote:Public Service announcement: The second amendment was not intended to help people overthrow the government, "well regulated" meant well trained, the purpose of the whole thing was to reduce or eliminate the standing army which can and is used as a tool of oppression.
This author argues that all able-bodied white male citizens were eligible to be called up by the militia, thus the right to bear arms extended to everyone who belonged to that group, even though not everyone was actually called up for service. I've never heard of anyone being charged in the U.S. for possessing a firearm outside of militia service.

"Congress has supervisory authority over the armed forces generally, but the authority to train the militia and appoint militia officers is reserved to the states, provided they conduct that training "according to the discipline prescribed by Congress." Congress also has power to provide for calling the militia into federal service, meaning that Congress can federalize the militia of one or more states or pass legislation authorizing the president to call the militia into federal service.

One more provision of the Constitution deserves our attention — the Second Amendment: "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."

The reference to the militia states a reason for the right to bear arms, not a condition thereto. Note that the word "people" is not used interchangeably with the word "state," and that the term "keep and bear arms" implies individual ownership of weapons. Collectivists have argued that the Second Amendment protects only the right of the state to maintain a military force. However, in the 2008 District of Columbia v. Heller decision, the Supreme Court ruled 5-4 that the amendment protects the individual citizen's right to bear arms (although the court also errantly said this right is subject to state regulation).

In 1792, Congress passed the Uniform Militia Act to give limited direction to the state militias. Section 1 of the act defined militia according to the common historic understanding:

That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of 18 years, and under the age of 45 years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizens shall reside, and that within 12 months of the passing of this act.... That every citizen so enrolled and notified shall, within 6 months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack [etc.] ... and shall appear so armed, accoutred and provided, when called out to exercise, or [into] service ... and that from and after five years from the passing of this Act, all muskets for arming the militia as herein required shall [be] of bores sufficient for balls of the eighteenth part of a pound. And every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

The definition of the militia as all able-bodied male citizens was in keeping with the understanding of the time.

Defender of Liberty

One purpose of the militia is to defend the liberty of the people against foreign invaders. Throughout history it has worked effectively, and it still works today. In "The Rationale of the Automatic Rifle," Massad Ayoob recounts part of a conversation that took place when Cmdr. Robert Menard attended a 1960 meeting between U.S. Navy personnel and their Japanese counterparts. One American naval officer asked why the Japanese did not invade America's west coast during WWII. A Japanese admiral answered: "We knew that probably every second home in your country contained firearms. We knew that your country actually had state championships for private citizens shooting military rifles. We were not fools to set foot in such quicksand."

But the militia serves another purpose: the defense of the people's liberty against domestic tyrants. To many Americans today, this thought seems radical and almost subversive. But consider James Madison's words in The Federalist, No. 46:

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the state governments with the people on their side would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth of the number able to bear arms. This proportion would not yield in the United States an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.

And Alexander Hamilton, a continental colonel but hardly a wild-eyed revolutionary, expressed a similar thought in The Federalist, No. 29:

Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped;... This will not only lessen the call for military establishments; but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little, if at all, inferior to them in discipline and in the use of arms, who stand ready to defend their rights and those of their fellow citizens.

Across the ocean and across the millennia, Aristotle would have agreed:

A king's bodyguard is composed of citizens carrying arms; a tyrant's of foreign mercenaries.... Members of the constitution must carry [arms] even among themselves, both for internal government and in the event of civil disobedience and to repel external aggression.... For those who possess and can wield arms are in a position to decide whether the constitution is to continue or not.

From the adoption of the Uniform Militia Act of 1792 through the passage of the Dick Act in 1903, militias continued to be a bulwark of the nation's defense. Usually they were organized locally and consisted of men who were mostly friends and neighbors of each other, and commonly they elected their own officers, although they were subject to state regulation. Just before the War Between the States, the United States Army consisted of 1,108 officers and 15,259 enlisted men, but there were thousands of militias, each consisting of about 30 to 60 men. Quickly after the war began, the Union Army swelled to 2,500,000 men, and the Confederate Army consisted of 1,000,000 men. Both sides relied upon the militia units that fought for their respective states.

After the war, the status of discipline of many militias gradually declined. In the North many of the militias simply ceased to exist, and in the South they were suppressed by the Reconstruction regime. In the 1870s, many states passed new laws requiring male citizens to serve in the militias, but these laws were poorly enforced and largely ignored.

Federalizing the Guard

In 1903, Congress passed the Dick Act, which began the process of federalizing the National Guard. Rep. Charles Dick's bill divided the American adult male population, other than those serving on active duty, into two categories: (1) the National Guard (the organized militia), and (2) the Reserve Militia (the unorganized militia, all other able-bodied adult male citizens). The 1916 National Defense Act revised the Dick Act and provided that "the militia of the United States shall consist of all able-bodied male citizens of the United States ... who shall be more than 18 years of age and ... not more than 45 years of age, and said militia shall be divided into 3 classes, the National Guard, the Naval Militia, and the unorganized militia."

And as federal funding for the Guard increased, so federal control over the Guard also increased, and the Guard gradually ceased to be a defender of the people's liberty against domestic tyranny.

A further reorganization took place in 1933, under which certain specially designated National Guard units received special attention and funding from the federal government. Men who enlisted in these Guard units were considered to have simultaneously enlisted in both their state's Guard Unit and the National Guard of the United States. Members of these units could be ordered to active duty with the United States armed forces, and upon completion of that service, their status would revert to that of members of their state's Guard. Guard units were better funded than before, but much of their independence and their identity as representatives of their respective states was lost. It is an old story, repeated many times before and many times since: federal aid leads to federal control.

At first, members of these units could be ordered to federal service only in the event of a national emergency. (Article I, § 8 says Congress can call the militia into federal service "to execute the Laws of the Union, suppress Insurrections and repel Invasions.") In 1952, Congress removed that requirement but provided that, in the absence of a national emergency, a state Guard unit could be federalized only with the governor's consent. That consent requirement was partially repealed by the Montgomery Amendment of 1986, which provided that a governor may not withhold his consent to federalization of his state's Guard unit for service outside the United States because of any objection to the location, purpose, type, or schedule of such duty.

In 1987, Minnesota Governor Rudy Perpich objected to the deployment of the Minnesota National Guard to Central America, alleging that the Montgomery Amendment unconstitutionally interfered with his authority over the Guard pursuant to Article I of the Constitution. In Perpich v. Department of Defense, 496 U.S. 334 (1990), the Supreme Court held that, under the dual-enlistment system established in 1933, guardsmen lose their status as militia members when they are ordered to federal service, and therefore the militia clauses of Article I, § 8 afford them and their units with no constitutional protection. The practical effect of this decision is that National Guardsmen are, first and foremost, federal troops; their connection with the state militias is increasingly tenuous.

Over the years from 1903 to 1990, Guard units have increasingly come under the authority of the United States government. They still bear the name of their respective states, i.e. the Idaho National Guard, and they still perform functions for their respective states. But it is now clear that they are federal forces first, state forces only second, and only at the sufferance of the federal government. The Guard continues to perform admirable service in the defense of our nation, and they serve heroically to defend their states and local communities against natural disasters like Tropical Storm Katrina. Any American who serves or has served in the Guard should be proud indeed. But the guardsman's role as defender of the people of his state against domestic tyranny, as envisioned by Madison and Hamilton, has virtually disappeared."

https://www.thenewamerican.com/culture/ ... -and-today
"When and if fascism comes to America... it will be called, of course, ‘Americanism'." - Halford Luccock
"Liberty without socialism is privilege and injustice. Socialism without liberty is slavery and brutality."
— Mikhail Bakunin

Re: Federal Appeals Court: assault weapons have No 2A protec

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You realize, Andy, that Young's article was published by the Journal on Firearms and Public Policy, which is the publishing arm of the Center for the Study of Firearms and Public Policy, which is the propaganda arm of the Second Amendment Foundation. SAF is so radical it can be described as making the NRA look like the ACLU in comparison.

I read Young's article and found not one single thing that contradicts my analysis. I look at more than just the founders' words for understanding but who they were, and how they lived, which is very, very different than how we live. Ignoring that is like ignoring a long-distance trucker's concern with fuel prices and road taxes. How they lived, what they faced, how Great Britain ruled and mis-ruled the Colonies are all co-equal parts of the mix. Young has one interesting point: Had the impetus for the 2nd ended with the War, in 1781, we wouldn't be debating it today.

Young has an "interesting" habit of citing his own work as a source of evidence in his footnotes, generally a big no-no that typically invalidates "research". You can't use yourself as a source without lots of caveats, which he does not have. While much of his factual evidence is not contestable, his inference about Hamilton's take on "a well regulated militia" is only supported by Hamilton's cited words in Young's imagination. You just can't reasonably make that inference.

Again, nothing I found in this article fundamentally contradicts my argument, and I looked for just that. If you've drawn the inference that "a well regulated militia" isn't relevant to RKBA, it's just not in the evidence Young presents. In fact, just the opposite is true and has been since Mason's original organizing in 1774. The 2 concepts are well and truly connected, like it or not.

As I said before, having been a fervent anti-"assault type weapons" type who fully expected to die never owning a gun, my hard and fast opinion was re-shaped by a series of events that culminated, on the morning of Nov 9, 2016, with me and my better half realizing that a racist reactionary anti-Semitic dictatorship had moved from theoretical to eminently possible, even probable. It's the ass and the alligators thing. I've seen both sides of the debate and can tell you both have valid points, like it or not, and I've told anti-gun people in Indivisible and Resist EXACTLY the same thing. Our JOINT goal should be to reduce ALL gun deaths, not to score points.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

Re: Federal Appeals Court: assault weapons have No 2A protec

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YankeeTarheel wrote:You realize, Andy, that Young's article was published by the Journal on Firearms and Public Policy, which is the publishing arm of the Center for the Study of Firearms and Public Policy, which is the propaganda arm of the Second Amendment Foundation. SAF is so radical it can be described as making the NRA look like the ACLU in comparison.
Please tell me where in the WORLD I referenced any 'article' by Young? I linked his BOOK - and recommend the ~830 page collection of founding documents first and foremost. You clearly haven't read it but think you can criticize me for something I didn't recommend? Gotcha.

This is a quote from Young's document collection:
...whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them...
Federal Farmer May, 1788 Pamphlet: An Additional Number of Letters from the Federal Farmer to the Republican.
"The Origin of the Second Amendment: A Documentary History of the Bill of Rights, 1787-1892" David E Young, Page 355

This is from a mid-2016 post...there's another book referenced there. The quote, however, isn't from the author's mouth. (I hadn't read anything from Heller when I posted, FWIW.)
I was guided to a couple of books in the 2A reading list forum here. Before we had a Federal Constitution and Bill of Rights we had state constitutions. During the entire process, those involved wrote letters to each other, newspaper articles, pamphlets, etc. outlining the what's/where's/why's/how's of the thought process. The 2A as accepted in the Bill of Rights was intended to combine two separate but associated themes - that "everyone" understood that "everyone" would "always" have arms and have the right to them, that they had the right to defend themselves, their homes, towns, states, and nation, and that those skills and arms were vital to having a skilled and capable group of people to call-up for militia duty. I recall from one of the books that the initial push-back against including any stated right of citizens to keep and bear arms was because they didn't see a time when "everyone" wouldn't have arms - whether knifes or pistols or shotguns or rifles or cannon. At the time, British citizens had the right to arms, and they were citizens until they weren't - and they weren't because in part the Crown decided to try to disarm them.
7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.
Note those are separate and independent clauses, and that 'state' could range from a small village to a county to a US state, to a 'country'.
From the "Dissent of the Minority" during the debate over the existence of and content of the Bill of Rights.
"The Founders' Second Amendment", Halbrook, P 195
In the first quote, you can see that the cultural view of gun ownership was rather different than it is today. The second shows that the founders spend a LOT of time trying to wordsmith a multi-petaled Venn diagram worth of stuff into an amendment. In hindsight, it would have been cool if they'd left in a few extra words. :lol:

Scalia's opinion from Heller does a great job of covering all of the bases. It had to, since the point of the case was that because modern reinterpretation of the 2A, primarily by folks looking for a way to limit it, tried to paint the right to keep and bear arms as only being a right while one is in a militia. This 'meme' has ended up in case law and the MSM so many times that even gun enthusiasts believe it's all the 2A protects. Information warfare 1; John and Mary Public 0.
https://www.law.cornell.edu/supct/pdf/07-290P.ZO
3. Relationship between Prefatory Clause and
Operative Clause

We reach the question, then: Does the preface fit with
an operative clause that creates an individual right to
keep and bear arms? It fits perfectly, once one knows the
history that the founding generation knew and that we
have described above. That history showed that the way
tyrants had eliminated a militia consisting of all the ablebodied
men was not by banning the militia but simply by
taking away the people’s arms, enabling a select militia or
standing army to suppress political opponents. This is
what had occurred in England that prompted codification
of the right to have arms in the English Bill of Rights.
The debate with respect to the right to keep and bear
arms, as with other guarantees in the Bill of Rights, was
not over whether it was desirable (all agreed that it was)
but over whether it needed to be codified in the Constitution.
During the 1788 ratification debates, the fear that
the federal government would disarm the people in order
to impose rule through a standing army or select militia
was pervasive in Antifederalist rhetoric. See, e.g., Letters
from The Federal Farmer III (Oct. 10, 1787), in 2 The
Complete Anti-Federalist 234, 242 (H. Storing ed. 1981).
John Smilie, for example, worried not only that Congress’s
“command of the militia” could be used to create a “select
militia,” or to have “no militia at all,” but also, as a separate
concern, that “[w]hen a select militia is formed; the
people in general may be disarmed.” 2 Documentary
History of the Ratification of the Constitution 508–509 (M.
Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists
responded that because Congress was given no
power to abridge the ancient right of individuals to keep
and bear arms, such a force could never oppress the people.
See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The
Origin of the Second Amendment 275, 276 (D. Young ed.,
2d ed. 2001) (hereinafter Young); White, To the Citizens of
Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of
America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the
Amendments to the federal Constitution, Nov. 7, 1788, in
id., at 556. It was understood across the political spectrum
that the right helped to secure the ideal of a citizen
militia, which might be necessary to oppose an oppressive
military force if the constitutional order broke down.
It is therefore entirely sensible that the Second Amendment’s
prefatory clause announces the purpose for which
the right was codified: to prevent elimination of the militia.
The prefatory clause does not suggest that preserving
the militia was the only reason Americans valued the
ancient right; most undoubtedly thought it even more
important for self-defense and hunting. But the threat
that the new Federal Government would destroy the
citizens’ militia by taking away their arms was the reason
that right—unlike some other English rights—was codified
in a written Constitution. JUSTICE BREYER’s assertion
that individual self-defense is merely a “subsidiary
interest” of the right to keep and bear arms, see post, at
36, is profoundly mistaken. He bases that assertion solely
upon the prologue—but that can only show that selfdefense
had little to do with the right’s codification; it was
the central component of the right itself.
Sorry man - based on the stuff Scalia wrote, I really don't know what you're on about.

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Sorry 'bout that--by following the link you posted, I then went to Young's web page and read this article of his he had there:

http://www.secondamendmentinfo.com/Journal/index.html

You did NOT direct me to this article, you're right about that and I apologize--it was not intentional.
However it IS Young's writing and it was for SAF's journal.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

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SCOTUS has been petitioned to hear Kolbe v. Hogan the case discussed in this thread. All the petitions are in and the case was scheduled for conference on November. 9. However that conference was cancelled so it has to be rescheduled. Assuming SCOTUS takes the case the decision will be critically important to 2A rights of assault rifle owners and those seeking to purchase an assault rifle.

There is a high likelihood that the Court will take the case because the enbanc decision to uphold the MD ban on assault rifles was decided under a new rubric. The Fourth Circuit’s ban is one of three Circuit bans. Each of those bans was arrived at with a different rational. That inconsistency makes It likely that SCOTUS will take the case. Added to that is fact that the Fouth Circuit made its ruling on what many leagal scholars consider a misinterpretation of the Heller decision.

So the assault rifle issue might finally be ruled by SCOTUS set precedent. Progress of the case can be followed at scotusblog.com.

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richardw wrote:SCOTUS has been petitioned to hear Kolbe v. Hogan the case discussed in this thread. All the petitions are in and the case was scheduled for conference on November. 9. However that conference was cancelled so it has to be rescheduled. Assuming SCOTUS takes the case the decision will be critically important to 2A rights of assault rifle owners and those seeking to purchase an assault rifle.

There is a high likelihood that the Court will take the case because the enbanc decision to uphold the MD ban on assault rifles was decided under a new rubric. The Fourth Circuit’s ban is one of three Circuit bans. Each of those bans was arrived at with a different rational. That inconsistency makes It likely that SCOTUS will take the case. Added to that is fact that the Fouth Circuit made its ruling on what many leagal scholars consider a misinterpretation of the Heller decision.

So the assault rifle issue might finally be ruled by SCOTUS set precedent. Progress of the case can be followed at scotusblog.com.
Kolbe includes the 4th circuit's bizarre interpretation of 2A with regard to semi-automatic carbines, such as AR-pattern semi-autos unfortunately categorized under the conveniently nebulous, political "assault weapon" moniker at the behest of the gun restriction lobby. Regarding the assault rifles you mentioned, since they are by definition selectable-fire weapons, they are already heavily regulated under the NFA, and few are in civilian hands. Not many people own pre-'86 M-16 receivers, and I don't think Maryland has specifically taken issue with assault rifles.
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(Would the LGC contribute to a future brief?)
BRIEF AMICUS CURIAE OF
PINK PISTOLS AND WOMEN AGAINST
GUN CONTROL AND THE NATIONAL
AFRICAN AMERICAN GUN ASSOCIATION
IN SUPPORT OF PETITIONERS
Amici are groups representing those who are far
more likely than average to become victims of firearms
violence: African Americans, women, and members of
the Lesbian, Gay, Bisexual or Transgender community
(LGBT). We are filing this brief to dispel the misleading
and insulting caricature that supporters of Second
Amendment rights are either tobacco-chewing, gap-toothed,
camouflage-wearing rednecks or Hollywood-commando
posers who are morbidly fascinated with firepower.
http://www.scotusblog.com/wp-content/up ... istols.pdf

Re: Federal Appeals Court: assault weapons have No 2A protec

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AndyH wrote:(Would the LGC contribute to a future brief?)
BRIEF AMICUS CURIAE OF
PINK PISTOLS AND WOMEN AGAINST
GUN CONTROL AND THE NATIONAL
AFRICAN AMERICAN GUN ASSOCIATION
IN SUPPORT OF PETITIONERS
Amici are groups representing those who are far
more likely than average to become victims of firearms
violence: African Americans, women, and members of
the Lesbian, Gay, Bisexual or Transgender community
(LGBT). We are filing this brief to dispel the misleading
and insulting caricature that supporters of Second
Amendment rights are either tobacco-chewing, gap-toothed,
camouflage-wearing rednecks or Hollywood-commando
posers who are morbidly fascinated with firepower.
http://www.scotusblog.com/wp-content/up ... istols.pdf
Thanks for the look. I was needing something interesting to read today. Looking on the very first page I notice this comment in a footnote.

"Preparation and submission of this brief was funded in part by the NRA Civil Rights Defense Fund."

The NRA working with the gays, women, and black people? What a pleasant turn of events. Maybe there's a glimmer of hope for the NRA after all.
106+ recreational uses of firearms
1 defensive use
0 people injured
0 people killed

Re: Federal Appeals Court: assault weapons have No 2A protec

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(...still reading the Pink Pistols, et al brief...)
Given how hard it is for even trained professionals
to shoot accurately at close range, maximum firepower
– in the form of a magazine holding more than ten
rounds – is a necessity for police officers and civilians
alike. It is not some gimmick desired only by militia
half-wits besotted by the cinematic gunplay of Hollywood
action movies.
Don't hold back! :lol:
Eris wrote:"Preparation and submission of this brief was funded in part by the NRA Civil Rights Defense Fund."

The NRA working with the gays, women, and black people? What a pleasant turn of events. Maybe there's a glimmer of hope for the NRA after all.
:thumbup:

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"We are filing this brief to dispel the misleading and insulting caricature that supporters of Second Amendment rights are either
tobacco-chewing, gap-toothed, camouflage-wearing rednecks
or
Hollywood-commando posers who are morbidly fascinated with firepower."

Damn! Everybody: time to dump your cams and Rambo-look-alike stuff!

If I try to look like Rambo somebody might say I look more like Dumbo. :yikes:
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

Re: Federal Appeals Court: assault weapons have No 2A protec

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To refocus:
The late justice also more generally offered the belief that “like most rights, the right secured by the Second Amendment is not unlimited.” It is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” For instance, Scalia said concealment laws were permitted at the time of the Constitution’s ratification and should be permitted today.

The issue that Scalia left future courts to grapple with is what constitutes a protected weapon. He wrote that the Constitution protects weapons that could be carried and were in common use. What he didn’t say in the opinion—and what the court has deferred ruling on—is whether an AR-15 fits the bill for a common weapon. On one hand, it’s certainly not rare. There are more than a million in circulation. On the other hand, it’s not as ubiquitous as ordinary rifles and handguns. At some point, the John Roberts court will wrestle with the questions Scalia left unanswered, or the justices will leave it to the political process.
http://www.newsweek.com/antonin-scalia- ... ook-472460
Heller
https://www.law.cornell.edu/supct/html/07-290.ZO.html

We can argue 'till we're blue in the face. "Future courts" may very well be this one.

The Ninth and Tenth Amendments allow states to provide job security for the SCOTUS. California, my state, is one.

CDFingers
Crazy cat peekin' through a lace bandana
like a one-eyed Cheshire, like a diamond-eyed Jack

Re: Federal Appeals Court: assault weapons have No 2A protec

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CDFingers wrote:To refocus:
...is whether an AR-15 fits the bill for a common weapon. On one hand, it’s certainly not rare. There are more than a million in circulation. On the other hand, it’s not as ubiquitous as ordinary rifles and handguns.
...We can argue 'till we're blue in the face. "Future courts" may very well be this one.
Hopefully this future court will rely on facts rather than Newsweek. From the Pink Pistols brief:
The AR-15 semiautomatic rifle design, which
mainstream journalists have dubbed “America’s
Rifle,” accounts for 60% of all civilian rifles
sold and a quarter of all firearms sales
each year in the United States.6
(The 60% number bounces to the NSSF via the Hartford Current, which suggests:
Today, the AR-15 is so popular, with estimates of as many as 5 million in private hands,
Yes, Newsweek, I agree that 5 million is in the "more than a million" category, but could you have gotten just a little bit closer? :P

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