[TheForge] Criminal Background Check: way OT
Peter Hirst
saltydog335 at aol.com
Sun Feb 1 00:42:43 EST 2009
ANdrew:
First, I meant Heller,blow not Miller
You quoted the cite yourself. the key words are
"1. The Second Amendment protects an *individual* right to possess a
firearm *unconnected with service in a militia*, and to use that arm for
traditionally lawful purposes, such as self-defense within the home
"UNCONNECTED WITH ANY SERVICE IN THE MILITIA"
Sure they cited the organic definition of Militia, but they did NOT rely on
it as support for the individual right. Scalia specifically and
emphatically disconnected it from the Militia clause. If you read your
quotes carefully, you will find that Scalia uses the Militia clause, which
he calles "prefatory" only to establish the historical context, or
rationale for the decision to protect a purely individual right. He has to
do this because the premise of that clause no longer exists. He is
acknowledging, if not ruling, that a well regulated militia is no longer
necessary to the security of a free state. The Militia may exist as a
theoretical entity, but the clause refers to a "Well regulated Militia,"
something that no longer exists and is is no longer a support for the
operative clause.
I never said Heller says the SA doesn't guarantee the right to throw off
tyranny. It says that the RKBA is independent of that right. That is waht
sets up the argument that was not at issue in Heller: do we have the right
to keep and bear arms sufficent to defend against tyranny. Heller is silent
on that issue, but I am telling you that the first poor sumbitch that
marches down mainstreet with a LAWS rocket -- or any other weapon the feds
don't want you and me to have -- claiming that he has a right to it because
of the Militia clause is not going to win.
OK one more time on Miller. It most certainly does *not* establish the
right to any weapon "useful to militia purposes", because no such weapon was
at issue there and a court's ruling can only apply to what is at issue.
There you had a weapon that the court ruled was not useful for milita or any
other lawful purpose and therefore could be banned. As a matter of law,
that does not mean mean that the contrapositive is true, that any weapon
useful to the militia may be kept. it may be ytought to grasp that
distinction, but I assure you that's how a court ruling works.
The ruling that the prefatory clause does not limit or expand the
interpretation of the operative clause does *not* support your argument.
All of these quotes, from that to the end of your piece, establish exactly
what I am saying: that the Court has established a pure individual right
which is in no way dependent on the Militia clause. that was abso;ute;ly
necessary to its ruling, because even Scalia would not argue that a well
regulated militia is still necessary to the security of a free state. that
Clause only serves to interpret what the framers did in 1789. it clearly
does not apply today because not one state has any such militia. So we are
left with a pure individual right, comp[letely stripped of either limitation
by *or the support of * the Militia clause. this is all that I am saying:
that the next time some weapon owner tries to justify keeping or bearing a
weapon that the state or feds don't want him to have -- even if it is common
in the infantry -- he we lose and lose badly if his argument is based on the
Militia clause, i.e. if his only proposed "lawful activity' is to defend
against the tyranny of the federal government.
None of this is refuted by your quotes. All those quotes say is that the
fear of the antifederalists was the reason for recognizing the right in
1789, but the fact that that reason no longer exists doesn't mean the right
doesn't exist . That's all. that's very different from saying that a
well-regulated Militia is still necessary today. The Militia ratioanle
existed then, but it doesn't exist now. Only the right exists, and the
right is limited to what is seen today as a lawful purpose, and sorry, but
protection against the feds or even the cops is not one of your lawful
purposes. If your state actually had a well-regulated militia maybe you
could keep a full auto m-16 without a federal permit. But it doesn't, and
you can't.
This can only play out in a case that raises it. Here's how to test it.
USMC recon humvees in Iraq carry a few pounds of c4, typically, as well as
a shoulder fired SAM. Someone pick up a couple of pounds under one arm and
a LAWS rocket under the other and keeps it in the car, just in case the FBI
invades and tries to take over the local government. Could happen.
Perfectly lawful and plausible in 1789, with some tech advancements. Then,
when BATF picks him up, he argues that under Heller, he is keeping this
stuff for the lawful purpose of protecting against federal tyranny.
Perfectly legit under the Militia clause, right. Want to bet on the outcome
of that case under this Court? That's all I'm saying. Sure, there may be
other lawful purposes left after Heller. Hunting, for one. COllecting for
historic or other hobby interest. But warding off tyranny? Don;t bet on
it. ANd as for the Militia clause defining the type of weapon that is
protected under the operative clause? You really think your right to keep
and bear a Mark 19 or a SAM willl hold up on the basis of Heller?
I'll take that bet
----- Original Message -----
From: "Peter Hirst" <saltydog335 at aol.com>
To: "Blacksmithing List Sponsored by ABANA" <theforge at mailman.qth.net>
Sent: Saturday, January 31, 2009 11:42 PM
Subject: Re: [TheForge] Criminal Background Check: way OT
I didn't mean that the NRA was responsible for the Militia clause itself,
but for the present interpretation of the militia clause. THey have been
pushing a pure individual rights interpretation, as I understand their
position. The Second Amendment Society, on the other hand, and private
"militia" and posse comitatus groups, have taken the position that the
militia exists before and independent of any organization of force.
I'll take another look at Miller for the exact treatment of the Militia
clause.
----- Original Message -----
From: "Andrew Vida" <osan at netlabs.net>
To: "Blacksmithing List Sponsored by ABANA" <theforge at mailman.qth.net>
Sent: Saturday, January 31, 2009 9:00 PM
Subject: Re: [TheForge] Criminal Background Check: way OT
Peter Hirst wrote:
> SCOTUS also did NOT accept the broad, organic view of what constitutes the
> militia as its justification for the individual right: in fact they
> rejected any connection whatever between the milita and the right to keep
> and bear arms,
Do you have a cite for this? I would be very interested in reading
such a ruling. I thought I read the entire opinion of Heller. If you
are referring to this case, perhaps I missed or misread something.
> choosing instead to treat the first clause as pure precatory
> language. The only such language in the entire constitution, BTW. You can
> thank the NRA for that.
NRA?! Um... NRA didn't exist in 1789 - they didn't come into existence
until 1873.
> Conservatives should not take much heart in this.
> By reducing the that first clause mere surplusage, Scalia reduced the
> scope
> of the amendment to personal protection in the home, stripping it of any
> meaning whatsoever with repect to securing the community or the state
> against tyranny.
You have *clearly* misread the ruling, which holds:
"1. The Second Amendment protects an *individual* right to possess a
firearm *unconnected with service in a militia*, and to use that arm for
traditionally lawful purposes, such as self-defense within the home."
This is NOT saying that the second amendment fails to guarantee RKBA
for purposes of throwing off tyranny. It is saying that the the militia
clause does NOT limit the RKBA clause - that it very clearly in fact
guarantees RKBA for ANY lawful purpose.
US v. Miller ruled that people could keep weapons useful to militia
purposes. Heller expands on this saying that is also guarantees RKBA
for other purposes not connected to militia duties.
Further bolstering my interpretation, the ruling states:
"(a) The Amendment’s prefatory clause announces a purpose, but
does not limit or expand the scope of the second part, the operative
clause. The operative clause’s text and history demonstrate that it
connotes an individual right to keep and bear arms."
This language is abundantly clear and in diametric opposition to your
stated interpretation, which is a *good* thing. <phew>
The ruling goes on to drive yet another nail in the coffin of the pro
gun control position:
"(b) The prefatory clause comports with the Court’s interpretation of
the operative clause. The “militia” comprised all males physically
capable of acting in concert for the common defense. The Antifederalists
feared that the Federal Government would disarm the people in order to
disable this citizens’ militia, enabling a politicized standing army or
a select militia to rule. The response was to deny Congress power to
abridge the ancient right of individuals to keep and bear arms, so that
the ideal of a citizens’ militia would be preserved"
Then there is this:
"(c) The Court’s interpretation is confirmed by analogous arms-
bearing rights in state constitutions that preceded and immediately
followed the Second Amendment."
And this:
"(d) The Second Amendment’s drafting history, while of dubious
interpretive worth, reveals three state Second Amendment proposals
that unequivocally referred to an individual right to bear arms."
Not to mention this:
"(e) Interpretation of the Second Amendment by scholars, courts
and legislators, from immediately after its ratification through the
late 19th century also supports the Court’s conclusion."
And in case the HCI assholes were tempted to claim the court had
reversed itself from previous rulings, they added this wonderful bit:
"(f) None of the Court’s precedents forecloses the Court’s
interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553,
nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-
rights interpretation. United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes."
Note that my recollection of US v Miller was dead on correct.
> If you think this was a great conservative victory, you
> just watch what happens next time the Fibbies and BATF have some holdout
> faction of Posse Comitatus cornered on a remote ridge in Idaho or a
> barracks in Waco. Go ahead, shoot a burglar in Anacostia, if you think
> that's the grand concept the framers of the federal government had in
> mind.
FBI is going to shoot the Posse Comitatus? I suppose they could use
copies as targets. What is a "faction of Posse Comitatus"?
I will point out that the Posse Comitatus is slowly being forgotten.
It is, AFAIK, still law.
> Scalia has much bigger ideas than that. He and his buddies couldn't wait
> to
> get rid of the Militia clause.
You need to drink less coffee or something. That is NOT what they did.
Very clearly not.
> Neo conservatism is NOT about States rights.
Huh?
> Its about preserving the illusion of individual rights while making sure
> that the substance of those rights is completely manageable by the Federal
> government and that the federal government is manageable by certain
> interests.
Here we are in strong agreement.
> Sure DC now has to let you keep a 9 in your home, locked and
> loaded. Big deal. (Notice BTW that this case is not about the right to
> bear arms -- only to keep them: that boot has yet to drop.
Agreed. If this ever makes it to a favorable decision, cities such as
NY, LA, and Chicago will be in for quite a shake up. For the better, I
will add.
> You want to be
> the one to sue for the right to carry on K Street?). If the Feds -- or
> the
> cops for that matter -- want to clean out an armory in Concord, however,
> they won't have to pry that AR 15 out of your cold dead hands: they'll
> just
> crush you under an Abrams.
Things do appear to be heading rapidly in that direction, unfortunately.
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