[TheForge] Criminal Background Check: way OT

[Andrew Vida]

Peter Hirst wrote:
> 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"

	Yes, and it is clear by the language of the ruling that the right 
applies to BOTH.  An *individual* right SUBSUMES the collective right. 
That is, if I hold a right as an individual, that right still holds as 
part of a group such as a shooting club, a coffee clatch, a business, a 
MILITIA.
> 
> Sure they cited the organic definition of Militia, but they did NOT rely on 
> it as support for the individual right. 

	That is because the first clause fails to limit or expand the meaning 
of the second.  They are not making things up - they are making them clear.

 > 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,

	Context?  No.

 > or
> rationale for the decision to protect a purely individual right. 

	Closer - depending on how takes "rationale".  It is A purpose.  One of 
potentially several legitimate reasons to protect the innate right.  It 
is SUFFICIENT reason *alone* to protect it.  If there were no other 
legitimate reasons in existence, this single one would be enough to 
recognize, protect, and guarantee the right against government infringement.

 > He has to
> do this because the premise of that clause no longer exists. 

	Eh?  Your comment makes no sense at all.  The ruling is clear as 
distilled water that the militia clause is valid.

 > He is
> acknowledging, if not ruling, that a well regulated militia is no longer 
> necessary to the security of a free state.

	Nowhere is this asserted or even implied.  To the contrary, the ruling 
states rather emphatically that the militia retains its validity in full 
force.

 > 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 am the militia.  I am well regulated.  QED.
> 
> 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. 

	Then you are saying two contradictory things... or are not being clear. 
  I agree with your last sentence, above.  RKBA is independent of the 
militia clause.  So what?  Independence does not invalidate the first 
clause.  It only renders moot the arguments of groups such as HCI/VPC 
who assert that it is ONLY a collective right (and there are no such 
things as collective rights, but that is for another day).

 > 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.

	There is no way to tell from Heller what will happen in such a case. 
The Heller ruling was completely unexpected by me.  I was surprised that 
they even agreed to hear the case - that they rendered a correct 
decision, however narrowly, threw me - but I am happy with it.
> 
> 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. 

	I'd have to go back and reread Miller, but at the very least the strong 
implication was there.  Is a sawed off shotgun a useful militia weapon? 
  They said no, but had the militia question been invalid or otherwise 
moot, they would have almost certainly said something like "because the 
right to form a well regulated militia does not rest with individuals 
but with government only, the question at hand is irrelevant."  And the 
case would have been tossed on its ear.

> 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.

	Heller cites the history of the Second's wording and acknowledges the 
first clause as being there due to legitimate fear of the rise of a 
tyrannical government - sorta like what we have these days. :)  Sure, in 
a future ruling they can say anything they want.  They could decide all 
black people can be denied their rights and shipped off to Africa. 
There is NOTHING in principle from stopping them.  What does bound them 
is precedent and reason.  As long as the court is concerned with their 
credibility above concerns of power politics, they are constrained not 
to too far, lest they incite the militia. :)
> 
> 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.  

	Such an interpretation in the future by a court would be disingenuous 
at best.

 >  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. 

	I think you are reaching here.  Establishing the relevance of a 
contemporary militia is not necessary or relevant to the case at hand. 
Why would they address it?  The court is, in fact, careful not to expand 
rulings beyond the relevancies of the cases at hand.  What had to be 
established, and it was, is that the right is individual.  To believe 
that this right disappears once two or more people come together to 
train in the use of arms is absurd on its face.  There are rulings that 
have clearly stated that rights do not alter or diminish with 
circumstance for free men.

 > 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. 

	Wrong.  We are all the militia, BY DEFINITION.  Every state has a 
militia, and some of that is pretty damned well regulated.

 > So we are
> left with a pure individual right, comp[letely stripped of either limitation 
> by *or the support of * the Militia clause. 

	I think your reasoning is fatally flawed - you would have to do a far 
better dance than this to convince me.  I AGREE that a court could 
devolve into such invalid sophistry and shenanigans, but their 
credibility would be pressed past the breaking point for anyone with any 
brains.  That doesn't render us safe from such a case, I agree - but let 
us not for a moment suggest that any such position could be defensible 
by anything other than fallacious reasoning and the acceptance of absurd 
premises.

 > 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.

	I agree he will lose, at least up front.  As to appeals... that is a 
crap shoot in any event.  But the Heller ruling does not leave that door 
wide open as you suggest.  It leaves it ajar perhaps 0.00001" such that 
anyone attempting to go through it would have to expose themselves as 
frauds in a most obvious and egregious fashion.  Given what is at stake, 
it may not make a difference to them.  The only way we will know is to 
find out one day.  In the meanwhile, keep your powder dry.
> 
> None of this is refuted by your quotes. 

	Actually it is, but it is clear you and I see these things differently. 
  I see no open door, but a capillary.

 > The Militia ratioanle
> existed then, but it doesn't exist now. 

	Says who?  Not the court.

  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. 

	Once again, says who?

 >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.

	I don't need a permit.  I need a TAX STAMP.  These are NOT the same - 
they are not even close.  The end result is similar, but the courts 
would blow the legislative and execs out of the water, were they to try 
to limit those weapons on a rights basis.  They tried and failed.  THAT 
is why NFA34 reads as it does - it perverts the commerce and taxation 
clauses of the Constitution as an end-run on the 2nd.
> 
> 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.

	This is far more clear than what you stated above.  We have already 
agreed on this, so there is no more discussion required on this point. 
I will say, however, that nobody knows what the court would rule - we 
don't know that a defense lawyer would argue based on Heller, except to 
use it as supporting case law.  Methinks there are probably other 
rulings that would better serve a defendant in such a case.