[TheForge] Criminal Background Check: way OT

[Peter Hirst]

Andrew:  If a well regulated militia is necessary to the security of a free 
state, why do none exist?


----- Original Message ----- 
From: "Andrew Vida" <osan at netlabs.net>
To: "Blacksmithing List Sponsored by ABANA" <theforge at mailman.qth.net>
Sent: Sunday, February 01, 2009 8:42 AM
Subject: Re: [TheForge] Criminal Background Check: way OT


>
>
> 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.
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