[TheForge] Criminal Background Check: way OT
Peter Fels & Phoebe Palmer
artgawk at thegrid.net
Sun Feb 1 14:28:31 EST 2009
1 Those guys are too crusty to be well regulated?
2 We don't have a free state?
Peter Hirst wrote:
> 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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