[TheForge] Criminal Background Check: way OT

[Peter Hirst]

ANdrew:

You are militia?  Well regulated?  Really?  What unit?  How often does your 
unit train?  What is its commission?  Who is your CO? Who is your CinC? 
How often do you muster and drill?  Where is your amory? What armor and 
artillery do you keep? When were you last called out? Where can I read these 
regulations?  What arms do you keep and bear?

No, sorry, nice try, but  you are NOT part of a well regulated Militia.  You 
may be Militia in the ancient, organic sense, but you are not regulated *as* 
a militia.  You are regulated to death, perhaps, but *not* as a militia. 
There is not one organized militia in this country today. Scalia's 
recognition of the militia clause goes no further thsaying that it was ONE 
reason the right was recognized in 1789.  That absolutley does *not* mean 
that the court has to recognize that the same reason would apply today.

And are correct that the court did not rule that the clause would not serve 
today, because it was not necessary to the decision of this case.  What I am 
saying is that Heller sets up that ruling to be decided in a future case 
when it is at issue:  when some poor shlub brandishes his M-16 because he 
thinks he is protected by the Militia rationale.

BTW  your observation that the modern validity of the Militia clause ws not 
decided in Heller is *exactly* what I am saying about the Militia weapon 
issue in Miller.  It was not decided there that ANY militiaweapon is OK 
because it was not necessary to decide the case.  But you are saying it was 
implicit in the case.  If the guyhad been carrying Thompson, say or a BAR, 
then the court would have had to decide whether the US could ban or regulate 
civilian possession of a military weapon in the face of the militia clause.. 
But it only the clearer cae of a clearly prohibited weapon before it, so it 
didn't have deal with that.  But it did set up the argument you suggest. 
But it did not reach the balancing test that woulso have been raised testing 
just how far the Militia clause protects what kind of weapons, and what kind 
of reasonable restriction  the feds could put on weapons not actually used 
by an organized militia..

WHich is also a question Heller leaves open. All I am am saying here is that 
since the Militia clause now does  not either limit or expand the meaning of 
the operative clause,   it will not in the next case protect the poor schlub 
who claims a right to a weapon that the feds want to ban.  ANd that will not 
be the disingenuous case:  it will rely directly on the language you have 
cited making the operative clause independent of the precatory clause:  it 
will reduce the Militia clause to its modern meaning, which will turn out to 
be zilch.  If there is any disingenuity here -- and oh yes I agree there is 
plenty -- it is in Heller:  the complete severing of the operative clause 
from the militia clause.  You will be free to defend yourself in your home 
from a burglar, a case which will probably never arise, and you will be 
powerless to defend yourself from the tyranny of the state and federal 
government, a case which arises every minute of every day of your life.

You think I'm wrong?  Fine, go get yourself a mark-19, a couple pounds of 
c-4 and a SAM-7.  You think those four so-called conservatives are going to 
accept your argument that you are Militia protected by the second amendment?

Just where they will draw the line is anybody's guess.  Mine is that the 
issue will focus on something closer to an M-16 than a Mark, and that the 
line will be drawn somehwere south of full-auto, just like it is now.

Anybody want to be the test case?

Anybody?



----- 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.
> ______________________________________________________________
> TheForge mailing list
> Home: http://mailman.qth.net/mailman/listinfo/theforge
> Help: http://mailman.qth.net/mmfaq.htm
> Post: mailto:TheForge at mailman.qth.net
>
> This list hosted by: http://www.qsl.net
> Please help support this email list: http://www.qsl.net/donate.html
>