[TheForge] Criminal Background Check: way OT
Peter Hirst
saltydog335 at aol.com
Mon Feb 2 22:07:36 EST 2009
ANdrew:
OK, I think I see where we are missing each other: I think you are assuming
that the "militia" defined as all able men between 17 and 45 etc. are
thereby a "well regulated milita". It comes down to whether either
"militia" in the sense of all able men, or some group of such men, such as
our Scaliwag Milita, could be the "well regulated Militia" the 2d amendment
refers to. It could not. Under the USC, there are only two kinds of
Milita: organized (National Guard), and the entire group of able men 17 to
45 etc. Forming a group of able men from the big group of all such men does
*not* make them well regulated militia. They are no more regulated than the
entire group, which is not regulated at all , or any individual, who also is
not regulated at all, as militia. Such a group is subject to the same laws
and regulations ias any other group in the same state. Bening "Milita" in
the general or organic sense sonfers no rights or powers under current law.
That's what the Militia Act means. If a bunch of guys age 17 to 45 get
together to train and drill, they are not subject to any regulations -- or
any rights -- any different from a group of 80 year old women who want to
get together for the same purpose. In fact, the 80 year old women could
call themselves the Scaliwag Militia and have exactly the same rights to the
F-15s as the young men, which is none.
"Well regulated" has a pretty specific meaning in the law. Public utilities
are regulated. The postal service is regulated. Railroads are regulated.
Trucking used to be regulated. The fact that Militia is defined in the USC
does *not* mean that it is regulated. The fact that your jeep is subject to
speed limits and your deer rifle is subject (in some states) to permitting
or registration does not make you well-regulated milita, even if you are
militia under the statute. The National Guard, which under that law is the
ONLY organized militia, has miles of regulations that govern it, including
the Uniform Code of Military Justice. That is "regulated. The "unorganized
militia" under the USC, which I refer to as the Milita in the organic
sense because it is a common law institiution that precedes the Constitution
AND the USC -- is merely defined. It is not regulated, it is merely a
defined group. Under the federal law there is not nor can there be any
organized or regulated militia other than the National Guard. That is the
primary purpose and function of the Milita Act of 1903, to subsume any and
all organized militia into the National Guard. There is no other Militia in
the country. The Milita in the sense of all able men between 17 and 45 is
*not* a regulated Militia. It is simply a defined group called Militia.
That's the difference between now and 1789. Back then the organic Militia
were actually organized into well regulated regiments by the individual
States. Those are the Militia that the second amendment refers to. They
don't exist any more. In fact as a matter of law they can't: the only
organized, regulated Militia under the law of the land is the National
Guard. Which can never defend a state against the tyranny of the federal
government because it can be federalized instantly on the orders of the
CinC.
That's why Scalia had to say the the Militia clause neither restricts nor
expands the meaning of the operative clause. If the operative clause
depended on the Milita clause for its present meaning, there is no right to
bear arms at all because there is no well regulated Militia any more, other
than a branch of the US Army.
That's why it is a mistake to suppose that the federal limitation of the
arms that may be kept and how or when you can bear them that will surely be
defined -- and upheld -- in the not too dostant future cases is some wacko
perversion of Heller. On the contrary, it flows directly, logically and
consistently from Heller.
It's all right there in Heller: the Militia clause is sufficient reason to
justify the right to bear arms, but it doesn't define that right.
If it were otherwise, all Scalia had to do was say: We still have well
regulated Militias and we still need them to protect the States, so the
right still stands inviolable. the only reason there is even and argument
about whether its an individual or collective right is that everyone
inviolved recognizes that it its a collective right, i.e. dependent on the
Milita clause -- its *gone*. If there were still well-regulated
militias, it doesn;t matter whether its a collective or individual right: it
survives either way.
It only matters that it is an individual right because there is no more
*well regulated* militia to support it as a collective right.
Peter
----- Original Message -----
From: "Andrew Vida" <osan at netlabs.net>
To: "Blacksmithing List Sponsored by ABANA" <theforge at mailman.qth.net>
Sent: Monday, February 02, 2009 10:22 AM
Subject: Re: [TheForge] Criminal Background Check: way OT
>
>
> Peter Hirst wrote:
>> Andrew:
>>
>> With all due respect, I think you need to distinguish between what ought
>> to
>> be and what is.
>
> I do. I have conceded that your scenario is possible - perhaps even
> probable. I just hope it will not turn out so.
>
> > The fact that there are still able marks men of qualifying
>> age -- militia in the organic sense
>
> This habit of referring to "organic" seems off. Militia is codified in
> law. It is FACT. If we will not abide by these artifacts, then why
> have them at all? If some element of government feels it is above the
> law, they need to be removed - by force if necessary. Otherwise, what
> we have here is a joke - and a sad one at that. I recognize the
> normative nature of this, but that doesn't make it less true or valid.
> We, the people, need to make a friggin' choice here and cut the fence
> sitting act. If we want to be a free nation, then we'd better get to it
> - otherwise, we should just drop our drawers, bend over, and get it over
> with. Since the end of WWII an ever growing proportion of this nation
> has joined the bandwagon of masturbating sophistry and look where it has
> landed us.
>
> -- does not mean that there is a well regulated militia.
>
> It in fact does. It is in the USC. It is FACT. That a government
> office, in this case the courts, would violate the laws it is sworn to
> uphold is another question entirely. Very relevant, I agree, but
> different in any event.
>
>> There is in fact not one single duly constituted Militia
>
> Define "duly constituted".
>
>> And do not mistake what Scalia has done in Heller. It does not leave the
>> door open for the pervert case with false reasoning: it IS that case.
>
> Can you elaborate? I am still trying to find your reasoning. Either
> it is false or you are too subtle for my peanut-sized brain.
>
>> Your reading of Heller suggests that the Scaliwag Militia would have the
>> right to f-15s with full load of 20mm cannon, Sidewinders, Sparrows and
>> AMRAAMS.
>
> That is correct -if they can find the funding and as long as they
> operate in concirdance with the constitution (i.e. no bank robbery and
> that sort of thing).
>
> > My reading is that the next case --Supreme Court case -- on the
>> subject will draw the line somewhere around the distinction between the
>> AR-15 and M-16, and will be firmly rooted in Heller and Miller, and that
>> the
>> well regulated milita will be found to have been subsumed by the natonal
>> Guard in 1903.
>
> You may be correct on this, but make NO mistake about it that this
> would require a very severe perversion of reason and precedent. It may
> happen, it may not - time will tell perhaps. But there is NO legitimate
> basis in reason or law that will support such a ruling. It will have to
> stand on its own as a clear violation of their oaths to uphold the
> constitution of the USA.
>
> > I am not saying that's the way it ought to be. I am saying
>> that's where these four so-called conservatives (and Kennedy) -- not some
>> lizard on the 9th circuit the SCOTUS -- are headed.
>
> I would expect this from a 9th circuit judge, given what numb-nuts they
> seem to be - then it would most likely be overturned, as it usually is.
> The Supremes? Less likely IMO, but if the stakes are high enough,
> well... men are still only men, even if they wear black robes.
>
> Let us all hope that you turn out to be mistaken on this, because if
> you are not, the implications are not good for our posterity.
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