NationStates Jolt Archive

But HCI, dictionaries, and the occasional judge have more relevance than the actual writings of the Founding Fathers.

You know full well that it is not "the occasional judge" that has interpreted the Second Amendment correctly.

You have named 2 cases in the history of the United States where an "occasional judge" (one a mere magistrate) found your interpretration persuasive -- in both the issue was not central to the case.

I will list more if you insist, but I have already cited 3 SCOTUS cases distributed over several decades in which majorities of the Supreme Court have rejected your view.

I will list more if you insist, but I have already cited several of the literally dozens and dozens of cases over 150 years of US history in which majorities of US Courts of Appeal have held that the Second Amendment does not protect an individual right to possess or use weapons. These are scores of judges spread throughout decades, throughout the US, and across ideological spectrums.

All the isolated quotes you post, all the grammatical arguments, etc. All have been presented, repeatedly, by the well-funded gun-lobby and NRA to US courts. They fail again and again to persuade those charged with deciding the issue. Why should I find your cut-and-pastes from NRA websites any more persuasive?

It is true that courts can be wrong. "Seperate but equal" was very wrong. But good luck naming a legal holding that has last as long and as consistently as the interpretation of the Second Amendment that any contends is erroneous.

The overwhelming caselaw is repeated, objective evidence of the meaning of the Second Amendment. Scoff. Ignore it. It won't go away. You must be right that you know so much more than all those scores of appellate judges and Supreme Court justices.

Nice to add racism to the debate.

"Harlem's new residents are strikingly diverse: straight and gay, black and white, Asian and European. "

http://www.newyorkmetro.com/realestate/articles/neighborhoods/harlem.htm

YOU tossed in racism.

Crime stats for the area:

"Crime Stats: According to the 23rd Precinct, and the 25th, which covers Randalls and Wards islands in addition to East Harlem, as of June 2 there were six homicides (the same as last year); 14 rapes (compared to 21 last year), 250 robberies (five more than last year); 203 felony assaults (down from 251 last year); and 105 burglaries (compared to 141 last year)."

http://www.virtualboricua.org/Docs/vv06.htm

That's still a lot of assaults, burglaries, and robberies.

So, no, I wouldn't want any part of that coming to my neighborhood.

The OED gives dated examples of the use of the terms and tracks the changes in the definitions over time. :headbang: The use of the phrase "to bear arms" at the time the Second Amendment was drafted was to serve in a military.

So you have completely missed the point and utterly failed to refute this one of my many arguments.

Okay, then why is it when I go to askoxford.com, and type in "to bear arms", NOTHING is returned.

Where is it in the analog version?

"Harlem's new residents are strikingly diverse: straight and gay, black and white, Asian and European. "

...

YOU tossed in racism.

...

That's still a lot of assaults, burglaries, and robberies.

So, no, I wouldn't want any part of that coming to my neighborhood.

My apology. I over-reacted. I definitely would not want that type of crime in my neighborhood either. I'm sure the residents of Harlem feel the same.

Okay, then why is it when I go to askoxford.com, and type in "to bear arms", NOTHING is returned.

Where is it in the analog version?

I use OED online. I have a subscription. I can also access through my public library ID.

The query is "to bear arms"

http://dictionary.oed.com/cgi/entry/50012051/50012051se14?query_type=word&queryword=to+bear+arms&first=1&max_to_show=10&sort_type=alpha&result_place=1&search_id=r4Am-FyjKKQ-3537&hilite=50012051se14

My original posting gave the citation for the hardcopy: 1 OED 634
(J.A. Simpson & E.S.C. Weiner eds., 2nd ed. 1989).

I use OED online. I have a subscription. I can also access through my public library ID.

The query is "to bear arms"

http://dictionary.oed.com/cgi/entry/50012051/50012051se14?query_type=word&queryword=to+bear+arms&first=1&max_to_show=10&sort_type=alpha&result_place=1&search_id=r4Am-FyjKKQ-3537&hilite=50012051se14

My original posting gave the citation for the hardcopy: 1 OED 634
(J.A. Simpson & E.S.C. Weiner eds., 2nd ed. 1989).

Care to post the resuts?

Care to post the resuts?

If you wish to question my integrity, look it up yourself.

The terms of my subscriber agreement do not permit copying results for display on the internet. I will not violate those terms or the intellectual property of the OED simply because you will not believe my citation. I gave ample information in my original cite.

I note that no one has disputed the citation or offered any evidence of an alternative definition of the phrase. Taking "arms" in isolation is distinct.

Charles de Montesquieu has posted links to at least two separate sources confirming the definition I offered. One of which is a study of 300 historical uses of the term between 1618 and 1791. The excerpts at this link also include the same OED citation that I posted.

http://www.potowmack.org/emerappa.html

If you wish to question my integrity, look it up yourself.

The terms of my subscriber agreement do not permit copying results for display on the internet. I will not violate those terms or the intellectual property of the OED simply because you will not believe my citation. I gave ample information in my original cite.

I note that no one has disputed the citation or offered any evidence of an alternative definition of the phrase. Taking "arms" in isolation is distinct.

Charles de Montesquieu has posted links to at least two separate sources confirming the definition I offered. One of which is a study of 300 historical uses of the term between 1618 and 1791. The excerpts at this link also include the same OED citation that I posted.

http://www.potowmack.org/emerappa.html

I'm not going to pay for your substantiations--up to you to fund your side.

And sending me to a pay site is not substantiating anything.

So, you can't quote anything from that reference? Some reference. "We'll tell you everything you want to know, but you can't show it to anyone, unless they have a contract with us first."

Most references say that you can't post their info for money--not just posting. Ah well.

Good luck posting any sort of dissertation using it.

It wasn't the NRA--it was rather intelligent gun toting people--the actual framers of the constitution, that made that claim.

Check out the Federalist Papers (you know, those silly docs that actually explain the reasons for everything in the constitution?) before quoting anti-gun rhetoric.

Curious. The Federalist Papers are a collection of arguments made in support of the original constitution, prior to any of the amendments. Can you point to any Federalist Paper (citation, please, not an unattributed quote) that is directed at any amendment to the Constitution (let alone the Second Amendment)?

Curious. The Federalist Papers are a collection of arguments made in support of the original constitution, prior to any of the amendments. Can you point to any Federalist Paper (citation, please, not an unattributed quote) that is directed at any amendment to the Constitution (let alone the Second Amendment)?

Hmmm....so I'm supposed to point to something in the Federalist Papers that says, "Hey, we're going to put together this amendment, and this is the rationale behind it."?

Tough to do, when the Federalist Papers were drafted well before the Constitution was.

It's the reasoning that went into the amendment, not a direct basis of the verbiage used in the amendment.

Already cited were a few historians that picked the statement apart, and by the historians point of view, the militia portion is only a preamble explaining one reason why the right of the people to bear arms shall not be infringed. It's so anyone can pick up their own weapon and use it against a corrupt government.

I'm not going to pay for your substantiations--up to you to fund your side.

And sending me to a pay site is not substantiating anything.

So, you can't quote anything from that reference? Some reference. "We'll tell you everything you want to know, but you can't show it to anyone, unless they have a contract with us first."

Most references say that you can't post their info for money--not just posting. Ah well.

Good luck posting any sort of dissertation using it.

Unlike much posted on the pro-gun side in this argument, I have provided citations in support of my assertions. Citations allow you to look something up, to verify it.

What you wish is not to view "substantiation," but to see if my citation is accurate. Fine. The OED is a commonly used resource. It is not my obligation to provide you free access any more than it is my obligation to bring a copy to your house. There are many free ways to view the OED. Try a library. If you wish to simply ignore the most authoritative English dictionary simply because I will not cut and paste its contents for you to browse for free, fine. My citation is accurate. It has been substantianted both by third sources. If you find looking for the content to verify my citation inconvenient, fine.

I have tried to be carefully not to personally attack others or question their integrity. Where I have erred, I have apologized. I have routinely not been offered the same courtesy.

Hmmm....so I'm supposed to point to something in the Federalist Papers that says, "Hey, we're going to put together this amendment, and this is the rationale behind it."?

Tough to do, when the Federalist Papers were drafted well before the Constitution was.

My point exactly. Your prior posts gave the misleading impression that the Federalist Papers explained the Second Amendment.

Now, if you want the true meaning of what the founding fathers were shooting for (couldn't resist the pun), check out the Federalist Papers. It should say something in there.

Check out the Federalist Papers (you know, those silly docs that actually explain the reasons for everything in the constitution?) before quoting anti-gun rhetoric.

It's the reasoning that went into the amendment, not a direct basis of the verbiage used in the amendment.

So you concede it is not the basis of the language of the amendment. Good.

On what basis do you assert that The Federalist Papers demonstrate the reasoning that went into the Second Amendment. The Federalist Papers were arguments for the Constitution without any amendment. The Bill of Rights was later adopted as a compromise with Anti-Federalists who opposed the Constitution.

I will not deny The Federalist Papers may be relevant evidence, but that is the most they are.

I'd still like to see you identify specific Papers that are relevant to the Second Amendment.

Already cited were a few historians that picked the statement apart, and by the historians point of view, the militia portion is only a preamble explaining one reason why the right of the people to bear arms shall not be infringed. It's so anyone can pick up their own weapon and use it against a corrupt government.

Now you've change the basis of your argument. In addition to having read this entire thread, participated in it, and now re-read it, I see no citations to "historians that picked the statement apart, and by the historians point of view, the militia portion is only a preamble ..."

Regardless, which historians? What are their credentials? Why did they so conclude?

I cannot believe you have nitpicked me for failing to provide you a free link to a verifiable dictionary definition (rather than deal with the merits of the argument), but you expect to rely on such vaguries.

The "merely a preamble" argument is wholly without merit, as I have previously explained. Every word of a constitutional provision must be given meaning.

I'll also note Former Chief Justice Warren Burger, a life-long hunter and conservative Republican, terms the NRA's Second Amendment rhetoric a "fraud" paid for by the firearms industry:
[O]ne of the frauds -- and I use that term advisedly -- on the American people, has been the campaign to mislead the public about the Second Amendment. The Second Amendment doesn't guarantee the right to have firearms at all . . . . It's shocking to me that the American people have let themselves be conned . . . by the campaigns that are sponsored and financed by the arms industry and the ammunition industry.
Warren Burger, Press Conference Concerning Introduction of the Public Health and Safety Act of 1992, Federal News Service, June 26, 1992, available in LEXIS, News Library, Wires File; see also Tony Mauro, Bill of Rights Has Not Been Scuttled, USA TODAY , Dec. 16, 1991, at 13A. ("[T]he National Rifle Association has done one of the most amazing jobs of misrepresenting and misleading the public.").

Arch-conservative and leading proponent of the use of original intent in interpreting the constitution, Judge Robert Bork has stated that the Second Amendment operates "to guarantee the right of states to form militia, not for individuals to bear arms." He believes California's assault-weapons ban is, and indeed "probably" all state gun control measures are, constitutional. Claudia Luther, Bork Says State Gun Laws Constitutional, L.A. TIMES, Mar. 15, 1989, at B5; see also Miriam Bensimhorn, The Advocates: Point and Counterpoint, Laurence Tribe and Robert Bork Debate the Framers' Spacious Terms, LIFE, Fall 1991 (Special Issue), at 96, 98 ("[T]he National Rifle Association is always arguing that the Second Amendment determines the right to bear arms. But I think it really is people's right to bear arms in a militia. The NRA thinks that it protects their right to have Teflon-coated bullets. But that's not the original understanding.").

You know full well that it is not "the occasional judge" that has interpreted the Second Amendment correctly.

You have named 2 cases in the history of the United States where an "occasional judge" (one a mere magistrate) found your interpretration persuasive -- in both the issue was not central to the case.

I will list more if you insist, but I have already cited 3 SCOTUS cases distributed over several decades in which majorities of the Supreme Court have rejected your view.

I will list more if you insist, but I have already cited several of the literally dozens and dozens of cases over 150 years of US history in which majorities of US Courts of Appeal have held that the Second Amendment does not protect an individual right to possess or use weapons. These are scores of judges spread throughout decades, throughout the US, and across ideological spectrums.

All the isolated quotes you post, all the grammatical arguments, etc. All have been presented, repeatedly, by the well-funded gun-lobby and NRA to US courts. They fail again and again to persuade those charged with deciding the issue. Why should I find your cut-and-pastes from NRA websites any more persuasive?

It is true that courts can be wrong. "Seperate but equal" was very wrong. But good luck naming a legal holding that has last as long and as consistently as the interpretation of the Second Amendment that any contends is erroneous.

The overwhelming caselaw is repeated, objective evidence of the meaning of the Second Amendment. Scoff. Ignore it. It won't go away. You must be right that you know so much more than all those scores of appellate judges and Supreme Court justices.


Yes it is the "occasional judge" that misinterprets the 2nd amendment in order to remove rights from the individual. I've offered alternate opinions to your interpretations of the SCOTUS cases and offered other cases both SCOTUS and Appeals that have differed from your interpretations. You just dismiss those as "silly" or "aberattions" and dismiss the Federalist Papers as minor items while quoting a dictionary (albiet THE dictionary) as a source.

Here's another legal source showing the opposite of what you argue:

http://www.davekopel.com/2A/LawRev/35FinalPartOne.htm

"Among legal scholars, it is undisputed that the Supreme Court has said almost nothing about the Second Amendment. [FN1] This article suggests that the Court has not been so silent as the conventional wisdom suggests. While the meaning of the Supreme Court's leading Second Amendment case, the 1939 United States v. Miller [FN2] decision remains hotly disputed, the dispute about whether the Second Amendment guarantees an individual right can be pretty well settled by looking at the thirty-five other Supreme Court cases which quote, cite, or discuss the Second Amendment. These cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment "right of the people to keep and bear arms" as an individual right, rather than as a right of state governments."

We can keep going at this forever but I can also cite just as many sources that show that the courts have not "universally" decided that the 2nd not an individual right.

The two quotes you use above have one "conservative"judge saying that "The Second Amendment doesn't guarantee the right to have firearms at all" So what does this judge think it means then?
and an "ultra-conservative" relagating it back to "state militia's" which goes back to my post showing that most states follow the individual rights concept.

Where did you get these quotes from (besides their sources) BTW?

Yes it is the "occasional judge" that misinterprets the 2nd amendment in order to remove rights from the individual. I've offered alternate opinions to your interpretations of the SCOTUS cases and offered other cases both SCOTUS and Appeals that have differed from your interpretations. You just dismiss those as "silly" or "aberattions" and dismiss the Federalist Papers as minor items while quoting a dictionary (albiet THE dictionary) as a source.

Here's another legal source showing the opposite of what you argue:

http://www.davekopel.com/2A/LawRev/35FinalPartOne.htm

"Among legal scholars, it is undisputed that the Supreme Court has said almost nothing about the Second Amendment. [FN1] This article suggests that the Court has not been so silent as the conventional wisdom suggests. While the meaning of the Supreme Court's leading Second Amendment case, the 1939 United States v. Miller [FN2] decision remains hotly disputed, the dispute about whether the Second Amendment guarantees an individual right can be pretty well settled by looking at the thirty-five other Supreme Court cases which quote, cite, or discuss the Second Amendment. These cases suggest that the Justices of the Supreme Court do now and usually have regarded the Second Amendment "right of the people to keep and bear arms" as an individual right, rather than as a right of state governments."

We can keep going at this forever but I can also cite just as many sources that show that the courts have not "universally" decided that the 2nd not an individual right.

There are many law review articles and pundits for both sides. That is not the same as a court case.

You have only cited 2 cases supporting your view of the 2nd Amendment. As I have said (and you do not deny), they both concluded the gun control provision in question was constitutional. One was simply a magistrate's opinion. The discussion of whether there was an individual right was not determinative.

You have not offered a SCOTUS case that relates to the 2nd Amendment. U.S. v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) is about whether the Fourth Amendment applies to illegal aliens. Moreover, the Court followed the sentences you rely on by stating that "this textual exegesis is by no means conclusive." Id.

There are many things about this issue that can be debated. The definition of "to bear arms" is just one argument I made. Most I have made have gone unrebutted.

One point is the state of judicial precedent regarding the interpretation of the Second Amendment. On this you are simply wrong. I will post the cases to prove it. (I apologize this will be lengthy, but it appears necessary).

I'll start with US Supreme Court cases:

Lewis v. United States, 445 U.S. 55 (1980):

Defendant Lewis was convicted in state court of a felony violation which was never overturned and for which he did not receive a pardon. Subsequently, he was charged under a section of the federal Omnibus Control and Safe Streets Act (then codified at 26 U.S.C. § 1202(a)(1)), which makes it a crime for a convicted felon to knowingly receive, possess or transport a firearm. Lewis challenged the federal conviction, alleging his prior state conviction was constitutionally invalid. The District Court convicted Lewis and the Fourth Circuit Court of Appeals affirmed. The Supreme Court granted certiorari, and held Lewis could not raise the constitutionality of the prior conviction as a defense to the new crime and the absence of such a defense from the federal law did not render that law violative of any constitutional protections. Id. at 65.

The Court ruled that restrictions contained in the Gun Control Act of 1968 prohibiting felons from owning firearms were constitutional. Using a "rational basis" standard, the Court held that the restrictions "do not trench upon any constitutionally protected liberties." 445 U.S. at 65-66. Further, the Court reaffirmed the position first established in United States v. Miller, 307 U.S. 174, 178 (1939) that "the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’". Id.

Burton v. Sills, 394 U.S. 812 (1968):

In Burton, the Court dismissed a gun owner's appeal (supported by the gun-lobby), for want of a substantial federal question, of a New Jersey Supreme Court's 1968 holding that the state's gun control laws did not violate the Second Amendment, because the Second Amendment permits regulation of firearms "so long as the regulation does not impair the active, organized militias of the states." Adopting the narrow view of the Second Amendment, the New Jersey court found that the state's licensing requirements for manufacturers, wholesalers, and retail dealers, as well as permit and identification card requirements for purchasers, did "not impair the maintenance of the State's active organized militia" and thus were "not at all in violation of either the terms or purposes of the second amendment."

United States v. Miller, 307 U.S. 174 (1939):

Defendants were charged with the crime of transporting and possessing an unregistered sawed off shotgun, in violation of the National Firearms Act, 26 U.S.C.A. § 1132, et seq. They challenged the indictment and the trial court sustained the demurrer, dismissing the charges. Id. at 177. The government appealed directly to the Supreme Court.

The Supreme Court reversed the trial court, holding the Second Amendment provided defendants no protection against the indictment. After reviewing the language and history of the Second Amendment, the Court concluded that the “obvious purpose” of the Second Amendment was to “assure the continuation and render possible the effectiveness” of the state militia. Id. at 178. Because defendants had offered no evidence that their possession or use of the shotgun had “some reasonable relation to the preservation or efficiency of a well-regulated militia,” their conduct was not protected by the Second Amendment. Id.

BTW, you can "interpret" this case however you like but it flat out says the purpose of the Second Amendment was for the state militia and it should be interpreted accordingly.

Miller v. Texas, 153 U.S. 535 (1894):

Dismissed defendant’s post-conviction challenge to a Texas law prohibiting the carrying of a dangerous weapon on a public street. Defendant sought review by the Supreme Court on several grounds, including that the Texas law denied him the “privileges and immunities of citizenship” because it violated his alleged Second Amendment “right to bear arms.” Id at 538. The Court held the Second Amendment had no application to the challenged state proceedings because the amendment constrains only the federal government and has no “reference whatever to proceedings in state courts.” Id.

Presser v. Illinois, 116 U.S. 252 (1886):

Presser was indicted in Illinois state court for violating those sections of the state law making it a misdemeanor for any body of men to associate as a military company of organization, except as part of the organized state militia, unless they obtain a license from the Governor. Presser moved to quash the indictment, alleging that the laws at issue violated numerous constitutional provisions, including the Second Amendment. After the state courts denied his challenge, he sought review in the Supreme Court.

Relying on U.S. v. Cruikshank, 92 U.S. 542 (1875), the Court rejected Presser’s Second Amendment challenge on the grounds that the Second Amendment constrains only federal action and had no applicability to the state law at issue. The Court also rejected Presser’s claim that the state law denied him the “privilege and immunities” of citizenship because it prevented him from associating with others as an unorganized militia. Presser, 116 U.S. at 267. In addressing this issue, the Court specifically held that “military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers.” Id. at 267.

I'll start of the US Courts of Appeals in another post.

Here are US Courts of Appeals cases (and a couple of district court cases) contrary to the pro-gun view (part I):

United States v. Lippman, No. 03-3275, 2004 U.S. App. LEXIS 10432 (8th Cir. May 27, 2004) :

Defendant argued that his conviction for being a felon in possession of a firearm violated the Second Amendment. The court cited its earlier decisions holding that the Second Amendment protects the right to bear arms “when it is reasonably related to the maintenance of a well regulated militia.” Id. at *11 (citations omitted). The court found that the defendant had not shown that his firearm possession was reasonably related to a well regulated militia and rejected the Second Amendment claim. Id.

United States v. Parker, 362 F.3d 1279 (10th Cir. 2004):

Defendant, convicted of carrying a loaded firearm on a military base, appealed on the ground that the conviction violated the Second Amendment. Relying on United States v. Miller, 307 U.S. 174 (1939), the court rejected defendant’s claim, holding that in order to prove a Second Amendment violation, one must first show that the alleged possession of the firearm was related to participation in a well-regulated state militia. 362 F.3d at 1282.

United States v. Darrington, 351 F.3d 632 (5th Cir. 2003), cert. denied, No. 03-9975, 2004 WL 911843 (2004):

Defendant appealed his conviction for being a felon in possession of a firearm. The court rejected defendant’s claim that the law prohibiting possession of a firearm by a felon violated the Second Amendment, holding that felons can be prohibited from possessing firearms. The court stated further that the Second Amendment only infringes on the federal government. Id. at 634.

United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003):

Defendant appealed his conviction for possession of a machine gun and felony possession of a firearm on the grounds that he had a Second Amendment right to possess such weapons. Relying on Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), the court rejected defendant’s claim, ruling that the Second Amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession. Steward, 348 F.3d at 1142.

United States v. Bournes, 339 F.3d 396 (6th Cir. 2003), cert. denied, 124 S.Ct. 1041 (2004):

Held that: 1) despite defendant’s membership in a private militia, his prosecution for failure to register machine guns did not violate his constitutional rights and 2) federal statutes requiring registration of machine guns and prohibiting machine gun possession did not infringe on defendant’s Second Amendment rights.

With regard to membership in a private militia, the district court cited binding Sixth Circuit precedent and highlighted several problems with defendant’s attempt to distinguish contrary authority. First, the defendant did not meet the burden of showing that he possessed the machine guns “in preparation for a military career.” Id. at 744. Second, the “‘well regulated Militia’ of the sort contemplated by the Second Amendment” necessarily excludes private or unorganized militias. Id. (citations omitted). Finally, the fact that defendant’s age excluded him from eligibility for membership in Michigan’s organized militia only emphasized the meritlessness of his claims. Id.

United States v. Price, 328 F.3d 958 (7th Cir. 2003):

Defendant, convicted of using a firearm in a crime of violence and possession of a firearm by a felon, appealed on the basis that the felon in possession statute violated the Second Amendment. Citing Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), the court rejected defendant’s claim, holding that Second Amendment rights are granted to the people collectively, not to the individual. Price, 328 F.3d. at 961.

Nordyke v. King, 319 F.3d 1185 (9th Cir. 2003), rehearing en banc denied, 364 F.3d 1025 (9th Cir. 2004):

The court rejected a Second Amendment challenge to an Alameda County ordinance banning the possession of firearms and ammunition on county-owned property, holding that the claim was foreclosed by the Ninth Circuit’s holding in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996).

United States v. Wilson, 315 F.3d 972 (8th Cir. 2003), cert. denied, 123 S.Ct. 2661 (2003):

Defendant argued that 18 U.S.C. § 922(g)(1), which prohibits a felon from possessing a firearm, violates his individual right to bear arms under the Second Amendment. The court rejected this argument, noting the established Eighth Circuit precedent upholding the constitutionality of such federal regulation under the Second Amendment.

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002):

Plaintiffs were nine individuals who acquired firearms that became classified as assault weapons following the passage of amendments to California’s Roberti-Roos Assault Weapons Control Act (AWCA) in 1999. In February 2000, plaintiffs filed suit against the Attorney General of California, challenging the requirements in the amended law—that they register, relinquish or render inoperable their assault weapons—on the grounds that the statute violated their Second Amendment rights, among others. The district court dismissed all of the plaintiffs’ claims.

The appellate court upheld the district court decision and rejected plaintiffs’ claims, holding that plaintiffs lacked standing to challenge the AWCA because, inter alia, the Second Amendment does not confer an individual right to own or possess a firearm. Id at 1066. The court reached its opinion on the Amendment after conducting a detailed analysis of the historical debate and origins of the Amendment and reviewing the discourse on the Amendment throughout its existence. The court, guided by the results of this analysis, was “compelled to reaffirm the collective rights view” it adopted in the case Hickman v. Block, 81 F.3d 98 (9th Cir. 1996). Id. at 1066.

In rejecting plaintiffs’ challenges, the court emphasized that the Amendment "protects the people’s right to maintain an effective state militia, and does not establish an individual right to own or possess firearms for personal or other use.” Silveira, 312 F.3d at 1066. The court cited United States v. Miller, 307 U.S. 174 (1939), when concluding that this decision “is reinforced in part by Miller’s implicit rejection of the traditional individual rights position.” Id.

United States v. Bayles, 310 F.3d 1302 (10th Cir. 2002);

Defendant was indicted for violating 18 U.S.C. § 922(g)(8), which prohibits the possession of a firearm by an individual subject to a domestic violence restraining order issued by a state court. The Court of Appeals rejected the defendant’s argument that the statute violates the Second Amendment holding that the defendant failed to meet any of the elements required to establish such a violation. The court’s test required the defendant to establish: 1) his participation in a state militia; 2) that the militia, and his participation therein, was “well regulated by the state;” 3) that his firearms were used by said militia; and 4) that his possession of the firearms was reasonably connected to this militia service. Bayles, 310 F.3d at 1306-07 (citation omitted).

United States v. Graham, 305 F.3d 1094 (10th Cir. 2002), cert. denied, 537 U.S. 1142 (2003):

Defendant argued that by banning the sale of explosive devices, 18 U.S.C. § 842(a)(1) unconstitutionally infringed his Second Amendment rights. The court reiterated its position that federal weapons restrictions do not violate the Second Amendment unless they impair the state’s ability to maintain a well regulated militia and that the right to possess firearms is collective rather than individual. The court applied the four-factor test used in United States v. Bayles, 310 F.3d 1302 (10th Cir. 2002) and found that defendant could not satisfy any of the four factors.

There are many, many more.

Guess you guys haven't heard about the memorandum opinion writtion for the US Attorney General by the US Departement of Justice's Office of Legal Counsel. Made public on the departements website in Dec. 2004, it stands as the most definitive analysis on teh 2nd amendment published by the federal executive branch in American history.

It states without reservations, "the 2nd Amendment secures a personal right of individuals, not a collective right that may only be invoked by a State or a quasi-collective right restricted to those person who serve in organized militia units."

It goes on to explain why and how they came up with this by stateing, "The word 'right', standing by itself in teh Constitution, is clear. Although in some contexts entities other than individuals are said to have 'rights', the Constitution itself does not use the word 'right' in this manner. Setting aside the 2nd Amendment, not once does the Constitution confer a 'right' on any governmental entity, state or federal. Nor does it confer any 'right' restricted to persons in governmental service, such as members of an organized military unit. In addition to its various references to a 'right of the people' discussed below, the Constitution in the 6th Amendement secures the 'right(s)' to an accused person, and in the 7th secures a person's 'right' to a jury trial in civil cases. By contrast, governments, whether state or federal, have in teh Constitution only 'powers' or 'authority'. It would be a marked anomaly if 'right' in the 2nd Amendment departed from such uniform usage throughout the Constitution."

It continues, "In any event any possible doubt vanishes when 'right' is conjoined with 'the people', as it is in the 2nd Amendment. Such a right belongs to individuals: The 'people' are not a 'state', nor are they identical with the 'militia'. Indeed, the 2nd Amendment distinctly uses all three of these terms, yet it secures a 'right' only to the 'people'. The phrase 'the right of the people' appears two other times in the Bill of Rights, and both times refers to a personal right, which belongs to individuals. The 1st Amendment secures 'the right of the people peaceably to assemble, and to petition the Government for a redress of grievancess', and the 4th safeguards 'the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures'. In addition the 9th Amendment refers to 'rights...retained by the people'. We see no reason to read the phrase in the 2nd Amendment to mean something other than what it plainly means in these neighboring and contemporaneous amendments."

For anyone interested in reading the entire transcript it should be on the justice department website. Also for Reference, here is the 2nd Amendment:

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

US Court of Appeals (and a couple of US District court) cases rejecting the individual right to bear arms interpretation of the Second Amendment (part II):

Olympic Arms v. Buckles, 301 F.3d 384 (6th Cir. 2003):

Denied plaintiffs’ motion for summary judgment in an action alleging that Title XI of the Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. §§ 921-930, the Semiautomatic Assault Weapons Ban, violated the Second Amendment. Plaintiffs, federally licensed firearms manufacturers and dealers, argued that the Second Amendment guarantees rights which should be considered fundamental rights under an equal protection analysis, requiring the “strict scrutiny” standard of review.

In denying plaintiffs’ motion for summary judgment, the court stated that the Second Amendment does not guarantee any right to be a firearms manufacturer or dealer, and that plaintiffs did not raise any arguments supporting the theory that their fundamental rights, or the fundamental rights of their purchasers, have been violated. The court held that plaintiffs failed to demonstrate that they are a suspect class, “and one is hard-pressed to imagine how they could be.” Olympic Arms, 91 F. Supp. 2d at 1071.

The court determined that the statute would be reviewed under the “rational relationship” standard, which provides that statutes are presumed valid and will be upheld if the law’s classification is rationally related to a legitimate governmental interest. Applying this standard to the Semiautomatic Assault Weapons Ban, the court found that plaintiffs’ arguments did not meet the heavy burden under the standard. The court upheld the weapons ban, finding that it bears a rational relationship to the appropriate governmental ends of protecting public safety and deterring criminal activity.

United States v. Hinostroza, 297 F.3d 924 (9th Cir. 2002):

Defendant argued that 18 U.S.C. § 922(g)(8) (prohibiting persons subject to domestic violence restraining orders from possessing a firearm) violated the Second Amendment. Defendant urged the court to follow United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) in which the Fifth Circuit discussed in dicta that the Second Amendment protects an individual right to bear arms. The court rejected this argument based on the holding in Hickman v. Block, 81 F.3d 98 (9th Cir. 1996) that the Second Amendment only confers a collective right upon the states.

United States v. Spruill, 292 F.3d 207 (5th Cir. 2002):

Defendant was convicted of possessing a gun in violation of the provisions of a protective order. Defendant appealed the conviction on the grounds, among others, that the protective order statute, 18 U.S.C. § 922(g)(8), violated the Second Amendment. The court upheld the constitutionality of the statute and rejected defendant’s Second Amendment argument. 292 F.3d. at 214. The district court in Spruill chose not to follow Emerson and noted a number of other federal trial court opinions also rejecting the reasoning of Emerson. United States v. Spruill, 61 F. Supp. 2d 587, 589.

United States v. Henry, 288 F.3d 657 (5th Cir. 2002) cert. denied, 537 U.S. 902 (2000):

Defendant appealed his conviction for possession of a firearm while subject to a restraining order in violation of 18 U.S.C. § 922(g)(8). Defendant argued that section 922(g)(8) violates his rights under the Second Amendment. The court rejected this argument, noting that a similar claim had failed in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), where the court ruled that the nexus between the gun possession by the enjoined party and the threat of lawless violence was sufficient to support an order prohibiting firearm possession.

United States v. Haney, 264 F.3d 1161 (10th Cir. 2001), cert. denied, 536 U.S. 907 (2002):

Affirmed defendant’s conviction for possessing two machine guns in violation of federal law 18 U.S.C. § 922(o). Defendant argued that by banning possession of machine guns, section 922(o) infringed his rights under the Second Amendment. The court rejected this argument, holding that a federal criminal gun control law does not violate the Second Amendment unless it impairs a state’s ability to maintain a well-regulated militia.
The court explained that the term “militia,” as used in the Second Amendment, refers to a governmental organization or unit, and “does not include the private anti-government groups that sometimes refer to themselves as ‘militias’.” Id. at 1165-66.

Gardner v. Vespia, 252 F.3d 500 (1st Cir. 2001):

Plaintiff’s application to purchase a handgun was denied after defendant police chief concluded that plaintiff was ineligible to receive or possess a firearm under 18 U.S.C. §§ 922(g)(9). Plaintiff filed a civil rights action, alleging that the defendant’s actions violated the Second Amendment. The court rejected this argument, relying on United States v. Miller, 307 U.S. 174 (1939). Thus, the court held that plaintiff’s constitutional rights had not been violated, even if the defendant had erroneously determined that plaintiff was ineligible to purchase a firearm.

United States v. Baer, 235 F.3d 561 (10th Cir. 2000):

Defendant was convicted of possessing firearms following a felony conviction in violation of 18 U.S.C. § 922(g)(1), and for possession of firearms with obliterated serial numbers in violation of 18 U.S.C. § 922(k). Defendant challenged his conviction on the ground that the federal statutes violate the Second Amendment.

In denying defendant’s “time-worn argument,” the court explained that the Second Amendment does not guarantee any right to keep and bear a firearm that does not have some reasonable relationship to the preservation or efficiency of a well-regulated militia. Id. at 564. The court stated further that federal statutes regulating the receipt and possession of firearms by felons do not trench upon constitutionally protected liberties, including those guaranteed by the Second Amendment. The court added that “[T]he circuits have consistently upheld the constitutionality of federal weapons regulations like section 922(g) absent evidence that they in any way affect the maintenance of a well-regulated militia.” Id.

United States v. Napier, 233 F.3d 394 (6th Cir. 2000):

Affirmed denial of motion to dismiss a federal indictment under 18 U.S.C. § 922(g)(8), which proscribes the possession of firearms by persons subject to a domestic violence restraining order. The Sixth Circuit rejected defendant’s claim that the statute violated the Second Amendment citing its previous decision in United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976) that the Second Amendment guarantees a collective rather than an individual right and that even the collective right is limited to keeping and bearing arms which have some reasonable relationship to the preservation of a well regulated militia. Napier, 233 F.3d at 402.

Emphasizing that all six circuits that “have had occasion to address the issue ha[ve] upheld § 922 generally against challenges under the Second Amendment,” the Sixth Circuit noted that the decision in United States v. Emerson is unique:

Emerson stands alone in holding that the Second Amendment guarantees an individual right to bear arms. ... We find no reason to retreat from our determination in Warin that the Second Amendment does not guarantee an individual right to bear arms, and we accordingly hold that § 922(g)(8) does not violate the Second Amendment.
Napier, 233 F.3d. at 404.

United States v. Hancock, 231 F.3d 557 (9th Cir. 2000), cert. denied, 532 U.S. 989 (2001):

Affirmed defendant’s convictions under 18 U.S.C. § 922(g)(9), a statute prohibiting possession of a firearm by any person convicted of a misdemeanor domestic violence offense. The court rejected defendant’s equal protection claim, holding that because the Second Amendment protects a right held by the states and not an individual’s rights, no “fundamental right” of defendant’s was impacted and thus the law was only required to be rationally related to a legitimate state purpose, a test it met. Id. at 566 (citing Hickman v. Block, 81 F.3d 98, 101 (9th Cir. 1996)).

United States v. Waller, 218 F.3d 856 (8th Cir. 2000):

Defendant was convicted of seventy-four counts of being a felon in possession of firearms, ammunition and explosives and of making false statements to a firearms dealer, in violation of 18 U.S.C. §§ 842(i)(1), 922(a)(6), and 922(g)(1). On appeal, defendant argued the conviction should be overturned because the statutes under which he was convicted were violative of the Second Amendment. The appellate court rejected his challenge, stating “[u]nfortunately for Waller it is now well-settled that Congress did not violate the Second Amendment in enacting the statutes in question. See Lewis v. United States, 445 U.S. 55, 65-66 & n.8 (1980).” Id. at 857 (citations omitted).

United States v. Baker, 197 F.3d 211 (6th Cir. 1999), cert. denied, 528 U.S. 1197 (2000):

Affirmed defendant’s conviction and sentence for unlawful possession of a firearm (the firearm at issue was an SKS assault rifle) while subject to a domestic violence restraining order under 18 U.S.C. § 922(g)(8), rejecting defendant’s constitutional challenges to that statute. The court held there is no fundamental right to possess an assault rifle and because the statute is rationally related to the government’s interest in decreasing violence against women, it survives rational basis review. Id. at 216.

Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000):

Rejected defendant’s Second Amendment challenge to federal statute prohibiting persons convicted of domestic violence offenses from possessing firearms, because of which defendant lost his job as a police officer. The Seventh Circuit noted that “[t]he link that the [Second] amendment draws between the ability ‘to keep and bear Arms’ and ‘[a] well regulated Militia’ suggests that the right protected is limited, one that inures not to the individual but to the people collectively, its reach extending so far as is necessary to protect their common interest in protection by a militia.” Id. at 710 (citing U.S. Const. amend. II). The court did note that defendant had standing to raise the Second Amendment challenge; he simply did not have any persuasive arguments on the merits.

Edwards v. City of Goldsboro, 178 F. 3d 231 (4th Cir. 1999):

Finding the provision inapplicable to the states, the court rejected a law enforcement officer’s Second Amendment claim in the context of a civil suit under 42 U.S.C. § 1983. The plaintiff challenged his suspension for teaching a concealed handgun safety course without permission which constituted “secondary employment” requiring permission. Id. at 239.

Fraternal Order of Police v. United States, 173 F.3d 898 (D.C. Cir. 1999), cert. denied, 528 U.S. 928 (1999):

Affirmed the trial court’s order upholding two provisions of the Gun Control Act. Rejected constitutional challenges by the Fraternal Order of Police to two provisions of the 1996 amendments to the Gun Control Act of 1968 based on the Second, Fifth and Tenth Amendments and the Commerce Clause. The first amended provision, 18 U.S.C. § 922(g)(9), makes it unlawful for any person convicted of a domestic violence misdemeanor to posses a firearm in or affecting interstate commerce. The second provision, 18 U.S.C. § 925(a)(1), excludes domestic violence misdemeanants from the class of persons exempt from the act if the firearms in their possession are issued by the government. Initially, a panel of the D.C. Circuit held that the amended provisions did not withstand an equal protection challenge under rational basis scrutiny because of their harsher treatment of domestic violence misdemeanants as compared to domestic violence felons. Id. at 900 (citing Fraternal Order of Police v. United States, 152 F.3d 998 (D.C. Cir. 1998)). On a petition for rehearing by the United States, however, the D.C. Circuit held that the amended provisions do satisfy rational basis review, and that they do not violate substantive due process by burdening any fundamental right.

The court held that there is no fundamental interest in possessing a firearm in serving the community, and that the liberty interest of pursuing a profession merits no more than procedural due process protection. Id. at 905. The D.C. Circuit also found unpersuasive the argument that in most states police officers can be called into service as militia members, and therefore, a provision preventing their possession of a firearm interferes with the efficiency of a well-regulated militia as protected by the Second Amendment. The court noted that not only are police officers equally susceptible to militia service as other ordinary citizens, but also that the federal statutes at issue did not hinder militia service by all police officers, only by domestic violence misdemeanants whose convictions have not been expunged. Id. at 906.

United States v. Smith, 171 F.3d 617 (8th Cir. 1999):

Trial court denied defendant’s motion to dismiss his indictment for violation of federal firearms laws based on equal protection grounds. The appellate court affirmed and held that the rational basis standard, and not strict scrutiny, applied because there is no fundamental right to bear arms under the Second Amendment unless possession of a weapon has a reasonable relationship to the militia.

United States v. Mack, 164 F.3d 467 (9th Cir. 1999):

Affirmed defendant’s convictions and rejected his Second Amendment challenge to constitutionality of convictions for unlawful possession of handguns with obliterated serial numbers, and sawed-off shotguns and rifles, holding that private citizens do not have standing to bring such a challenge.

Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522 (6th Cir. 1998):

In an action challenging the validity of a city ordinance regulating sale, display, loan, acquisition, and possession of assault weapons, the Sixth Circuit “note[d] that the Federal Constitution does not provide a right to possess an assault weapon.” Id. at 538. Moreover, the Second Amendment is inapplicable to a city ordinance because the Second Amendment operates only as a restraint upon the federal government. Id. at 539 n.18.

United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), cert. denied, 118 S.Ct. 446 (1997):

Rejected defendant’s Second Amendment and Commerce Clause challenge to his conviction for unlawful transfer or possession of machine guns in violation of 18 U.S.C. § 922(o). Defendant, a federally licensed firearms dealer who obtained the machine guns at issue at a gun show, argued that because of the obvious military utility of a machine gun, the federal law regulating its possession is unconstitutional under the Supreme Court’s decision in United States v. Miller, 307 U.S. 174 (1939). The Third Circuit first noted that while the Supreme Court in Miller clearly suggested that the firearm at issue lacked the necessary military character, the Court did not state that “such character alone would be sufficient to secure Second Amendment protection.” Id. at 286. Instead, Miller “assigned no special importance to the character of the weapon itself, but instead demanded a reasonable relationship between its ‘possession or use’ and militia-related activity.” Id. (citations omitted).

Noting that defendant’s possession and use of the machine guns was related to his business activity as a firearms dealer and not to any militia-related activity, the court affirmed the principle established in Miller that, regardless of the military character of a firearm, the Second Amendment is inapplicable when there is no connection between defendant’s possession of a firearm on the one hand and any protected militia-related activity on the other. Finally, the Third Circuit referred defendant to its decisions “on several occasions emphasiz that the Second Amendment furnishes no absolute right to firearms.” Id. at 286 (citations omitted).

Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), [I]cert. denied sub nom, Hickman v. County of Los Angeles, 519 U.S. 912 (1996):

Hickman filed a civil rights action under 42 U.S.C. § 1983 after his application for a concealed carry weapon permit was denied by Los Angeles County Sheriff and City of Los Angeles Chief of Police. Held, based on the “seminal” Supreme Court decision in United States v. Miller, 307 U.S. 174 (1939), that an individual has no standing to raise a Second Amendment claim because “the Second Amendment guarantees the right of the states to maintain armed militia, [and] the states alone stand in the position to show legal injury when this right is infringed.” Id. at 102. Based on a “plain reading” of the Amendment’s text, the Ninth Circuit also stated that “it is only in the furtherance of state security that ‘the right of the people to keep and bear arms’ is finally proclaimed.” Id. (citation omitted). Reiterating that even technical membership or eligibility for enrollment in state militia is insufficient, the Ninth Circuit also emphasized that even if there were individual standing to bring a Second Amendment claim, it would fail because the Second Amendment is not incorporated into the Bill of Rights against action by state and local governments. Id. at 103 n.10.

United States v. Farrell, 69 F.3d 891 (8th Cir. 1995), cert. denied, 516 U.S. 1181 (1996):

Affirmed defendant’s convictions for unlawful possession and transfer of machine guns under 18 U.S.C. §§ 922(a) and 924(a)(2), holding that a “knowing” violation of the statutes required proof only of knowing and intentional conduct, not knowledge of the specific statutory offense, and also noting defendant’s Second Amendment argument had no merit because defendant “failed to make a fact-specific showing that possession of the regulated weapons bears a ‘reasonable relationship to the preservation or efficiency of a well regulated militia.’” Id. at 894 (citation omitted).

Rice v. Department of Alcohol, Tobacco & Firearms, 68 F.3d 702 (3d Cir. 1995):

Summarily affirmed the trial court’s grant of summary judgment in favor of the Bureau of Alcohol, Tobacco, and Firearms with respect to all constitutional claims raised by plaintiff, a convicted felon seeking reinstatement of firearm privileges, including his Second Amendment claim.

United States v. Friel, 1 F.3d 1231 (1st Cir. 1993):

Affirmed defendant’s conviction and rejected defendant’s challenge under the Second Amendment to his conviction for possession of firearms by a person convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Held that the prohibition in section 922(g)(1) does not violate the constitutional right to bear arms because the Supreme Court “plainly has held that the Second Amendment . . . applies only to firearms having a ‘reasonable relationship to the preservation or efficiency of a well regulated militia’ . . . .” Id. at 1232-33 (citations omitted).

United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993):

Defendant was convicted of several federal firearms violations including 18 U.S.C. 922(o) (possession of a machine gun). On appeal, defendant challenged the statutes as violative of the Second Amendment. Finding unpersuasive defendant’s argument that mere ownership of a military weapon by an individual eligible for membership in the state militia triggers Second Amendment protection, the Eighth Circuit affirmed the conviction. The court stated that “it is not sufficient to prove that the weapon in question was susceptible to military use,” but that the claimant of Second Amendment protection “must prove that his or her possession of the weapon was reasonably related to a well regulated militia” Id. at 1020 (emphasis in original)(citing Cases v. U.S., 131 F.2d 916 (1st Cir. 1942)).

The court also noted that no federal court has found mere possession of a military weapon to be “‘reasonably related to a well regulated militia’” following the Supreme Court’s decision in United States v. Miller, 307 U.S. 174 (1939). Hale, 978 F.2d at 1020. Finally, the court emphasized that the purpose of the Second Amendment is to restrain the federal government’s regulation of the possession of arms related to a state militia, not to an individual’s possession of any firearms. Id.

Fresno Rifle & Pistol Club, Inc. v. Van De Kamp, 965 F.2d 723 (9th Cir. 1992):

Held that because the Second Amendment limits only federal action, it has no applicability to the state law challenged. Affirmed the dismissal of a lawsuit challenging California’s Assault Weapons Control Act (“AWCA”), which requires the issuance of a permit for the manufacture, sale, transfer, possession, distribution, transportation, and importation of numerous firearms categorized as “assault weapons.” The Ninth Circuit summarized decisions by the Supreme Court and other Circuits before concluding that the Second Amendment is not incorporated into the Bill of Rights against the states through the Fourteenth Amendment. See id. at 730.

United States v. Nelsen, 859 F.2d 1318 (8th Cir. 1988):

Defendant appealed his conviction for violating the federal Switchblade Knife Act claiming a fundamental right to bear arms embodied in the Second Amendment. The Court of Appeals rejected the challenge, stating defendant’s claim “has not been the law for at least 100 years.” Id. at 1320.

Still many more to come . . .

Guess you guys haven't heard about the memorandum opinion writtion for the US Attorney General by the US Departement of Justice's Office of Legal Counsel. Made public on the departements website in Dec. 2004, it stands as the most definitive analysis on teh 2nd amendment published by the federal executive branch in American history.

Read the thread. This has been brought up several times. It is a political document, which is contrary to over 60 years of DOJ policy.

And any form of public dissemination of information (ie newspapers, books, leaflets, , television, hmmm.. online forums) require licenses and fees.

You can only join a "recognized" religion.

Let's be like Japan. Women only recently acquired the "right" to own property and the authorities search your house twice a year.

Licenses for reproduction. You should be able to "prove" you know how to parent.

Um, no they don't. I can print up handbills and post them all over town right now. Beyond that, I paid for my state firearms license, and I certainly paid the sales tax on the gun and ammunition. :)

And? I don't see what "recognization" has to do with it.

Um... why?

Exactly my point: there is too much red tape these days.

What's good for 1 Amendment is good for them all. Right now we have MORE than enough laws regulating firearms. I'd prefer to see them ENFORCED for a change.

Nice to add racism to the debate.

What racism? I merely asked if he wanted one of the most dangerous neighborhoods on the East Coast to move into his town. That's all. :rolleyes:

Um, no they don't. I can print up handbills and post them all over town right now. Beyond that, I paid for my state firearms license, and I certainly paid the sales tax on the gun and ammunition. :)

And? I don't see what "recognization" has to do with it.

Um... why?

Exactly my point: there is too much red tape these days.

What's good for 1 Amendment is good for them all. Right now we have MORE than enough laws regulating firearms. I'd prefer to see them ENFORCED for a change.

MR, please read the post I replied to. You should know by now when I say things like this I'm being sarcastic.

US Court of Appeals (and a couple of US District court) cases rejecting the individual right to bear arms interpretation of the Second Amendment (part II): snip
I fail to see any cases involving the US Supreme Court which is the ONLY court that truly has the authority to define constitutionality. And if I really wanted to I could bring up cases that clearly support the 2nd as an individual right. For instance, the Dred Scott decision. Anyway there's a reason that activist judges are frowned upon and they don't make it to the supreme court.

My apology. I over-reacted. I definitely would not want that type of crime in my neighborhood either. I'm sure the residents of Harlem feel the same.

Thanks. And I'm sure you're right, they don't like the crime either.

Not all of us are privledged enough to live in a low-crime piece of the nation.

And I'd bet next week's grocery money that the number of illegal guns in Harlem is at least 10-1 to the legal guns. :(

MR, please read the post I replied to. You should know by now when I say things like this I'm being sarcastic.

(whoops!!) Sorry about that, K.

snip


I seem to recall you critisizing me for "cut and pasting" lengthy posts. I'll ask the same question you did:

Did you review each and every one of those cases or did you just rehash "opinions" from somewhere else?

As for US Vs. Miller, show me where it says "State Militia".

I can post just as many cases w/ different interpretations of the same wordings and cases that support the right of the individual. Once again, it goes back to the incorrect statement you made that the courts have been unanimous in thier opinions. Law reviews are just that, review of the cases. The ones I presented showed different interpretations of many of the cases you presented w/ your own accepted interptetation included.

Where did you get your list from?

And round and round we go.

Guess you guys haven't heard about the memorandum opinion writtion for the US Attorney General by the US Departement of Justice's Office of Legal Counsel. Made public on the departements website in Dec. 2004, it stands as the most definitive analysis on teh 2nd amendment published by the federal executive branch in American history.

For anyone interested in reading the entire transcript it should be on the justice department website. Also for Reference, here is the 2nd Amendment:

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

It has been cited several times. Those who oppose individual rights, however, dismiss it offhand in favor of thier own accepted interpretations of history.

US Court of Appeals (and a couple of US District court) cases rejecting the individual right to bear arms interpretation of the Second Amendment (part III):

Sandidge v. United States, 520 A.2d 1057 (D.C. Cir. 1987), cert. denied, 484 U.S. 868 (1987):

Affirmed defendant’s convictions under local laws prohibiting carrying a pistol without a license, possessing an unregistered firearm, and unlawfully possessing ammunition, and rejected defendant’s claims that the laws violated his constitutional right to keep and bear arms. Reiterated that the Second Amendment guarantees a collective rather than an individual right, and that “the right to keep and bear arms is not a right conferred upon the people by the federal constitution. . . .” Id. at 1057 (internal quotations and citations omitted) (alteration in original). Finally, the court noted that defendant did not and could not show that possession of a handgun by an individual bears any relationship to the District of Columbia’s desire and ability to preserve a well-regulated militia. Id. at 1059.

United States v. Kozerski, 518 F. Supp. 1082 (D.N.H. 1981), aff’d, 740 F.2d 952 (1st Cir. 1984), cert. denied, 469 U.S. 842 (1984):

Defendant, following a felony conviction in Massachusetts, was hired by the local police department in Swanzey, New Hampshire. Following a complaint against him, a records check revealed his prior conviction. He was then prosecuted as a felon in unlawful possession, under federal law. He challenged the law as unconstitutional under the Second Amendment. The court rejected defendant’s challenge on the “well-established” grounds that (1) “the Second Amendment is not a grant of a right but a limitation upon the power of Congress and the national government” and (2) “the right guaranteed by the Second Amendment is a collective right to bear arms rather than an individual right, and has application only to the right of the state to maintain a militia and not the individual’s right to bear arms.” Id. at 1090 (citations omitted). The district court found defendant’s proposed analogy between himself as a rural police officer required to carry a firearm and the members of the militia described in the Second Amendment as "totally without legal merit." Id.

Thomas v. Members of City Council, 730 F.2d 41 (1st Cir. 1984):

Affirmed decision by trial court that the denial of plaintiff’s application for a permit to carry a concealed handgun by the City of Portland, Maine did not violate plaintiff’s constitutional rights under the Second Amendment because “[e]stablished case law makes clear that the federal Constitution grants [plaintiff-] appellant no right to carry a concealed handgun.” Id. at 42 (citations omitted).

United States v. Toner, 728 F.2d 115 (2d Cir. 1984):

Upheld defendants’ convictions for violations of three federal firearms provisions. One of the federal statutes at issue prohibits possession of firearms by an illegal alien. Defendants, both illegal aliens, challenged this statute on equal protection grounds. In stating that a rational basis standard and not strict scrutiny applied to a Fifth Amendment equal protection challenge, the Second Circuit noted “the right to possess a gun is clearly not a fundamental right.” Id. at 128 (internal quotation marks and citation omitted).

Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984):

Plaintiff-Appellant challenged the constitutionality of Chicago ordinances regulating the possession and registration of firearms and ammunition, contending the ordinances unlawfully discriminated against persons who moved or will move into Chicago after the effective date of the ordinances. The court affirmed the trial court’s denial of the challenge, finding the classifications made by the ordinances were rationally related to legitimate state purposes. Id. at 640.

“The Chicago handgun ordinance does not impinge upon any federal constitutional right to bear arms. This court held recently that the second amendment regulates only the activities of the federal government—not those of the states or their subdivisions. Nor is the asserted right to bear arms pivotal in the effective exercise of constitutionally guaranteed rights. Therefore, the second amendment does not require us to apply the compelling government interest standard to this ordinance.” Id. (citations omitted).

Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983):

Affirmed the trial court’s decision upholding a village ordinance prohibiting the possession and sale of handguns within the village borders on the grounds that the Second Amendment does not apply to the states and that the “right to keep and bear arms extends only to those arms which are necessary to maintain a well regulated militia.” Id. at 270 (footnote omitted). The court also affirmed the trial court’s findings that the ordinance did not violate the Illinois constitutional provision granting individual citizens the right to bear arms. Id. at 265-68.

United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978):

Affirmed defendant’s conviction for knowingly possessing an unregistered machine gun, rejecting defendant’s claim that every citizen has the absolute right to keep arms pursuant to the Second Amendment. Id. at 387. The court also rejected defendant’s attempt to bring himself within the purview of the Second Amendment based on his membership in the “Posse Comitatus, a militia-type organization registered with the state of Kansas.” Id.

United States v. Turcotte, 558 F.2d 893 (8th Cir. 1977):

Affirmed defendant’s conviction under 18 U.S.C. § 922(a)(6), holding that the federal statute regulating the purchase and receipt of a firearm transported in interstate commerce did not obstruct the maintenance of a well-regulated militia, and thus did not violate defendant’s rights under the Second Amendment. Id. at 895.

United States v. Graves, 554 F.2d 65 (3d Cir. 1977):

Affirmed conviction under federal Gun Control Act in connection with possession of a firearm by an individual convicted of a state law felony. Held that a predicate state felony conviction cannot be collaterally attacked in subsequent weapons’ prosecution proceeding under the federal Act. In dicta, the Third Circuit noted that “the courts consistently have found no conflict between federal gun laws and the Second Amendment, narrowly construing the latter to guarantee the right to bear arms as a member of a militia.” Id. at 66.

Marchese v. California, 545 F.2d 645 (9th Cir. 1976):

Defendant sought to have his state law felony conviction set aside and challenged on the basis of equal protection the constitutionality of a California statute that prohibits felons from possessing handguns. The Ninth Circuit rejected his argument that the right to bear arms is a fundamental, individual right under the Second Amendment. Therefore, the law was only required to pass the rational basis test. Because the state has a legitimate interest in minimizing the felonious use of firearms, the classification met the rational basis standard.

United States v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied, 426 U.S. 948 (1976):

The Court of Appeals affirmed defendant’s conviction for possessing an unregistered machine gun in violation of federal law, rejecting defendant’s Second Amendment challenge to that law, noting that the mere “fact that the defendant . . . in common with all adult residents and citizens of Ohio, is subject to enrollment in the militia of the State confers upon him no right to possess the submachine gun in question.” Id. at 106. The court also noted that even “where the Second Amendment is applicable, it does not constitute an absolute barrier to congressional regulation of firearms.” Id. at 107. The court further characterized as an “erroneous supposition” defendant’s argument that “the Second Amendment is concerned with the rights of individuals rather than those of the States . . . .” Id. at 108.

United States v. Johnson, 497 F.2d 548 (4th Cir. 1974):

Affirmed defendant’s conviction under 18 U.S.C. § 922(g) and rejected defendant’s constitutional challenge to the statute which prohibits transportation of a firearm in interstate commerce by convicted felon. “The courts have consistently held that the Second Amendment only confers a collective right of keeping and bearing arms which must bear ‘a reasonable relationship to the preservation or efficiency of a well regulated militia.’” Id. at 550 (citations omitted).

Eckert v. City of Philadelphia, 477 F.2d 610 (3d Cir.), cert. denied, 414 U.S. 839 (1973):

Affirmed a trial court judgment rejecting appellant’s constitutional attack on a city ordinance regulating the purchase and transfer of firearms. The court noted that appellant’s theory that he is entitled to bear arms under the Second Amendment “is completely wrong” and that “t must be remembered that the right to keep and bear arms is not a right given by the United States Constitution.” Id. at 610.

[I]United States v. Day, 476 F.2d 562 (6th Cir. 1973):

Defendant was convicted under federal laws prohibiting possession or transporting of firearms by a person who has been dishonorably discharged from the Armed Forces and for engaging in the business of firearms sales without a license. The court rejected his Second Amendment challenge to the convictions, stating that “[t]here is no absolute constitutional right of an individual to possess a firearm.” Id. at 568 (citation omitted).

Cody v. United States, 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010 (1972):

Affirmed defendant’s conviction under 18 U.S.C. § 922(a)(6) which criminalizes any false statements to a licensed firearms dealer in connection with the purchase of a firearm, rejecting defendant’s Second Amendment challenge to the statute because “the Second Amendment’s guarantee extends only to use or possession which ‘has some reasonable relationship to the preservation or efficiency of a well regulated militia.’” Id. at 36 (citation omitted).

United States v. Tomlin, 454 F.2d 176 (9th Cir.), cert. denied, 406 U.S. 924 (1972):

Per curiam decision affirming defendant’s convictions for federal firearms violations. Summarily denied defendant’s constitutional challenge to the National Firearms Act, stating that his claim that there is an individual right to bear arms under the Second Amendment has been conclusively “undermined by controlling precedent.” Id. at 176 (citations omitted).

United States v. Decker, 446 F.2d 164 (8th Cir. 1971):

Affirmed defendant firearms dealer’s conviction for numerous violations of the federal Gun Control Act, rejecting defendant’s constitutional claims on appeal. Reiterated the Supreme Court’s rationale in United States v. Miller, 307 U.S. 174 (1939) that the Second Amendment applies only when the possession or use of firearms relates to a well regulated militia, and rejected the argument that the record-keeping requirements imposed on federally-licensed firearms dealers by the Gun Control Act infringe upon any Second Amendment right to bear arms. Id. at 166.

United States v. Wilson, 440 F.2d 1068 (6th Cir. 1971):

Defendant was convicted of dealing in firearms and possessing a sawed-off shotgun. Defendant alleged that the statute under which he was convicted violated the Second Amendment. The Court of Appeals summarily rejected defendant’s Second Amendment argument. Id. at 1069.

United States v. Williams, 446 F.2d 486 (5th Cir. 1971):

Defendant was convicted of transporting a sawed off shotgun in violation of federal law. On appeal, he challenged the constitutionality of the federal statutes (26 U.S.C. §§ 5861(d), 5871) on Second Amendment grounds. The appellate court rejected his challenge .

United States v. McCutcheon, 446 F.2d 133 (7th Cir. 1971):

Affirmed trial court conviction of defendant for violations of the federal Gun Control Act. Both courts rejected defendant’s constitutional claim, including his claim that the law at issue violates the Second Amendment.

United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971):

Holding that defendant “misconstrues the Second Amendment...” and quoting United States v. Miller, 307 U.S. 174 (1939), the Fifth Circuit rejected defendant’s Second Amendment challenge to his conviction under the National Firearms Act of 1968 for unlawfully possessing an unregistered sawed-off shotgun in violation of federal law “‘In absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.’” Id. at 1136 (citation omitted).

Stevens v. United States, 440 F.2d 144 (6th Cir. 1971):

Rejected Commerce Clause and Second Amendment Challenges to defendant’s conviction under federal law prohibiting a felon from possessing, receiving or transporting in commerce a firearm. The court held that Congress has the power to make it a crime for a convicted felon to possess a firearm without requiring proof of a connection between such possession and interstate commerce. As to the Second Amendment challenge, the court stated “[s]ince the Second Amendment right ‘to keep and bear Arms’ applies only to the right of the State to maintain a militia and not to the individual’s right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.” Id. at 149 (citation omitted).

United States v. Casson, 288 F. Supp. 86 (D. Del. 1968):

Denied defendant’s motion to dismiss an information charging that he unlawfully possessed a sawed-off shotgun that was illegally made and transferred in violation of, among other statutes, 26 U.S.C. §§ 5811, 5814 and 5821. The court rejected defendant’s Second Amendment challenge to these statutes, holding that the Amendment does not guarantee the right to keep and bear such shotguns without a showing that the possession or use of a firearm has some reasonable relationship to the preservation or efficiency of a well-regulated militia. Id.

Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied sub nom. Velasquez v. United States, 319 U.S. 770 (1943):

Affirmed defendant’s conviction under the Federal Firearms Act, rejecting defendant’s Second Amendment challenge to the constitutionality of sections of the Act under which he was convicted of unlawfully transporting and receiving a firearm and ammunition. Reasoned that “[t]he right to keep and bear arms is not a right conferred upon the people by the federal constitution” but rather whatever such rights people may have depends upon local legislation, which the federal government may not then infringe. Id. at 921. Also held that while the statute curtails the right of individuals to keep and bear arms, it does not violate the Second Amendment because the only function of that provision is, as stated in United States v. Miller, 307 U.S. 174 (1939), to limit the federal government from interfering with “the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia.” Id. at 922 (internal quotation marks and citation omitted).

The First Circuit went on to note that the Second Amendment did not apply where there was no evidence that appellant was or ever had been a member of a military organization even though the weapon at issue was capable of military use or familiarity with it might be regarded as valuable in training a person to use a comparable weapon of military type and use. Id. at 922-23.

United States v. Tot, 131 F.2d 261 (3d Cir. 1942), rev’d on other grounds, 319 U.S. 463 (1943):

Appellate court affirmed defendant’s convictions for violation of the Federal Firearms Act, rejecting defendant’s constitutional challenge to the Act’s prohibitions on the ownership of firearms or ammunition by persons convicted of a crime of violence. The court relied on United States v. Miller and its progeny, as well as a broader principle of common law:
Weapon bearing was never treated as anything like an absolute right by the common law . . . . In the situation at bar Congress has prohibited the receipt of weapons from interstate transactions by persons who have previously, by due process of law, been shown to be aggressors against society. Such a classification is entirely reasonable and does not infringe upon the preservation of the well-regulated militia protected by the Second Amendment.
Id. at 266-67 (footnotes omitted).

United States v. Adams, 11 F. Supp. 216 (S.D. Fla. 1935):

Rejected defendant’s argument that sections of the National Firearms Act, formerly 26 U.S.C.A. §§ 861a-861q, violate the Second Amendment. The court stated that the Second Amendment “does not grant the privilege to racketeers and desperadoes to carry” shotguns, rifles or machine guns. Id. at 219. Rather, the Amendment “refers to the militia, a protective force of government, to the collective body and not individual rights.” Id.

This is not an exhaustive list of US Courts of Appeal cases (not to mention US district court and state cases. It should put the end to the argument that the caselaw is unclear or spotty.

(whoops!!) Sorry about that, K.

No worries. Have you seen different interpretations of the cases CT has presented?

This is not an exhaustive list of US Courts of Appeal cases (not to mention US district court and state cases. It should put the end to the argument that the caselaw is unclear or spotty.\

I ask again, where did you get your list from?

here's part of mine w/ aternate interpretations of many of yours:

U.S. Courts of Appeals Decisions

Nordyke v. King, WL 347009 (9th Circuit 2003)
The U.S. Court of Appeals for the 9th Circuit in a February 18 ruling questioned that circuit`s recent anti-Second Amendment decision in Silveira v. Lockyer . One judge even wrote a concurrence showing the Second Amendment to guarantee individual rights. The National Rifle Association filed an amicus curiae brief in the case.

U.S. v. Emerson, No. 99-10331 (Fifth Circuit, 1999)
Emerson had been indicted for possessing a firearm while under a certain kind of restraining order, a violation of federal law. The trial court quashed the indictment on Second and Fifth Amendment grounds, finding that Emerson`s right to arms had been restricted by a mere "boilerplate state court divorce order" and "an obscure, highly technical statute with no mens rea (criminal intent) requirement."

U.S. v. Nelson, 859 F.2d 1318 (Eighth Circuit, 1988).
This case is not a firearms case; it involves the federal switchblade knife act. Based on the holding in U.S. v. Cruikshank that the right to keep and bear arms "is not a right granted by the Constitution," the Eighth Circuit concluded that the right is not fundamental. Of course, the statement in Cruikshank?a case which involved the theft of firearms by private citizens from other private citizens?simply meant that the right was not created by the Constitution, but that it preexisted the Constitution and that the Second Amendment was "to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes" to the state criminal laws.

U.S. v. Cody, 460 F.2d 34 (Eighth Circuit, 1972).
This case involved the making of a false statement by a convicted felon in connection with the purchase of a firearm. The court held that there was "no evidence that the prohibition of 922(a)(6) obstructs the maintenance of a well-regulated militia." Thus, the court acknowledged that the Second Amendment would be a bar to some congressional regulation of the use or possession of firearms and recognized that Miller required the introduction of evidence which showed a militia use for the firearm involved.

U.S. v. Decker, 446 F.2d 164 (Eighth Circuit, 1971).
The court held that the defendant could "present . . . evidence indicating a conflict" between the statute at issue and the Second Amendment. Since he failed to do so, the court declined to hold that the record-keeping requirements of the Gun Control Act of 1968 violated the Second Amendment. The court once again implicitly recognized that the right guaranteed belonged to individuals.

U.S. v. Synnes, 438 F.2d 764 (Eighth Circuit, 1971)
This is another case involving possession of a firearm by a convicted felon. The court held that 18 U.S.C. App. Section 1202(a) (reenacted in 18 U.S.C. 922(g) in 1986) did not infringe the Second Amendment, as there was "no showing that prohibiting possession of firearms by felons obstructs the maintenance of a ?well regulated militia.`" There was a clear recognition that the Second Amendment guarantees an individual right.

Gilbert Equipment Co., Inc. v. Higgins, 709 F. Supp. 1071(S.D. Ala. 1989), aff`d, 894 F.2d 412 (11th Circuit, 1990) (mem).
The court held that the Second Amendment "guarantees to all Americans ?the right to keep and bear arms.`. . ."

U.S. v. Oakes, 564 F.2d 384 (10th Circuit, 1977), cert. denied, 435 U.S. 926 (1978).
Although the court recognized the requirement of Miller that the defendant show that the firearm in question have a "connection to the militia," the court concluded, without explanation, that the mere fact that the defendant was a member of the Kansas militia would not establish that connection. In light of the fact that Miller (which defines the militia as including "all males physically capable of acting in concert for the common defense") saw no relevance in the status of a defendant with respect to the militia, but instead focused upon the firearm itself, this conclusion is not without basis.

U.S. v. Swinton, 521 F.2d 1255 (10th Circuit, 1975).
In the context of interpreting the meaning of the phrase "engaging in the business of dealing in firearms" in 18 U.S.C. 922(a)(1), the court noted, in dicta, merely that "there is no absolute constitutional right of an individual to possess a firearm." Clearly, therefore, the court recognized that the right is an individual one, albeit not an absolute one.

U.S. v. Johnson, 497 F.2d 548 (Fourth Circuit, 1974).
This is one of the three court of appeals cases that uses the term "collective right." The entire opinion, however, is one sentence, which states that the Second Amendment "only confers a collective right of keeping and bearing arms which must bear a ?reasonable relationship to the preservation or efficiency of a well-regulated militia.`" The case concerned the interstate transportation of a firearm by convicted felons, a class of persons which historically has suffered the loss of numerous rights (including exclusion from the militia) accorded other citizens.

U.S. v. Bowdach, 414 F. Supp. 1346 (D.S. Fla 1976), aff`d, 561 F.2d 1160 (Fifth Circuit, 1977).
The court held that "possession of the shotgun by a non-felon has no legal consequences. U.S. Const. Amend. II." In other words, a non-felon`s right to possess a shotgun is guaranteed by the Second Amendment.

U.S. v. Johnson. Jr., 441 F.2d 1134 (Fifth Circuit, 1971).
This decision merely quotes from Miller the statement concerning the requirement of an evidentiary showing of a militia nexus and a consequent rejection, without even the briefest of analysis, of the defendant`s challenging to the constitutionality of the National Firearms Act of 1934 (NFA). Apparently, the defendant failed to put on evidence, as required by Miller, that the firearm at issue had a militia use.

Quilici v. Village of Morton Grove, 695 F.2d 261 (Seventh Circuit, 1982), cert. denied, 464 U.S. 863 (1983).
In rejecting a Second and 14th Amendment challenge to a village handgun ban, the court held that the Second Amendment, either of itself or by incorporation through the 14th Amendment, "does not apply to the states. . . ." The court, in dicta, went on, however, to "comment" on the "scope of the second amendment," incorrectly summarizing Miller as holding that the right extends "only to those arms which are necessary to maintain a well regulated militia." Thus, finding (without evidence on the record) that "individually owned handguns [are not] military weapons," the court concluded that "the right to keep and bear handguns is not guaranteed by the Second Amendment."

U.S. v. McCutcheon, 446 F.2d 133 (Seventh Circuit, 1971).
This is another case involving the NFA in which the court merely followed Miller in holding that the NFA did not infringe the Second Amendment.

Stevens v. United States, 440 F.2d 144 (Sixth Circuit, 1971).
In a one sentence holding, the court simply concluded that the Second Amendment "applies only to the right of the State to maintain a militia and not to the individual`s right to bear arms. . . ." Merely citing Miller as authority for this conclusion, the court undertook no analysis of Miller or of the history of the ratification of the Second Amendment. This case, moreover, involved possession of firearms by convicted felons, a class of persons whose right traditionally have been more restricted than law-abiding citizens.

U.S. v. Day, 476 F.2d 562 (Sixth Circuit, 1973).
Citing Miller, the court merely concluded, in reviewing a challenge to the statute barring dishonorably discharged persons from possessing firearms, that "there is no absolute right of an individual to possess a firearm." Since there are certain narrowly defined classes of untrustworthy persons, such as convicted felons and, as here, persons dishonorably discharged from the armed forces, who may be barred the possession of firearms, it is a truism to say that there is not an absolute right to possess firearms. In so saying, the court implicitly recognized the individual right of peaceful and honest citizens to possess firearm.

U S. v. Warin, 530 F.2d 103 (Sixth Circuit, 1976), cert. denied, 426 U.S. 948 (1976).
Following its earlier decision in Stevens, the court simply concluded, without any reference to the history of the Second Amendment, that it "is clear the Second Amendment guarantees a collective rather than an individual right." Warin erred in concluding that the defendant`s relationship to the militia was relevant to determining whether his possession of a machine gun was protected by the Second Amendment since the Supreme Court in Miller focused on the firearm itself, not the individual involved. In fact, Miller quite expansively defined the constitutional militia as encompassing "all males physically capable of action in concert for the common defense."

U.S. v. Tot, 131 F.2d 261 (Third Circuit, 1942), rev`d on other grounds, 319 U.S. 463 (1943).
This is another case involving possession of a firearm by a convicted felon. Despite holding that the failure of the defendant to prove, as required by Miller, a militia use for the firearm was an adequate basis for ruling against the defendant, the court, in dicta, concluded that the Second Amendment "was not adopted with individual rights in mind. . . ." This result was based on reliance on an extremely brief and erroneous analysis of common law and colonial history. In addition, apparently recognizing that it decided the case on unnecessarily broad grounds, the court noted that, at common law, while there was a right to bear arms, that right was not absolute and could be restricted for certain classes of persons "who have previously . . . been shown to be aggressors against society."

U.S. v. Graves, 554 F.2d 65 (Third Circuit, 1977).
Since the defendant in this case did not raise the Second Amendment as a challenge to the "statutory program which restricts the right to bear arms of convicted felons and other persons of dangerous propensities," the only discussion of the Second Amendment is found in a bartnote wherein the court states "[a]rguably, any regulation of firearms may be violative of this constitutional provision."

Cases v. United States, 131 F.2d 916 (First Circuit, 1942), cert. denied sub nom., Velazquez v. U. S., 319 U.S. 770 (1943).
The court held that the Supreme Court in Miller had not intended "to formulate a general rule" regarding which arms were protected by the Second Amendment and concluded, therefore, that many types of arms were not protected. Nonetheless, the court expressly acknowledged that the Second Amendment guarantees an individual right when it noted that the law in question "undoubtedly curtails to some extent the right of individuals to keep and bear arms. . . ."

And some more interpretations:


U.S. Supreme Court Decisions

Dred Scott v. Sanford
This infamous decision concerned whether African-Americans could be considered U.S. citizens. In relying upon historic discrimination which denying African-Americans the rights of citizens, the Court enumerated the rights of citizens and included the right to arms: "It would give to persons of the negro race, ... the right to enter every other State whenever they pleased . . . the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went." (emphasis added)

U.S. v. Cruikshank
This decision concerns 14th Amendment enforcement of individuals rights. The Court referred to First Amendment right of assembly and the Second Amendment right to arms as pre-existing rights, "not granted by the Constitution. Neither [are they] in any manner dependant upon that instrument for [their] existence."

Presser v. Illinois
The Supreme Court decision suggested that the Second Amendment applies to the states through the 14th Amendment and thus that a state cannot forbid individuals to keep and bear arms for lawful purposes.

Miller v. Texas
Miller, who had been found guilty in a lower court of carrying a pistol on a public street in Texas, challenged the Texas statute on grounds of it being violative of the Second, Fourth and 14th Amendments. The Supreme Court found that the Second and Fourth Amendments, of themselves, did not limit state action. The Court left open the possibility that the right to keep and bear arms and freedom from warrantless searches would apply to the states through the 14th Amendment.
U.S. v. Miller
The Court ruled that there was no constitutional right to own a sawed-off shotgun, because it had no "reasonable relationship to the preservation or efficiency of a well-regulated militia." The Miller case illustrates that individuals may raise Second Amendment claims even when not members of the National Guard and not participating in any type of militia activity.

U.S. v. Verdigo-Urguidez
The Court unanimously held that the term "the people" in the Second Amendment had the same meaning as in the Preamble to the Constitution and in the First, Fourth and Ninth Amendments, i.e.. that "the people" means at least all citizens and legal aliens while in the United States. This case suggests that the Second Amendment guarantees an individual right to keep and bear arms.

Perpich v. Dept. of Defense
This decision deals with the federalization of state militias. The Court affirmed a District Court decision when it ruled that the Montgomery Amendment, which provides that the consent of a Governor may not be withheld (in whole or in part) with regard to active duty outside the United States, its territories and its possessions, because of any objection to the location, purpose, type, or schedule of such active duty, is constitutionally valid.

This is not an exhaustive list of US Courts of Appeal cases (not to mention US district court and state cases. It should put the end to the argument that the caselaw is unclear or spotty.
http://keepandbeararms.com/information/XcIBViewItem.asp?ID=3202

The court in Dred Scott decided that since the US had been a racist nation since it’s inception, a racist law in 1856 could not be challenged by a black gent, since he lacked the “privileges and immunities of US Citizenship” as held by the group “the people” mentioned in the Constitution.

The court used the complete phrase “privileges and immunities” over 30 times, and exhaustively defined it. To the court in Dred Scott, the “privileges and immunities of US citizenship” included the entire Bill Of Rights just for starters. The court hypothesized what would happen if such “privileges and immunities” were declared held by blacks:

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them [blacks] from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

It is critical to understand that the ruling in Dred Scott was not invalidated by the Civil War 1861-1865 and the deaths of over 500,000. Indeed, the slaves may have been freed by Lincoln’s order and then the 13th Amendment, but the court’s holding on racist laws being in harmony with the Founder’s intent still stood.

Hence the South began writing specifically racist laws, the infamous “Black Codes”...virtually all of which contained special race-specific restrictions on arms:

1. That it shall not be lawful for any freedman, mulatto, or free person of color in this State, to own fire-arms, or carry about his person a pistol or other deadly weapon.

2. That after the 20th day of January, 1866, any person thus offending may be arrested upon the warrant of any acting justice of the peace, and upon conviction fined any sum not exceeding $100 or imprisoned in the county jail, or put to labor on the public works of any county, incorporated town, city, or village, for any term not exceeding three months.

3. That if any gun, pistol or other deadly weapon be found in the possession of any freedman, mulatto or free person of color, the same may by any justice of the peace, sheriff, or constable be taken from such freedman, mulatto, or free person of color; and if such person is proved to be the owner thereof, the same shall, upon an order of any justice of the peace, be sold, and the proceeds thereof paid over to such freedman, mulatto, or person of color owning the same. [Ed. note: the off-duty fashion choices of “justices of the peace, sheriffs, or constables” at that time tended toward an ensemble of basic white bedsheets with eyeholes...especially at night.]

4. That it shall not be lawful for any person to sell, give, or lend fire-arms or ammunition of any description whatever, to any freedman, free negro or mulatto; and any person so violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined in the sum of not less than fifty nor more than one hundred dollars, at the discretion of the jury trying the case.

Alabama statute of 1865, from “The Second Amendment: Towards An African-Americanist Reconsideration”, footnote 178 — two more state-level examples precede that one.

Per Dred Scott, this was perfectly acceptable.

The only way the 1868 legislature could fix that was to overturn the US Supreme Court — which meant a Constitutional Amendment, the 14th.

Which is why they borrowed Dred Scott’s phrasing — they started out by making it clear blacks were citizens, and then forbade states from violating the rights of citizens. In doing so, framers of the 14th such as Ohio Republican John Bingham knew that they were carrying out the court’s worst “fears”, allowing the freemen to “keep and carry arms wherever they went” (among other things). See the Halbrook cites above — Bingham and company made no secret of this during the debates on the 14th and the various acts that led up to it and supported it.

So what does all this mean?

1. If the 14th “reinforced” an individual right to arms, it strengthens the arguments for an “individual right” interpretation (“standard model”) as recently supported by the 5th Circuit in US vs. Emerson. Even if the right to bear arms was originally primarily to “ensure a militia” with no “personal right” intended (which is ludicrous to anyone who studies the Founders' writings closely), that cannot have been the case in 1868 because no Southern state was going to voluntarily put blacks under organized arms! The uniforms of “State Militias” in the south of that time ran toward modified bedsheets. So we’re talking about a right to personal arms for private defense, against both criminals and the state itself.

2. And we’re no longer talking about flintlock muskets, are we? Revolvers were common as fleas by then, with working models available since 1836. In fact, used specimens were affordable to freemen. The Mormon security forces prior to their move to Utah were well known for packing .44cal percussion revolvers with barrels chopped to 3” or so, carried concealed. And rifles of up to 15shot capacity were available, as were the first Gatling Guns(!) patented 1862.

3. Better yet, we see that the right to arms is protected from STATE infringement.

4. Best of all, the framers of the 14th would have known that for freemen to safely “bear arms wherever they went”, the arms in question would of necessity be concealed! Anybody want to guess what a Southern cop of 1869 would think of a melanin-enhanced gent doing open-carry? (Last time the NYPD thought they had an armed black dude in sight, they opened up with 41 rounds, and that was in our more “modern, enlightened age”.) This particular “logic chain” is the only path I know of to gaining a Constitutional right to bear CONCEALED arms that the courts may one day adopt, once they abandon the horrific racism of Cruikshank.

Here's another one:



Ninth Circuit Disputes Silveira Decision, Judge Calls Second Amendment an Individual Right

The U.S. Court of Appeals for the 9th Circuit in a February 18 ruling questioned that circuit`s recent anti-Second Amendment decision in Silveira v. Lockyer. One judge even wrote a concurrence showing the Second Amendment to guarantee individual rights. Nordyke v. King, 2003 WL 347009 (9th Cir. 2003). The National Rifle Association filed an amicus curiae brief in the case.


Judge Gould explained:

Those who debated and framed the Bill of Rights were educated in practical political concepts and doubtless recognized that an opening gambit for tyrants is to disarm the public. If the Second Amendment is held to protect only a state-regulated militia, then there would be no constitutional bar to a federal government outlawing possession of all arms by hunters and those with legitimate needs for protection. A general confiscation of guns could become the order of the day. I believe that result is foreclosed by the salient purpose of the Second Amendment to guard against tyranny, and that an individual right to keep and bear arms must be recognized.

I reach this conclusion despite a recognition that many may think that these ideas are outmoded, that there is no risk in modern times of our government becoming a tyranny, and that there is little threat that others would invade our shores or attack our heartland. However, the Second Amendment was designed by the Framers of our Constitution to safeguard our Nation not only in times of good government, such as we have enjoyed for generations, but also in the event, however unlikely, that our government or leaders would go bad. . . . As the people bear the risk of loss of their freedom and the pain of any attack, our Constitution provides that the people have a right to participate in defense of the Nation. The Second Amendment protects that fundamental right.

I can post just as many cases w/ different interpretations of the same wordings and cases that support the right of the individual. Once again, it goes back to the incorrect statement you made that the courts have been unanimous in thier opinions. Law reviews are just that, review of the cases. The ones I presented showed different interpretations of many of the cases you presented w/ your own accepted interptetation included.


I ask again, where did you get your list from?

here's part of mine w/ aternate interpretations of many of yours:




You got your list from the NRA-ILA.

I will admit most of mine is from Legal Community Against Violence.

I have, however, checked almost all of the cases I cited. (Not simply for this argument, but for unrelated work.)

Having worked for a law review, I am familiar with what a law review article is. They are not authoritative.


You are right we can go around and around. With a few exceptions:

1. In all "your" cases, you cite only 2 that recognize an individual right. You may disagree whether some of my cases are determinative, but you can find almost no cases supporting your position.

2. Your "alternative interpretations" rarely deny that the case rejected an individual right and/or adopted a collective right view. Most simply disagree with the reasoning of the case.

3. The NRA has repeatedly presented the interpretations you adopt to the federal courts and they have been repeatedly rejected.

I stand by my statement (expressly repeated in many of the recent cases cited) that the United States Supreme Court and lower federal courts have consistently interpreted the Second Amendment only as a prohibition against Federal interference with State militia and not as a guarantee of an individual's right to keep or carry firearms.

Here's another one:



Ninth Circuit Disputes Silveira Decision, Judge Calls Second Amendment an Individual Right

The U.S. Court of Appeals for the 9th Circuit in a February 18 ruling questioned that circuit`s recent anti-Second Amendment decision in Silveira v. Lockyer. One judge even wrote a concurrence showing the Second Amendment to guarantee individual rights. Nordyke v. King, 2003 WL 347009 (9th Cir. 2003).

This is a case you've already cited, not "another one." There are 3 judges on a 9th Circuit panel. One said what you quote. The majority disagreed. What you cited has no precedential value.

You got your list from the NRA-ILA.

I will admit most of mine is from Legal Community Against Violence.

I have, however, checked almost all of the cases I cited. (Not simply for this argument, but for unrelated work.)

Having worked for a law review, I am familiar with what a law review article is. They are not authoritative.


You are right we can go around and around. With a few exceptions:

1. In all "your" cases, you cite only 2 that recognize an individual right. You may disagree whether some of my cases are determin

ative, but you can find almost no cases supporting your position.

2. Your "alternative interpretations" rarely deny that the case rejected an individual right and/or adopted a collective right view. Most simply disagree with the reasoning of the case.

3. The NRA has repeatedly presented the interpretations you adopt to the federal courts and they have been repeatedly rejected.

I stand by my statement (expressly repeated in many of the recent cases cited) that the United States Supreme Court and lower federal courts have consistently interpreted the Second Amendment only as a prohibition against Federal interference with State militia and not as a guarantee of an individual's right to keep or carry firearms.

Translation: It's OK for you to cut and paste from a biased source but not anyone else.

1. You present LCAV's and your OPINIONS on many court cases. Many of which also have nothing to do w/ individual vs. state rights. I have repeatedly presented alternate opinions and cases. The INTERPRETATIONS of the cases you present are as "authoritative" as mine.

2. Your "alternate interpretations" of many of these cases fail to show a lack of the individuals right over a collective right. Most of the cases you presented had little or nothing to do w/ it except for felons or those illegally obtaining arms and then being prosecuted.

3. And they are more and more being accepted.

Fine. I've read almost all the cases. Have you read any?

If you wish to make arguments about what cases say or mean, I suggest you learn how precedent works and how opinions are crafted and interpreted.

I started to reply further, but there is no point.

I will say the Dred Scott argument is not only wrong from start to finish, but offensive in many respects. If you do not understand why it is both wrong or offensive, I cannot explain.

None of the above is meant to insult. I respect most of the views that have been expressed here -- including those of Kecibukia, my most recent sparring partner. I simply see no point in arguing further.

I will say the Dred Scott argument is not only wrong from start to finish, but offensive in many respects. If you do not understand why it is both wrong or offensive, I cannot explain.
I assume you're whining about the fact that it's racist. But that's the crux of the matter. Because at the time blacks were not considered full citizens at the time they were able to be excluded from rights that full citizens of the United States of America had. Specifically "For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them [blacks] from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."



Those last nine words are rather telling aren't they?

Fine. I've read almost all the cases. Have you read any?

If you wish to make arguments about what cases say or mean, I suggest you learn how precedent works and how opinions are crafted and interpreted.

I started to reply further, but there is no point.



I've read the majority also. I still would like you to answer where it says "state militia" in Miller.

Since the late '60's, anti-gunners (including the legal communtiy)have used the alleged "precedent" of Miller to further their own agendas. By finally stating where you got your information from, you've shown your own indefensible biases against firearms and individual rights. You might have well as just cited HCI.

Looking at the LCAV website, it has more spin-doctoring on it than HCI, except it's filled w/ boilerplate and legalese to make it sound more official. It states:
since 1994, the percentage of gun crime TRACES involving assault weapons has dropped dramatically".. That's because they effectively stopped doing traces at all.

Columbine is mentioned to defend the Clinton AWB. No "assualt weapons" were used.

It throws lots of numbers and statistics around about gun deaths and injuries. It fails to report how many of those were due to illegal activities w/ illegal firearms. One of its souces "Taking Back the Second Amendment: A Seven-Step Blueprint for Democrats to Promote Responsibility and Win the Gun Vote" . Nope, that's not biased at all.

They state "When cities, counties and states adopt gun regulations, they not only address local and regional concerns, they show their representatives in Washington that there is a base of support for regulating firearms.
" This, ignoring the fact that nearly 30 states have passed Carry/Concealed carry laws in the past decade w/ overwheling support by the populace.

Effectively, these are the people that are trying to litigate firearms out of existance by pushing for more laws that don't work, blaming the instrument and not the user, and encouraging junk lawsuits against the firearms industry.

Take a look at this site:

http://www.tysknews.com/Depts/2nd_Amend/embarrassing_2nd.htm

with its wonderful quote on the legal establishment and firearms:

I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, [28] is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning," interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation.

I cannot believe you have nitpicked me for failing to provide you a free link to a verifiable dictionary definition (rather than deal with the merits of the argument), but you expect to rely on such vaguries.

The "merely a preamble" argument is wholly without merit, as I have previously explained. Every word of a constitutional provision must be given meaning.

I'll also note Former Chief Justice Warren Burger, a life-long hunter and conservative Republican, terms the NRA's Second Amendment rhetoric a "fraud" paid for by the firearms industry:
[O]ne of the frauds -- and I use that term advisedly -- on the American people, has been the campaign to mislead the public about the Second Amendment. The Second Amendment doesn't guarantee the right to have firearms at all . . . . It's shocking to me that the American people have let themselves be conned . . . by the campaigns that are sponsored and financed by the arms industry and the ammunition industry.
Warren Burger, Press Conference Concerning Introduction of the Public Health and Safety Act of 1992, Federal News Service, June 26, 1992, available in LEXIS, News Library, Wires File; see also Tony Mauro, Bill of Rights Has Not Been Scuttled, USA TODAY , Dec. 16, 1991, at 13A. ("[T]he National Rifle Association has done one of the most amazing jobs of misrepresenting and misleading the public.").

Arch-conservative and leading proponent of the use of original intent in interpreting the constitution, Judge Robert Bork has stated that the Second Amendment operates "to guarantee the right of states to form militia, not for individuals to bear arms." He believes California's assault-weapons ban is, and indeed "probably" all state gun control measures are, constitutional. Claudia Luther, Bork Says State Gun Laws Constitutional, L.A. TIMES, Mar. 15, 1989, at B5; see also Miriam Bensimhorn, The Advocates: Point and Counterpoint, Laurence Tribe and Robert Bork Debate the Framers' Spacious Terms, LIFE, Fall 1991 (Special Issue), at 96, 98 ("[T]he National Rifle Association is always arguing that the Second Amendment determines the right to bear arms. But I think it really is people's right to bear arms in a militia. The NRA thinks that it protects their right to have Teflon-coated bullets. But that's not the original understanding.").

So, are you a student or a lawyer?

I find that while you substantiate other portions of your argument quite well, you will not provide the quote on this one. It makes me question it, that's all. Actually, I find it expensive, not inconvenient.

I have provided the citation and the quote of the definition. Perhaps you missed that I quoted the definition. What you asked for was the complete results of the OED search. I won't do that as it is expressly forbidden by my subscription agreement and also violates OED's copyright. I find it unfortunate that neither contractual obligations nor intellectual property seem to be as respected as the fictional "right to bear arms."

I did do a google of "Oxford English Dictionary" and "to bear arms" and found other sources citing the same definition -- including the pdf of a brief filed in the Fifth Circuit. Here are a couple of those sources (two are duplicative in content):
http://www.usenet.com/newsgroups/talk.politics.guns/msg32204.html
http://www.saneguns.org/sources/misc/yassky_emerson.html
http://www.gunlawsuits.org/downloads/yasskybrief.pdf

Why don't we just leave it at you're in California, ya don't like guns that much, and you sure don't want people to freely possess their firearms without a government nod--if at all.

(1) I am currently in California, but I was born and raised in the very conservative state of Idaho. Most of my male (and many of my female) relatives and in-laws are hunters and also own handguns. So I don't quite fit your Californian stereotype.

(2) It is true that I do not think people should have firearms without government regulation. I also think people should not be members of the Aryan Nations. I nonetheless recognize the later is protected by the Constitution.

So, are you a student or a lawyer?

Lawyer. [snip] In practice for many years now.

Lawyer. Former clerk of a US Court of Appeal. In practice for many years now.

Gotcha. Then I'm done.

(1) I am currently in California, but I was born and raised in the very conservative state of Idaho. Most of my male (and many of my female) relatives and in-laws are hunters and also own handguns. So I don't quite fit your Californian stereotype.


Actually, you do. Just because your relatives don't, doesn't mean you don't. Anyway, it's irrelevant--I yanked the post. Sorry you got to it before I could do so.


(2) It is true that I do not think people should have firearms without government regulation. I also think people should not be members of the Aryan Nations. I nonetheless recognize the later is protected by the Constitution.

But you don't recognize the first is as well. Like I said, though, I'm done with messing with you. I don't do lawyers.

But you don't recognize the first is as well. Like I said, though, I'm done with messing with you. I don't do lawyers.

May I ask why? (I recognize I may be inviting a critique of my profession. I won't respond).

May I ask why? (I recognize I may be inviting a critique of my profession. I won't respond).

My guess would be that Zaxon feels that lawyers basically flip-flop their arguments depending on who's paying them.

(I have some insights into him, having debated him for about a hundred posts on the merits of having state gun licenses operate like driver's licenses.)

Personally? Any litigation that limits anyone's rights for no obvious reason is bad. Prohibition and gun control, the drug wars and Poll taxes are all the same to me.

You know, if you actually look at the logistics of the matter, it's impossible to say that the 2nd amendment obstructs the ownership of arms in any way given the definition they used of militia. Now, I suppose you could argue that it allows the restriction of whether or not open and concealed carry are to be allowed, but you could not really argue the matter of ownership itself. Given that, if we assume that the purpose of the 2nd amendment is even only to guard against Federal tyranny and not State tyranny, the best defence would be for every man to own a gun and ammunition for that weapon. Some would say to keep said arms in a single location to be distributed at the behest of some jacked up beauraucrat, but that would mean that the weapons were cached at a known point, in which case the government could conceviably destroy/capture the majority of stockpiles before any action against their tyranny could be put into action. Thusly the only way to ensure the security of said weapons would to be for the individual militia members to take care of them. The militia members being any male citizen between the ages of 18 and 45. If the ERA had been passed that would include women as well, if it doesn't already. I'm not quite sure.

May I ask why? (I recognize I may be inviting a critique of my profession. I won't respond).

There can be nothing said about what type of person is attracted to the profession--people from all races, cultures, backgrounds, ideals, etc. So, nothing against the actual people that get into it. Just wanted to get that out first.

I believe that lawyers are the reason everything is so expensive, restrictive, and awful about this country. Too many people suing for things they really didn't work for, nor deserve--this covers all portions of the economic spectrum, rich and poor.

Personal responsibility is no longer an ideal held by Americans--we're all victims, with victim mentalities (handily fed by some lawyers--not all). We're owed everything it seems. It's just steamrolling the way for the nanny-state, where the government decides everything for us. It goes completely against what this country was founded on--the ability to go out, find your way, and live your life how you see fit, while not taking anything away from someone else. And proving your irresponsible before being punished.

Now, it's, "You can't say that." "You can't do that." "Hey, I did X, got hurt, so it's Y's fault!"

Yes, it's a generalization. It's just too dang political when you get into the upper echelons. Supreme court justices too scared to do anything--too scared to actually fight for the laws that were written, or ones that actually legislate from the bench.

We have too many laws, and not enough enforcement of the ones that are actually important. And the lawyers are the ones that pushed for many of them.

If someone kills a person because that person is gay, they should be tried like any other murderer. No extra "hate" laws. Then again, I'm one of those that support harsher punishments then are being meted out today. I do believe if you take a person's life intentionally, beyond self-defense, or the defense of someone else, your life is now forfeit.

Sorry this is so long-winded.

You can respond if you like, but I don't really see what good it will do. To me, lawyers and certain higher level judges are parts of the machine that is ripping the ideals of this country apart.

My guess would be that Zaxon feels that lawyers basically flip-flop their arguments depending on who's paying them.


Yeah, I didn't want to get into that one in my statement, it was already too large to begin with.


(I have some insights into him, having debated him for about a hundred posts on the merits of having state gun licenses operate like driver's licenses.)


:D

snip
Sorry this is so long-winded.

You can respond if you like, but I don't really see what good it will do. To me, lawyers and certain higher level judges are parts of the machine that is ripping the ideals of this country apart.

No worries. I was just curious.

Obviously I disagree with much of what you say, but I don't disagree with all. No need to get into that here.

Thanks for answering my question.

BTW, imho, law students are worse to debate with than lawyers. ;)

No worries. I was just curious.

Obviously I disagree with much of what you say, but I don't disagree with all. No need to get into that here.

Thanks for answering my question.

BTW, imho, law students are worse to debate with than lawyers. ;)

That's why student was before lawyer in my question. :D

Forgive my earlier generalization about California--you are a very good debater, with plenty of skill and experience at your disposal. I'm guessing my subconscious was picking up on the lawyer vibe, and tripping some alarms. Nothing against you personally.

In the last couple of pages, we appear to have some court of appeal decisions upholding the right of the individual to bear arms, but mostly ones saying that the 2A reserves arms for militias.

So, how come yall still have guns?

In the last couple of pages, we appear to have some court of appeal decisions upholding the right of the individual to bear arms, but mostly ones saying that the 2A reserves arms for militias.

So, how come yall still have guns?

For the same reason you can still post an opinion. :D

That's why student was before lawyer in my question. :D

Forgive my earlier generalization about California--you are a very good debater, with plenty of skill and experience at your disposal. I'm guessing my subconscious was picking up on the lawyer vibe, and tripping some alarms. Nothing against you personally.

Thank you for the compliment.

You also are an apt advocate. I know I am easily frustrated and sometimes let over-influence snippy posts. I have nonetheless enjoyed our exchange.

No offense was taken, but I appreciate the assurances.

If nothing else, the long, dry recitation of cases probably gave off a bit a lawyer vibe. :D

For the same reason you can still post an opinion. :D

What's that reason?

What's that reason?

Once any liberty is denied, all liberties will be.

There are rules and laws, certainly. No one wants the tabloids to replace the New York Times, just as no one wants folks walking around Times Square with shotguns over their shoulders.

But at the end of the day, the rights of the individual are intact.

In the last couple of pages, we appear to have some court of appeal decisions upholding the right of the individual to bear arms, but mostly ones saying that the 2A reserves arms for militias.

So, how come yall still have guns?
Because none of those decisions are from SCOTUS, which means in the end they mean absolutely nothing until a case directly concerning the matter goes to SCOTUS and they render a decision. If they render it in favor of the collectivist stance then those cases concerning said collectivist stance will remain valid. Otherwise they will for all intents and purposes be null and void while the individualist stance court cases shall remain valid.

Government should never be allowed to regulate gun ownership. Next thing you know some ultra leftist Marxist wench like Hillary Clinton is president and tries to ban guns, we can't have that.

Because none of those decisions are from SCOTUS, which means in the end they mean absolutely nothing until a case directly concerning the matter goes to SCOTUS and they render a decision. If they render it in favor of the collectivist stance then those cases concerning said collectivist stance will remain valid. Otherwise they will for all intents and purposes be null and void while the individualist stance court cases shall remain valid.

This is a very odd view of the federal court system. SCOTUS takes only a handful of cases each year. The US Court of Appeal for each circuit are the definitive judicial body for that circuit, unless overruled by SCOTUS. US Courts of Appeal decisions are extremely authoritative and often decisive.

I have presented SCOTUS cases on the matter. I recognize you disagree that they control.

I would note that the NRA and other pro-gun groups have filed petitions to the Supreme Court in almost every case in which their view has lost. SCOTUS has denied review -- allowing the prevailing Courts of Appeal view to stand. At the very least, the inference is that the Courts of Appeal are right.

And BTW there are still no cases in which a gun regulation, ban, restriction, etc. has been struck down as violating the Second Amendment. Even the few cases that your side contends contain dicta supporting an individual rights view nonetheless found the gun law constitutional.

In that case I propose a new movement across the US - since pointy sticks are in every sense Arms, get everyone's guns off them and give them a pointy stick for each gun they hand in.

Keep govt out of arms control for law-abiding citizens.
Regulate criminals all you want.

:sniper:
"...The right to keep and bare arms shall not be infringed."

In the last couple of pages, we appear to have some court of appeal decisions upholding the right of the individual to bear arms, but mostly ones saying that the 2A reserves arms for militias.

So, how come yall still have guns?

Actually "most" of them refer to felons, violent misdemeanors, and restraining orders. Only a few state "collective right"

I find these quotes telling on the political nature of the decisions:

United States v. Kozerski, 518 F. Supp. 1082 (D.N.H. 1981), aff?d, 740 F.2d 952 (1st Cir. 1984), cert. denied, 469 U.S. 842 (1984):
the Second Amendment is not a grant of a right

United States v. Toner, 728 F.2d 115 (2d Cir. 1984):
the right to possess a gun is clearly not a fundamental right

Eckert v. City of Philadelphia, 477 F.2d 610 (3d Cir.), cert. denied, 414 U.S. 839 (1973):
The court noted that appellant?s theory that he is entitled to bear arms under the Second Amendment ?is completely wrong? and that ?t must be remembered that the right to keep and bear arms is not a right given by the United States Constitution.?

Stevens v. United States, 440 F.2d 144 (6th Cir. 1971):
?[s]ince the Second Amendment right ?to keep and bear Arms? applies only to the right of the State to maintain a militia and not to the individual?s right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm

CT has argued that the COMPLETE wording of the 2nd must me used. The majority of cases cited only use partial quotes to justify thier decisions.

Precedent has also been introduced. Besides "Miller", whose interpretation is debated, many of these cases cite use reference back and forth to justify themselves. "Precedent" basically means " whatever we can use to justify our opinions". The Alien & Sedition Acts also had "precedent".

While I think that CT seems to be a basically decent person (misguided but decent) I will agree w/ Zaxon on his opinion on Lawyers etc. They have a vested interest in pushing for new laws and regulations, not just for firearms, to keep the cases going and lining thier pocketbooks. Think how much they would have lost (will lose) in fees if the "protection of lawful commerce in firearms act" would have passed and how much they stand to lose in legal fees if people are able to defend themselves. The more they can keep these fights going, the more they make.

IMO SCOTUS has not made a ruling due to the fact of the shitstorm that would follow after it being decided that nearly every law was illegal or that the Bill of Rights can be arbitrarily dismissed.

And BTW there are still no cases in which a gun regulation, ban, restriction, etc. has been struck down as violating the Second Amendment. Even the few cases that your side contends contain dicta supporting an individual rights view nonetheless found the gun law constitutional.

Arguing that the government doesn't find itself in voilation of infringing on the rights of the people is humorous at best. :(

Originally Posted by Markreich
Arguing that the government doesn't find itself in voilation of infringing on the rights of the people is humorous at best.

Well, he's actually arguing that one branch of the government, the judiciary, has found the other two not guilty of infringing on the rights of the people. Although they all fall under the heading "government" they are so seperate from one another that they don't have the tendency towards corruption that your post implies. This is why we have seperation of powers and the system of checks and balances.

Well, he's actually arguing that one branch of the government, the judiciary, has found the other two not guilty of infringing on the rights of the people. Although they all fall under the heading "government" they are so seperate from one another that they don't have the tendency towards corruption that your post implies. This is why we have seperation of powers and the system of checks and balances.

Ironic, since the left keeps arguing that the nation is going Imperialist because the GOP "controls all three".

Seriously: I know about seperation of powers, etc. But: deals are made.

Apparently, the checks and balances failed those times. The truth is what the Framers themselves wrote, not what jurists 200 years later conveniently invent.

Actually "most" of them refer to felons, violent misdemeanors, and restraining orders. Only a few state "collective right"

You seem to think this an important point. Why?

In each case, a party was attacking the constitutionality of the law in question on the basis it violated the Second Amendment. In each case, the court has said the gun-related law in question is constitutional. In almost every case, I cited the court either expressly stated that the right to bear arms (a) only protected the state militia and/or was not an individual right.


I find these quotes telling on the political nature of the decisions:

United States v. Kozerski, 518 F. Supp. 1082 (D.N.H. 1981), aff?d, 740 F.2d 952 (1st Cir. 1984), cert. denied, 469 U.S. 842 (1984):
the Second Amendment is not a grant of a right

United States v. Toner, 728 F.2d 115 (2d Cir. 1984):
the right to possess a gun is clearly not a fundamental right

Eckert v. City of Philadelphia, 477 F.2d 610 (3d Cir.), cert. denied, 414 U.S. 839 (1973):
The court noted that appellant?s theory that he is entitled to bear arms under the Second Amendment ?is completely wrong? and that ?t must be remembered that the right to keep and bear arms is not a right given by the United States Constitution.?

Stevens v. United States, 440 F.2d 144 (6th Cir. 1971):
?[s]ince the Second Amendment right ?to keep and bear Arms? applies only to the right of the State to maintain a militia and not to the individual?s right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.

So, cases that flatly contradict your view must be simply political. Convenient. Any bases whatsoever for that assertion?

CT has argued that the COMPLETE wording of the 2nd must me used. The majority of cases cited only use partial quotes to justify thier decisions.

Precedent has also been introduced. Besides "Miller", whose interpretation is debated, many of these cases cite use reference back and forth to justify themselves. "Precedent" basically means " whatever we can use to justify our opinions". The Alien & Sedition Acts also had "precedent".

If you will note, the courts (with 2 or 3 exceptions out of the over 60 cases I cited) do not "debate" the meaning of Miller. (And I'll come back to your contentions about Miller.)

Do you understand what precedent is?

Generally, a court relies on decisions it or a higher court has made before. That is the principle of stare decisis. A court may also look to decisions of other courts of equal authority, such as another Court of Appeal, as persuasive authority.

So, you will find cases in the 1930s and 1940s citing Miller and reviewing prior history and concluding the Second Amendment does not protect an individual right to bear arms. Later cases by the same court will cite those prior cases and cases from other courts that have arisen in the meantime that agree with those prior cases. If cases from other courts have contradicted the court's earlier ruling, the court will often describe why it disagrees (or sometimes decide it was wrong before and adopt a new view). Also, when the parties before it raise new cases that may or may not be relevant (such as a S.Ct. case that isn't on point but says something that might support a new view) , the court will discuss the new case and describe why it is or is not relevant.

So, yes. They case do tend to refer to each other. And the more recent you go, the more they cite the line of precedent already established.

Ironically, "activist" judges decried by conservatives are often described as those that do not follow precedent in the manner described above.

While I think that CT seems to be a basically decent person (misguided but decent) I will agree w/ Zaxon on his opinion on Lawyers etc. They have a vested interest in pushing for new laws and regulations, not just for firearms, to keep the cases going and lining thier pocketbooks. Think how much they would have lost (will lose) in fees if the "protection of lawful commerce in firearms act" would have passed and how much they stand to lose in legal fees if people are able to defend themselves. The more they can keep these fights going, the more they make.

I appreciate that you think I "seem to be a basically decent person (misguided but decent)." I feel the same. No, I think you are a decent person, clearly a concerned citizen, and an articulate advocate for your side.

I hope you have the same opinion of the many, many lawyers that work for the gun lobby. And the lawyers that wrote the law reviews you cite.

Given that prosecutors and defense attorneys generally make the least money of most lawyers, its interesting that you think there is a financial incentive in favor of gun control.


IMO SCOTUS has not made a ruling due to the fact of the shitstorm that would follow after it being decided that nearly every law was illegal or that the Bill of Rights can be arbitrarily dismissed.

Again, this is convenient. The reason there are no SCOTUS cases supporting your view is the Court has been scared for the last 100+ years. The same Court that has made many, many controversial decisions. The same Court that overturned provisions of the Brady Bill (not, curiously on 2nd Amendment grounds, but on states rights and the limits of the Commerce Clause). Go figure.

Kecibukia, I meant to and should have walked away from this, but I want to make a few things clear -- particularly about our exchange of case citations.

I cited 67 cases. I had read 52 of them myself prior to this debate. I reviewed 6 more before posting.

Of the 67 cases, you responded with an alternative interpretation to 18. (This counts a few where you did not dispute that the case said what I said, but stated the case merely cited Miller or was wrongly decided).

Not counting your most recent post (which was cases you disagree with), you cited 27 cases. As noted, 18 of these were cases I had cited.

As I repeat below, I'll make a challenge: Pick any 5 of those 18 and I'll quote the case itself to show your interpretation is erroneous.

I've read the majority also. I still would like you to answer where it says "state militia" in Miller.

I'm not sure what your point is. Are you saying that Miller does not expressly state that the Second Amendment protects the right of to bear arms of "state militia[s]" as opposed to the right to bear arms as part of some other militia? Is it simply that the phrase "state milita" as such does not appear in the case? I

I have never misquoted Miller as using the phrase "state militia." It does, however, clearly state that the Second Amendment must be intrepreted in light of its purpose of assuring the continuation and effectiveness of militias maintained and trained by the states.

Here is a direct quote (with emphasis added) of almost the entire text of United States v. Miller, 307 U.S. 174 (1939):

An indictment in the District Court Western District Arkansas, charged that Jack Miller and Frank Layton 'did unlawfully, knowingly, wilfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length

...

The District Court held that section 11 of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.

...

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
The Constitution as originally adopted granted to the Congress power-- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, s 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

[I]The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. ...

[Discussion of history of militias in the US and discussion specific state provisions for militias.]

Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.

...

We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

Reversed and remanded.

Translation: It's OK for you to cut and paste from a biased source but not anyone else.

My original complaint about cutting and pasting had to do with others prior to you that were making long, unattributed posts that seemed like they were original arguments but were not. Unfortunately, I did initially tar you with the same brush, but you did respond to a set of original arguments of mine with a long unattributed post from another source. You have never admitted it, but I correctly identified more than one of your posts as coming from the NRA-ILA.
The first post I questioned came word-for-word from http://www.nraila.org/media/misc/fables.html. Right?
Your list of cases is a modified version of http://www.nraila.org/Issues/FactSheets/Read.aspx?ID=52 Right?

I admitted that I used the LCAV caselist as a basis for my list. I have not simply cut and pasted, however. I read 58 of the 67 cases I cited prior to my postings.

Up until the list of cases I presented, I did not rely on LCAV at all.

With the list of cases, I used their list as a handy basis for creating the lengthy post. I have a personal summary of most of the cases that I did not want to use because it is much longer.

By finally stating where you got your information from, you've shown your own indefensible biases against firearms and individual rights. You might have well as just cited HCI.

Looking at the LCAV website, it has more spin-doctoring on it than HCI, except it's filled w/ boilerplate and legalese to make it sound more official.

1. As explained above, I have not been getting my "information from" LCAV.

2. This combines an Ad Hominem attack with Guilt By Association. Both are fallacies. Even if true, my arguments are not wrong simply because you can associate me with someone else who makes statements that you think are wrong. As it happens, I have not read the entire LCAV website, I am not associated with them, and I do not necessarily agree with their views. In previously researching the Second Amendment issue, I discovered they had a list of relevant cases with fairly accurate descriptions. As I have said, I independently read the cases. I edited the LCAV descriptions where I thought it was needed.

1. You present LCAV's and your OPINIONS on many court cases. Many of which also have nothing to do w/ individual vs. state rights. I have repeatedly presented alternate opinions and cases. The INTERPRETATIONS of the cases you present are as "authoritative" as mine.

As I have noted, you have only disputed by interpretations of 18 of 67 cases -- but that is not a major point.

I'll make a challenge: Pick any 5 of those 18 and I'll quote the case itself to show your interpretation is erroneous.

2. Your "alternate interpretations" of many of these cases fail to show a lack of the individuals right over a collective right. Most of the cases you presented had little or nothing to do w/ it except for felons or those illegally obtaining arms and then being prosecuted.

Let's see. There is a law saying a someone can't have a gun, one must comply with certain restrictions in obtaining guns, or certian arms are illegal. The law is challenged as unconstitutional because of the Second Amendment. A CoA says nope, because the 2nd Amendment does not grant an individual right, grants only a collective right, or protects only well-regulated state militias. How does that "fail to show a lack of the individual's right over a collective right"?

3. And they are more and more being accepted.

What is your evidence for this? Even accepting your interpretations of the cases -- which I definitely do not -- you've cited 1 CoA case from 1999, 1 Dct case from 1989, a few cases from the early 70's and 1 case from 1942. Ignoring that you have some of these cases completely backward, you've hardly established a trend in your favor.

I'll make a challenge: Pick any 5 of those 18 and I'll quote the case itself to show your interpretation is erroneous.
I won't do 5, but I will do one. Find a problem with the individualist interpretations of the Dred Scott case. You can't.

I won't do 5, but I will do one. Find a problem with the individualist interpretations of the Dred Scott case. You can't.

This was not among the 18 and I still will not answer that travesty you posted earlier.

The quick and dirty answer, however, is that no issue regarding guns, gun laws, or the Second Amendment was before the Court and it therefore decided no such issue. You are taking a single sentence out-of-context from a fifty-five page majority opinion. That is simply not how precedent works.

You are also simply wrong about the effect of the 14th Amendment. I have neither the time or the desire to teach the law of incorporation. It is Con Law 101. The Second Amendment has never been incorporated through the 14th to apply to the states.

Finally, I'd love to see you march into a court and rely on Dred Scott. Once the court got over the horror, you'd be laughed at. It is one of, if not the, most wrongly decided case in US history.

The District Court held that section 11 of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.

...

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
The Constitution as originally adopted granted to the Congress power-- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, s 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. ...

[Discussion of history of militias in the US and discussion specific state provisions for militias.]

Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.

...

We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

Reversed and remanded.[/INDENT]





"In the absence of any evidence" is a telling quote in Miller. There was no defense present. The only side that was heard was the states. Even w/ that, the judge only choose to debate the use of a short-barrelled shotgun. It is stated"s not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense". This is erroneos in that the US Military DID regularly use shortbarreled shotguns and had issued over 30,000 in WWII.

If you look at the history of the weapon, it was commonly used by gangsters which is why the laws were created. It is similar to the arguements used today to ban guns that terrorists may use.

This is the "precedent" that is used to ban any gun the judge doesn't like from handguns to "Assault Weapons" to machine guns. What exactly do these courts think an "appropriate" Militia weapon would be?

A section of the history you cut" The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

It's also telling that the the historical references used to justify the ruling included NONE from the Founding Fathers.

So, in summary, guns considered a "gangsters weapon" at the time were banned, that ban was dismissed in an appeals court, but upheld in the Supreme Court which was not presented w/ any defense. This ruling is now set as "precedent" to dismiss any weapon the courts don't like. That "precendent" has been interpreted as a "collective right" in other court cases which are then also used as "precedent". "Activist" judges provide their own precendents for the cases they oversee.

So, "arms supplied by themselves" to serve in the Militia which is every ablebodied male 17-45 which the State is then supposed to appoint officers to and train.

I freely admit my arguements are politically motivated as well. I am motivated to see that the Rights of the Individual are not superceded by a Gov't that wishes to dominate its citizenry and make them "subjects". As for the lawyers defending the 2nd, I suspect them as well.

I'll get to the "five" in a bit.

Here's 5:

United States v. Miller, 307 U.S. 174 (1939):


United States v. Lippman, No. 03-3275, 2004 U.S. App. LEXIS 10432 (8th Cir. May 27, 2004) :


United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003):

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002):

Gardner v. Vespia, 252 F.3d 500 (1st Cir. 2001):

United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), cert. denied, 118 S.Ct. 446 (1997):

My main question, Miller says it must be a military weapon, why, even in states that define the citizenry as the militia, do most of the others then support bans on military weapons?

Of course your going to show me up, you're a lawyer and that's what you're trained to do. You use legal examples to state your case. I'm a historian, I use historical examples to state mine. Can you show me any historical examples that the FF meant for the 2nd to be a "collective right"?

What do you feel is an "appropriate" firearm the gov't should "allow" us to own ? Either personally and/or based on the regularly argued "Militia purpose".


BTW, several of the reviews I provided links to had quite a few more than the 18 I directly cited. Look at :http://www.davekopel.com/2A/LawRev/35FinalPartOne.htm for 35 others.

<SIGH>

I thought the terms of the challenge were very clear. Apparently you misunderstood. Here was the challenge:


I cited 67 cases. I had read 52 of them myself prior to this debate. I reviewed 6 more before posting.

Of the 67 cases, you responded with an alternative interpretation to 18. (This counts a few where you did not dispute that the case said what I said, but stated the case merely cited Miller or was wrongly decided).

Not counting your most recent post (which was cases you disagree with), you cited 27 cases. As noted, 18 of these were cases I had cited.

As I repeat below, I'll make a challenge: Pick any 5 of those 18 and I'll quote the case itself to show your interpretation is erroneous.

. . .

As I have noted, you have only disputed my interpretations of 18 of 67 cases -- but that is not a major point.

I'll make a challenge: Pick any 5 of those 18 and I'll quote the case itself to show your interpretation is erroneous.

So, you were to pick 5 cases of the 18 case on which we had each taken a position.

Here is your response:

Here's 5:

United States v. Miller, 307 U.S. 174 (1939):

United States v. Lippman, No. 03-3275, 2004 U.S. App. LEXIS 10432 (8th Cir. May 27, 2004) :

United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003):

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002):

Gardner v. Vespia, 252 F.3d 500 (1st Cir. 2001):

United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), cert. denied, 118 S.Ct. 446 (1997):

That is 6 cases.

Of the 6, you have only taken a position on Miller. You never posted any interpretation of the other 5 you picked.

"This year will go down in history! For the first time, a civilized nation has full gun registration! Our streets will be safer, our police more efficient, and the world will follow our lead into the future!" - Adolf Hitler

I have never misquoted Miller as using the phrase "state militia." It does, however, clearly state that the Second Amendment must be intrepreted in light of its purpose of assuring the continuation and effectiveness of militias maintained and trained by the states.



Actually you did:

"BTW, you can "interpret" this case however you like but it flat out says the purpose of the Second Amendment was for the state militia and it should be interpreted accordingly."

At least you admit that the courts are "interpreting" Miller as they see fit.

United States v. Miller, 307 U.S. 174 (1939):

States Militia weapons need to be useful to Military purposes

United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003):

Bans another ?non-militia? weapon by referencing Silviera V Lockyer which references Miller. Machine Guns aren?t used by the military?

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002):

States ?Assault Weapons? are not covered under the 2nd due to Miller?s ?implicit rejection of the traditional individual rights position.?

Also ?compelled to reaffirm the collective rights view? it adopted in the case Hickman v. Block? which references Miller.

There is no ?implicit? rejection of ?individual rights? in Miller.

This is merely another case referencing back to others again and again to claim ?precedence? thereby justifying their own biases.

Gardner v. Vespia, 252 F.3d 500 (1st Cir. 2001):

Once again referencing Miller to ban handguns. Apparently they aren?t used by the military either.

United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), cert. denied, 118 S.Ct. 446 (1997):

Same as the above.

You seem to think this an important point. Why?


So, cases that flatly contradict your view must be simply political. Convenient. Any bases whatsoever for that assertion?





It's important in that I in now way stated that the 2nd was an ABSOLUTE right but an individual. Just as you can't yell "fire" under the 1st.

It's also "convienent" how you completely ignored the meat of the statements from the cases:

1. The Bill of Rights does not imply rights.

2. the Right is not a Fundamental Right (the FF seemed to disagree).

3. The Right of the People to Keep and Bear arms is not a right to keep and bear arms.

4. The Right of the People to keep and bear arms means the state can keep a militia but the people don't have a right to keep and bear arms.

And these are from the people that are alledgedly defending our rights in court. Scary, isn't it. Why do these people fear an armed citizenry so much when the FF's considered it one of the ultimate in personal freedoms?

Sorry for a socialist swed to barge into a America question, but have you consider the economic factors?

For example if it was ok to start your own militia and have you guns you wanted, the richest 10 % of the people could get really really cool weapons like tanks, fighter jets and take over the goverment evry time they wanted. While the poorest 10 % could mainly only afford kalachnikovs and some bazzokas and of course create alot of problem, but still be squased by the goverment, ecpecielly if "the rich militia" helped the goverment. So if you like the militia idea, but also is a true democrat that think that evryone, not only the rich should have the possibility to affect the goverment, you should socialize the issue, so that evryone gets a tank from the goverment.

Sorry for a socialist swed to barge into a America question, but have you consider the economic factors?

For example if it was ok to start your own militia and have you guns you wanted, the richest 10 % of the people could get really really cool weapons like tanks, fighter jets and take over the goverment evry time they wanted. While the poorest 10 % could mainly only afford kalachnikovs and some bazzokas and of course create alot of problem, but still be squased by the goverment, ecpecielly if "the rich militia" helped the goverment. So if you like the militia idea, but also is a true democrat that think that evryone, not only the rich should have the possibility to affect the goverment, you should socialize the issue, so that evryone gets a tank from the goverment.

Let me get this straight:

You want the government to provide the weapons to defend against the government?

Hoo boy. Go back to smokin' whatever it was....

1. The Bill of Rights does not imply rights.

Correct. It is an enumeration of rights. Hamilton viewed this as a dangerous enumeration, as it might imply the presence or absence of rights. The other FFs believed that these were all "natural" rights, and hence would exist even if the document did not contain them.

2. the Right is not a Fundamental Right (the FF seemed to disagree).

Wrong. The Founding Fathers all believed that it was one of the fundamental, and individual rights.

3. The Right of the People to Keep and Bear arms is not a right to keep and bear arms.

Wrong. All of the Founding Fathers believed it to be an individual right - not just to defend against tyranny, but also as a means of self-defense.

4. The Right of the People to keep and bear arms means the state can keep a militia but the people don't have a right to keep and bear arms.

Wrong. The subject "the people" means the same thing throughout the Constitution. The People have Rights - the States and the Federal Government have Powers. If "the People" actually means "the state", then we don't have any rights under the Constitution whatsoever.

"This year will go down in history! For the first time, a civilized nation has full gun registration! Our streets will be safer, our police more efficient, and the world will follow our lead into the future!" - Adolf Hitler

Adolf hitler also ate, slept and was a racist bastard. I don't see the connection.

Adolf hitler also ate, slept and was a racist bastard. I don't see the connection.

Hitler wrote in his personal notes that the intent of gun registration was to disarm his opponents so that they could more easily be rounded up - especially the Jews.

He said it was for safety reasons. Gun confiscation programs historically have been precursors to rampaging tyranny and wholesale human rights abuse.

What's interesting is that Senator Metzenbaum introduced Hitler's gun confiscation act - translated from the original German, word for word, as a piece of legislation intended to ban the possession of firearms. It didn't pass, but I hope you can see the irony in his attempt (as a small hint, the Senator is Jewish).

Wrong.....

Of course they're wrong WL. That was my point. I was referring back to four cases I had quoted in post #560 that had used statements to that effect. CT either missed or ignored the statements w/i to comment that he felt I believe any case "I disagree w/ must be political. I just restated what the judges said to make my point again.

While the upper levels of the Judicial Branch feel it's "clear" that the 2nd amendment applies to the State and not to individuals while relying almost exclusively on one case to provide "precedence" that:
1. had no presenting defenders
2. is based soley on contemporary biases against one type of firearm
3. is innaccurate as to the military use of that firearm
4. contains only a small number of historical references

This one case has been used to provide carte blanch to uphold bans on a wide range of firearms from pistols to machine guns while claiming that it absolutely shows that States control the idea of militia's going so far as to claim individuals can not even bring 2nd amendment cases to court.

The States, however, apparently do not see the issue so clear. Why is that 38 of them have passed Carry/Concealed Carry laws,(many of them reciprocating) one of the highest examples of the "Right of the People to Keep and Bear Arms? The Legislatures and/or Executives of these states show then that it is the right of the individual.

The Federal (and once again many state) legislatures also seem to have issue w/ the Judiciary's handling of its bias against firearms. A law to protect the firearms industry from being litigated into bankrupcy through junk lawsuits passed overwhelmingly in the House but was sabotaged in the Senate by a small majority. Many states have already passed such laws.

The People, those whose rights the Judiciary are supposed to uphold, also seem to have differing opinions. In the latest elections, more Pro-Rights politicans were elected into the House and Senate, while a number of those who went against the interests of the people, most notably Sen. Daschle, were removed from office. This was in no small part due to these politicians' actions against the Rights of the People.

I don't care what your law professors taught you. If one right is "incorporated" by the 14th Amendment, all of them are. There is still some legal doubt as to the validity of the 14th Amendment itself, but while it is recognized as part of the Constitution...

Hitler wrote in his personal notes that the intent of gun registration was to disarm his opponents so that they could more easily be rounded up - especially the Jews.

He said it was for safety reasons. Gun confiscation programs historically have been precursors to rampaging tyranny and wholesale human rights abuse.

What's interesting is that Senator Metzenbaum introduced Hitler's gun confiscation act - translated from the original German, word for word, as a piece of legislation intended to ban the possession of firearms. It didn't pass, but I hope you can see the irony in his attempt (as a small hint, the Senator is Jewish).

"A racist bastard once took people's guns off them so he could fuck them up" is no more an argument for not taking guns away than "A racist bastard once went to sleep" is an argument for not sleeping.

In the UK, different sorts of guns have been confiscated on different occasions over the last hundred years. And there hasn't been any rampaging tyranny or wholesale human rights abuse.

Pick a senator or congressman that supports gun control. Do you think they also support fascist social policy, genocide, etc?

In the UK, different sorts of guns have been confiscated on different occasions over the last hundred years. And there hasn't been any rampaging tyranny or wholesale human rights abuse.

Except for the fact that crime is rising in the UK and is dropping in the US where I think about 33 states allow some type of relatively easy concealed carry.

In the UK, different sorts of guns have been confiscated on different occasions over the last hundred years. And there hasn't been any rampaging tyranny or wholesale human rights abuse.

Pick a senator or congressman that supports gun control. Do you think they also support fascist social policy, genocide, etc?

Yes, just rampaging violent crime involving personal confrontation (which is now much safer from a felon's point of view) in the UK.

While I have a plummeting violent crime rate here in Virginia, where we are all allowed to carry concealed.

Not a Senator, but Janet Reno was big on trying to confiscate firearms. She also supported policies and personnel who shot unarmed women whose only crime was holding a baby. Or who used military vehicles to bulldoze and set fire to a whole compound in order to get one man who daily made trips to the Waco post office. Hmm... Not fascist you say?

In the UK, different sorts of guns have been confiscated on different occasions over the last hundred years. And there hasn't been any rampaging tyranny or wholesale human rights abuse.

Except for the fact that crime is rising in the UK and is dropping in the US where I think about 33 states allow some type of relatively easy concealed carry.

Crime by criminals and "rampaging tyranny or wholesale human rights abuse" by a government are not even faintly the same thing.

If you want to have an argument about crime prevention go ahead, but i was discussing governments, tyranny and gun confiscation.

"A racist bastard once took people's guns off them so he could fuck them up" is no more an argument for not taking guns away than "A racist bastard once went to sleep" is an argument for not sleeping.

In the UK, different sorts of guns have been confiscated on different occasions over the last hundred years. And there hasn't been any rampaging tyranny or wholesale human rights abuse.

Pick a senator or congressman that supports gun control. Do you think they also support fascist social policy, genocide, etc?

No, but your crime rate is way up. And knife violence is no where *near* what it is in the US. Guns are a tool, a good. If you ban guns, I want your big screen TV and Range Rover, too.

America had to SHIP you guns in WW2, due to England not being able to arm itself should the invasion come.

Crime by criminals and "rampaging tyranny or wholesale human rights abuse" by a government are not even faintly the same thing.

If you want to have an argument about crime prevention go ahead, but i was discussing governments, tyranny and gun confiscation.

I see. A man breaks into your house and ties you up. He eats your food and puts your plasma TV in his van. He takes all of your money. He keeps you for a few days, feeding you just enough to stay alive, and constantly raping you in every way imaginable. Ok, that's not human rights abuse - that's not slavery.

Slavery: A condition in which individuals are owned by others, who control where they live, at what they work, with how much subsistence they are provided, and [in which] sexual exploitation is permissible.

Let me get this straight:

You want the government to provide the weapons to defend against the government?

Hoo boy. Go back to smokin' whatever it was....

Nope I don't think it is a good idea in a democracy that alot of people is running around with guns, to have a possibility to overthrow the goverment with guns. But if you think it should be a possibility to allow miltia for overthrow the goverment or defend against outside threath, you have to realise that youn need really good weapons if it should be feasible, and who can it that case afforde them? I think only a small minority that in effect will control the country. So either 1. You trust the goverment and have a military that represent the people 2. You allow the people run around with handguns and maybee even automatic riffle but no tanks, so the people may think they can stand up to the goverment with weapons, but in reality don't have it. 3 You allow people real chance to overthrow the goverment with tanks and stuff, but then as I sad only the rich will afford it. 4 You make it democratic by giving evryone a possibility to have really good when. Then both 3 and 4 is very unlikly and 1 the most preferb one, because you don't get the other problems that a society filled with guns have.

A small band of poorly armed revolutionaries CAN seize power if they act swiftly and decapitate the old leadership. Just look at the Bolshevik Revolution, which was actually just a surprise coup d'tat.

I see. A man breaks into your house and ties you up. He eats your food and puts your plasma TV in his van. He takes all of your money. He keeps you for a few days, feeding you just enough to stay alive, and constantly raping you in every way imaginable. Ok, that's not human rights abuse - that's not slavery.

Slavery: A condition in which individuals are owned by others, who control where they live, at what they work, with how much subsistence they are provided, and [in which] sexual exploitation is permissible.

Crime by criminals is crime by criminals.
Human rights abuse by a government is human rights abuse by a government.

The 2 arguments are not related. Does it say in 2A that you have RBKA to defend yorselves against criminals or the government?

No, but your crime rate is way up. And knife violence is no where *near* what it is in the US. Guns are a tool, a good. If you ban guns, I want your big screen TV and Range Rover, too.

America had to SHIP you guns in WW2, due to England not being able to arm itself should the invasion come.

But did UK gun confiscations prefigure rampaging tyranny by the government? So is gun confiscation always a precursor to rampaging tyranny by the government?

If we're talking about crime, do criminals carry guns? And if they do, would I rather have a gunfight in my house or claim on my insurance? And if they don't and they'll run away as soon as i get my six shooter out of the drawer, they'll be just as unhappy about my cricket bat in their face.

Crime by criminals is crime by criminals.
Human rights abuse by a government is human rights abuse by a government.

The 2 arguments are not related. Does it say in 2A that you have RBKA to defend yorselves against criminals or the government?

Both. Guns are a protection against both petty tyrants (criminals) and major ones (politicians)- not that there's much difference between the former and the latter. The one robs you with bullets, and the other with ballots. I don't trust politicians and bureaucrats, which together make up government, with a monopoly on force. I don't even trust them with their offices, which is why I vote against many incumbents, if not most.

Both. Guns are a protection against both petty tyrants (criminals) and major ones (politicians)- not that there's much difference between the former and the latter. The one robs you with bullets, and the other with ballots. I don't trust politicians and bureaucrats, which together make up government, with a monopoly on force. I don't even trust them with their offices, which is why I vote against many incumbents, if not most.

It may be true that guns protect against criminals, but is that what the 2A says? or does it talk about militias and democracy and so on?

And if you believe that your politicians are thieves, why don't you run against them?

But did UK gun confiscations prefigure rampaging tyranny by the government? So is gun confiscation always a precursor to rampaging tyranny by the government?

If we're talking about crime, do criminals carry guns? And if they do, would I rather have a gunfight in my house or claim on my insurance? And if they don't and they'll run away as soon as i get my six shooter out of the drawer, they'll be just as unhappy about my cricket bat in their face.

Had Sealion gone off, heck yes!!

If the criminal is going to kill me or my loved ones anyway, I'm taking him with me.
You carry your cricket bat around with you at all times??
And, isn't it illegal to weild a club?

It may be true that guns protect against criminals, but is that what the 2A says? or does it talk about militias and democracy and so on?

And if you believe that your politicians are thieves, why don't you run against them?

Let me put it to you this way: Are advertisements in a newspaper free speach, or is it using the paper for commerce, and therefore an infringement of the 1st Amendment? :)
Things are allowed to have multiple uses, you know.

What makes you assume I haven't?

It may be true that guns protect against criminals, but is that what the 2A says? or does it talk about militias and democracy and so on?

And if you believe that your politicians are thieves, why don't you run against them?

Like I said, both. It's not an either/or proposition. They are not mutually exclusive. I'm protecting myself against a variety of scum. To me, most politicians are thieves. So are robbers. The socialist state is a Robber State. It steals the fruits of a man's labor by majority vote. I line up with the Framers and their views of things. As for running for office, I'm such a fiscal conservative and social moderate/liberal that I stand little chance of nomination in the major parties, let alone election.

I don't care what your law professors taught you. If one right is "incorporated" by the 14th Amendment, all of them are. There is still some legal doubt as to the validity of the 14th Amendment itself, but while it is recognized as part of the Constitution...


I am done debating the law. It is pointless.

But I couldn't let this slide.

1. Legal doubt about the validity of the 14th Amendment? Are you serious?

Whatever your source is must be nuts, but I'd still like to know what it is. Should be amusing.

You realize, of course, that, without the 14th Amendment, none of the provisions of the Bill of Rights imposes a limitation on the states.

2. Cute swipe at what I was taught aside, it is a simple fact. Ironically, it is conservatives that have pushed against incorporating Bill of Rights provisions through the 14th. For example, many prominent conservatives believe the establishment clause regarding religion should not apply to the states. Chief Justice Rhenquist at least used to be in this camp.

Personally, I do not think it makes a great deal of sense not to incorporate all of the provisions of the BoR. As it stands now, the provisions that have not been incorporated might still be if the question were presented, but they have not all been applied to the states.

(P.S. you can choose to disbelieve me on this. I no longer care, but you might think about looking into yourself if you think it matters.)

Ghandi managed to overthrow the oppressive British Empire with a piece of cloth and some sitting down. I think he bored it into submission, but hey, he still won.
If the Germans had been running India at the time, Ghandi would have been shot in the first five seconds. Be sides, I like my Sten Mk 3 SMG.

I believe some amendment to the US constitution gives US citizens the right to bear arms. Does that mean an M-16? Why doesn't it mean a pointy stick?

What does the amendment say?
"You have the right to bear arms, any arms, howsoever needless and destructive?"
or what? Anybody know?

It could mean a pointy stick
the thing is when this document was drafted weapons had to be loadaed through the muzzle. single shot. it's hard to know what the founding fathers would say if the saw the power of a semi auto 30-06 with an 11 round clip let alone a M-16 or say a .50 cal sniper rifle capable of ventilating one inch of solid steel @ one mile away. I do not agree with owning weapons like that at all. I am an avid hunter and find guns a very handy tool, but why do I need to own a .50 cal rifle? no crimes commited with it (so I've heard) well I can't recall any crimes commited with RDX but I bet somebody would say somthing if i started hoarding large amounts of it

Crime by criminals is crime by criminals.
Human rights abuse by a government is human rights abuse by a government.

The 2 arguments are not related. Does it say in 2A that you have RBKA to defend yorselves against criminals or the government?

Not in the 2nd Amendment. But in all their writings, the Founding Fathers (the Authors) say that the Amendments are not the limits to our rights, nor are they intended to do anything but make notice that these are SOME of our rights.

In their writings, they speak of the right to bear arms as a matter of self-defense on a personal basis.

All rights are equal, and thus should be incorporated. Also, I was simply pointing that the 14th Amendment was ratified by states that may not have been states anymore, prior to re-admission.

Crime by criminals is crime by criminals.
Human rights abuse by a government is human rights abuse by a government.
Not really, both are varying levels of human rights abuses. Same type of thing, just a different scale.

Not in the 2nd Amendment. But in all their writings, the Founding Fathers (the Authors) say that the Amendments are not the limits to our rights, nor are they intended to do anything but make notice that these are SOME of our rights.

In their writings, they speak of the right to bear arms as a matter of self-defense on a personal basis.


Although I have strongly objected to the view that the Second Amendment establishes a legal right of individuals to possess or use weapons, I agree that this is different question than whether individuals have a such a natural (or social, etc) right.

The whole point of my original argument was exactly this distinction.

Whether individuals have a non-2nd Amendment right to bear arms is separate question than if they otherwise have such a right. Also, individuals may (and do) have rights whether or not the government (or any part thereof) recognizes such right.

In a discussion of what rights we do or ought to have (or what rights the government ought to recognize) the views of the Founding Fathers are an obviously persuasive force.

(I'm not disagreeing with your post here WL. What you said just prompted me to clarify my earlier points. I also recognize you may disagree with me about the 2nd Amendment, but it does seem you recognize the distinction I've made above).

You realize, of course, that, without the 14th Amendment, none of the provisions of the Bill of Rights imposes a limitation on the states.
Wrong, the states cannot enforce laws which violate the Federal constitution.


Article VI
Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Here we see that states cannot go against any provisions in the constitution, specifically things like rights of the PEOPLE.

The 2nd amendment, in all it's glorious entirety

Article [II.]

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Off of the House of Representatives own site. It doesn't just say bear arms, it says keep and bear arms. One can pretty much assume that that means the PEOPLE, a different entity in the constitution from the STATES as evidenced here
Article [VI.]

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

and here Article [X.]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. are meant to own and carry arms.


I fail to see how the states are NOT restricted from making many of the current gun control laws.

It may be true that guns protect against criminals, but is that what the 2A says? or does it talk about militias and democracy and so on?

And if you believe that your politicians are thieves, why don't you run against them?

"The legitimate powers of government extend to such acts only as are injurious to others. "

"The strongest reason for the people to retain the right to bear arms is, as a last resort, to protect themselves against tyranny in government."
- Thomas Jefferson

Wrong, the states cannot enforce laws which violate the Federal constitution.


Here we see that states cannot go against any provisions in the constitution, specifically things like rights of the PEOPLE.

The 2nd amendment, in all it's glorious entirety



Off of the House of Representatives own site. It doesn't just say bear arms, it says keep and bear arms. One can pretty much assume that that means the PEOPLE, a different entity in the constitution from the STATES as evidenced here


and here are meant to own and carry arms.


I fail to see how the states are NOT restricted from making many of the current gun control laws.

With all due respect, you do not know what you are talking about.

I understand that this is a confusing issue. It is both counter to common wisdom about the Bill of Rights and somewhat counter-intutive. Nonetheless, the BoR did not apply to the states until the 14th Amendment was passed and not all provisions of the BoR have been incorporated through the 14th to apply to the states.

Here is an article from the NRA-ILA explaining that I am right:
http://www.nraila.org/Issues/articles/read.aspx?ID=23

In case you don't trust even the NRA on this, here are a couple of other sources:
http://www.usconstitution.net/consttop_bor.html
http://www.therant.us/staff/nsalvato/judicial_activism_undermines_the_integrity_of_the_constitution_-_1.htm
http://ap.grolier.com/article?assetid=0047310-00&templatename=/article/article.html
(You may note that the second article is a conservative screed against incorporation).

I'm not saying the BoR should not be incorporated through the 14th Amendment to apply to states. Almost all of it has been incorporated. Assuming that the 2nd Amendment protects an individual right to keep and bear arms (and I'm not re-debating that as I've made my view clear), I would agree it should be incorportated to apply to the states.

But you are simply wrong in saying the BoR applied to states in the first place.

In the first Congress in 1789, Congressman James Madison had submitted proposed amendments for the Bill of Rights. One of Madison's proposed amendments would have prohibited states from violating the rights of conscience, freedom of the press, and trial by jury in criminal cases. The House passed Madison's proposed amendment. But the Senate rejected it because all the states already had their own bills of rights.

In 1833, the Supreme Court addressed the issue and determined the amendments of the Bill of Rights, applied only to the national government and not to the states. Barron v. Baltimore, 7 Peters 243 (1833). You can read the case for yourself at: http://laws.findlaw.com/us/32/243.html. It is pretty short and easy to read.

Before you go on a rant about Barron. The majority opinion was written by Chief Justice John Marsall. He was a hero of the Revolutionary War and a close friend of George Washington. At college, he was taught philosophy by James Madison. He participated in the debates over the ratification of the Constitution as a member of the Virigina legislature. Prior to becoming Chief Justice, he served as Secretary of State.

This is really a side issue. Although I'm glad to provide information on the subject, you would be better off dropping it.

I'm not saying the BoR should not be incorporated through the 14th Amendment to apply to states. Almost all of it has been incorporated. Assuming that the 2nd Amendment protects an individual right to keep and bear arms (and I'm not re-debating that as I've made my view clear), I would agree it should be incorportated to apply to the states.



So I think the statement we could agree on is that "historic" precedent says it's an individual right, "legal" precedent says it's a state right, and the "Selective Incorporation" pro & con arguements throw it up in the air.

We are trying to get the legal precedent to recognize it as an individual right.
The DOJ report states that it is.
And before any of you guys say it isn't an individual right, READ THE DAMN REPORT!!!!DOJ report. (http://www.usdoj.gov/olc/secondamendment2.htm#3)

Really, fine? You'd give up your firearms if everyone else gave up theirs? Spread the message among your brethren.

Furthermore, I personally don't think anti-gun campaign leaders campaign against guns because they are bored, or because they are looking for stuff to ban just to make you cry. I think it is because they don't think assault weapons have a productive place in the suburban home.
finally someone with some sense. at the time that amendmant was written, it was a time of uncertainty due to colonial wars that technically didnt end until the end of WWII. it was written at a time when no national army was established like around the time of WWI. really, this amendmant should be removed, or at leased rewritten to state that a person can defend themselves with reasonable, not excesive, force. after Pt Arthur, guns here in austrailia have been restricted to manual and certain semi-autos, and even then you have to have a specific purpose and a license (with strict conditions) to own them. if gun restrictions were in place, the argument of 'having a gun to defend against another person with a gun' would be thrown out the window, cos that person shouldnt have a firearm for you to defend against.

finally someone with some sense. at the time that amendmant was written, it was a time of uncertainty due to colonial wars that technically didnt end until the end of WWII. it was written at a time when no national army was established like around the time of WWI. really, this amendmant should be removed, or at leased rewritten to state that a person can defend themselves with reasonable, not excesive, force. after Pt Arthur, guns here in austrailia have been restricted to manual and certain semi-autos, and even then you have to have a specific purpose and a license (with strict conditions) to own them. if gun restrictions were in place, the argument of 'having a gun to defend against another person with a gun' would be thrown out the window, cos that person shouldnt have a firearm for you to defend against.

"Shouldn't have a firearm" is the key phrase in your entire post. Criminals will get them no matter what inane gun laws are passed. They tend not to really care about the law in the first place. The only thing gun laws do is give criminals free reign against the public.

Banning firearms in Australia has led to :

* Countrywide, homicides are up 3.2 percent.
* Assaults are up 8.6 percent.
* Amazingly, armed robberies have climbed nearly 45 percent.
* In the Australian state of Victoria, gun homicides have climbed 300 percent.
* In the 25 years before the gun bans, crime in Australia had been dropping steadily.
* There has been a reported "dramatic increase" in home burglaries and assaults on the elderly.

according to WorldNetDaily 2000 report.

Also "However, the International Crime Victims Survey notes that overall crime victimization Down Under rose from 27.8 percent of the population in 1988, to 28.6 percent in 1991 to over 30 percent in 1999."


No National armies were established until WWI? Take a history class.
Reasonable force? You mean like the "reasonable force" that has allowed the crime rate in the UK to increase exponentially and is now being attacked by the people and many politicians?
Why is it that in every US state that has enacted Carry/Concealed carry laws, the crime rate has gone down?
Why is it that in every city or state that has draconian gun prohibitions, the crime rate is multiple times higher than the Nat'l average?

It's nice that you trust in your Gov't to know what's best for you.

after Pt Arthur, guns here in austrailia have been restricted to manual and certain semi-autos, and even then you have to have a specific purpose and a license (with strict conditions) to own them.And ironically, all the guns used in the massacre are still easily obtainable by someone who has a farm, or is a member of a gun club. Not to mention Martin Bryant would have been rich enough to smuggle a gun in. And of course, there's the little fact that none of the guns he owned were licenced under the old scheme, so why would he, or someone like him, licence them under the new scheme? if gun restrictions were in place, the argument of 'having a gun to defend against another person with a gun' would be thrown out the window, cos that person shouldnt have a firearm for you to defend against.What about defending yourself against a person who is armed in other ways? What if you're a 5'1 45kg woman and a 6'5 100kg man with a knife breaks into your home? Guns equalize people; taking them away gives an advantage to the physically strong over the weak.

And of course, the other problem is that the US shares two large open border with two other coutries, through which guns could be smuggled. And obviously an anti gun law isn't going to be heeded by criminals. Heck, look at the gang-shootings in Melbourne recently.

As far as I can see on the ABS, crime rates since 1997 haven't really changed. I mean, there's been some variation, but banning guns hasn't done anything to stop criminals.

Of course, the problem in Australia before and after the 1996 gun legislation was that it was rarely considered acceptable to shoot someone even if they were trying to kill you. Then, as now, you'd get manslaughter for self defence.

It does not say which arms are allowed and which aren't.
Only right arms are allowed. Too bad for left-handers.

"Shouldn't have a firearm" is the key phrase in your entire post. Criminals will get them no matter what inane gun laws are passed. They tend not to really care about the law in the first place. The only thing gun laws do is give criminals free reign against the public.

Banning firearms in Australia has led to :

* Countrywide, homicides are up 3.2 percent.
* Assaults are up 8.6 percent.
* Amazingly, armed robberies have climbed nearly 45 percent.
* In the Australian state of Victoria, gun homicides have climbed 300 percent.
* In the 25 years before the gun bans, crime in Australia had been dropping steadily.
* There has been a reported "dramatic increase" in home burglaries and assaults on the elderly.

according to WorldNetDaily 2000 report.

Also "However, the International Crime Victims Survey notes that overall crime victimization Down Under rose from 27.8 percent of the population in 1988, to 28.6 percent in 1991 to over 30 percent in 1999."


No National armies were established until WWI? Take a history class.
Reasonable force? You mean like the "reasonable force" that has allowed the crime rate in the UK to increase exponentially and is now being attacked by the people and many politicians?
Why is it that in every US state that has enacted Carry/Concealed carry laws, the crime rate has gone down?
Why is it that in every city or state that has draconian gun prohibitions, the crime rate is multiple times higher than the Nat'l average?

It's nice that you trust in your Gov't to know what's best for you.
i actually dont trust in our govournment, cause they have a tendency to follow america's government (except the tsunami relief, where they actually took charge). and also, it could also be said that the increase in those crimes can be attributed to the increase of american television shows and rap here in america, and america practically shoving its culture down our, and any other country who is willing to listen's throat. btw, before you go out on the 'go ahead, blame rap' rant, i personally dont mind rap. it is the culture that goes with it that is the problem

As far as I can see on the ABS, crime rates since 1997 haven't really changed. I mean, there's been some variation, but banning guns hasn't done anything to stop criminals.

Of course, the problem in Australia before and after the 1996 gun legislation was that it was rarely considered acceptable to shoot someone even if they were trying to kill you. Then, as now, you'd get manslaughter for self defence.

[Sarcasm] But shouldn't the gun grab and registration costing nearly $1B have stopped crime dead in its tracks?

i actually dont trust in our govournment, cause they have a tendency to follow america's government (except the tsunami relief, where they actually took charge). and also, it could also be said that the increase in those crimes can be attributed to the increase of american television shows and rap here in america, and america practically shoving its culture down our, and any other country who is willing to listen's throat. btw, before you go out on the 'go ahead, blame rap' rant, i personally dont mind rap. it is the culture that goes with it that is the problem

OMG That's great! It's America's fault crime has risen in Australia!

So you think your Gov't should censor music and television to reduce crime?

Why has crime gone down in the US then? Are you saying that Australians are that easily influenced by the media?

Rejected defendant’s argument that sections of the National Firearms Act, formerly 26 U.S.C.A. §§ 861a-861q, violate the Second Amendment. The court stated that the Second Amendment “does not grant the privilege to racketeers and desperadoes to carry” shotguns, rifles or machine guns. Id. at 219. Rather, the Amendment “refers to the militia, a protective force of government, to the collective body and not individual rights.” Id.

If this is the case I'm thinking of, the primary defendant and his attorney disappeared shortly before the case went in front of the supreme court. Only one side of the case was presented to the supreme court, which allowed the National Firearms Act of 1934 to remain on the books. It's kind of hard to over turn a law when no one is present to argue against it.

1. What? Simply untrue.

I'm sorry, but the individual states did not have any standing bodies for defense until the national guard was created in the early 1900's.

3. Also a good point. But why does it refer to "a well regulated Militia, being necessary to the security of a free State" at all?

The problem with 2 & 3 are that the Second Amendment was the result of a group decision-making process with compromises. The Amendment was specifically intended to respond to demands of Anti-Federalists. Still, it is a weakness in the argument for my side.

Consider what Switzerland has in place currently. They have what is essentially a defense system made up of minutemen. Every able bodied man who does not pay a tax to get out of the system is on a reservist type military system. They do drill for a couple of weeks every year and keep their guns and ammo at home.

The anti-federalists wanted the second ammendment to keep the government in check from becoming tyrannical.

In contrast,
1. What does the well-regulated militia clause refer to under your interpretation? You cannot ignore the first thirteen words of the amendment.

See above.

2. How does the right to bear arms magically become the right to individual possession and use of firearms? To "bear arms" meant at the time (and often still does) to serve in a militia. The Oxford English Dictionary defines "to bear arms" as meaning "to serve as a soldier, do military service, fight." 1 OED 634
(J.A. Simpson & E.S.C. Weiner eds., 2nd ed. 1989) (hereinafter, "OED"). It defines "to bear arms against" as meaning "to be engaged in hostilities with." 2 id. at 21. As an exemplary use of the phrase in 1769, the OED gives "An ample pardon . . . to all who had born arms against him," and the exemplary use from 1609 is "He bare arms, and made weir against the king." Id.

Again, the ammendment says "the right of the people to bare arms shall not be infringed." The clause before that describes why the people shall have this uninfringed right. Also, the Bill of Rights is specifically about the rights of individual citizens. Why would an ammendment addressing something other then individual citizens be in the middle of that list. Further, even if it does not mean individual citizens, who does it mean? The government? Why does the government need permission to bare arms? That doesn't makes even less sense.

2. It HAS been argued that the US constitution only applies to federal. Reread the thread. Once again, the point of that post was that, on individual vs state rights, even most of the states agree it's an individual right.

That was true at one point in history, but an ammendment was later added to make the federal constitution over ride all state constitutions.

This definition is irrelevent to The Cat-Tribe's argument, which focuses on the definition of the whole idiom "to bear arms." Although arms has that definition in most contexts, in the context of this idiom, it means weapons possessed while serving in an army or militia. As the defintions from The Oxford English dictionary show, the phrase "to bear arms" means to serve as a soldier. Thus, the second amendment guarentees the right to serve as a soldier, not necessarily the right to possess weapons individually. Even if the amendment is construed as a completely individual right (ignoring the fact that "well regulated militia" implies a state's power to regulate the militia), this individual right is not a right to individual possession of weapons, but right to serve in the militia.

The right to serve as a soldier? Why on earth does that need to be a right? In that past, that has been forced upon people. What have people EVER been forced to stay out of the army? Sorry, but this has got to be the weakest arguments I have ever read.

Nope I don't think it is a good idea in a democracy that alot of people is running around with guns, to have a possibility to overthrow the goverment with guns. But if you think it should be a possibility to allow miltia for overthrow the goverment or defend against outside threath, you have to realise that youn need really good weapons if it should be feasible, and who can it that case afforde them? I think only a small minority that in effect will control the country. So either 1. You trust the goverment and have a military that represent the people 2. You allow the people run around with handguns and maybee even automatic riffle but no tanks, so the people may think they can stand up to the goverment with weapons, but in reality don't have it. 3 You allow people real chance to overthrow the goverment with tanks and stuff, but then as I sad only the rich will afford it. 4 You make it democratic by giving evryone a possibility to have really good when. Then both 3 and 4 is very unlikly and 1 the most preferb one, because you don't get the other problems that a society filled with guns have.

I don't know where you're from, and it's not important, but in the US, we're supposed to be able to overthrow the government when they stop listening to the will of the people. That's the whole point of the second amendment.

As for not having the biggest and best weapons: look at Iraq. They are HORRIBLY under-teched as far as weaponry goes, but get a few million people resisting, and the US military suddenly has a very tough time of controlling and subduing anything or anyone. Kick it up to 60 or 80 million people who actually PRACTICE with their weapons, and you have quite the headache on your hands.

A society not filled with guns has higher rape, burglary, assault, etc. because the criminals STILL HAVE GUNS and other weapons. Your utopia will never exist.

You've been snowed by your own government to believe you won't ever have to defend yourself. Good luck with that.

If you people are so damn paranoid, move to a safer place. Might I suggest Naperville, IL? It's only an hour from O'Hare and the last burgalry occured in the 70's.

I don't buy that for a second. Show some police records if you're going to much such an outlandish claim.

It wasn't the NRA--it was rather intelligent gun toting people--the actual framers of the constitution, that made that claim.

Check out the Federalist Papers (you know, those silly docs that actually explain the reasons for everything in the constitution?) before quoting anti-gun rhetoric.

Even better yet, read the Anti-Federalist papers.

http://www.thisnation.com/library/antifederalist/

Gang (Markreich, Kecibukia, etc.),

If Volvo Villa Vovve responds, kill his "logic" for me, I'm gonna be out of the country for a week, so I won't be able to do it myself.

Cat Tribe, I merrily concede that your knowledge of US court cases as a student and one who regularly deals with law to be vastly superior to mine own. However, kindly explain to me after reading this (http://www.davekopel.com/2A/LawRev/19thcentury.htm) how the 2nd amendment can in any educated opinion be considered a collective right.

A society not filled with guns has higher rape, burglary, assault, etc. because the criminals STILL HAVE GUNS and other weapons. Your utopia will never exist.

You've been snowed by your own government to believe you won't ever have to defend yourself. Good luck with that.

You're lying to yourself over and over again. You and lots of other people have made this point over and over in this and other threads, and it ISN'T TRUE.

Go check nationmaster.com and see that, for instance

Rapes:
1 United States 0.30 per 1000 people
2. United Kingdom 0.14 per 1000 people
3. Switzerland 0.05 per 1000 people

Assaults
1. United States 7.70 per 1000 people
2. United Kingdom 7.50 per 1000 people
(no stats for switzerland)

Murders
1. United States 0.04 per 1000 people
2. United Kingdom 0.01 per 1000 people
3. Switzerland 0.00 per 1000 people

Burglaries
1. United Kingdom 13.91 per 1000 people
2. Switzerland 8.25 per 1000 people
3. United States 7.23 per 1000 people

As the US and Switzerland are armed and the UK is not, you can only say that some armed societies have fewer assaults and rapes than some unarmed, and some armed socities eg the US have MORE, and burglary is higer in the unarmed society (UK).

You're lying to yourself over and over again. You and lots of other people have made this point over and over in this and other threads, and it ISN'T TRUE.

Go check nationmaster.com and see that, for instance

Rapes:
1 United States 0.30 per 1000 people
2. United Kingdom 0.14 per 1000 people
3. Switzerland 0.05 per 1000 people

Assaults
1. United States 7.70 per 1000 people
2. United Kingdom 7.50 per 1000 people
(no stats for switzerland)

Murders
1. United States 0.04 per 1000 people
2. United Kingdom 0.01 per 1000 people
3. Switzerland 0.00 per 1000 people

Burglaries
1. United States 2,099,700 (1999)
2. United Kingdom 836,027 (2000)
3. Switzerland 60,384 (2000)

As the US and Switzerland are armed and the UK is not, you can only say that some armed societies have fewer assaults, rapes and burglaries than some unarmed, and some armed socities eg the US have MORE.

The Small Arms Survey has indicated that there is no hard evidence, no hard statistics, and no hard proven link between the rate of firearm possession and the rate of violent crime in a nation. It depends on the nation.

Rates of firearm ownership in Norway are twice that of Sweden, yet there are more firearm deaths in Sweden per unit population. The Small Arms Survey indicated that these odd relationships are currently unexplainable.

However.

In the US states where concealed carry has become liberalized, those states have seen a drop in violent crime. Consistently. States that have been progressively restricting firearm ownership (Maryland, for example), have been seeing a rise in interpersonal violent crime. Montgomery County, Maryland, for instance, has seen a 70 percent increase in armed robbery in the past year. Largely because the neighboring Fairfax County, Virginia, has a lot of concealed carry and open carry going on - and the felons know it. So they drive over to Maryland to rob, rape, and kill.

The Small Arms Survey also acknowledges that there are 2.5 million defensive uses of firearms in the US every year - crimes that are stopped by civilians using guns - largely without firing a shot.

Civilians in the US legally and justifiably kill three times as many felons as the police. They are much more accurate shots in these engagements - firing fewer stray rounds. And for those who thought the proliferation of carry permits would turn the highways into the Wild West - there has been only one prosecuted CCW permit holder - who was found innocent because it was an act of self-defense against someone trying to beat them to death.

CCW permit holders are far more likely to be law abiding than the average citizen. They are far less likely to be involved in an illegitimate shooting than the typical policeman.

Still think it's a bad idea? Well, it may not work in the UK, or some other countries.

But it works here. I've seen it first hand - and I've talked directly to the felons who fear it.

You're lying to yourself over and over again. You and lots of other people have made this point over and over in this and other threads, and it ISN'T TRUE.


Murders
1. United States 0.04 per 1000 people
2. United Kingdom 0.01 per 1000 people
3. Switzerland 0.00 per 1000 people

.

.04/1000 and falling
.01/1000 and climbing

Convienent.

It's also interesting to note that in Illinois, Chicago has banned handguns.
It has a murder rate of 22.05 /100K and a population of just under 3 million.

The state of Illinois (which doesn't have a universal ban) has a murder rate of 7.2/100K and a population of about 12.5 Million.

If you take out the murders JUST IN CHICAGO, the Illinois murder rate goes down to .38/100K with over 4X the population.

Let's send the cities w/ gun bans to the UK. I'm sure they'll get along fine.