That Berger considers the individual rights position wrong, speaks strongly as to its validity.

How am I "mistaking" Miller? Please, I'd like to read your analysis (using the Miller Court's cited material, not a 1992 case) of the opinion and explain where I have gone astray. Have I "mistaken" Aymette? Please explain to me how your later federal circuit opinions mesh with the concepts outlined in Aymette which was given sanction by SCOTUS in Miller . . .

Absotively posilutely! Since the federal government is barred from impacting the private arms of the citizen in any manner the only residual powers to do so belong to the states.

I disagree, the meaning, scope and effect of the Second Amendment has not been settled by SCOTUS. SCOTUS has not heard a true Second Amendment case yet . . . What have the cases that SCOTUS has spoken directly on the Second amounted to?

Rights infringement by private actors (Cruikshank)
State law barring private armed marches (Presser)
2nd Amendment question not addressed; procedural error in appeal, Court confirms no incorporation of the 2nd under the 14th. (Miller v Texas)
No evidence/argument presented for appellees, holding strongly disputed among Circuits. (U.S. v. Miller)
2nd Amendment does not bar the legally disablement of the right to arms (among other "fundamental rights") for felons. (Lewis v. United States)
Holds that the term "the people" in the 2nd Amendment has the same meaning as in the Preamble to the Constitution and in the 1st, 4th, and 9th Amendments. (UNITED STATES v. VERDUGO-URQUIDEZ)

Parker v. DC has promise if SCOTUS hears it. The injured party has no felony encumbrances, no state issue (so no remand wiggle either), no private actor issue, properly entered and argued appeals so the full scope of the Second as it relates to gun control should get a decent airing.

With the Circuits in disaccord and the two "individual right" holdings (9th and now DC) having such in-depth scholarship, the remaining opinions on the "collective right" side are sloppy by comparison and by their own admission rely on weak analysis, insufficient reasoning and could be incorrect, (see the 9th's Silveira v. Lockyer, ". . . Miller, like most other cases that address the Second Amendment, fails to provide much reasoning in support of its conclusion. We agree that our determination in Hickman that Miller endorsed the collective rights position is open to serious debate. We also agree that the entire subject of the meaning of the Second Amendment deserves more consideration than we, or the Supreme Court, have thus far been able (or willing) to give it." ).

So, even your "precedent" for the collective right position acknowledges the issue of the right to arms is not settled law.


When one looks to the weapons militia owned in the Revolutionary War cannon are frequently mentioned. 3lb Grasshopper field units were common and easily crewed by three men who could move the gun quickly without a horse. Many pieces were captured from the British and if a militia company could serve them there was no reason to beat the muzzles and abandon them. I'm sure large horse team drawn artillery (8lb'ers) were more rare among militia but certainly some company's held those guns.

A good document to read for this subject is General Gage's Order to seize and destroy militia weapons in Concord.

Having received intelligence, that a quantity of Ammunition, Provisions, Artillery, Tents and small Arms, have been collected at Concord, for the Avowed Purpose of raising and supporting a Rebellion against His Majesty, you will March with a Corps of Grenadiers and Light Infantry, put under your Command, with the utmost expedition and Secrecy to Concord, where you will seize and distroy all Artillery, Ammunition, Provisions, Tents, Small Arms, and all Military Stores whatever. But you will take care that the Soldiers do not plunder the Inhabitants, or hurt private property.

You have a Draught of Concord, on which is marked the Houses, Barns, &c, which contain the above military Stores. You will order a Trunion to be knocked off each Gun, but if its found impracticable on any, they must be spiked, and the Carriages destroyed. The Powder and flower must be shook out of the Barrels into the River, the Tents burnt, Pork or Beef destroyed in the best way you can devise. And the Men may put Balls of lead in their pockets, throwing them by degrees into Ponds, Ditches &c., but no Quantity together, so that they may be recovered afterwards. If you meet any Brass Artillery, you will order their muzzles to be beat in so as to render them useless.

You will observe by the Draught that it will be necessary to secure the two Bridges as soon as possible, you will therefore Order a party of the best Marchers, to go on with expedition for the purpose.

Well we all know what happened when the British tried to cross that bridge!

It is evident that cannon were well represented in the militia, even before hostilities began. Do 3lb guns equate with a modern 20mm cannon or RPG?


I think the scope of 2nd Amendment protected arms consists of mostly personal weapons, rifles, shotguns, pistols and revolvers. Militia was considered to be a stop-gap force to be rapidly mustered and deployed without great exertion and complicated logistics.

I would think your "helicopter gunship" a fighter jet or whatever hyperbolic extreme you wish to introduce would fall under the supremacy of Congress to make war . . . I would think that an armed helicopter would equate with a privateer warship of the late 1700's and would require a Letter of Marque to be considered legitimately operated and a Letter of Reprisal to legitimately engage the enemy.

Considering the object of the Amendment, I would consider the constitutional right to arms to not extend to any weapon of indiscriminate destruction or the operation of an armed tank, airplane or helicopter.

I would say that the Second Amendment says what the Supreme Court says it says. The ruling of the court in Miller addressed the issue from a textual and an historical perspective tracing the framers’ original intent from the English common law through the adoption of the Constitution by the several states; and, in this, the decision is dispositive. Whether the court will revisit the issue in the Parker case is speculative; and, given the current complexion of the court, unlikely. Still, it is possible; but until then, Miller is pretty much the last word on the subject. As Mr. Justice Jackson put it: “We are not final because we are infallible, but we are infallible only because we are final.” - Associate Justice Robert H. Jackson, Concurring Opinion in Brown v. Allen, 344 U.S. 443 (1953).

I believe the right to bear arms exists and exists to the extent that you describe. The question is to what extent is the right protected? To what extent can the government infringe upon that right. Currently, if you believe that the "well-regulated Militia" is simply everyone - full stop, then yes, everyone has the right to buy a gunship and a surface to air missile launcher. If you believe that the "well-regulated Militia" refers to, well, the Militia as it existed at the time the Amendment was crafted, then the existence of the Amendment is called into question.

You make my point precisely. Hence, history certainly does nothing to contradict that an amendment designed to ensure a properly armed militia concerned itself not only with light arms.


They certainly do if the private keeping of these 20mm cannon, RPG, rocket launchers and so forth is necessary for arming a militia. As I have pointed out repeatedly here with scant acknowledgement from you or any advocates of general gun rights, these things are privately kept today in Switzerland (albeit under seal), the army of which nation is essentially a ready militia on a model rather close to that of the local militias that existed at the time of the founders. As others have pointed out here, it can't reasonably be argued that because certain technologies didn't exist at the time of the founders, given provisions of the Constitution don't apply to them.

I maintain that the 2nd Amendment does indeed protect private keeping of heavy weapons, so long as they are necessary to a well-regulated militia on the ready-response, home-defense model that was in use at the time of the founders and is in use today in Switzerland. Indeed it protects the keeping of light arms on that same basis, but it protects it no more than that.

You think! This debate is about what the founders meant.

On the contrary, neither at the time of the founders nor today in Switzerland has the type of militia understood by the founders been a mere stopgap. The U.S. did not have a standing army at the time of the ratification; the militia was its entire land defense force. The entire Swiss Army is organized on this same, ready-response, home-defense model. McPhee's La Place de la Concorde Suisse is an excellent source on this subject.

As you have already pointed out, the militia at the time of the founders required the heavy weapons of that day. As I have pointed out, the modern incarnation of that same idea requires the heavy weapons of our day, and these indeed are privately kept by members of the Swiss Army.

So however much you may wish that the 2nd Amendment does not apply to heavy weapons, it says plainly that its concern is the armament of the militia, which can in no sense be restricted to light weapons.



Once again, this debate is not about what you would consider. Helicopter gunships are not a hyperbolic extreme; they are necessary to a modern, well-regulated militia and I am rather sure that quite a few of them are being kept in barns and similar hidden locations in Switzerland.

You know, if you take a drive in Switzerland (yes, I have), you will notice that every single bridge abutment has a steel door on it. The door opens into a hole where, in time of war, a satchel charge will be put to help destroy the bridge. The charges necessary to blow these bridges are kept privately, quite nearby, by given members of the Swiss Army. They have to be nearby because the whole point is, to blow the bridge immediately. You see my point? If we had a militia on the same model that existed at the time of the founders, we would need similar private keeping of quite destructive weapons, for instance satchel charges.

Twist and turn as you will, you can't escape the conclusion that the 2nd Amendment protects the keeping of heavy weapons on given conditions, and that it protects the keeping of light weapons on exactly the same conditions.




Not its existence, only its current applicability. Certainly, it would be fully applicable if the U.S. established a ready-response, home-defense force on the Swiss model. Since this is the same military model that applied here at the time of the ratification, it is rather certain that this is what the 2nd Amendment is all about.

Your argument makes no sense. Further, you still interject "it means" and change the wording to suit your needs ("because a well...").

To make your argument hold water, the framers could have just said "Because jelly donuts are available every morning, the right to keep and bear arms yadda yadda yadda...". Then say, you don't need to have jelly donuts to keep and bear arms. The point is, why bother with a preamble if it's blanket coverage? Is there some other part of the Constitution that has little meaning because it's an explanation?

Lastly, you continue to ignore the "well-regulated" part and get jacked when somebody like me makes a big deal about it. No matter what you think, this wording is critical. You may not like it and may not agree with it, but it's existence and relevance can't be disputed.

If your gun is for the purpose of serving in a state militia, the feds can't touch it. If you are not part of that well-regulated militia - which includes, muster, training, and a chain of command - it's up to the states. Miller supported this and virtually every federal case ever ruling on this. Anything that has deviated (e.g. Emerson) from Miller has never been used as precedent. I suppose you will say all these judges have gotten it wrong also.

And you're doing anything different? The only difference is that I'm properly applying the rules of English grammar.


To explain why the law exists. Let's take another example: The Virginia Statute of Religious Freedom, written in 1779 by Thomas Jefferson. As you can see, all of Section 1 is preamble, and Section 2 is the actual operative provision. Now does the validity of Section 2 depend in any degree on whether or not any of the assertions contained in Section 1 are in fact true? Clearly not. The point of Section 1 is to lay out the reasons for why the law is enacted. It's the exact same thing with the first and second clauses of the 2nd Amendment.

By the way, I demonstrated in an earlier post (#83) that "regulated" in this context means something different from what you're saying. Follow this link for further elaboration.

Ok...I followed your link. And if I'm reading it correctly, it helps make my point.

A few samples:



As I have stated, owning the gun for purposes of a well regulated militia involves training and discipline with that ownership. The simple purchase of a firearm does not fill that requirement. The NRA - and apparently you - disagree.

The second states "...being necessary to the security of a free state...". Nowhere does it say to the security of a free country.

And who's more likely to be better trained with a gun: one who's owned a gun all his life, or one who's never touched one?

And I notice you didn't dispute the point that a preamble does not impose conditions.

Do you even read what is posted?

I called shenanigans on your preamble point. I think your belief is absurd and defies logic on many different levels. Go back and look.

And now you're questioning me after I used your own source as proof of my stance?

Ownership does not equal training and is not addressed in a legal sense anywhere. Yet you appear to be twisting this premise into fulfilling the requirements laid out by the second. Blackstone, you're grasping for justification and so far, not doing a very good job of it.

If your type of argument were used in court everyday, nobody would have either followed or broken a law. Everything could be twisted into some bizarre logic suiting their own needs. YOUR source declared "well regulated" to be consistent with every point I've made on here. And now you want to allow simple ownership to fullfill "well regulated".

The Second Amendment provision for the right of the people to keep and bear arms is granted in the context of the maintenance of a “well regulated Militia.” The NRA represents is an unregulated band of fools - worse, fools with guns!

I must return to this for a moment . . .

First, your quote is a fabrication; it is a amalgam of Berger's Parade article and statements attributed to Berger when he later became a paid spokesperson for Handgun Control Inc.

While on the Supreme Court, Chief Justice Warren Burger never wrote a word about the Second Amendment. The actual Parade Article has such incredible contradictions in it it can only be read as evidence of Berger's dementia. He claims that there is an unquestioned right for Americans to defend their homes. He continues that, "the Constitution protects the right of hunters to own and keep sporting guns for hunting game," that no one could, "challenge the right to own and keep fishing rods and other equipment for fishing -- or to own automobiles."

Since he just created some new rights and the criteria for their exercise I guess he is duty bound to declare their scope also. . . Burger goes on to tell us what types of guns are protected by the Constitution; "To "keep and bear arms" for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago; "Saturday night specials" and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles."

Burger asserts that three "Constitutional rights"--hunting, fishing, and buying cars--are so firmly guaranteed as to be beyond question. Yet no Supreme Court case has ever held any of these activities to be Constitutionally protected. So, according to Berger, some unidentified part of the Constitution (but not the Second Amendment) guarantees a right to own guns for home defense and a right to own hunting guns. Some other clause protects a right to fishing equipment and a right to buy automobiles but the Constitution does not guarantee the right to own inexpensive handguns or machine guns.

OK, thanks Warren!

Yes and?

I agree completely with the above but it doesn't answer my question . . . I am quite willing to live with every word SCOTUS has said on the 2nd, you do realize they have mentioned it 35 times in it's various decisions right? The later federal circuit decisions you are hanging your hat on while citing Miller, dismiss and ignore Miller's "dispositive" ruling. Have you ever really read Cases v. US?

Back to my question:

The Supreme Court does not interpret in a vacuum. Their decisions are not rendered considering only a cursory reading of the Constitutional clause at issue. Neither do they dissect one provision away from the whole Bill of Rights and parse it independently; the Bill of Rights is a continuum of thought.

"[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth."

GOMPERS v. U S, 233 U.S. 604 (1914)

The Court also uses outside writings for guidance, the writings Jefferson called, "the elementary books of public right. These include Cicero, Locke, Sidney, Harrington, Machiavelli, Cato's Letters, the English Whigs, Rousseau, Burgh, Montesquieu, Beccaria and others. SCOTUS acknowledges these outside works have assisted in explaining a Republican form of government and the principles behind the Constitution.

I have asked you to provide an analysis of Miller with an adherence to those cited works; it should be a simple endeavor if you are serious about this subject. So, what about the cases the Miller court cites in the body of the opinion and the commentators / cases mentioned in its famous margin notation, "Concerning The Militia"? Adam Smith, Cooley, Story, what do those commentators have to say on the subject of where the right to arms resides? Why do the famous constitutional commentators of the early 19th Century (Story, St. Geo. Tucker, Cooley, Rawle, Kent) all endorse the individual rights theory? The works of Tucker and Kent were the textbooks early lawyers learned from for Pete's sake. Also interesting is that many founders were still alive and active when Tucker's Blackstone was published; it's surprising none complained that Tucker's explanation of the right to arms was so incorrect. It seems President Madison was so distressed with Tucker's misrepresentation of the 2nd he appointed Tucker to the federal bench. </sarcasm off>

I wouldn't get too optimistic about that . . . You do know what Justice Alito's statements and record is don't you? You have read Justice Thomas' concurring opinion in Printz v. United States, 521 U.S. 898 (1997) haven't you? You know Scalia is an avid hunter don't you? I think "given the current complexion of the court," the Court is chomping at the bit to render a decision on the 2nd.

Since you are such a Jackson fan here's a quote from a majority opinion he wrote; some background of the case . . . After the surrender of Germany during World War II, some German soldiers in China aided the Japanese army, in the months that Japan continued to fight alone. The American army captured them, and tried them by court-martial in China as war criminals. The Germans argued that the trial violated their Fifth Amendment rights, and pointed out that the Fifth Amendment is not - by its terms - limited to American citizens. Justice Jackson's majority opinion held that the Germans had no Fifth Amendment rights. He pointed out that if Germans could invoke the Fifth Amendment, they could invoke the rest of the Bill of Rights. In the first sentence Jackson acknowledges the 5th Amendment's grand-jury exception for "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger."

"If the Fifth Amendment confers its rights on all the world except Americans engaged in defending it, the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and "were-wolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments."

Associate Justice Robert H. Jackson, Majority Opinion, JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950)

Just so we're clear, the "irreconcilable enemy elements, guerrilla fighters, and 'were-wolves" ' in Justice Jackson's hypothetical are obviously not American state governments. If such INDIVIDUAL foreign soldiers were afforded the protections of the 5th Amendment's, "companion civil-rights Amendments," secured for INDIVIDUAL citizens, this would lead to the absurd result of American soldiers, in observing the Second Amendment's prohibition, being forbidden to disarm the enemy. Note also that Jackson does not see any obvious militia qualification in the 2nd Amendment, "none of them [amendments] is limited by its express terms, territorially or as to persons."


Well, not really . . . I agree that certain "larger" than small arms weapons probably have protection but the right pre-constitution citizens exercised to own heavy artillery (and hypothetically on up to your examples) was surrendered to government through the Constitution's make war provisions and supremacy clauses (Art I, §8, cl's 11, 12, 13, 14 -- and §10 if the militia is state sanctioned).

I don't think an ironclad immunity transited between the rights exercised in the citizen's pre-constitutional, revolutionary (adjective) wartime activity and their post-Constitution, peacetime condition because certain powers and immunities were surrendered upon ratification of the Constitution, among those was making war and keeping the heavy weapons to do so (with its responsibility and expense).

Are my 1st Amendment rights injured because I can not negotiate and enter into treaties with foreign nations?

Nobody wants to acknowledge it because it is an absurd argument.

Your argument resides entirely within your mind without substantiation . . . Where have you quoted or cited any historic authority "on what the founders meant" backing up what you are arguing? What gall!

I can argue my position truthfully from my knowledge of the founding principles and the history of this nation and substantiate it. You are welcome to provide a bibliography or footnotes to show where your positions are vindicated.

And here is your duplicity exposed. You claim the right to arms is so encompassing and absolute that no legitimate prohibitions or restrictions can be enacted -- unless if it's not the government exercising the right . . . if it is an ill-regulated entity without governmental sanction the right of "keeping arms" does not exist.

It's a clever ruse, I'll give you that; it's not often anti-gunners get pro-gunners to argue for limits on the right to arms.

Yawn . . .

I'm not twisting and turning, I'll just sit here very quietly waiting for any substantiation for your absurd "I think" diversion.

The only argument you had to offer was your own personal incredulity at the notion that a preamble could actually be, well, just a preamble. I responded with an example of a preamble that no one in his right mind would argue imposes any conditions on the law, despite the many challengeable assertions it contains. You, as is becoming your usual habit on this thread, completely ignored it, and are now pretending to have "called shenanigans", as if that makes any further rebuttal unnecessary. But no matter how hard you find it to believe, preambles do not impose conditions. That is simply not their function.


Oh look, a strawman. Too bad it didn't work. I asked a simple question: Who's more likely to be better trained with a gun, someone who's owned one all his life, or someone who's never touched one? Come on, DR, this shouldn't be too tough to answer.


Pure projection. Remember, you're the one who's arguing, completely without evidence, that a preamble limits the scope of a plainly worded law. That's grasping. I'm just taking the law at face value.

It's up to you to show, with some kind of evidence, that the plain wording of the law was intended to mean something less than what it actually says. That means demonstrating that there's no reasonable way in which the plain wording can be consistent with its intended objective. I even gave you a leg up by asking you the question I just had to repeat just above. You could start by answering it.


As long as you're arguing that a "well regulated militia" merely means an effective, capable fighting force, then I'll grant you that.

(btw, the original link has now somehow morphed into a left-wing anti-gun screed. A duplicate of the original article that was linked to can be found here)

I'm not even sure what to say. The link you provided states in substance what a well regulated militia is. I listed what they were and nowhere did it say a random group of people who have owned guns all their life. Almost every court ruling since the second was written supports my argument, so it's not like I'm doing some abstract thinking here. You and many others think those court decisions were wrong and I have no problem with that. But don't blame me for backing up what has already been ruled on by many, many bright democratic and republican legal scholars.

But let's pretend for a minute that "well regulated" means an effective and capable fighting force. Does a random group of people who have had guns all their life automatically translate into what you think it means? If so, why not simply say "the people"? Your are erasing the term "militia" from the seconds meaning by lowering the bar to a point you can make an argument. Would you say that a group of 90 year old women who have had guns all their life is an effective capable fighting force? Since the obvious answer is "no", how is their right to keep and bear arms protected by the second?

Lastly, one more question. Since you will undoubtedly state that a group of 90 year blue haired ladies with shotguns is an effective and capable fighting force", suppose they mustered and trained - without ever acting on their training - for the express purpose of overthrowing the government in the event that got all tyrannical on us. Again, no actions - just planning and training. Would their activities be protected by the second?

There seems little point in arguing the issue further with our obstinate friends - certainly, there would be no point in arguing with those that refuse to accept the rulings of the Supreme Court of the United States, which decisions on the interpretation of the Constitution are binding as law - for there will be no convincing them. Better just agree to disagree than engage in wrongheaded stubbornness. See Arthur Schopenhauer, APHORISMEN ZUR LEBENSWEISHEIT ("Counsels and Maxims"), Ch. III, Sec. 26 (1886). I am reminded of a conversation with a gentleman in a bar, who, during the course of discussing the Second Amendment, asserted flatly that he had a "God-given" right to own a gun. Prudence dictated that I not question what portion of the Scriptures he was relying upon for such "high" authority, as I was convinced that he would brook no argument on the subject.

OK, so I'll mark you down as being perfectly OK with the Dred Scott decision.



In other words, a better pool of candidates for states to select their militias from than a random group of people who've never touched guns? I'll let you answer that one, seeing as how this is now the third time I've had to ask you.

Oh, and preambles don't impose conditions. Another point you're trying to avoid having to address.

I said in my last post:

"I am quite willing to live with every word SCOTUS has said on the 2nd, . . . "

I have repeatedly asked you to offer your analysis of Miller while keeping true to the outside philosophical works and precedential cases the Miller Court used to form its decision. Citing the later circuit decisions that mis-represent the holding for political reasons as stating what the Miller decision means, is not being intellectually honest.

The Miller Court found those works instructive and important; why do you consider them irrelevant, simply because they are injurious to your position? If that's the case then you are not here to debate, you are here to proselytize.


No, how about if we instead refer to the instruction of a constitutional commentator highly regarded by the Supreme Court and cited in the decision by the Miller Court as being instructive on the 2nd Amendment and the right to arms?

"Section IV. -- The Right to Keep and Bear Arms.

The Constitution. -- By the Second Amendment to the Constitution it is declared that "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." The amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.

The Right is General. -- It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order."

Principles of Constitutional Law, Thomas Cooley (1898)

I can understand your meekness in addressing the discussion framed inside the works used by the Miller Court. This being a debate forum, if you can't substantiate and justify your arguments I guess you can be permitted to take your leave.

Buh-bye

Well then, since assault rifles, satchel charges, mortars, heavy machine guns and rocket launchers are most certainly necessary armaments of any modern militia, how shall any restriction upon the keeping and bearing of the same be consistent with Cooley? For certainly, "learning to handle and use them in a way that makes those who keep them ready for their efficient use" implies the "right to meet for voluntary discipline" in them, just as much as with flintlock muskets, or the breach-loading rifles that Cooley knew, does it not?

Or is it your position that the 2nd Amendment guarantees only the right to keep and bear such arms as would be suitable for a late-1700s (or late 1800s as seemingly envisioned by Cooley) historical reenactment?

Also on a practical level, Cooley is wrong. As shown by the Swiss example, it is indeed only the mere keeping of modern arms that is necessary for the maintenance of a modern militia. Meeting for "voluntary discipline in their efficient use" is strictly illegal there. Even for military-issue assault rifles, the least potent weapon that anyone keeps there, the discharging of military weapons other than as a part of sanctioned training exercises is strictly illegal.

You are right that it is not "abstract" thoughts that push your arguments, the thoughts that you ascribe to are well crafted for political purpose and you are all in, leave your critical thinking skills at the door . . .

Can you disprove my contention that your position had its genesis in the early 1940's with the circuit decisions of United States v. Tot and Cases v. US? Please, I hope you say yes . . .

They are wrong, weakly supported (if at all), and in truth, dismiss and disavow the decision of the Miller Court (while citing it as instructive and controlling). They are pitiful and Rocker, I'd be glad to dissect them word by word with you.
Let's really look at the "discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since" that Tot cites (see asterisk below!). . . Are they truly "contemporaneous", are they really "learned writers?" If not what should be made of the court's opinion that, after reviewing those items "It is abundantly clear . . . that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations?"

*
1)Luther Martin's letter to the Maryland Legislature, 1787
2)Lenoir, North Carolina Convention, 1788
3)Sherman of Connecticut at the Federal Convention, 1787
4)Emery, The Constitutional Right to Keep and Bear Arms (1915) 28 Harv.L.Rev,
5)Haight, The Right to Keep and Bear Arms (1941),
6)McKenna, The Right to Keep and Bear Arms (1928) 12 Marq. L. Rev.

OK Rocker, Vladimir and Nemo, these are the decisions that you guys hang your hat on, let's see your defense of their analysis and reasoning! First question; are the historical citations cited by Tot really "contemporaneous with its [2nd Amendment] proposal and adoption?" No they predate any Bill of Rights discussion by years.

For those counting, that's three non-contemporaneous historical sources and three law review articles none of which delve into the framers intent . . . Whew, that's exhaustive and complete substantiation . . .

You sure have become a one-trick pony haven't you?

Now would be a very good time to support your position with any sort of historical reference that pertains to this country. You have restated your heavy arms position ad nauseam with no citation or support except "that's how the Swiss do it."

I have said all I wish on this subject (see post 161 above, you apparently missed it . . ) because it is folly to argue about the protection of heavy arms when the simple, basic premise of the constitutional protection of civilian held, privately owned small arms is clouded by so much disagreement.

Really, what is your point?



Now you are bordering on comical . . . Isn't there enough to discuss / debate on this subject without these ridiculous diversions? Tell me why Cooley is wrong in his analysis of the 2nd Amendment and the right to arms using our history, our law and our judicial determinations.

How about Rawle?

In 1791 William Rawle was appointed as a United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years. He had also been George Washington's candidate for the nation's first attorney general, but Rawle declined the appointment. Rawle's "A View of the Constitution of the United States of America" (1829), was adopted as a constitutional law textbook at West Point and other institutions. He describes the scope of the Second Amendment's right to keep and bear arms.

"the powers not delegated to congress by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people[quoting the 10th Amendment]. What we are about to consider are certainly not delegated to congress, nor are they noticed in the prohibitions to states; they are therefore reserved either to the states or to the people. Their high nature, their necessity to the general security and happiness will be distinctly perceived.

In the second article, it is declared, that a well regulated militia is necessary to a free state; a proposition from which few will dissent. Although in actual war, in the services of regular troops are confessedly more valuable; yet while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulation as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.

The corollary, from the first position, is that the right of the people to keep and bear arms shall not be infringed.

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

In most of the countries of Europe, this right does not seem to be denied, although it is allowed more or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and is cautiously described to be that of bearing arms for their defence,'suitable to their conditions, and as allowed by law.' An arbitrary code for the preservation of game in that country has long disgraced them. A very small proportion of the people being permitted to kill it, though for their own subsistence; a gun or other instrument, used for that purpose by an unqualified person, may be seized and forfeited. Blackstone, in whom we regret that we cannot always trace expanded principles of rational liberty, observes however, on this subject, that the prevention of popular insurrections and resistance to government by disarming the people, is oftener meant than avowed, by the makers of forest and game laws."

Really guys, who, before 1942, postulated that the right to arms was in any way dependent upon militia status or that the 2nd only protected state government interests?

Can you at least pull out one wacko commentator or Chuckie Schumer of the day spouting such historically incoherent nonsense?

Well gee.....since you put it that way, I see your point. I don't know why I would follow the rulings of many, many legal scholars who have ruled on this subject in the court of law instead of an anonymous internet poster.

Anyhow, directly from the US v Tot ruling:


Have any more sources that back up my argument?

Many, many??? Who? Where are they? I realize you are under the assumption that there is this great body of support for your position harkening back to the oldern days but I'm sorry to break this to ya - there ain't!

You have Tot and Cases as the grandparents and their progeny all leaning on each other like drunken, inbred Tennessee moonshiners.

All I'm asking for is to treat those opinions like a used car you might buy; the advertisement is telling you its got a 454 with double pumper carbs but the exhaust note is saying straight six with a governor plate. Why not just look under the hood? I'm not saying I'm right, once you peek under the paint and chrome you will see you have been duped.


I already posted the above (although chopped up and contained in my argument's sentences) but that's a perfect example of what I'm saying . . . To you, all that whole case says is "was not adopted with individual rights in mind" and that's good enough. But how did they get there? See that 13, click on it in your copy or scroll down and it will tell you what those works were that made it ". . . abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since[13] that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind.

I listed the works from footnote 13 in my previous post but I'll say again, the historical cites are not contemporaneous with the debate and ratification of the 2nd . . . They don't even discuss it and the law review articles don't even address the framers intent. How then can they be instructive on the intent of its adoption?

The truth is, they can't - Tot and Cases were pre-decided for political reasons and cribbed together just to pass the quick glance test. These opinions are weakly supported (if at all) and thankfully their time of existing without strict scrutiny and as law is running out.

So do you have any more quotes from those decisions that show you are unwilling to look at them with a critical eye?

Start your critical learning HERE; read that and tell me where that article's conclusions are wrong and how Tot and Cases are good, honestly rendered decisions . . .

Well, you can huff and puff and blow the door down, but you could save yourself a lot of trouble by simply stating you are smarter than all the justices at the federal and supreme court level - both democratic and republican - that have upheld the collective rights interpretation in terms of a well regulated militia. Maybe they should have did a Google search on the internets for "highly opinionated internet posters who know more than you do about the Constitution" and saved them and their staffs a bunch of labor.

Seriously, the facts are not on your side. Obviously, you can read into the rulings whatever you so choose and call them moonshining redneck inbreeds or whatever, but it doesn't change the fact that the rulings you've pointed to back up the US v Miller ruling. That ruling is STILL precedent no matter what Emerson said.

If you disagree with those rulings, fine. You are in good company with many bright legal scholars who oppose my/the Miller case point of view. But you guys are calling my point of view wrong/distorted/abstract or whatever as if I'm the renegade thinker. Legally speaking, I hold the traditional view that has been upheld in almost every court case. YOU are the ones that have to make the case that the second protects the right of every individual to keep and bear arms without condition. Simply being a blowhard with "You're wrong and you're an idiot" hardly garners respect for your views. It only makes you look a little kooky quite frankly.

Make your case without the high-minded rhetoric and condescension. I'll take you more seriously then.

That is an insult, not a rejoinder.



The relevance of Swiss circumstance is not that it is Swiss, but that it is the only extant example of how a ready-response, home-defense militia works in the modern era. Since the 2nd Amendment says that it concerns the armament of such a force, it is highly germaine to ask, of what this armament would consist, in the modern era? The answer to this question is seen in Switzerland.

Now, American circumstance is that such a militia no longer exists, but if it did, there is no very good reason to think that its armaments would be very different from those employed by the Swiss, is there?



My point is that there is no textual basis in the 2nd Amendment itself, no historical contextual basis, and no rational basis, for excluding any class of arms from the ambit of the amendment, so long as they are necessary to a modern ready-response, home-defense force that would be analogous to that which existed, and which was the sole basis of the nation's land defense, at the time of the founders. And which, with scant doubt, is what they meant when they wrote a "well-regulated militia."


You regard my arguments as a ridiculous diversion; I regard them as a thorogoing and completely correct interpretation of the 2nd Amendment, which is the subject of this debate.

Cooley is patently wrong in his supposition that the mere keeping of arms is insufficient to the functioning of a militia. The counterexample is the Swiss experience. Enough training is provided by government-sanctioned exercises; there is no need for the "private meetings" so fancifully envisioned by Cooley. Nor does the amendment itself mention any such meetings.

I could hardly supply an American counterexample, since the particular form of military organization envisioned by the founders has not existed here in modern times.

But if Cooley is right, my main point, then private meetings for live hand-grenade practice cannot be prevented by any law.



"Duplicity, ruse?" You are unkind. And on the contrary, I do sincerely believe that the 2nd Amendment does fully embrace such arms as hand grenades, since these in contemporary times are necessary to the military purposes for which the amendment was written. I further sincerely believe that the Federal government and the states have the power, fully consistent with the 2nd Amendment, to restrict the use of these weapons, and indeed any weapons, so long as this restriction does not impede the armament of any actual, well-regulated militia that may exist.

Since this interpretation of the amendment does not posit some sort of metaphysical membrane that supposedly separates heavy arms from light ones; since it is fully cognizant of the historical context of the amendment; since it does not condemn the ambit of the amendment to arms commonly held at the time of ratification but recogizes what is necessary for a modern home-defense force along the lines of the force that existed at the time of the founders; and since it fully acknowledges the expressed military purposes of the amendment; I consider this position to be much more reasonable than yours.

The very great burden of your position, which you have not fulfilled, is to explain why the amendment would countenance regulation of heavy arms while it would hold light arms sacrosanct, given that both light and heavy arms are absolutely necessary to any conceivable effective militia. You must provide a rational basis for the inclusion of the one and the exclusion of the other that is cognizant of the military purpose that is there in black and white, or your argument fails.

Lengthy quotations of antique constitutional scholarship hardly serve, since taken literally these sources, which never envisioned modern warfare, would condone private target practice with 50-caliber machine guns.

Finally, I am not "anti-gun," which you claim without basis. I am all for reponsible hunting and the reasonable sporting use of firearms.

It’s laughable. The NRA just can’t stand that conservative jurists and scholars won’t buy their bootstrap arguments about the Second Amendment. As former Federal Appeals Court Judge Robert Bork - (renowned constitutional scholar and foremost exponent of “Originalism” in the interpretation of the Constitution) - said jocularly: "[The] National Rifle Association is always arguing that the Second Amendment determines the right to bear arms. But I think it really is the people's right to bear arms in a militia. The NRA thinks it protects their right to have Teflon-coated bullets. But that's not the original understanding.” Robert H. Bork, Distinguished Lecture Series, UC Irvine, (March 14, 1989).

I'm not saying I'm smarter; heck, they've written opinions that have shaped the discussion for 65 years. Those guys are brilliant! I'm just saying that those decisions have blatant, fatal flaws in reasoning and substantiation. If that's not the case you should be able to demonstrate this long history of collective right interpretation with ease. Problem is, there is scant evidence such a theory existed in written form before the 20th Century and what does exist dates from the 1940's.

Prove me wrong - - address any of the questions I have presented.

Uhhhhh, Emerson correctly states the holding in Miller, it is Tot and Cases that ignore, dismiss and disrespect the "Miller precedent."

You want a position paper from me to rebut? Here is my analysis of Cases. Quoted Cases text in bold, my statements are in regular text. Please, please prove my position wrong! I'm begging you to put together a reasoned argument proving me a goofball and showing us how Cases honors the Miller precedent.

After quoting Miller's "In the absence of any evidence" paragraph, Cases states:

"Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia. However, we do not feel that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. "


Well then, why characterize the Miller holding as, "Apparently, then, under the Second Amendment, . . ." if only to completely disregard the only "apparent" guideline or rule the case establishes? The Cases court then explains why they must do so, and tells us that the only rule that the very recent (just over 3 years remember) Miller could be read to make, is both no longer applicable, it is also dangerous to society. They also graciously offer their opinion on the intent of the framers regarding the extent of the prohibition of governmental power secured in the 2nd Amendment.

And Vladimir, you should like this paragraph!

"At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called 'Commando Units' some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,-- almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-- is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result."

Well, it is no wonder they opine now, that Miller formulated no rule. The reason this had to be done was that by then, it was a "well known fact" or as the Miller court said, "within judicial notice," that all guns have military usefulness.

The shotgun that the Miller court said, "has no reasonable relationship, . . ." is now, absolutely an arm beyond the reach of the NFA '34.

Thus, all guns would be protected, including the Cases appellant's .38 caliber revolver and nearly all gun control laws would be struck down. Expressing how uncomfortable the court was with what it deemed to be the inevitable societal implications of the Miller rule being applicable at their present time, the Cases court simply rejected Miller's logic. But now the judges were faced with a dilemma. The law could afford them no comfort, the law was a bed of nails.

This realization, I would go so far as to say it manifested itself as a panic, forced them to turn to their only solace, the only realm where they could mold things the way they wanted and lay down new law like lightning bolts from their fingertips!

The facts of the case before them. It was time to make some lemonade.

The opinion continues:

"We therefore turn to the record in the case at bar. From it it appears that on or about August 27, 1941, the appellant received into his possession and carried away ten rounds of ammunition, and that on the evening of August 30 of the same year he went to Annadale's Beach Club on Isla Verde in the municipality of Carolina, Puerto Rico, equipped with a .38 caliber Colt type revolver of Spanish make which, when some one turned out the lights, he used, apparently not wholly without effect, upon another patron of the place who in some way seems to have incurred his displeasure. While the weapon may be capable of military use, or while at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber, still there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career."

So now they make the incredible leap of stipulating the state of mind of the person claiming a Second Amendment right as a condition for exercise and protection. The Cases court just changed the rules, they threw out the weapon / militia usage link in Miller and instead required the person -- again, not the weapon -- have as his intent, essentially his paramount concern, the maintenance and preservation of the militia!

This First Circuit court offered absolutely no basis other than their personal feelings for its trashing of the Miller decision and ignoring the obvious determinations required by Miller. No substantiation is cited for the leap it took regarding the status of the citizen and the focus of his intent.

The obvious explanation for the Cases decision is the court undoubtedly felt that, as a matter of public policy, any meaningful limitation upon the government's power to restrict private ownership of firearms was unacceptable. The court felt the need to sustain the status quo and decided to decide the case accordingly, opining that the framers of the Second Amendment did not intend the Bill of Rights to present an impediment to the government in this regard. That is I feel, the ultimate insult to the framers and the First Circuit.

This case was not decided on the law or precedent or the intent of the framers. It was decided for political reasons, none of which had as their concern, adherence to the Constitution, endurance of the founding principles or the continuation of this Republic.

This is why I believe the lower federal jurisprudence of the 2nd Amendment is a family tree where limbs grow from thin air and many branches use these limbs for support. None of these opinions are connected to the trunk of the Constitution or the roots of our founding principles.

The well of lower federal court precedent is polluted. The only "safe water" is an honest reading of SCOTUS and original intent.
-------
Have at it Rocker or anyone else . . . Just where in the history of this nation did the Cases court find the justification to dismiss the Miller holding (as to the usefulness of the weapon) and declare that for 2nd Amendment protection the intent of the individual -essentially his state of mind - must be directed to the militia?

You have as yet fail to explain why the amendment would countenance regulation of heavy arms while it would hold light arms sacrosanct, given that both light and heavy arms are absolutely necessary to any conceivable effective militia. As I have said, you must provide a rational basis for the inclusion of the one and the exclusion of the other that is cognizant of the military purpose that is there in black and white, or your argument fails.

As I have shown, there is no need to draw an artificial distinction between various classes weapons if one accepts at face value the explicit military concerns of this amendment, and that all the weapons embraced by it are embraced for one purpose only: to arm a well-regulated militia.

No argument on that. That it's true just makes it a fine debate point for what "could have been" here. Our early President's Inaugural Speeches all call on Congress and the states to erect a structure for the militia, to not ignore it. For centuries the Swiss have never wavered in their attention to their militia. An important difference is that US citizens never faced the issues of national security the Swiss have over the centuries. A consequence of that is that Americans could become lazy once the Brits were shown the door; we got our government up and running and we all just sat back and enjoyed the "blessings of liberty." Americans, then and now, don't like to be burdened with defense especially when their is no clear and present enemy to direct our attention to.

In essence I agree with your assessment and I've said so since the beginning. But, I also believe that the federal warmaking powers and the Constitution's prohibitions on the states to keep troops and warships would "in principle" allow restrictions on heavy arms ownership by private citizens (and not violate the 2nd). Private ships could be outfitted with arms but only under authority of Congress.

As with so many things pertaining to the Constitution the militia concept as embraced by the founders has more to do with the underlying principle than what the arms actually were / are. For the founders it was about the numbers, they envisioned a certain percentage of the citizenry to be able to resist with force.



The only arms the Amendment discusses are the people's. Never has Congress been empowered to impact the arms of the private citizen; the 2nd Amendment specifically prohibits any attempt to do so. Congress can only impact the arms of the citizen when in formal service to the USA and they may dictate to the states certain regimens of training.



The militia of today is nearly identical in national scope as the militia of the Colonial / Revolutionary period.
As I said it's about the numbers.

Madison wrote in the Federalist specifically addressing this; he knew what size military our form of government could support without too great a burden (1% of the total population). The same goes for militia, Madison stated that that "standing army" would be opposed by Militia outnumbering it 25 to 1.

In the USA today there are 300 million people, 2.7 million in the military and 75+ million gun owners . . .

Do the math.



Is there a right to arms in the Swiss national constitution or in any of the Cantons? Aren't the Swiss armed at the pleasure of the government and could likewise be disarmed by simple government decree? You have already said the use of those weapons is strictly controlled.

While you may see a connection between the Swiss and American experience, I don't; remember, it's about the principle not the weapon. If the Swiss citizen is only armed at the pleasure of the government then this discussion is pointless. Please advise as to the citizen's status; I have read Title 2: Fundamental Rights, Civil Rights and Social Goals in the Swiss constitution and I can not find any protections. LINK



My point is that there is no textual basis in the 2nd Amendment itself, no historical contextual basis, and no rational basis, for CREATING A QUALIFICATION excluding any class of PERSON from the ambit of the amendment.



If you would cite a single source for validation of your opinions regarding the 2nd I would begin taking then seriously. I am quite willing, in fact downright enthusiastic to discuss the meaning and interpretation of the 2nd and US Constitution in general but with demonstratable adherence to the philosophical underpinnings endorsed by the founders and the historical record. Please post a bibliography of works I should be reading to explore the interpretation you are promoting. I would love to peruse some brand new material.



The keeping of arms is a right to be exercised or NOT exercised by the citizen at his / her discretion. There are no demands placed on the citizen by the 2nd Amendment so Cooley is absolutely correct. The only actionable demand in the 2nd Amendment is the prohibition upon the federal government to impact the private arms of the citizen.



Again, your Swiss argument fails because the firearm ownership / use is NOT right based it is compulsory enlistment and training. Cooley is only discussing the liberty enjoyed under the protections of the 2nd Amendment, not any forcibly compelled actions the citizens are duty bound to execute by a Militia Act or other regulations for enrolled militia members.
Having the right to assemble does not forcibly compel citizens to protest; having the right to petition government does not forcibly compel citizens to convey their grievances to government, having the right to worship does not forcibly compel citizens to go to church.



The modern militia exists in the same mode as it always had. Quietly going to work and worship, raising families and passing time until a situation arises whereupon they would be needed. That the federal and state governments are remiss in establishing formal rules for the militia does not impact the citizen's right to arms. Just like Cooley said:

"It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check."

BINGO!



And that's why it is duplicitous.

Who gets to determine what constitutes the militia you envision, who sets the standards that must be reached, who gets to stand with his finger on the switch turning the clause "the right of the people to keep and bear arms, shall not be infringed" OFF because you read so much into "A well-regulated militia, being necessary to the security of a free state.?"