So is there no longer any need for any "Militias"

[Bandit]

In fact since they were deliberately left out of this Extreme Court Decision I would say those that currently exist are now nothing more than armed gangs and should be forcibly broken up..

[SteveM]

1. I think the case turned on an individual's right to keep & bear arms...

Heller wasn't arguing his case viz a vis a militia. If there are armed gangs breaking the law, those individals should be arrested. I don't know what you mean by "forcibly broken up," but it sounds like such an action would violate several sections of the Constitution, esp. 5A.

[Bandit]

2. So gangs in the cities should just rename themselves "Militias"

and unless they have previously been convicted of a felony then the police should not be able to break up their gangs no matter how armed and dangerous they may be..

[madrchsod]

3. you forgot the white militias

like the one that took down the murrah federal building....

[slackmaster]

20. The Murrah building was taken down by two individuals

They were criminals. Timothy McVeigh even described himself as a terrorist.

That was not the act of any kind of militia.

[Bluebear]

33. Well, we will never know, since McVeigh got an extra-speedy execution

[SteveM]

47. Again, if individuals in a "gang" break the laws, then arrest them. Clear?(nt)

[baldguy]

7. The USSC is run by 5 RW lunatics.

The 2nd Amendment has ALWAYS been interpreted to mean that the people - COLLECTIVELY - have the right to keep & bear arms. It is not an individual right.

The 1st talks about "the right of the people peaceably to assemble".

The 4th talks about "The right of the people to be secure...against unreasonable searches and seizures".

These are all COLLECTIVE rights and do not apply unequivocally to individuals. The language is PLURAL.


The Constitution uses entirely different language when it talks about unequivocal individual rights. The language here is SINGULAR:

The 5Th says "No person shall be held...".

The 6th says "the accused shall enjoy the right to a speedy and public trial...".

Individual rights are not subject to blanket restrictions. When the state requires that they be suspended for a particular individual, they must go through the due process with a trial, presenting evidence & obtaining a conviction.

Collective rights are subject to blanket - abet reasonable - restrictions imposed by the state. If the state decides to impose such restrictions, an individual must show cause as to why he should not be subject to those restrictions. This is where the 2nd Amendment falls in the scheme of things - it does not use singular language when talking about "the people"

The fact is the Supreme Court is wrong.

[Edweird]

10. The Bill Of Rights, as I understand it, places limitations on the power of our government.

Not the citizens.

Furthermore, if you take the time to examine our founding fathers writings it is clear that they were VERY *PRO* individual right.
The "it only applies to a militia" argument is really nonsense, as well as "that's not what they meant" and "they could never have envisioned the situation today".


“No free man shall ever be debarred the use of arms.” - Thomas Jefferson

The laws that forbid the carrying of arms are laws of such nature. They disarm only those who are neither inclined nor determined to commit crimes... such laws serve rather to encourage than to prevent homocides, for an unarmed man may be attacked with greater confidence than an armed man.
- Thomas Jefferson ('Commonplace Book' 1775)

"The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed and that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press." - Thomas Jefferson

[treestar]

14. Carrying a gun in 1775

Was so different than it is now, that it is one of those questions that is hard to struggle with. Even if the Constitution explicitly created that right to an individual in 1775, it would have to be highly questioned today. Maybe it would take a Constitutional Amendment, but it should be subject to reasonable restrictions in terms of practicality.

[Edweird]

15. Self defense is still self defense. That has not changed.

Any "struggles" are simply manufactured controversy.

[slackmaster]

23. By the language of the Bill of Rights, Federalist Papers, etc. it is very clear...

...That the right to keep and bear arms, as well as others enumerated and not, already existed at the time those documents were written.

It doesn't say "The people shall have the right to keep and bear arms." It refers to that right as something that people already had.

[krispos42]

24. It is subject to reasonable restrictions in terms of practicality

A complete ban is not a reasonable restriction.

[baldguy]

25. “No free man shall ever be debarred the use of arms.” is not the wording in the Constitution.

Your first quotation is moot. If that's what the Founders had wanted to say then they wuold have done so. They didn't

The second quote has been proven to be false. Just look at every other industrialized democracy in the world for proof.

You third only has references to the plural, and proves my original point: ""...in the people...", "...that they may...", "...it is their right...", and "...that they are...".

People have a right to bear arms. Individuals do not.

[Rage for Order]

43. So why weren't guns taken from people in 1787...

Immediately following the ratification of the Constitution by all 13 states? The new government made no move to do so, which speaks volumes about the intent of the 2nd Amendment. If it was not intended to be a right afforded to individuals, it would've been enforceable immediately following the institution of the Constitution.

[Thothmes]

56. Along those lines, by the 1840s, almost all of the

State militias in existance were armed with weapons provided by the either the state or the federal government On does not see the Federal government out trying to take the privatley owned weapons away from the citizens in the militias because their is no longer a need for a man to bring his own gun to muster.

[AntiFascist]

45. I think States have something to do with it...

the founding fathers felt it was important for the people to rise up and overthrow a tyrannical government. If the Federal government ever started rounding up masses of innocent people and placing them in internment camps, as was done to innocent Japanese-Americans during WWII, then this would be the cue to begin exercising such power.

[dems_rightnow]

17. I don't singularly have the right to be secure...

.... against unreasonable searches? That's what you just said.

I believe that I do have that right. Singularly. As do you.

[baldguy]

22. You're right. You have a Constitutional protection against UNREASONABLE searches.

All an officer needs to search you or your property is a suspicion that a crime may have occurred. That makes it reasonable by definition. And it is a COLLECTIVE right - the police can't do house-to-house searches looking for any criminal activity, but they can target YOUR house individually if they have reasonable suspicion to do so.

[slackmaster]

27. They can search every house on your block if they have probable cause

So much for your "collective right" fantasy.

[Two Americas]

46. because a neighbor falsely snitched on you?

That was what was happening in colonial days, and that was the entire impetus that led to the Revolution, the ideas and concepts in the Declaration of Independence, The Constitution and the Bill of Rights. The population was being forced to snitch and snoop on their neighbors, and to assist armed agents of the state in entering and searching people's homes and businesses.

Possession laws give agents of the state a pretext and an excuse for violations of the 4th and 5th amendments protections. That is the problem. What exactly it may be that the authorities are allegedly searching for is not relevant and changes nothing.

The item being searched for does not determine the legality of the search. When the possession of something becomes itself the crime, we have turned the Bill of Rights upside down and rendered it inoperative. Police may search for items in connection with a crime being committed.

Imagine if there were a murder case, and the police knew that a tire iron had been used. Would that then allow them to search everyone for tire irons? Of course not. Yet if we made possession of tire irons illegal, because someone had used one in a crime, that would be what would happen. Since the police cannot practically search everyone, possession laws are always open to interpretation, enforced selectively, and foster snitching and corruption of government officials. They also represent the entire foundation for a police state, and the very things that our entire theory of government upon which all of our laws are based was designed intentionally to prevent.

[slackmaster]

21. Every individual has the right to be secure against unreasonable searches and seizures

If you try to spin it as a "collective" right, it makes no sense at all.

The 2nd Amendment has ALWAYS been interpreted to mean that the people - COLLECTIVELY - have the right to keep & bear arms.

Nice pettifoggery, classic use of passive voice to avoid saying anything substantial or verifiable.

I, and many other people, have never interpreted it as anything less than a right of individuals.

[baldguy]

30. Every individual has the right to be secure against unreasonable searches and seizures.

UNREASONABLE searches & seizures. That right is not unequivocal. The right to be secure in your person & property is subject to reasonable restrictions (see #22).

Same with the 2nd Amendment. The USSC said that reasonable restrictions were Constitutional. When they said that, then proceeded to strike down the Wash DC ban, they contradicted themselves. DC had determined that a reasonable restriction for their jurisdiction was a total ban. It wasn't unconstitutional because nobody is required to live in the city.

Again, the fascist RW lunatic Supreme Court is wrong.

[slackmaster]

32. They decided that DC was wrong

A total ban is not a reasonable restriction, and I agree with them.

It wasn't unconstitutional because nobody is required to live in the city.

Is that a "progressive" version of the right-wing chestnut "America: Love it or leave it!"?

[baldguy]

36. This is not "America: Love it or leave it"

It's "Don't pretend the Constitution says something it doesn't say."

If you want to REALLY grant individuals the right to carry weapons then CHANGE the Constitution to say that. Have the debate. Argue the merits vs the dangers.

Don't pretend the 2nd Amendment says something it doesn't. It's about militias & national defense - it's not about an individual carrying a handgun. Don't pretend it's not obsolete. Don't pretend most people in most situations have no need to arm themselves with firearms of any kind - especially in cities where such weapons exasperate the problems of crime & violence and do NOTHING to alleviate them.

[slackmaster]

38. That cuts both ways, baldguy

"Don't pretend the Constitution says something it doesn't say." Yes, it doesn't say anything about "collective rights".

Don't pretend the 2nd Amendment says something it doesn't. It's about militias & national defense...

Yes, it's about ensuring that the population has a pool of armed, trained people that can be called upon to support national defense. It just might be obsolete for that purpose, BUT IT IS STILL THE LAW.

...it's not about an individual carrying a handgun.

Straw Man. The Heller decision explicitly says it is not to be interpreted as striking down reasonable restrictions. DC's laws requiring a special license to carry a handgun in public IS STILL INTACT.

Don't pretend most people in most situations have no need to arm themselves with firearms of any kind - especially in cities where such weapons exasperate the problems of crime & violence and do NOTHING to alleviate them.

Red Herring. The Bill of Rights is about rights, not YOUR subjective interpretation of other peoples' needs.

[SteveM]

53. "Foolish liberals who are trying to read the Second Amendment out of...

the Constitution by claiming it's not an individual right or that it's too much of a safety hazard... They're courting disaster by encouraging others to use the same mens to eliminate portions of the Constitution they don't like." Alan Dershowitz

Dershowitz, no friend of firearms, suggests that if you want 2A to NOT read as an individual right, then repeal it.

No need to "pretend."

[SteveM]

52. If you fear fascism, how much do you want to restrict guns? (nt)

[krispos42]

26. The First and Fourth are individual rights

BushCo likes to pretend they aren't, but they are.

Otherwise, to change the meaning of "the people" affects the chosing of the House of Representatives (Art. 1 Sec. 2), as well as the First, Fourth, Ninth, Tenth, and Seventeenth Amendments.

For example, the Seventeenth says:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

So how can "the people" mean "collective right" if they're talking about an election in which every voter votes, and the votes are tabulated with a simple majority ruling?

[-..__...]

29. 5 RW lunatics?

That would include Kennedy?

The same Kennedy that just a few days ago was the deciding factor in the SCOTUS rulings that upheld the habeas corpus rights of Gitmo prisoners and stated that the death penalty for child rapists is unconstitutional?

Poor guy... I guess he just can't make up his mind.

"The fact is the Supreme Court is wrong"

That's not fact... that's an opinion.

[pt22]

50. Fortunately for us, their opinion matters and yours does not.

:eyes:

[SteveM]

51. You are quite wrong about the Second and here's why...

The bulk of scholarly opinion is and has been for some years on the side of the individual right to keep and bear arms (See: 62 Tennessee Law Review, 461 <1995>) for a review of scholarship on this subject since 1980.

You might be interested to know that the individual right position is referred to as the "standard model", even by those in the minority who see some kind of communitarian right.

I have heard this "people" vs. "individual/personal" distinction before and am not moved by it. In 4A, a right of the people is recognized and mentions "persons" as well. Where would you cast your "blanket" of reasonable restrictions over the 1st Amendment? Not very far I hope. Where would I cast your blanket over the Second? Not very far. The problem with your outlook is failing to recognize that the Constitution is a "negative" document in that it removes the U.S. Government from restricting the rights enumerated. In other words, I don't want (nor does the Constitution envision) a "blanket" (not matter how reasonable) to be thrown over the enumerated rights. What restrictions (on speech, assembly, guns) come about are on a case-by-case basis (or complaint-driven in some parlances), and from these we gain precedent which may be construed as reasonable restriction when another similar problem arises.

Re-read the history of the 14th Amendment and what the debate therein says about Southern state "communitarian" militia.

[ProdigalJunkMail]

4. wow...your in depth understanding of the decision

is astounding...and the fact that this was about INDIVIDUAL rights has no meaning to you...

what a joke...

sP

[gratuitous]

5. Scalia only read the part he wanted to read

His opinion dismissed out of hand half of the second amendment related to militias, and mentioned the words "well-regulated" only once to reach his tortured, pre-ordained conclusion. But then, that's what passes for sober jurisprudence in the United States nowadays where legal Lilliputians like Scalia pen opinions grounded on the ether of their own warped world view without recourse to inconvenient reality.

[BuddhaGirl]

41. I agree

People look for anything to justify their positions. That is exactly what the USSC did. Unfortunately for our society, they make up the majority right now.

Perhaps one day a real shift will occur, to a more civilized society without the weapons that harm and kill it's members. I am sure it won't happen in my lifetime, though.

All my own opinion, of course.

[SteveM]

55. The majority ruled on Heller's contention that his rights were abridged...

and they were. No doubt, if Heller had presented some sort of case about militias, you would have read a lot more about them. It seems clear that the Court recognized the Second's purpose with regard militias, but that wasn't the issue at hand and thus moved to the question of an individual right.

The history of liberal thought -- especially in the last 50 years -- has been about expanding the rights of Americans, not about restricting them (though the current crop of Democrats in Congress gives me pause). I find it disturbing that liberals seek to restrict rights to the hideous and clinical degree seen in D.C., seeking etched-in-stone constructionism in the Bill of Rights.

[aikoaiko]

6. It was really never a requirement except in anti-gun nuts minds.

It wasn't a requirement to be in a militia to have the right to keep and bear arms.

[bluerum]

9. FYI - it is not required to put the word "nuts" after anti-gun.

[cherokeeprogressive]

57. You are ABSOLUTELY correct. It's not necessary.

It's a given. Stating the obvious is redundant.

[ThomWV]

13. You are correct to use the word "Nuts" after "Anti-gun"

No other word does their particular sort of insanity justice.

[Name removed]

31. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Crabby Appleton]

8. If you are a US male between the ages of 17 to 45

(i.e. draft age, or age 64 if prior regular service member) you are by law the militia

http://www.law.cornell.edu/uscode/10/311.html

§ 311. Militia: composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

[Bandit]

11. But doesn't title nine contradict that

Isn't there and equal protection clause in the Constitution? Doesn't that contradict this only male decree? If the Constitution has contradictory clauses what is the outcome?

[slackmaster]

19. The "males only" part would probably not withstand a constitutional challenge

:shrug:

[ThomWV]

12. We still have militias - now they are called the National Guard

Every state has one.

[kskiska]

16. except they're no longer in the states where they belong

They're mostly in Iraq.

[slackmaster]

18. You need to read up on the subject - Reality is much more interesting than your stereotype

As an example, I offer you the California state militia.

It consists of every able-bodied citizen. It hasn't been called up for armed service in over 100 years when it was used to break up a strike, but armed service is not the only function of citizen militias. Here is the definition from the California Military and Veterans Code:

MILITARY AND VETERANS CODE
SECTION 120-130

120. The militia of the State shall consist of the National Guard,
State Military Reserve and the Naval Militia--which constitute the
active militia --and the unorganized militia.

121. The unorganized militia consists of all persons liable to
service in the militia, but not members of the National Guard, the
State Military Reserve, or the Naval Militia.

122. The militia of the State consists of all able-bodied male
citizens and all other able-bodied males who have declared their
intention to become citizens of the United States, who are between
the ages of eighteen and forty-five, and who are residents of the
State, and of such other persons as may upon their own application be
enlisted or commissioned therein pursuant to the provisions of this
division, subject, however, to such exemptions as now exist or may be
hereafter created by the laws of the United States or of this State.

123. Whenever the Governor deems it necessary, he or she may order
an enrollment to be made by officers designated by the Governor, of
all persons liable to service in the militia. The enrollment shall
include any information that the Governor may require. Three copies
thereof shall be made: one copy shall be filed in the office of the
clerk of the county in which the enrollment is made, and two copies
in the office of the Adjutant General.

124. Enrollment shall be made upon such notice and in such manner
as the Governor may direct. Every person required by such notice to
enroll who fails or refuses so to do is guilty of a misdemeanor.

125. The following persons shall be exempt from military service:
(a) Persons exempt from military service by the laws of the United
States.
(b) Regular or duly ordained ministers of religion.
(c) Students preparing for the ministry in recognized theological
or divinity schools.
(d) Pilots and mariners actually employed in sea service by a
citizen of the United States.
The above persons shall not be exempt from enrollment but shall
file verified claims for exemption from military service in such
forms and manner as the Governor may direct....

Nearly every state, and the United States Code, all have similar formal legal definitions of the militia. The overweight middle-aged guys crawling around in the woods clutching SKS rifles may be a gun club, but they are not the militia no matter what they call themselves.

The unorganized militia provides human resources to be called on in the event of an emergency, like a flood or earthquake or tsunami. The people you see sandbagging levies along the Mississippi River are not just working out of the kindness of their hearts - They and you and I and everyone have obligations as members of an organized society to pitch in for the benefit or protection of everyone, when circumstances call for it; they (and you and I and everyone) are the militia.

Fortunately, there are usually enough kind and generous people who are willing to serve in such circumstances, that gubernatorial authority to formally call up the unorganized militia has rarely been needed in recent times. But it could happen again.

The right of the people at large to keep and bear arms, like the obligation to serve in the militia when needed, is part of the social contract we all live under.

[krispos42]

28. The difinition of "militia"

EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - THE MILITIA

-HEAD-
Sec. 311. Militia: composition and classes

-STATUTE-
(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.

By my math that's about 55 million males and maybe 30,000 females that have the right to keep and bear arms under the "you have to be a member of the militia" theory.

Ponder that a little bit. 2,000 armed men for every armed woman in this country.

[High Plains]

34. All hail the 2nd Amendment. 30,000 martyrs a year.

Is the price we're willing to pay. Hurrah.

[slackmaster]

35. Do you honestly think recognizing it as an individual right, or letting DC residents have handguns

Is going to make any difference?

I don't.

[baldguy]

37. Sure it'll make a difference.

It'll make it worse.

[slackmaster]

39. I'd like to propose a gentleperson's wager that it will not.

:hi:

At least that is something that might be empirically measurable - Whether a few hundred or a few thousand DC residents keeping licensed handguns in their homes CAUSES an increase in violent crime.

[RC]

40. You (They) will also have to factor in who wins the election and where the economy goes

the next 4-8 + years.

[slackmaster]

42. Yes, crime rates have many, many contributing factors

There are at least a couple of ways that allowing DC residents to own handguns could lead to crimes that would not otherwise have happened:

1. Crimes of passion committed by the people who have guns, and

2. Crimes committed with those guns after they are stolen. (Of course, the criminals in those cases might just have gotten a gun somewhere else if the ban was still in effect.)

The part that is much harder to measure is things like assaults and break-ins that either didn't happen because the would-be perpetrator feared the target victim might be armed, and crimes that are successfully stopped through armed intervention by the victim. Those often don't get reported.

My personal opinion is that the effect will be a wash, and any net effect so overwhelmed by the noise of other factors as to be unmeasurable. That's pretty much how things are in states that have adoped objective "shall issue" standards for concealed weapons permits.

I say if there is no measurable increase or no change in crime rates as a result of a change in the law that gives individuals more choices, then the change is inherently good.

[Two Americas]

44. irrelevant

"Militias" has nothing to do with this.

The 2nd amendment does not say "if and so long as militias are needed, and only in these circumstances, as determined by the authorities, you are given permission by the authorities to keep and bear arms."

[dawgman]

48. I disagree whole heartedly

that is all.

[elizfeelinggreat]

49. "Extreme Court "

That is PERFECT.

[undeterred]

54. It would be nice if we actually had local citizen militias

but I think the current climate of our country is for people to defend themselves and their immediate families only. If martial law were imposed we wouldn't have the organization to resist it.