Justice Stevens - bye bye to the 2nd as we know it.

[speedrrracer]

Does that mean the 2nd amendment doesn't apply to women because they can't be a part of the militia?

Same thing as "all men are created equal" -- it would include women and all the various permutations

But give it a try and let us know how it works out.

Right after Stevens succeeds with re-writing the 2A, we're on it, and we'll post our results here

So, no worries, because the 2A applies to... oh... 15, 20% of the population?

Only anyone too young, too old, too infirmed, too female need not apply?

The female thing I already addressed, and the too old, etc thing -- it just says you have to be "physically capable of acting in concert" -- so, if you can, if there was ever a need for the militia to be called up, act in concert with the militia for the common defense, then you're GTG. Well, the militia will need cooks and it will need people on comms and doctors whatever else it will need -- you have to be able to show up and physically do those things. Doesn't say you have to be able to 10 pullups or storm a hill.

OTOH, if you're on life support, then OK, you're out.

Only if Congress determines that all of us who "qualify" running around between call-ups that never happen are currently "serving" in the militia. You did notice that bolded add-on right? He limited it to militia WHEN serving.

Sure, and conveniently didn't define serving, so it becomes a chicken-and-egg thing. Part of service, at least as it applies to such things as the reserve, is "Well, you're not doing anything for us right this minute, but when we need you, we'll call and you have to drop everything and come running." So by the definitions applied to reservists, you don't have to be actively engaged in militia-related activities to be serving -- your readiness / willingness to serve is in fact part of your service.

I worry more about the next supreme court judge to be nominated.

Me, too. Towards that end, the coming senate midterm elections are probably the most important thing in the 2A world right now. There are enough seats currently owned by Dems up for grabs that, if we can replace those Senators with pro-2A types, we can at least block Obama / Hillary 's onslaught of anti-2A Justice appointees.

 

[JimDandy]

Same thing as "all men are created equal" -- it would include women and all the various permutations

You sure of that with the US Code definition of militia linked earlier?

 

[Aguila Blanca]

Originally Posted by noelf2
Does that mean the 2nd amendment doesn't apply to women because they can't be a part of the militia?

Same thing as "all men are created equal" -- it would include women and all the various permutations

Nope, not the same at all. Have you read the actual language of the Militia Act?

10 U.S. Code § 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.

Other than female members of the National Guard, where/how does the Militia Act in any way include women in general? In fact, technically it doesn't even include females who are members of the NG but who are not citizens.

[EDIT]Wait ... my bad. I thought your comment was about the militia. Upon a second reading I guess you were applying the 2A to women.

Sorry. I'm taking Remedial Reading 202 next semester.

 

[44 AMP]

I forget which one of the founders it was (and too lazy to look) but when asked "who are the militia" they answered "it is all the people, absent a few government officials".

I kind of like that one...

 

[Tom Servo]

As near as I can tell it's not "all able-bodied men". 10 U.S. Code § 311 has an age limitation of 17-45

Well, yeesh. I've only got a couple more years left to stockpile guns!

The point of Heller is that we got our foot in the door on one important issue: the 2A applies to individuals (sorry, Justice Stevens) and is independent of militia service. That'll be a hard one to reverse in the immediate future.

That said, we need to be somewhat wary of future appointments that could whittle away the contours of the right from the edges in.

 

[kilimanjaro]

Maybe the left wants to hand their hat on militia membership, thusly eliminating anyone younger than 17, older than 45, or any female not in the Guard, but that won't fly.

Age and gender are not legal means of discrimination among American adults anymore.

I almost wish they would try this. Regardless of Heller, a lot of the left still thinks the 2nd Amendment means the army gets to have guns.

This country will accept the Supreme Court decisions as long as they seem to make sense, but not much longer should they decide to become arbitrary and capricious.

 

[4runnerman]

Stupid question here- If we are all members of say the NRA- does that not make us a legal militia?.

 

[Doc Intrepid]

"I forget which one of the founders it was (and too lazy to look) but when asked "who are the militia" they answered "it is all the people, absent a few government officials".

I kind of like that one..."

You're referring to George Mason:

""I ask, sir, what is the militia? It is the whole people, except for a few public officials."
— George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788"

Citation: http://econfaculty.gmu.edu/wew/quotes/arms.html

I like that one too.

 

[Aguila Blanca]

The point of Heller is that we got our foot in the door on one important issue: the 2A applies to individuals (sorry, Justice Stevens) and is independent of militia service. That'll be a hard one to reverse in the immediate future.

Interestingly, as a result of Heller and McDonald jointly we now also have just the opposite of Miller. Where Miller viewed the right to possess any particular type of arm (specifically a short-barreled shotgun) as being allowed ONLY if said arm had a military purpose ... Heller and McDonald went the other way and said that the "core" right protected by the 2A is the right to [have*] arms for self defense. Essentially, Heller and McDonald blasted Miller right out of the sky.

So we really got TWO important issues: First, that the RKBA is an individual right. Second, that the fundamental ("core") right is a right to have arms for self defense.



* I wrote "have" because, even though the 2A addresses a single right to keep AND bear arms, both cases hinged only on the "keep" aspect and lower courts persistently apply it as though the right to "bear" arms is somehow enumerated in a separate amendment to the Constitution.

 

[Doc Intrepid]

"I wrote "have" because, even though the 2A addresses a single right to keep AND bear arms, both cases hinged only on the "keep" aspect and lower courts persistently apply it as though the right to "bear" arms is somehow enumerated in a separate amendment to the Constitution."

Certainly it's my understanding that this is the case in Washington DC. You may be able to keep it...but you'd better not 'bear' it. And not only bear "arms".

Apparently in Washington DC the possession of ammunition - by itself, absent or separate from any firearm - is now illegal unless one of several conditions listed below is met. Legally speaking, therefore, Washington DC apparently regards Heller as applying predominantly to the firearm itself, but not necessarily to ammunition. And apparently in both cases the firearm must be registered with the government, and a registration certificate must be in hand for the purchase and possession of ammunition for that firearm only.

"It is illegal to possess ammunition in the District of Columbia unless the person is: (1) a licensed dealer, (2) a federal or city law enforcement officer acting within scope of duties, or (3) holder of a valid registration certificate of same gauge and caliber as ammunition in possession. It is also illegal to possess, sell or transfer any “large capacity ammunition feeding device.”

A person guilty of this charge can be sentenced to a maximum fine of $1000 and/or up to a year imprisonment. D.C. Criminal Code 7-2506.01."

Citation: http://koehlerlaw.net/drug-offense/weapons/

 

[speedrrracer]

Nope, not the same at all. Have you read the actual language of the Militia Act?

You sure of that with the US Code definition of militia linked earlier?

I guess I'll need the lawyers to tell me if I'm wrong, but I thought that legislators write laws, and the Court interprets them as the apply to the Constitution. Legislators are not limited as to the words from which they may choose. IOW, just because they call it the Militia Act doesn't mean it's the final word on the "militia" as it applies to the 2A. The Court, specifically Heller, is the final word on that. Maybe I'm wrong.

Also, if the Militia Act was binding in Stevens' fantasy does that mean that any 17 year-old "in the Militia" (which is apparently all of them?) could not be prevented from owning guns? I guess Stevens is sorta endorsing the NRA's position in NRA v. BATFE, since 17 year-olds are GTG??

 

[JimDandy]

Also, if the Militia Act was binding in Stevens' fantasy does that mean that any 17 year-old "in the Militia"

If they're called up they might get handed a firearm. In Bizzaro Breyer Land, where it's militia dependent, there's no guarantee you or I, or anyone else gets to keep one in their home. In his Utopia , it's entirely possible even police officers would have to leave their sidearms in the station when they go off duty.

but I thought that legislators write laws

Correct, and it's entirely possible, even likely, that 10 U.S. Code § 311 violates the equal protection/gender equality protections of women. If the entire country took a nap and left the Honorable Justice (Retired) alone with a quill, ink well, and Constitution I'm fairly certain we'd see that challenge against a law that seems to exclude a (actually several) protected class(es) quite clearly. in the courts before the ink on his bathetic fingers had dried.

And even IF such a law were struck for violating those protected class rights, do you think there would be any sort of impetus to pass a replacement? The last militia call up was how long ago? The last one I can find (and I'm not sure it should really "count" as it was more a company private security force working with the National Guard than a State Militia) was in 1914. The country isn't going to grind to a halt if there are no militia.

 

[44 AMP]

The last militia call up was how long ago?

If you mean called up by the government for military service (and we don't count reserve or national guard) quite a while ago.

But militias have been called to "duty" numerous times in various locals, and quite recently. A group of people defending themselves and their neighborhood from looting after a hurricane is the militia, in action.

it may be the unorganized militia, but its still the militia.

 

[Aguila Blanca]

A number of states have official militias, in addition to the National Guard. For those states that have them, they function sort of like a "junior varsity" National Guard. In some states they train with the NG, in others they don't. Typically, they fall under the state's Adjutant General, who is also the commander of the state's NG. The militia may be called out/up to help out in case of natural disaster, for example. Since they are technically "militia" and not 'National Guard," they cannot be federalized and they are not subject to being called up by the President and sent to far-away places to do things the National Guard was never intended to do.

 

[glh17]

"A number of states have official militias, in addition to the National Guard. For those states that have them, they function sort of like a "junior varsity" National Guard. In some states they train with the NG, in others they don't. Typically, they fall under the state's Adjutant General, who is also the commander of the state's NG. The militia may be called out/up to help out in case of natural disaster, for example. Since they are technically "militia" and not 'National Guard," they cannot be federalized and they are not subject to being called up by the President and sent to far-away places to do things the National Guard was never intended to do."

Sounds like a good idea to me.

 

[leadcounsel]

After many years caring, reading, and researching about the 2A, here's my conclusion:

1) The writing of the 2A is plain. The times were simple. The meaning is clear.
2) It takes a purposeful and creating effort to try to NOT understand the plain straight-forward language of the era and the 2A.

It absolutely disgusts me that these individuals of presumably higher thought and with such incredible power in their lives to influence and effect the lives of many, so purposefully try to NOT understand, or to twist the plain meaning into some creative narrow exception that was never intended (or else it would have been clearly spelled out).

For instance, if the 2A intended what [anti-gunners] want it to mean, then there would have been some express statement to the contrary of the 2A as it was written... The 2A was a positive statement granting rights. However, they could have just as easily written it in the negative, such as the STATE has a right to grant guns temporarily to individuals in times of emergency, and then re-possess them.

But our forefathers clearly wanted it to be individual rights, so guns would be decentralized and owned by everyone, thereby making the US an impossibly difficult enemy to defeat.

 

[44 AMP]

The 2A was a positive statement granting rights.

I know we talk this way in casual conversation all the time, but I
m going to wack the dead horse one more time...

The Second Amendment does NOT grant any rights. It recognizes that the right exists, and why (necessary to the security of a free state) and puts restrictions on the government (shall not be infringed).

I think the Founders did not believe that any government has the authority to grant "rights". Our natural "rights" come from a higher power. Governments can neither giveth, nor taketh away.

They can, and do, however, allow, limit, or prohibit you from exercising those rights in different ways.

 

[Aguila Blanca]

The 2A was a positive statement granting rights.

I know we talk this way in casual conversation all the time, but I
m going to wack the dead horse one more time...

The Second Amendment does NOT grant any rights. It recognizes that the right exists, and why (necessary to the security of a free state) and puts restrictions on the government (shall not be infringed).

I think the Founders did not believe that any government has the authority to grant "rights". Our natural "rights" come from a higher power. Governments can neither giveth, nor taketh away.

They can, and do, however, allow, limit, or prohibit you from exercising those rights in different ways.

I agree with you, 44 AMP, right up to the last sentence. And there are many, including our own moderator Frank Ettin, who even agree with your last sentence.

Frank has argued against my diatribes many times that ALL Constitutional rights are subject to reasonable regulation. Frank's basis for saying that is, I believe, that they always have been regulated, so therefore they must be subject to regulation.

That view, however, is refuted by the specific language of the 2nd Amendment itself. As I have noted multiple times in the past, the 4th Amendment protects us against "unreasonable" search and seizure, thereby leaving the door wide open to "reasonable" search and seizure. It then falls on the courts to draw the line between what searches and seizures are reasonable and those that are unreasonable.

There is no such balancing act called for or allowed under the 2nd Amendment. As leadcounsel states two posts above, the language is clear and unambiguous. As the saying goes, "What part of 'Shall not be infringed' don't you understand?" Quite simply, there is nothing in the 2nd Amendment to give even a toenail's hold on any concept that any degree of regulation of the RKBA is allowed. Regulation = infringement. Infringement is not allowed.

The problem, of course, is that grammar Nazis don't get to render binding interpretations on the Constitution, nine people in black robes do. And, unfortunately, a majority of those nine have inexplicably (but predictably) determined that the clear language of the 2nd Amendment isn't clear, and that "Shall not be infringed" actually means "May be infringed up to the point where we say it can't be further infringed ... and we're not there yet."

Thus, leadcounsel's pithy statement:

It absolutely disgusts me that these individuals of presumably higher thought and with such incredible power in their lives to influence and effect the lives of many, so purposefully try to NOT understand, or to twist the plain meaning into some creative narrow exception that was never intended (or else it would have been clearly spelled out).

 

[speedrrracer]

There is no such balancing act called for or allowed under the 2nd Amendment. As leadcounsel states two posts above, the language is clear and unambiguous. As the saying goes, "What part of 'Shall not be infringed' don't you understand?" Quite simply, there is nothing in the 2nd Amendment to give even a toenail's hold on any concept that any degree of regulation of the RKBA is allowed. Regulation = infringement. Infringement is not allowed.

While I agree with the two of you, what we see is a historical analysis revealing that there were, in fact, regulations / "infringements" which did exist at the time of the founding. That doesn't mean they were constitutional, and it doesn't mean the founders didn't intend for them to go away, perhaps they did! Still, it's hard to reconcile their existence when "shall not be infringed" was still fresh in everyone's mind, so why did these regulations clearly exist? Maybe everyone was just too busy surviving, and nobody ever got around to hashing it out, I don't know.

Also, in the "plain meaning" department, there's much to be said for the fact that dictionaries reveal that in many contexts, "infringement" doesn't mean "any tiny, little thing whatsoever", but instead means "broken". So the RKBA shall not be broken, well that has a very different meaning. Can't be broken but it can be regulated, is then how it reads. In our modern, non-legal usage, 'infringement' does tend to mean "any tiny thing whatsoever", but that may not have been the case centuries ago.

 

[Tom Servo]

As I have noted multiple times in the past, the 4th Amendment protects us against "unreasonable" search and seizure, thereby leaving the door wide open to "reasonable" search and seizure. It then falls on the courts to draw the line between what searches and seizures are reasonable and those that are unreasonable.

Your point is absolutely valid. However, they're going to do whatever intellectual contortions they can to limit the scope of the right, despite its clear and unambiguous wording.

That's the landscape, and that's what we have to deal with for right now.