The 2nd Amendment

[Toad]

The Founders made the intent of the 2nd Amendment undeniably clear.

Of course, nothing is undeniably clear when lawyers get involved.  

This stuff is basically clipped from: http://www.guncite.com/gc2ndsup.html

There have been 5 main Supreme Court cases that dealt with the 2nd Amendment. They are: U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Miller v. Texas (1894), U.S. v. Miller (1939), and Lewis v. U.S. (1980). One the Supreme Court refused to hear, Burton v. Sills (1968), and one concerning the meaning of the Fourth Amendment and "the people", U.S. v. Verdugo-Urquidez (1990), are also discussed.

U.S. v. Cruikshank involved members of the Ku Klux Klan depriving black victims of their basic rights such as freedom of assembly and to bear arms. The court decided that neither the First nor Second Amendments applied to the states, but were limitations on Congress. Thus the federal government had no power to correct these violations, rather the citizens had to rely on the police power of the states for their protection from private individuals.

This case is often misunderstood or quoted out of context by claiming Cruikshank held the Second Amendment does not grant a right to keep and bear arms. However, the court also said this about the First Amendment. The court explained that these rights weren't granted or created by the Constitution, they existed prior to the Constitution.

Presser v. Illinois ruled that the states had the right to strictly regulate private military groups and associations. It also reaffirmed the Cruikshank decision that the Second Amendment acts as a limitation upon the federal government and not the states. However Presser also stated that setting the Second Amendment aside, the states could not prohibit the "people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security..."

Miller v. Texas (1894)

Franklin Miller, convicted of murder, on appeal, claimed his Second and Fourth Amendment rights had been violated under the Fourteenth Amendment. The court upholding the conviction, reaffirmed Cruikshank v. U.S. and stated: "And if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court." In other words the court wouldn't even consider whether Miller's rights had been violated under the Fourteenth Amendment because he had not filed such a claim in his original trial.

This Next one is truly illuminating FOR BOTH SIDES OF THE QUESTION:

U.S. v. Miller (1939)

Frank Layton and Jack Miller were charged with violating the 1934 National Firearms Act, which regulated and taxed the transfer of certain types of firearms, and required the registration of such arms. The Miller court decided the following:

1) The National Firearms Act was not an unconstitutional usurpation of police power reserved to the states.

2) "In the absence of evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 inches in length,' which is the subject of regulation and taxation by the National Firearms Act of June 26, 1934, has some reasonable relationship to the preservation or efficiency of a well-regulated militia, it cannot be said the the Second Amendment to the Federal Constitution guarantees the right to keep and bear such an instrument, or that the statute violates such constitutional provision."

3) "It is not within judicial notice that a shotgun having a barrel of less than 18 inches in length is any part of the ordinary military equipment or that its use could contribute to the common defense."

4) "The Second Amendment must be interpreted and applied with a view to its purpose of rendering effective the Militia."

As noted in the Summary section, Miller has often been mis-cited. Note that in the entire text of Miller, neither the words "state militia" nor "National Guard" are to be found.

Regarding item 4) above, the Miller court defined the Militia as the following:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.
 
The Supreme Court reversed and remanded the case back to the district court, giving the defendants a chance to provide evidence that a short-barrelled shotgun could contribute to "the efficiency of a well-regulated militia." Note Miller only required evidence that the weapon contribute to the efficiency of a well-regulated militia. The court never said the defendants had to belong to a well-regulated militia. In other words the Miller case interpreted the Second Amendment to mean one has the right to own militia type weapons.

The defendants had not appeared for their Supreme Court hearing and they had no legal representation as well! In its brief the U.S. government argued the "collective rights" theory. (See GunCite's rebuttal to the U.S. government's brief.)

Lewis v. U.S. (1980)

Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 forbids the possession of firearms by a convicted felon. Lewis, the petitioner, was convicted of a felony in a 1961 state court "for breaking and entering with intent to commit a misdemeanor". In 1977, in Virginia, Lewis was charged with receiving and possessing a firearm in violation of the above act. Lewis, claimed his latest conviction violated the Fifth and Sixth Amendments because he had no counsel present during his 1961 trial.

The court upheld Lewis' conviction, holding:

(a)...the fact that there are remedies available to a convicted felon - removal of the firearm disability by a qualifying pardon or the Secretary of the Treasury's consent, as specified in the Act, or a challenge to the prior conviction in an appropriate court proceeding - suggests that Congress intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress' purpose to keep firearms away from persons classified as potentially irresponsible and dangerous.

The court also commented it was customary to deny convicted felons the right to vote, hold union office, or practice medicine.

Burton v. Sills (1985) (the Supreme Court refused to hear t his case for a reason or reasons known only to them)

From Stephen Halbrook's "That Every Man be Armed: The Evolution of a Constitutional Right":

A...striking erosion of the right to possess arms was exemplified in the New Jersey case of Burton v. Sills (1968). It originated when members of sportsman clubs and gun dealers brought an action to declare unconstitutional the state's gun-control law, which imposed restrictive requirements. Conjuring up an image of "political assassinations, killings of enforcement officers, and snipings during riots," the court expressed exaggerated fears of a revolution. The New Jersey Supreme Court restricted the definition of militia to "the active, organized militias of the states," that is, the National Guard. The court's very use of these adjectives to modify the word "militia" ignores the constitutional militia comprised of all persons capable of bearing arms. The Burton opinion simply fails to provide scholarly, historical, and analytical treatment of the subject, as indeed primarily only the antebellum state opinions do provide.

U.S. v. Verdugo-Urquidez (1990)

This case dealt with whether nonresident aliens, located in a foreign country, were entitled to Fourth Amendment rights. The Court ruled they were not. In discussing the meaning of "the people" in the Fourth Amendment, the Court commented:

" '[T]he people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the people of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.

While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. "
Therefore the Court viewed "the people" in the Second Amendment to have the same meaning as in the First, Fourth, Ninth, and Tenth amendments..
 
However, the Court didn't discuss whether the militia clause is a limiting factor, and how it might restrict the people's right to keep and bear arms. Moreover, in U.S. v. Hale, 978 F.2d 1016 (8th Cir. 1992), the Eighth Circuit stated:

"Citing dicta from United States v. Verdugo-Urquidez, 494 U.S. 259, 265 ... Hale argues that the Second Amendment protections apply to individuals and not to states or collective entities like militias. This argument is inapplicable to this case. The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia ... Whether the 'right to bear arms' for militia purposes is [Page 24] 'individual' or 'collective' in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia. Id. at 1020."

On a concluding side-note:

"Interestingly, the majority opinion's analysis of 'the people' protected by the Bill of Rights was an elaboration of a point made by the dissenting opinion from the Ninth Circuit Court of Appeals, when the majority had held that Mr. Verdugo was entitled to Fourth Amendment protections. When the Verdugo case went to the Supreme Court, the Solicitor General's office quoted from Ninth Circuit's dissent, but used ellipses to remove the dissent's reference to the Second Amendment. The Supreme Court majority, of course, put the Second Amendment back in."
        --- The Supreme Court's Thirty-five Other Gun Cases. By David B. Kopel

 
Some may find this boring but I find it an interesting example of how our system works. The Executive, the Legislative and the Judicial....intended checks and balances one upon the other.

Those Founders were pretty sharp.
 

[CavemanJ]

Toad thanks for posting that, I found it very interesting reading.

After reading all of that I can not help but wonder what the US Supreme Court would do with the Assault Weapons ban that was enacted in 94.  The arguement could be made that the ban interferes with the efficiecy of the militia.  "The Militia is comprised all males physically capable of acting in concert for the common defense."  Semi-auto and automatic weapons are more efficient than bolt action or single shot weapons when it comes to defending a position.

Now before all the anti-gunners start howling for my skin (but they will anyway   ), I'm not saying everyone should be allowed to have these weapons.  Some people just are not prepared mentally or emotionally to be gun owners.  I've even talked some good friends out of buying guns because I felt they couldna handle it.
But I do think the feds have overstepped thier bounds on this one, just noone has taken it all the way to the top.

And I think Hangtime is right.  I used to live in Gainseville, GA.  There is a NG armory there, right in the middle of town.  I had several friends in my shooting group who were in the NG and were assigned there.  This subject came up for debate a few times and every one who was in the NG said, to a man, they'd not fight agaist us, the people, and if this situation arose they would assist us in arming ourselves and our friends/families with arms from the armory.
I've spoken with friends here in Groton who are active duty in the Navy, and they've said basically the same thing.  If it ever came down to it, they'd not fight against the American public.

 

C'mon, the moron with an M-16 at home will have to face a trained soldier who has an m-16, grenades, artillery, other buddies (also trained and with better weapons) if it comes to a "face the army" situation. Look at all the things that happen when gun nuts get followers and barricade 100 or so men into a bunker and shoot it out with the goverment... they get to face light Tanks, helicopters, snipers, soldiers with superior weapons and tactics.

The first incident to come to mind when I read that was Waco, TX.  If memory serves, they faced the FBI and ATF, not the NG or Army (I suppose it's possible my memory is failing).  The FBI and ATF are arms of the federal government that we, the people, are supposed to be regulating.  They'll be the ones we'll have to face.

Now if you'll excuse me, I need to go pick up a Bradley  

[Toad]

NP, Cave...glad you found it interesting.

I'm not pointing a finger at anyone, believe me, but lots of people argue stuff without doing any research into the particular topic. The Web absolutely shines n this area.

I've read the Handgun Control literature, too. You never know where you might find truth. It never hurts to see where the other guy is coming from. Doesn't mean you have to agree of course.  

Knowledge doesn't hurt anyone; truth is usually in there somewhere.

I hope people on both sides of this argument have learned something here, whether or not they agree.

I believe you are exactly right on the Assault Weapons ban. I'm not saying I'm for or against them <trying to just maintain a neutral position of observation>. I think if it went to the Supreme Court, there would be previous case law that might serve to overturn it.

However, at the same time, remember the Court simply refused to hear Burton v. Sills in 1985 which dealt DIRECTLY with the State of New Jersey's gun control law.

So, the Court has ways of ruling without even hearing a case.  

Which brings me FINALLY to the point of this entire thread...<thanks for the perfect leadin, btw>...which I will reveal tomorrow because I have to go fly my Fairchild!  

Stay tuned!

[CavemanJ]

 

Originally posted by Toad:
I believe you are exactly right on the Assault Weapons ban. I'm not saying I'm for or against them <trying to just maintain a neutral position of observation>. I think if it went to the Supreme Court, there would be previous case law that might serve to overturn it.

However, at the same time, remember the Court simply refused to hear Burton v. Sills in 1985 which dealt DIRECTLY with the State of New Jersey's gun control law.

True, not even hearing the case sets a precedent of sorts, but Burton v. Sills in 85 was the state of NJ's laws.

It appears, from what you posted in U.S. v. Cruikshank, that the 2nd Amendment is to prevent the Federal government from limiting these rights.

"The court decided that neither the First nor Second Amendments applied to the states, but were limitations on Congress"

That being the case, Congress and Slick Willie have overstepped thier bounds, and it just needs someone to take them to the mat on it and it should be overturned.  The same can be said for the magazine capacity limitation, which applies to affecting the efficiency of the militia.

BTW, anyone know exactly how many gun models were banned by that Assualt Weapons ban?  By the lists of items that is.  My friends I stopped counting at 170, including the .22 calibre pistols used by the US Olympic shooting team and the Colt 1911A1 using to win the Biannchi (sp?) cup in 94 (and that was a damn fine pistol, NOT the kind of thing you would find used in crime (criminals would hawk that sucker fast for the big $$$ it would get))

[Toad]

So, the topic for today, and why I started this whole thread.....

We US citizens will vote for a President very shortly. What actually will affect us the most?

This deals directly with the three arms of government, Executive, Legislative & Judicial. Intended as checks and balances, one against the other, what really is the current situation?

[IMHO]

The Congress really doesn't do much any more. We are so divided and antagonistic that our Congressmen no longer weigh issues on their merit or value to the nation/society. Special interests groups ($), party lines, etc., etc. take precedence. No real change, no major issue overhauls come out of Congress anymore because on the truly BIG stuff no one will agree and there are enough dollars floating around to delay real change indefinitely.

The Presidency is almost to a figurehead stage. Leadership? Hah! "That vision thing?" Hah! The Presidency is now an office that reacts to fickle public opinion polls rather than an office that can define a dream/goal for this nation and begin to move us forward.

So where does the real power presently lie? I believe it's in the Judicial arm, particularly the Supreme Court. These 9, appointed for LIFE can in one day, one opinion, change the very fabric of American life. Their interpretation of laws past <the Constitution> or laws present <recently passed legislation> can immediately alter our society.

Now, who appoints these 9 wise folks?

The President, of course. THAT is the one reason current Presidential elections are important.

So, I ask all of you to review the societal issues that are near and dear to your heart...the 2nd Amendment, Capital Punishment, Abortion, Income Tax <there is a challenge building here, one that claims it was never ratified by enough states>, whatever issues you feel are of most importance to the future of our society. I don't care what side you are on in any of these debates. Just think them over.

Then, when you vote for a President, I suggest you mainly consider what type of Supreme Court Justices this man will appoint in his term.

This issue, I believe, is where the real power to alter the US lies. Make sure you know what your candidate intends to do here. Ask questions, press their campaigns for information. Bother your local news agencies and make them aware of the interest in this area.

Idealistic? Yep, I am. I admit it.

But I do feel that the future of this democracy lies mainly in the 9 folks on that bench.

[This message has been edited by Toad (edited 08-12-2000).]

[Maverick]

Toad,

Outstanding research and scholarship. I SALUTE you.

I have served in the Military (Army) and worn a badge as a "civilian" Police officer. I also went to college for more than 4 years before putting on a blue uniform. One of the things that really stands out in my memory is a Constitutional Law Prof stating that the Bill of Rights is not a document that gives rights to citizens of this country. It is a document that LIMITS the powers of the Government to restrict the rights you have by benefit of being a citizen of this country. The Government is not in the business of empowering (howzat for a PC term!) people. It is in the business of restricting them.

Some of the restrictions are quite valid. It is unlawful to steal, kill, bear false witness and a host of other acts that are basically injurious to others. Freedom does not mean that you have the right to injure another. It means you have the right to prevent another from injuring you. This injury can be physical, financial and even emotional. If you think I am joking, what category do non violent "hate crimes" fall under? Fre speech also has limits. If you say (print) something that is false and injurious, you can be held accountable. Most obvious easy example, screaming fire in a crowded building. Another example is lible and slander. Now the defense to those charges is simple. All you have to do is prove that the statements you made were true and factual. If they were, then there is NO criminal violation.

I have found, in the course of my career that denying someone their liberty is one of the most damaging things you can do to a person short of physical injury. The exercise of arrest powers are not something to be taken lightly. The restriction of another person should ONLY be done on the basis of a legal and exigent circumstance. Many people are willing now to deny others fredom to live as they wish, just because they don't like other folks living that way. They will continue to state that "security" will be increased if only those "other folks" can no longer do those things that the complaining party doesn't like. Outside of restricting the Government from searching, arresting, holding or otherwise denying you liberty, there is no security promise for an individual from other individuals in the Constitution.

Think about it. The laws are written to punish / prosecute an individual for COMMITTING an act. Not thinking about it. That act most conform to a legal definition of some kind of "harm" before the Government can act. The laws of this country are not preventative in nature, only reactionary in the pure sense of the word. There is very little the Government is allowed to do BEFORE an act is committed. Now the act does not have to be brought to fruition. If you make some move to commit the act the Government can step in, hence conspiracy charges. There still has to be some type of overt action ON the conspiracy to have a criminal violation however.

If you want to have a free society, you must accept responsibility for your actions and deceisions. There must also be an awareness that others in a free society do not think like you do. As long as they do not place their values over you absent a legal / criminal violation on your part, they are entitled to do as they wish. They do not have to like you or your lifestyle, but as long as you are causing no hurt to another or any other criminal violation they have no "right" to force you to act as they wish you to do so. Claiming "politically correct" acts as the only acceptable behavior is not an exercise of freedom. It is an act of individual tyrany.

Examples.

Vegans trying to force non vegans to follow their lifestyle. (Meat is murder)

People who do not like hunting trying to impose their will on others who do like to hunt.

Closing a firearms range with the argument that it creates noise in the neighborhood when the range was there decades before the complainants built a house next door to it.

Demanding an airport / base move due to the noise of the airplanes as the new neighbors build a house or school across the street from an existing airport / base.

Imposing the tenets of your religion onto others who do not believe as you do. (blue laws are a tame example)

Demanding that those who own guns and have not committed any offense with them give them up because YOU don't like guns. No one FORCES you to buy a gun so don't try to force others not to own one.

If you want to have a free land / society you have to be prepared to be tolerant of others who do not live the same way you do. Not all people think as you do and how would you feel if they tried to impose their will upon you if you were in the minority. It may not be a "secure" society to live in but you DO have choices in that case.

A final note regarding the Armed Forces. The members of the Armed Forces swore an OATH not to defend the President or Congress. The oath requres them to defend the CONSTITION, including the Bill of Rights. This makes them a Citizen Armed Force, not a Government force. The members are responsible to the members of the citizenry not the whims of Government. The requirement to disobey unlawful orders makes the responsibility of judging the act a soldier is directed to do before performing the act. Following orders is not a defense and has case law behind it.

Mav

Long post. Sorry but it just growed.

[StSanta]

Well, just to show you how easily that argument can be made from the other side;

they can claim that YOU force THEM to live in a society full of guns.

 



------------------
StSanta
JG54 "Grünherz"
"If you died a stones throw from your wingie; you did no wrong". - Hangtime

[Maverick]

 

Originally posted by StSanta:
Well, just to show you how easily that argument can be made from the other side;

they can claim that YOU force THEM to live in a society full of guns.

 

That does not follow. I do not force them to live period. They make their own choices. If they wish to go to another "society" that does not believe in personal freedom or responsibility they can do so. I hold NO ONE here.

I ask that they tend to their business and now that I no longer am a Police Officer I no longer wish to tend to their business either. I just wish to be left alone to tend to MY business.

The "forcing them to live in a society" with inanimate objects is a non sequitor. It is merely another "emotionally charged" nonsense statement.  They choose to live where they do, not by my whim or the "whim" of an inanimate object.  There is no such thing as "security" in any society. Any society the expects the "government" to protect them is in a fantasy land. There is case law that indicates the Police do not have an obligation to any individual, only to the population at large. If you expect the Police to be everywhere, you have no freedom. You have a police state where choices are extremely limited. It may be your idea of a "security blanket" but it is certainly not mine.

Whoever said life was fair or secure?

Mav

[StSanta]

Hey Mav, bear with me; I am playing the Devil's Advocate here  . Your post was well thought out and interesting. My purpose is therefore just to illustrate what kind of a response you'll get "out there"  . So see the replies in that light and I might not appear to be quite such an irritating twit  

 

That does not follow. I do not force them to live period. They make their own choices. If they wish to go to another "society" that does not believe in personal freedom or responsibility they can do so. I hold NO ONE here.

Well, they would like to STAY in the good old US which they believe represents personal freedom. But are you basically saying that if they dislike guns, or being forced to live with them, they can just bug the hell out?

Well, Sir, you can do the same. As Toad has mentioned, there are other places in the world where gun ownership is mandatory.

And as we've discussed before, personal freedom stops somewhere. Somewhwere we draw the line. Allowing people to own nuclear weapons, or manufacture biological ones, for instance.
 

I ask that they tend to their business and now that I no longer am a Police Officer I no longer wish to tend to their business either. I just wish to be left alone to tend to MY business.

No argument with this, except if your way of life has detrimental effects on others.

 

The "forcing them to live in a society" with inanimate objects is a non sequitor. It is merely another "emotionally charged" nonsense statement.

I am glad that you see it as this. In reality, they have two choices; leave the US to get away from the guns, or stay with the guns. Some would call that choice choosing between a rock and a hard place. But, it is not as you suggest irrelevant. The laws as they are currently made makes it impossible for them to avoid guns or gun owners *if they live in the USA*. In just the same way other laws limit your persoal freedom and disallow you from owning biological weapons.
 

They choose to live where they do, not by my whim or the "whim" of an inanimate
object.

Most people in the western world stick to their culture. Fixing it (seen from everyone's point of view) is important to some.
 

There is no such thing as "security" in any society.

Hm, various levels of security, I'd say. Various levels of safety.
 

Any society the expects the "government" to protect them is in a fantasy land.

My government is protecting me in more way than one. I'm fed, educated and bad guys are locked up. It doesn't offer 24 hours personal protection, and toejam can happen, but I am protected. Just not 100%, and I wouldn't want to be.
 

There is case law that indicates the Police do not have an obligation to any individual, only to the population at large.

Hm, might be a US thing?
 

If you expect the Police to be everywhere, you have no freedom. You have a police state
where choices are extremely limited. It may be your idea of a "security blanket" but it is certainly not mine.

Well, this is really a straw man. And, technically, the number of police officers wouldn't have anything to do with the severity of the laws or how much personal freedom you have.
 

Whoever said life was fair or secure?

Some dumb allied opportunist?


------------------
StSanta
JG54 "Grünherz"
"If you died a stones throw from your wingie; you did no wrong". - Hangtime

[Naso]

Maverick, there are two thinks i wish to ask you:

 

Demanding that those who own guns and have not committed any offense with them give them up because YOU don't like guns. No one FORCES you to buy a gun so don't try to force others not to own one.

1. I misunderstand maybe the problem, but the actual "regulation struggle" in U.S.A. is about to registrate gun owned or confiscate gun ?
I ask this because the former case will be a good issue, the latter cut be a real freedom violation and in this case i am with you all opportunist gun owners at your side to defend your rights. (not joking, except for "opportunist  )

 

If you want to have a free land / society you have to be prepared to be tolerant of others who do not live the same way you do. Not all people think as you do and how would you feel if they tried to impose their will upon you if you were in the minority. It may not be a "secure" society to live in but you DO have choices in that case.

2. Wich choises? (but you answer later):

 

That does not follow. I do not force them to live period. They make their own choices. If they wish to go to another "society" that does not believe in personal freedom or responsibility they can do so. I hold NO ONE here.

"If you dont like what i like, go away"

Is this freedom?  

WAIT !!!

Before you go mad, i explain myself, i was just provoking you  

IMHO the problem is both of you, gun owners, and gun opposing ones, have the same right to live in your country, so some kind of balance between the two position has to be reached, like in any civilized society.

I think a weapons registration is a good issue to realize that balance, because your right to own a weapon is granted, you need just to record yourself and the weapon matricula when buy it, like in Europe, difference is here you need the police forces authorization, somewere easy to have (not here where i live, too many crazy guys   ), this registration make the police work easier, because if you dont record your gun you have somethink bad to do with it (you know each weapon leave a clear "sign" on the fired bullet), if you dont want to do anithink bad, where is the problem to record?

Back to the car example some of the gun owners use, if you kill someone with your car and a witness read your plate, the police can easly find you, in the case of a gun your bullet is the witness accusing you.

More, if the police find someone with an unregistered gun (and have a law punishing this), can prevent a possible crime arresting the guy (probably a criminal).

But i know, this is an US question, and you all have to solve it.

For all that can answer the following questions, i need some information regarding the topic:

When the National Guard were founded?

With wich purpose?

Is the NG assimilable to the militia of the second amendment, if not, why?

I am not provoking, i am serius, i need to understand this, because when i read the amendment the first think coming on my mind as the militia, was the NG, and i dont understand the difference.


[This message has been edited by Naso (edited 08-16-2000).]

[AKDejaVu]

Naso,

Let me explain a normal course for things in the USA.

1) Something is identified as being a problem.  (ie Bankrobberies and cancer)
2) Someone identifies something as facilitating the problem (ie guns and cigarettes)
3) More people start to agree with that someone (voters)
4) Congress gets involved the only way they can (ban/regulate/outlaw)
5) Restrictions occur.

AKDejaVu

[AKFokerFoder+]

"BTW, the poor guys in Vietnam wouldve won in a few months if they had let the military do its thing, rather than have politicians in the middle."

First of all, I was there, 1969, on the DMZ with 4/12 3rd Marine Division.

In retrospect I don't think there was any way to win the war, other than to arm the South Vietnamese people (and NO I do not mean the fricken So Vietnamese Army I mean the PEOPLE).  

The Marines had a highly successful program called the Combined Action Platoons  CAP.  Where a squad of Marines would live with, arm and train the people to defend themselves against the VietCong and the NVA.

Westmoreland, ever the military genius, pulled the rug out from under the CAP program, and sent the Outranked Marines to be slaughtered in untenable, ill thought, and essentially worthless postitions. If you think I am BSing, well the Marines were less than 10% of the American troops in Vietnam, but 1 in 4 of the names on the wall in Washington are followed by four letters; USMC.   Semper Fi

However, we have over 225 years of continuing the tradition of inept Army brass sending the outranked Marines to be slaughtered in ill concieved, tactically untennable situations. So the Marines have adopted tactics to allow us to prevail and overcome.

Stormin Norman, was the first Army General to deploy Marines properly, mind you he was an anomoly. For a Dogface, he has my respect  

As for Vietnam, an invasion of the North was impossible, as it would have led to a Chinese Communist confrontation as happened in Korea. Bombing the North only strengthened the position of Ho Chi Minh, as it consolidated the North Vietnamese against the Americans. Hard not to hate someone who just bombed your child, mother, father etc etc.

The solution was to give the people the power to defend themselves against any government. That is give them the right to keep and bear arms.

[This message has been edited by AKFokerFoder+ (edited 08-16-2000).]

[Toad]

Naso,

Rather than try to rewrite something that someone has already done better than my modest skills could acheive, here's something from:

 http://www.guncite.com/gc2ndpur.html

This place is an excellent, well-researched site for 2nd Amendment information.

The following is excerpted from To Keep and Bear Arms: The Origins of an Anglo-American Right, Joyce Lee Malcom, Harvard University Press, 1994

The second and related objective concerned the militia, and it is the coupling of these two objectives that has caused the most confusion. The customary American militia necessitated an armed public, and Madison's original version of the amendment, as well as those suggested by the states, described the militia as either "composed of" or "including" the body of the people.

A select militia was regarded as little better than a standing army. The argument that today's National Guard, members of a select militia, would constitute the only persons entitled to keep and bear arms has no historical foundation.

Indeed, it would seem redundant to specify that members of a militia had the right to be armed. A militia could scarcely function otherwise. But the argument that this constitutional right to have weapons was exclusively for members of a militia falters on another ground. The House committee eliminated the stipulation that the militia be "well-armed," and the Senate, in what became the final version of the amendment, eliminated the description of the militia as composed of the "body of the people." These changes left open the possibility of a poorly armed and narrowly based militia that many Americans feared might be the result of federal control.

Yet the amendment guaranteed that the right of " the people" to have arms not be infringed. Whatever the future composition of the militia, therefore, however well or ill armed, was not crucial because the people's right to have weapons was to be sacrosanct. As was the case in the English tradition, the arms in the hands of the people, not the militia, are relied upon "to restrain the violence of oppression."

Directly addressing the role of the National Guard:

There is no evidence from the writings of the Founding Fathers, early American legal commentators, or pre-twentieth century Supreme Court decisions, indicating that the Second Amendment applied only to members of a well regulated militia or that the sole purpose of this amendment was to preserve the right of states to keep their militias.

"One does not have to belong to a well regulated militia in order to have the right to keep and bear arms. The militia clause is merely one, and not the only, rationale for preserving the right. The Founders were expressing a preference for a militia over a standing army.

Even if today's well regulated militia were the National Guard, the Second Amendment still protects an individual right to keep and bear arms.


Here's another interesting little tidbit from the same place.

"Arms

In Colonial times "arms" meant weapons that could be carried. This included knives, swords, rifles and pistols. Dictionaries of the time had a separate definition for "ordinance" (as it was spelled then) meaning cannon. Any hand held, non-ordnance type weapons, are theoretically constitutionally protected. Obviously nuclear weapons, tanks, rockets, fighter planes, and submarines are not."

A nicely done, very detailed history of the US National Guard can be found at:
  =http://www.ngb.dtic.mil/  

A quick answer to your question would be <from that source>:

"The Militia Act of 1792, actually two pieces of legislation passed in May of that year, provided for two categories of militia, but in a less expensive and less centralized form. The vast majority of individuals would continue to serve in the common militia <Toad's Note: this is the "PEOPLE" mentioned in the 2nd Amendment>, just as they had in the past. A volunteer militia, similar to the minutemen of 1775, would be the actual ready reserve."


Hope this helps.

[This message has been edited by Toad (edited 08-16-2000).]

[This message has been edited by Toad (edited 08-16-2000).]

[This message has been edited by Toad (edited 08-16-2000).]

[Toad]

Santa:

"Well, they would like to STAY in the good old US which they believe represents personal freedom. But are you basically saying that if they dislike guns, or being forced to live with them, they can just bug the hell out?"

No, I don't think that is the point. Excuse me for covering some previously covered material but maybe we should review.

From the aforementioned Guncite:

Our Bill of Rights does not grant rights, it preserves and guarantees pre-existing individual rights. How do we know this? The Ninth Amendment states:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

In other words, we have other rights beyond what is expressly stated in the Constitution, and the federal government is not justified in denying us those rights.

What could those rights be? Although, this Web site is not for the purpose of discussing natural and positive rights, below are quotes from two Founding Fathers telling us that the right to self-defense is a natural right, it cannot be justifiably taken away by any governing body.

"I go farther; and now proceed to show, that in peculiar instances, in which those rights can receive neither protection nor reparation from civil government, they are, notwithstanding its institution, entitled still to that defence, and to those methods of recovery, which are justified and demanded in a state of nature."

"The defence of one's self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law."
        --- James Wilson, Wilson, Of the Natural Rights of Individuals, in 2 The Works of James Wilson 335 (J.D. Andrews ed. 1896).

The above quote is from a series of lectures given between 1790 and 1792.

"Resistance to sudden violence, for the preservation not only of my person, my limbs, and life, but of my property, is an indisputable right of nature which I have never surrendered to the public by the compact of society, and which perhaps, I could not surrender if I would."
        --- John Adams, Boston Gazette, Sept. 5, 1763,reprinted in 3 The Works of John Adams 438 (Charles F. Adams ed., 1851).

We have many, many natural rights not written down in law. Think about it! (Of course, we have responsibilities as well).

End of Guncite commentary

So, these 2nd Amemendments Rights PRE-EXIST our Constitution and have been RE-ASSERTED in that Constitution.

To the point:

For those who do not care for this aspect of our Constitution, there exists a remedy.

The Constitution provides a means to AMEND the Constitution. It is deliberately not easy. Those who oppose the 2nd have NEVER, EVER chosen to attempt to amend the Constitution.

So, one might ask if they are so concerned about living in such a society, why have they not availed themselves of this legitimate remedy provided by the Founders?

Secondly, they were born into this society with the Constitution long established. They now find one particular aspect of that Constitution not to their liking. Should they be allowed to alter it WITHOUT using the method provided by the Founders?

What of the rights of those who see no problem with the 2nd? The "rest of us" so to speak. Is this not exactly the "personal freedom" that the Constitution specifically provides?

The 2nd is only a slightly analogous to Mav's airport out in the country that is suddenly surrounded by new housing developments. Of course, the new suburbanites that moved out to the "country" for "peace and quiet" find the noise objectionable and want the airport closed. They didn't notice it when they signed the contract but of course the developer got the land cheaper because it was so "close to that airport noise".

What of the pre-exisiting rights of those who use the airport?

There's the difference. The Consitution does NOT guarantee the rights for "the people" to use an airport.

It ABSOLUTELY guarantees the rights of "the people" to keep and bear arms.

Therefore, the airport pilots and angry suburbanites will most likely meet in a local court and hammer out a compromise that will allow the airport/pilots compensation to move further out into the country. The suburbanites should, but might not, bear the cost of this move.

This is exactly what is happening at my little grass strip. <G> We'll see how it turns out.

OTOH, those who don't like guns, should, if they are honestly believers in the the US Constitution, begin a drive to amend the Constitution.

However, that is not what is happening. Instead, they are trying to circumvent the Constitution through other means.

In short, the rules are long-established. There exists a legitimate way to change the rules, provided by the Founders themselves. If they don't like the rules, let them use the approved method to change them.

If they'd rather move to Denmark, that's OK too!        

[This message has been edited by Toad (edited 08-16-2000).]

[Spinout]

leonid, my point was that there is no implement of war that is completely immune to infantry. Armor can be disabled, airfields can be overrun. Both can be denied fuel and ammo. Both armor and aircraft are useless in certain types of terrian. At some point everything is vulnerable to a guy with a rifle.

Now think about it in the context of an armed internal rebellion of say 50 millon people. Could the military just steam-roll over that many people while simultaneously gaurding its food, fuel, and ammo production? I dont think so, but thats just my opinion. At any rate, a slim chance is better than none at all.