What is a Militia?

[Bingolong]

Originally posted by lazs2
bingalong... washington was no fan of the militia and... I don't care what "serious thinker" today dismisses an armed populace giving trouble to an army..  a few thousand arabs here and there have done wonders tho against armies..russians might tell you.

The afgan militia? Backed bye the US government?

"Be that as it may..  you have not disproven the fact that the militia is or isn't outdated"...

Yes I have Its outdated.


"So far as me being in the militia or even worrying about the government.. It is moot.. I don't worry and.. I don't care to join a militia other than by default.   I don't think that any war.. civil or revolution would be good for anyone."

There is no defualt.  If you read the 1792 militia act. You would know your not in/a militia defualt or otherwize. You have no regiment, commanding officer, training , hell I bet you dont even have your napsack.
Anyway following the law to it's current place , which you cant seam too,  the militia belongs to the government now and is used to supply  the standing army or reserves .

[lazs2]

bingalong.. the militia is defined as either... organized or unorganized.   I am part of the unorganized militia by default of being a citizen of the US.

Another way... a simple way to look at the second is simply... the way it is written...  

In WWI and WWII and.. on the southern side of the civil war.. it was said that the American troops were better than other green troops simply because we were marksmen.  I believe that the founders point out that this was a good thing.. that in order to form a well regulated militia you needed to draw from an armed populace.

Which brings me back to something you said... the CMP is far from disbanded and is selling surplus guns and ammo... even drawing from stores of greek ammo.. to sell to the civilian population.

also.. on the militia...

"Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized." (U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999))"

lazs

[Arlo]

Originally posted by lazs2
Arlo and his lefty friends thrive in the world of hysteria and lies and exaggeration..  

Not to be confused with Laz and his backwoods militia mentality thriving on the same, I suppose. I'll compare spittle guages any day.

[Arlo]

Originally posted by john9001
"exotic" weapons?

must be a new buzz word for the gun ban people.

Not new. Not buzz. And I'm not a "gun ban people." Keep up.

[lazs2]

arlo.. what is a "militia mentality"?  I have never even thought about the militia.. you are the one who seems worried about it.

lazs

[Arlo]

Originally posted by lazs2
oh wait.. he doesn't want to say other than the M16... which.. so far as I know.. has killed no one in this country.
 

M-16s and liberty for all, Laz. Why do you have a problem with better uses for taxes? Why do you hate America?

[Arlo]

Originally posted by lazs2
arlo.. what is a "militia mentality"?  I have never even thought about the militia.. you are the one who seems worried about it.
 

Ahhhh, you think my proposal involves "worry", Mr. Projector.

[Bingolong]

Silveira v. Lockyer 2002
The Court engaged in an extensive analysis of the history of the Second Amendment and its attendant case law, and it ultimately determined that the Second Amendment does not guarantee individuals the right to keep and bear arms. Because the Second Amendment affords only a collective right to own or possess guns or other firearms, the district court's dismissal of plaintiffs' Second Amendment claims is AFFIRMED. . . . The constitutional challenges to the validity of the California Assault Weapons Control Act are all rejected, with the exception of the claim relating to the retired officers provision.

Questions
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/beararms.htm

1. Does the historical evidence support the conclusion that the Second Amendment guarantees the right of individuals to possess firearms?
2.  If the Second Amendment does create an individual right, how broad is the right?  Does it include the right to possess arms that would be useful to a militia today--hand grenades, rocket launchers, etc.?  Or does it create only a right to possess arms that would have been used by a militia in 1791--muskets?  Or is the right answer somewhere between these extremes?
3.  The Second Amendment speaks of the right to bear arms.  Does this suggest, for example, that there is no right to possess weapons that could not be carried, such as cannons?
4.  If the underlying concern that inspired the Second Amendment--fear of an abusive federal government oppressing states and their citizens--no longer exists, should that affect how we interpret the Amendment?
5.  What is the argument for choosing what provisions of the Bill of Rights we will give full effect?
6.  If the test for whether a provision of the Bill of Rights is incorporated into the 14th Amendment is whether the right in question is "fundamental to the American scheme of justice" what conclusion should we come to with respect to the right to keep and bear arms?
7. Which of the following regulations of firearms is constitutional?: (1) an age restriction, (2) a four-day waiting period for purchase of a firearm, (3) a ban on the carrying of concealed weapons.

[Charon]

There is no defualt. If you read the 1792 militia act. You would know your not in/a militia defualt or otherwize. You have no regiment, commanding officer, training , hell I bet you dont even have your napsack.

The Militia Act of 1792 was never well enforced, and from the very beginning there was no real penalty associated with not following the act to the letter. Militia's proved to be well suited for defense, but poorly suited as offensive units under federal control and G. Washington was trying to put in place a system that would enhance that specific militia capability -- enemies foreign. Some organizational issues were stated in the act but many were not, and it was generally regarded as being more of a recommendation than anything else.

However, the arms intent behind the militia (even in the Act) was very clear in that the unorganized militia would be the citizens of the US (within certain constraints that shaped society in general at the time) and that they would have their own arms. Nor does this reflect the "enemies domestic" rationale behind the 2nd.

You can look at the position of person who is credited with essentially drafted the 2nd, Trench Coxe. I don't think the intent of the 2nd gets any clearer than this. It addresses both federal AND state concerns:

   The powers of the sword are in the hands of the yeomanry of America    from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves... Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ... The unlimited power of the sword is not in the hands of either the federal or    state governments, but, where I trust in God it will ever remain, in the hands of the people.

Even a Federalist like Hamilton, who supported a more organized militia model (believing, debatable, that the good people of a state would not willingly follow a federal tyrant stated):

[T]he people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!

He certainly would not have supported the current select militia state/federal National Guard system to fill that role. He even acknowledges that the state government just might have to be addressed as a tyrant.

The more formal, organized role of the militia has certainly been neglected. Militia's against foreign enemies work best on defense, and worst on offense and that purpose has been largely taken over by the National Guard (a federal, select militia) because of that reality. This was not entirely unforeseen and was part of the whole general/select militia/standing army debate at the time.

However, that neglect does not eliminate the central conceptual role of an armed population deterring domestic tyranny. As legal scholars Brannon P. Denning and Glenn Harlan Reynolds summarize on the issue:

In this light, the Second Amendment could be understood as an example of very careful drafting indeed: a government obligation (to maintain a militia) coupled with an individual right (to keep and bear arms) that ensures that the key element of a universal militia (an armed citizenry) cannot be extinguished by government neglect.[129] At the very least, the clear constitutional statement regarding the necessity of a well-regulated (universal) militia for the security of a free state should give us pause. The logical consequence of this statement is that a state lacking such a militia is either insecure or unfree.[130]

Charon

[Charon]

Which brings me back to something you said... the CMP is far from disbanded and is selling surplus guns and ammo... even drawing from stores of greek ammo.. to sell to the civilian population.

I have a Garand, Carbine and a load of ammo delivered fresh from the CMP to my door

Charon

[Charon]

Silveira v. Lockyer 2002

Yeah, what a surprise coming from Stephen Reinhardt on the 9th Circus court in San Francisco.

Here's the an alternative view on his "impartiality" and judgement where the 2nd is concerned:

Second Amendment Showdown in the 9th Circuit Cloakroom

Less than three months ago, the Center for Individual Freedom took aim at the latest misfire from über liberal Judge Stephen Reinhardt and the U.S. Court of Appeals for the 9th Circuit -- namely, 69 pages of anti-gun propaganda masquerading as a constitutional decision in which the oft-overturned judge opined that "[t]he historical record makes it ... plain that the [Second] Amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession."  To read more about "Judge Reinhardt's Ricochet," click here.  Now, even Reinhardt's own judicial colleagues on the West Coast are unwilling to remain silent in the face of his tendency to substitute personal political prejudices for the rule of law.

In a new Second Amendment ruling issued by the 9th Circuit on Tuesday, three of Reinhardt's brethren, Judges Arthur L. Alarcón, Ronald M. Gould and Diarmuid F. O'Scannlain, took the highly unusual step of criticizing a fellow sitting jurist in a published legal opinion for the entire world to see.  The judges forcefully reminded Reinhardt that even life-tenured federal jurists cannot exercise unlimited power and are bound to follow precedent, at the very least.  These legal warning shots reduced Reinhardt's freshly published musings about the Second Amendment to mere "dicta" because "[t]here was simply no need for [his] panel's broad digression."

The new case, Nordyke v. King, No. 99-17551 (9th Cir. Feb. 18, 2003), would have passed wholly unnoticed if it were not for Reinhardt's judicial activism a few months earlier.  After all, the Nordyke panel didn't need to break any new constitutional ground to affirm an Alameda County, California, ban on the possession of guns on county property, which had the effect of preventing gun shows from using the public fairgrounds.  Instead, the panel only had to follow past precedent.  Nevertheless, Reinhardt had refused to do the same just a few months prior on the very same issue, so the judges took the opportunity to put him back in his place.

In a "passing" footnote weighty and lengthy enough to span good parts of 2 pages in the concise 10-page decision, the judges took apart Reinhardt's analysis of the Second Amendment, noting it was "both unpersuasive and, even more importantly, unnecessary."  Reinhardt's "decision to re-examine the scope and purpose of the Second Amendment was improper" since his "panel was [already] bound" by prior 9th Circuit precedent established six years earlier in 1996, the judges explained.

The footnote went as far as judges ever do in accusing Reinhardt of taking the law into his own hands.  The Reinhardt panel's "rather lengthy reconsideration of [a 9th Circuit precedent] was neither warranted nor constitutes the binding law of this circuit," the judges wrote, reminding the activist judge that "'only the court sitting en banc may overrule a prior decision of the court.'"

In non-legal speak, the oh-so-polite footnote admonished Reinhardt that a renegade judge out to further his own political mission cannot single-handedly rewrite the law.  Instead, under the rules of the appellate court, only the 9th Circuit judges sitting "as a whole," or "en banc," could change a legal rule established in a prior decision.

The judges also took aim at the merits of Reinhardt's political maneuvering designed to reduce the Second Amendment to little more than a historical curiosity.  Openly inviting the full 9th Circuit or the Supreme Court to finally recognize that the Second Amendment protects an individual's right "keep and bear arms," Judges O'Scannlain and Alarcón praised the 5th Circuit's decision in United States v. Emerson as a "very thoughtful and extensive review of both the text and historical record surrounding the enactment of the Second Amendment."

Judge Gould went even farther in his own special concurrence, explicitly refuting Reinhardt's historical and constitutional twisting of the Second Amendment.  "I conclude that an 'individual rights view' of the Second Amendment is most consistent with the Second Amendment's language, structure, and purposes, as well as colonial experience and pre-adoption history," Judge Gould wrote, while at the same time urging that prior 9th Circuit precedent subscribing to the collective rights theory "can be discarded by our court en banc or can be rejected by the Supreme Court."

It seems there's a gun fight out West -- a Second Amendment showdown in the 9th Circuit cloakroom.
http://www.cfif.org/htdocs/legal_issues/legal_updates/other_noteworthy_cases/second_amendment_showdown.htm

That is why Parker is so important.

Charon

[Bingolong]

Originally posted by lazs2
"Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized." (U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999))"

lazs

This is what Scalia concludes form emerson.
Justice Scalia concludes by stating that "t is very likely that modern Americans no longer look contemptuously, as Madison did, upon the governments of Europe that ‘are afraid to trust the people with arms,’ The Federalist No. 46; and the . . . Constitution that Professor Tribe espouses will probably give effect to that new sentiment by effectively eliminating the Second Amendment. "

[Charon]

This is what Scalia concludes form emerson.
Justice Scalia concludes by stating that "t is very likely that modern Americans no longer look contemptuously, as Madison did, upon the governments of Europe that ‘are afraid to trust the people with arms,’ The Federalist No. 46; and the . . . Constitution that Professor Tribe espouses will probably give effect to that new sentiment by effectively eliminating the Second Amendment. "

Dude, you missed an important part of that quote:

. Justice Scalia concludes by stating that "t is very likely that modern Americans no longer look contemptuously, as Madison did, upon the governments of Europe that `are afraid to trust the people with arms,' The Federalist No. 46; and the . . . Constitution that Professor Tribe espouses will probably give effect to that new sentiment by effectively eliminating the Second Amendment. But there is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states." Id.

It the comes down to balancing what might be considered reasonable restrictions (as noted in Parker) and the fairly absolute sounding "shall not be infringed..." Other cases will decide that.

Then there is the fact that Lawrence Tribe has changed his mind since then:

The first is from Laurence Tribe's famed treatise on the Constitution, the latest version of which Tribe altered in recognition of the growing power of the individual-rights view of the amendment—a view he had long rejected. The second is by Sanford Levinson, who—before he stopped believing in the Constitution altogether—wrote an illuminating law review article called "the embarrassing second amendment." The final quotation is from Akhil Reed Amar's ambitious history, The Bill of Rights. One can still muster strong arguments in favor of a collective-rights conception of the Second Amendment, the view that has prevailed in most other circuits; and the individual-rights view does not necessarily doom all gun control (though it probably does doom the most sweeping bans). But the simple truth is that the individual-rights view is in intellectual ascendancy, and not just among gun-loving wing nuts. If Silberman is a radical with blithe disregard for public safety, he is in exceptionally strong company.
http://www.brookings.edu/opinions/2007/0319governance_wittes.aspx

Even the liberal Brookings Institute, which noted the above, accepts the individual rights position but, of course, calls to amend the Constitution. And, that is the hones option.

Charon

[Bingolong]

Originally posted by Charon
Yeah, what a surprise coming from Stephen Reinhardt on the 9th Circus court in San Francisco.

Here's the an alternative view on his "impartiality" and judgement where the 2nd is concerned:



That is why Parker is so important.

Charon

What a surprise form the 5th rightytightys cant wait to critique  who they do  not agree with.
The decision stands yes?

[Bingolong]

Originally posted by Charon
Dude, you missed an important part of that quote:

 

It the comes down to balancing what might be considered reasonable restrictions (as noted in Parker) and the fairly absolute sounding "shall not be infringed..." Other cases will decide that.

Then there is the fact that Lawrence Tribe has changed his mind since then:



Even the liberal Brookings Institute, which noted the above, accepts the individual rights position but, of course, calls to amend the Constitution. And, that is the hones option.

Charon

I didnt miss it. I just deemed it unimportant as you do the 9th's decision.