What is a Militia?

[Charon]

What a surprise form the 5th rightytightys  cant wait to critique who they do not agree with.

As noted, much of their decision was based in no small part on liberal Constitutional Scholars like Lawrence Tribe. BTW, the 5th Doesn't have a reputation as being right wing, rather a reputation as being more strict Constitutionalists. Meaning, they don't try to make law from the bench (on this or other issues like Reinhardt is know for) but rather see if it reflects the Constitution.

Some more Reinhardt follies:

"How can you tell a judge is a liberal?" Reinhardt asked law students during a speech at Georgetown University. "Liberal judges believe in a generous or expansive interpretation of the Bill of Rights. We believe that the meaning of the Constitution was not frozen in 1789; that, as society develops and evolves, its understanding of constitutional principles also grows.

"We believe that the Founding Fathers used broad general principles to describe our rights," Reinhardt continued, "because they were determined not to enact a narrow, rigid code that would bind and limit all future generations."

Reinhardt is not shy either about trying to influence other judges. In 1994, he urged then-Supreme Court nominee Stephen Breyer to "do justice, not just administer law," if confirmed. Regarding the Constitution, Reinhardt wrote to Breyer that he should "Carry on the work of the court's great progressive thinkers.

"It was progressive justices with a view of the Constitution as a living, breathing document who gave full measure to that instrument," Reinhardt wrote, "not the legal technocrats, not those whose view of the Constitution was frozen as of 1789.

"When lawyers and judges adhere too rigidly to legal rules," according to Reinhardt, "they lose sight of the broader purposes for which those rules were created: to do justice."

http://www.cnsnews.com/ViewSpecialReports.asp?Page=%5CSpecialReports%5Carchive%5C200511%5CSPE20051117a.html

Personally, I would rather changes to the Constitution, if needed, come from the legislative branch rather than the personal, conservative or progressive, opinions of individual jurists. There is a mechanism in place to do just that.

Charon

[Charon]

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

I just figured you deemed it inconvenient to your argument.

Charon

[Bingolong]

Originally posted by Charon
I just figured you deemed it inconvenient to your argument.

Charon

O really who decides properly?

[Bingolong]

Originally posted by lazs2


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

Well regulated militia?

"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."

Armed, trained, commanded, 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))"


Yes well..

The Second Amendment protects “the right of the people to keep and bear Arms.” Contrast this language with that of the Fifth Amendment (“no person shall”) and the 6th Amendment (“the accused shall”). The Bill of Rights makes a meaningful distinction between the rights of “the people” and of “persons.” This distinction is especially clear in the 4th Amendment, which states that the collective “people” have a right “to be secure” in their individual “persons.” The Second Amendment contains only the collective language: “the right of the people.” Despite any protestation to the contrary, the text of our Constitution does draw a significant distinction between collective and individual rights.
When the 2nd Amendment was ratified, the “Militia” did of course consist of virtually all adult (white) males , we should understand the “the Militia” and “the People” as roughly equivalent. But using such an understanding to justify unlimited gun rights grossly oversimplifies the 2nd Amendment language referring to a “well-regulated Milita.” It’s difficult to argue that a populace with unlimited access to guns constitutes a “well-regulated Militia” for the simple reason that such a populace is not “regulated” at all where weapons are concerned. The inclusion of the words “well-regulated” in the 2nd Amendment should leave us with two questions: Regulated by whom? And what sorts of regulations are permissible?
The Bill of Rights was an anti-Federalist measure designed to place explicit limits on the Federal government, generally in favor of state governments. Indeed, the 1st Amendment (at the time of its ratification) did not invalidate state-established churches or state sedition laws, it refused federal Congress the ability to establish an official religion and restrict freedom of speech. Considering that at the time of the Founding functional militias were often organized by states, and considering that the Bill of Rights as a whole was originally intended to protect the states from federal excess, it is reasonable to say that “well-regulated Militia” can be understood as one organized by and subject to the regulations of a state or local government. It’s much more difficult to claim that a mass of citizens armed with whatever weapons they desire constitutes in any way a “well-regulated Militia.”
The Constitution does not permit “regulation” that would effectively ban weapons, such laws would violate the right to “keep and bear Arms.” But should we believe that state and local governments can therefore pass no laws regulating the kinds of weapons that their people are permitted to own and carry? Such a holding would threaten anti-terrorist statutes prohibiting the ownership of bomb-making materials. Doesn’t it stand to reason that local governments can pass laws restricting ownership of certain categories of dangerous weapons? Shouldn’t elected officials be permitted to make legislative findings that unlimited handgun ownership poses a risk to public safety and legislate accordingly? The Supreme Court has historically shown broad deference to the “police powers” of local governments to protect the health or safety of their citizens. The law at issue in D.C. v. Heller does exactly that. Some people may contest the findings underpinning the law, or they may believe that it’s simply bad policy, but our democratic system provides recourse for those folks: elect new leaders.
 The Second Amendment has never been subject to the Fourteenth Amendment doctrine of incorporation, a long-term judicial effort to protect certain enumerated rights from both state and federal infringement. Perhaps the right to keep and bear arms is conspicuously absent from the incorporation doctrine because the Second Amendment does in fact explicitly permit local regulation of the “Militia.” Much as the First Amendment right to assemble is constrained when it threatens public safety (You have no constitutional right to stage an anti-gun protestin the middle of I-95, for example), so too the Second Amendment right to keep and bear arms is constrained by the right and duty of local governments to protect their citizens. This is hardly a radical view. It’s a notion that comes straight from the language and history of the Second Amendment and previous Bill of Rights jurisprudence.

[sgt203]

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

NO Bingolong you didn't "deem it unimportant" you deemed it to be detremental to your argument.. so you left it out. Blow smoke elsewhere... You didnt think you would get called on it now your back peddaling.

This is unfortunately alot of what we see when our politicians "debate" a point. The careful and calculated misconstruing, misstating, or flat out omission of the facts all in the name of supporting their point of view.

Your points up till now I have read listened to and tried to understand. However you have now made yourself irrelevant as it is obvious you are not debating a point of view you are pushing for a specific agenda.

You and those like you are what is wrong with our Jurists "legislating from the bench" and the FAR LEFT in general. The end justifys the means.

Pity really.

[Bingolong]

Originally posted by sgt203
NO Bingolong you didn't "deem it unimportant" you deemed it to be detremental to your argument.. so you left it out. Blow smoke elsewhere... You didnt think you would get called on it now your back peddaling.

This is unfortunately alot of what we see when our politicians "debate" a point. The careful and calculated misconstruing, misstating, or flat out omission of the facts all in the name of supporting their point of view.

Your points up till now I have read listened to and tried to understand. However you have now made yourself irrelevant as it is obvious you are not debating a point of view you are pushing for a specific agenda.

You and those like you are what is wrong with our Jurists "legislating from the bench" and the FAR LEFT in general. The end justifys the means.

Pity really.

As I told lazz I will tell you, I dont have an agenda and I could just as easily taken the other side of the argument and I am for the 2nd. Just because you dont like the law

[wrag]

Originally posted by Bingolong
As I told lazz I will tell you, I dont have an agenda and I could just as easily taken the other side of the argument and I am for the 2nd. Just because you dont like the law

Next are you going to say you're just trying to make the world safe for Democracy?

[Arlo]

Originally posted by wrag
Next are you going to say you're just trying to make the world safe for Democracy?

Well that was a random neuron-misfire moment.

[Bingolong]

Originally posted by wrag
Next are you going to say you're just trying to make the world safe for Democracy?

Look I have posted the "Militia" subject because i think thats the hindge.  If you  dont like the way the law reads today not in 1776 well I dont know what to tell ya.
Today's truth is not yesterdays ideal. I have said what I think the SC is going to possible do and why I think they ask all I've heard is a bunch of bloviating .

So I got a little Shoot me!

[Holden McGroin]

Originally posted by Bingolong
Look I have posted the "Militia" subject because i think thats the hindge.  If you  dont like the way the law reads today not in 1776 well I dont know what to tell ya.

That law didn't read anything in 1776...

[B@tfinkV]

some laws of 1776 -

"you killed my father, prepare to die"

"he stole my oxen so i drowned him"

"your wife is pretty, im going to kill you and take her."

[lazs2]

charon pretty much answered your questions on the rulings..  I also think it pertinent that Tribe has done a 180.. it is difficult to find a constitutional scholar that sees the second as some sort of oxymoron "collective right".

I don't think that what is the militia has anything to do with the second... whatever it is... if we need it.. we need to draw from a people who's right to keep and bear arms is not infringed.

as for your... well.. your sites.. 7 questions..  I have answered most throughout this thread.. yes, the second is an individual right..  no..it does not include hand grenades and such although I would say a state had a right to license and regulate them if they desired.. same for cannon and such.. that was around then and not considered "arms".    

The rest of the questions.. silly of course.. the possibility of a tyrannical government going away? on what planet?  and even if it did.. that would not affect the second.. tyranny can be one on one.....as for the 14th.. if self defense is not fundamental to justice then I don't want to live here... ever call 911?

most of the questions are for mush headed school kids.. like a homework assignment.. they repeat each other and answer each other and lead with the teacher/essayists agenda...  

lazs

[lazs2]

now.. on the ruling..  I would be happy if the sc concluded that the second was an individual right and that the federal government had no right to make any laws.. this, as tribe suggests, would get rid of broad, sweeping bans like the magazine and "assault weapons" ban...

Further... if they concluded that the states had the right to regulate/control guns .. so long as the control did not infringe on the peoples right to keep and bear arms that were useful to his defense or the defense of his fellows.  In other words... they could regulate (or not) machine guns and such but not entirely.. they could not ban them say.  

I would be happy if they made it "shall issue" in every state...  The regulation of which would be up to said states but not in such a way to deprive people of their rights... no "negros can't carry concealed" type of restrictions or "$5000 and 4 years state gun of school before allowed to carry" type of thing.  

This would get rid of the federal bans now in place and things like the DC ban but still allow the states some room.. they could permit .50 cal guns or high capacity mags say without banning them.  They could "regulate" but not ban "arms".

It would bring up more cases of course as someone with 15 speeding tickets somewhere lost his right to carry in some blue state..or.. some guy who was on parole wanted to get a machine gun permit but.. it would all work out pretty quickly.

I see a net relaxing of the unfair laws and bans with rights protected from being simply legeslated or voted away.   I have seen guns that were perfectly legal suddenly make their owners criminals with the stroke of a pen.  

That is why we fight the lefties on every little law they come up with.. they are never happy and want more and more bans.. there idea of "sensible gun control" is no guns for anyone..   they just want to keep guns out of the wrong hands but guess what people...  you have the wrong hands.

lazs

[lazs2]

charon has a good link to the ultra left wing brookings institute where the guy, like bingalong "had guns but..."    in any case.. he admits that no scholar worth a damn sees the second as anything but an individual right protected by the feds.

He says so because.. he fears that if the second can be made moot... why not the others by simple state and lower court decisions?   hell.. the way we got in this whole gun control mess in the first place was a bunch of KKK aholes trying to control the negros from having guns.

No.. the brookings guy takes the only logical out.. he admits that the second is as it looks.. a protection for the individual and that trivializing it is a bad move... soooo..

He suggests that we get rid of it entirely.. he feels that there are enough loafer wearing taxi riders like himself in the blue areas to just get the amendment repealed..  that nothing else is fair or desirable

I partially agree.. As I have said.. if you don't like the amendment then repeal it.

That is really the showdown that is needed.. not some obvious affirmation that the second is about protecting individual rights and then figuring out ways to skirt those rights.

lazs

[Bingolong]

Originally posted by Holden McGroin
That law didn't read anything in 1776...

http://www.yale.edu/lawweb/avalon/states/de02.htm#art30
http://www.yale.edu/lawweb/avalon/states/ma02.htm
http://www.yale.edu/lawweb/avalon/states/nh09.htm
http://www.yale.edu/lawweb/avalon/states/nj15.htm
http://www.yale.edu/lawweb/avalon/states/pa08.htm
http://www.yale.edu/lawweb/avalon/charlott.htm
http://www.yale.edu/lawweb/avalon/arms.htm


You getting the idea or should I continue?

http://www.yale.edu/lawweb/avalon/18th.htm