Countering the Heller dissent

[discntnt_irny_srcsm]

In his dissent in Heller, Justice Stevens applied from Marbury v. Madison that "It cannot be presumed that any clause in the Constitution is intended to be without effect...". The argument expressed from this point names as the sole purpose for the 2A, the protection of a Militia purposed RKBA only. That, while the use of a gun in self-defense would certainly be legal, the 2A does not innately protect possession for that purpose.

The Heller case was about: "We must decide whether a District of Columbia law that prohibits the possession of handguns in the home violates the Second Amendment. The majority, relying upon its view that the Second Amendment seeks to protect a right of personal self-defense, holds that this law violates that Amendment."

In my view, there were several known, established, accepted and respected behaviors common among the citizens of our young nation. They were:
- the ownership of long guns for the purpose of hunting
- the carry of smaller firearms such as pistols for personal protection
- the use of guns in general for practice
- the use of a gun during service as a law enforcement officer
and, of course...
- possession for use relating to militia service.

I argue that the 2A was written with the militia clause to include in its protection, the specific possession of militia appropriate weapons. That if, weapons not solely purposed for the first four uses, above, would be restricted from the people, the militia would be impaired. That the possession of militia appropriate weapons would be protected. After all a militia armed with Olympic target pistols of .22 caliber or 18th century muskets is hardly well matched against another force armed with even 19th century lever action rifles.

Through history, certain upper classes have prohibited the possession of state of the art arms to those outside their own group. Take for example Japan's Samuri who forbid general ownership of the katana. Laws that would burden the people in same manner as the British attempted to burden the colonies concerning firearms were to be excluded from possibility. The 3A was in line with that same end. It was a standard procedure among the British to house their soldiers in the homes of colonists and burden the quartering family with their feeding and sheltering.

In reading Federalist #46 one can determine that Madison, the principal author of the Bill of Rights, intended to protect a militia of just about every free white adult male in the country. That the existence of arms in the hands of everyone rather than a select few (maybe 1% of the population) was entirely proper.

There have always been 1%ers that sought to be "above" the rest of us. It is that same special interest end that the 2A was enacted to protect against.

In the US we've enacted and, later, corrected laws that forbid certain types of folks from owning firearms. There were laws against selling or giving guns to Black folks and Native Americans, because it was said 'they aren't really people'.

I further contest inferring that the RKBA has no individual protection based upon the founders not expressing that aspect conflicts with the nature of the Bill of Rights. A fundamental principle of interpretation is...

In pari materia ("upon the same matter or subject&quot
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.

The effect of this principle is to apply the 2A in the way as the other rights in the Bill of Rights are applied. The 1A covers newspapers with hundreds of employees as well as an individual blogger. The 2A protects everyone's RKBA not just those who belong to a militia.

The 2A mainly expresses and protects a right, a common right of everyone, not an institution, not the militia. The very idea that a right exists but only for a certain few is insulting to the founders... and to us all.

[Nuclear Unicorn]

1. Let's take the militia clause as the controllers would prefer --

The right of the people to keep and bear arms is related service within the militia. Yet, one cannot serve in the militia unless they have the right to keep and bear arms. However, arms for the militia are supplied by the individual, not the government.

It's often said, "We don't need a militia because we're the sole superpower on the face of the Earth! 'MERICA!" Well, apart from the sudden and unexpected applause for the MIC from supposed Progressives it's hard to imagine any scenario where this is a permanent state of affairs. Other powers may arise. America may decline or simply elect to get out of the World Police business.

Similarly, it is current federal law that all able-bodied men 18 to 45 are considered members of the unorganized militia. Yes, you read that right -- the militia exists by federal mandate. Militias aren't just for federal purposes, it serves state and local governments as well, i.e. in the event of a major calamity such as hurricane that devastated Galveston Texas in 1900.

If the Controller interpretation is to be believed they would not be arguing for AWB bans but rather arguing for laws requiring all able-bodied citizens of military age to maintain "assault weapons" in serviceable order.

[discntnt_irny_srcsm]

2. The Militia Act...

...yeah, "...able-bodied men 18 to 45 are considered..." I remember that. OTOH, Article 1 Section 8 says: "To provide for organizing, arming, and disciplining, the Militia" so while the "keeping and maintaining" of militia appropriate arms is the duty of every member, those that can't afford one, should be able to have congress supply one.

M-16s for all, step right this way.

[Nuclear Unicorn]

5. "Ever male between 18 and 45 needs a metallic Dick."

Generally, those who constantly fixate on a thing they perceive in others is because they harbor a lack of that thing within themselves and thus seek to make possession of it a negative trait.

Do you have a problem with the law?

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.

https://www.law.cornell.edu/uscode/text/10/311

Since this is the law where do you suppose those wishing to remain compliant with the law will procure their weapons?

[blueridge3210]

6. I don't think he'll be answering.

http://www.democraticunderground.com/1172165081#post4

[Nuclear Unicorn]

7. Yeah. I saw that.

I wanted to see his reply but he obviously wanted to push the envelope and counted on majority sentiment to save him from what would be forbidden to the disfavored.

Darned ol' 4th vote!

[jimmy the one]

9. well regulated and unorganized, explanations thereof

nuclear unicorn: (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.

Since this is the law where do you suppose those wishing to remain compliant with the law will procure their weapons?

How are 'those' protected by the US militia code?
Why do you think an 'unorganized militia' meets the litmus test of the 2nd amendment, which clearly specifies: A well regulated militia, being necessary for the security of a free states, rkbasnbi.
By the very definition of unorganized, an unorganized militia is not a well regulated militia. So it does not incur 2ndA protections. It only gets fat whackjob Scalia's blessing.

Stone space might've been alluding to the dick act circa 1903, aka the militia act of 1903, named after Charles Dick (real name) who authored it (IIRC the details). He got hoisted on his own petard tho, need be more careful SS.

[Nuclear Unicorn]

11. How are unorganizd and well-regulated opposed to each other?

It's possible to keep well maintained arms, etc. but not be organized into formal units. Many nations rely on a similar defense scheme.

[jimmy the one]

12. GW & Hamilton, elitist anti rights gun control nazis

nuc uni: How are unorganizd and well-regulated opposed to each other?

Can't stop laughing!!!!

nuc uni: It's possible to keep well maintained arms, etc. but not be organized into formal units. Many nations rely on a similar defense scheme

Which of those nations have a 'have arms' decree in their bill of rights? Switzerland? where assault rifle ammo needs be kept in an armory now? and ccw is disallowed for 'self defense'?
I'm not arguing other nations, I'm arguing your premise: nuclear unicorn, OP: I argue that the 2A was written with the militia clause to include in its protection, the specific possession of militia appropriate weapons.

intertwine nuc uni's OP with her later post: (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.

James Madison did not write 2nd amendment with any thought whatsoever to an 'UNorganized militia', since there was no such contemporary thing; he wrote 2ndA with the vision of a 'well regulated militia', that's crystal clear.
To try to apply the 2nd amendment's right to bear arms to an entity which came into being 30 years after 2ndA was written, can't possibly be what was intended.
To try to apply the militia code circa 1903, which legalizes the 'UNorganized militia', to enable almost all American adults to carry military weaponry, is sophomoric specious & fraudulent. The militia code of 1903 was written about 110 years after 2ndA, & in no way is representative of what was originally intended in 1791 & 1792.
Teddy Roosevelt circa 1903 wrote that the militia envisioned by Madison & the FFs was 'worthless & obsolete', so it was revamped by the militia code you cited.

nuc uni: That the existence of arms in the hands of everyone rather than a select few (maybe 1% of the population) was entirely proper. There have always been 1%ers that sought to be "above" the rest of us. It is that same special interest end that the 2A was enacted to protect against.

You realize you are calling George Washington & alex Hamilton, 'above' the 'rest of' presumably some grouping of americans?.
You say that the 2nd amendment, written when Washington was president of the united states, was written to protect americans against George Washington? who wanted a select militia, & was loathe to endorse even a militia rkba to everyone?

[gejohnston]

13. correction

where assault rifle ammo needs be kept in an armory now?

Only goverment issue ammo. That has nothing to do with privately purchased ammo in the same caliber.
http://en.wikipedia.org/wiki/SIG_SG_550

and ccw is disallowed for 'self defense'?

Conditions for getting a Carrying Permit[edit]
There are three conditions:

fulfilling the conditions for buying a permit (see section above)
stating plausibly the need to carry firearms to protect oneself, other people, or real property from a specified danger
passing an examination proving both weapon handling skills and knowledge regarding lawful use of the weapon
The carrying permit remains valid for a term of five years (unless otherwise surrendered or revoked), and applies only to the type of firearm for which the permit was issued. Additional constraints may be invoked to modify any specific permit. Neither hunters nor game wardens require a carrying permit.

Certainly easier than getting one in DC, New Jersey, or NYC. Come to think of it, it is easier than Wyoming pre-1995

[discntnt_irny_srcsm]

16. Where was this straw-man born?

"You say that the 2nd amendment, written when Washington was president of the united states, was written to protect americans against George Washington? who wanted a select militia, & was loathe to endorse even a militia rkba to everyone?"

Inferring from the general to the specific may or may not make sense. It's a fact that each of us needs protection against the will of the majority (in the form of the government). Or perhaps you prefer your privacy invaded, your religion predetermined and your opinions censored.

GW who "was loathe to endorse even a militia rkba to everyone" said: "A free people ought to be armed."

Perhaps you should arm yourself with a dictionary.

Armed:
a : furnished with weapons; also : using or involving a weapon
b : furnished with something that provides security, strength, or efficacy


And while I'm at it, I ask How could we correctly characterize someone who says that something named along with rights like speech, privacy and fair trials be meant ONLY for those performing militia duties? And I answer, naive...

...or just in the same manner as the 1%... ...cunning.

[jimmy the one]

17. bogus quote alert; foot in mouth disease rampant

dscntnt: GW who "was loathe to endorse even a militia rkba to everyone" said: "A free people ought to be armed."

dear dscntnt: open mouth, insert foot: George Washington, 1790: A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent of others for essential, particularly military, supplies.
George Washington, First Annual Address, to both House of Congress (8 January 1790)
http://www.thefederalistpapers.org/posters/george-washington/george-washington-a-free-people-ought-not-only-to-be-armed-but-disciplined

Ron Chernow, whose "Washington: A Life" won the 2011 Pulitzer Prize for biography, helped us translate.. "In this passage, Washington is talking about national defense policy, not individuals arming themselves, and the need for national self-sufficiency in creating military supplies," Chernow told us by email.
.... John Woolley said Washington was speaking about external threats and "not being dependent on imported weapons." .. "there is no hint in either of these that the members of Congress thought there was something in that speech about gun rights." http://www.justplainpolitics.com/showthread.php?49020-Washington-Said-What

You took GW out of context, & portrayed a different intention than he meant. Is that what you consider ethical? then you mock me to boot; couldn't you at least google your ooc quote to check for accuracy? or are you so eager to accept any 2nd amendment fantasy that you swallow bogus quotes hook line & sinker? Don't these bogus quotes fabricated & manipulated to infer individual rights theory, teach you anything? that your 2ndA beliefs are inside a house of cards?

... an army was expensive, as Washington wrote in a May 2, 1783, memo to a congressional committee .. "We are too poor to maintain a standing Army adequate to our defence," and suggested a small regular army supplemented by a well-organized militia -- a part-time force of volunteers, called up in emergencies.

Steuben proposed seven national legions of select white militiamen that would rotate in service from two to four years and return to their communities trained and disciplined. They would rejoin the general militia and, over time, this militia would also become better prepared.. Washington strongly approved of Steuben's proposal and even believed it to be a more thorough explanation of his own Continental Militia.. http://www.lawsonline.com/LegalTopics/Militia/regulated-militia.shtm

The select militia ideas by Washington, Steuben, and Knox did receive some initial support for providing economically feasible and carefully structured plans for training the population while not over-burdening all citizens. But Knox’s attempt to tie citizenship with service was not popular.

[discntnt_irny_srcsm]

18. jto: "A free people ought not only to be armed, but disciplined..."

Using the conjunction "but" correctly one can glean two objectives from that sentence. First that a free people ought to be armed and, second, that they ought to be disciplined as well.

If you have some source that claims Washington meant 'A free people ought not be armed...', please add that link to the various sources of BS.

[jimmy the one]

19. defending the bogus quote

dscntnt: Using the conjunction "but" correctly one can glean two objectives from that sentence. First that a free people ought to be armed and, second, that they ought to be disciplined as well.

While that's true for militia related purpose, you're tap dancing, blowing smoke. You put GW in quotes, thus denoting he actually said what you put in quotes: "A free people ought to be armed."

You took GW out of context, leaving out 'not only armed', but the part which noted he was referring to within an organization such as militia.
You defend your bogus quote, proudly upholding the 2nd Amendment Mythology?????

[discntnt_irny_srcsm]

20. mea culpa; you got me

Perhaps I should have used single quotes or prefaced the statement saying, "To paraphrase Washington...".
Score one for your fine GPS work. (grammar, punctuation, spelling)

And now that I've confessed, let me reiterate my request (If you have some source that claims Washington meant 'A free people ought not be armed...', please add that link to the various sources of BS.)

[jimmy the one]

21. George Washington, not so populist

d/i/s: (If you have some source that claims Washington meant 'A free people ought not be armed...', please add that link to the various sources of BS.)

GWashington, as an early american elitist, did not think all americans deserved any individual right to bear arms, outside of militia service as per the 2ndA militia centric view. He didn't even think much of militia, though post war he was conciliatory to a well regulated militia, thinking it would eventually be improved so as to be effective.

Re, GW's 'a free people ought not only to be armed' etc: That's from his first annual address to Congress on January 8, 1790. Reading through Washington's speech, it can clearly be seen that when Washington is talking about "a free people," he means the union as a whole should be well-prepared for any threat to the country. He wasn't talking about people being armed and ready to fight their own representatives. http://blogs.houstonpress.com/news/2012/04/george_washington_guns_quote.php?page=2

Washington was well known among the wealthy, political, and military elites for his charismatic and magnetic personality, however, he was so far removed from the ordinary citizens who made up the militia that it appears they thought him a tyrant. Washington continued for years to meet this same opposition, and sometimes open defiance of his leadership style

Washington did concede that he felt if the men had better officers – certainly this meant the British style officers he so admired – they would fight better. However, he could not bring himself to leave out his personal assessment and included one of his usual barbs, “although they are an exceeding dirty & nasty people

Still fewer, including Washington, acknowledged the fact the militia units were not armed with muskets which would accept a bayonet, the tool which was to ultimately drive the enemy from the field and thus guarantee victory.

GW quote: To place any dependence upon militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender scenes of domestic life - unaccustomed to the din of arms - totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves when opposed to troops regularly trained, disciplined, and appointed, superior in knowledge, and superior in arms, makes them timid and ready to fly from their own shadows. Letter to the president of Congress, Heights of Harlem (24 September 1776)

In order to bring Washington’s prejudice against the militiamen based on their socioeconomic place in society, to light, a comparison of two other groups considered at the bottom rung of colonial society should be considered. Whether full or mixed-blood, Africans and Indians were looked down upon as something short of human beings. Blacks were regarded as property and typically discussed by Washington only in that setting. Oddly, he often relegated the militiamen to menial labor that he also used slave labor for, such as erecting or tearing down forts. http://www.distant-clansman.com/george-washington-militia-lower-class/

The discrimination Washington showed toward the militia appeared to be obvious to a great many of the men. They felt the sting of Washington’s tyrannical treatment and his loathing which seemed directed at them personally, and they left in such masses that it caused Washington to become ever more punitive. Washington reported that on any given night twenty or more men would desert,

The Whiskey Rebellion broke out in Western Pennsylvania, but was put down by New Jersey, Maryland, and Virginia militias. After this event, Washington saw the need for a standing army. http://www.ushistory.org/germantown/people/washington.htm

Shay’s and the Whiskey Rebellion. In both uprisings the rebels were the same revolutionary militiamen in armed protest of their economic status. Perhaps fed by economic depressions which directly lead to rebellions, Washington recognized that his job as president included improving the lot of the lower classes. In 1785 he addressed one aspect of their improvement, their education, but only to the extent they would be taught the skills which would keep them laboring in menial professions. They had their place in society and he had his. He was as content with the status quo as he had been in the 1750s.

{note jimmy did not write this! but endorses it, & brava on your mea culpa}: .. when you use bogus quotes, misrepresentations or information from disreputable sources, all you're doing is making your position look like one that is held by idiots and liars. "Research before repost" should be your motto. If it's important enough to put on your timeline, it's important enough to Google.

it would be counterintuitive – as well as anti-historical – to believe that Madison and Washington wanted to arm the population so the discontented could resist the constitutionally elected government. In reality, the Framers wanted to arm the people – at least the white males – so uprisings, whether economic clashes like Shays’ Rebellion, anti-tax protests like the Whiskey Rebellion, attacks by Native Americans or slave revolts, could be repulsed.
However, the Right has invested heavily during the last several decades in fabricating a different national narrative, one that ignores both logic and the historical record. In this right-wing fantasy, the Framers wanted everyone to have a gun so they could violently resist their own government. To that end, a few incendiary quotes are cherry-picked or taken out of context. https://consortiumnews.com/2012/12/21/the-rights-second-amendment-lies/

[discntnt_irny_srcsm]

22. "If it's important enough to put on your timeline, it's important enough to Google."

Is this some facebook reference?

[discntnt_irny_srcsm]

23. When I wrote, "(If you have some....claims Washington meant 'A free people ought not be armed..."

...please add that link to the various sources of BS.)

I saw no link to anything alleging such a claim. Washington meant a free people ought to be armed.

All of your dancing is just parsley covering the rotten meat you're trying serve. No thanks.

[discntnt_irny_srcsm]

10. Register another vote for selecting the most strained of all possible interpretations

http://www.democraticunderground.com/1172165081#post9

[beevul]

3. The heller dissent was pretty bad.

As I said in another post:

The end of the dissent says:

" The Court would have us believe that over 200 years ago, the Framersmadea choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice."

The preamble to the bill of rights makes explicitly clear, that "to limit the tools available to elected officials" on a whole host of issues/fronts was precisely what the framers had in mind, and intended.

It contains and proclaims that exact sentiment, which the dissent ignores entirely.

[discntnt_irny_srcsm]

8. The best way to learn any subject is to attempt to teach someone else about it

If only the pro-control folks would spend more time in earnest discussion/debate than reposting cartoons...

[Surf Fishing Guru]

14. For Stevens in particular . . .

For Stevens in particular I have an extra degree of contempt.

It has to do with his unwavering endorsement of penumbral rights, where generalized "privacy" rights have been recognized to exist and how abortion, reproductive and sexual orientation rights are secured . . . but his refusal to recognize that his opinion of the 2nd Amendment clashes with the foundation for penumbral rights.

For those that do not know, privacy rights were recognized to exist in the "emanations" and "penumbras" of the rights expressly enumerated in the Bill of Rights and it also relies on the principle embodied in the 9th Amendment:

&quot The) specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion).

Griswold v. Connecticut, 381 U.S. 479 (1965)

Stevens has signed onto opinions that have cited and quoted and even quoted himself in opinions he has written, Harlan's famous dissent in Poe v Ullman.

Justice O'Connor, quoted below, expressly elevated Harlan's dissent to the opinion of the Court in a case which Stevens concurred (emphasis added):

"Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amend. 9. As the second Justice Harlan recognized:

&quot T)he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

Some questions for discussion:

How does Stevens' interpretation of the 2nd Amendment in Heller mesh with the foundational reasoning of penumbral rights, that the nature of the rights enumerated in the BoR demonstrates a "rational continuum" of individual liberty to be protected from federal (and state) injury?

Can a right that is found to exist in the "emanations" and "penumbras" of the rights enumerated in the Bill of Rights be more respected, more vital and more secure than a right that is actually enumerated in the Bill of Rights?

Can an anti-gunner's hostility for gun rights and dismissal of the Heller Court's interpretation of the 2nd Amendment actually be turned around on Progressives and be used to call into question the legitimacy of securing the rights to abortion and other reproductive choices or even the gains made in LGBT rights?

.

[discntnt_irny_srcsm]

15. How can anyone take seriously an opinion inferring a limiting definition of a right...

...from the language of a law protecting said right?

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

Might I infer from this language that while Congress is restricted from making such a law that it would be acceptable for a municipality or even an entire state to declare itself solely for or against any particular religion? Should we support the idea that interstate phone calls have no fourth amendment protection? The Constitution (Article 1 Section 8) leaves the regulating of 'interstate commerce' to the Congress.

The pro-control faction of the people look at Heller as a failure, a mistake. We often look to our history in law and judgment in an effort to characterize that which we need defined. While instructive, this course may skip the necessary assessment of self and conscience to determine the basis for framing the controversy. In the decision in the case of Baby M, Chief Justice Robert Wilentz recognized not laws and court decisions regarding contracts and agreements but the human nature of the parent-child relationship and that a contract to sell parental rights cannot be conceptually separated from selling the resultant child and that selling people is fundamentally evil. Justice Stevens looks to the militia clause to find circumstances which may qualify an actor for the possession of firearms and to justify laws restricting who may exercise that right and when it might be exercised. He does this rather than examining his own conscience because, as has been noted many places, some of those within government suggest firearms not be a general and overall right of the people out of suspicion or mistrust of the people. Doesn't that same opinion lead to the undercutting of how the government might view the people? IMHO considering people with that mindset leads to actions, laws and judgments treating the people more as subjects and less like equals. Considering 'We the People' with suspicion rather than trust is against the very idea of liberty.

The entire concept of the militia contrasted with a regular army makes fundamental to each person his innate right to be equal in arms (and in every other means) with that of an average soldier. The mindset to regard an average person AS an average soldier in prevents the formation of a special class of individuals.

JFK wrote: "By calling attention to 'a well regulated militia,' 'the security of the nation,' and the right of each citizen 'to keep and bear arms,' our founding fathers recognized the essentially civilian nature of our economy..." That the economy itself is owned by and owed to the people and not granted by the government.

We are a society based more on laws for utility than laws simply for the majority.

It is the most basic duty of any government to protect the rights of all the people. It is the duty of every official to most closely and diligently act to protect the rights of those least among us and those furthest from the 1%.