the 2nd Amendment

the 2nd Amendment

This is a discussion on the 2nd Amendment within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; I routinely go on liberal blogs and debate the insanity. I've been doing it for years. Some of their favorite elements to debate are "Militia", ...

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  1. #1
    VIP Member Array BugDude's Avatar
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    the 2nd Amendment

    I routinely go on liberal blogs and debate the insanity. I've been doing it for years. Some of their favorite elements to debate are "Militia", "Regulated", and "Infringed". Let's take a look at the meaning of these words in the context of the time and manner in which they were used along with legal precedence that has been established.

    Militia - it is commonly debated by antis that the militia is the military, or at least now that we have a military it is irrelevent. Not so. By definition:

    mi·li·tia (m-lsh) n.
    1. An army composed of ordinary citizens rather than professional soldiers.
    2. A military force that is not part of a regular army and is subject to call for service in an emergency.
    3. The whole body of physically fit civilians eligible by law for military service.

    The definitions above make it clear that it is ordinary citizens, not professionals, not part of a regular army, and the whole body of physically fit civilians. It is, we the people.

    Regulated - one of their FAVORITE contentions is that this implies regulations, or laws, or limits in which the government places upon the militia. Well, in the context of the time and use of the word (and we'll see next in case law), this is actually referring to the intent that the militia is to have armaments in like manner to a regular army. Well Regulated meant well armed not well governed. Remember, they are not professionals or a regular army...not under the control of the government.

    In United States vs. Miller 307 U.S.174 (1939) in which Miller was arrested for carrying a sawed off shotgun without a stamp and tax paid required under the NFA of 1934. The judge ruled in Miller's favor citing the second amendment words for word. The US appealed and Attorneys for the United States argued four points:

    1.The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.
    2.The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce.
    3.The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
    4.The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization

    On May 15, 1939 the Supreme Court, in a unanimous opinion by Justice McReynolds, reversed and remanded the District Court decision. The Supreme Court declared no conflict between the NFA and the Second Amendment had been established, writing:

    "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

    It seems clear that the opinion is that the 2A ONLY protects such miltary-type weapons appropriate for a militia and make it efficient. The intent seems to be that the ordinary people have arms consistent with or at least comparable to the military weapons in order to be efficient and effective.

    Infringed -definition:

    in·fringe
    /inˈfrinj/Verb
    1.Actively break the terms of (a law, agreement, etc.): "infringe a copyright".
    2.Act so as to limit or undermine (something); encroach on: "infringe on his privacy".

    As we see today, people think these arbitrary limits do not INFRINGE since it is not banning ALL guns. The definition seems to imply that one does not have to completely ban something for it to limit, or, infringe.

    These are just some favorite sticking points with anti-gunners with regard to components of the Second Amendment, and hopefully this will give some analytical viewpoints to debate their postitions.
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  2. #2
    VIP Member Array glockman10mm's Avatar
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    The problem, and possibly crux of the debate in the courts is what constitutes and infringement vs balancing the need for public safety?

    Take for instance the 1930's law prohibiting machine guns from sale to the general public. By this definition, that was a definite infringement even back then. But still yet, it was legally passed and unchallenged even today.

    Then the question may be, does it place an unusual or burden that is prohibiting in nature on the individuals rights under the 2A? I am trying to think like the courts would, in order to formulate my own arguement against banning anything.
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    VIP Member Array BugDude's Avatar
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    In the spirit of refining our debating skills in this regard, let me take a stab at this.

    Machine guns are not prohibited, you just have to jump through more hoops and expense and be subjected to greater scrutiny (I have a friend that has done that and legally owns such implements). They could certainly try to push semi-automatic weapons into that same category under the NFA of 1934, but they are in such common use they can't truly say they are irregular in nature. The same case later cites:

    "The significance 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. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

    They were expected to bear their own arms and of the kind IN COMMON USE at the time. Semi-autos are the most commonly used and to use something else would not bear a reasonable relationship to satisfy the efficiency aspect. The sull auto guns were not necessarily "of the kind in common use at the time." They were available, not not in common use by average citizens. Under the intent and interpretations of the 2A, to ban or limit to the point to undermine their efficiency would pose a much greater risk to public safety.
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    VIP Member Array glockman10mm's Avatar
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    I agree. However, the Thompson machine gun was in common use at it's time, and even marketed to ranchers and home owners as legitimate SD.

    And while it is true you can own FA weapons with the proper payment and stamp, the fact remains that our rights have already been altered by making a future purchaser need to jump thru this hoop and pay a fee.
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    VIP Member Array glockman10mm's Avatar
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    An additional thought I have is that a much more compelling arguement for 2A is not the militia content, but the mention of " the people", which obviously is referring to " the people" mentioned in the other amendments, and is recognized as an individual right for all the others, which leaves little doubt that they are talking about the same " people" in the 2A.
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    In United States vs. Miller 307 U.S.174 (1939) in which Miller was arrested for carrying a sawed off shotgun without a stamp and tax paid required under the NFA of 1934. The judge ruled in Miller's favor citing the second amendment words for word. The US appealed and Attorneys for the United States argued four points:

    1.The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.
    2.The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce.
    3.The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
    4.The "double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230" was never used in any militia organization

    On May 15, 1939 the Supreme Court, in a unanimous opinion by Justice McReynolds, reversed and remanded the District Court decision. The Supreme Court declared no conflict between the NFA and the Second Amendment had been established, writing:

    "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
    Keep in mind that the significance of the Miller decision been called diminished due to the fact that neither the defendant nor his attorney(s) actually appeared before the Supreme Court, and the decision was reached without benefit of a thorough discussion of the issues. Had there in fact been the type of discourse we saw in the Heller case, points 3 and 4 might well have been decided in "our" favor.
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    VIP Member Array BugDude's Avatar
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    I agree with "the people" meaning individuals's rights.

    I'm just trying to analyze the typical points the antis focus on debating in order to help arm (pun intended) us all with points to counter their favorite arguments. They ALWAYS go straight for the militia argument first, then regulated, and then justify limits (such as banning semi-autos and limiting rounds to 7) not being an infringement because they aren't banning ALL guns outright.

    I've argued these points individually for years, just never put them all together in one writing that follows any sort of logical flow.

    Please elaborate, add to, and discuss these components. It can only help us develop rational, logical, and factual understandings to counter the disecting tactics of their attacks.
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    VIP Member Array glockman10mm's Avatar
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    I wish I was a Constitutional expert. There are so many things I don't understand, with respect to what I read and understand and, the way the Goverment operates.

    So, I too have been trying to make sense of the liberal mindset and argument.
    Ignorance is a long way from stupid, but left unchecked, can get there real fast.

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    VIP Member Array BugDude's Avatar
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    Quote Originally Posted by gasmitty View Post
    Keep in mind that the significance of the Miller decision been called diminished due to the fact that neither the defendant nor his attorney(s) actually appeared before the Supreme Court, and the decision was reached without benefit of a thorough discussion of the issues. Had there in fact been the type of discourse we saw in the Heller case, points 3 and 4 might well have been decided in "our" favor.
    True, but it has been referred to in other Supreme Court Decisions:

    Lewis v. United States (1980); Footnote 8
    (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia"); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010 (1972) (the latter three cases holding, respectively, that 1202 (a) (1), 922 (g), and 922 (a) (6) do not violate the Second Amendment).

    In this instance, one can argue that semi-automatic firearms at this point in time do have some reasonable relationship to the preservation AND efficiency of a well regulated militia. Limiting a handgun or rifle of this nature to 7 rounds would greatly impact the efficiency of a militia in terms of facing enemies that do not have such a disadvantageous limitation.



    Printz v. United States (1997) (concurring opinion of Thomas)
    Our most recent treatment of the Second Amendment occurred in United States v. Miller, 307 U.S. 174 (1939), in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Id., at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.

    In this case, it seems to support that the 2A is specifically protecting "ordinary military equipment" that could "contribute to the common defense." It would be hard to say that semiautomatics, as common as they are today, would be excluded from this protection.
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    VIP Member Array BugDude's Avatar
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    Quote Originally Posted by glockman10mm View Post
    I wish I was a Constitutional expert. There are so many things I don't understand, with respect to what I read and understand and, the way the Goverment operates.

    So, I too have been trying to make sense of the liberal mindset and argument.
    I hope this exercise of analysis helps us think about it in a logical and analytical fashion. I doubt it will help us make sense of the liberal mindset, but at least it can help us make sense of how all of these components of the 2A and case law come together with logic and meaning.
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    Quote Originally Posted by glockman10mm View Post
    I wish I was a Constitutional expert. There are so many things I don't understand, with respect to what I read and understand and, the way the Goverment operates.
    I think a strong interest in the Constitution and what it's all about is a pretty good start. Would that the majority of Americans took your level of interest.
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    VIP Member Array BugDude's Avatar
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    So, to break it down it protects ordinary citizens right to have arms in common use at the time, of a kind being military-style and or in use by militias as to have some reasonable relationship to the preservation or efficiency of a well regulated militia.

    This is relevant to the current debate regarding Magazine Capacity Limits because 90% of all firearms commonly used today hold more than 7 shots. In other words, a gun limited to 7 shots is uncommon.

    And more importantly, if a person is to bring their own arms to a militia it is to be one of common use as to make the militia efficient in terms of facing their opponent. If the opponent has commonly used arms holding 15, 20, 30 rounds and the people, called upon, show up with their 7 shooters they are not going to be very efficient with their limited capacity arms.
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    Several things bother me,and who knows what will happen.That UBC really concerns me.Someone comes out and says,when you buy a firearm,we want to know.Thats none of their business.It's just kind of a personal thing to me.I go buy a firearm legally,there is no reason,they need to know,or have it on record.

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    VIP Member Array BugDude's Avatar
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    They are also talking about requiring a UBC when you buy AMMO and reporting to the BATFE anytime anyone buys x amounts of ammo too. Talk about an Orwellian State of Big Brother Watching.
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