Sunday, March 24, 2013

What the Civic right Does and Doesn't do.

The problem with politicising the Second Amendment is that it blinds people to the exact ramifications of this legal principle:

"If a topic is not specifically mentioned in a law, one cannot assume that topic is covered by the law."
n other words, since the Second Amendment is silent on the topic of personal arms, yet it does specifically mention the militia--one cannot infer that personal uses are covered.

I was discussing this with a "pro-gun" friend when he said "So, this means that Kennesaw, Georgia's requirement that everyone own a gun is constitutional" as the light when on in his head.

Which is correct--the Second Amendment is silent on the topic of personal guns, which means that neither a gun ban, nor a requirement that everyone own a gun would not violate the Constitution.  Although, one could argue that the requirement that everyone owned a gun could violate the First Amendment.

Just not the Second.

But, the real significance of the Second Amendment not applying to personal weapons is that any attempt to justify NOT regulating the firearms based on a personal "right to keep and bear arms" is thwarted.  Unless, one is using a State Constitution which does mention personal purposes.

Also, as the Heller-McDonald decisions have pointed out, the politicisation of the Second Amendment has made the make-up of the Judiciary an important consideration for elections.

To answer a commonly asked question, if the Miller Decision is still good law, how have the Heller-McDonald decisions affected its status as precedent.

Quite easily answered, despite what you think, the civic right interpretation is not dead, it's just dormant.

All you need is a judge who agrees with me and points out the overwhelming evidence for that interpretation as well as understands Miller and can show why it contradicts the Heller-McDonald decisions.  That judge points out the reason that the five justices found that decision "not helpful" is that it completely contradicts what they were doing.

That includes glossing the Cryptic  Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840) reference at the end of this paragraph from Miller:
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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.
Aymette  says:
To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.
Justice McReynolds taught law at Tennesse's Vanderbilt University, I am sure he was quite aware of this reference which has gotten lost in the mix. And what he is saying is that the Second Amendment's use of the phrase to keep and bear arms has a military sense, and no other.

18 comments:

  1. "The right of the people to keep and bear arms shall not be infringed." Funny, but there are no qualifications in that statement. The militia clause is the stated reason that the amendment needed to be written, but there is no purpose specified in the part of the sentence that expresses the right. This means that I can keep and bear arms as fashion accessories or as objets d'art or as investment property or for self defense or whatever.

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    1. Greg, you hit the nail on the head. I die a little inside every time Laci opens his trap on here. It's bad enough when you have people who act like the Second Amendment is confusing, but Laci's Constant and determined insistence that the first clause governs the meaning of the Second Amendment is offensive, not just on a professional, legal level, but merely on a grammatical level.

      Dear Pooch: Stop crapping on our constitution and the practice of law. Ur Doin it WRONG. You know a lot of terminology, but your arguments are fabrications built up to push your predetermined outcome.

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    2. Too bad for you guys Laci's not alone in that thinking.

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    3. Oh, I know he's not alone. Fools often have company. Many people agreed with slavery and with the "infallible" court's Dread Scott decision.

      Having companions, even in the legal field and on the bench, doesn't change the fact that Laci and you are selling chicanery and all around bad legal arguments.

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    4. He's among a tiny group, though.

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  2. I believe that Miller can be interpreted by a future court to endow a collective State "Militia" with all arms within U.S. borders, (although it has been chosen to interpret this section to bear a different context) and therefore sanction all weapons on U.S. soil as some form of State property, to be appropriated for official use by non-individual entities. The Second Amendment would therefore serve to endow a collective State "Militia" with all arms within U.S. borders, (although it has been chosen to interpret this section to bear a different context) therefore all weapons are presumably some form of State property, to be appropriated for official use by non-individual entities. In accordance with such a prohibitive ruling, there could be no constitutionally legitimate civilian small arms market.

    Laci, do you think that a Right to Civilian Disarmament can be derived fro the language in the preamble (of the U.S. Constitution) sanctioning as the duty of Government to "ensure domestic tranquility", "promote the general welfare", "provide for the common defense"? If there exists such a Right to Disarmament of the mere citizen as expressed by the constitution, does congress bear the responsibility to adopt prohibitive statutes concerning the proliferation and possession by mere civilians, who do not convey public authority, are not entrusted with the safety of the populace, and not endowed with coercive power (therefore requiring the use of arms) over other subjects.

    The problem isn't merely limited to the Second Amendment. America, relishing in it's military omnipotence, has such a powerful world presence that it fails to realize that the real enemy is within.

    The United States Constitution implicitly prohibits all Federal action, and then proceeds to establish exceptions (commonly known as "Enumerated Powers") to enable the Federal Government to carry out limited duties which exceed the authority of the individual State. The power of the States which comprise the union, are limited by the (typically negative) "rights" found in their native constitutions, or more recently, the provisions of the Federal Constitution which have been deemed to apply to such.

    The current system illustrates the backwards notion that individuals (as opposed to the collective State) are (somehow) endowed with "rights" (such as the right to hate, the right to evade law enforcement, the right to own killing machines, and the like) and that, upon the formation of a collective society, and a State to rule over such, subjects grant necessary power to the State in order for such to fulfill specific duties.

    Such a concept is ridiculous, in addition to being inherently dangerous, as the common subject has no rights in a civilized society. When a government is formed, all rights previously retained by individuals are collectivized, and left to the discretion of the State.

    We need to rethink our concept of "crime" before such "crime" consumes us all. Therefore the role of the State's legal codes ought to be re-evaluated to allow certain actions, as opposed to prohibiting certain actions.

    Government ought to tell the people what they can lawfully do, instead of what they can't.

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    1. Do you write this nonsense out anew each time, or do you have a copy saved? I'm guessing the latter.

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    2. E.N., if you wish to hide under different names you should avoid the cut/copy and paste method.

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  3. Laci,

    Will those who protect you, our malls, and society from the dastardly deeds of the hordes of armed thugs that are a perennial and omnipresent menace to your unsuspecting Black Friday sale, be treated as a "well regulated Militia" under your interpretation of the Constitutional Text?

    I ask as someone who has experienced the carnage firsthand as the Field Operations Security Officer (and later industry consultant) for a three man Tactical response team charged with ensuring YOUR SAFETY, in the face of Cripps, Skinheads, EX-KGB Russian mob along with the other usual suspects for such a vile atrocity as shoplifting which ran rampant one of our nations most dangerous malls. Those heroic men and women who are entrusted with such a task, are selected from the best of the Security/Military/Paramilitary industry, and are trained intensively in the art of Ninjutsu, adapting the ancient techniques to suit the Kevlar body armor that worn daily, in anticipation of the next machinegun-weilding crackhead rampage unleashed upon your shopping spree. Wanabes like this guy can go and strap on some silly little civvie-legal toy and parade around, but if (and more likley when) you go bad, real professionals like me have to clean up the mess.

    I say this (in anonymity do to the nature of my occupation) as someone who is entrusted to carry (when I was on Indoor Contingency "Mall" duty) an FN SCAR, two Glock 17s, a FN Five-Seven, and a MP5-Kutz (just in case) FOR YOUR SAFETY.

    Civilians are better of with a rape-whistle or a cellphone than a shiny trinket like this or a civvie-legal gun, so a professional like me can respond when you are cornered by UZI-wielding thugs in a mall bathroom.

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    1. Unless you were working a mall in Afghanistan, you're full of it.

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    2. Specop, not only are you clearly a poser, you're a poser who, like E.N./Black Cap, betrays himself or herself by your depending so heavily on cut/copy and paste.

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    3. Cmon, Gecko, no regaling us with the tales of how you "saved the ass-virginity" of the mayors son and many others in your mall? You're leaving your greatest hits behind.

      BTW, are you still taping extra chicken plates to yourself under your armor?

      Or maybe you're willing to admit you're a gun shop employee in Knoxville who just likes to troll.

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  4. You'll notice the quote you gave us from Miller is addressing the weapon as the subject, and whether or not it is suitable for militia purposes. They did not address the man, Miller, and conclude that since he is was not part of a milita he has no right to bear any arms. By concluding that a sawed off shotgun is not protected, it infers that there are other firearms suitable for militia purposes that are part of Miller's individual right to keep and bear arms. Heller does not contradict Miller because SBSs are still unprotected arms.

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    1. TS,

      Laci is either too stupid to understand this, or full understands it, but pretends not to because it doesn't fit his narrative. I'd bet on the latter, though he spends so much time around Dog Gone over at their echo-chamber (Penigma), that it's possible that she's rubbing off on him.

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    2. Even though short-barreled shotguns are good weapons for the military, so those ought to be protected, presuming we accept the idea that the militia is the only reason for the Second Amendment. It, of course, addresses the right of the people, not the militia.

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    3. Greg,

      The interesting thing, when you read the caselaw, is that the Supremes, other courts, and gun controllers dropped the military utility argument shortly after Miller. The reasons was that suddenly, in WW2, every imaginable gun, including every one banned under the NFA, had found use in the armies of that conflict. If they kept using that rationale, the whole act would have had to go, so they changed their reasoning and kept chugging along.

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  5. Pooch, are all of you that are practicing law, I think they call it practicing for a reason, as dense as you. I am a 'people' like the one referred to in the 2A. Now, perhaps you are not a people, but I definitely know I am.

    orlin sellers

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    1. We're not all that dense, but unfortunately most are. Most law professors teach this kind of garbage that ignores the text, the original meaning, and the original intent, and instead seeks to torture the meaning of the text and make it mean whatever they can convince the "enlightened" judges that it means.

      One professor repeatedly said: "If the law is on your side, emphasize the law. If the facts are on your side, emphasize the facts. If the neither is on your side, yell and bang the podium." The final option is what Laci is doing. It's a pitiful sham.

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