I have a question

[DoverFrank]

If the second ammendment only allows guns in order to keep a citizen militia, why are guns still legal?

[FeebMaster]

1. It doesn't.

But assuming that it did, guns would still be legal because they haven't been made illegal.

[yorgatron]

2. you know how they say "an army of one"?

i'm a militia of one.

[FeebMaster]

3. At the risk of hearing about it months from now.

I like that.

[Wickerman]

46. oh, don't worry, it'll never come up again

:evilgrin:

[library_max]

29. So if you call yourself a "church of one," you can be tax-exempt.

If you call yourself a "police department of one," you can put on a uniform and start arresting people.

If you call yourself a "hospital of one," you can start doing unlicensed heart surgery.

Try it and let me know how it works out for you.

[FeebMaster]

32. What's wrong with being a church of one?

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

[library_max]

34. So try it and see where it gets you.

I understand the IRS has a particularly charming sense of humor on this subject.

[FeebMaster]

36. I understand the government has no respect for

the Bill of Rights. I'd like to avoid having my house burned to the ground.

[library_max]

38. See, here again,

you're rushing right past the possibility that you yourself are misinterpreting the Bill of Rights.

[FeebMaster]

39. I didn't think

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

[library_max]

42. I think you may have put your finger on the problem. /nt

[FeebMaster]

50. Authoritarians are functionally illiterate? (nt)

[library_max]

56. Reread the title line of your post #39 slowly and carefully. /nt

[FeebMaster]

58. Maybe you should read the whole post. (nt)

[library_max]

60. I did. But I still say that the title line captured it nicely. /nt

[FeebMaster]

61. I think post 50 pretty much sums things up. (nt)

[John BigBootay]

53. Lousy-ass argument-- here's why:

There ARE "police departments of one" they are usually in small towns or counties with a lone sheriff who is an elected officer of the law. He has met certain obligations and qualifications.

There ARE hospitals of one as well-- the sole doctor being licensed as to the requirements of the law.

The LAWS state the requirements to be met in order to be considered eligible for these individual roles.

The Constitution is the SUPREME LAW of the land and it says nothing about the number of members pertaining to a militia.

If it did, THEN you would have a point. Since it does not-- you have no point.

Clarify the Constitution or butt-out.

[library_max]

57. But you can't appoint YOURSELF a police dept., hospital, etc.

Likewise, you can't just declare yourself to be a "militia of one."

There has never been a court case decided on the basis of your "logic" here. Your point (yorgatron's original point) is purely imaginary. It has no basis in law.

[John BigBootay]

124. You cannot appoint yourself--

because certain laws specifically illustrate how and when to establish a police force.

Where is the "law" that says how many men constitute a militia?

I say the minimum number of men or women to establish the "John BigBootay Southern California Minuteman Militia" is exactly one-- ME.

Are you prepared to show me the law making my militia illagal?

If you can't do it, your option as far as I'm concerned is to clarify the definition of militia as found in our Constitution.

[library_max]

153. Try it in court and see how far you get.

Go ahead and try to make a Second Amendment case based on the idea that you yourself are a militia, because you yourself say so. I'll just wait here and laugh.

[Oaklander]

6. So let's make 'em illegal.

Get Congress to pass a law, and get the President to sign it, outlawing all private ownership of firearms. If it's not a Constitutionally protected right it should be a simple matter to ban and confiscate guns, right?

[iverglas]

9. yeah

Do the same for rosebushes while you're at it. And see how far you get with both.

Honestly ... sometimes I wonder why some people bother to talk about things they plainly haven't bothered to know about.

[Oaklander]

11. I suppose that type of legislation wouldn't make it past the janitor...

...let alone a committee or the entire Congress. I wonder why a certain segment of the population wastes their time and energy trying to get guns banned. It's not going to happen. Ever. Like 'em or not, guns are here to stay.

[iverglas]

13. And I wonder

I wonder why a certain segment of the population wastes their time and energy trying to get guns banned.

Why another segment of the population wastes its in trying to pretend that anybody it's talking to is doing anything of the sort.

Oh well, eh?



Like 'em or not, guns are here to stay.

So's poop. But I've never thought that meant we needed it in parks.

[DoNotRefill]

65. ummm...poop is GOOD in parks.

"So's poop. But I've never thought that meant we needed it in parks."

It makes excellent fertilizer, and helps keep the shrubs et cetera nice and green.


/me roots for poop!!!

[library_max]

26. People used to say that about slavery. /nt

[MrBenchley]

4. Too fucking funny...

Show us the amendment that covers ownership of rosebushes by gardeners....

[Oaklander]

5. That one would be covered under the 4th Amendment..

The one that guarantees "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures..."

[MrBenchley]

7. There you go...

[iverglas]

8. good grief

Sorry, but the right to be secure against search and seizure just doesn't make it legal to OWN something. Anything.

Up here, we regard the ownership of rosebushes as being nicely covered by the right to liberty. It is, of course, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

That would be why it is illegal, and perfectly constitutionally illegal, to own purple loosestrife, although it is legal to own rosebushes. Rosebushes do not harm the public interest. Purple loosestrife does. It is invading and taking over habitats throughout Ontario. No one has any interest in cultivating purple loosestrife that would outweigh the public interest in preserving natural habitats and all the flora that grow in them, and fauna that feed on those flora.

I don't know what your right to own rosebushes is based on -- probably something to do with that privacy penumbra, when you have a perfectly good right to liberty sitting right there. But in any event, it just ain't the right to be secure against unreasonable search and seizure.

And if it were illegal, for some constitutionally valid reason, to own rosebushes, you can bet that your 4th amendment wouldn't stop the gummint from seizing them.

[DoNotRefill]

66. Anything not specifically forbidden is permitted.

I've yet to see rosebushes prohibited by law.

[iverglas]

133. good grief

Anything not specifically forbidden is permitted.

What did you think I was saying???

The actual issue, of course, was WHETHER something may be prohibited, and on what grounds, and what grounds could be asserted against such a prohibition.

My point was that a guarantee against unreasonable search and seizure does not protect POSSESSION of something from a prohibition on possession of it. Surely you would agree.

There must be something that DOES protect the possession of things against prohibitions on the possession of them, or else I could be prohibited from growing rosebushes at the whim of the legislature.

And then "Anything not specifically forbidden is permitted" wouldn't be of any assistance to me at all, since it WOULD be specifically forbidden.

The question is never merely whether there IS a prohibition on something, but whether the prohibition is a VALID, permissible, prohibition.

Accordingly, I said:

Up here, we regard the ownership of rosebushes as being nicely covered by the right to liberty. It is, of course, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

That would be why it is illegal, and perfectly constitutionally illegal, to own purple loosestrife, although it is legal to own rosebushes. Rosebushes do not harm the public interest. Purple loosestrife does. ...

I would be permitted to grow rosebushes no matter what prohibition was enacted UNLESS that prohibition were imposed by a valid law and the interference with my liberty were permissible.

[library_max]

27. Doesn't give you the right to own any particular thing.

You can't own dioxin. You can't own cocaine. You can't own plutonium. There are laundry lists of things you can own only with a permit, including for example a dog.

[DoNotRefill]

68. Don't need no dog permit....

I also "own" and regularly release radioactive isotopes into the wild, in the form of radon in the basement which we vent to the outside. Of course, I live in a "free zone".

[slackmaster]

10. The Second Amendment does not restrict the rights of citizens

It restricts the power of the federal government.

You raise an interesting question. If the federal government had the power to stop people from owning guns, Congress would have outlawed civilian ownership of machineguns when it passed the National Firearms Act in 1934. Because the Second Amendment prohibits the federal government from outlawing gun ownership outright, the NFA was implemented as a tax law.

See http://www.atf.gov/firearms/nfa/index.htm

[Oaklander]

12. Good point.

The Constitution exists only to delineate and restrict the powers and actions of the federal government. The only Amendment that restricted individual liberties (the 18th) was later repealed. That's why the asinine proposal by our deficient leader to use the Constitution to ban gay marriage will never fly.

[slackmaster]

14. It's only 6:28 AM here and already you've made my day

Thank you for spelling "asinine" correctly, and you're spot on about the Constitution and BoR.

:toast:

[mosin]

15. our deficient leader

you're spot on about the Constitution and BoR.

And our deficient leader.

[slackmaster]

16. Yes, and you both spelled deficient correctly

It's going to be a good day.

:toast:

[7th_Sephiroth]

17. because

Everyone is militia, as we all have the right to defend ourself from attackers

[slackmaster]

18. Brace yourself for a ration of grief from nay-sayers

You can quote TITLE 10, Subtitle A, PART I, CHAPTER 13 Sec. 311 of the United States Code until you are blue in the face, but there are still those who will insist that the ONLY militia of the United States is the National Guard. Not only is that an oversimplification of the organized militia, it's dowright wrong.

See http://www4.law.cornell.edu/uscode/10/311.html for the actual definition of the miltia.

The National Guard is defined in Chapter 32 of the USC. Section 101 of that chapter provides definitions. Note specifically that under the definition of "Territory" (paragraph 1), the term "militia" is listed as an entity distinct from the National Guard, the Army National Guard of the United States, and the Air National Guard of the United States. Also,

- ''Armed forces'' means the Army, Navy, Air Force, Marine Corps, and Coast Guard.

- ''National Guard'' means the Army National Guard and the Air National Guard.

- ''Army National Guard'' means that part of the organized militia (note by slackmaster - organized militia, not militia) of the several States and Territories, Puerto Rico, and the District of Columbia, active and inactive...

(See http://www4.law.cornell.edu/uscode/32/101.html )

The rest of the militia, the Unorganized part, is pretty much every able-bodied citizen. Most of the states' constitutions include their own definitions of militia that include an unorganized component, which is also every able-bodied citizen.

[MrBenchley]

19. Why?

Who but the really desperate would even try to pretend that "unorganized" means "well regulated"?

[Liberal Classic]

20. While we're discussing non sequiturs

"The right of the people" means the right of the collective as a distinct and separate entity from the people?

Things that make you go 'hmm.'

But somewhat more seriously and for the sake of argument, can we agree that the organized militia is well regulated? But before you answer this question, what does 'well regulated' mean in this context?

The organized militia, also called the regular army orregulars, are well regulated. What does it mean for the army to be well regulated? Does well regulated mean that the army has a lot of rules and regulations? Does well regulated mean that the army should be under the legislative control of the congress? No.

[Name removed]

22. Deleted message

Message removed by moderator. Click here to review the message board rules.

[MrBenchley]

23. Ple-e-e-e-ease....

Does the bullets for brains bunch ever get tired of playing these mindless semantic games?

"But before you answer this question, what does 'well regulated' mean in this context? "
Let's see....America's gun owners are a menace to themselves and others; they perforate between 80,000 and 115,000 of themselves, friends, acquaintances and strangers every year...Their formal organizations are headed by some of the sickest screwlooses and criminals around; their on-line forums are rife with virulently crazy rubbish. Even Bwana Dick Cheney, who's so gun-crazy he owns machine guns and once voted against banning cop-killer bullets, refused to visit with them unless they were run through metal detectors. Whatever the fuck "well regulated" means, America's gun owners ain't it.

[Hrumph]

24. more name-calling and mud-slinging from the bench n/t

.

[DoNotRefill]

69. MrBenchley, pick up the CFR all at once....

and tell me that the general populace/militia isn't "well regulated".

Do try not to hurt yourself, because it's a pretty massive collection of books.

[MrBenchley]

96. Peddle it elsewhere, refill.....

America's gun owners are no more "well regulated" than they are mint flavored.

[DoNotRefill]

104. And whose fault is that?

the people who are supposed to be regulated, or the people who are supposed to make the regulations?

That's the nice thing about America....when the regulators start making stupid regulations, the people being regulated can vote their asses out of office.

[MrBenchley]

111. "...whose fault is that?"

Too TOO funny.

[library_max]

28. The supposed right to individual self-defense

has nothing to do with militias and therefore nothing to do with the Second Amendment. It has been a hundred years since American citizens took their own privately-owned firearms to war. There isn't even a draft any more. The citizen militia referred to in the Second Amendment is dead as a doornail, which is why the Second Amendment is as obsolete as the third.

[slackmaster]

30. You've just said something I agree with completely

The supposed right to individual self-defense... ...has nothing to do with militias and therefore nothing to do with the Second Amendment.

You are correct. The purpose of the Second Amendment is to prevent the federal government from interfering with states' abilities to have their own effective defensive forces.

It has been a hundred years since American citizens took their own privately-owned firearms to war.

That is NOT true. Many US soldiers brought their personal weapons along when they went to World War II and the Korean conflict.

There isn't even a draft any more.

No, but unless we get rid of the present batch of scoundrels in Washington, DC that could change at any time.

The citizen militia referred to in the Second Amendment is dead as a doornail, which is why the Second Amendment is as obsolete as the third.

The citizen militia is very sick but it's not dead yet. If you're unlucky enough to be the victim of a widespread natural disaster that's too much for the regular civil authorities and National Guard to handle, you'll be glad it's there.

I wouldn't write off the Third Amendment so quickly. Even if it hasn't been invoked in a very long time, would you be willing to accept the risk created by its repeal? If not, that's how I feel about the Second Amendment.

[library_max]

37. I'll accept your correction about WWII and Korea.

Not sure what kind of natural disaster would require the presence of privately-owned firearms, however.

Regarding the Third Amendment, if it were indirectly responsible for getting tens of thousands of people killed every year, I'd say pull the plug.

[slackmaster]

40. Not sure why militia necessarily involves firearms

One definition of militia is the whole of a body of citizens subject to be called for military service. Not all military actions involve weapons. The National Guard gets called out for disaster relief a lot more often than it does to back up the regular military forces. If your neighborhood is getting flooded I'll wager the governor of your state has the right to ORDER you to pitch in and help out with sandbags. I know mine does.

Regarding the Third Amendment, if it were indirectly responsible for getting tens of thousands of people killed every year, I'd say pull the plug.

Since WE BOTH AGREE that the Second Amendment is not the basis for the individual right to self-defense, I don't understand your comment.

[library_max]

43. Fair enough,

if we agree that the Second Amendment does not guarantee the right to keep and bear arms to private individuals. My only point regarding disaster relief was that it isn't particularly relevant to the Second Amendment. You are absolutely right about the sandbags.

[slackmaster]

45. Now we have parted company

The Second Amendment DOES guarantee the RKBA to private individuals, for the purpose of protecting the states' ability to muster effective militias.

[library_max]

48. Then it absolutely does matter that the only example of militia you can

come up with does not involve firearms. As there is no further need for firearms in a citizen militia - as firearms are no longer relevant to such citizen militias as still exist - the Second Amendment is moot regarding private ownership of firearms. If the Second Amendment is relevant to private ownership only in the context of citizen militias, and if there is no such context that involves weapons, then QED.

[Hrumph]

64. Not quite

The Amendment does not say that the people have the right to privately own arms so that they can serve in the militia. What it DOES say is that the well regulated (read properly functioning) militia is the compelling reason for enumerating the right in the Constitution.

It's a very fine point but an important one.

[library_max]

67. According to Miller and every other constitutional authority I can find,

this is a distinction without a difference. The Second Amendment applies only in the context of a militia. No militia currently (or in recent memory) requires weaponry. Therefore, there is no context in reality for the Second Amendment to guarantee the right to private ownership of guns.

[Hrumph]

71. If you want to cite Miller

by my guest. If you want to take US v. Miller literally then we all have a constitutionally guaranteed right to own machineguns and mortars.

The Swiss currently have an armed militia. Their militia, in fact, is more heavily armed than the American citizen.

Just because the State has totally neglected its responsibility to train the militia, that doesn't make the militia cease to exist.

[MrBenchley]

79. Too TOO funny....

"we all have a constitutionally guaranteed right to own machineguns and mortars."
And yet in every gun control case, Miller is invoked by the pro-control side, and serves to uphold the constitutionality of gun control. Lawyers for the pro-gun side never bring up Miller.

Guess some people either misread, or are dishonestly distorting what the Supreme Court ruled.

[DoNotRefill]

81. it's strange...

the anti gunners often quote dicta from Miller, but NEVER the holding. Why is that???

[library_max]

83. Because, like pretty much any Supreme Court ruling you might care to name,

the significance of Miller is in the legal reasoning applied, not the specific ruling. The legal reasoning is what constitutes the precedent.

[DoNotRefill]

101. So, you're saying it's the dicta, not the holding....

that's important? Fascinating....not realistic, educated, or well informed, but fascinating nonetheless.

[library_max]

107. So, by your "reasoning,"

Brown v. Board of Education had no significance outside the rules of the Topeka schools. Whereas in fact it has been used as the cornerstone of all kinds of civil rights cases some of which have nothing to do with education.

Do you have anything other than a sneer to respond with? Seems like the bottle's getting pretty close to empty when all you can do is call names.

[DoNotRefill]

109. what I'm saying is that dicta is nice...

but a holding by a higher court is binding. If you'd been through law school, even a 4th tier law school, you'd understand that BASIC facet of the judicial system.

[library_max]

120. I don't accept your authority in these matters.

I could say a lot of snotty things about you and law school, but I would like to try to keep this discussion adult, at least on my side.

The basic fact of Supreme Court rulings and any interpretive ruling that is not overturned by a higher court is that the legal reasoning dwarfs the actual holding in significance. Of course the holding is more specifically binding, but it is rarely cited in any later case because it is not likely to be as relevant to a different case as the general legal reasoning. When we talk about the "precedent" set by a Supreme Court case, we are not primarily talking about the holding.

[DoNotRefill]

137. You don't have to accept my authority on this.

ask ANY attorney if a holding is binding, or if dicta is binding. The answer should be the same across the board: The holding is binding, the dicta is fluff. It tells how they got to the decision, but is NOT binding.

[library_max]

154. Whether the holding is more binding than the reasoning is not the issue,

try vainly though you may to pretend that it is. The precedent set by a Supreme Court case lies in the legal reasoning, the interpretation of the Constitution on which it is based. Not the specific holding. "Binding" doesn't mean diddley-squat to this discussion. No court ruling is "binding" on anyone except the parties to the case.

[DoNotRefill]

164. "more binding"? That's like "more pregnant".

Something is either binding or it isn't. There's no such thing as "kind-of binding" or "a little bit binding" or "more binding". And if a decision is binding, it binds all other cases that are "on the corners", and inferior courts cannot go against it, unless they want to risk CERTAIN and SWIFT judicial smackies.

There's a reason why it's ILLEGAL for paralegals to practice law. This is one of them.

[MrBenchley]

92. It's even stranger....

Miller is often cited in court when explaining how gun control is constitutional.

[library_max]

82. There is no armed militia, trained or otherwise. It does not exist.

You can't base a constitutional right on a fantasy, on something that might exist (except that it doesn't).

If you want to argue that US v Miller means that "we all have a constitutionally guaranteed right to own machineguns and mortars," perhaps you would be willing to quote the language in Miller that says so.

What the Swiss have or do not have has absolutely no bearing on US constitutional law.

If you were right, then there would have been a Supreme Court case by now affirming that the Second Amendment does, in fact, guarantee the private right to keep and bear arms. There would have been a successful constitutional challenge to the AWB, et al. But there hasn't been.

[DoNotRefill]

84. Isn't the unorganized militia...

codified and defined under Federal law?

The holding in Miller is the line that starts out "Absent some showing". According to Miller, there must be some showing that the weapon in question has some military or militia application. IIRC, this line of reasoning was brought up in Thompson Contender, and SCOTUS ruled in favor of Thompson.

SCOTUS has been ducking a pure Second Amendment case since Miller. If SCOTUS doesn't grant cert, the case doesn't get heard. You KNOW that.

[library_max]

88. Right. And every time they refuse to hear a case,

they are tacitly affirming Miller as it is understood by constitutional authorities; i.e. that the Second Amendment does not guarantee the right of private citizens to keep and bear arms.

[DoNotRefill]

90. that's a farked up view of cert...

there are tons of reasons why they don't grant cert (ripeness, mootness, no actual controversy, et cetera), and failure to grant cert is NOT an affirmation of the cases refused.

If you go into a court and offer as your only defense that "SCOTUS hasn't granted cert, so that's a tacit affirmation", you're gonna get SMACKED.

[library_max]

95. I know you'd like to believe otherwise,

but you have no basis for your belief. Miller is the law of the land, and it establishes that the Second Amendment applies only within the context of the militia.

No actual controversy? My, that's a funny one. Almost as funny as ripeness. There is a rich and powerful lobby screaming "Second Amendment" at us every day of our lives, but they aren't screaming it in court. The reason is that they have no legal leg to stand on and they know it.

[DoNotRefill]

97. Sorry, you're wrong.

Miller establishes that in order for a weapon to be protected by the Second Amendment, there must be "some showing" that it has some military or militia bearing or use.

I'd suggest you take 3 years off work, and go to law school. It might help.

[library_max]

103. No, you're wrong.

Wow, I can answer back in a childish You're wrong, No you, No you argument without the benefit of law school.

Of course, I do have the luxury of having the facts of case law and the interpretation of the authorities on the Constitution on my side. From A Practical Companion to the Constitution, University of California Press 1999 (a standard and authoritative reference book on the US Constitution):

ARMS, RIGHT TO KEEP AND BEAR The right "to keep and bear arms," which appears in the SECOND AMENDMENT, is one of the most enigmatic rights in the Constitution. By itself, the right might seem to be absolute, since the Second Amendment says that the right "shall not be infringed." But the phrase does not stand on its own; it is qualified as necessary for securing freedom through a "well-regulated militia." In the only case it has considered directly under a Second Amendment challenge, the Court upheld the National Firearms Act, requiring registration of sawed-off shotguns because there is no evidence that sawed-off shotguns have "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." The Court has also upheld a federal ban on convicted felons' ownership of firearms shipped in interstate commerce.

[DoNotRefill]

106. Gee, your quote doesn't say it's a collective right...

I wonder what Tribe has to say on the matter?

[library_max]

110. And hey, by a funny coincidence, I also didn't say it's a collective right

I said that the Second Amendment applies only in the context of a militia. And by golly, so does the Practical Companion.

[DoNotRefill]

112. And "practical companion" is binding because....?

eom

[library_max]

128. Not binding.

It is, however, a recognized authority on the US Constitution. Unlike some people I could mention.

[DoNotRefill]

138. Is Tribe a recognized authority on the US Constitution?

How 'bout Volokh? BTW, if you don't know of Volokh, that's OK. For non-legal types, he's pretty obscure. For at least some legal types, he's high on the list of "people who will most likely be appointed to the Supreme Court within the next 30 years". He's a child prodigy type, who clerked for BOTH Kozynski and O'Connor, and is currently a law professor at UCLA Berkley. I've eaten biscuits that were older than he is, but there's little doubt that he's a first-rate legal mind.

Tribe, on the other hand, is well known, even outside legal circles. His Democratic and Constitutional Scholar credentials are unimpeachable. He wrote the "definitive" ConLaw casebook, which is used at something like half of ALL Conlaw classes at law schools nation-wide. And he thinks the Second Amendment conveys an individual right.

[library_max]

155. Breathlessly awaiting your quotes. /nt

[hansberrym]

147. Questions for you...

Did the defendant in US v. Miller make any claim to being a member of a state militia?

Did the defendants in Aymette(cited in the Miller opinion) make any claim to being members of the state militia?

"No" is the answer to both. Yet both defendants had standing.

If the second amendment only applies to the milita as you say, why did these courts fail to reject on the basis of standing?

[library_max]

156. The defendant doesn't have to have standing.

The plaintiff has to have standing. Anyway, the Court's point was that the Second Amendment was irrelevant to the issue because it did not involve the militia. The NFA was being challenged on Second Amendment grounds and the Court ruled that the Second Amendment was irrelevant because the weapons in question had nothing to do with the militia.

[DoNotRefill]

170. You need to read the holding in Miller.

and at least a LITTLE bit of the background of the case, such as who argued for Miller, what arguments were made on Miller's side, what amicus briefs were filed on his behalf, et cetera.

Miller was INELIGIBLE to be in a militia. If the decision in Miller is only about people in the militia, why was Miller's status as a felon who was unable to join a militia not dispositive?

[library_max]

171. I'm sorry. I didn't think it was complicated.

Miller held that the Second Amendment applies only when weapons can be demonstrated to support or improve the militia. The fact that the weapons were not relevant to the militia made the Second Amendment irrelevant to the case, according to the Court's ruling. One must assume that Miller's status as a felon who was unable to join a militia would also support the reasoning that the Second Amendment did not apply.

Why the backwards reasoning? You and hansberrym both seem to be trying to argue that conditions that make the Second Amendment irrelevant to the Miller case raise questions about the Court's ruling that the Second Amendment was irrelevant to the case. When in fact, of course, they just bolster the Court's argument.

[DoNotRefill]

175. that's not true

"Miller held that the Second Amendment applies only when weapons can be demonstrated to support or improve the militia. The fact that the weapons were not relevant to the militia made the Second Amendment irrelevant to the case, according to the Court's ruling. "

and is why you should read some background on the case.

SCOTUS said "absent some showing" that a weapon had some militia USE, it wasn't protected. There was no showing, since Miller wasn't represented, and there was no amicus brief filed on his behalf. It didn't say that the weapon in question had to actually be in use by the militia or military, just that it had to be useful.

BTW, once SCOTUS, an appellate body, ruled on this, they remanded it to the trial courts for a finding of fact, if the weapon had some militia use. Miller was long since gone, and the issue in question (did a sawed off shotgun have some utility for military or militia use) was never answered. If it HAD been reheard, and "some showing" was made that the weapon in question had some militia or military utility, the ruling in Miller WOULD have meant that it WAS protected by the Second Amendment.

[DoNotRefill]

108. BTW, you've yet to comment on Stewart....

you know, the case where Title 18 §922(o) was struck down as unconstitutional on ICC grounds in the 9th Circuit...

[DoNotRefill]

114. what, no reply?

Come on. It's a gun control law struck down as unconstitutional as an overreach of congressional power. Why no comment?

[library_max]

117. Well, I liked him better in Rear Window than in Philadelphia Story, . . .

Oh, you mean this case you want so badly to bring up. If you've got an argument to make about it, why don't you give us the details and then make your argument?

[DoNotRefill]

119. Stewart....

was a case involving a person who made a "home-made" machinegun. He was prosecuted, and the 9th Circuit Court of Appeals ruled that Title 18 §922(o) was unconstitutional because it violated the ICC.

Gun control law. Struck down by the courts. (the most liberal circuit in the country) Unconstitutional. Oops.

[MrBenchley]

121. Sure you don't mean US v Lopez, refill?

[DoNotRefill]

136. U.S. v. Lopez was early 1990's

The Stewart decision is at most a few months old. It draws on Lopez, but isn't Lopez. Yes, I'm sure.

Here's a link:

http://216.239.41.104/search?q=cache:2kvbUmJl-1gJ:www.ca9.uscourts.gov/ca9/newopinions.nsf/90B5FFB18A092A6F88256DDD000000FE/%24file/0210318.pdf%3Fopenelement+u.s.+v.+stewart+922&hl=en

[MrBenchley]

140. Too TOO funny...

From your own link....

"Thus, there is no Second Amendment limitation on “legislation regulating or prohibiting the possession or use of firearms.” Id. Stewart’s Second Amendment argument must therefore fail. We reverse Stewart’s conviction for machinegun possession under section 922(o) as an unlawful extension of Congress’s commerce power and affirm his conviction for possession of firearms by a felon."

[DoNotRefill]

143. It's called "where there's a will, there's a way".

The panel was barred from finding for Stewart based upon the Second Amendment, since an en banc 9th Circuit decision precluded that. Instead, Kosynski made an "end run", a correct result with a different "official" reason given for it.

[MrBenchley]

151. In other words, your claim was the crap we knew it was

Who is surprised? Me neither.

[library_max]

161. So, regarding the Second Amendment,

there is nothing there at all except your projection onto the panel of a desire to phony up a Second Amendment precedent.

[library_max]

123. Details. Language. Quote. Link. Anything.

So far, we have your unsupported opinion that this obscure case made some point that you want it to have made.

If "ICC" stands for "Interstate Commerce Clause," then it is utterly irrelevant to our argument, which is about the Second Amendment. Federalism is a whole separate issue from RKBA.

[hansberrym]

149. If it is true that ...

"the Second Amendment does not guarantee the right of private citizens to keep and bear arms" as you say, why did the defendants in both Miller and Aymette(cited by the Miller court) have standing?

Those defendants were in fact private citizens.
They were not members of the state militia, nor were they states, nor were they state militias. Yet they had standing in Miller and Aymette.
How do you explain this?


Why does the Ninth Circuit insist on dismissing cases (brought by private citizens claiming a second amendment right) on the basis of a lack of standing, when Supreme Court precedent (Miller) is the opposite?

[library_max]

157. See #156 above. /nt

[Hrumph]

172. OK

The Court held that since it could find no evidence that a short-barreled shotgun had any purpose in the maintenance of a militia that it could not rule on behalf of Miller. (The logic of this reasoning is clear - If it has a place as a military arm, then it's protected by the Amendment.) That's not surprising since the only party who showed up to argue the case at all was the U.S. Attorney. Neither Miller nor his attorney were there. Hence, there was no one to even offer the evidence. Further, the Court did not sustain the US Attorney's position on collective rights. The court sent the case back to the lower court. But, since Miller couldn't be found and his lawyer had no interest in arguing a case for which he had no client, the decision went to the State by default. That's hardly a convincing resolution to the issue.


The problem with your position is two-fold. First, in order to have stainding, you have to first be convicted under the law that you believe is unconstitutional. The catch is that the vast majority of people convicted under these laws are not the sorts of people anyone wants to have carrying the water for their cause. Second, the Court has the pleasure of deciding which cases it does and which cases it does not want to hear. They have stayed conspicuously clear of anything having to do with the Second Amendment.

[DoNotRefill]

73. Military equipment is built by the lowest bidder.

and it is ALWAYS a good idea to have a last-ditch backup weapon.

[Romulus]

33. "As obsolete as the Third"

until the next terra' code red get announced, coincidentally before the November election, at which time the Bush gang will want to station troops in every neighborhood in the name of "security."

[John BigBootay]

54. It is widely believed that the Japanese considered

an all out invasion of the west coast of the Untied States unwinnable precisely because our citizens possessed firearms in quantity and were prepared to defend their homes and lands against invasion.

[MrBenchley]

55. Mostly believed

by the sort of right wing imbecile who thinks John Kerry is going to take away his popgun.

[library_max]

59. That's funny - you don't look Japanese.

Do you have anything at all to support the premise that the Japanese decided against a west coast invasion because of privately-owned firearms?

[DoNotRefill]

72. Huh!?!?!?!?

"It has been a hundred years since American citizens took their own privately-owned firearms to war."

Where'd THAT come from? John Kerry took a privately owned .357 magnum revolver (Ruger model 66, IIRC) with him to Viet Nam. Of course, he lost it, but that's neither here nor there. 'Tis a rare soldier indeed who doesn't take a personal weapon of some form with them on deployment, regulations or no regulations...

I've got my family's Colt .45 1909 NSR which was carried by my family members in every major war that the US was involved in from WWI to the invasion of Panama. Hell, I've even got the leftover .45 ammo for it that my grandfather carried across the Pacific in his rucksack during WWII. He started out with 200 rounds, and brought back 163.

As for the third Amendment being obsolete, you're 100% dead wrong. It's not obsolete, it's just not violated.

[iverglas]

126. oh for heaven's sake

It has been a hundred years since American citizens took their own privately-owned firearms to war.
Where'd THAT come from? John Kerry took a privately owned .357 magnum revolver ...

I really *do* expect better from you than a response to some meaingless literal reading of what someone has said.

I think we all know perfectly well that the meaning of the statement you take exception to was that it has been a hundred years since the weapons with which the US wages its wars were supplied by the individual members of the military, and since those individuals were required to supply those weapons.

Your allusion to regulations that prohibit the taking of personal weapons to war rather confirms this fact.

Where exactly did the pursuit of this straw fellow get us?


edit: that's "for heaven's sake", not "for heaven's sale" ;)

[DoNotRefill]

144. You do know why they "stopped" that practice, don't you?

logistics. During the Civil War, the Army of the Potomac was trying to supply something like SIXTY-EIGHT different calibers/chamberings for small arms. It was a logistical nightmare.

I've yet to hear of a SINGLE case EVER where a US soldier was punished for taking or trying to take a personal weapon into combat, EVEN for something like a Captain's Mast or Article 15 hearing. Basically, the rule is "if you want to take it, OK, but check it with the unit armorer for transport and don't ask us to supply you with ammo for it unless it's a NATO chambering."

I know at least half a dozen Officers (O-2 to O-7) and a boatload of EM that are ALL in hazardous duty situations as we speak, and EVERY SINGLE ONE OF THEM has at least one personal weapon with them, ranging from a Walther PPK/s to a personal beltfed. In all fairness, the guy with the personal beltfed has "more juice than God", and if the MPs tried to bust him on something so chickenshit, they (and their CO) would be looking for other work quickly. Getting BEFAT's permission to take a NFA weapon out of the country isn't a trivial exercise, but they approve it for him routinely.

[library_max]

160. What difference does that make?

The point is that the military no longer depends on soldiers to own and provide their own firearms.

By the way, a survey of your personal "gun enthusiast" acquaintances is not really equivalent to a scientific survey of the practices of most soldiers in the field.

[DoNotRefill]

165. Depend on? No. Allow? Yes.

there's a significant difference.

[library_max]

167. The point being that the military (if you want to think of it as a militia

in no way depends on the private ownership of any kind of firearms. So again, the Second Amendment is irrelevant to private ownership.

[DoNotRefill]

169. There's a big difference between the militia and the military.

And they're NOT generally the same thing.

BTW, I got a spam email that said "earn your degree in 30 days over the internet!" I didn't check, but they MIGHT offer J.D.s. Want me to forward it to you? ;)

[library_max]

173. No, the military and the militia are not the same thing.

One exists and the other doesn't.

But hey, keep those ad hominem attacks coming, they really add a touch of class to your argument. By the way, I wonder why you don't harangue the pro-gun posters on this string who don't have J.D. degrees about their manifest unfitness to argue an opinion on this subject.

[DoNotRefill]

176. Really? The militia doesn't exist? Then why is it codified?

Strange, how the Constitution and Federal law keeps referring to something that, according to you, doesn't exist.

I'm not harangueing you. I'm just pointing out that you seem to not understand some VERY basic concepts about the law and how the law works. "More binding", indeed!!!

[library_max]

159. Thanks.

I was trying to find a good way to say this, and you said it most effectively.

[hansberrym]

145. So you say

(Quoting Library_max)
The supposed right to individual self-defense has nothing to do with militias and therefore nothing to do with the Second Amendment
(End Quote)

If that were so, why then do you suppose John Admas made that very same connection(between militia service and private self defense) in his highly influential treatise "Defense of the Constitution":


”To suppose arms in the hands of citizens, to be used at individual discretion, EXCEPT IN PRIVATE SELF-DEFENCE, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws..."
(My emphasis)

[library_max]

158. Read your own quote again.

The word "except" does not create a connection, it denies a connection. Anyway, Adams was writing in the context of a time when there was such a thing as an armed citizen militia. There is no such thing now.

[libertyforall]

21. The Second Amendment doesn't "allow" anything....

In fact, nothing in the Constitution or the Bill of Rights "allows" people to do anything. The Bill of Rights and the Constitution recognize that humans are endowed with certain inalienable and non-negotiable rights by their Creator (or whatever you want to call Him/Her/It). The Bill of Rights places concrete limits on what government can and cannot do; it doesn't allow people to own guns but rather prohibits the government from placing any restrictions on people's pre-existing right to own firearms. As for the ridiculous argument that "the people" referred to in the Second Amendment is actually the National Guard or some sort of antiquated citizen militia group, you just have to ask yourself whether you really believe that "the people" referred to in the 2nd Amendment is somehow different from "the people" referred to in every other amendment. Had the framers wanted to reserve this right to "the states" (i.e. the National Guard) as the Brady Campaign and the Million Mom March want us to believe, they would have said "the right of the states to keep and bear arms shall not be infringed" just as they said "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people" in the 10th Amendment. Note there the crystal clear differentiation between "the states" and "the people."

[library_max]

25. Many things not protected by the Constitution are legal.

There is no constitutionally protected right to own a car or put gasoline in it, for example. There is no constitutionally protected right to purchase and eat a twinkie. There is no constitutionally protected right to purchase and consume alcohol. However, all of these things are legal.

[slackmaster]

31. Everything is legal until outlawed by due process

n/t

[library_max]

35. Exactly.

But it doesn't follow that everything is constitutionally protected until outlawed by due process.

[slackmaster]

41. What difference does it make?

If something is legal, it's legal whether constitutionally protected or not.

[library_max]

44. If it's constitutionally protected, it can't be made illegal

without a constitutional amendment. If it's just legal but not protected, any statute can change that.

[iverglas]

47. well ...

If it's just legal but not protected, any statute can change that.

At least as things are analyzed where I'm at, you'd be hard pressed to find a human activity that *isn't* constitutionally protected. Granted, we do apply a slightly more liberal interpretation of "liberty" than you folks seem to ...

I actually can't think of anything that isn't specifically mentioned in the Constitution here that could simply be outlawed by statute without the Constitution coming into it.

Could the state outlaw adultery? Not hardly. The individual has a liberty interest that is in play when s/he commits adultery, and the state simply doesn't have any sufficiently compelling interest to override the individual's. Unconstitutional to outlaw it, even though there is no constitutional guarantee of the right to commit adultery.

The narrow view of the "liberty" in your Constitution -- it seems to be, essentially, that the guarantee of liberty means that individuals may not be directly constrained by the state, e.g. by being put in prison -- prompted the courts to discover that "privacy" thing in the penumbra, as I understand it. This does seem to be a real difference between the interpretation of what are essentially identical provisions in the Cdn and USA'n constitutions: the right to life and liberty and not to be deprived thereof except by due process. (The Cdn Constitution actually demands that any deprivation be "in accordance with the principles of fundamental justice", which include but are not limited to due process.)

For instance, laws prohibiting abortion were struck down in Canada based on the deprivation of liberty not in accordance with the principles of fundamental justice; in the US, they were struck down based on the violation of the right to privacy.

Particularly given recent US SC decisions regarding "the right to privacy" (e.g. Lawrence), it seems that the ultimate effect of the two approaches may have more or less converged, at least in the areas of human activity that your Court has considered so far.

So I would think that something that was "not protected" -- i.e. not specifically mentioned in the US Constitution -- could not simply be outlawed without passing constitutional scrutiny under at least the privacy doctrine, even if "liberty" is not construed as broadly as it is outside the US.

Now, there is the question of whether (substantive) due process applies to limitations on the right to possess firearms. Since, as you've pointed out, no one has ever successfully challenged such limitations, one might think it does. Just as it appears to do in the case of the similarly unequivical and absolute right to free speech --

Congress shall make no law ... abridging the freedom of speech ...

Congress makes such laws all the time, of course. Perjury, seditious speech, false advertising, etc. etc. The question is always whether the interest that the state's legislation protects is sufficiently compelling to override the individual's interest in exercising the right, and whether the method chosen by the state to protect that interest meets the appropriate tests.

[library_max]

49. Just for one example,

Congress made a law requiring drivers to wear seat belts nationwide, and another to lower the speed limit on highways. Neither of these required any constitutional consideration, because there is no constitutional right to drive. No one considered challenging these laws in court because there's no legal basis for challenging them, unlike restrictions on freedom of speech.

[slackmaster]

51. Not true on both counts

Congress created incentives to encourage the states to make seat belts mandatory, and to standardize speed limits.

Neither of these required any constitutional consideration, because there is no constitutional right to drive.

No shit.

Tell us, library_max: What types of firearms have been banned by Congress?

[library_max]

62. For a single example,

the AWB prohibits the manufacture and sale of certain models of firearms.

Why, I wonder, did you specifically ask about "types" of firearms? You would be the first to point out, I am sure, the futility of trying to create a legal definition that proscribes a "type" of firearm.

[FeebMaster]

63. No.

The AWB prohibits the sale of nothing.

[library_max]

75. No, laws against fraud prohibit the sale of nothing.

US Code Title 18, Chapter 44, item 922, paragraph (b) subsection (4) prohibits the sale of assault weapons.

[FeebMaster]

80. You are wrong.

US Code Title 18, Chapter 44, item 922, paragraph (b) subsection (4) has nothing to do with assault weapons.

to any person any destructive device, machinegun (as defined in section 5845 of the Internal Revenue Code of 1986), short-barreled shotgun, or short-barreled rifle, except as specifically authorized by the Secretary consistent with public safety and necessity; and

Looks like it's talking about short-barreled rifles and shotguns, machine guns, and destructive devices. All NFA weapons, nothing to do with assault weapons or the assault weapons ban.

How do you expect to ban guns if you don't even know what the current gun laws do?

[library_max]

85. Possibly you would need to read the definitions

of "machinegun" and "destructive device" to ascertain the answers you seek.

Meanwhile, you do concede that the code prohibits the sale of some kinds of weapons, yes? So we are quibbling about details, not matters of legal principle.

[DoNotRefill]

87. actually, all it does is prevent future manufacture...

it doesn't ban possession or sale of existing weapons.

Additionally, the 9th Circuit (that bastion of uber-conservative jurisprudence) just struck down Title 18 §922(o), the ban on private manufacture of machineguns, as violating the ICC.

[library_max]

91. Then please explain the definition of the word "sell" in paragraph (b)

"b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver--"

[DoNotRefill]

94. read further...

and you'll see that existing stockpiles are grandfathered in, and are quite legal to possess AND sell. The "sell" you're referring to is for a "post-ban" gun, ie future manufacture, and not an existing gun.

[library_max]

100. It is illegal for "any licensed importer, licensed manufacturer, licensed

dealer, or licensed collector" to sell them. I said nothing about possession.

And once again, we're quibbling about a micro-point when the issue of the thread is the legality and constitutionality of gun controls. They are legal and they are constitutional. The microscopic arcana of the legislation changes that fact not one whit.

[Name removed]

102. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Name removed]

125. Deleted message

Message removed by moderator. Click here to review the message board rules.

[FeebMaster]

93. I know the definitions of machinegun and destructive device.

Do you?

Meanwhile, you do concede that the code prohibits the sale of some kinds of weapons, yes?

It prohibits the sale of those weapons by people without a license to sell them. It doesn't prohibit the sale of the weapons.

How do you expect to get guns banned when you don't even know what the current gun laws do?

[iverglas]

52. completely disagree

Congress made a law requiring drivers to wear seat belts nationwide, and another to lower the speed limit on highways.

I'll just assume that both facts are true, for the purpose of argument, and because I don't know.

Neither of these required any constitutional consideration, because there is no constitutional right to drive.

No law actually "requires constitutional consideration", i.e. before being passed. Laws are challenged post facto in the normal course of things.

(The reference of a constitutional question to the courts by executive/legislative bodies, e.g. in the case of same-sex marriage prohibitions, in Massachusetts and Canada for instance, is an exception to that rule, to allow governments to avoid passing legislation that the courts would likely rule unconstitutional.)

No one considered challenging these laws in court because there's no legal basis for challenging them, unlike restrictions on freedom of speech.

But there is, and that's the whole point. What legal (constitutional) basis was there for challenging Texas's anti-abortion or anti-sodomy laws? There is no "right to have an abortion" or "right to commit sodomy" in the US Constitution.

If the US Congress (or a state; USA'n jurisdictional issues aren't my forte) legislated to outlaw (and punish) adultery, would there really be no constitutional bar to the law?

If the US Congress (or a state) legislated to require automobile drivers to wear pink sunhats at all times behind the wheel, would there be no constitutional basis for a challenge?

The distinction between compulsory seatbelt-wearing and compulsory pink sunhat-wearing is that the state claims to have a compelling interest in the safety of the occupants of cars that justifies its mandatory seatbelt legislation, and the state could simply claim no such justification for mandatory pink sunhats.

I'm surprised that no one did challenge mandatory seatbelts as, say, a violation of the right to privacy: an individual's right to make his/her own decisions regarding his/her personal safety.

The difference between the US and Canada in this respect lies in the rather more complex and subtle approach we take to conflicts between the public interest and individual rights & freedoms. We tend to recognize the legitimacy of the public interest, and of state action to protect it, in more situations than USAmericans do -- but we are also considerably more obstreperous and litigious when it comes to state actions that we do perceive as unjustified interferences in the exercise of those rights & freedoms. (There is also a distinction when it comes to our view of the govt applying unjustified distinctions between certain individuals or groups, i.e. discriminating against certain individuals or groups -- we get much more obstreperous about that up here too.)

This is why, in recent years, you see earlier, and more, and more successful, challenges to things like discriminatory marriage laws and marijuana prohibitions and denial of the vote to prisoners up here. We do tend to regard everything we might do as something we are perfectly entitled to do, and are equally entitled to do, unless the state justifies limiting what we do or who may do it.

And I'm constantly surprised when I see the freedom-loving yanks saying that there is no constitutional protection for something or other, when we here would be defending our right to do it to the death. ;)

[library_max]

70. To the death? Over seat belts and speed limits? Really?

Abortion and sodomy laws are an entirely different matter. Roe was decided very properly, in my opinion, on the basis of the "penumbra of privacy" that stems from the Fourth, Ninth, and Tenth amendments. Some matters are so intensely personal and so integral to the lives of people that they are inherently private.

But to argue that anything anyone might want to do that is not (yet) prohibited by law is a Right cheapens the concept of rights, in my opinion. Rich people and corporations talk about the right to discriminate, the right to pollute, etc. They put it in the language of property rights, but that's what they mean. Do hunters or developers have the right to exterminate endangered species? Do parents have the right to refuse inoculation or education for their children?

If the law can move neither hand nor foot without bumping into somebody's "right," things have been taken a bit too far. I suspect that's true even in Canada.

[iverglas]

105. well, if only I'd said that

What I did say was (emphasis added):

And I'm constantly surprised when I see the freedom-loving yanks saying that there is no constitutional protection for something or other, when we here would be defending our right to do it to the death.

Wouldn't it be a tad disingenuous to "believe", or say, that when I said "something or other" I was talking about seat belts and speed limits?

I also said (forgive me for quoting myself, but when what I've said appears to have been disregarded or misunderstood, it's sometimes necessary) (first emphasis added):

We <Canadians> tend to recognize the legitimacy of the public interest, and of state action to protect it, in more situations than USAmericans do -- but we are also considerably more obstreperous and litigious when it comes to state actions that we do perceive as unjustified interferences in the exercise of those rights & freedoms.

What I meant, you see, was that we pay considerable attention to the intersection between the public interest and private interests, and that we frame the discourse of rights and freedoms accordingly.

We acknowledge that we, as a group, do have interests, and we recognize that there is a public interest at stake in many, if not most, things that individuals might do. Then we examine whether there is a sufficiently compelling interest to justify interfering with the exercise of individual rights.

This is what your Supreme Court does too, of course, but the discourse doesn't spill out into the public arena as often or as intensely or with as much sophistication. Sorry, but it's true.


Some matters are so intensely personal and so integral to the lives of people that they are inherently private.

But to argue that anything anyone might want to do that is not (yet) prohibited by law is a Right cheapens the concept of rights, in my opinion.

I see it quite the other way around.

I see your assertion of some a priori standard applied to individual choices -- that only *some* matters are so intensely personal etc. that they are inherently private and thus protected from interference -- as cheapening the concept of rights. Who is anyone to decide what is so intensely personal and so integral to someone else's life?

The decision as to what kind of tree I choose to grow in my garden probably would not be described by most people as "so intensely personal and so integral to the lives of people that <it is> inherently private". (But it might be; it might be a tree that my deceased father bought for me.) And yet I can't think of why it would be appropriate for the state to arbitrarily prohibit me from growing any species of tree. I think I should be free to grow any tree I want, unless the state can justify interference -- as it perhaps could, for instance, if I wanted to grow a willow tree (that would ruin the nice new water mains), or an elm tree (that would harbour and spread disease).

The bizarre thing is that this approach actually makes me more of a "liberal" than the Jefferson-spouting USAmericans I run into, even though I don't consider myself to be a liberal.

Rich people and corporations talk about the right to discriminate, the right to pollute, etc. They put it in the language of property rights, but that's what they mean.

Or they could frame it as a liberty right, as a right-wing libertarian would do.

And then their claim would have to be scrutinized, to determine whether the private interest that they assert (the freedom to profit from property, whatever) should prevail over the public interest that is at stake. There are several very important public interests that are very seriously adversely affected when discrimination is allowed, as there are when pollution is allowed. Interfering in individuals' choices as to how to use their property would clearly be justified in those instances -- according to values of a mature liberal democracy.

Do hunters or developers have the right to exterminate endangered species? Do parents have the right to refuse inoculation or education for their children?

The hunting one is easy. Of course they don't. The public interest in preserving species is easily demonstrated.

The innoculation/education one is more difficult. Education: certainly no right to refuse it; children have all the same rights as anyone else, and denying children an education amounts to excluding them from participation in society as adults. You see, we up here do regard rights as not only the things that allow us not to be interfered with, but also the things that allow us to participate. The extent of parents' right to choose the education their children do receive (also a liberty or privacy right), or more properly the state's ability to interfere in that choice, is problematic, but it would have to be scrutinized like any other proposed interference.

Innoculation involves similar difficulties. There will be evidentiary problems for the state, in establishing its interest in innoculating a particular child whose parents dissent, but the issue would have to be resolved by applying the same considerations as for any other such conflict between public and private interests.

If the law can move neither hand nor foot without bumping into somebody's "right," things have been taken a bit too far. I suspect that's true even in Canada.

I'm not sure what you mean, but things are trundling along fairly well in Canada. The Supreme Court will undoubtedly decide, as have provincial courts of appeal, that it is unconstitutional to ban same-sex marriage -- and meanwhile, several provinces will just perform them in the present legal vacuum. Abortions will continue to be performed on demand, in a similar legal vacuum (after the ban was struck down, no other law was enacted.) Prisoners in Canada can vote, because the Supreme Court properly held that the state has no justification for such an enormous violation of such a fundamental right as denying them the vote amounts to. The marijuana thing will continue to cause problems, since the Supreme Court does defer to the legislature on some matters that it regards as properly the subject of policy rather than judicial decision, and since any policy that is made has to take into account Canada's international obligations, and the extent to which the US would punish Canada for whatever we do. It is illegal to discriminate on the ground of sexual orientation in Canada, because the Supreme Court held that provincial human rights codes that prohibit discrimination against other vulnerable groups but not gays/lesbians are themselves violations of the constitutional guarantee of equal protection and benefit of the law.

On the other hand, nobody tends to challenge speed limits as unconstitutional, because people just seem to recognize that there is indeed an important public interest at stake and only a trivial private interest. In the case of most laws, the answer is just plain obvious. In some it isn't.

At the moment, there is a challenge before the Supreme Court to the universal health care plan in Quebec, by someone who claims that the prohibition on private health insurance to cover services that are covered under the plan is a violation of his right to life, since there is some remote chance that s/he might someday not get the care s/he needs under the public plan. It's an extremely interesting case, and the Court will be having to balance the public interest in ensuring that everyone has decent health care (the evidentiary foundation having been laid for the argument that permitting a parallel private system would undermine the public system to the point that this goal could not be achieved) against the individual interest in having access to the best health care money can buy.

In that, the issue is rather similar to the firearms issue. Is the public interest in not having firearms in every nook and cranny of our public and private lives, the evidentiary basis for the argument that this is dangerous to the public in general (and other individuals in particular, those individuals also being entitled to protection) being obvious, sufficient to outweigh the individual's interest in having constant ready access to the "most effective" means of protecting his/her life that s/he could have, since there is some remote chance that s/he might someday need it?

We think so up here. ;)

[library_max]

129. Sorry. Thought you were responding to post #49. My bad. /eom

[iverglas]

132. well ... I was

But I kinda moved on from seatbelts and speed limits to a discussion of principles ...

[DoNotRefill]

77. there's NO right to privacy of any form...

"I'm surprised that no one did challenge mandatory seatbelts as, say, a violation of the right to privacy: an individual's right to make his/her own decisions regarding his/her personal safety."

in a car. Stupid, pig-headed, and fascistic, yes, but sadly true.

For example, SCOTUS just ruled that police can search a vehicle even if it's unoccupied, without a warrant. And in the 9th, if they find drugs in a car, that is probable cause to search the owner's HOUSE, since the drugs may have been in the house before being in the car.

Sometimes, I think I should just give up, buy a nice comfy brownshirt uniform, and walk around going "Sieg Heil!". While that's anathema to my personal morals and political outlook, it WOULD make it a LOT easier to get along with the fascists in government.

[MrBenchley]

98. Tee hee hee.....

I think I should just give up, buy a nice comfy brownshirt uniform, and walk around going "Sieg Heil!".
It must be a comfort to know you can buy all the gear you'll need for that and folks who already do that at a gun show.

[DoNotRefill]

99. actually, I was thinking of a nice Hollywood prop house...

but it's good to know you keep up with where these things are available. Thanks. :)

[MrBenchley]

113. Why not? The whole RKBA case is make-believe

It's gibberish meant to justify the actions of some of the scummiest folks around...like the ones passing out hate literature at gun shows.

Not hard to see what's really peeping out from under that "gun rights" sheet.

[DoNotRefill]

115. Ah, so now you're a First Amendment critic too?

What amendments DO you like, Mr. Benchley????

[MrBenchley]

116. One thing you have to say for RKBA arguments...

They may be an utter pile of crap, but they're being pushed by the scummiest public figures around...like John AshKKKroft.

[DoNotRefill]

118. Don't forget "second rate cartoonists" like Ted Rall...

eom

[iverglas]

122. oh dear

there's NO right to privacy of any form in a car

Then the state can make a law compelling you to wear a pink sunhat in your car, and prohibiting you from making out in it in your garage?

Of course there is a right to privacy in a car. It is simply outweighed, in some circumstances, by a public interest.


For example, SCOTUS just ruled that police can search a vehicle even if it's unoccupied, without a warrant. And in the 9th, if they find drugs in a car, that is probable cause to search the owner's HOUSE, since the drugs may have been in the house before being in the car.

I gather that there have been a number of state court decisions on this point, and I don't quickly find a recent US SC decision. Here's one I do see:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=5th&navby=case&no=9520498cr0
(emphasis added)

The Supreme Court has held that the automobile exception to the warrant requirement applies when a vehicle is "readily capable" of "being used on the highways" and it "is found stationary in a place not regularly used for residential purposes . . . ." California v. Carney, 105 S.Ct. 2066, 2070 (1985). Under these circumstances "overriding societal interests in effective law enforcement" justify an immediate warrantless search because (1) "the vehicle is obviously readily mobile by the turn of an ignition key . . ." and (2) it is subject to a "reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling."

You see? Isn't that just what I was saying?

Now, whether we all agree with how your Court disposed of these questions is another matter. Up here, many more Canadians trust the courts than trust any other individual or institution when it comes to protecting our rights (I believe the figure in a survey last year was that 70% of Cdns trust the courts to do this). But then, (a) we have pretty good courts, and (b) we acknowledge that there are public interests that do sometimes justify interferences in the exercise of some of our rights. The latter phenomenon kind of stems from our realization that the "public" in "public interest" includes us, and that the public interest is very often our interest.

We therefore don't term every interference with the exercise of our rights "fascist", any more than we would term every exercise of a right anti-social or anarchistic. We aim for a nice balance, and we don't simply assert that our personal interests trump the public interest, or on the other hand flock sheeplike to endorse any assertion of a public interest as trumping our private interests.

Here's a Canadian article on the warrantless car search question, written by a Toronto prosecutor, that might be of interest:
http://www.opcc.bc.ca/Legal%20Reference%20Material/Planes,%20Trains.html
(for "Charter", read "Bill of Rights", and for "s. 8", read "4th amendment" protection against unreasonable search and seizure)

I. ASSESSING PRIVACY INTERESTS

The Supreme Court of Canada has long endorsed a contextual approach to the assessment of Charter claims. Where s.8 is concerned, certain locations are deserving of heightened protection, whereas others call for a diminished degree of privacy. Within the s.8 hierarchy, motor vehicles are private places, but not nearly so private as homes or offices. The Supreme Court of Canada has consistently recognized, as a starting point for the analysis, that the privacy interests attaching to motor vehicles are much reduced as compared to other private enclaves. The effect of this is two-fold: 1) there is a much greater judicial tolerance for warrantless search and seizure activity in automobiles; and 2) where a breach of s.8 of the Charter does occur, it is regarded as much less serious than an invasion of the home or the body.

The reduction of privacy in motor vehicles is premised on two central factors. The first of these is rooted in practical concerns. Motor vehicles, water vessels, aircraft and other fast moving vehicles are inherently mobile, and therefore more likely to pose exigencies which render it infeasible to obtain a warrant. A vehicle can be easily moved and, with it, the evidence sought. To require a warrant in all cases would be to frustrate the legitimate goals of law enforcement. The second justification cited in this area is the highly regulated nature of driving activity. The Supreme Court of Canada has often insisted that those who choose to drive must reasonably expect that they will be subject to a certain level of state inspection and surveillance.

... Since 1925, the United States Supreme Court has been prepared to recognize a blanket exemption from the warrant requirement applicable to automobiles. So long as there is probable cause, an officer is entitled to conduct a warrantless search, whether or <not?> the circumstances present actual exigency. This exception is applied broadly to permit search of any part of the vehicle - including closed containers - that might conceal the object of interest. In U.S. v. Ross, Justice Stevens observed that: "During virtually the entire history of our country - whether contraband was transported in a horse-drawn carriage, a 1921 roadster, or a modern automobile - it has been assumed that a lawful search of a vehicle would include a search of any container that might conceal the object of the search".

Canadian courts have proceeded more cautiously in this area, and have firmly declined to carve out any type of blanket exception to the warrant requirement applicable to mobile conveyances. While recognizing that such conveyances can move rapidly away, the Courts have pointed out that exigency will not exist in all cases. The reasonableness of a warrantless search will depend on the facts of each case. In R.v.Grant, Sopinka J. approved and adopted the reasoning in R. v. D. (I.D.). In D.(I.D.), the Court held that a warrantless search of a vehicle may be reasonable if the following minimum requirements are satisfied:

(1) that the vehicle be stopped or the occupants be detained lawfully;

(2) that the officer conducting the search has reasonable and probable grounds to believe that an offence has been, is being, or is about to be committed and that a search will disclose evidence relevant to that offence;

(3) that exigent circumstances such as imminent loss, removal, or destruction of the evidence, make it not feasible to obtain a warrant; and

(4) that the scope of the search itself bear a reasonable relationship to the offence suspected and the evidence sought.

...

[DoNotRefill]

141. Iverglas, here's the latest:

http://www.supremecourtus.gov/opinions/03pdf/03-5165.pdf

With the example you gave about making out in the garage, the privacy interest would come from being inside a structure or within the curtelage of the property, NOT from the fact that it was in a car. In other words, if you're making out in an empty garage, the privacy interest is identical as if you're making out in a car within a garage. The car neither adds nor detracts from the privacy interest. Once that car is someplace where there's no expectation of privacy (plain sight or in a public area) there's no right to privacy. For example, if you park at a "Lover's Lane", and had those window-blockers/sunscreen things up around the perimeter so that nobody could see in, there's still no expectation of privacy.

The rules for vehicles are a very different thing than the normal rules. For instance, I recall a case where a mobile home was set on a property, utilities attached, et cetera, but the rules for searching it were the same as for a car because it still had wheels on it, despite the fact that it was a domicile.

[iverglas]

152. so you see what I was saying

Neither Canadians nor Canadian courts would put up with that level of interference. In the Canadian version, there IS an expectation of privacy in a car, it's just that

- the expectation is lower than in a home or office; and

- the entitlement of police to do things like conduct warrantless searches, which they could not do where there was a higher expectation of privacy, will vary according to the exigencies of the particular situation.

This difference in approach is similar to the difference in our entire approach to constitutional scrutiny. Ours is, overall, both stricter and more nuanced.


Your Court has established rigid classifications for the "levels of scrutiny" to be applied: strict scrutiny for certain classes of rights, "middle-tier scrutiny" and "rational basis" scrutiny for others, and doctrines like "clear and present danger" for violations of free speech, e.g.

My favourite handy reference re constitutional scrutiny in the US:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm

Levels of Scrutiny Under the Three-Tiered Approach to Equal Protection Analysis

1. STRICT SCRUTINY (The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.):

A. Suspect Classifications:
1. Race
2. National Origin
3. Religion (either under EP or Establishment Clause analysis)
4. Alienage (unless the classification falls within a recognized "political community" exception, in which case only rational basis scrutiny will be applied).

B. Classifications Burdening Fundamental Rights
1. Denial or Dilution of the Vote
2. Interstate Migration
3. Access to the Courts
4. Other Rights Recognized as Fundamental

2. MIDDLE-TIER SCRUTINY (The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.):

Quasi-Suspect Classifications:
1. Gender
2. Illegitimacy

3. MINIMUM (OR RATIONAL BASIS) SCRUTINY (The govenment need only show that the challenged classification is rationally related to serving a legitimate state interest.)

Minimum scrutiny applies to all classifications other than those listed above, although some Supreme Court cases suggest a slightly closer scrutiny ("a second-order rational basis test") involving some weighing of the state's interest may be applied in cases, for example, involving classifications that disadvantage mentally retarded people, homosexuals, or innocent children of illegal aliens.

Our Court has established a multi-stage test to be applied to all rights violations, which takes into account the compelling-ness of the public interest and the nature of the right in issue, but does not apply a priori distinctions among classes of rights.

http://www.lexum.umontreal.ca/csc-scc/en/pub/1986/vol1/html/1986scr1_0103.html
The Oakes test has been tinkered with, but these are the basics. First, the party claiming a violation of rights has to establish that the violation occurred; then the govt. has the onus of justifying the violation under s. 1 of the Constitution (Charter of Rights.

Two central criteria must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society <the requirement set out in s. 1 of the Constitution>.

First, the objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom. The standard must be high to ensure that trivial objectives or those discordant with the principles of a free and democratic society do not gain protection. At a minimum, an objective must relate to societal concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

Second, the party invoking s. 1 must show the means to be reasonable and demonstrably justified. This involves a form of proportionality test involving three important components.

To begin, the measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective.

In addition, the means should impair the right in question as little as possible.

Lastly, there must be a proportionality between the effects of the limiting measure and the objective -- the more severe the deleterious effects of a measure, the more important the objective must be.

"Classifications" are dealt with under s. 15 of the Charter, equality rights (right to equality before and under the law, and to the equal protection and benefit of the law). Any distinction made in a law or policy may not discriminate against an historically disadvantaged / stigmatazed / stereotyped group. A challenge to an anti-sodomy law here, for example, would be based on the equality under the law (similar to substantive due process) / equal protection of the law and equal benefit of the law provision and the guarantee of liberty, and the Oakes test would apply, whereas in the US it was based on privacy rights and rational-basis scrutiny applied to the classification in question.


And an installed mobile home would very definitely be regarded by the courts in Canada as a home, not a vehicle. ;)

But here's a good trick for mobile home occupants to avoid searches. When I was a kid, we were crossing the border back into Canada one day after a Christmas trip to Florida, pulling a trailer. Customs decided to be snarky, and look in the trailer. We'd stopped for KFC for lunch, and stowed all the garbage and leftovers in the fridge. On a sharp turn somewhere, the fridge had flown open, and there were coleslaw and potato salad and chicken bones all over the trailer. The customs officer made a face (ugh, Canadian trailer trash), closed the door and told us to go.

Speaking of which: do you get BBCAmerica? Are you watching Halifax, Nova Scotia's Trailer Park Boys?

[DoNotRefill]

168. I see what you are saying....

but the courts down here are loathe to extend ANY kind of privacy right to a vehicle. For example, if an abandoned or illegally parked car is towed by the police or their agent, they may search the entire thing, even locked compartments which are out of reach to a potential occupant of the car that isn't present. There needs to be no potential danger or threat to officer safety, it's an "inventory search". Yeah, right. :shrug:

I like Canada's stance on this one issue much better than the American stance. Betcha NEVER thought you'd hear me say that!!!! ;)

And I generally do my best not to watch the Goddamned Noisy Box, regardless of what channels are available, but BBCAmerica isn't available here.

[DoNotRefill]

74. It depends...

if it's "fundamental to a structured order of liberty", it IS protected, even if not specifically named.

[library_max]

76. Where does that phraseology come from?

What's the context? It's not from the Second Amendment, so what is it from? And what legal authority does it carry?

[DoNotRefill]

78. It comes from SCOTUS....

and is the reason given for the establishment of the Incorporation Doctrine.

So yeah, it has a certain amount of legal authority....

[library_max]

86. What's the case? What's the context?

What does it have to do with the Second Amendment?

You can't just take phrases out of context and apply them willy-nilly and claim they have "legal authority" just because the original words appeared in a Supreme Court case about something sometime. There is such a thing as relevance.

[DoNotRefill]

89. Are you familiar with Incorporation?

rights that are "fundamental to a structured order of liberty" and that are guaranteed in some form by the US Constitution are applied to the States, even if the Constitution doesn't SPECIFICALLY apply them to the States. For example, the First amendment starts off "Congress shall pass no law..." regarding a whole bunch of stuff. Prior to Incorporation, the states could beat confessions out of subjects, establish state religions, et cetera. Then came the Incorporation Doctrine, which changed that and applies Federal protections against the States, too. That means the States can't pass laws abridging those Federally guaranteed rights.

[library_max]

127. You've established no connection of any kind to the Second Amendment.

Certainly you've supplied no reason to use that language you quoted to supplant the actual language of the Second Amendment or that of the case law and constitutional authorities that relegate it to the context of the militia.

[iverglas]

131. keep in mind

that what was being responded to was your statement:

But it doesn't follow that everything is constitutionally protected until outlawed by due process.

In that context -- which wasn't specifically your 2nd amendment -- the reference to things that are "fundamental to a structured order of liberty" was relevant. The discussion had already diverged a little.

I'm of the view, of course, that the right to possess firearms isn't dependent exclusively on the second amendment, and that it could be abolished tomorrow and there would still be a right to possess firearms in the US ... if my view mattered.

There is certainly a right to possess firearms in order to hunt for food (and for sport as well) and in order to defend against non-human predators. If the low-income rural population didn't have a right to possess firearms, it would be up a creek when it came to its right to life.

And that's one very good reason to interpret the right set out in your 2nd amendment as being inextricably linked to that militia business, if you ask me. The right to possess firearms itself needed no more express protection in the US Constitution than the right to possess apple seeds or rabbit snares or fishing rods or rat poison. And the right to possess firearms, other than for the purpose of a militia, is subject to just the same limitations where justified in the public interest.

[library_max]

134. All right, fair enough.

But I still don't buy that the language DoNotRefill is quoting establishes that there is a constitutionally protected right to do anything that is not currently prohibited by law. For yet another example, thalidomide was legal when it was first produced, but that didn't give drug companies a constitutionally-protected right to produce and sell thalidomide. When it proved harmful, it was taken off the market without a constitutional by-your-leave. Same with cyclamates and DDT.

[hansberrym]

146. Incorporation and the right to bear arms

Congressional debates on the Fourteenth Amendment as quoted by Justice Hugo Black in his disent in Adamson v. People of Californina.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=332&invol=46&friend=oyez

'Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be-for they are not and cannot be fully defined in their entire extent and precise nature-to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; <332 U.S. 46 , 106> the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments. (my emphasis)

[library_max]

162. Okay, but it clearly didn't change the shortcoming of the Second Amendment

demonstrated by US v. Miller. It still applies only in the context of a militia, whether federal or state.

[DoNotRefill]

166. Then why was the fact that Miller was...

precluded from being in a militia due to a previous felony conviction not dispositive?

If only people in the militia have a Second Amendment right, or even more loosly, if only people who CAN BE in a militia have a Second Amendment right, they why did the court not rule on that fact alone that Miller had NO Second Amendment right?

Miller was not legally able to be in a militia. He wasn't even ELIGIBLE. So why wasn't that dispositive? Hmmm?

[library_max]

174. Well, heck. Why don't you go dig them up and ask them?

Maybe they'll be impressed with your devastating argument that one circumstances that makes the Second Amendment irrelevant to a case precludes other circumstances from making the Second Amendment irrelevant to the same case.

[DoNotRefill]

177. because it's not necessary.

people with actual legal training understand that the courts will go with the easiest dispositive issue that's available. If a case fails on the first prong, they're not going to bypass it and go on to the 52nd prong to make a ruling. If the situation is that a and b and c and d and e and f and g and h and i and j all have to be satisfied, but a isn't satisfied, they're not going to talk about j.

[hansberrym]

148. More on Incorporation of the 14th and RKBA

From the second Freedmen's Bureau Bill:

"...in consequence of any State or Local law, ordinance, police or other regulation, custom or prejudice, any of the civil rights belonging to white persons, including the right to make or enforce contract, to sue,...and to have full and equal benefits of laws and procedings for the security of person and estate, including the constitutional right of bearing arms , are refused or denied to negroes...it shall be the duty of the President of the United States... to extend protection..." (my emphasis)

(Equal Justice Under Law, Hymann and Wiecek, Harper&Row publishers, copyright 1982)


It is clear that the right to keep and bear arms was thought of as an individual right to secure person and estate by those congressmen who wrote the 14th amendment.

[library_max]

163. And yet you can't produce a single court case decided on the basis of

that supposed right. US v Miller, which says otherwise, remains the law of the land.

[iverglas]

130. satisfy my curiosity

Yes, I'm somewhat familiar with the incorporation business. It seems to have been necessary as a result of an oversight in the original drafting -- or perhaps not an oversight, since your constitution wasn't originally intended to deal with the relationship between individuals and the various US states, I gather.

I've asked google for "fundamental to a structured order of liberty" (and just "structured order of liberty", and just the words loose and combined with doctine incorporation) and come up blank. I am certainly not suggesting you made it up, as it makes rather good sense. I'd just like to know exactly where it came from, so that I can read what it was all about.

I did find this about the incorporation doctrine
http://www.lexisnexis.com/lawschool/resource/summaries/html/conlaw/conlaw07.htm
but the expression doesn't appear. I figure it may have been used in an old, very pre-internet case, but you'd think someone would have put it on the net somewhere.

[DoNotRefill]

135. Iverglas,

I typed the "fundamental to a structured order of liberty" from memory, a legacy of ConLaw. That's the phrase that was beaten into our heads. Without going to the trouble to dig out my old notebooks to find the cite, I've looked around and suggest you try Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). I'm sure the quote we had drilled into our heads far predates that decision, but it's a start. In the historical section of that case, it covers a fair bit of the previous rules, and uses language such as "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions". It quotes Powell v. Alabama, Gideon v. Wainwright, et cetera. That should give you a pretty good start.

BTW, just as a curiosity, when you said "I am certainly not suggesting you made it up, as it makes rather good sense", I'm wondering if that was meant to suggest that when I make stuff up, it DOESN'T make good sense, or if I'm just being paranoid. ;)

Oh, another BTW, you'll most likely be happy to hear that my wife and I have a banner crop of baby bunnies. I was outside doing some yardwork, and saw a whole passel of them, chowing down in the "baited" back yard. They looked to be no more than 4 inches long each. :)

[iverglas]

139. such a suspicious mind

"I am certainly not suggesting you made it up, as it makes rather good sense."

I'm not sure whether I can rearrange that thought to allay your suspicions or not. How about: I am certainly not suggesting that it it doesn't appear somewhere in the context you refer to, as it makes rather good sense. ? ;)

I will check for the case you mention. I think the article I found is also probably useful.

Here we are: http://www.oyez.org/oyez/resource/case/103/print ... oh good, multiple sets of reasons.

http://www.healylaw.com/cases/duncan.htm

The trailer park where my dad spent a couple of winters in Florida had a couple of what are called "lakes" there. I remember talking to a motel owner, by phone, and inquiring about the lake that the CAA guidebook said was at her door, and she said, well, in Ohio, we call them ponds. That's what the ones in the trailer park were -- and each of them had an alligator. When I was there in early May, we'd bicycle around in the evening and see posses of 4-inch baby bunnies everywhere; the park was chock full them. And so, I gather, were the alligators.

[DoNotRefill]

142. I hope you understand that I was joking with you about the....

making sense comment, and we don't have gators here. We've got insects, birds, bunnies, groundhogs, raccoons, and things like that (even one beaver that sometimes shows up at the smorgasboard), but I work HARD to keep truly predatory animals off the property. No outdoor cats or dogs allowed. I contemplated running the raccoons off, but decided instead to provide them with a good, ample source of food so they wouldn't get carniverous on us and our other guests.

BTW, my neighbors think we're nuts. To them, small critters are supper, not fun to watch. Woe be unto the wannabe Elmer Fudd I catch on my land trying to get Hasenpheffer ingredients.... ;)

[happyslug]

150. Because the Bill of Rights are NEGATIVE RIGHTS

Not Positive Rights. What is meant by the phase "negative rights" is that a right set forth in the Bill of Right is a Right the Government can NOT take away from you. It is NOT a positive right like the right to Social Security (Which the Government can take away from you).

One way to look at Positive-Negative Rights is to look at owning or renting a home. You have the right to own you home (The Government can NOT take that home away from you without compensation). On the other hand, if you have no money to pay for that home the Government does not have any duty to provide you that home (Such a Positive Right to housing is NOT a right under the Constitution).

Thus the Bill of Rights are a list of what the Government can NOT do, not a list of what the Government or the people can or must do.

Thus when the Second says the Government can NOT take away someone's ability to serve adequately in the Militia, that does not say the Government has a duty to provide such weapons nor does it says that all weapons EXCEPT the weapons covered by the Second are illegal.

The Government can do what it wants to any weapon NOT covered by the Second Amendment. The Government can make it illegal or keep such weapons legal.

The Bill of Rights is just a list of what the Government can NOT do, not a list of what the Government can or must do.