Do you know your Bill of Rights?

[Willie Orwontee]

And yet the Founding Fathers saw fit to include the prefatory clause all the same. Don't you think it is the height of judicial activism to insist that it has no operative meaning at all?

The thing is, IT DOESN'T. The declarative clause has never been inspected to inform about any aspect of militia organization, training or discipline. The declarative clause is a vestige of the state proposals that Madison had to work with. States sent proposals that mimicked their own provisions because they didn't want the feds dictating to them new standards of rights / liberty for their citizens.

State constitutions lumped themes with similar objects (intents) together in their bills of rights. Most of the states had a provision that had the intent of binding government in the area of military affairs in multiple ways, these provisions were three pronged. a) The citizens retained a right to bear arms, b) standing armies in time of peace were not to be maintained and c), the military should always be subordinate to the civil authority. A typical one was my state's:

• 1790 Pennsylvania: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.

Again, the framers were very accustomed to inactive declarations of principle in constitutional provisions; nobody believed these provisions really forbade the forming and maintaining of a standing army; these were state constitutional provisions with zero effect beyond the state line. They were merely stating an ideal . . .

The declaration, "A well regulated Militia, being necessary to the security of a free State" is inextricably meshed (philosophically) with, "as standing armies in time of peace are dangerous to liberty, they ought not to be kept up." To the framers each represented the same sentiment . . .

The declaratory clause only re-affirms what once was a universally understood and accepted maxim; that the armed citizenry dispenses with the need for a standing army (in times of peace) and those armed citizens stand as a barrier to foreign invasion and domestic tyranny (thus ensuring the free state).

So without a doubt the inactive, dependent declaratory clause is only a statement of why the AMENDMENT exists and as such it does not create, qualify, condition, modify or constrain the pre-existing right, it only tells us a political reason why the fully retained right is being forever shielded from government interference.

It should always be remembered in these discussions 230 years later, that the the states demanded and ratified the 2nd Amendment because of distrust of the feds and the powers granted to the feds over the militia in Section 8. Had there been even a hint that the federal government was granted new, undefined, nebulous powers through the 2nd to dictate to the states as to who were the state's NON-MILITIA arms keepers and bearers, the 2ndA (well, fourth article really) would not have been ratified.

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[Willie Orwontee]

the individual's right to keep and bear (offensive) arms is directly tied to the need to form a well-regulated militia - the same militia Congress has been given the power to "organize, arm, and discipline". Neither exists without the other.

Of course it does . . . As you recognize, Congress possesses complete power to dictate on militia affairs and to the actions of the members of the militia when mustered. It is logically and legally incoherent to then say that those members needed a "right" to keep and bear arms when as enrolled members, their arms keeping and bearing is entirely an action set out in, essentially an obligation of law.

Your theory demands the violation of a long established canon, Expressio unius est exclusio alterius ("the express mention of one thing excludes all others"). Only enrolled militia members are bound by militia law, private citizens are under no impressment of militia law (see Militia Act of 1792 and SCOTUS cases on militia law, Houston v. Moore, 18 U.S. (5 Wheat.) (1820), Martin v. Mott, 25 U.S. (12 Wheat.) (1827), Selective Draft Law Cases, 245 U.S. 366 (1917).

 

[Willie Orwontee]

Gee, I wonder what the linkage could be between the 2nd Amendment's necessity of a well regulated militia and Article I §8's granting Congress the power to regulate the militia? *LOL*

My argument might well be lame, but it still runs circles around your "Ghost clause" argument.... you'd have us believe the prefatory clause isn't really there, even though we all can see it.

But there is no linkage. The declarative clause doesn't "do" anything; it doesn't demand, direct, establish or continue anything pertaining to militia. Those cases I mentioned, Houston v. Moore, 18 U.S. (5 Wheat.) (1820), Martin v. Mott, 25 U.S. (12 Wheat.) (1827), Selective Draft Law Cases, 245 U.S. 366 (1917) and even Perpich v. Dep't of Defense, 496 U.S. (1990) decided conflicts and disputes of militia power.

They only examined Article I, Section 8 because SCOTUS has said the full expanse of Congressional power over militia is expressed there. The 2ndA is mentioned once, in a dissent, only to say that it offers no guidance on militia issues.

Not if he has been reading this thread, it hasn't. Article I §8 clearly gives Congress the power to "organize, arm, and discipline" the militia and makes it clear that this regulatory power exists regardless of whether or not it is called into active duty.

Being enrolled and then called into service of the nation are the two demarcations of power over militia members. When a citizen is not active he is not under militia law . . . OTOH, when active, their entire status is altered, they become completely under the authority of the state or federal government, especially as infractions and crimes goes. We see this in the 5th Amendment; if a militia member in service to the nation commits a crime, he is not afforded the grand jury presentment requirement of the 5th Amendment because he is under the UCMJ.

When in service, rights don't matter, they have no consequence or significance if the action is directed in law. . .

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[Willie Orwontee]

Madison wrote the Bill of Rights.

Some trivia for you.

He edited proposals from the states and introduced drafts drawn from those varied proposals.

Only the 9th and 10th Amendments are directly from his hand. They are only the codification of Federalist arguments against adding a bill of rights to the Constitution, written as rules of constitutional interpretation.

A real bit of trivial is when Madison introduced the amendments, he proposed they be inserted in the specific Articles and Sections according to the area of government they bound. Madison proposed what would become the 2nd Amendment to be inserted in Article I, §9 between clauses 3 & 4. just after "No bill of attainder or ex post facto law shall be passed".

 

[Willie Orwontee]

Cite me one other instance (outside of the preamble) where the Constitution states the reason for making a statement.
If the prefatory clause was purely ornamental, then could not it have been excluded and still accomplished the same intent?

The entire 2nd Amendment is superfluous. It does not create or grant or give the people the right to arms; the people would possess the right without the 2nd Amendment . . . And do, without any reference to, or reliance or dependence upon the 2ndA for the existence of the right (SCOTUS has been boringly consistent for going on 140 years re-re-reaffirming that principle).

All the 2nd Amendment "does" is redundantly forbid the federal government to exercise powers it was never granted.

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[Willie Orwontee]

You didn't answer my question though... gun registry - unconstitutional infringement of the right to keep and bear arms? Or legitimate exercise of the Congressional power to organize the militia?

When the Militia Act of 1792 was in force, a "return of militia" was maintained (and constitutionally legitimate). This was a census of types and caliber of arms and accessories the militia men mustered with. This was more to ensure an appropriate amount of ammo etc would be on hand, beyond the limited amount the militia man was ordered to provide himself. It wasn't a registration per se, and it was not any infringement of the right to be armed because the militia man arming himself with the one gun he chose to muster with, was in obeyance to law, not any exercise of a right. Whatever arms the member owned as a private citizen, were of no interest and not recorded.

Now that Congress has extinguished the clause 16 militia and any militia obligation of the citizen under law, it has also extinguished any interest it had in any arms the citizen owns.

Expressio unius est exclusio alterius . . .

.

 

[Willie Orwontee]

You seem to think the Founders got to the 2nd Amendment and said, "Oh Crap... we'd better mention how important the militia is with some meaningless boilerplate drivel....", completely forgetting all of the times they had already emphasized it's importance already in Articles I and II.

THE COMMONPLACE SECOND AMENDMENT

 

[Willie Orwontee]

There's only one militia. The Constitution uses the term 6 times, and in 5 of those instances it is preceded by the word "the".

There are three militias . . .

First is the general militia, the fundamental principle of an armed citizenry in a republican form of government. This is essentially, all able bodied males capable of bearing arms and acting in concert. Madison put this at 25% of the total population.

The second militia are those men obligated under law to perform militia duty and who are formally "enrolled and notified". There are age requirements and exclusions as to certain public officials etc and of course, in the earliest law, race. Only the "free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years . . . " was both obligated and eligible to enroll.

The third is the limited "part" of a single state's, or a number of states' militias that are called into actual service of the nation.

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[Willie Orwontee]

Does Congress have the power to organize the militia? If so, then how they supposed to do so without some kind of registry listing who is armed and what weaponry they can bring to it?

In 1792, Congress exercised their constitutional power to "provide for . . . arming . . . the militia" by directing:

• ". . . every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack." -- Militia Act of 1792

Today, if such a law were to be enacted, Congress would direct citizens obligated to serve, to provide themselves with an AR platform rifle in 5.56 NATO, a red-dot or telescopic sight and 120 rounds of ammo in four 30 round magazines. It is the perfect militia rifle, military armorers have parts and familiarity, the ammo is of course available and Geneva Convention approved -- after all, we can't have guys muster with a 30/30 deer rifle and soft-nose bullets right?

But if requiring such a registry is somehow an infringement of the right to keep and bear arms... then which side prevails?

Nothing an enrolled militia member does is an exercise of a right, nor does he require or need any immunity from any government to fulfill his duty -- he is entirely under the control of law. He is armed according to the law set-out by Congress which is preemptive of any state law possibly interfering.

Of course, the private citizens NOT enrolled or otherwise under obligation, have no law operating on them, they are excluded from government operation as far as their personal arms are concerned (expressio unius est exclusio alterius). The government has no claim on them or their arms; for those private citizens their choosing to arm themselves (or not) is an exercise of a right, an exemption from powers not granted, a right recognized and secured by the 2nd Amendment.

.

 

[Willie Orwontee]

If you cite it, you bite it. You can't agree with the ruling but disagree with the circumstances.

I can agree with the facts of the case, and cite them approvingly while disagreeing with the holding of the Court.

Cruikshank recognizes the right of two Freemen, former slaves then citizens, to possess and carry arms for self defense in public from white oppressors in a state and at a time that the state had no militia (it being disbanded by the governor on the orders of Congress).

Cruikshank shows without any dispute that SCOTUS recognizes and endorses the 2nd Amendment securing an individual right independent of any militia association. These were two black men who, even if Louisiana had a militia, they could not enroll (see Militia Act of 1792).

Dred Scott is another case that has a condemnable, detestable holding but the Court's explanation of what rights must be recognized IF Blacks were recognized as citizens, stands as an explanation of the understanding of the right to arms in particular. For if Blacks were recognized as citizens of the USA, they could carry arms wherever they went.

There are many cases with horrible holdings but instructive commentary that in hindsight, makes the decision all the more terrible because the court used a good and proper reading of the constitution or precedent or law, to deny rights to people.

Cases v US is another perfect example . . . An honest (but hyperbolic) interpretation of Miller that the court just could not accept or enforce, led the court to invent the "militia right" interpretation of the 2nd Amendment. That holding perverted and polluted 2nd Amendment jurisprudence in the lower federal courts for 66 years, until Heller invalidated the collective right theory.

• "At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called 'Commando Units' some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,-- almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-- is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, . . . "

Sounds good to me!

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[Cordelier]

The thing is, IT DOESN'T. The declarative clause has never been inspected to inform about any aspect of militia organization, training or discipline. The declarative clause is a vestige of the state proposals that Madison had to work with. States sent proposals that mimicked their own provisions because they didn't want the feds dictating to them new standards of rights / liberty for their citizens.

(Edited for length)

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You're overlooking one key factor, though. At the time the Bill of Rights was ratified, it was only intended to enumerate rights that exist on the Federal level. Madison would have not felt compelled to take into account State interests because the right to keep and bear arms wasn't intended to apply to State law. It was only with the ratification of the 14th Amendment and the gradual formulation of the Incorporation doctrine that the possibility of applying the Bill of Rights to State law would have been operative.

The same cannot said, however, for the powers given to each of the three branches of government in the Articles of the Constitution. These were obviously intended to be given and actively used by their recipient branch as required. Congress, therefore, was given the power to "organize, arm, and discipline" the militia, to do so according to legislation it deemed "necessary and proper" and in so doing, establish the well regulated militia so vital to the security of a free State.

So what we are left with is this.... on one side, we have the militia that Congress is empowered to regulate.... and on the other we have the individual right to keep and bear arms that was originally intended only to provide legal protection under Federal law. Because the prefatory clause was included - and let's be very clear about this.. Madison would have viewed the prefatory clause as having no bearing on the States any more than the underlying right would have application under State law - these two opposing concepts are inextricably tied together. They clearly must co-exist. Congress must regulate the militia as it deems necessary and proper and individuals must have the right to keep and bear arms in order to form that militia. They're ying and yang. When one grows, the other shrinks, and vice-versa. There's a balance that has to be maintained there that exists for no other constitutionally enshrined right.

These aren't two separate concepts.... if there was no prefatory clause and the 2nd Amendment just said, "The right of the people to keep and bear arms, shall not be infringed" - then the right would be a separate concept, just like every other right listed in the Bill of Rights. Congress could pass whatever militia laws it felt and necessary and proper and they would have as much bearing on the right to keep and bear arms as a law infringing on free speech would have... ie, they would get challenged in the courts and have to withstand strict scrutiny.

But because we were given this unique constitutional "ying vs. yang" relationship, my argument is that intermediate scrutiny would be the best way to apply a disagreement between the two sides.

 

[Cordelier]

Of course it does . . . As you recognize, Congress possesses complete power to dictate on militia affairs and to the actions of the members of the militia when mustered. It is logically and legally incoherent to then say that those members needed a "right" to keep and bear arms when as enrolled members, their arms keeping and bearing is entirely an action set out in, essentially an obligation of law.

Your theory demands the violation of a long established canon, Expressio unius est exclusio alterius ("the express mention of one thing excludes all others"). Only enrolled militia members are bound by militia law, private citizens are under no impressment of militia law (see Militia Act of 1792 and SCOTUS cases on militia law, Houston v. Moore, 18 U.S. (5 Wheat.) (1820), Martin v. Mott, 25 U.S. (12 Wheat.) (1827), Selective Draft Law Cases, 245 U.S. 366 (1917).

Ahhhh... Separation of Powers doctrine, though... if Congress has the power to "organize" the militia to include anybody who chooses to arms themselves, how much scope do you figure the Courts have to block them from doing so? Wouldn't they be clearly exercising their constitutional power?

 

[Lutherf]

You're overlooking one key factor, though. At the time the Bill of Rights was ratified, it was only intended to enumerate rights that exist on the Federal level. Madison would have not felt compelled to take into account State interests because the right to keep and bear arms wasn't intended to apply to State law. It was only with the ratification of the 14th Amendment and the gradual formulation of the Incorporation doctrine that the possibility of applying the Bill of Rights to State law would have been operative.

The same cannot said, however, for the powers given to each of the three branches of government in the Articles of the Constitution. These were obviously intended to be given and actively used by their recipient branch as required. Congress, therefore, was given the power to "organize, arm, and discipline" the militia, to do so according to legislation it deemed "necessary and proper" and in so doing, establish the well regulated militia so vital to the security of a free State.

So what we are left with is this.... on one side, we have the militia that Congress is empowered to regulate.... and on the other we have the individual right to keep and bear arms that was originally intended only to provide legal protection under Federal law. Because the prefatory clause was included - and let's be very clear about this.. Madison would have viewed the prefatory clause as having no bearing on the States any more than the underlying right would have application under State law - these two opposing concepts are inextricably tied together. They clearly must co-exist. Congress must regulate the militia as it deems necessary and proper and individuals must have the right to keep and bear arms in order to form that militia. They're ying and yang. When one grows, the other shrinks, and vice-versa. There's a balance that has to be maintained there that exists for no other constitutionally enshrined right.

These aren't two separate concepts.... if there was no prefatory clause and the 2nd Amendment just said, "The right of the people to keep and bear arms, shall not be infringed" - then the right would be a separate concept, just like every other right listed in the Bill of Rights. Congress could pass whatever militia laws it felt and necessary and proper and they would have as much bearing on the right to keep and bear arms as a law infringing on free speech would have... ie, they would get challenged in the courts and have to withstand strict scrutiny.

But because we were given this unique constitutional "ying vs. yang" relationship, my argument is that intermediate scrutiny would be the best way to apply a disagreement between the two sides.

Clauses 15 and 16, Article I, Section 8, use the qualifying phrase "To provide for". They were phrased that way because the militia was NOT expected to be under the control of the federal government unless called to the service of the Union. Congress already had the ability to raise an army (clause 12) and this authority over the militia you keep citing was to bee used ONLY when the militia was called to federal service.

 

[Cordelier]

But there is no linkage. The declarative clause doesn't "do" anything; it doesn't demand, direct, establish or continue anything pertaining to militia. Those cases I mentioned, Houston v. Moore, 18 U.S. (5 Wheat.) (1820), Martin v. Mott, 25 U.S. (12 Wheat.) (1827), Selective Draft Law Cases, 245 U.S. 366 (1917) and even Perpich v. Dep't of Defense, 496 U.S. (1990) decided conflicts and disputes of militia power.

They only examined Article I, Section 8 because SCOTUS has said the full expanse of Congressional power over militia is expressed there. The 2ndA is mentioned once, in a dissent, only to say that it offers no guidance on militia issues.



Being enrolled and then called into service of the nation are the two demarcations of power over militia members. When a citizen is not active he is not under militia law . . . OTOH, when active, their entire status is altered, they become completely under the authority of the state or federal government, especially as infractions and crimes goes. We see this in the 5th Amendment; if a militia member in service to the nation commits a crime, he is not afforded the grand jury presentment requirement of the 5th Amendment because he is under the UCMJ.

When in service, rights don't matter, they have no consequence or significance if the action is directed in law. . .

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Yes, but prosecuting a militia member under the UCMJ clearly falls under "governance", so of course it could only happen when they are called into active duty. But Article I §8 draws a clear distinction between the power to "govern" the militia and the powers to "organize, arm, and discipline" it. And the distinction it draws is whether or not it is called into active service.

A plain reading of Article I §8 makes it clear that the power to "organize, arm, and discipline" the militia exists at all time. Indeed, if it did not, then how could the militia be considered "well regulated"?

 

[Cordelier]

The entire 2nd Amendment is superfluous. It does not create or grant or give the people the right to arms; the people would possess the right without the 2nd Amendment . . . And do, without any reference to, or reliance or dependence upon the 2ndA for the existence of the right (SCOTUS has been boringly consistent for going on 140 years re-re-reaffirming that principle).

All the 2nd Amendment "does" is redundantly forbid the federal government to exercise powers it was never granted.

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I don't deny that the right to keep and bear arms exists outside of the 2nd Amendment. I think there's a compelling case that individuals have a 9th Amendment right to keep and arms for self-defense (given the penumbra between the 2nd and 4th Amendments), and this individual right exists totally outside of the militia context. That's why I draw a distinction between "defensive" (covered by the 9th) and "offensive" weapons (covered exclusively by the 2nd). Because "defensive" weapons don't have the same "ying vs. yang" relationship with Congressional action, they enjoy a higher degree of constitutional protection.

 

[Cordelier]

When the Militia Act of 1792 was in force, a "return of militia" was maintained (and constitutionally legitimate). This was a census of types and caliber of arms and accessories the militia men mustered with. This was more to ensure an appropriate amount of ammo etc would be on hand, beyond the limited amount the militia man was ordered to provide himself. It wasn't a registration per se, and it was not any infringement of the right to be armed because the militia man arming himself with the one gun he chose to muster with, was in obeyance to law, not any exercise of a right. Whatever arms the member owned as a private citizen, were of no interest and not recorded.

Now that Congress has extinguished the clause 16 militia and any militia obligation of the citizen under law, it has also extinguished any interest it had in any arms the citizen owns.

Expressio unius est exclusio alterius . . .

.

Congress has the power to "organize, arm, and discipline" the militia however it deems "necessary and proper". If it determines that it needs a detailed listing of who has armed themselves with "offensive" weaponry appropriate for militia use (they have to make this determination given their power to "arm") in order to "organize" the militia, then what power do the courts have to deny it?

 

[Cordelier]

There are three militias . . .

First is the general militia, the fundamental principle of an armed citizenry in a republican form of government. This is essentially, all able bodied males capable of bearing arms and acting in concert. Madison put this at 25% of the total population.

The second militia are those men obligated under law to perform militia duty and who are formally "enrolled and notified". There are age requirements and exclusions as to certain public officials etc and of course, in the earliest law, race. Only the "free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years . . . " was both obligated and eligible to enroll.

The third is the limited "part" of a single state's, or a number of states' militias that are called into actual service of the nation.

.

Not really. There's only one. Congress has just organized it to appear there is more than one. Even State militias have to have Congressional consent under the compact clause in order to be established - so they can properly be viewed as a delegation of some or all of Congress' militia power that can be expanded or revoked at Congress' discretion.

The word "militia" appears 6 times in the Constitution... and in 5 of those instances it is preceded by the word "the".

 

[Cordelier]

In 1792, Congress exercised their constitutional power to "provide for . . . arming . . . the militia" by directing:

• ". . . every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack." -- Militia Act of 1792

Today, if such a law were to be enacted, Congress would direct citizens obligated to serve, to provide themselves with an AR platform rifle in 5.56 NATO, a red-dot or telescopic sight and 120 rounds of ammo in four 30 round magazines. It is the perfect militia rifle, military armorers have parts and familiarity, the ammo is of course available and Geneva Convention approved -- after all, we can't have guys muster with a 30/30 deer rifle and soft-nose bullets right?



Nothing an enrolled militia member does is an exercise of a right, nor does he require or need any immunity from any government to fulfill his duty -- he is entirely under the control of law. He is armed according to the law set-out by Congress which is preemptive of any state law possibly interfering.

Of course, the private citizens NOT enrolled or otherwise under obligation, have no law operating on them, they are excluded from government operation as far as their personal arms are concerned (expressio unius est exclusio alterius). The government has no claim on them or their arms; for those private citizens their choosing to arm themselves (or not) is an exercise of a right, an exemption from powers not granted, a right recognized and secured by the 2nd Amendment.

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So what if - given it's power to organize - Congress decided that everyone who equips themselves with a suitable militia weapon - like the AR-15 you cite - is automatically enrolled within the militia?

 

[Cordelier]

Clauses 15 and 16, Article I, Section 8, use the qualifying phrase "To provide for". They were phrased that way because the militia was NOT expected to be under the control of the federal government unless called to the service of the Union. Congress already had the ability to raise an army (clause 12) and this authority over the militia you keep citing was to bee used ONLY when the militia was called to federal service.

Article I §8 cl. 1 - "The Congress shall have Power To... provide for the common Defence and general Welfare of the United States"

cl. 6 - "To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;"

Are you saying the above functions "provided for" by Congress are similarly expected to be conducted only under extraordinary circumstances? Or would it be more accurate to classify them as permanent and on-going functions?

 

[Lutherf]

Article I §8 cl. 1 - "The Congress shall have Power To... provide for the common Defence and general Welfare of the United States"

cl. 6 - "To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;"

Are you saying the above functions "provided for" by Congress are similarly expected to be conducted only under extraordinary circumstances? Or would it be more accurate to classify them as permanent and on-going functions?

Are you suggesting that the federal goverrnment has sole authority to provide for the common defense and general welfare of the people?

 

[Cordelier]

Are you suggesting that the federal goverrnment has sole authority to provide for the common defense and general welfare of the people?

I wouldn't go that far... so long as authority isn't prohibited to the States, then according to the 10th Amendment they would have a share as well.

 

[Lutherf]

I wouldn't go that far... so long as authority isn't prohibited to the States, then according to the 10th Amendment they would have a share as well.

Right. The state and local authorities have primary control over the organized militia. The federal government has control when the militia is called to federal service. Likewise, the states have authority to provide for their own defense but when confronted with an aggressor that is a threat to the Union then the federal government has a more substantial role to play.

 

[Cordelier]

Right. The state and local authorities have primary control over the organized militia. The federal government has control when the militia is called to federal service. Likewise, the states have authority to provide for their own defense but when confronted with an aggressor that is a threat to the Union then the federal government has a more substantial role to play.

But that depends on the nature of the consent given by Congress via the compact clause. States obviously have the authority to appoint officers and conduct training... but any authority they possess beyond that is at Congress' discretion. When you note that even the authority given to States to train the militia is still subject to the discipline prescribed by Congress.... I think it becomes pretty clear that the Congress is invested with substantial authority to regulate the militia if it so deemed it necessary and proper. It's not absolute authority, as we've seen already - the individual right still has to be protected, especially where it comes to "defensive" arms - but it is necessary broad, especially where it comes to regulation of weaponry it deems "offensive" in nature.

Also, it should be noted, that Congress doesn't have to exercise these powers on it's own (although there's certainly nothing in the constitution that bars them from doing so).... the compact clause clearly allows them the ability to delegate some or all of them to the States, if that's what they deem "necessary and proper".

 

[AFrench2]

What they are? What they say? What they mean? For your wayback pleasure, ThePodocasts presents to you 'The Bill of Rights' part 1!

- Speech,Protest,Religion
-Guns
3- Quartering soldiers
4-Search and seizure
5-self incrimination/being a witness against yourself
6-right to a speedy/fair trial
7-no idea
8-no idea
9-all rights not stated here are to the people
10-all rights not stated here are to the State

 

[Rich2018]

I can agree with the facts of the case, and cite them approvingly while disagreeing with the holding of the Court.

Cruikshank recognizes the right of two Freemen, former slaves then citizens, to possess and carry arms for self defense in public from white oppressors in a state and at a time that the state had no militia (it being disbanded by the governor on the orders of Congress).

Cruikshank shows without any dispute that SCOTUS recognizes and endorses the 2nd Amendment securing an individual right independent of any militia association. These were two black men who, even if Louisiana had a militia, they could not enroll (see Militia Act of 1792).

Dred Scott is another case that has a condemnable, detestable holding but the Court's explanation of what rights must be recognized IF Blacks were recognized as citizens, stands as an explanation of the understanding of the right to arms in particular. For if Blacks were recognized as citizens of the USA, they could carry arms wherever they went.

There are many cases with horrible holdings but instructive commentary that in hindsight, makes the decision all the more terrible because the court used a good and proper reading of the constitution or precedent or law, to deny rights to people.

Cases v US is another perfect example . . . An honest (but hyperbolic) interpretation of Miller that the court just could not accept or enforce, led the court to invent the "militia right" interpretation of the 2nd Amendment. That holding perverted and polluted 2nd Amendment jurisprudence in the lower federal courts for 66 years, until Heller invalidated the collective right theory.

• "At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called 'Commando Units' some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,-- almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-- is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, . . . "

Sounds good to me!

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So your guns will be 'undocumented" like a pedophile's child porn huh ?