Kodiak said:
"Amendment II --
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The Militia was just the reason given for originally instituting the 2nd Amendment. It protects the right of the people, not just the militia."
The second amendment is composed of two parts: the Justification clause, and the Rights clause.
Justification clause: "A well regulated Militia being necessary to the security of a free State,"
Rights clause: "the right of the people to keep and bear Arms, shall not be infringed."
"The justification clause does not modify, restrict, or deny the rights clause."
"Justification clauses appear in many state constitutions, and cover liberties including right to trial, freedom of the press, free speech, and more. Denying gun rights based on the justification clause means we would have to deny free speech rights on the same basis." -- Eugene Volokh, Prof. Law, UCLA See http:/www.law.ucla.edu/faculty/volokh/beararms/testimon.htm
Everybody has an opinion. Same with Volokh. I've been an editor on a law review and taught classes in law. So what? His statements have no more binding authority in law than mine, or Franko's for that matter.
Plus, his last sentence makes little sense. What justification clause in the 1st amendment? Furthermore, who is completely denying gun rights? Restricting the right to "Militia" related activities is hardly an outright denial that a right exists, its just a restriction, be it a rather large one. His next to last sentence makes little sense as well. That types of clauses may exist in law does not somehow require that all of them are going to be construed with identical weight w/r/t the rest of a sentence. That's silly.
His opinion is contrary to the case law. _Miller_ clearly places a restriction on gun ownership. The only debate is the magnitude of the restriction, as I summarized above.
The Second Amendment is an individual right, not a collective right:
The Supreme Court has listed the Second Amendment in at least two rulings as an individual right. -- Dred Scott, Casey v. Planned Parenthood and U.S. v. Cruikshank
I'm pretty confident that such a mention is dicta in the first two cases. Offhand comments not directly related to the issue to be decided have no force in law, as they are not made within the court's grant of power under the constitution. The third I'll just suspect absent knowledge of context. There is no cite for me to look it up.
The Supreme court specifically reaffirmed that the right to keep and bear arms did not belong to the government. -- United States v. Miller
This right is restricted by the "some reasonable relationship to the preservation or efficiency of a well regulated militia"" test spelled out by Miller. You are arguing with the strawman that these cases ban all personal rights to own a gun. They don't. The argument is that personal right only exists where some relationship to militia activity exists. Miller stands for the proposition that the weapon itself must be of a type commonly used for militia type purposes. The question remaining today is whether or not ownership of a gun that passes the "Miller test" is protected by the second amendment even if the person owning it does not do so in relation to actual militia activity. The circuits are split on this....
"We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not thay are a member of a select militia or performing active military service or training".
"We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment."
"All of the evidence indicates that the 2nd Amendment, like the rest of the Bill of Rights, applies to and protects individual Americans."
"The plain meaning of the right of the people to keep arms is that it is an individual, rather than a collective, right and is not limited to keeping arms while engaged in active military service or as a member of a select militia such as the National Guard." -- U.S. v. Emerson, 5th court of Appeals decision, November 2, 2001, No. 99-10331
This is one half of the split I mentioned above. Read the whole case and you will see that the above text fits in with what I am saying. In Emerson, the court limited Miller to only speak to types of weapons. It doesn't contradict Miller, or overrule it. The principle that a weapon must in type have "some reasonable relationship to the preservation or efficiency of a well regulated militia" is not disturbed. The Emerson court refuses to take the next step and find that Miller implies that for the second amendment to apply a person must be engaged in some sort of militia activity. Then if you read the other half of the split, the Rybar case I mention in an above post, that court does take the next step and refuses to find second amendment protection because while the guns (they were machine guns) passed the "Miller" test, the owner had no relationship whatsoever to a militia.
Here's a segment from _U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996):
In support, Rybar cites, paradoxically, the Supreme Court decision in United States v. Miller, 307 U.S. 174 (1939), where the Court upheld the constitutionality of a firearms-registration requirement against a Second Amendment challenge. Rybar draws on that holding, relying on the Miller Court's observation that the sawed-off shotgun in question had not been shown to bear "some reasonable relationship to the preservation or efficiency of a well regulated militia." Brief of Appellant at 24-25; Miller, 307 U.S. at 178. Drawing from that language the contra positive implication, Rybar suggests that because the military utility of the machine guns proscribed by Section(s) 922(o) is clear, a result contrary to that reached in Miller is required, and the statute is therefore invalid under the Second Amendment.
[70] Rybar's reliance on Miller is misplaced. The language Rybar cites is taken from the following passage:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
[71] 307 U.S. at 178.
[72] We note first that however clear the Court's suggestion that the firearm before it lacked the necessary military character, it did not state that such character alone would be sufficient to secure Second Amendment protection. In fact, the Miller Court assigned no special importance to the character of the weapon itself, but instead demanded a reasonable relationship between its "possession or use" and militia related activity. Id.; see Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942) (susceptibility of firearm to military application not determinative), cert. denied, 319 U.S. 770 (1943). Rybar has not demonstrated that his possession of the machine guns had any connection with militia-related activity. Indeed, as noted above, Rybar was a firearms dealer and the transactions in question appear to have been consistent with that business activity.
[73] Nonetheless, Rybar attempts to place himself within the penumbra of membership in the "militia" specified by the Second Amendment by quoting from 10 U.S.C. Section(s) 311(a):
The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are . . . citizens of the United States . . . .
[74] Rybar's invocation of this statute does nothing to establish that his firearm possession bears a reasonable relationship to "the preservation or efficiency of a well regulated militia," as required in Miller, 307 U.S. at 178. Nor can claimed membership in a hypothetical or "sedentary" militia suffice. See United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992), cert. denied, 507 U.S. 997 (1993); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977), cert. denied, 435 U.S. 926 (1978); United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied, 426 U.S. 948 (1976).
This is the split. Emerson goes with a relatively "individual right" in that participation in militia is not necessary. Rybar takes the opposite view, embracing the so called "collective" right.
Both views still follow Miller, in that only guns of the type commonly used for militia purposes are protected by the second amendment.
"62% of those likely voters sampled believe the 2nd Amendment guarantees an individual right, while only 28% believe it protects the power of the states to form militias." -- Associated Television News Survey, August 1999
Are you serious? If 88% of people believe 2+2=73 that doesn't make it so. Plus, I'd love to see the actual question. Thanks to certain groups uses of ellipses, I wonder how many people know the actual text of the second amendment?
"There are 23 state constitutions with "right to keep and bear arms" clauses adopted between the Revolution and 1845, and 20 of them are explicitly individual in nature, only 3 have "for the common defense...." or other "collective rights" clauses."
"Of 300 decisions of the federal and state courts that have taken a position on the meaning of the Second Amendment, or the state analogs to it, only 10 (3.3%) have claimed that the right to keep and bear arms is not an individual right. Many of the other decisions struck down gun control laws because they conflicted with the Second Amendment, such as State v. Nunn (Ga. 1846)." -- Clayton Cramer, historian, author of For the Defense of Themselves and the State_(Praeger Press, 1994), cited as an authority in USA v. Emerson (N.D. Texas 1999)
This would be great if the federal courts were bound by state courts, or if law was a question of statistics rather than binding authority. It isn't. It is just a footnote in a case that is part of a circuit split.
James Madison, considered to be the author of the Bill of Rights, wrote that the Bill of Rights was "calculated to secure the personal rights of the people". -- Stephen P. Halbrook, "Where Kids and Gun Do Mix", Wall Street Journal, June 2000.
Authorship doesn't automatically confer authority. Furthermore, like a said before, this statement is not really contradictory to the "collective" right theory. The "collective" right as stated in Rybar does confer a right on the individual, it just conditions that right on membership in a militia. The right is not held collectively but individually. However, that individual right is conditioned by membership is a "collective" group, In that "I" have a right to own a gun, as long as it is in the context of militia membership."
"The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respectingthe rights of property: nor will the constitution permit any prohibition of arms to the people: or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion. -- Tucker's Blackstone, Volume 1 Appendix Note D., 1803 - Tucker's comments provide a number of rare insights into the consensus for interpretation of the Constitution that prevailed shortly after its ratification, after the debates had settled down and the Constitution was put into practice
Maybe in your opinion. I have serious doubts that the "debates" you mention have ever settled down. Furthermore, the 14th amendment and decisions about the commerce clause have dramatically changed the nature of federal power over domestic concerns. These insights seem simply out of date.
"The signification attributed to the term "Militia" appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense. And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." -- U.S. v. Miller -the Miller case specifically held that specific types of guns might be protected by the Second Amendment. It depended on whether a gun had any military (militia) use, and they wanted some evidence presented, confirming that citizens have a right to military style weapons.
Yes. The whole so called "collective" versus "individual" rights argument is simply an argument over whether or not the test in Miller extends beyond the type of gun to require that the ownership interest be realted to militia purposes. That is it. That's all the argument is.
Either way, you definately have an individual right under the second amendment to own a gun that is of a type suitable for militia purposes, if the ownership interest relates to militia activity. (The so-called "collective rights view")
Some circuits hold that only the type of weapon is important, the owner need not actually be involved in the militia. (individual rights view)
Legally, that is the question. Confusion results when people use the words "collective" and "individual" both as terms of art as explained above and with their common meanings.
"Collective" in the above context includes a (restriced) individual right, and the "individual" right still is affected by a collective flavor, in that the right is justified by a showing the weapon is of a type used for the collective defense.
What a mess.
