Break out your Chain Mail

[MichaelJoeWilliamson]

Originally Posted by dangolegators

You can google it.

And I find 15 different definitions. I am interested in yours

Given that any time a crime is committed with a gun, one of the first things the authorities try to do is to track where the gun came from, yes I think it would help prevent crime by making investigations more effective. Kind of like how it can make it a little easier to catch the bad guy if you have a license plate number.

Preventing crime and solving crime are two different things.

To the same end drivers are required to get liability insurance. Do you want to repeal the requirement for auto liability insurance? If so, why?

In many states, auto insurance requirements have been lowered to the point of being almost non-existent. Why do you think auto insurers sell insurance for accidents where the other party has no insurance?

[Lawdog88]

Originally Posted by Minister_of_Information

I'm not disagreeing with you, just bear in mind that "well regulated" also refers to disciplined and drilled as a body, so regulation was also intended to produce a highly effective militia rather than simply to regulate its arms.

This was the way the author of Heller, Justice Scalia, presented the opening issue:

The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. See Brief for Petitioners 11–12; post, at 1 (Stevens, J., dissenting). Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. See Brief for Respondent 2–4.

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment , 73 N. Y. U. L. Rev. 793, 814–821 (1998).

Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).³ “ ‘It is nothing unusual in acts … for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)). Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.⁴

1. Operative Clause.
a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment ’s Assembly-and-Petition Clause and in the Fourth Amendment ’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.⁵

[Lawdog88]

There's more:

c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment . We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”¹⁶

* * * * *

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment ’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.

* * * * *
Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).

[Minister_of_Information]

I agree, but think that "well regulated" also confers a not unlimited degree of what we understand to be modern regulatory oversight of armaments.

[dangolegators]

Originally Posted by MichaelJoeWilliamson

Preventing crime and solving crime are two different things.

Is that so? So you think a higher likelihood of catching bad guys does nothing to lower crime rates? I guess we'll just have to disagree on that one.

In many states, auto insurance requirements have been lowered to the point of being almost non-existent. Why do you think auto insurers sell insurance for accidents where the other party has no insurance?

Which states would these be? Most states require a minimum liability coverage somewhere between 20k and 30k. The reason auto insurers sell uninsured driver insurance is because so many people break the law and drive with no insurance.

[Lawdog88]

We therefore believe that the most likely reading of all four of these pre- Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other States did not include rights to bear arms in their pre-1789 constitutions—although in Virginia a Second Amendment analogue was proposed (unsuccessfully) by Thomas Jefferson. (It read: “No freeman shall ever be debarred the use of arms [within his own lands or tenements].”¹⁸ 1 The Papers of Thomas Jefferson 344 (J. Boyd ed. 1950)).

* * * *

“The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all nations power coupled with the exercise of a certain jurisdiction. … [i]t was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed.” J. Ordronaux, Constitutional Legislation in the United States 241–242 (1891).

* * * * *
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

* * * * *
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

And, hey, there's plenty more, but you can read it yourself at the Cornell Law website.

http://www.law.cornell.edu/supct/html/07-290.ZO.html

[Lawdog88]

Well, that certainly put everybody to sleep.

[Minister_of_Information]

Originally Posted by Lawdog88

Well, that certainly put everybody to sleep.

We're not asleep, just tacitly persuaded.

[Row6]

Originally Posted by Minister_of_Information

We're not asleep, just tacitly persuaded.

Speak for yourself. I'm too tired to wade in tonight.

[Minister_of_Information]

Originally Posted by Row6

Speak for yourself. I'm too tired to wade in tonight.

Wade in? I thought you walked on water.

[ChartsandGrafs]

[ChartsandGrafs]

LOL, classic...

[Row6]

Originally Posted by Lawdog88

And, hey, there's plenty more, but you can read it yourself at the Cornell Law website.

http://www.law.cornell.edu/supct/html/07-290.ZO.html

Scalia:

1 Advances without logical explanation the idea that the fact that a perceived necessity has become archaic doesn't effect rights justified by it.

2 Does not fill in any inferred blanks in the bolded part of that passage. How does he justify limiting the types of arms citizens may possess except to say they are "highly unusual", as if that is enough cause. IOW, if he agrees a line can be drawn how does he arrive at where, and how does he think he has enough cause to overturn the will of an elected body to overrule them on where that line is?

Not part of Scalia's argument, but the constitution grants Congress the power - among other things - to "discipline" the militia, which means "well regulated" is not a passive concept left to citizens.

[Row6]

Originally Posted by Minister_of_Information

Wade in? I thought you walked on water.

Good one.

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[ChartsandGrafs]

[Lawdog88]

Originally Posted by Row6

Scalia:

1 Advances without logical explanation the idea that the fact that a perceived necessity has become archaic doesn't effect rights justified by it. [And concomitantly, fails to fully discuss why basic human rights do not become antiquated just because technology advances.]

2 Does not fill in any inferred blanks in the bolded part of that passage. How does he justify limiting the types of arms citizens may possess except to say they are "highly unusual", as if that is enough cause. IOW, if he agrees a line can be drawn how does he arrive at where, and how does he think he has enough cause to overturn the will of an elected body to overrule them on where that line is? [He saved the line drawing for the next time.]

Not part of Scalia's argument, but the constitution grants Congress the power - among other things - to "discipline" the militia, which means "well regulated" is not a passive concept left to citizens. [Which has nothing to do with the basic right he explicates, i.e., the personal right to possess firearms for self protection.]

Great stuff.

Maybe you will be designated to write the dissenting opinion on the next one.

[Lawdog88]

Hey, where de white . . . er, ah, the Obiden confiscatory proposals that are due out today ?

[MichaelJoeWilliamson]

Originally Posted by dangolegators

Is that so? So you think a higher likelihood of catching bad guys does nothing to lower crime rates? I guess we'll just have to disagree on that one.

Not to the extent of violating a fundamental right depicted in the constitution.

Which states would these be? Most states require a minimum liability coverage somewhere between 20k and 30k. The reason auto insurers sell uninsured driver insurance is because so many people break the law and drive with no insurance.

Ironic that you can write this but see no problem with ever increasing gun control.

[helix139]

Originally Posted by Row6

Scalia:

1 Advances without logical explanation the idea that the fact that a perceived necessity has become archaic doesn't effect rights justified by it.

He doesn't have to justify it. The necessity of the militia is justified by the text of the amendment. Unless the amendment is repealed, the necessity of a militia is a given no matter who perceives it as archaic or not.

2 Does not fill in any inferred blanks in the bolded part of that passage. How does he justify limiting the types of arms citizens may possess except to say they are "highly unusual", as if that is enough cause. IOW, if he agrees a line can be drawn how does he arrive at where, and how does he think he has enough cause to overturn the will of an elected body to overrule them on where that line is?

NFA and other restrictions are outside the scope of the case and opinion. Again, no justification required. The question for Heller was not whether or not a line can be drawn but whether that line can include handguns.

Not part of Scalia's argument, but the constitution grants Congress the power - among other things - to "discipline" the militia, which means "well regulated" is not a passive concept left to citizens.

Perhaps, but whether not congress takes any action regarding the militia does not preclude its existence, and that existence requires the people to be able to keep and bear arms.

[northgagator]

Originally Posted by Row6

Not part of Scalia's argument, but the constitution grants Congress the power - among other things - to "discipline" the militia, which means "well regulated" is not a passive concept left to citizens.

Where in the US Consitution does it say that the Federal Government regulates the militia?

Also, it states the milita is necessary to the security of a free state.

As ratified by the States and authenticated by Thomas Jefferson, Secretary of State:

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.[8]

http://en.wikipedia.org/wiki/Second_...s_Constitution

To clear up any chance of confusion, lets review the definition of a militia

The term militia (pron.: /mɨˈlɪʃə/),[1] or irregular army, is commonly used today to refer to a military force composed of ordinary citizens[2] to provide defense, emergency law enforcement, or paramilitary service, in times of emergency without being paid a regular salary or committed to a fixed term of service. It is a polyseme with multiple distinct but related meanings. Legal and historical meanings of militia include:
Defense activity or service, to protect a community, its territory, property, and laws.[3]
The entire able-bodied population of a community, town, county, or state, available to be called to arms. A subset of these who may be legally penalized for failing to respond to a call-up.
A subset of these who actually respond to a call-up, regardless of legal obligation.

A private, non-government force, not necessarily directly supported or sanctioned by its government.
An official reserve army, composed of citizen soldiers. Called by various names in different countries such as; the Army Reserve, National Guard, or state defense forces

.
http://en.wikipedia.org/wiki/Militia
My point on this airing of the militia definition is to advise people that the militia is not necessarily the National Guard or the Military Reserves. In the most basic sense of the term it can be two or more people who answer a call to arms. As I recall there is not any requirements on who actually makes that call. In my opinion it can be a homeowner who has a home invasion going on and his neighbors respond.

I am think that maybe a big problem with the USA is that there is not enough community envolvement. A hundred years ago many American pitched in during a time of emergency for various activities (fire, crime, accident). Now we all depend on the gov''t agencies and departments to to take care of us. We are so dependent that we have a lot of apathy in our communities. This apathy has lead to a lot of people not giving a $h!t about drug dealing, prosetution, littering, vandalism. and many more problems. It is very possible that this apathy created an open door for the lawlessness we are seeing today and other irresponsible behavior.