Welcome to Common Gunsense

I hope this blog will provoke some thoughtful reflection about the issue of guns and gun violence. I am passionate about the issue and would love to change some misperceptions and the culture of gun violence in America by sharing with readers words, photos, videos and clips from articles to promote common sense about gun issues. Many of you will agree with me- some will not. I am only one person but one among many who think it's time to do something about this national problem. The views expressed by me in this blog do not represent any group with which I am associated but are rather my own personal opinions and thoughts.
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Wednesday, October 13, 2010

Lets talk about militias

Comments on my latest blog post took an unexpected turn. Some of the recent comments have been beyond the pale even for the gun guys. Apparently the facts only come down on their side and they are the ones who know all. The rest of us are just stupid and know nothing. It would be amusing if it wasn't so scary.


Check out this one: " On one side, we have people who say we need certain laws, but can't explain why. On the other side, people say it is a bad idea, with exhaustive, referenced detail. Even people uninterested in the subject will tend to believe the side willing to provide details. This becomes even more likely when you have fairly simple questions that proponents can't or won't answer--like Carolyn McCarthy's famous 'shoulder thing that goes up' response when pressed on what a barrel shroud was, and why it was enough of a problem that the bill she was advocating would restrict it. 
Emotion only works as a substitute for facts when facts are hard to come by. Since most people have internet available, the facts are much easier to verify--people don't have to rely on faith, they can see Carolyn fumble, and look up the details with relative ease. "

So let's sample some of the recent comments. These are concerning militia groups. I am still not sure how the "conversation" turned towards militias except that the comments were in response to my post: Do I want to ban your guns?. In the next post, I will share the comments about machine guns that popped up in the above linked post. Wait for it. You will find it quite amazing and amusing. Here, then, are remarks from yesterday:
  • this one was a definition of militia sent in a comment so I would be sure to know what it was: "Sec. 311. Militia: composition and classes
  • -STATUTE-
  • (a) The militia of the United States consists of all able-bodiedmales at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
  • (b) The classes of the militia are - 
  • (1) the organized militia, which consists of the National Guard and the Naval Militia; and
  • (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
  • "This creates a requirement for these people to act as a militia in some cases and to serve in the regular military “when called into the actual Service of the United States”. United States v. Miller, which is a good illustration of the militia theory of the 2nd Amendment and cited by the both dissents from McDonald vs Chicago, decided that a weapons possession could be criminalized (without a Tax being paid) because it was not “ordinary military equipment “. This means that in current Supreme Court precedence the weapons with the strongest basis for legal ownership are military weapons. Thus if the government can prohibit ownership of the weapons with the strongest support in legal theory it is very hard for me to see where the prohibition of weapons would logically end without another rational for determining what weapons would be permissible. The danger or potential for misuse of a weapon can not serve a rational discriminator because every weapon is dangerous and can be misused.  Also it seems inherently wrong to me to place an obligation upon citizens and then deny them the tools necessary to meet that obligation. "
  • (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, or who have made a
    declaration of intention to become, citizens of the United States
    and of female citizens of the United States who are members of the
    National Guard.
    (b) The classes of the militia are -
    (1) the organized militia, which consists of the National Guard
    and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of
    the militia who are not members of the National Guard or the
    Naval Militia.

    In simple terms, the Militia is
    A) everyone in the National Guard or Naval Reserve
    and
    B) All able bodied males 17-45 "
  • "Well they did support a militia. Congress even passed a act.
    On May 8, 1792, Congress passed "[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring:
    [E]ach and every 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 (except as is herein after excepted) shall severally and respectively be enrolled in the militia...[and] 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 "
Others were similar. So what we have here is a group of gun guys who believe that  militia groups are sanctioned by the U.S. government by virtue of an act passed by Congress in 1792, above. In other words, it's perfectly O.K. for people to belong to anti-government armed militia groups because of this act. If you can find somewhere in there that it's O.K. based on (B), let me know. I know for sure that this is 2010. The world has changed dramatically since 1792. The National Guard is now serving in the role of the (then) militia, as stated in the "act" quoted above. I find this justification for militia groups to be quite frightening. One wonders who among those commenting is a member of one of these extremist anti-government groups.

And insulting people who have suffered the loss of a loved one to a gun is inexcusable. Representative Carolyn McCarthy lost her husband to a mass murderer with a gun on a Long Island commuter train. Her son was seriously injured. Six people were killed that day. Senseless. I have been regularly insulted, though the people doing so take issue with my comments calling them out for insults. They just don't see their "in your face", accusatory remarks calling me names as insulting. So be it.


Here is an article by Josh Horwitz of the Coalition to Stop Gun Violence who writes about the violent talk, the threats, the name calling, the insults and whatever else the NRA leadership and it's minions have decided is now O.K. Much of this kind of talk is coming from Fox News, specifically from Glenn Beck. How has this become acceptable? It appears that anything goes. Personally, I have been stunned, for lack of another word, at the impolite, accusatory, bombastic remarks made about me and to me on my own blog. I'm just one person advocating for sensible gun legislation. Suddenly I am the "devil incarnate" to the gun guys. How can they be so threatened by one woman from Minnesota blogging about what she is thinking and urging people to action? The anger and hostility should be a wake-up call to those who, like me, believe we don't need to escalate violence and gun talk and gun carrying everywhere we go. We don't need people arguing seriously about the definition of a militia. We are in a precarious spot in our nation's discourse right now. Let's hope the gun guys responding here don't decide to act on their dangerous views and hatred. Some of these folks appear ready to fight against their own government. Isn't that called treason? I'm just saying... Is this common sense?


70 comments:

  1. "And insulting people who have suffered the loss of a loved one to a gun is inexcusable."

    I've read the comment you posted several times, and I do not see any insult; I see well justified criticism. If you watch the video he is talking about it is painfully obvious that Representative McCarthy did not have an understanding of what would be banned by her own bill. I'm sorry that psychopath murdered her husband, but that does not immunize her from criticism.

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  2. Yes. It does. She doesn't have to know the fine details of all guns to know that a gun killed her husband and she doesn't want guns to kill a bunch more people.

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  3. Like any dangerous object (or really, any object), shouldn't those regulating it understand it in detail? Those who regulate nuclear weapons know all about nuclear physics. Those who regulate automobiles know all about building them, crashing them, and engineering them. Those who regulate broadcasting know all about electromagnetism.

    Guns (and those who want to regulate them) shouldn't get a pass just because it's a visceral and emotional issue.

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  4. This comment has been removed by the author.

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  5. I'm not sure I understand your point about the fact that the Militia Act was passed in 1792. Do laws have some arbitrary "void after" date? Congress can change the law anytime it wishes, so far they have chosen not to.

    I should add that the Bill of Rights was adopted in 1791. Do you think that they are now void as well?

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  6. Did I say it was void? I am pointing out that since 1792, we now have a National Guard to cover the militia referred to in the law. I'm sure you know what I meant.

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  7. No, I don't know what you meant. Your post seems to strongly imply that you don't think that the Militia Act is valid.

    It is true, we have the NG. We also have the Militia. When Congress created the NG, they chose not to eliminate the Militia. Both laws are still in effect, and both entities still exist.

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  8. There are more than one militia act. The latest was in 1916, and was called the National Defense Act. Most of the acts that define the militia happened in the early part of the 20th century and are still valid law. The definition bring proffered for militia is valid, and is part of the 1903 act. There is a reason for this. The reason is the draft is based on Congress' militia powers under the Constitution, which allows for Congress to call the militia into federal service.

    This has exactly nothing to do with the militia movement, just as twelve people getting themselves together and declaring themselves a jury has nothing to do with actual juries. Before a discussion can be had there needs to be an understanding about what a militia is and is not, as a matter of US law and custom.

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  9. Yes. It does. She doesn't have to know the fine details of all guns to know that a gun killed her husband and she doesn't want guns to kill a bunch more people.

    So you're OK with someone introducing legislation to ban certain firearms when that person (Senator McCarthy) shows blatant ignorance of the very subject AND of the legislation she helped write?

    Also, a gun didn't kill her husband. A person did. Guns are inanimate objects.

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  10. the 311 was last updated in 1947

    It looks as if the 312 part of this law was last updated in 2006

    If I am reading this correctly
    http://uscode.house.gov/download/pls/10C13.txt

    If the militias were doing anything illegal the Government would put a stop to it. I would imagine that they keep a close eye on them.

    Some articles on the militias
    http://alaskadispatch.com/dispatches/alaska-beat/88-alaska-beat/6477-fairbanks-militia-helps-troopers-get-their-man
    http://www.annarbor.com/news/bridgewater-township-turns-to-militia-for-help/

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  11. Actually, the bit of US Code cited above (specifically, TITLE 10, Subtitle A, PART I, CHAPTER 13, § 311) dates back to the early 20th century. The Dick Act of 1903 laid out the division into the organized (national guard) and unorganized (everyone else) classes:

    "The militia shall consist of every able-bodied male citizen .... who is more than 18 and less than 45 years of age, and shall be divided into two classes--the organized militia, to be known as the National Guard of the state ... and the remainder, to be known as the Reserve Militia."

    America moved to a greater focus on a professional army after the debacles of the War of 1812, which demonstrated that militias got trounced in a stand-up fight with regulars (as if we hadn't learned that in the Revolutionary War). However, it is historically inaccurate to claim that the militia laws on the book haven't been updated since the 18th century.

    Additionally, the National Guard now works for the President of the United States when nationalized. Because that leaves the states without their traditional militia resources, many states now field "state defense forces." Alaska is one of them; we have a fairly active National Guard and State Defense Force and they fill similar but different roles.

    In more rural areas, raising the "hue and cry" in English tradition may be the only semiorganized response to crime. Select militias (the police) and the organized militia (national guard) may be literally days away. In those situations the unorganized militia -- really just a community and its neighbors -- has an important role to play. What works for your particular area may not work for everyone. As the US faces greater budget challenges and services including police are cut across the board, it may be even more important than ever for the "unorganized militia" to manifest in constructive manners like Neighborhood Watches even in more built-up places.

    There is also some larger role in civil defense, even in the twentieth century. In WW2 we were able to export large numbers of rifles (the M1917 Enfield in good old American thirty-ought-six) to arm Britain's home guard (militia), in part because we weren't concerned about our own home front. In fact, the NRA collected thousands of American firearms and shipped them to England. Churchill is said to have stated that the arms shipments for Britain's militia were "entirely on a different level from anything we have transported across the Atlantic except for the Canadian division itself." In Alaska, the AK Territorial Guard -- only possible because the unorganized militia had their own equipment and skills to bring to the fight -- served a vital and strategic role.
    ...

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  12. There's a lot of fear out there about the evil militias on the political right but I just haven't seen any actual threat materialize. The whackos we've seen are just that; individual whacko criminals. The thing that James Von Brunn (holocaust museum), Joe Stack (IRS cessna), John Bedell (Pentagon), and other such nutjobs have in common is that they're crazy nutjobs. They all worked alone, and they were of diverse political beliefs. Heck, going back further, McVeigh had no use for the Michigan Militia because they wouldn't act along with his criminal plan!

    So, as far as things that keep me up at night go, some old dudes kicking back beers in the basement and talking smack about Washington DC rates pretty low. I've got a lot more pressing things in my life that concern me. I really don't get all the fear out there. Maybe it is because I live in a more rural state and we see the positive aspects of an "unorganized militia."

    Regardless, the militia and the idea of a citizen-soldier has an important place in American history (even if it isn't quite the incredible fighting force that our popular mythology makes it out to be). It is a role that has been updated (lawfully) using Congress' militia powers all the way up to the twentieth century. If anything I think that the militia clause should be amended to include women as well; it seems sexist to exclude women from the obligation to "serve" in the unorganized militia!

    Cheers,
    Chris from AK

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  13. If Carolyn McCarthy were not actively promoting gun bans that she doesn't understand, I would agree that it would be wrong to insult her knowledge of guns, especially considering her tragic experiences. She has deliberately placed herself in a position to be examined--her job is to know at least a moderate amount of information about the laws she is voting on, and especially the laws she is promoting. If she wants to restrict either shoulder things that go up, or barrel shrouds, she should have a somewhat plausible explanation of why--and her tragedy does not excuse her of this obligation. If her goal is to ban all guns, she should say something like "I'm not familiar with the technicalities, but I am in favor of any added restriction on guns".


    I have never understood what the 'militia only' interpretation of the second amendment would do, especially if the unorganized militia is not recognized--protect the government's right to arm the National Guard?

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  14. Historically speaking, militias have been the standard of local defense. Going as far back as the Greeks, Romans, Continental Europe, etc., the militia was simply a way to organize the already existing members of the community that were willing to present arms in defense of their country. I am not a member of one, nor do I know any one that is a member of one. However, do their 1st amendment rights go out the window simply because they are armed?

    And while you may have not outwardly stated that you believe the 1792 law is void, your tone leads me to believe you are calling for it to be voided.

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  15. Unorganised Militia, sedentary militia, reserve militia, and some possible other terms for it are different from the ENROLLED Militia.

    The Unorganised or reserve militia is precisely that: a reserve force if the militia needs new volunteers.

    To be a proper member of the militia, one needs to be ENROLLED. That is you are a member of, or ENROLLED in an actual organised militia unit.

    To say that you are a part of the militia because you are a member of the "unorganised militia" is the rough equivalent of saying that you are a member of the US Military because you have a draft card.

    The law is pretty clear "claimed membership in a hypothetical or "sedentary" militia" does not give you Second Amendment rights. United States v. Hale, 978 F.2d 1016 (8th Cir.1992).

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  16. I didn't say it wasn't valid. Your interpretation and mine are quite different. To use the "act" to justify anti-government militia groups is disengenuous and ludicrous. And to say that these groups are sanctioned by our government is a total misread of the "act". That is why I wrote about semantics.

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  17. But you all are saying, Sebastian, that it's O.K. to form an armed militia. What's that all about? You simply can't justify it.

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  18. Nonsense. A gun killed her husband- or rather the bullets coming from the gun. Give it up. I will not change my language on this one. I know that my brother in law killed my sister. I also know that it was the bullets from the gun that caused her death.

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  19. Thanks, Laci. That is the point I am making but it is simply not believed by the above comments. I think it's pure rhetoric on their part because they want to harass me into submission or get me to say something they can blog about.

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  20. I agree with japete that the Militia Act of 1792, or whatever it was, has nothing to do with us in 2010. This is the same logic I apply to the Most Holy 2nd Amendment. These ideas were written about things which simply do not exist today.

    I like what Sebastian pointed out that the militia we're talking about in these different laws is totally different from the militia movement. One has nothing to do with the other. The militia fanatics try to grab a little credibility or justification by referring to these Acts, but it's false.

    Just like the modern day gun owner who tries to claim the 2nd Amendment has something to do with his owning a gun. I don't buy it, in spite of what the Supreme Court recently ruled, by the slimmest of possible margins and due to the powerful and immoral influence of the gun lobby.

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  21. To be a proper Militia under US Law, in particular the COnstitution, the Militia must be organised under the powers in Article I, Section 8, Clause 16:
    To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

    This is precisely what brought about the Second Amendment since you will see the word arming is highlighted. Congress has the power to arm the militia as well as provide for its organisation.

    See Justice Stevens Heller and McDonald dissents.

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  22. Laci - See the 1792 militia acts, which plainly state that citizens are to ARM THEMSELVES prior to appearing for militia duty.

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  23. To be a proper Militia under US Law, in particular the COnstitution, the Militia must be organised under the powers in Article I, Section 8, Clause 16.

    And yet we have an unorganized militia under the current U.S. code, so clearly the militia need not be organized. Try again Laci.

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  24. I agree with japete that the Militia Act of 1792, or whatever it was, has nothing to do with us in 2010. This is the same logic I apply to the Most Holy 2nd Amendment. These ideas were written about things which simply do not exist today.

    The entire Bill of Rights was written during that time period. Under your and Japete's "logic" the whole damn thing is anachronistic and should be discarded.

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  25. The law is pretty clear "claimed membership in a hypothetical or "sedentary" militia" does not give you Second Amendment rights. United States v. Hale, 978 F.2d 1016 (8th Cir.1992).

    That is because 2nd Amendment rights come from being a citizen of the United States. You don't automatically lose your right to keep and bear arms when you turn 46 and are no longer considered part of the militia. The Heller decision also clearly defined the right to keep an bear arms as an individual right separate from militia service.

    Also you don't lose rights, ANY rights, because someone views you as "dangerous". You lose rights by being convicted of a felony in a court of law.

    And japete, I'm sorry your sister was killed by her husband. It would not make your loss any less painful had he used his bare hands or a belt to strangle the life out of her. Blame the murderer, not the tool.

    I've had to deal with several suicides, and the most hideous was a suicide where a nurse hung herself by her own belt. I can only imagine the inner pain she felt as she felt the nylon tighten around her neck as she relaxed her legs and willed them not to take the strain off her neck. On the other hand, the two gunshot wounds to the head had to be relatively instantaneous.

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  26. Laci, Article 1 Section 8, Clause 16, To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

    That pertains only to the Federal Militia called into Federal Service. As noted in Heller the second part of the 2nd Amendment provides that States have the right to form their own militias. Each state is a little different about how it goes about that, some more liberally than others.

    The arming portion you highlighted has to do with providing arms to those who do not have their own. Various militia acts throughout our history have dealt with this problem. However even as late as the Civil War state units on both sides accepted private arms into service.

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  27. Yes, anonymous- that was in 1792. Did you remember it is now 2010? So which militia duty are you planning to appear for? I believe National Guard members arm themselves once they get to their post.

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  28. Yes - anonymous- I'm so sorry you trotted out that tired old argument about my brother-in-law being able to kill my sister with his bare hands. That has been addressed before. You have no idea what happened at the murder scene so stop speculating. That is such nonsense. A belt? Yes, sometimes people do that. Guns are so much more lethal and effective as the facts show. Don't reply to this please. It only makes me angry and doesn't serve any purpose at all. I will not print any reply. It doesn't deserve even this one. You guys are so disrespectful to victims and so unfeeling. I just wonder how you would like to hear that your wife could have been killed just as easily with a nice lamp or a candlestick. You wouldn't. Stop with this line of argument. It doesn't work.

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  29. " The arming portion you highlighted has to do with providing arms to those who do not have their own. Various militia acts throughout our history have dealt with this problem. However even as late as the Civil War state units on both sides accepted private arms into service."

    And aren't the National Guard troops the state militias to which you refer? Or what do you mean if not that?

    Aren't we talking about what's going on today? Are you defending armed militia groups here? I can't tell if that's what you mean. As I said before, there is no sympathy among the general public or politicians for armed anti-government militia groups. In fact, if anything, the government is probably keeping a pretty close eye on any groups they know of. You will certainly not convince me so it would probably be a good idea to stop trying.

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  30. I think some of the confusion might come from a lack of understanding what armed militia groups have to do with regular gun owners. Are you suggesting that any significant portion of gun owners are violent right-wing militia members? I don't think that's the case.

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  31. No, I am not suggesting that. I am, however, wondering why so many of those responding here appear to be defending the "unorganized" militia, which to me, is the anti-government armed militia groups who I, and most others, consider to be dangerous and treasonous. I don't think it is a significant number. I believe it is a small number of gun owners but then, Timothy McVeigh was only one who did serious damage. To defend that sort of unorganized militia is just nonsensical to me.

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  32. "I am, however, wondering why so many of those responding here appear to be defending the "unorganized" militia, which to me, is the anti-government armed militia groups”

    You think that because you aren't paying attention. We have explained over and over what the Militia is. It's you that gets all sidetracked into the McVey's and the Aryan Nation types. One starts to wonder if you secretly believe that all gun owners (except hunters who keep their guns locked up and the ammo separate) to be wild eyed, anti-government racists. That would explain your treatment of us as reflected in the laws you wish to have passed.

    Your organization (the Brady Campaign) keeps pretending that the "Militia Clause" of the 2nd Amendment only applies to the National Guard. We keep telling you that the Militia also includes “We the People,” the rest of us. All you have to do is read Title 10 US Code. The Militia is me. It is the guy next door. It is your kids, husband, and the guy you shook hands with yesterday. Given the state of Civil Rights legislation, one could make a case that exempting women or the aged is unlawful discrimination. That makes YOU a member of the Militia. Do you suddenly feel an urge to blow up a federal building or to kill blacks and Jews? Neither do we.

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  33. The "unorganized" militia is a specific group of the population called out in an old law. It's totally unrelated to the nuts who want to play soldier.

    When people trot out this relic (which, they're right, is still law), they're usually responding to the argument that the 2nd amendment only covers the militia. I don't think most intend to use it as a justification for groups of wannabe-soldier nutters. If they do, they are wrong.

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  34. That is one of the most ridiculous posts I have read on my blog. Come on, are you serious? Just to set the record straight, my children and husband are NOT, nor ever will be a part of a militia group. My friends as well. I don't know who your family and friends are but they sure as heck are not the people I hang around with.

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  35. Yes, anonymous- that was in 1792. Did you remember it is now 2010? So which militia duty are you planning to appear for? I believe National Guard members arm themselves once they get to their post.

    What part of the bill of rights has become outdated since 1792?

    The Heller decision has decided that the right to keep and bear arms is an individual right, same as the right to freedom of religion or freedom of speech. No militia service required or needed.

    The National guard is part of the militia, not all of the militia. You have already referenced the applicable laws that explain that the militia is more than the National Guard. You have already been shown that Federal law regarding the militia has been updated since 1792.

    I would much rather see the US fall under a Swiss model of militia service, but the very idea of normal people keeping machine guns in their home? That probably terrifies you.

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  36. Yup, it sure does and if you think there is support for that one, you are very mistaken indeed.

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  37. Anon, you are correct that the founders intended a Swiss style military where the regular army would be very small and limited to primarily training and administrative tasks. The bulk of the defense force is formed by part timers who give up their time to perform their duties.

    OK, one thing about the Swiss Military is that they do keep their weapons in their house. They are given a packet of ammunition which they arre only to open if called to duty. There are also very stiff penalties for using the weapon outside of militia service.

    Likewise, the only people who are allowed to have these weapons are actual members of the Swiss military. Article 58.1 of the 1999 constitution states that the army is "in principle" organized as a militia, allowing for only a small number of professional soldiers. The army was downsized in 2004, to 220,000 men ("Armee XXI"), including the reserves. Given the 2009 population of Switzerland was 7,782,900, the militia is about 3% of the total population.

    That means only 3% who are actively in service can keep assault rifles in their homes.

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  38. “They are given a packet of ammunition which they are only to open if called to duty. There are also very stiff penalties for using the weapon outside of militia service.”

    Not true. The ammo they are given is strictly for emergency use (German invasion and the like) It is 50 rounds of 5.56 and is supposed to be enough for the soldier to get to barracks and resupply. Other ammo is available over the counter, and is subsidized by the Swiss government. You need ammo to compete in the Swiss marksmanship competitions. Screwing off with your militia rifle will get you in trouble, but it isn’t considered misuse to take it to the range and practice or compete with it.

    “Likewise, the only people who are allowed to have these weapons are actual members of the Swiss military. “

    And those who have completed their service. Those discharged may elect to keep their rifles, which are modified at the factory to be semi-auto only.
    Watch this video.
    http://www.youtube.com/watch?v=6nf1OgV449g
    You may ignore the editorial title given to the video. I don’t think we can make the case that assault rifles in closets cause lower crime rates. We can conclude that they don’t cause higher crime rates though.

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  39. Good luck offering a substantive counterpoint to that Laci.
    The facts, as usual, are on our side.

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  40. Why? Sean didn't say anything that contradicted me: the assault weapon is only owned by members and former members of the Swiss military.

    They are not owned by those have not served in the military.

    Screwing off with your militia rifle will get you in trouble, but it isn’t considered misuse to take it to the range and practice or compete with it.

    Which is related to Militia service.

    So, your point is?

    And if we want to get into it, the Swiss army is under the Federal Department of Defence, Civil Protection, and Sport.
    http://www.vtg.admin.ch/

    No only does one have to be able to shoot, they need to be in good health. People are determined unfit for service if they are incapable of "satisfying physically, intellectually and psychically requirements for military service or civil protection service and being capable of accomplishing these services without harming oneself or others". These people are exempted from service but pay a 3% additional annual income tax until the age of 30, unless they are affected by an actual disability. Almost 20% of all conscripts were found unfit for military or civilian service in 2008; the rate is generally higher in urban cantons such as Zurich and Geneva than in the rural ones.

    So, no. Not every Swiss citizen is entitled to own an assault rifle: only those who are part off the Swiss military.

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  41. From:
    http://en.wikipedia.org/wiki/Gun_politics_in_Switzerland

    When their period of service has ended, militiamen have the choice of keeping their personal weapon and other selected items of their equipment. In this case of retention, the rifle is sent to the weapons factory where the fully automatic function is removed; the rifle is then returned to the discharged owner. The rifle is then a semi-automatic or self-loading rifle.

    This is a choice and not mandatory.

    here is a regulatory requirement that ammunition sold at ranges must be used there.

    You will find that firearms use is still regulated in Switzerland. For example:

    Buying guns
    Conditions under the 1999 Gun Act

    * To purchase a firearm in a commercial shop, one needs to have a Waffenerwerbsschein (weapon acquisition permit). A permit allows the purchase of three firearms. Everyone over the age of 18 who is not psychiatrically disabled (such as having had a history of endangering his own life or the lives of others) or identified as posing security problems, and who has a clean criminal record (requires a Criminal Records Bureau check) can request such a permit.

    * To buy a gun from an individual, no permit is needed, but the seller is expected to establish a reasonable certainty that the purchaser will fulfill the above-mentioned conditions (usually done through a Criminal Records Bureau check). The participants in such a transaction are required to prepare a written contract detailing the identities of both vendor and purchaser, the weapon's type, manufacturer, and serial number. The law requires the written contract to be kept for ten years by the buyer and seller. The seller is also required to see some official ID from the purchaser, for such sales are only allowed to Swiss nationals and foreigners with a valid residence permit, with the exception of those foreigners that come from certain countries (Croatia, Bosnia, Macedonia, Turkey, Sri Lanka, Albania, Algeria), to whom such sales are not allowed even if they do have a residence permit. Foreigners without a residence permit or from countries on the ban list must ask for a special permit.

    Additionally Swiss gun law has been modified by the Changes due to the Schengen treaty.

    The rules laid out above were changed on 1 December 2008 as Switzerland joined the Schengen treaty; and all member countries must adapt some of their laws to a common standard. Following the draft of the Swiss government for the new Waffengesetz (weapons law), these points will change:

    * Unlawful possession of guns will be punished.

    * Gun trade among individuals will require a valid weapon acquisition permit: this is, from a Swiss point of view, a radical restriction that is assumed will undercut private gun trade dramatically.

    * Every gun must be marked with a registered serial number.

    * Airsoft guns and imitations of real guns will also be governed by the new law.

    * Only one weapon may be purchased per weapon acquisition permit: Presumably, this will dry out the market for relatively cheap used guns, including popular collector's items such as Swiss army revolvers from the late 19th/early 20th century.

    * Weapons acquired from an individual in the last ten years (which did not require a weapon acquisition permit) have to be registered. As a central weapons register was politically unfeasible, the authorities hope to get an overview of the market through this registration requirement.

    * While the above mentioned "free arms" remain exempt from the weapon acquisition permit, the vendor is required to notify the local arms bureau of the sale.

    Again, your point is????

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  42. Oh, I missed adding that the issuance of ammunition packets to reservists was stopped in 2007 due to safety concerns.

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  43. Since the Schengen treaty and resulting Schengen Area relates to trade in the European Union, that probably went beyond the notice of the gun guys.

    That's too bad, since it created the Schengen Zone, which is a "borderless" zone for trade. In so doing, it required that some laws were "harmonised" and create a common policy for various items: in this case, firearms.

    In so doing, Swiss firearms law was tightened. Not that it was unrestricted prior to Schengen, but it has become far more restrictive since.

    The lesson for the US would be that US gun laws would be tightened in a manner similar to the Schengen Treaty.

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  44. Laci moves the goalposts. Why am I not surprised?

    "Likewise, the only people who are allowed to have these weapons are actual members of the Swiss military."

    and everyone who finishes his militia service and elects to keep his rifle.

    "That means only 3% who are actively in service can keep assault rifles in their homes."

    again, AND those who have kept their (now semi-auto) rifles after completion of their service. (or were you trying to play the name game - assault *rifles* vs. *weapons* that your side loves so much)

    "there is a regulatory requirement that ammunition sold at ranges must be used there."

    there is more about that in Wiki...
    "Technically, ammunition bought at the range must be used at the range, but according to David Kopel "the rule is barely known and almost never obeyed.""

    In your original post you pretended that there were very few military rifles in homes, and none in homes without active duty (active militia, really) soldiers. You were wrong.

    I think that the US should adopt a similar system. After anyone in the military gets an Honorable discharge, they get given their M-16 to take home. I'd let them keep the three round burst trigger though. I would remind them that the use of a machine gun in a crime of violence results in a 30 year mandatory minimum prison sentence.

    http://www.law.cornell.edu/uscode/18/924.html

    (B) If the firearm possessed by a person convicted of a violation of this subsection—
    (i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or
    (ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.

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  45. The Swiss government agency with control over the military:
    Federal Department of Defence, Civil Protection and Sport
    http://www.vbs.admin.ch/internet/vbs/en/home.html

    We provide security and physical activity: The Federal Department of Defence, Civil Protection and Sport (DDPS).

    The "Swiss Gun Culture" isn't merely about shooting, but military preparedness.

    The Federal Office of Sport FOSPO in Magglingen promotes sport and physical exercise in Switzerland and its positive, useful and necessary role in society. It is a centre for services, education and training for Swiss sport and a sport scientific centre of excellence. Furthermore it establishes optimum conditions for sports facilities of national importance.

    In other words, not only does one need to be able to shoot, one needs to be physically fit to serve in the military.

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  46. Are you suggesting that the Swiss government comes along and collects rifles from the guys who get old and fat? Or are you suggesting that a person's right to keep and bear arms should be contingent on passing a physical?

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  47. Sean, no one who has not served in the Swiss military is entitled to one of these rifles.

    Are you arguing with that???????????

    The video said that 200,000 rifles were in circulation and wikipedia mentions 420k. The estimated population of Switzerland in 2009 was 7,782,900. Let's be generous and say 8m Swiss own 420k assault rifles. You come up with the percentage. I'll be generous and say 20% of Swiss households have assault rifles.

    Not a really big amount of them in circulation.

    I also notice that you did not address that one needs to acquire a permit to own firearms in Switzerland.

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  48. Actually, if we are playing name games, Sean, it's you who are guilty. Is a service weapon which has been transformed to semi-auto an assault weapon. How many times has the pro-gun crowd said it isn't?

    Of the fully automatic weapons, only those who are actively serving can possess them. The people who are no longer in service need to have them converted to semi-automatic fire before they take possession.

    Is Dave Kopel a Swiss citizen? I believe he said the 5-4 Heller decision was unanimous.

    I trust him as far as I can throw him for his expertise on Swiss law. The Swiss won't cross the street if no cars are coming unless they are at a cross walk with the light.

    When Friedrich Leibacher went to the Vaud parliament building and killed 14 people before killing himself in 2001, He didn't use his personal army issue weapon, but a private version of the army issue rifle!

    Get the picture??????

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  49. Sean, I'm not suggesting anything. It's Swiss law.

    The only people who own these weapons are current or former service members.

    That would mean only those physically fit to have been able to serve. That is "satisfying physically, intellectually and psychically requirements for military service or civil protection service and being capable of accomplishing these services without harming oneself or others".

    The Swiss right to arms only applies to those who have had some contact with the Military: THAT IS CURRENT OR FORMER MEMBERS OF THE MILITARY.

    And yes, under the 1999 Gun Act, one needed to have a Waffenerwerbsschein (weapon acquisition permit)to purchase a firearm in a commercial shop. Everyone over the age of 18 who is not psychiatrically disabled (such as having had a history of endangering his own life or the lives of others) or identified as posing security problems, and who has a clean criminal record (requires a Criminal Records Bureau check) can request such a permit. Requesting does not guarantee issuance.

    See: http://www.admin.ch/ch/f/rs/514_541/index.html

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  50. And, yes, since the Second Amendment refers to a Swiss Model Military, the right to keep and bear arms is indeed related to a military physical.

    And military discipline.

    And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

    Joseph Story, Commentaries on the Constitution 3:§§ 1890--91

    Got that Militia Discipline?????

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  51. "no one who has not served in the Swiss military is entitled to one of these rifles"

    you are arguing a point no one was disputing.

    It was when you were making up the stuff about people losing the rifles when they got out of the military or implying that taking the rifle to the range for practice and competition was not allowed, or when you implied that actually having ammunition for the rifles was unusual, that you were wrong.

    So basically what we have learned is that the Swiss demand 18 weeks of basic training and a few weekends of service every now and again. Because of the nature of the Swiss military, the militia is asked to keep their rifles at home along with some emergency ammo to defend themselves in case of sudden attack. They are also encouraged to practice with their rifles by subsidizing the costs of military ammunition and by frequently holding rifle competitions.

    The whole point of our bringing up the Swiss model is not to suggest that we re-organize our military around that model, but to point out that the mere possession of military grade firearms by large portions of the population does not lead to mass murder and mahem in the way many people suggest it would.

    We keep saying, and you keep ignoring, it isn't the weapon, but the heart that guides the hand holding that weapon. If you can find an easy and reliable way to identify those persons who are likely to commit crime, by all means, let us know.

    We know, based on the Swiss experience, that passing out rifles that would be classed as machine guns under US Law does not lead to mass murder. People like you should focus on the PEOPLE who commit crimes rather than the tools they use.

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  52. I think you missed some major points here, Sean. Laci may want to respond

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  53. Actually, there is an initiative to ban the storage of service rifles at home:
    http://www.swissinfo.ch/eng/politics/Parliament_rejects_tougher_gun_laws.html?cid=9126536

    Note the Section:
    Tighter regulations

    Providing free arsenals is just one of a series of recent tighter national measures. Soldiers who wish to keep their gun after completing their compulsory army service will now have to present a weapons acquisition permit.

    The government has also called for earlier detection of soldiers who represent a potential threat.

    And most active soldiers are not allowed to keep munitions at home, since a ban on the practice was agreed by parliament in December 2008. Ammunition is now mainly stored in central arsenals.

    To justify its opposition to a national gun register, the government says every new purchase is now registered with a cantonal arms office. Gun permits are issued for authorised weapons, while hunting and sports rifles only have to be announced.

    See also: http://www.spiegel.de/international/europe/0,1518,480545,00.html

    The problem is that the Swiss Model requires service, there is no unorganised militia force. One is either a full time member or reserve member of the Swiss Army. The BS myth about claiming to be a member of an "unorganised" militia carries no weight in Switzerland.

    The Swiss have had tighter gun laws in some areas than the US. Additionally, The Schengen Agreement has led to tighter gun laws in Switzerland regarding the acquisition of firearms.

    I found the transcript of the video you posted, Sean, it ends with:
    Tobias Schnebli is an activist with the Group for Switzerland without an Army.

    TOBIAS SCHNEBLI: You do have studies that show that having firearms so easily available in every home does augment cases of abuse of this. Availability of firearms and military firearms in Swiss homes is one part of the problem. It’s not the whole problem that’s for sure, but there is no military justification for this tradition to be kept when we see the keeping of this tradition does facilitate these cases of abuse. Every case of abuse is a case too much...

    The initiative to ban guns will likely go to a national vote in a couple of years.

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  54. You are reciting a myth perpetuated in the US media. According swissinfo.ch:

    It’s wrong to believe that “today the Russians may cross the River Rhine in the middle of the night and the Swiss soldiers will have to defend themselves from their homes using their guns,” replied Tiana Moser from the Liberal Green Party.

    “A gun’s place is in an arsenal, not in the bedroom,” added Chantal Galladé from the centre-left Social Democratic Party.

    Some experts agree. "The availability of weapons is a risk in terms of threats which may be carried out," court psychiatrist Josef Sachs told swissinfo.ch.

    Threats are more commonly acted upon at home, spontaneously, he added: "Someone’s own military-issue weapon or their father’s may be used."


    The Swiss people’s initiative against gun violence, signed by 106,067 people, was launched on February 23, 2009.

    The government rejected the proposal on December 16, 2009. It will be discussed in the House of Representatives on June 17 and in the Senate during the autumn session. It could go to a national vote in February 2011.

    Launched in February by 75 organisations, including the centre-left Social Democratic Party, the Green Party and a number of pacifist organisations, the initiative calls for army weapons to remain in barracks and for a national gun register to be created. It also wants to ban private individuals from buying or owning particularly dangerous guns such as automatic weapons and pump-action shotguns.

    If it can happen in Switzerland where the Militia culture is far firmly grounded than the US...

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  55. Anonymous said, "The entire Bill of Rights was written during that time period. Under your and Japete's "logic" the whole damn thing is anachronistic and should be discarded."

    Not true. That's not what I think at all. The 2nd Amendment and the 3rd Amendment definitely fall into the anachronistic hole. The others don't. Free speech and freedom of religion work today just as they did then, just to offer a couple examples.

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  56. I agree with MikeB. The Second and Third Amendments (there is a reason those two are together) were written in a time when there was a strong fear of standing armies. In fact, when most quotes from the founding fathers are read in their entirity, one finds that the fear of standing armies was the impetus for the Second Amendment.

    If one is truly able and willing to give the commitment necessary for a militia system, then the Second Amendment is wonderful. But most people didn't want to make the commitment. I remember being on a gun mail list when someone talked about having a day to celebrate the Second Amendment and I mentioned that there already was one: the muster day.

    But the muster day has gone the way of the dodo and we should realise that with a large standing military, the Second and Third Amendments are quaint reminders of a time long gone.

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  57. Btw, here is the webpage for Group for a Switzerland without an Army which the Swiss movement for gun control.

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  58. here's a better answer to your comment about Swiss Arms and domestic safety. From 24 Hours, a Swiss Newspaper.

    The 2.3million firearms circulating in Switzerland are an enormous danger to safety. The article goes on to say that availability of firearms contributes to the increase in the number of suicides, murders, and threats of violence. Switzerland leads in the countries having rates of very high domestic violence, almost the level of the United States.

    It's amusing that one mass shooting and a celebrity shooting could result in such an outcry considering that usually nothing happens in the USA!

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  59. "and we should realise that with a large standing military, the Second and Third Amendments are quaint reminders of a time long gone. "

    Then have the courage to repeal the Amendments rather than pretend they do not exist.

    While you are at it, see if you can get a Writ of Habeus Corpus against the Law of Gravity. You'll have about the same success.

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  60. Why repeal the Second and Third Amendments?

    Prior to 1939, there was nearly Zero Caselaw dealing with the "individual right" interpretation in US Federal jurisprudence. One of the Members of the Miller Court, Said:
    A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, "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."

    There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

    The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id., at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."

    "The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia - civilians primarily, soldiers on occasion." Id., at 178-179.

    Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia.
    Adams v. Williams, 407 U.S 143, 150 -51 (1972)

    Justice Douglas' replacement on the court wrote in his dissent to the Heller decision:
    The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question.
    The Second Amendment was adopted to protect theright of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution...The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.


    We just don't have the money to thwart the amendment process through the judiciary that the Billionaires who fund the Cato Institute do.

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  61. And while we're at it Sean, you might find this from US v. Rybar, 103 F.3d 273 (3d Cir. 1996) interesting:

    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...

    Rybar boldly asserts that "the Miller Court was quite simply wrong in its superficial (and one-sided) analysis of the Second Amendment." Brief of Appellant at 27. As one of the inferior federal courts subject to the Supreme Court's precedents, we have neither the license nor the inclination to engage in such freewheeling presumptuousness. In any event, this court has on several occasions emphasized that the Second Amendment furnishes no absolute right to firearms.


    I think you will find Rybar an interesting read if only for the composition of the court that decided it.

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  62. Laci continues to blatantly misread Miller.....

    Why am I not surprised?

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  63. Excuse me, anon. can you please back up what you are saying about my misreading of Justices Stevens' and Breyer's dissents with specifics????

    Especially in line with the above quote from Justice Stevens's dissent (Which I will repeat here):
    The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question.
    The Second Amendment was adopted to protect theright of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution...The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.
    Justice Steven's Dissent to Heller Pp 1-2.

    You will find I am correct if you care to actually read the two dissents.

    Otherwise, you are showing your ignorance.

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  64. As for Miller, it wasn't me who said that--It was Justice Douglas.

    Are you saying you know more than Justice Douglas, who was a member of the Supreme Court during the Miller period, who said the following????

    A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, "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."

    There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

    The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id., at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."

    "The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia - civilians primarily, soldiers on occasion." Id., at 178-179.


    You amaze me with your intelligence, Anon, that you know more than Justice Douglas.

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  65. Miller made no ruling about whether the 2nd Amendment was an individual right, and it certainly didn't say anything about it being a "collective right."

    What the Court did say was that Miller's weapon, a sawed-off shotgun, was not an "arm" under the 2nd Amendment. They didn't go any further because Miller was dead by the time the case came up. Sure, they were wrong that a sawed-off shotgun had no militia purpose, but there was no one to argue the point and inform them otherwise.

    Laci omits a part of Miller that fatally damages his assertion of a "collective rights" interpretation. That is, that citizens were expected to appear armed with their own personal weapons. If they, as individuals have no right to keep & bear said weapons they cannot logically appear with them for militia service.

    "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. 'A body of citizens enrolled for military discipline.' 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. "

    Interesting Laci, that you selectively quote Miller because if you read the whole thing, including that which I just quoted, your entire postition becomes intellectually bankrupt.

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  66. I have read the entire Miller decision.

    First off, the quotes are not mine, but Supreme Court Justices, which Anon keeps neglecting to mention. Perhaps, this is due to the fact that he knows the law better than Two of the longest seated Supreme Court Justices: Douglas and Stevens.

    Anyway, The Miller Court said:
    In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

    The problem is that this person quotes dicta which is out of date and doesn't really help their position. Yes, you have a right to a weapon if that weapon is to be used as part of militia service. So, this ends up being fallacious reasoning. His position is that non-militia weapons are covered, which is something that cannot be inferred from the above passage from the Miller decision.

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  67. It seems that you all have pretty much exhausted this back and forth "discussion" about Miller and other Supreme Court decisions. I am not publishing any more comments about this. It is taking way too much of my time to deal with these. Laci has provided some very good reading for us all and seems to be on top of the law here. You may have to "agree to disagree" although you will likely not agree to do so. In the end, the facts win the day and the argument.

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