OT- 2nd Amendment IS an individual right-Officially

Not only do we have the right to shout "Fire" in a crowded theater, we are remanded to do just that when there is a "Fire" there. The issue is taking 'license' is a knowable falsehood executed. If it is true, there isn't a foul. If it isn't there may or may not be one as determined by local police and the local D.A.

If one fails to alert during a fire that lack of an act can bring as bad or worse charge.

Folks have. If it was done, and there was no fire, the person was charged with

1. disturbing the peace
2. creating a riot

3.high mopery in a low mopery zone

1. Malicisous mischief.

Repeately. And evidently what you got out of it was different than mine. But then..I was only a cop for a few years, so my grasp of all that legaleze shit is lacking. How long have you had your JD?

Or the Mk182 tactical handgrenade. Remember it? Total kill radius of

500 meters. Throw range of 20 meters. Why is it you anti-gunners all seem to come up with the Nuke Weapon when discussing the 2nd? Not even al Qu'da has been able to field one.

Sure Ed.. it might. Right after pigs fly out your ass. Reread Miller again.

Gunner

"Gunner, you are the same ridiculous liberal f--k you ever where." Scipio

Well, where do you think the First Amendment comes in, other than in a defense? And how successful has a claim of a First Amendment right been in such circumstances?

That's the question. That's the value of a "right" in such a situation. It provides a defense. Only here, it doesn't. So your right has limitations, as I said.

How long since you stopped beating your wife?

Here's what the "brief" (actually, a "memorandum," as the DOJ calls it) says. They really work themselves into a lather to get the militia out of the equation. See if you get it this time:

"In any event, any possible doubt vanishes when 'right' is conjoined with 'the people,' as it is in the Second Amendment. Such a right belongs to individuals: The 'people' are not a 'State,' nor are they identical with the 'Militia.' Indeed, the Second Amendment distinctly uses all three of these terms, yet it secures a 'right' only to the 'people...'"

"...Similarly, the Constitution gives distinct meanings to "the people" and the "Militia." Again, the Second Amendment itself is a notable example, referring to the "well regulated Militia" but granting the "right" to "the people." The Constitution's other references to "rights" of "the people," noted above, cannot plausibly be construed as referring to the "Militia." In addition, when granting governmental power over the militia, the Constitution speaks of the militia expressly, without any reference to or suggestion of the broader "people." (43) And the Fifth Amendment's Grand Jury Clause, which distinguishes between all "person[s]" and those serving in the army, navy, or "the Militia, when in actual service," indicates that where the Constitution addresses rights that turn on service in the militia it does so expressly..."

" The only truly "collective" use of the "the people" at the time of the Founding was to refer to the people as they existed apart from government or any service to it. The Declaration of Independence refers to "one People" dissolving their political bonds with another and forming their own nation, and "We the people" created the Constitution in ratifying conventions chosen "by the People" of each State. (44) Thus, even in this context, the "people" are distinguished from "the government" or "the State"; nor can the term plausibly be limited to the "Militia." And when "the people" appears in the phrase "the right of the people" in the Constitution, we conclude that it indicates a personal right of individuals, whether that be a right to assemble and petition, to be secure in one's person and property, or to keep and bear arms."

====

Then there's an entire section, hundreds of words, under the title "The Limits of Prefatory Language," in which they attempt to prove that the "militia" phrase (they call it a "clause," incorrectly) has no meaning other than as a sort of tiebreaker, to be used when the meaning of the "operative portion" is ambiguous. But they say it is not ambiguous, and quote Chancellor Kent on the subject: "...when the words of the enacting clause are clear and positive, recourse must not be had to the preamble."

Maybe now you get the picture. The DOJ spent hundreds of words in that memorandum separating the militia from the "operative portion" of the Second Amendment, coming close to calling it irrelevant. Since they claim the "operative portion" is clear, in fact, they *do* suggest that the militia phrase is irrelevant.

And that's what I meant. Did you actually miss it, or were you napping when you read those parts?

I don't know. If you showed up at muster with a Davy Crockett that you could push by yourself, in a grocery cart, wouldn't you be showing up with "personal arms"?

Too big for grocery carts. Not "personal arms," unlike a Davy Crockett nuclear missile, the ultimate Fourth of July spectacular.

Another brilliant invention from the fathomless resources of military-industrial imagination! d8-)

First, I'm not an anti-gunner. Second, the question, facetious as it may be, is a reasonable reaction to the nutbags who talk about bringing their personal howitzers down to the village green for militia drills. You may recall that we had such a discussion, in which such a suggestion popped up from the purist school of the 2nd Amendment, just a month or two ago.

So, Cliff or whoever asked the question had a good point: Where does it end? .30-cal machine guns? .50-cal machine guns? 20-mm Vulcans? It's not a bad question, if you don't let your emotions get in the way.

What for? I thought that the NRA/ILA, years ago, said that the Miller case was incorrect (it was dicta, BTW, not part of the decision itself), that sawed-off shotguns actually make fine militia weapons?

And if they're reversing themselves now, and saying that Miller was correct in distinguishing weapons appropriate for militia use, aren't you and the DO putting yourselves in a wringer if you try to use Miller in an argument in which you're saying the Second Amendment isn't about providing for a militia? It sounds like shooting yourself in the foot.

This falls in the category of being careful what you wish for, you may get it.

Evidently you missed the post where I cited the 6 Renquist decisions that showed the 2nd was an individual right? Need me to repost it?

Gunner

"Gunner, you are the same ridiculous liberal f--k you ever where." Scipio

Again I disagree.

Gunner

"Gunner, you are the same ridiculous liberal f--k you ever where." Scipio

Of course the above mentioned weapons are appropriate for militia useage. As would fighter aircraft, armored vehicles and warships and in fact, as Ive stated, armed vehicles were used by militia forces during the time of the framing of the the Constitution. Or are you making the claim that radio, tv, telephone and high speed printing presses are not covered under the 1st amendment, only podiums and Gutenberg style single sheet presses would be? "the sword and every other terrible instrument of the solder." ring a bell?

The court did NOT rule the sawed off shotgun to NOT be a proper militia tool. It stated it didnt know one way or another and remanded it back to a lower court to find out. As it in fact WAS used extensively in warfare, including in the trenches of WW1, it is historically a weapon used in war, and hence, a proper militia weapon and protected. Miller disappeared and the lower court dropped the case at that point so there was no finding.

Gunner

"Gunner, you are the same ridiculous liberal f--k you ever where." Scipio

Really? I talked to the county prosecuter back in

1972 for a paper I was writting for college. I asked exactly what my legal obligations would be if I saw, but did not start, had nothing to do with a fire in a crowded place. Her response was that I had NO legal obligation to say or do anything. That I could wak or even run away from the fire. l But that I had a absoute moral or ethical obilgation to warn people. My comment was "Moral and ethical obligations don't concern me". This was several years after the deaths at the Who concert in Cinci, Ohio were 11? people where kill in a crowd "surge". In Kentucky thre is a law requring one to stop and render aid when witnessing, or coming upon an road accident. But I have not been able to find a single case where any action was taken for not "rendering aid". A LEO told me that the simple statement "I was afraid for my own safety." wouild stop all legal aciton.

Now if you are involved with starting the fire, own the building, work there as an employee, then you would have decrasing legal resbonsibility. For a "guest" or visitor, the DA told me the same line,"I was afraid for my own safety." would stop all legal and civil action.

Looking back at all the crowd/fire events that I have read about, my first act would always be to exit the area with a fire.

Look up the Beverly Hills Supper Club. I suspect the ony way to survive a fire in a crowd is to lkeave as fast as you can. ANY delay will result in you becoming a victum.

You might want to want to call your local DA and ask about the laws in you locality before voicing an opinion.

Terry

Justice Holmes, delivering the Opinion of the Court, Schenck v. US: "But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.''

That's what we were talking about. Shouting "fire" in a crowded theater, when there is no fire, is the example used by the courts over and over again to demonstrate the limitations of rights.

-- Ed Huntress

Ok, so a Vulcan, which you'd have to carry to your militia duty in a pickup truck, is appropriate for militia useage. Why not a Davy Crockett missile with nuclear warhead? It's a heck of a lot smaller and easier to carry.

That's the question. If you have no problem with a Vulcan, why do you get upset about a Davy Crockett?

That has nothing to do with the point. The point is that, in the Miller case, the Court was evaluating a 2nd Amendment claim on the basis of whether the gun was appropriate for militia use. If that's the fulcrum of deciding such a case, then the Court's statements support the idea that the 2nd's protections are based on the ability to arm a militia.

That's why I said to be careful about what you wish for. If the militia issue remains as the deciding factor, then it undercuts what the DOJ's memo attempts to do, which is to divorce the individual right from anything to do with the militia. That flies in the face of Miller.

That is to say, it flies in the face of the dicta often quoted from Miller.

Using Miller to defend an individual right over the heads of the states is self-defeating, in other words.

If you disagree, you're disagreeing with the Dept. of Justice, not with me. Their words are clear on the subject. They said that the militia phrase has nothing to do with the individual right.

-- Ed Huntress

Ed, This is all something of a non issue in the end in any event unless I am mistaken. Get an FFL and you can legally buy and own very nearly anything. You must also go through the appropriate state licensing procedure but in the end I don't think that a persistent buyer would be denied. Is this not correct? A clear example of government "taking our guns away" is Australia. That isn't happening in the US and the only ones suggesting this be done are a small group on the very fringe. This entire argument seems to me to devolve to licensing and is not therefore a constitutional issue at all. Please feel free to correct me if I am wrong - a simple yes or no will do as I really couldn't care less about the fine points you folks seem to love to argue ad nauseum. This is really a bunch of politically motivated crap is it not?

I let this one slide the first time, since you addressed Jim and I didn't want to interrupt , but two times is too much.

You misunderstand, or you've been mislead, about the second Justice Harlan's remarks that were quoted in most of those cases. He called the 2nd Amendment a "pinprick," and listed it among the other "pinpricks" that are listed in the Bill of Rights. His point was that individual rights are a continuum, not only those things that fall into a specific list.

This is the famous defense he made for extending the rights covered by the

14th Amendment. It's also the basis for the Griswold v. Connecticut decision and the finding for a right of privacy and for dominion over one's own physical body, and thus, for Roe v. Wade.

Harlan made no ruling about the 2nd. Neither did O'Conner or the other Justices who quoted it in several of those six decisions you cite. They were quoting the principle of rights *beyond* those listed in the Bill of Rights. Althought they identify the rights listed, they make no comment about how rulings should be made on any of them.

The quote you borrowed, in other words, is a disingenuous misuse of a case that's been cited in another case. To claim that citing Harlan's 14th Amendment extension is actually an assertion for anything in particular about the 2nd is like saying that any Court that cites the Dred Scott decision is defending slavery.

I'm not going to take this any further. You pluck a quote from some gun blog, without checking it, and then it requires work to show that you're not correct in your statements. I've had enough of it for now, and I'll let the people who have read these exchanges decide if there's any veracity to your claims about Supreme Court rulings.

-- Ed Huntress

As a friend of mine says, Ed: "Smile and nod. Just smile and nod."

Jim

Limititations, or better put, *balancing* of rights of various individuals.

In this case on balances the right to free speech for the shouter, against the rights of the rest of the audience to be molested by a false alarm.

First amendment rights always involve a balancing act. Is a person allowed free speech anywhere, any time? What about in a privately owned mall?

How do the rights of property ownership interact with the rights of the public to voice their opionions about various political matters?

Jim

No, an FFL alone is going to do it. And nothing will get you a nuclear-armed Davy Crockett man-transportable missile. It's covered by other laws and even by international law. But, if you follow the logic of the 2nd Amendment holy-rollers, preventing you from owning any military arm -- at least, a "personal"-sized arm -- would be a violation of the 2nd. They usually get antsy when someone brings up soccer-ball-sized nuclear weapons.

The 2nd is a very important legal dilemma for our entire system of jurisprudence. It goes 'way beyond questions of licensing. As Stanley Levinson suggested by the title of his well-known book, it's "The Embarrassing Second Amendment." For an amateur student of the Constitution like me, it's interesting for several reasons and I once made a pretty good study of it. A lot of scholarship about it has been done since I was reading it, and the result is a real beehive of buzzing going on right now among Constitutional scholars and the courts. It's gone well beyond the issues that were raised 15 or 20 years ago, and the courts are caught on the horns of a real Constitutional dilemma, between principles of jurisprudence (see the brief definition of "stare decisis,"

and extensive scholarship concerning the intent of the Founders over the 2nd Amendment (the DOJ memo we're discussing, for example. It's 98 pages long or I'd suggest that you read it. I don't. )

As for political motivation, I'd say it goes more to the cultural divide that has been such an important topic in the last couple of elections. It reflects two different views of our society, and they generally parallel the red/blue schism. Not exactly, but roughly. There is well-reasoned, well-researched argument on both sides, although it tends to get buried in the b.s. For an outstanding argument in favor of the right to armed personal defense, for example, see an article titled "A Nation of Cowards." It's all over the Web.

But, as you doubtless can see, the issue also is full of stuff written by half-assed amateurs and polemicists. It drives me up a wall, because serious students of it could have a hell of a good discussion about the issues, and what it means for the direction our society is taking. But it's undermined by the crap, which is coming from both sides.

I always run out of steam in these discussions, and I'm about out now. Trying to argue with the endless cut-and-paste b.s. from the gun blogs is exhausting and time-consuming. So my feeling is that the b.s. isn't going to be stopped. You can't reason with it because of the awesome throw-weight of the ill-founded crap that people like Gunner can just cut-and-paste, endlessly. Shoot down one myth, and there are ten more to replace it at the click of a few keystrokes. Now Gunner is referring to Harlan's "pinprick" comments (without knowing he's doing so) and claiming that they constitute support for the 2nd by the Rehnquist court. Jesus Christ, who the hell wrote that? It's all over the web now, pasted from one gun blog to the next.

Anyway, you can't get serious about this in NGs, so I'm bowing out before the tsunami of bullshit drowns us all. Maybe sometime I'll post what I actually think about the meaning of the 2nd and we'll see if I can start a fire by spontaneous combustion.

-- Ed Huntress

Exactly. They're trying to make an operating manual for a car out of

200-year-old instructions for shoeing a horse.

They say you have to come to militia duty with twenty balls and two spare flints. I'd have trouble with that. Maybe they'd let me get away with two balls and twenty spare flints.

Probably.

-- Ed Huntress

individuals.

Watch out. You're showing signs of getting involved in Constitutional history and scholarship. Ask your wife about taking a cure.

-- Ed Huntress

you, sir, epitomize jefferson's reasoning when he said "the people have neither the intelligence nor inclination to govern themselves".

I wouldn't blame you for opting out, at least in this forum. This is a great place to be partisan and a horrible place to search for underlying truths. I think that if the gun issue were as important in general as it is frequently presented we would be clarifying the 2nd with an amendment that removed all doubt. I would hazard a guess that the gun lobby REALLY wouldn't want that, at least now they can make an argument in support of their claim. If we can get the Pres. behind something as silly as an amendment banning gay marriage ( a genuine states rights issue - NOT a federal one ) we ought to be able to easily move something as important as an update of the 2nd. The only exception related to the utility of this group is machining related topics. Contrary to what has been posted recently, you get excellent and valuable assistance from the participants here any time you post on topic. Posters selflessly take the time to be helpful and in some cases the time involved is significant. I must have a hundred or more posts archived that are works of educational art and must have taken considerable time to distill years of experience down to a cogent and useful format. Maybe this helps explain the ratio of OT posting. A quick search will frequently yield up an old Kirk Gordon or KG post that covers the base in question ten times over. And they are just two of the prolific ones. Many other contributors lack Kirks verbotosizer but make a valuable contribution none the less and were it not for the OT posts most wouldn't continue to look in at all over the long run. The wars keep people coming back just to see who is left standing and end up being useful as a consequence.