« "French, Malians secure Timbuktu in rebel-held north" Reuters | Main | "Form, not content" Baradei »

28 January 2013

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

oth

The Amendment says "A well regulated militia being necessary to the security of a free state" and not "A well regulated militia being necessary to the security of the United States"

The Constitution is quite clear when it means state and nation. But I guess Textualism is relative, as Scalia has shown repeatedly.

Nowhere does anyone claim The Constitution created militias. People do claim what they institutionalized.

no one

I'm probably jut being a simpleton here, but if the 2A only refers to a right to bear arms in a militia setting - as gun grabbers want it to - then isn't the 2A de facto stating that the real right is the right to enlist in the National Guard?

Would those denied enlistment (e.g. 4F) have grounds for a suit for relief?

It's going to get very interesting in the next year or so.

William R. Cumming

Under Title 32 of the US Code in addition to regulation of the National Guard by that title there is also given authority for each state to establish a Self-Defense force to be utilized when the National Guard is federalized under Title 10 of the US Code!

About a year ago in a diner on Lee Highway in N. Arlington VA about a year ago I was witness to over 20 motor cycle policemen with polished boots, helmets, fire arms and other web gear eating breakfast. Not sure if SWAT qualified but they certainly would have violated the police uniforms in Germany mandated by the US in democratizing Germany after WWII. Not sure how community policing and SWATTING up helps establishingtrust in law enforcement.

I mix the idea of the militia and policing because my experience is that while the National Guard is often deployed in disasters for nominally humanitarian purposes in fact they are a Governor's last line of reinforcement for law enforcement emergencies. Sometimes difficult for those who have been trained as warriors to view citizen and residents from the standpoint of being victims of mother nature or their fellow man.

turcopolier

no one

if the "National Guard of the United States" were the totality of the militia forces and powers of the states you would be correct, but the "National Guard of the United States" is not. pl

turcopolier

oth

"a free state" here seem clearly to mean a free government, but no matter. My point is that the claim that the unorganized militia was protected by the 2nd Amendment for the pupose of protecting slavery is spurious. pl

rossesq

Allow me to address the second closing statement first, as it is germane to addressing the statement preceding it.

RE: “Whether or not the federal government can severely limit the kinds of weapons possessed by the citizens is yet another. The Heller decision makes it clear that SCOTUS thinks there are limits to the extent and "reach" of federal power over citizen ownership of firearms.”

Heller also made clear what SCOTUS thinks about the limits of the Second Amendment: “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The specific question before DC v Heller addressed the ownership, storage, and registering of handguns specifically, and SCOTUS did not rule on other kinds of weapons. But Scalia did go on to say, “Miller’s holding that the sort of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” SCOTUS was clear that the government indeed has the power to limit ownership of kinds of weapons. Your term “severely limit” and their term “dangerous and unusual” are not currently defined and, therefore, open to interpretation and discussion, here and in the public domain.

As to the statement before this one: “Whether or not the states can limit firearms possession is another question.”

Which was addressed in McDonald v Chicago in 2010. Alito wrote, “… Two years ago, in District of Columbia v Heller,… we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense.” … “We have previously held that most provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.” He goes on later to say that when a right set out in the Bill of Rights was held to fall within the conception of due process, the protection or remedies afforded against State infringement should not differ from the protections or remedies provided against the abridgment by the Federal Government, as it “would be “incongruous” to apply different standards “depending on whether the claim was asserted in a State or Federal court.”” SCOTUS believes that the States and the Federal government have the same powers, and the same limits, in matters relating to the Second Amendment.

Fred

"SCOTUS believes that the States and the Federal government have the same powers, and the same limits, in matters relating to the Second Amendment. "

Well if this rationale is good for one amendment then who needs a commerce clause justification for regulating business activities at the federal level since they 'have the same powers and same limits in matters relating the to the" rest of the constitution? That's sure gonna be fun - and profitable - for lawyers. But I digress. Why not just refer to state constitutional provisions on the right to keep and bear arms:

http://www2.law.ucla.edu/volokh/beararms/statecon.htm

If Alabama, Arkansas or Alaska all say no to some new regulation the Federal government requires, I'm sure the 'equal' Federal Government can find some lawyer saying the states are trumped by the supremacy clause. All of which is a bit too much lawyering.

robt willmann

The High Sheriff of Milwaukee County, David Clarke, Jr., who is black, tells the citizens to arm themselves and that there are situations in which they cannot call 911 and wait for someone to show up, and there can be situations in which calling the police would be of no use. Another reason he gave is that law enforcement officers are being laid off and furloughed.

http://www.latimes.com/news/nation/nationnow/la-na-nn-milwaukee-county-sheriff-guns-20130128,0,7854918.story

http://www.politico.com/story/2013/01/sheriff-david-clarke-jr-skip-911-defend-yourself-86801.html

Meanwhile, New York City Mayor and busybody gun control promoter Michael Bloomberg appears to not want to commit to have his personal security guards disarm.

http://www.breitbart.com/Big-Journalism/2013/01/28/EXCLUSIVE-Journalist-Accosted-By-Security-Over-Mayor-Bloomberg-Gun-Control-Question

Mike

I seem to remember reading in the New Testament something about jots and tittles.

turcopolier

mike

Yes, I am sure our constitution seems a trivial matter to many in the UK. Will Scotland have a written constitution? pl

Alba Etie

Col Lang
How should we think about background checks for all gun ownership ? An argument can be made to keep the incompetent & criminally inclined away from firearms with a background check . This an emotional issue for many of us & I do not wish to retreat into 2nd amendment absolutism - but often I wind up there anyway . Lots of privacy issues & other disquieting topics associated with "the gummint controlling my guns " .

Kevin

1100 potential insurgents that do interesting things ... like make lots more insurgents. Obama might really WANT to listen on this one. If the special forces community says no, it's a special type of no.

http://m.washingtontimes.com/news/2013/jan/31/1100-green-berets-petition-against-gun-control/

The comments to this entry are closed.

My Photo

March 2020

Sun Mon Tue Wed Thu Fri Sat
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30 31        
Blog powered by Typepad