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Sun Jul 29, 2012, 02:05 PM

 

Scalia Suggests Women Have No Right to Contraception

Source: Crooks and Liars website

"There's no right to privacy in the Constitution -- no generalized right to privacy," Scalia insisted.

"Well, in the Griswold case, the court said there was," Wallace pointed out.

"Yeah, it did," Scalia agreed. "And that was wrong."

Under the principle of originalism, the Constitution "simple doesn't cover" abortion," he added. "Which means it's left to -- it's left to democratic choice as most things are, even important things like abortion." In its 1965 Griswold v. Connecticut decision, the court found that Connecticut could not prohibit the use of contraception because people have a "right to marital privacy."

Read more: http://videocafe.crooksandliars.com//david/scalia-suggests-women-have-no-right-contrace



AMAZING!

143 replies, 27195 views

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Arrow 143 replies Author Time Post
Reply Scalia Suggests Women Have No Right to Contraception (Original post)
ohgeewhiz Jul 2012 OP
riverbendviewgal Jul 2012 #1
Th1onein Jul 2012 #14
SoapBox Jul 2012 #30
nanabugg Jul 2012 #48
progressoid Jul 2012 #54
roguevalley Jul 2012 #57
MrMickeysMom Jul 2012 #126
Cherchez la Femme Jul 2012 #64
justiceischeap Jul 2012 #68
robinlynne Jul 2012 #76
Igel Jul 2012 #100
woodsprite Jul 2012 #75
smirkymonkey Jul 2012 #89
get the red out Jul 2012 #103
warrior1 Jul 2012 #2
hedda_foil Jul 2012 #16
xtraxritical Jul 2012 #92
Taverner Jul 2012 #3
Suji to Seoul Jul 2012 #67
think Jul 2012 #4
elleng Jul 2012 #5
TahitiNut Jul 2012 #69
1StrongBlackMan Jul 2012 #77
TahitiNut Jul 2012 #81
1StrongBlackMan Jul 2012 #86
JDPriestly Jul 2012 #112
happyslug Jul 2012 #130
elleng Jul 2012 #78
TahitiNut Jul 2012 #82
MsPithy Jul 2012 #84
JDPriestly Jul 2012 #111
TahitiNut Jul 2012 #124
JDPriestly Jul 2012 #128
Viva_Daddy Jul 2012 #6
sarcasmo Jul 2012 #13
heaven05 Jul 2012 #28
unblock Jul 2012 #7
elleng Jul 2012 #10
unblock Jul 2012 #19
Kablooie Jul 2012 #22
unblock Jul 2012 #25
Ikonoklast Jul 2012 #45
Samantha Jul 2012 #36
JDPriestly Jul 2012 #115
savannah43 Jul 2012 #35
JDPriestly Jul 2012 #113
Zoeisright Jul 2012 #8
smirkymonkey Jul 2012 #90
rocktivity Jul 2012 #9
bucolic_frolic Jul 2012 #61
Igel Jul 2012 #104
JDPriestly Jul 2012 #116
rfranklin Jul 2012 #11
sarcasmo Jul 2012 #12
Th1onein Jul 2012 #15
LittleGirl Jul 2012 #34
Th1onein Jul 2012 #50
Occulus Jul 2012 #49
Th1onein Jul 2012 #62
MsPithy Jul 2012 #105
Th1onein Jul 2012 #110
JDPriestly Jul 2012 #117
Th1onein Jul 2012 #140
Arugula Latte Jul 2012 #53
Th1onein Jul 2012 #63
msanthrope Jul 2012 #72
Th1onein Jul 2012 #83
msanthrope Jul 2012 #94
Th1onein Jul 2012 #98
msanthrope Jul 2012 #102
Th1onein Jul 2012 #109
msanthrope Jul 2012 #120
Th1onein Jul 2012 #123
msanthrope Jul 2012 #125
Th1onein Jul 2012 #134
msanthrope Jul 2012 #138
Th1onein Jul 2012 #139
MsPithy Jul 2012 #95
Th1onein Jul 2012 #99
_ed_ Jul 2012 #73
Th1onein Jul 2012 #85
JDPriestly Jul 2012 #118
Th1onein Jul 2012 #133
JDPriestly Jul 2012 #135
Th1onein Jul 2012 #137
JDPriestly Aug 2012 #141
Th1onein Aug 2012 #142
JDPriestly Aug 2012 #143
neverforget Jul 2012 #17
LynneSin Jul 2012 #18
smirkymonkey Jul 2012 #91
Kablooie Jul 2012 #20
Warren DeMontague Jul 2012 #42
AtheistCrusader Jul 2012 #65
Igel Jul 2012 #106
JDPriestly Jul 2012 #121
JDPriestly Jul 2012 #119
doohnibor Jul 2012 #21
AllyCat Jul 2012 #47
libinnyandia Jul 2012 #23
bleever Jul 2012 #24
KatyaR Jul 2012 #26
lovuian Jul 2012 #27
Odin2005 Jul 2012 #29
savannah43 Jul 2012 #31
Myrina Jul 2012 #32
nadinbrzezinski Jul 2012 #33
Warren DeMontague Jul 2012 #40
nadinbrzezinski Jul 2012 #44
nolabels Jul 2012 #97
47of74 Jul 2012 #37
crazylikafox Jul 2012 #38
Warren DeMontague Jul 2012 #39
HockeyMom Jul 2012 #41
47of74 Jul 2012 #55
blkmusclmachine Jul 2012 #43
AllyCat Jul 2012 #46
sakabatou Jul 2012 #51
RKP5637 Jul 2012 #52
Third Doctor Jul 2012 #56
Dawson Leery Jul 2012 #58
progressivebydesign Jul 2012 #79
Bort336 Jul 2012 #59
bucolic_frolic Jul 2012 #60
AndyTiedye Jul 2012 #66
Igel Jul 2012 #107
AndyTiedye Jul 2012 #129
bucolic_frolic Jul 2012 #70
Igel Jul 2012 #108
B2G Jul 2012 #71
primavera Jul 2012 #74
Fresh_Start Jul 2012 #80
4th law of robotics Jul 2012 #87
madrchsod Jul 2012 #88
MsPithy Jul 2012 #93
lark Jul 2012 #96
Frustratedlady Jul 2012 #101
Rhiannon12866 Jul 2012 #114
McCamy Taylor Jul 2012 #122
happyslug Jul 2012 #131
Smilo Jul 2012 #127
and-justice-for-all Jul 2012 #132
truthisfreedom Jul 2012 #136

Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:06 PM

1. and his opinion on Viagara?

Men would have no right to that either, eh?

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Response to riverbendviewgal (Reply #1)

Sun Jul 29, 2012, 02:38 PM

14. I was thinking the same thing.

It's okay to require health insurance companies to cover Viagra, but not birth control, huh? Misogynist asshat.

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Response to Th1onein (Reply #14)

Sun Jul 29, 2012, 03:55 PM

30. Ditto, ditto....

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Response to Th1onein (Reply #14)

Sun Jul 29, 2012, 05:23 PM

48. Any thinking person would realize the Constitution, while a very powerful document is not eternal.

 

When it was written it was intended for white men only and then only the landed white men. It has to be a "living" document to serve this nation otherwise it is a document most miserable.

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Response to nanabugg (Reply #48)

Sun Jul 29, 2012, 06:38 PM

54. Key words: "thinking person".

Those words don't apply to most RWers.



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Response to nanabugg (Reply #48)

Sun Jul 29, 2012, 08:39 PM

57. this man is such a fucking pig. what a complete fucking pig he is. He must have really

hated his mother.

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Response to roguevalley (Reply #57)

Mon Jul 30, 2012, 05:59 PM

126. Maybe his mother was sorry she birthed him.

I mean... would any mother be wishing for birth control after this infestation broke her water?

What a severe displeasure it is to know this creep loves publicity, too.

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Response to nanabugg (Reply #48)

Mon Jul 30, 2012, 12:53 AM

64. Unless you're a white, landed guy

then it's yaaHOO all day long!

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Response to nanabugg (Reply #48)

Mon Jul 30, 2012, 07:24 AM

68. Yes, but Scalia is considered a strict Constitutionalist

meaning the Constitution is not a living, breathing document. It is to be interpreted as written. Kinda like the bible for some folks--you know, the one's that take it literally.

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Response to nanabugg (Reply #48)

Mon Jul 30, 2012, 11:41 AM

76. I'm coming around to the same views. Always thought the constitution was the basis for democracy.

We are in a whole different world now.

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Response to nanabugg (Reply #48)

Mon Jul 30, 2012, 02:43 PM

100. How did it "live" to make it apply to all men?

Amendment.

The difference isn't whether it's sacred an immutable but on the mechanism on changing it. Amendments are onerous, but ultimately a democratic process. Court verdicts aren't democratic, they're oligarchic.

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Response to Th1onein (Reply #14)

Mon Jul 30, 2012, 11:27 AM

75. Then men have no right to a drug-induced erection! n/t

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Response to woodsprite (Reply #75)

Mon Jul 30, 2012, 01:44 PM

89. It would probably give fat Tony a heart attck anyway.

n/t

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Response to riverbendviewgal (Reply #1)

Mon Jul 30, 2012, 02:53 PM

103. He probably enjoys it greatly

I really despise this man.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:10 PM

2. he's out of his fucking mind

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Response to warrior1 (Reply #2)

Sun Jul 29, 2012, 02:46 PM

16. And we thought we'd dodged a bullet with Bork!

Scalia is his fatter twin.

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Response to warrior1 (Reply #2)

Mon Jul 30, 2012, 02:12 PM

92. This is surly the best reason to vote a STRAIGHT DEMOCRATIC BALLOT.

 

We must give the President a chance to appoint to the SC and we must give him a Democratic Senate to approve his appointments.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:15 PM

3. Scalia needs blood clot in the brain!

 

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Response to Taverner (Reply #3)

Mon Jul 30, 2012, 06:01 AM

67. That would imply Fat Tony has a brain, which he clearly does not.

I have never wish Rectal Cancer on someone in my life, but that worthless, redundant pile of cells needs it.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:19 PM

4. But Scalia thinks we have a right to own rocket launchers

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:19 PM

5. Really not amazing;

what's amazing is that people will be surprised.

He considers himself to be an 'originalist,' that is, Constitution means TODAY what Founders thought it meant THEN, 200+ years ago.

Justice Breyer on 'Originalism:'

Breyer readily acknowledges that another reason -- not the main reason -- he wrote the book is to counter the concept of originalism. That's the view espoused most of all by Justice Antonin Scalia that the Constitution is frozen in time, and its original words and meaning hold the answers even to the most modern disputes that the founders could not have imagined.

The approach Breyer advocates to interpreting the Constitution, he hopes, will serve as "an antidote to originalism," which he says "is not, in my view, a workable approach." In the book he attacks the Second Amendment decision in D.C. v. Heller, an originalist high-water mark, for basing its decision on "the facts and circumstances of eighteenth-century society."

Instead, Breyer argues fervently for a "prudent and pragmatic" approach that takes into account other factors, including respect for other branches and institutions of government, as well as a balancing of interests like individual rights and national security. "I'm trying to give legs to that approach, but it's not just a Fourth of July speech. If you follow those principles you will help other institutions, and taking them together you will have the Court producing a workable Constitution." Breyer opens a copy of his book and points to a passage on page 216 that describes this approach to judging, though it adds that the principles "do not provide criteria for the evaluation of all cases."

But can such a shaded, even malleable approach to the law stand up to the muscular appeal of bright lines and simple answers of originalism?

"I don't like bright lines and simple answers," Breyer answers sharply, then pulls back. "It's not that I don't like them, I just think that very often they don't work… We're not sages, we're not seers, we're fallible.

http://www.law.com/jsp/article.jsp?id=1202473052552&slreturn=20120629141501

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Response to elleng (Reply #5)

Mon Jul 30, 2012, 08:02 AM

69. The problem with "originalism," as I see it, is how it regards the Constitution in isolation

... from the context of the times. I'm a systems wonk -- having made a career of analyzing and diagnosing systems both automated and behavioral/organizational. I have never been able to gain my in-depth understanding of any system without a thorough understanding of the relevant elements of the context within which the system operates. The mere distinction between exogenous and endogenous events is premised on that comprehension.

For example... to understand the 2nd Amendment, we must steep ourselves in a comprehension of the times in which it was established. No government of the time possessed weaponry of any kind that wasn't also, even to a greater extent, in the hands of private individuals. Indeed, "government" itself was, in many instances, embodied in individuals called 'monarchs.' There were individuals and collections of individuals on the world stage who possessed weaponry of even greater aggregate power than many 'governments' of the time. (Think "privateers." Think Barbary Coast.) Further, governments had very limited ongoing resources completely dedicated to and under the control of that government. Standing armies in peacetime were skeletal. Local and regional governmental power (government was distributed, much like a franchise) was typically wielded by proxy. In such a context, anything even approximating a 'democratic' or 'populist' form of governance necessitated private ownership and control of weaponry of all kinds, to be subject to activation (even by conscript) in the event of a security emergency that would be inherently obvious to the populace, without significant dissent. The manpower for addressing any such emergency was the populace itself. Anything else was inconceivable.

To respect the 2nd Amendment (and I do) is to regard the contextual conditions within which it was established as also either desirable or necessary in today's culture. Some, even though 'desirable,' are impossible -- level of weaponry technology, for example. It is no longer the case that all weaponry possessed by government is also possessed by private individuals. Nukes and aircraft carriers are obvious examples. We should very carefully note, however, that private corporations do possess such weaponry. The 'privatization' of far too much of government military power has resulted in a recent increase in the extent to which such WMD are in private (corporate or conglomerated) hands. Thus, it makes sense to have limits on the power of weaponry covered by the 2nd Amendment ... i.e. nukes, howitzers, bombers with payloads, and fully automatic rifles and pistols. It does NOT, however, make sense to fail to have a Universal National Service policy that engages every adult between the ages of 18 and 65 in a "well-regulated militia." (The Swiss model is but one example.)

But that is a whole 'nother discussion. We're dealing with 'originalism' and context. It is entirely understandable that the Founders weren't sensitive to government violations of individual privacy beyond those involving speech, religion, the home, and testimony. The technology just didn't exist to monitor and intrude beyond those excesses so often seen to be done by tyrants of the time and in recent history. Personal privacy was, therefore, an unenumerated right upon which individual popular sovereignty (i.e. democracy) itself rests. Scalia is being appallingly disingenuous and betraying his fascist biases.

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Response to TahitiNut (Reply #69)

Mon Jul 30, 2012, 11:43 AM

77. Great Analysis; but this part, part caught my conspiratorial eye ...


Nukes and aircraft carriers are obvious examples. We should very carefully note, however, that private corporations do possess such weaponry. The 'privatization' of far too much of government military power has resulted in a recent increase in the extent to which such WMD are in private (corporate or conglomerated) hands. Thus, it makes sense to have limits on the power of weaponry covered by the 2nd Amendment ... i.e. nukes, howitzers, bombers with payloads, and fully automatic rifles and pistols.


I wonder if THIS explains the NRA/ALEC connection ... since corporations are now people, afforded all rights (buy none of the responsibilities) under the Constitution?

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Response to 1StrongBlackMan (Reply #77)

Mon Jul 30, 2012, 12:57 PM

81. While my scope was global but with examples/emphasis on US context,

... I strongly suspect that the legalistic elevation of the political stature of corporations is mirrored globally as well, and is not primarily a US phenomenon. I must note that the highest priority of the Bush/Cheney regime in both Iraq and Afghanistan was to establish the corporate system of (legal) entitlements in the "supreme law of the land." Also in both instances (Iraq and Afghanistan), the hand-picked political leadership was/is immersed in the global corporatist mindset. Indeed, I can see nothing that was done with more thoroughness than infesting both legal systems with the 'hooks' for corporate entitlement.

It's very important to realize that corporations are legal fictions, owing their very existence to the laws and government enforcement thereof in each and every country. They cannot exist or even engage in any kind of activity, even business 'commerce,' without such laws and their enforcement by the state.

Government is Dr. Frankenstein (with good intentions) and corporations are the monsters.

Abby Normal.

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Response to TahitiNut (Reply #81)

Mon Jul 30, 2012, 01:23 PM

86. There is so much in this post that I agree with ...

I'll just say: +3,500,000,000,000

(the estimated 2011 revenues of the top 10 gobal corporations: http://en.wikipedia.org/wiki/Fortune_Global_500)

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Response to TahitiNut (Reply #81)

Mon Jul 30, 2012, 04:24 PM

112. I strongly suggest that you read the book I mentioned above, A Distant Mirror.

No government is an even more horrible Dr. Frankenstein than at least some government as made clear in that book.

The book describes the revolt in the British parliament and the demand for rights at the end of the reign of Edward III.

Edward III (13 November 1312 – 21 June 1377) was King of England from 1327 until his death and is noted for his military success. Restoring royal authority after the disastrous reign of his father, Edward II, Edward III went on to transform the Kingdom of England into one of the most formidable military powers in Europe. His reign saw vital developments in legislation and government—in particular the evolution of the English parliament—as well as the ravages of the Black Death. He remains one of only six monarchs to have ruled England or its successor kingdoms for more than fifty years.

http://en.wikipedia.org/wiki/Edward_III_of_England

The parliamentary reform in England (around the time of John Wycliffe) was one of the factors leading to modern democratic government.

Without democratic, representative government, we would be in even worse shape than we are now. What we need is responsive government. That is, of course, not what we now have. But it is up to us to demand it and to elect people to our Congress who will defend it.

It was only after the companies marauded all over Europe that the English parliament stood up for itself and gradually worked toward a more representative government.

I do not agree that government is, in and of itself, a Frankenstein. It depends. If we don't like our government, we have to change it. And we can. But it may take a long time and a lot of work.

I do not want to return to the chaos and subordination of the 14th century.

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Response to 1StrongBlackMan (Reply #77)

Mon Jul 30, 2012, 11:50 PM

130. Scalia has mentioned he views the Second as limited by the term "Bear".

i.e. if it is NOT an arm that someone can "Bear" it is NOT protected by the Second Amendment. Thus ANY company or battalion level weapon could be banned under Scalia's view of the Second Amendment, i.e. no mortars, no machine guns, no cannon, no heavy anti-tank weapons (Scalia has indicated he would support rocket propelled grenades (RPG) and other small rockets but not anything bigger).

I believe the limit is higher, govern by the rules as to weapons of 1792, i.e. people were strictly held liable for any gunpowder that exploded (no matter who was at fault, i.e. Strict Liability) AND any bullets you fired, you were responsible for. If you fired your gun and someone was killed, even if it was the VICTIM's Fault the shooter was held liable. Thus nuclear weapons can be banned under the Second, unless you can store it is a place where its radioactive core will NOT cause harm to anyone else (i.e. in a deep bomb proof shelter). If you can NOT store it to that level you can NOT have it (a side comment, if you have the money to buy a nuclear device, keep it active AND store in properly, the additional cost to get a private bill through Congress to permit you to have the nuclear device would be a very small additional expense, thus the Second Amendment will NEVER come into play in regards to Nuclear, Biological or Chemical weapons).

Today, you can own a supersonic plane, but you can NOT fly it. The reason being to fly it could cause problems for others given the effect of sonic booms. The Government is willing to assume that responsibility for its own planes, but not for planes owned by Civilians.

Back to Scalia, In my opinion, Scalia would reject my position that the Second Amendment would also cover the OWNERSHIP of heavy weapons, artillery, Mortars, Tanks, Heavy Machine Guns, etc. Scalia will point out such weapons could not be "bared" and thus NOT covered by the Second. Scalia fear these weapons in the hands of people for they make any fight between regular forces and Militia a lot more equal. On the other hand Scalia thinks nothing of expanding the right to own a handgun, for it is one of the most useless weapons in any combat situation (If I was organizing a Militia pick up company, and someone showed up with a Pistol, I would tell him or her to go back and get a Rifle, Shotgun or a long hand spade instead, these three items have had and will have more effect in combat then a pistol, in combat pistols are carried by people whose job prevents them from being able to shoot 360 degree around them, i.e. a tank driver, whose job is to drive the tank NOT to shoot a rifle, a machine gunner whose job is to operate a machine gun in a certain direction, but once so situated hard to move quickly if attacked from another direction).

In the past, when we have had massive labor revolts, it was RIFLES that the Strikers resorted to NOT pistols (the General Strike of 1877, the Homestead Strike of 1892 and the West Virginia Coal War of 1921, just to mention three). Today, in addition to rifles you would need access to Mortars, Machine Guns, and heavy anti-tank weapons. Scalia would deny people access to such weapons, while giving them access to pistols and light weight rockets in addition to Rifles and shotguns (and in a time of crisis I can see Scalia saying the need for self protection is limited to pistols, so even rifles and shotguns can be banned).

On DU2, I did some extensive papers with cites on them in this matter but much of the reference I used are no longer active web cites, but I repeat my comments anyway:

I wrote this in 2004:
Congress wrote the Militia Act right after passing the Second Amendment. You can use such acts to show WHAT congress intended when it passed parts of the US Constitution (For example when someone challenged HOW the Federal Courts were set up, the US Supreme Court looked not only at the Constitutional Provisions setting up the Federal Courts but the First Judicial Act. The Court used the First Judicial Act to determine WHAT Congress meant when it adopted parts of the Constitution. We can do the same with the Militia Act of 1792).

In Militia Act of 1792 Congress did address WHAT weapons the Militia was to have, the Act lists only Three:
1. .69 caliber Smooth bore musket (the Assault Rifle of 1792).
2. A "Rifle" if the company was a Rifle Company.
3. A Hanger (A sword for the commander of the Company, it was both a symbol of Rank and a method of giving Visual commands to the troops).

As late as WWI, you just had Modernized versions of the above, for Example the Bolt Action Rifle of about 1900 had replaced both the Musket and the Rifle of 1792. Now some armies still carried swords but most company commandeers had switched to pistols. WWI changed the Infantry squad, platoon, company and Battalion, drastically, increasing the types of weapons used at all levels of combat.

Do to these changes today's Infantry have the use of a wide number of weapons. Given that Militia has to use the weapons of Infantry, ALL INFANTRY weapons are thus Militia weapons.

These Military weapons include the Following
1. M16 or other assault rifle (Squad Level Weapon)
2. M249 Squad Automatic Weapon (SAW)(Squad Level Weapon)
3. The FN MAG general purpose Machine Gun.(Platoon or Company Level Weapon)
4. 60mm Mortars (Company Level Weapon)
5. 81mm Mortars (at Battalion Level)
6. .50 Caliber —2 Machine Gun (Battalion Level Weapon)
7. TOW Anti-tank Missile (Battalion Level Weapon)
9. Dragon (Or its replacement) anti-tank weapon
10. Stinger Anti-Aircraft Missile (Battalion Level Weapon)
11. —203 Grenade Launcher (Squad Level Weapon).
12. AT-4 Anti-Tank Weapon (Replaced the LAW of Vietnam war era, issued to infantry squad members).

If we look at the Militia Act of 1792 we notice the absence of PISTOLS (Except for Section 4 dealing with Calvary). Thus an argument can be made that PISTOLS can be banned on the grounds Congress prefer people to have Rifles, except for Commanders of Units (Replacing the Hangers mentioned in Section 1 of the Act) AND speciality forces that must use a pistol for they can not use a rifle (like the old Calvary mentioned in Section 4).

Another way to look is at the Federalist Papers, through the Papers address the Constitution BEFORE the Adoption of the Bill of Rights, Hamilton in Federalist No 29 did address HOW to form the Militia.

For the Federalist papers:
http://www.law.ou.edu/hist/federalist /

The Militia Act of 1792:
http://www.constitution.org/mil/mil_act_1792.htm

10 USC 311 (Present version of the Militia Act):
http://www4.law.cornell.edu/uscode/10/311.html

One last comment, just because you have the "Right" to a weapon does not mean you can not be punished for its mis-use. During 1792, the storage of Gun Powder was viewed as an inherent danger. As an inherent danger if Gun powder exploded, the owner of the Powder was held to strick liability for any damage that occurred. i.e. it was NOT a Defense that the Gun powder exploded do to no fault of the owner of the powder, he had to pay even if a third party caused the explosion (Except if the act to explode was an DELIBERATE act of the third party AND the owner did everything reasonable to prevent such explosions). The Second Amendment did NOT change this rule of law. Furthermore if you used your firearm and someone was harmed you were held liable for that harm (The Second Amendment did not change that rule).

Furthermore one of the reason for the language of the Second was to preserve Congress's right to set standards as to what weapons the militia is to have. Thus Congress can banned Sub-machine Guns because it wants the Militia to have M16s. I question any ban on Military Weapons in favor or less effective weapons, but as long as Congress can claim the ban is to ease re-supply of the Militia if called into actual service, such a ban could be valid. Congress can not just say No weapons for the Militia, but Congress can say WHAT weapons the Militia is to have. Congress thus can rule some weapons "Non-militia" and ban them and such a ban would be valid. This can be the justification for the existing Automatic Weapons ban, congress prefer the Militia to have semi-automatic weapons instead (To ease excess use of ammunition in combat).

My point here is that while the Second Amendment is an individual right, it si a right that Congress can restrict if such restrictions ENHANCES the militia. Congress is also the body to determine what ENHANCES the Militia. Thus Various types of Gun Controls can be valid, provided the Militia can still arm itself is a reasonable manner. The Issue is thus what is a reasonable manner in today's urban environment? That is the debate as to the Second today, and will be for many decades to come.


For the Federalist papers:
http://www.law.ou.edu/hist/federalist /

The Militia Act of 1792:
http://www.constitution.org/mil/mil_act_1792.htm

10 USC 311 (Present version of the Militia Act):
http://www4.law.cornell.edu/uscode/10/311.html

Patrick Henry and the Militia and the Constitution
http://www.constitution.org/rc/rat_va_13.htm#henry-09
http://www.constitution.org/rc/rat_va_13.htm#henry-10

Speeches of Patrick Henry and the Constitution (Good site for Henry’s comments, but remember the site is a right wing absolutist property right site so be careful):
http://www.constitution.org/afp/phenry00.htm

But only when the Federal Government and the States do not AND there is a need for one. This goes back to the history of the Militia in the 1700s. I have been working on a paper regarding the Militia and Gun Control and while it is NOT finished what I have doen is re-printed below:

Some basic concepts behind the Second Amendment.

To truly understand the Second you must look at the time period it was written AND WHY IT WAS PUT INTO THE BILL OF RIGHTS. The first step in this process is to look at what Alexander Hamilton wrote in Federalist No 29. Hamilton writes in Federalist 29 that he would prefer two different classes of Militia. The first (and preferred by Hamilton), the one Hamilton calls a "select corps" of paid Militiamen (much like our present National Guard) and would have used it like we use the present day Army Reserve and National Guard.

As to the rest of the Militia (now referred to as the "reserve Militia"), Hamilton put a lower value on it but even to Hamilton it had some value:

"Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year"

Thus he accepted that the Militia (other than select Militia he wanted) would rarely be used in combat roles (except in extreme emergencies) but instead would be used to secure roadways, dig entrenchments (which they did at Yorktown, while the Regular Troops trained).

The Militia would also clean up the battlefield after the battle (as the Pennsylvania Militia did after Gettysburg, and this can last for months, as it did after Gettysburg). By assuming these duties, the Militia relieved the regular army of such duties.

A recent examples of this was the Mississippi River Floods of the early 1990s, when the local populations came out to work on the levies. This was the Militia coming into action. These volunteers were not called “Militia” by the media, nor the politicians, nor the military (and not even by the participates themselves). The same with the personal on the plane that crashed in Somerset County Pennsylvania on 9-11. The personal "activated" themselves and went into combat (with nothing but their bare hands as "arms"). An enemy had appeared and the Militia mobilized to fight them and DID defeat these enemies (and died in the process, but further loss of life was avoided).

Could regular troops have done it better if they had been on the Plane? I hope so (they have superior training), but as Hamilton points out in Federalist 29, training EVERYONE for such a contingency would be a waste of most people’s time and money. It is better to give the Militia minimal training (and make sure they have their equipment) and hope they do an adequate job than to waste the time and money to train every Militiamen to be as good as a regular soldier. 99% of the Militiamen would never use the training and thus would be a waste of time and money.

On the other hand, when needed, getting the Militia together with needed equipment. Such equipment can be arms, or shovels or buckets depending on the threat but that the “Militia” must have some “Tools” to use to defeat the threat is self-evident (i.e. you can not fill sandbags without a shovel, or fight without a weapon). Thus it is more important that the Militia have equipment than any proper training for with equipment you can than form the Militia into something that can be used. Once formed than and only than can training begin (Which can be as simple as how to fill a sandbag to re-enforce a river levy).

Thus the big issue is getting the Militia members togther, for once togther you can start training (and planing) for what may be needed (which may be anything from anti-tank defense to Anti-flood defense, or even re-taking the plane the militia are on). Your plans will depend on what you have in troops (and their equipment). The better equipped the Militia are the better, but any equipment is better than no equipment.

One last point, The Federalist Papers pre-date the Bill of Rights (but post-date the Original Constitution). Thus Hamilton's argument is in defense of the Constitution without a bill of rights (including the second). I merely bring it up to show you how at least one writer of the time believe how the Militia should be organized (and also points out his plan was rejected by Congress when Congress did organized the Militia in 1792).

For the Federalist papers:
http://www.law.ou.edu/hist/federalist /

The Militia Act of 1792:
http://www.constitution.org/mil/mil_act_1792.htm

10 USC 311 (Present version of the Militia Act):
http://www4.law.cornell.edu/uscode/10/311.html

Patrick Henry and the Militia and the Constitution
http://www.constitution.org/rc/rat_va_13.htm#henry-09
http://www.constitution.org/rc/rat_va_13.htm#henry-10

Speeches of Patrick Henry and the Constitution (Good site for Henry’s comments, but remember the site is a right wing absolutist property right site so be careful):
http://www.constitution.org/afp/phenry00.htm

Please note one of the chief objections to the original constitution is that it gave SOLE power to organize the Militia to the Federal Government (See Article1, Section 8, Clause 16 of the US Constitution). The fear was that the Federal Government would organize only part of the Militia (that was loyal to the Central Government as opposed to being loyal to the people) and that since the Federal Government had SOLE right to organize, the states and the people could not organize that part of the Militia not organized by the Federal Government. The wording of the Second Amendment was to address this problem (and to preserve the right of the Federal Government to organize the Militia). Thus the Second was worded BOTH to preserve the Obligation of the Federal Government to Organize the Militia AND the right of the People (and the states) to organize that part of the Militia the Federal Government did not (or refuse to) organize.

Thus under the Second, the Federal Government retains the right to organize the Militia (or whatever part it wants to organize). The States (and the People) retain the right to organize that part of the Militia NOT organized by the Federal Government. The simple fact is that the only way the States and the people could form themselves into Militia against wishes of the Federal Government would be if the People had access to arms. Thus the Right to Bare Arms is the right reserved to the people so that the States (and the People themselves independent of the State) can form a Militia if it is needed and the Federal Government refuses to organize the Militia.

Do not think this was academic, Pennsylvania was the only Colony without a Militia Law from its founding in 1689 till 1759. From William Penn’s treaty with the local Indians till the Long Walk of 1737 no Militia was needed, you had peace in Pennsylvania and the Indians were friendly. In 1737 the decedents of William Penn decided to finally take the last of the Land given to William Penn by the Indians. The Treaty had said Penn’s land grant extended one day walk from the junction of Delaware and Lehigh Rivers. The Indians believed this was for a normal walk at a normal pace of about 20 miles.

The Penns wanted more land than just 20 miles so their imported five "speed walkers" (those person’s who race but never break into a running stride, but stay in a walking stride a type of race still run in certain locations). The Penns than told the Indians that thee men will pace the “one day walk”. The Men started at Daybreak on June 20th (The longest day of the year) to give them the maximum time walking). The Indians claimed they had to run to keep up, but the Penns gained about 60 miles worth of land to sell instead of the 20 miles the Indians thought their had agreed to. The Delawares and Shawnees complained, but the Iroquois accepted the results of this thief, and is referred to as the "long walk". Since the land was technically Iroquoian, the Delaware and Shawnee had to accept the decision of the Iroquois (In the inner- tribal wars of the 1600s the Delaware had been defeated by the Iroquois and their land became Iroquoian land, while the Shawnee had been permitted to live on the same land by the Iroquois for their had no land of their own since their left Cuba in the 1500s). http://www.tolatsga.org/dela.html

What is all of this leading up to? While when the French Declared War on England in 1745, both the Delaware and Shawnees were easy for the French to recruit to attack the Settlements on the Pennsylvania Frontier. Both tribes attacked the Settlements not only in the 1745 war, but the 1754-1763 French and Indian War. Pennsylvania was controlled by Quakers who, while wiling to sell the lands their had stolen from the Indians to the people on the Frontier, did not want to raise any form of Army even a Militia army. Thus the Frontier was left on its own. Ben Franklin realized this was a problem, but could not convince the Colonial Assembly to even build a fort to protect Philadelphia from a French Naval Attack (Given the Hurricane Season in the Caribbean, it was a policy of both Britain and France to keep their fleet out of the Caribbean from July through October. This reduced the chance that the Fleet may be destroyed by a hurricane and also reduced the losses of life do to Yellow Fever. Thus the French Fleet went by ALL of the American Colonies at least twice a year, either time the Fleet could just move in and take any unprotected city, such as Philadelphia. Even with this threat, the Assembly refused to fund any military preparations. So Ben Franklin organized the people of Philadelphia into an "Association" to build a fort on Governors Island just south of Philadelphia. The purpose of the Fort was NOT to stop the French Fleet but to give warning if the fleet was coming to Philadelphia and to delay the Fleet long enough to vacate Philadelphia before the French fleet could take Philadelphia.

After Ben Franklin did the above in 1745, he urged the people of the frontier to from similar “Associations” to protect themselves against the Indian attacks. The frontiersman did form themselves and stayed that way INDEPENDENT OF THE GOVERNMENT OF PENNSYLVANIA till 1759, when Pennsylvania had a mini-revolution (by election) that kicked out the Quakers and put in people who had formed these "Associations". The new General Assembly than took these organizations over and form the First Pennsylvania Militia (And this would not be the first time the Militia would be the heart of a move to democracy, the democratic movement of the Post-Revolutionary Period also came out of the Militia as did the Whiskey Rebellion of 1792-1794) .

The point of the above was the people of the Colonies were familiar with the possibility of a Government NOT forming the Militia even when such formation was needed. Much of the opposition to the Constitution came out of Pennsylvania. I live in Western Pennsylvania and even today some people are proud that 26 of 27 delegates to the State Convention to ratify the US Constitution voted against it, and the fact we burned the house of the one person who voted for the Constitution during the subsequent Whiskey Rebellion.

This opposition to the Constitution without a bill of Rights reflected that it had only been 40 years earlier when the Government of Pennsylvania had refused to form the Militia when it was needed. Thus Pennsylvanians (and residents of other states) knew it was possible that a government may NOT organize the Militia when the Militia was needed. Thus the wording of the Second amendment was to reflect NOT only that the States could form the Militia but the people could also form the Militia their had done in Pennsylvania from 1745 till 1759.

Miller and the Court Cases

Miller is the 1939 Case involving the Federal Firearms Act. It is an interesting case. If you read it please note the procedure and standard of review the Supreme Court was using in that case.

When Miller was arrested for having a shotgun with a barrel less than 18 inches (and thus banned under the Federal Firearm Act) he made the contention at his arraignment that the weapon was a militia weapon and thus protected under the Second, THE TRIAL COURT ACCEPTED THIS ARGUMENT AND DISMISSED THE CHARGE AGAINST MILER.

Now, since this was a dismissal PRIOR to any trial, the Rule of Law in such a dismissal is the Judge MUST accept all of the facts in favor of the non-moving party (In the case of Miller the US Government) and rule that even if the Government proved all of its facts the government would still lose. The trial judge ruled that a shotgun with a barrel of less than 18 inches was a military usable weapon given that such weapon had ben used in WWI.

On Appeal from that type of dismissal, the same rule applies. i.e. all facts are held in the Government favor. In Miller the US Supreme Court ruled that the FACT that any particular gun had military usability and thus comes under the Second is a finding of fact reserved to a Jury and thus the Trial Judge erred in finding that the shotgun in question had military usability as a finding of law. The Supreme Court sent the case back to the trial Court with an order that the Trial Court to hold a hearing where a Jury was to decide if the Weapon was a military weapon. Only if the Jury ruled it to be a military weapon was the Judge to rule on the Application of the Second Amendment to the weapon.

In simple terms the Court ruled whether a weapon comes under the Second or not is a question of fact left to a jury NOT a question of Law reserve to A judge.


http://www.enterstageright.com/archive/articles/0801/08...

http://www.geocities.com/hollywood/academy/9884/bp_Mill...

http://caselaw.lp.findlaw.com/data/constitution/amendme... /

For the Miller case itself:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=...


CRIME AND FIREARMS

The above was on the CONSTITUTIONALITY of Gun Control NOT whether Gun Control would do any good at reducing crime (or otherwise make the Country Safer). On the point of reducing crime we need to look at WHAT weapon is being used in Crime. If you look at the 2001 FBI Crime Statistics available from the FBI Crime Statistics you will see table 2.10. It is an interesting table. Out of that table the following facts are reported for the year 2001:

13,752 people were murdered in 2001,
8719 by Firearms (63% of all Murders).

6790 were Murdered by handguns (49% of All Murders, 78% of all murder by Firearms)
389 by Rifles (2.8% of all Murders 4.5% of all Murders by Firearms)
497 by Shotguns (3.6% of all Murders, 5.7% of all Murders with Firearms)
985 by “Firearms type not stated”
All together 14% of all Murders are done with non-handgun firearms (which for this number includes not only Rifles and Shotguns, but also the “other” category and “Firearms Type Not Stated”)

1796 by Knives 13% of all Murders
925 By “Personal Weapons” i.e hands, Fists, feet etc 6.7% of all Murders
661 by “Blunt Instruments” Clubs, hammers etc. 4.8% of all Murders
152 by Strangulation 1.1% of all Murders
112 by Asphyxiation. 0.8% of all Murders
104 by Fire 0.7% of all Murders

Thus Knives, and “Personal Weapons” (i.e. hands, fists, feet,) are used more often to Murder people than are Rifles and/or Shotguns. Clubs, hammers and other “Blunt Instruments” exceed the number of people Killed by Rifles OR Shotguns. (Please note “Personal Weapons” only rose above the combined Shotgun and Rifle numbers of victim in 2000 and 2001, from 1997 through 1999 “Personal Weapons” were just slightly above the COMBINED numbers of people murdered by Shotguns and/or rifles).

Basically the weapon most used in Murder is a Pistol, followed by a Knife. Even if the “Other” and “Firearms type not stated” do not include any pistols (something I seriously doubt) all firearms other than pistols are used less often than are knives to kill people. Thus the weapon of choice for criminals is a pistol (followed by the knife).

That is about right, for both handguns and knives are both easy to conceal on a person’s body and thus a weapon that can be used without the victim having any time to defend (or even prepare) themselves. Shotguns and Rifles like Machine Guns and Rockets, are hard to conceal and thus rarely used in crime. This was true of automatic weapons even before such “Machine Guns” were outlawed in 1934. (Yes I Know Capone's gang used Thompson Sub Machine Guns and Bonnie and Clyde like their M1918 BAR, but most of those weapons were obtained from raiding local Police Stations not illegal or legal sales. Very few Machine Guns and Rockets have been used illegally, not because such weapons were NOT wanted by Criminals, there are just to hard to hide compared to Pistols and thus NOT usable by most criminals).

As one person told me years ago, when he sees a hunter with a Rifle, he knows the Hunter has the ability to kill him at any time, but unlike someone who had a pistol he knows that fact from the first time he sees the Hunter and has more than enough time to take pre-cautions. This is the reason pistols MUST be heavier regulated than other weapons. Given the Nature of the Second Amendment (as I explained above) such restrictions ON PISTOLS are perfectly acceptable under the Second.

While Rifles, Shotguns, and even Machine Guns and Rockets have much higher military usability than pistols, all of them are used way less in crimes than are Pistols and Knives. Thus if you believe in Crime Control, it would be better to regulate knives before you regulate Rifles and/or Shotguns. Knives are used in greater numbers. Furthermore given the numbers for people who use “Hands, Fists and Feet” as weapons (and these numbers EXCEED the numbers for Rifles or Shotguns, I just can NOT justify regulating such weapons.

THE USE OF FIREARMS

One last comment, while I believe ownership of such weapons can not be banned (except for pistols as I stated in a earlier thread) the USE of such weapons is NOT protected by the Second and the law has long set forth a strict liability rule if a weapon is used and someone is hurt. Any body's interpretation of the Second Amendment does not change that strict liability rule and to my knowledge no one is advocating abolishment of that rule.

Now strict liability does not extend to storage of a weapon (through some states have expanded the rule to cover inadequate storage) and thus if a weapon is stolen, you are no more liable for its misuse than if someone stole your car. The Second Amendment only address the right to own, NOT the right to abuse the right to own.

Right to Bear Arms Independent of the Second

Right now people who dislike the idea that Constitutional rights not mentioned in the Bill of Rights exists control the Supreme Court. Examples of such rights include the Right to Privacy and the Right to an abortion. Neither right is clearly stated in the Bill of Rights. Justices Rehnquist, Scalia and Thomas have all expressed opposition to such Constitutional Rights based on the premise that such Rights are NOT listed.

Thus if you get away from the Second Amendment (and the militia clause in the body of the Constitution) you are on very thin ice. Abortion and Privacy may be able to get five votes on the Supreme Court to be preserved, but will a "Right" to Bear Arms NOT based on the Second Amendment? While such a right may exist (and I have read the literature that clearly shows the right to bear arms did exist prior to the Bill of Rights), you have at least three votes against it (Rehnquist, Scalia and Thomas) based on the premise that if a right is not listed it is NOT a right (Scalia and Thomas I believe will vote for RKBA but only because the Second, not independent of the Second).

Given these three votes, their only need to pick up two more votes out of six to say no such right exist outside the Second. Two more votes out of the reminding six will not be hard to find given the compensation of the Supreme Court today.

That is why people prefer to base their rights on what is written in the Bill of Rights. It is harder for the Supreme Court to ignore.

One last comment, I always bring up PLESSY v. FERGUSON, 163 U.S. 537 (1896) in these debates for it is the classic Supreme Court case where the court defers to the legislature on Constitutional grounds.

In Plessey the Court basically ruled that since the State of Louisiana knew of the 13th, 14th and 15th amendments to the Constitution when it passed a law segregating blacks from whites, the State of Louisiana must have review those amendments and after review believe the act was constitutional.

The Court than says that "Separate but Equal" meets the requirements of 13th, 14th and 15th amendments since none of them EXPRESSLY outlawed separating the races, only discriminating against them and that just separating the races must have been the ONLY intention of Louisiana.

Everyone knew better, but the Court still ruled that it had to defer to the state legislature that anything a state passes was constitutional unless a law EXPRESSLY violates the Constitution. Furthermore the court ruled that the burden of showing such constitutional violation is on the person challenging the law not the state (or federal Congress) that passed the law.

Plessey is a warning to people. The court will not protect individual rights against a determined federal and state attack on those rights. The Court will look for any way to minimize the right or even gut them completely if that is what the majority of Congress or the states want (And if the court members themselves what that result).

It is harder for the court to gut a right if the violation is of a WRITTEN right. The warning from Plessey is that the Court will even gut a written right for 56 years (and only reversed itself given the Civil Rights movement and the Holocaust of WWII both showed the Court WHY the 13th, 14th, and 15th amendments had been passed and WHY their were needed to be enforced even against popular opposition).

The same can happen to the Second Amendment; the Court can gut it very easily if the Court wants to. It will be harder given the language of the Second than the 13th, 14th and 15th were under Plessey, but not impossible.

One way to undermine the whole Bill of Rights is to permit congress to re-define "Militia" anyway Congress (or a state) wants to. For example define "Militia is those person who are approved to be members of the Militia by the Office of Homeland Security (OHS)".

Such an act, if accepted by the Court would gut the Second Amendment. This is a fear not limited to the Second, a similar re-definition of "Press" to be “those persons approved by OHS to be members of the Press". "Religion" to be "those religions approved by OHS" or even to "petition" to be "Petitions of Congress must go through the OHS first and be approved by OHS…" Such re-definitions would gut the First Amendment.

Thus defense of ANY constitutional right cannot be left to the hands of just the Supreme Court. A good first step would be for the Court to define what the term "Militia" means AND that only the Court not Congress can define what a term used in the Bill of Rights means.

This is only a first step, we also need to remind Congress and the People what ALL of THEIR rights are and to enlist the people to stop any violation of any right before such a violation is enacted.

To do so we cannot lie to ourselves what those rights ARE and what those rights ARE NOT. Thus my earlier thread of the Second NOT covering pistols (but covering assault rifles). We cannot lie to ourselves and we cannot lie to other people. On the other hand we MUST fight to stop any infringements of our rights. That is the warning of Plessey, you can NOT rely on the Court to protect any right.

Mental Competence?

Maybe I am getting jaded, but why do people keep saying they want people to be “mentally competent” (whatever that means) to own a firearm when there is no such requirement for 2-4 ton potential murder device almost every one owns? (I.e a personal automobile). Furthermore no such requirements is being proposed for ownership of one of the deadliest high explosives know to man (i.e Gasoline)

The reason we do NOT regulate gasoline is simple, if we did many people would be ruled “Not Competent” to operate a vehicle. One of the jobs often mention in Social Security Hearings is grounds keepers, even as a job for people who can not drive. If we regulated gasoline like Firearms many of these jobs will be closed to such persons and as such unemployable. The Federal Government does not want that, it wants such people working so they are permitted around gasoline.

The same fact with Automobiles, if a sizable part of the populations could no longer have access to a car (do to a higher level of Competency than what exists now) People will have to use Public Transportation, but these are the part of the population least able to use or pay for public transportation. Again you run up costs, costs that are hidden by leaving such people drive cars today.

Thus mental Competency is a very Minimal standard for the reason that if it was higher the Government (Both Federal and State) would have increased costs to house and feed these people. By calling them “Competent” the Government has no obligations to feed or house them and thus they cause no costs to the Government.

Militia, State Guard and the National Guard

Now most states have “Militia”, "State Guard" an “National Guard” units, at least on the books. Typical is Pennsylvania, Here are Statutes authorizing the "Militia" and "Pennsylvania Guard" (See also The history of Military Intervention in the US).

51 Pa.C.S. § 301 (2002)
(a) PENNSYLVANIA MILITIA.--THE MILITIA OF THIS COMMONWEALTH SHALL CONSIST OF:
(1) all able-bodied citizens of the United States and all other able-bodied persons who have declared their intention to become citizens of the United States, residing within this Commonwealth, who are at least 17 years six months of age and, except as hereinafter provided, not more than 55 years of age; and
(2) such other persons as may, upon their own application, be enlisted or commissioned therein.

(b) PENNSYLVANIA Naval Militia.--the Naval Militia of this Commonwealth, when organized pursuant to rules and regulations promulgated by the Governor, shall consist of those persons as may, upon their own application, be enlisted or commissioned therein.

51 Pa.C.S. § 1301 (2002)- Composition of Pennsylvania Guard
The Pennsylvania Guard shall consist of such units as may be prescribed by the Governor.

51 Pa.C.S. § 1302 (2002)
§ 1302. Designation and change of location of units
The Governor shall designate the location of the several organizations and units and may change the same at his discretion. Organizations and units shall be located wherever practicable in armories owned by the Commonwealth.

Now, the state did have some "Pennsylvania Guard" units till 1959, when Governor Lawrence merged them into the National Guard (He wanted to save money, and most state have abolished “State Guard” units for the same reason).

To understand the relationship between the "Militia" the "State Guard" and the "National Guard" you must first understand how the Militia developed (or more accurately declined) from the "Militia Act of 1792" to the "National Guard Act of 1903".

With the end of the Indian threat with the Death of Tecumseh in 1814, the Militia formed under the Militia Act of 1792 went into a slow deterioration north of the Mason Dixon Line (We will address the Militia of the South from 1815 till 1865 separately) . In this time period (1815-1860) most Northern States kept dropping the fine for not attending drills to discourage attendance to Militia Drills (the states rather have the money from the fine rather than see the Militia drill).

Most Northern States eventually adopted a zero (0) fine and replaced it with a head tax (some people would STILL show up for drill duty rather than pay the fine no matter HOW low the fine was). By the time of the Civil War the Militia of the US was a dead and empty idea. No one had tried to keep it alive.

Thus by 1860 the Militia north of the Mason and Dixon line was dead for all practical purposes, much like it is dead today (Through the Militia Act of 1792 was still on the Books and would remain on the books till long after the passage of the "National Guard Act of 1903". In fact the Militia referred to in the Militia Act of 1792 is still in the Statute Books in the above state statute and Federal statutes).

In the South the Militia was tied in with the Sheriff’s Patrol and the Patrol’s main purpose of keeping the Black Slaves from escaping. The Militia was also the main tool of the Southern State’s efforts to suppress “maroons” i.e. escaped Blacks living in isolated hidden areas of the South. Between these two functions the Militia in the South stayed healthier than the Northern Militia but it even declined given its main function of slave suppression (Through one of the reason for the the early success of the South in The Civil War was that the Southern Militia had stayed a live between 1815 and 1860).

Against this back ground of the decline of the Militia during the period 1815-1860 a desire for a more professional part time unit was demanded by Middle Class Americans (This demand was in both North and South). Given that the US Constitution gave sole control over the Militia to the Federal Government, and Congress had decided NOT to do anything after passing the 1792 Militia Act, the states could NOT adopt a different form of Militia from the one set forth in the Militia Act of 1792 (even if the state wanted to).

To fill this void, military clubs were formed. These clubs purchased their own uniforms and weapons (sometime with additional funds from the State and Federal Government, but no change in the underlaying Militia Act). These clubs/units referred themselves as the "National Guard" starting on August 16, 1824 when Lafayette landed at Castle Garden on Manhattan. For his arrival in New York City. One such “club” took the name of a Regiment of the “Garde Nationale”, which Lafayette had commanded after the storming of the Bastille. This “Regiment” formed a Honor Guard for Lafayette on his trip in New York City. Subsequently, other such Regiments/Clubs adopted the name of the National Guard in his honor (and to deferent themselves from the regular Militia, which was in rapid decline by that date).

Given the legal theories of the time period these units had to stayed out of the control of the State for they were viewed as "State Troops" and Congress had not authorized the States to have them (as required in the US Constitution). Now many such units did receive money from the States and even the Federal Government, but as part of the appropriation process NOT as a change in any underlaying Statute.

During the Civil War, most of these National Guard units volunteered for Federal Service (Except in the South where the units tended to be the formation of the Southern Army). Once these units were in Federal Service and what remained of the Militia had been called out, the states realized they needed troops to protect themselves while the Federal Army was away. To solve this problem new units were formed by the states out of the remaining citizens of the states into "State Guard" units. These were the Old Militia come back to life, but in a more structured way, furthermore they tended to be all-volunteer units as opposed to the draftee/universal service nature of the Militia.

Both the State Guard and State Militia were used with great effect during the Civil War, especially during the invasion of Pennsylvania that lead to Gettysburg. After the Civil War these units were discharged and not re-formed for Congress again refused to re-form the Militia or to take over the National Guard and the State Guards. The Militia quickly died again, the Guard units were dissolved OR reverted to their previous status of being independent clubs (through the states would provide more money after the Civil War than before).

This lasted about a year (In some states decades) but Pennsylvania wanted to maintain its "Army" it had fielded during the Civil War (This had more to do with maintaining political power by appointing a lot of "Generals" than maintaining a strong "Army", but that is getting off the topic).

Since Congress did not act at authorizing Pennsylvania to keep its Civil War Divisions, Pennsylvania decided to push the definition of "Militia" to its limit. Pennsylvania formed 27 Divisions (through each “Division” only had about 100 men in each "Division" unlike today’s Army Divisions of about 15,000 men per Division). Pennsylvania than said these were NOT state troops but the Pennsylvania Militia. These 27 Divisions lasted just a few years till Pennsylvania re-formed these "Divisions" into 27 Companies of just one Division. From the formation of this Division in 1873 till 1898 (and the Spanish-American War), the Pennsylvania National Guard was the largest military unit in North America. The regular US Army was about the same overall size, but its units were never formed above regimental level. (For you non-military people out there at the time period we are discussing it was normal to have 2-3 Regiments to a Brigade, and 2-3 Brigades to a Division. This is to show you the size of the Pennsylvania Division. A regiment had about 800-1000 men in it in the late 1800s).

No change had been made in the Militia Act of 1792 (Which was a FEDERAL STATUTE) but Pennsylvania just ignored that problem and since the Federal Government did not object to the formation of this army, the Pennsylvania National Guard was viewed as legal (the Federal Government was viewed as the only person who had standing to challenge the formation of this Division and it never did).

I question that legal theory, but the Courts of the time period (1865-1903) wanted the National Guard to exist and the fact that it fits more under the concept of "State Troops" than "Militia" did not impress them. This is especially true after the General Strike of 1877 where the People backed the Strikers and thus the “Militia” (had it still existed) would have backed the strikers NOT the powers that be wanted the strike suppressed (See Pittsburgh, St Louis Military Intervention for more details).

The few Court cases of the time period had a tendency to ruled that the State could call whatever it wanted to be its Militia and that would be constitutional for only the Federal Government had standing to object to a military being “Troops” instead of being "Militia".

Given that the Federal Government did not object to the formation of the Pennsylvania National Guard, it “had” to be “Militia" not "State Troops". Since, under the US Constitution, the States can only have "Troops" with permission of Congress and no such permission was ever granted the Pennsylvania National Guard could not be "State Troops".

This remained the law in the US for the Federal Government refused to change its Militia Law (which only Congress could do and did not) BUT the President, the States and both the State and Federal Courts wanted these units to exist no matter what the Constitution said.

If you look at Article 1, Section Of the US Constitution you will see the STATES were given exclusive right to appoint officers to the Militia (This will be more important after the Passage of the National Guard Act of 1903). The Militia Act of 1792 showed HOW the Congress that wrote the Second amendment believe the Militia should be formed and the same Congress also formed up Regular Army forces. Lets look at the difference between the Militia under the 1792 act and “Troops” formed by the Same Congress:




Militia under Troops Today’s National
Under Act of 1792 1792/Today Guard

1. Part Time/Full Time.............Part-Time...............................Full Time..............Part-Time
2. Weapon, Provided by...........The Militiaman......................By Congress..........By Congress
3. Backpack, provided by.........The Militiaman......................By Congress..........By Congress
4. Uniform................................The Militiaman......................By Congress..........By Congress
5. Basic Load of Ammo...........The Militiaman......................By Congress..........By Congress
6. Weapon Stored where..........At Home.................................In an Armory........In an Armory
7. Paid br who?........................Unpaid....................................By Congress..........By Congress
8. Must Congress approve
the Officers of the Unit?...........NO.........................................YES.......................NO.

Thus if you compare today’s National Guard with the Militia Act of 1792, the National Guard is closer to the Regular Army of 1792 than the Militia of 1792. Of the Eight characteristics of “Troops” today’s National Guard complies with seven of those characteristics (Being part-time instead of full time being the only thing today’ National Guard has with the Militia of 1792).

If you take into consideration the “Dural” appointment system of today’s National Guard you further see that the National Guard are really “State Troops” not “Militia”. In the “Dural” system each National Guard unit is actually TWO units, one is the State Militia and the State appoints its officers to that unit, the other is an US Army Reserve Unit whose officers are appointed by the Federal Government. Given that the Equipment is paid for by the Federal government the “State unit” can not use the “Federal Equipment” unless the State officer and the Federal Officer are one and the same (and are paid by the Federal Government except when on State Duty, i.e. all training sessions are paid by the Federal Government).

Now the “Dural” appointment system was part of the National Guard Act of 1903 (the “Dick Act”) and every other Federal statute regarding the National Guard passed by Congress since 1903. Theodore Roosevelt had Congress pass the Dick Act for Theodore Roosevelt had served in a National Guard Unit in New York State and he wanted those units to be the new Militia (and to get rid of what he called the "Useless" Militia Act of 1792). This was the first major change in the Militia Act since 1795. In exchange for Federal recognition and funding, those state's units that agreed to come under the "National Guard Act of 1903" had to meet Federal Requirements as to equipment and training (i.e the “Dural” appointment system).

Some units did not WANT the Federal Funding (many did not need it, they had large endowments built up over the years from donations thus they did not meed ANY Funding). Others had strong connections with their state legislature and could get any type of funding from the State. Often these units had substantial assets from their years of membership as a club and they did not want to lose those assets to the then new National Guard Bureau in Washington.

Most units on the other hand wanted the extra funding for training and equipment, these units became "National Guard" units. These units accepted the requirements of "National Guard Act of 1903" and became today's National Guard units.

Those units that did NOT want to accept the Federal Requirements and Federal Control adopted the old Civil War unit designation as "State Guards".

Since 1903 the Federal Government has only funded National Guard Units. State Guard units either must be self-funding (and some are) or state funded (and some are). Pennsylvania finally abolished its State Guard in 1959, but some states still have them. Technically Pennsylvania (and any other state) can re-form (or add to any existing) State Guard any time any State wants to, but Pennsylvania has not done so since 1959. Most other states can do the same.

In effect the 1903 Act (and its successor the Universal Service Act of 1947) was a way to get around the restriction that all militia officers be state appointees. Even when the Act was first adopted in 1903 lawyers questioned its constitutionality for it stripped the rights of the states to appoint officers independent of the Federal Government (a right preserved in the Constitution) .

Please note the only “side” who would have “standing” to challenge the 1903 act (i.e. the States), did not want to challenge the 1903 act. The States preferred receiving the money for their Guard units from the Federal Government more than preserving their right to appoint officers. This is the situation regarding the Guard to this day. Given the Constitutional restriction I believe the National Guard do NOT meet the requirement of being a Militia Unit (but given that it has been approved by Congress the National Guard are valid State Troops for Congress has expressly authorized the States to have them. The fact that the Congress called them Militia instead of State Troops do NOT make the National Guard illegal (And I believe the National Guard were ILLEGAL State troops prior to the 1903 Act).

Personal Rumblings

Now as to my own beliefs, I view the original Militia Act as determinative. Pistols were know at that time and had been around for about 200 years, yet are NOT mentioned in the Section One of the Act (a "hanger" is, if you do not know, is a sword used by Officers of that time period to emphasis their Orders in Battle. Thus it is a symbol of rank, not a weapon. Pistols replaced such swords starting about the time of the American Civil War, but still as symbols of rank NOT as “real” weapons). Now Pistols are mentioned later on in the Act, but only in the formation of Calvary units, and Calvary units were restricted to no more than 10% of the total troops formed under the Act and as such not relevant to the issue of weapons for your average Militiaman.

Today, other than as symbols of rank, pistols are also carried by personal whose "main weapon" prohibited them from operating a Rifle. In 1792 such personal were primary Calvary-men and their horses. When I was in the Texas National Guard in the 1980s I was a Armor Personal Carrier (APC) driver and as such was issued a pistol. My "main weapon" was the M-106, 4.2 Inch Mortar Carrier I was to drive - NOT shoot my handgun.

Thus I believe pistols can be banned for the object of the Militia is to supply light infantrymen. Rifles (even Bolt Action Rifles) are MUCH more useful in the hands of such soldiers than are pistols. Or more accurately the usefulness of a man with a rifle or a pointy shovel (referred to as a "spade") would be more useful in the typical military operation of the militia than would be pistols. Thus pistols and even sub-machine guns can be banned for Rifles (including Assault Rifles) would be more useful in any military operation of the militia.

In the absence of a rifle, a long handed spade would be useful just to dig entrenchments and as such more useful than a pistol in military operations (and do not knock such spades, the German "Shock Troops" of WWI were squads of 12 men one of whom was only armed with a long handed spade for that very purpose. With those Shock Troops Germany almost won WWI. The Shock Troops have been referred to a the Panzer troops of WWII just without tanks. Tactics were similar, charge, bypass, and surround the enemy and destroy his lines of supply and communications. And this was done by troop equipped with Bolt action rifles, spades and one water cool "light" machine gun.

My point is the spade had higher military usability than the pistol during that time period AND HAS SUPERIOR MILITARY USABILITY TO A PISTOL TO THIS DAY. Given the wide spread availability of such spades, pistols can be banned for such spades have higher military usability.

Pistols only have military usability in two circumstances, the first as symbol of rank (i.e you command a Company of men) or to be carried by someone whose main weapon is difficult to adjust (I.e a General Purpose Machine Gun) or the weapon, while military needed, has only a limited role and the carrier may have to defend himself from other infantrymen while carrying the weapon (such as the various Anti-tank and Anti-Aircraft Missiles issued to modern soldiers. It is difficult to carry both the handheld missile and a Rifle and the missile has very limited usability against infantry).

While the above is correct, and an argument can be made if you own a proper Machine Gun or Anti-Tank Missile Launcher or Anti-Aircraft Missile Launcher or even a Tank, an argument can also be made that you can still carry a rifle while carrying those weapons. It may be more difficult but the rifle would have superior usability to a pistol and as such a ban on pistols even for these uses may be justified under the Second.

REMEMBER the Second preserves the right of the Federal Government (and by implication the States) to form the Militia as the Feds (or the states) may think best. Thus the Second does NOT stop the Federal Government or the State from standardizing militia weapons for ease of re-supply. Thus the Government may ban a weapon (such as a pistol) just because the Government only want to have to supply the Militia certain caliber of Ammunition.

Remember at the time the Second was adopted Congress had fought a long and nasty War. The fact that it is easier to re-supply an army which is using only one caliber of weapons was driven hard on them. Thus even in the Militia Act the weapon covered was .69 caliber weapon like the type the French had supplied us during the Revolution. Thus to ease supply is a valid ground to ban weapons from being militia weapons. Thus congress can ban any weapons such as pistols, no matter what military justification for the use of such weapons, simply to ease the re-supply problem.

Now Congress can not ban weapons to ban weapons under the Second, but can ban weapons in favor of other weapons (i.e ban pistols because Congress would prefer the militia to have Assault Rifles). Thus any ban must still permit the Militia to have some sort of Weapon of Military usability (i.e Assault Rifles). Furthermore the weapon NOT banned must be able to be used by the Militia as part of a TEAM effort. Any militia is made of small groups of people acting as a team (Generally on the infantry squad level). Thus Militia service is ALWAYS A TEAM EFFORT.

Thus Congress can banned weapons that it believes does not help the Militia operate as a team (in addition to any supply consideration). On the other hand Congress (and the States) can NOT ban weapons that clearly enhances the Militia to operate as a combat team (and does not interfere with any supply situation).

The test I would use is does the Weapon banned enhances a combat team more than a long handled spade? Yes, a PERSON with a pistol will beat a PERSON with a shovel, but THAT IS NOT A TEAM APPROACH. That is like saying one sides Linebackers will always tackle the other sides Quarterback, provided no one else is one the field. True but irrelevant.

The Quarterback will have things around him know as "Linemen" and "running backs". The same with people working together in any militia activity. The militiamen will act as a team and its members as members of that team. Thus the REAL question is whether a person with a pistol or a person with a spade enhance that team MORE. The other team members generally will carry rifles or shotguns. Thus will a person carrying a spade or a pistol add to combat effectiveness of a team of riflemen or shot gunners? In my opinion the answer to THAT question, is the spade user. He can dig entrenchments, in close combat he can use the spade as a defensive weapon to defend himself till the other members of the team can help him out. Thus a person with a spade enhances an infantry squad.

You cannot say the same of a person with a pistol. Given the range of even most shotguns, the pistol carrier can not add to the fire-power of the squad (He is outrange by the Shotguns), he can still warn his fellow team members but in close combat drills (i.e. within 2-3 feet) he is no better than the person with the spade, and since the pistol can not be used to dig entrenchments, does not even bring THAT enhancement to the team.

My point is you cannot view a man with any particular weapon in isolation. Such a person is NOT acting like a member of a militia. You must look at what any particular weapon brings to a group of people working as a team. In most cases (there are exceptions but in the majority of cases) a person with a spade will add more to a team of militiamen than a person with a pistol.

The pistol does not add to the power of such an ad hoc infantry team, while the spade does add to such a team by the simple means of helping the members of the team better survive any attacks by hostile fire.

Thus given today's combat needs (and supply needs of today's battlefield) I do not believe that Congress can NOT ban Assault Rifles but can ban pistols.

Web sites for the General Strike of 1877:

http://www.socialistappeal.org/uslaborhistory/great_rai...

http://www.plp.org/labhist/wlpittsb1877.pdf

http://www.pittsburghaflcio.org/railroad.html

http://college.hmco.com/history/readerscomp/rcah/html/a...

http://www.ranknfile-ue.org/uen_1877.html

http://users.crocker.com/~acacia/text_gsif.html

http://archive.ncsa.uiuc.edu/Cyberia/RiverWeb/Projects/...

http://www.plp.org/labhist/rrstrike1877.pdf

Solidarity

http://www.ce-review.org/01/27/solidarity27.html

http://www.needham.mec.edu/high_school/cur/Baker_00/200...

The Russian Revolutions of 1917 (I found a lot about the revolution and the subsequet Civil War, but few on the actual revolution here is one site):

http://www.emayzine.com/lectures/russianrev.html


The German Revolution of 1918

http://mars.acnet.wnec.edu/~grempel/courses/germany/lec...


Here are some sites that have arguments on the Text of the Second, many make other arguments also, but I included them because you wanted information regarding the Text of the Second Amendment.


http://www.ccrkba.org/1999Emersoncase2amend.html

http://battleflags.tripod.com/embaras.html

http://www1.law.ucla.edu/~volokh/2amteach/interp.htm

http://www.saf.org/LawReviews/Dowd1.htm

http://www.gunlawsuits.com/defend/second/articles/twent...

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=118&topic_id=54194&mesg_id=54332

I wrote the following on "Militia" and "State Troops" in Feburary 2012:

And the difference is important for both terms are used in the US Constitution. Militia is to be organized according by Federal Law, but the officers are to be appointed by the State, but State Troops are NOT legal unless Congress permits the States to have such troops. The Second amendment goes to the issue of the Militia, but does NOT mention "State Troop".

Both terms, "Militia" and "State Troops" are undefined in the US Constitution, so we have to look elsewhere for what was meant by both terms. This is complicated by Hamilton's Federalist paper on the Militia which is the only Federalist paper that addresses the Militia. In that paper, Hamilton describes how he would organized the Militia not how it was organized. The good part of Hamiton's paper is that he addresses how he could form most of the Militia and he uses the term militia to include EVERYONE, not just volunteers. Please note after the Constitution was passed, the Congress rejected Hamilton's idea of a two step Militia, a Select Militia and a Regular Militia, opting instead for a universal Militia (i.e. Every male between the ages of 18 and 45 were members of the Militia).

Yes, the terms "Militia" is NOT defined in the US Constitution nor the Bill of Rights. The traditional way of interpreting terms used in the Constitution is to see how the First Congress handled those same terms. In the Militia act of 1792 (Re-passed as the Militia Act of 1795, after the Bill of Rights were passed, but without any significant changes) sets forth that the Militia consisted of every able bodied white male between the ages of 18 and 45 years of age.

There are problems even with this, for Washer Women were NOT addressed in the Militia Act of 1792. yet the practice for at last 1000 years was that for every 20 men, there was one Washer woman (And that would continued in the US Army till the late 1880s, when Congress would outlaw Washer Women, a Statute still on the books for the simple reason if it was repealed the Common Law Rule would come back into place).

Yes, 5% of a military unit's personel (i.e. The Washer women) were NOT addressed, for the simple reason it did NOT have to be addressed, the law was clear, you had 20 men (A traditional Platoon), those 20 men were assigned one Washer Woman (Who tended to be the Platoon's Sargent's wife or other female relative, I mention this for a lot of folks today confuse the Washer Women with the Camp Followers, Camp Followers followed the Camp, washer women were INSIDE the camp).

I bring up washer women for it clearly shows the Militia Act of 1792 was written based on Congress's view of traditional military unit make up, and did NOT address what that unit consisted of unless Congress wanted to make a change OR to make something clear.

Side Note: The Militia Act of 1792 was the law of the US in regards to the Militia till the Dick Act of 1903, which created the Modern National Guard. One of the reason for the Dick Act was the question of Constitutionality of the National Guard for it was a Volunteer unit NOT a unit of all males in the State. The State Courts had long upheld the National Guard as the Militia on the Grounds the State Legislature called it so (And the National Guard was viewed by the States as a more reliable instrument to put down labor strikes then the Traditional Militia, and after 1865 the Courts came to oppose labor strike and would uphold almost anything that could be used to put down Labor Unions, in fact the Sherman Anti-Trust Act only passed Congress on the grounds it could be used against Unions, and was used against Unions, till the Clayton Act exempted Labor Unions from the Sherman Anti-Trust Act).

Side note #2: As I said the State Courts wanted the National Guard to be Constitutional so ruled it was, the Federal Courts avoided the same issue for they also wanted to rule the pre 1903 National Guard a Constitutional Militia, but it was feared that the Courts would look at the Militia Act of 1792 and ruled it was clear that the National Guard was NOT Militia and thus unconstitutional without Congressional authorization (The State Courts ruled that since the Federal Government did NOT sue the state to put down the National Guard, the National Guard was constitutional as either a group of people assembling as guaranteed under the First Amendment or a legal Militia under the Militia Clause of the US Constitution). The Federal Courts avoided the Issue on the Grounds of Standing, i.e. only the Federal Government had Standing to sue the States over the National Guard, and only the President had Standing to sue the States on that issue.

What is the difference between "Troops" and "Militia"? Today it is claimed the difference is one of full time or part time. i.e. The National Guard, like the Regular US Army issues its personnel, Weapons, Field Equipment, ammunition etc, and the Soldiers are PAID for the time period they are called into service. The difference between the Reserves of today (Which includes the National Guard) and Regular Troops is that the Reserves are paid for one week end a month, two or three weeks annual services (and paid when called up for other service or training). I.e. the Reserves are NOT full time, the Regular Army is full time.

In the 1792 Militia Act, the Militia was defined as EVERY WHITE MALE BETWEEN THE AGES OF 18 AND 45 (Under the Post Civil War Amendments, the term "White Male" includes ALL MALES). Furthermore such Militia men had to come equipped (i.e Supply THEMSELVES NOT by the State or Federal Government) the following:

1. A .69 caliber Musket (Or a Rifle, if a member of a Rifle Company)
2. A pack, with tent, and blankets,
3. 20 rounds of Ammunition
4. Personal Clothing.

The Regular forces of the time period had all of those items issued to them. The modern equivalent is issued to the Regular and National Guard units of today. Thus the only difference between Regular and Reserves forces today is that the Regular units are Full time the Reserve units, are Part Time. The problem is even in the 1790s, regular forces were know to have "Reserves" independent of the Militia, whose arms, equipment and Ammunition was supplied to them, while the Militia had to provide their own.

Furthermore Militia was NOT something you volunteer for, you went because you were called up NOT because you volunteered to be called up (In the battle of New Orleans, even the men who were to poor to own a musket were called up for duty and told to bring clubs, to be used against British Regulars if the Regulars broke the US lines, these club bearers were to charge the break through and try to push the British back, fortuity they were not needed).

The modern concept of Reserves, can be traced back to some French units in the early 1700s, but came into full play after the Defeat of the Prussian Army by Napoleon in the Battle of Jena in 1809. In response to that defeat Prussia developed the modern reserve army concept (Napoleon restricted the size of the Prussian Army, thus to get around that restriction Prussia would train men, then "discharge" them to a reserve status, and called up additional men for training, thus keeping the total of Active Forces within the limits set by Napoleon, Napoleon had put no restrictions on Reserve forces of Prussia just active forces).

The key difference between these Reserve Forces and the older Militia was that the men were centrally trained, all clothing, arms, ammunition etc was provided by the State. Most of Europe by the time of WWI, had replaced their older Militia with similar reserve units (Most importantly France after its defeat in the Franco-Prussian War of 1870). Britain and the US tended to be the only exception to this transformation do more to domestic politics and the desire in the US to keep the Militia available for State use against Strikers.

This change was noted even in the 1800s, the joke being, every Prussian male was in the Army, with all of them were on 11 month leaves. The Dick Act was an attempt to convert the older US National Guard Units (Which tended to be clubs more then anything else) to a proper Reserve in the Prussian tradition, but retain they use as strike breakers (The true Militia like Universal Military Services as in the Prussian reserve system tended to make units less reliable in such domestic disturbances and thus disliked in the US after the General Strike of 1877 and similar disturbances in Britain in the 1830s. These units, the True Militia and the Universal Military Service units tended to include people who had gone on strike and/or supported the strike and thus NOT usable to put down such strike. No one wanted a repeat of what happened in Pittsburgh in 1877, The Philadelphia Brigade opened fire on Strikers, when the Pittsburgh Brigade saw that, they stacked arms and left, leaving the Philadelphia Militia not only facing strikers to their front, but on their flank where the Pittsburgh Militia had been, The Philadelphia Militia then retreated and was rejoined by the Pittsburgh Militia after their officers talked they men to come back, but then the Roundhouse the National Guard had retreated to burned to the ground and the Militia retreated out of Pittsburgh, once in Butler county was discharged from further duty).

The 1877 series of Strike, known as the General Strike (It went from Baltimore to St Louis, St Louis was actually run by a Commune type government during the height of the Strike) saw both Regular US Troops and National Guard Troops being used to put down the strike. This strike had a huge affect on State and Federal Courts wanting to uphold the National Guard as "Militia" for the Federal Government, which was evenly split between the two parties, could not pass any law making the National Guard into Federal Service (The practice done during the various Indian Campaigns after the Revolution to 1877, and for the War of 1812, Mexican War and the US Civil War). Thus the National Guard had to be Militia, even through it was made up of people who joined it as a club NOT the full call up of all men between the ages of 18 and 45 as set forth in the Militia Act of 1792 (Which was still the law of the Land in 1877). The Pennsylvania National Guard of 1877 issued weapons to its enlisted ranks AND issued uniforms and other equipment just like a Regular Army unit did at that time period.

I bring this all up for the issue that the National Guard is NOT the Militia has been avoided in the various gun control cases that have reached the US Supreme Court. What is meant by the term "Militia"? Does it have to be universal (as both the 1792 Militia Act states AND as Hamilton stated as to Militia) or can it be an "select" Militia (The term Hamilton used for a smaller, better equipped and trained Militia within the Regular Militia of his time period). What is the effect of the state providing weapons and Equipment as oppose to the Militia bring it themselves? I can not believe the difference is solely do to being full time or part time, for the Reserve Troops have always been part time, except when called into service, but that is also true of the Militia.

My position is simple, the Militia consist of all persons of the US. The US can restrict who can be called up and when, but that can be changed as needed. The State has the right to form the Militia if it wants to, but unless Congress states otherwise, it must consist of everyone in the state, with reasonable exceptions (i.e. Medically unfit, member of an exempt class of people, exempt for various reasons mostly due to the fact they have important functions elsewhere in time of a crises, firemen, police officers, judges, etc. Not Doctors or Nurses unless members of a emergency Hospital care unit or taking case of patients with ongoing medical problems). Volunteers do not cut it, for they are NOT everyone. I would not even exempt women, for most of the work of the Militia has been non-combat duties in support of regular and reserve forces that do the actual fighting. If the state calls the Militia into Service, it should be universal, including both combat and non-combat units.

The National Guard, do to the fact they are volunteers, paid, equipped and armed by the State and Federal Government are State Troops and thus only constitutional on the grounds Congress has authorized them ever since 1903. The National Guard is NOT militia, no matter what the State and Federal Government claim them to be.

The problem, unless these units do something to someone that only they can do (i.e. hard to show, most cases, these Militia will work under a Police Officer authorized under the General Police Power reserved to the States) the only person who has standing to challenge the existence of these units is the President of the United State (and historically the President has supported the National Guard and these other Guard units for they tend to be very politically powerful).

I doubt that Obama (or actually his Attorney General) will attack the existence of these units for it would be to costly politically for him to do so. It is the perfect case to get the Supreme Court to rule on the issue, but only if the President actually files an action. No one else can for no one else has standing (The President has standing for if such units are "State Troops" such "State Troops" have no right to exist without Congressional approval and as Commander in Chief the President has the right to enforce the protection of the Federal Government from any encroachment by any state of any power reserved to the Federal Government).

It will be hard for anyone else to claim standing, thus no one challenged the National Guard from its start as Clubs in the 1820s (as the regular Militia deteriorated due to lack of any foreign enemy after the Native Americans were driven from the East Coast right after the War of 1812). These Clubs adopted the name National Guard in honor of Lafayette when he came back to visit in the 1830s. At times Congress even provided such units money and arms, but no authorization till the Dick Act of 1903.

Even after the passage of the Dick Act, the Courts kept ruling no one had standing to challenge the Dick Act on the ground only a State could (and the State liked the idea of the Federal Government giving them money for the National Guard so no state wanted to lose the funding, so no state has ever made such a challenge). There are problems with the Dick Act and the 1947 Act that replaced the Dick Act and threw the National Guard with the Army and other services Reserve components of Regular Forces) but no state has even made a Constitutional challenge of it for no state has wanted to lose funding for its National Guard units.

Arizona is giving Obama the ability to attack the National Guard as Militia. The National Guard and Obama will suffer no harm if a court would rule the National Guard is State Troops, for Congress has authorized the National Guard thus the National Guard since 1903 has meet the Constitutional Requirement that any State Troops be approved by Congress.

These "Guard" units are a different matter. Are they Militia or are they State Troops? If the later, Congress has NOT given permission for Arizona to have them and thus they are unconstitutional. It is a perfect case for Obama to seize and stop these troops from doing any harm, but is he willing to do so?

http://www.democraticunderground.com/101451026

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Response to TahitiNut (Reply #69)

Mon Jul 30, 2012, 11:45 AM

78. Great piece, nut, but

I don't understand how 'fascist' follows. (NOT saying he's NOT, but trying to understand the logic.)

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Response to elleng (Reply #78)

Mon Jul 30, 2012, 01:03 PM

82. I rely upon Mussolini's own (alleged) definition of 'fascism' ...

... as the merger of state and corporate power. (Mussolini, of course, shared an ethnic heritage with Scalia. Irony.)

"Fascism should more properly be called corporatism because it is the merger of state and corporate power."

It must again be emphasized that corporations cannot even exist without the legislated framework and state enforcement thereof.

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Response to TahitiNut (Reply #69)

Mon Jul 30, 2012, 01:14 PM

84. Without Constitutionally protected personal privacy,

how can we be "secure in their persons, houses, papers,and effects?"

No, really. How can our "persons" be secure without privacy?

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Response to TahitiNut (Reply #69)

Mon Jul 30, 2012, 04:15 PM

111. The privatiztion of military power.

"We should very carefully note, however, that private corporations do possess such weaponry. The 'privatization' of far too much of government military power has resulted in a recent increase in the extent to which such WMD are in private (corporate or conglomerated) hands. Thus, it makes sense to have limits on the power of weaponry covered by the 2nd Amendment ... i.e. nukes, howitzers, bombers with payloads, and fully automatic rifles and pistols. It does NOT, however, make sense to fail to have a Universal National Service policy that engages every adult between the ages of 18 and 65 in a "well-regulated militia." (The Swiss model is but one example.) "

I have been reading the book, A Distant Mirror by Barbara Tuchmann. It was written in the late 1970s, and it describes life in the 14th century. Chivalry was in its death throes. Men who thought themselves to be aristocratic and therefore entitled to parasitic lives paraded around dressed as knights, pretending that war -- killing and maiming and destroying -- over titles and land was a noble occupation.

Tuchmann describes the "companies," marauding groups of mercenaries, armed to the hilt (for the time) who, during the 14th century, sought to enrich themselves by killing and stealing from defenseless communities as they swept through Europe, especially France.

When not hired for war, they just terrorized the countryside.

Tuchmann describes at least two instances in which the French started foreign wars in part in order to draw these mercenaries away from France. That is how desperate the French were to enjoy their peace without these gangs.

The mercenaries of today are international and even more dangerous. And what is to stop them from being, for a price, turned back on us. What national loyalties do they owe to anyone really? Once you kill for the money, what is to prevent you from turning and killing your own compatriots?

It's a fascinating book, but very long -- 600 pages. Wow! Though. What a great read!

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Response to JDPriestly (Reply #111)

Mon Jul 30, 2012, 05:25 PM

124. As good as "Pillars of the Earth"??

I need a good read like that right now.

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Response to TahitiNut (Reply #124)

Mon Jul 30, 2012, 06:41 PM

128. A Distant Mirror is a much more difficult read.

It is a historical account, not a novel. I loved Pillars of the Earth too.

Barbara Tuchmann writes very well, but this book is based on the facts -- 600 pages of them. And when the historical record is questionable, she points it out.

In Chapter 14 entitled "England's Turmoil," pages 284-285 in my paperback edition, Tuchmann writes about England in April 1376:

"Seventy-four knights of the shire and sixty town burgesses made up the Commons of the Good Parliament. Acting with some support from the Lords, they demanded redress of 146 grievances before they would consent to a new subsidy (which King Edward III had requested 'to prepare for the prospective end of the truce a year hence'). Their primary demand was the dismissal of venal ministers together with the King's mistress, who was generally credited with being venal and a witch. In addition they wanted annual Parliaments, election rather than appointment of members, and a long list of restraints upon arbitrary practices and bad government. Two of their strongest discontents were directed not against the government, but against abuses of a foreign Church hierarchy and the demands of a laboring class grown disobedient and disorderly. These issues, too, were great with significance: one was to lead to the ultimate break with Rome and the other, much sooner, to the Peasants' Revolt."

As you can see, A Distant Mirror is a more difficult read than Pillars of the Earth. But it answers a lot of the questions that Pillars of the Earth raises about the history of the 14th century.

Thanks to this book, I now know how to respond to the anarchists, the anti-government people.

And that is to say that there will always be some sort of government. We have no choice. Someone takes charge. If the people do not form a democratic government, a despot will grasp power by force. And as stupid and difficult as a democratic government can be, a dictatorship with some self-centered and perhaps very cruel despot in charge, would be much, much worse.

In addition, this book is an interesting study in how ideas first expressed in one generation or even century spread and become important ideas in future periods.

John Wyclif wrote De Civili Dominio (On Civil Authority) in approximately 1360-1374 in which he advocated for the "disendowment of the temporal property of the Church and the exclusion of the clergy from temporal government." Tuchmann, page 287. That idea ended in King Henry VIII's and Elizabeth I's establishment of the Church of England and contributed to the start of Protestantism. Very interesting how history moves forward.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:20 PM

6. Women have no right to contraceptives but Americans have the right to own rocket launchers...

under the Second Amendment...that's what this same numb nut said on Fox "News" this Sunday. Clearly this man is crazy.

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Response to Viva_Daddy (Reply #6)

Sun Jul 29, 2012, 02:31 PM

13. When these zealots outlaw abortion they will outlaw birth control, viagra seems safe.

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Response to Viva_Daddy (Reply #6)

Sun Jul 29, 2012, 03:33 PM

28. ?????

scalia can't help himself. truly challenged people usually can't

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:22 PM

7. scalia's interpretation of the constitution is that he can vote however he damn pleases.

the constitution doesn't require him to explain himself, nor does it require his explanations do be consistent or make any sense.

presumably the constitution doesn't permit people to have sex at all, or even to masturbate. i mean, it's not mentioned in the constitution, right?

except that the 9th amendment states the enumeration of rights in the constitution can't be used to deny or disparage other rights retained by the people, which is exactly what scalia is doing.

but like i said, he believes he can vote however he wants, the constitution doesn't require his votes to be consistent with the constitution. to him, that's just a silly tradition that he pretends to follow.

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Response to unblock (Reply #7)

Sun Jul 29, 2012, 02:25 PM

10. No, he doesn't,

and he explains his positions well. His positions, however, are founded on as foolish premise, in my opinion and that of others, like Justice Breyer. See my post #5 above.

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Response to elleng (Reply #10)

Sun Jul 29, 2012, 02:56 PM

19. originalism provides a convenient framework for justifying decisions that he comes up with first.

he does not believe in originalism and follow it to its logical conclusion and vote accordingly. if the result of a logical application of originalism were to lead to a liberal conclusion, he would find some way to justify a right-wing vote. perhaps by focusing on the text or original meaning of one part of the constitution while ignoring some other part.

read bush v. gore again and tell me he actually believes in originalism and can put his own preferences aside and vote according to his cherished originalism. he upheld upheld unequal voting methods across the state by denying unequal recount methods across the state. so his originalist interpretation was that the founders would have wanted to disenfranchise people who cast legitimate ballots because a scanner didn't read them properly, or because they wrote in and ticked the box for the same person?

if he honestly thought that florida's system was unequal and the prescribed recount couldn't constitutionally solve it, he should have thrown out the ENTIRE florida election, which would have let the florida legislature determine how to cast its electoral votes, which would have led shrub to being made president ANYWAY.

but then shrub would have had even less credibility, and scalia didn't want that, so he came up with a completely nonsensical rationale for voting his preference.


bottom line is that "originalism" doesn't always mean right-wing, but "scalia" pretty much always means right-wing.

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Response to unblock (Reply #19)

Sun Jul 29, 2012, 02:59 PM

22. He can expand or limit his interpretation of originalism based on his personal goals.

He says it's rock solid then manipulates it for his own aims.

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Response to Kablooie (Reply #22)

Sun Jul 29, 2012, 03:11 PM

25. exactly, thank you, much more concisely put :)

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Response to Kablooie (Reply #22)

Sun Jul 29, 2012, 05:03 PM

45. Beat me to it!

Scalia ignores Originalism when it conflicts with his political agenda.

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Response to unblock (Reply #19)

Sun Jul 29, 2012, 04:33 PM

36. I am not arguing with you but I see things a bit differently

It is not just the written letters in the words of the law that matter, it is also the intent. One of the biggest horrors in that Supreme Court ruling was that the Constitution does not empower the Supreme Court to become involved in state elections; it delegates that right to conduct Presidential elections to the states themselves, provided each outlines the rules in their state constitutions prior to the election. This Florida had done.

Two years prior to election 2000, there was a contest of a mayoral election by a candidate who disputed his loss. The "winner" of that election was in office a good amount of time before the lawsuit was resolved. It turned out the candidate actually occupying that seat did not literally win, and the plaintiff in the suit was declared the victor. Resolving this kind of debacle would not happen again, the Florida legislature amended its state constitution to modify the procedures for contesting/protesting an election. The revised rules were the ones Gore went by, and the Republicans, who were using the old rules, ridiculed him saying he was a sore loser.

The last word in that 2000 election properly belonged to the Florida Supreme Court. In that opinion, that Court said "the right to vote is paramount", which to me is indisputable. That Court ordered the resumption of the recount, which the Supreme Court using that equal weight rule and also falling back on the Safe Harbor provision blocked. It had absolutely no legal justification to interfere. The Florida Supreme Court should have had the last word.

But the threats you mention the Florida legislature having made previously to still send a Republican slate to the Electoral College even if Gore prevailed in the recount was also an unconstitutional move. One cannot change the rules of the election (Constitutionally) after the popular vote but before the counting of the electoral college votes for that particular election. In order to be valid, if rules are changed after an election, they cannot go into effect until the next election. This is to prevent the "fixing" of election results, which of course was what the Florida legislature was attempting to do, but had they actually done this, the Electoral College could have not counted that slate from Florida (and there was precedent (yes, rare, but existing) for doing so. This latter information is discussed by David Bois in his book Courting Justice but unfortunately, this argument was not publicly presented during the recount controversy to offset Republican threats.

In hiding behind that equal weight argument and the Safe Harbor provision, the Supreme Court discounted 51 million votes nationwide. I ask you, how can one argue a failure to apply the equal weight argument is less than fair to those who voted the first time in a state election and more fair to those whose votes were not counted as a legal means to justify what happened in one state as a weapon to punish the voters nationwide? It can't be logically justified.

And speaking of logic, that Safe Harbor provision was written by the authors to ensure that the pony express riders left on horseback on time, carrying the slate of electors vote to the Electoral College in time to be included in its official count. In the days of electronic submission, Federal Express, UPS and other alternatives, exactly why would one observe the literal words of the Constitution rather than the intent. The intent of those words was states needed to get their results to the Electoral College in order for them to be counted, an intent totally disregarded by Scalia, et. al.

On so many levels, that Bush v. Gore Supreme Court decision should have never happened. On another level, I continue to be appalled at Scalia's distortions on these issues and his chronic appearances on cable totally misrepresenting the facts to the public. And no one contradicts him. The last appearance he made when he referred to the Bush v. Gore decision, he said the Supreme Court decided the case because that was what Gore wanted. That was always Jim Baker's goal from the inception of the controversy, to get the issue to the Supreme Court, which he knew would rule in Bush's favor. Gore was always opposed at that point to the courts deciding the issue because the knew at least half the Country would never recognize the winner of a lawsuit as the legitimate winner of the election. And so right he was about that.

I apologize for this long post, but this is one issue that always sets me off.

Sam

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Response to Samantha (Reply #36)

Mon Jul 30, 2012, 04:37 PM

115. Thanks.

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Response to unblock (Reply #7)

Sun Jul 29, 2012, 04:29 PM

35. He thinks he's providing us a service when he deigns to explain

anything to us peasants. This nasty little piece of work has never been fit to serve on ANY court.

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Response to unblock (Reply #7)

Mon Jul 30, 2012, 04:27 PM

113. Besides, the Constitution insures freedom of religion and separation of church

and state. It would be a violation of the First Amendment for Scalia to impose his religious ideas about birth control on the American people, and it would also be a violation of the First Amendment for him to allow state governments to impose those ideas on the American people.

Or does he also deny that the 14th Amendment requires that states grant to citizens the rights retained by us under the Bill of Rights.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:23 PM

8. IMPEACH Fat Tony.

He's literally insane.

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Response to Zoeisright (Reply #8)

Mon Jul 30, 2012, 01:49 PM

90. I'll second that.

Kick & Rec!

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:23 PM

9. Without an underlying right to privacy, there IS no U.S. Constitution

Last edited Mon Jul 30, 2012, 01:47 AM - Edit history (4)

because without an underlying right to privacy, there is no:

- freedom of the press,
- freedom from self-incrimination,
- protection from unreasonable search and seizure, or
- due process.


rocktivity

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Response to rocktivity (Reply #9)

Sun Jul 29, 2012, 10:58 PM

61. With no right to privacy

we have the right to call the men in white suits.

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Response to rocktivity (Reply #9)

Mon Jul 30, 2012, 02:57 PM

104. The argument doesn't follow.

Particular rights can be strongly implied even if a general right can't be inferred.

You need privacy for freedom of the press because if you can be compelled to give up sources for any reason then you will have far fewer sources. It's not a yes/no freedom/no-freedom but one of extent. Still, we side with more freedom of the press and that means privacy for sources. It's not absolute: Journalists can be legally compelled to give up sources.

You also need privacy for conspiracy or covering up a murder. There is no privacy there. None. You don't have to confess. But a right to obstructing the law isn't exactly in the Constitution. Perhaps it should be. Probably not.

Or let's look at a more narrow case. My health arrangements are entirely between me and my doctor, and my insurance is entirely between me and my insurance company (who pays the doctors). My insurance provisions are strictly between me and my employer (who largely pays the company), and made known, to the extent necessary, to my doctor.

So why does my employer have to fess up concerning my insurance status? Or why would I? Now, it's written in a limited way to comport with other privacy statutes, but if my employer and I agreed to have coverage less than legally required, and my insurance company agreed, why is it the government's business? Don't I have a right to privacy?

It's even put into law in a weird way. Let's assume I do have the right. Then I would be hit by a penalty/tax. It's like having freedom of the press where sources are confidential, but journalists have to pay a $1000 tax unless they divulge their sources. It meets the requirements of the law and Constitution, right? Then privacy's respected--taxed, but respected.

Not that I especially like this kind of reasoning. But it does mean that you have limited privacy and that the government, when it suits the government, when it finds a reason that the courts think sufficient (which often means 'enough of the population finds sufficient') has no reason to respect it.

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Response to Igel (Reply #104)

Mon Jul 30, 2012, 04:43 PM

116. You have a right to privacy with regard to your medical information.

That is HIPPA.

You don't have a right to privacy with regard to the compensation you receive from your employer. The health insurance you receive from your employer is a part of your compensation. Therefore you have no right to privacy about your health insurance.

There is a distinction between your medical information regarding which you have the right to privacy and your health insurance information regarding which, if you receive insurance from your employer, you have no right to privacy.

The self-insured have a choice. They can choose to protect their privacy with regard to the status, type, etc. of health insurance they are purchasing or obtaining or, they can pay the additional tax or penalty (as you wish) to the government to help cover the costs of healthcare that may not be covered by their insurance.

The important thing is that as many people have insurance as possible without intruding on anyone's privacy. And that is what the ACA achieves.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:25 PM

11. Republicans like that position on the Constitution becuase it allows slavery...

 

which they are trying very diligently to resurrect.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:28 PM

12. Serving his corporate overlords is all Scalia knows.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:42 PM

15. I am anti-abortion, for one reason, BECAUSE we have the right to birth control.

I don't think it would be such an issue if all women had the right to birth control. And, it should be free, taught in our schools at an early age, to both males and females. It is, besides a matter of rights; also just a matter of good public policy.

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Response to Th1onein (Reply #15)

Sun Jul 29, 2012, 04:21 PM

34. except that

#1 Not all pregnancies are valid; meaning healthy babies.
#2, NONE of the birth control methods are 100% effective. None of them.
#3, what about the still born? How long is a women supposed to carry a dead child?

Sure, most abortions are performed in the first trimester but some things are simply not detected until the 20 week ultrasound. Proof of point, my neighbor was pregnant with her second child. At her 20 week ultrasound they discovered the baby was developing without a brain and not much of a skull either. At first, she wanted to abort, but she choose to birth the child later. And, what about women who couldn't emotionally carry that baby to term? I believe they should be allowed to abort even at 20-21 weeks. I would normally agree with your stand - no abortions because there is plenty of birth control to be distributed to women, but sometimes, babies just don't make it. If they outlaw abortions at that stage, she would have faced what? Prison?

And what about the case of my nephew? He died in womb at 8 months. They induced labor but he was dead.

My neighbor's baby that I refer to died 40 minutes after birth (8 months gestation without inducing).
Good story ending, she gave birth to a healthy girl about 18 months later as did my sis-in-law who lost the still born. Two totally different situations, both wanted the child but the babies didn't survive.

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Response to LittleGirl (Reply #34)

Sun Jul 29, 2012, 05:24 PM

50. Partial birth abortions ....

What the right wing is not telling people is that these babies are DEAD inside of their mothers, most of the time. And they are so misogynistic, they condemn women to carrying these dead fetuses to term.

I think that there are exceptions to every rule, of course, and that each case needs to be taken on a case by case basis. But I don't think that you should have the right to have an abortion simply because you don't want another child and you are still in the first trimester.

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Response to Th1onein (Reply #15)

Sun Jul 29, 2012, 05:24 PM

49. Go look up harlequin icthyosis and get back to us

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Response to Occulus (Reply #49)

Sun Jul 29, 2012, 11:49 PM

62. My son was borh with and died of cystic fibrosis

He loved life and I would never have deprived him of a day of it, even if I HAD known he had the disease, before I gave birth to him.

I don't believe it is our decision to make.

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Response to Th1onein (Reply #62)

Mon Jul 30, 2012, 03:12 PM

105. I am very sorry for your loss.

I do not think you comprehend what Scalia is saying. But, don't feel bad, it is clear he does not understand what he is saying, either.

"Under the principle of originalism, the Constitution "simple doesn't cover" abortion," he added. "Which means it's left to -- it's left to democratic choice as most things are, even important things like abortion."

I do not see where Scalia would overturn a state law (democratically passed) that would force women to have abortions against their will. If states can vote to outlaw abortions, they can also vote to mandate them.

What if insurance companies decided fetuses with cystic fibrosis are too expensive to care for when they are born? It is no longer beyond the bounds of reason that the insurance companies could buy (bribe) all the state representatives and order them to pass a law to mandate forced abortions for fetuses with expensive diseases. If the representatives and governors refuse, the insurance companies will just buy (with their unlimited campaign contributions) the next election for more obedient candidates.

The only way to prevent this nightmare scenario is to make sure decisions about birth control and abortion are always left to the individual.

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Response to MsPithy (Reply #105)

Mon Jul 30, 2012, 04:00 PM

110. I think that you are mistaken; I understand perfectly what Scalia is saying, and I do not agree with

him at all. We DO have the right to birth control. And it's none of his or anyone else's business when we use it, what kind we use, of if we use it. And, just in terms of good public policy, it should be proviced to us BEFORE we come to the age where we begin to experience sexual urges. We should also educate our children on how to use birth control, both male and female.

(Not to get off of the subject, but we should REQUIRE parenting classes, of all students before they can graduate from high school.)

I don't think that it is necessarily true that if a state can outlaw an abortion they can also mandate them. I think that our laws need to be on the side of life; period. Insurance companies ALREADY decide that babies who are born with CF are too expensive to care for, and refuse to insure them.

These are both slippery slopes. If abortion, which I view as a homicide is okay simply because the human being is not able to communicate their wish to live, then why shouldn't we be able to kill people with Alzheimer's, too?

It is all a matter of degrees. I set my stop point here, and you set yours there, both based on the way that we define when human life begins.

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Response to Th1onein (Reply #62)

Mon Jul 30, 2012, 04:47 PM

117. What if going through with the birth would assuredly lead to the deaths of both

the mother and the child?

That is not as rare as you might think.

Is there any point in endangering both the lives of the mother and the child?

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Response to JDPriestly (Reply #117)

Tue Jul 31, 2012, 11:08 PM

140. Obviously not. Of COURSE not.

If they are going to die, then the pregnancy needs to be aborted.

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Response to Th1onein (Reply #15)

Sun Jul 29, 2012, 05:30 PM

53. What about rape? A woman should carry a rapist's baby?

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Response to Arugula Latte (Reply #53)

Sun Jul 29, 2012, 11:50 PM

63. Yes.

I don't believe it is right to deprive the child of life simply because of how it originated.

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Response to Th1onein (Reply #63)

Mon Jul 30, 2012, 09:11 AM

72. So no morning after pills for rape victims?

I find your viewpoint repugnant.

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Response to msanthrope (Reply #72)

Mon Jul 30, 2012, 01:13 PM

83. Absolutely morning after pills, for anyone who wants them, including rape victims.

Morning after pills are the greatest thing since sliced bread, in my opinion.

Look, let's not get into the name calling, okay? We are both adults, and both females. We simply have different opinions. Until people with different opinions can come together to discuss these things without attacking each other, personally, we're never going to get anywhere, much less focus on the problems associated with those who want to take our rights away from us simply because we are women.

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Response to Th1onein (Reply #83)

Mon Jul 30, 2012, 02:20 PM

94. No name calling. I agree. Let's suss this out, though....

If you are against abortion of a rapist's "child", then why are you for morning after pills?

The thing I wonder....ensoulment has already taken place, according to some doctrine. Is this a doctrine I am unaware of?

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Response to msanthrope (Reply #94)

Mon Jul 30, 2012, 02:38 PM

98. I'm not particularly into the idea of "ensoulment," whatever that is.

I think that we differ on what constitutes a living, viable being, and when that happens, that's all. I think that we have to use our heads about this.

I don't think morning after pills do anything but make sure that the fertilized egg doesn't attach to the lining of the womb. This, in my mind, is not an abortion. Certainly, though, for people who believe in things like "ensoulment," this is a slippery slope.

I'm not of the mind, necessarily, that a fertilized egg constitutes a viable human being, but I do think that when that egg begins to divide and create a heartbeat and nerve cells, etc., that you've got a human being there. Abortion, as we practice it, takes away the life of that human being. At least, in my opinion, anyway.

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Response to Th1onein (Reply #98)

Mon Jul 30, 2012, 02:47 PM

102. Well...you use the word, "viable."

Tell me what that means.

Because here's the thing.....you seem to think if a rape victim has the unfortunate experience of having a pregnancy to the point of a heartbeat, she's up shit's creek without a paddle.

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Response to msanthrope (Reply #102)

Mon Jul 30, 2012, 03:48 PM

109. Likely to be able to survive outside of the womb if brought to term.

Yes, I do think that a rape victim should carry the child to term, if they don't take a morning after pill.

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Response to Th1onein (Reply #109)

Mon Jul 30, 2012, 05:01 PM

120. But that avoids my question to you..should denial of the morning after pill

be legal?


It's one thing for a a rape victim to choose not to take it.

But do you deny that it is good medical practice to offer it, unreservedly, to rape victims?

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Response to msanthrope (Reply #120)

Mon Jul 30, 2012, 05:09 PM

123. I didn't avoid your question.

No one should deny rape victims the morning after pill. And, yes, I think it is only logical to offer it to rape victims.

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Response to Th1onein (Reply #123)

Mon Jul 30, 2012, 05:48 PM

125. Okay. What if doesn't work?

Or what if a rape victim cannot avail herself of a hospital.

What then?

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Response to msanthrope (Reply #125)

Tue Jul 31, 2012, 03:01 AM

134. Then nature takes it's natural course.

And you have a child. If you don't want it, then give it up for adoption.

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Response to Th1onein (Reply #134)

Tue Jul 31, 2012, 04:33 PM

138. Is that what you would counsel a cancer patient? Someone with MS? Biology is not destiny.

We do not have to blindly accept what 'nature' doles out.]

I find your viewpoint irrational.

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Response to msanthrope (Reply #138)

Tue Jul 31, 2012, 10:27 PM

139. Of course not. Also, fighting cancer normally does not involve taking the life of another.

Nor does MS.

I'm sorry, but your argument is not a good one. And I find it irrational, as well.

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Response to Th1onein (Reply #83)

Mon Jul 30, 2012, 02:26 PM

95. Unfortunately, there is no place for a person with a nuanced position,

such as yourself, in the forced pregnancy cabal. If you side with them, you ARE SUPPORTING no morning after pills. They do not compromise on that.

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Response to MsPithy (Reply #95)

Mon Jul 30, 2012, 02:41 PM

99. "They" are going to have to compromise, and so is the other side.

We need to reach a consensus on this, or the people that want to use it as a wedge issue will use it to divide and conquer us.

The way that we do that is to stop demonizing each other, and each others' viewpoints, and actually discuss the issues involved in a mature and open manner.

And, by the way, being anti-abortion, I've been called a right wing religious fanatic, etc. I am not. I'm agnostic.

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Response to Th1onein (Reply #63)

Mon Jul 30, 2012, 09:48 AM

73. Easy to make blanket statements

until you've walked a mile in someone else's shoes.

"How it originated" is a very telling euphemism for rape.

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Response to _ed_ (Reply #73)

Mon Jul 30, 2012, 01:15 PM

85. Are we going to talk about the issue, or talk about each other?

BOTH the idea that abortion should be easily obtainable and available to all, for whatever reason, AND the idea that it should be illegal, except in certain cases, are blanket statements.

I'm not always the best at putting things into words, admittedly. I probably should said "How he or she originated."

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Response to Th1onein (Reply #85)

Mon Jul 30, 2012, 04:53 PM

118. In the likely event that we have even more children dying of starvation

due to overpopulation and excessive demand for food and other resources, you may change your mind.

A wise person told me that she thinks that if we intervene in God's plan to extend life with things like antibiotics and radiation and chemotherapy and insulin and all the things we do to make the terribly ill live just a little longer, we should allow intervention at the other end, with birth control and abortion.

I think that is a wise point of view. If we don't want abortion, then we probably should not permit breathing tubes and all the artificial equipment that we use to save lives.

Somehow we either let God decide about the length of life or we don't. We have to be responsible about the demands we make on the earth and the environment.

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Response to JDPriestly (Reply #118)

Tue Jul 31, 2012, 02:59 AM

133. I think that that is a muddying of the issues.

I don't think that overpopulation is a good argument for using abortion as a method of birth control. And, as someone who has no idea whether a god exists or not, or whether there is any "plan" that supercedes our own plans for our own lives, it is useless to speak to me about this creature's "plan" for humankind.

As humans, when we strive to learn how to save lives, we strive to learn how to save our own, as well. I have no use for plans that would attempt to end them, either before birth, or after. We either revere life or we don't. Abortion doesn't. That's why I'm anti-abortion. It's also why I'm against capital punishment and war.

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Response to Th1onein (Reply #133)

Tue Jul 31, 2012, 04:05 AM

135. I am not muddying the waters.

The waters around abortion are unique in each case and therefore, if you will, muddy. In fact, they are so muddy that it is not, in my opinion, possible to see clearly through them. That is why each of us needs to decide for herself how we feel about abortion.

I had a baby and was told afterwards that the fact that I and my child survived was a miracle, and that according to science, we should have died -- both of us. That is why just as you, based on your personal experience, are happy that you had your baby (and I mine), I just do not feel that it is right to judge for another person whether to take the risk of death for herself and her baby or perhaps a miserable life for both herself and her baby or as the other alternative have an abortion. I just don't think that is a judgment that we can make for others.

And above all, I don't think it is a decision with one answer that fits all women in all sizes and in all situations. Each woman has to question her conscience and decide for herself. Because each woman lives with the consequences of her decision, and no one else lives with those consequences.

I am happy that you were able to enjoy the time you had with your child who was born with a serious health condition. That is a precious gift.

But a different mother, say one with three children already, and raising them without a partner, might not be able to handle a child who would need so much healthcare and so much nurture and protection and time. So each mother must decide for herself what she is able to do.

And one of the factors to be considered is religious belief and its influence on one's ability to handle the challenge of the birth and raising the child.

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Response to JDPriestly (Reply #135)

Tue Jul 31, 2012, 09:55 AM

137. I absolutely disagree with you that it should be left to the individual

We, as a society, make laws that benefit the general good. If you had a child and that child was diagnosed at, say, three years old, with a debilitating disease, would it be okay for you to decide that that child must die, because you had three other children you had to take care of, and limited resources? No.

That's what abortion is to me. The only difference is that the child is younger. It is still a child.

You couch this issue in terms of the rights of the mother. I couch it in terms of rights of the child--a very basic right--to life.

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Response to Th1onein (Reply #137)

Wed Aug 1, 2012, 01:07 AM

141. You should read O'Connor's decision in the Supreme Court case Casey.

Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the cases before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U.S. 623, 660 -661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986). As Justice Brandeis (joined by Justice Holmes) observed, espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. Whitney v. California, 274 U.S. 357, 373 (1927) (concurring opinion). he guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U.S. 516, 532 (1884)).

. . . .

Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.

. . . .

These considerations begin our analysis of the woman's interest in terminating her pregnancy, but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted. Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition, and so, unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.

It should be recognized, moreover, that in some critical respects, the abortion decision is of the same character as the decision to use contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International afford constitutional protection. We have no doubt as to the correctness of those decisions. They support the reasoning in Roe relating to the woman's liberty, because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it. As with abortion, reasonable people will have differences of opinion about these matters. One view is based on such reverence for the wonder of creation that any pregnancy ought to be welcomed and carried to full term, no matter how difficult it will be to provide for the child and ensure its wellbeing. Another is that the inability to provide for the nurture and care of the infant is a cruelty to the child and an anguish to the parent. These are intimate views with infinite variations, and their deep, personal character underlay our decisions in Griswold, Eisenstadt, and Carey. The same concerns are present when the woman confronts the reality that, perhaps despite her attempts to avoid it, she has become pregnant.

More

http://caselaw.lp.findlaw.com/scripts/getcase.pl?vol=505&invol=833&court=US

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Response to JDPriestly (Reply #141)

Wed Aug 1, 2012, 09:28 AM

142. Reading this does not change my mind on the topic. Sorry.

Intimate decision or not, and whether or not the woman is the one to make the sacrifice and bear the pain of pregnancy and birth, to me, she had a choice, first, when she chose to have sex, and second, when she chose not to use birth control. Except in the case of rape, or failure of birth control, those choices take away the third choice: abortion. Where someone else's rights begin, yours end.

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Response to Th1onein (Reply #142)

Wed Aug 1, 2012, 03:57 PM

143. Hopefully, the new health care law will give more women the confidence that

at the very least, they won't have to worry about bearing a child destined to suffer pain and illness without recourse to medical help.

Plus it will mean that more women have access to pre- and postnatal care -- two services that make it more likely that a woman will successfully complete a pregnancy.

So, hopefully, this issue will become less important.

I seriously doubt that the Supreme Court will take it upon itself to permit states to pass laws that severely reduce the right to abortion. Taking care of unwanted children is a huge burden on society. And in this day and age of expanding populations -- an unnecessary one. Certainly birth control and good sex education are far better ways to prevent abortion than laws.

I'm from a generation that remembers what it was like pre-Roe v. Wade. I remember sitting in a group of women who were talking about different ways that they could abort a baby without a doctor's help. I was absolutely horrified. Thank God for Roe v. Wade.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:54 PM

17. Scalia's a politician in a robe.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:56 PM

18. That asshole Scalia has absolutely NO RIGHTS to make decisions for my body

nuff said!

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Response to LynneSin (Reply #18)

Mon Jul 30, 2012, 01:54 PM

91. Politicians should have no decison making capabiliy regarding women's reproductive rights period.

Get the government out of our health decisions.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:57 PM

20. The Griswold v. Connecticut decision was very convoluted.

I've tried to understand it but never quite followed the logic.

It's true the Constitution doesn't explicitly state that there is a right to privacy.
The only way to define it was to broaden the interpretation of several other clauses together using 'penumbras' which I'm sure Scalia doesn't think are valid.

The right to contraception fell out from this because if there was a right to privacy police could not enforce a contraception law since they were prevented from entering the bedroom.

It would be much simpler if there were a specific Constitutional amendment granting the right to privacy, then Scalia and Thomas couldn't run around yelling that all previous Supreme Courts were incompetent.

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Response to Kablooie (Reply #20)

Sun Jul 29, 2012, 04:51 PM

42. I agree that an amenment spelling it out would be preferable.

Perhaps we could get rid of obnoxious authoritarian conceits like the drug war, at the same time.

But that said, I do think it's perfectly reasonable to extrapolate a right to privacy from what is already in there.

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Response to Kablooie (Reply #20)

Mon Jul 30, 2012, 12:54 AM

65. It's thin protection for Abortion, that's for sure.

Family planning/reproductive freedom, from birth control to abortion is important enough to warrant a constitutional amendment.

It needs to be done. We cannot rely upon the whims of the Supreme Court to protect it.

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Response to Kablooie (Reply #20)

Mon Jul 30, 2012, 03:13 PM

106. That's his point.

The right to privacy is inferred. And the inferencing was done by a very small number of people.

In a democracy of 200 million, 5 people and a handful of lawyers decided that there was a new right and that the two houses of Congress and 50 state legislatures, with all their executive apparatus, had to comply. It's not democratic. It's not even old-school liberal.

It's not the same as striking down a law because it conflicts with fairly obvious Constitutional language. It's not the same as striking down a law because it's inconsistent. It's striking down a law because 5 judges had "aha moments" and changed the basis on which laws for 180 years had been written, and did so in a rather serious way.

It also struck down the need for a debate, for convincing others, for validating concerns. In terms of democratic process, it was a disaster and divided "we the people" into "us the winners" and "us the losers". It froze the issue in early 1970s thinking. Those against it are powerless and powerless advocates can say and think anything they want with little consequence. It's when you make decisions that suddenly you have to take things seriously. Even supporters of abortion rights are often infantilized advocates. Little's going to change.

It was one of the larger pieces of the context that produced a reaction that most really despised in the late '70s (and the level of despising hasn't exactly abated with time).

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Response to Igel (Reply #106)

Mon Jul 30, 2012, 05:08 PM

121. The right to privacy is inferred.

The Founding Fathers would be aghast at the thought that we might not infer it.

The Founding Fathers and people of their time enjoyed a far greater right to privacy than we could even dream of.

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Response to Kablooie (Reply #20)

Mon Jul 30, 2012, 04:54 PM

119. Good idea.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 02:58 PM

21. Scalia Suggests?

 

This sounds to me like a backwards version of Simon Says. I was pretty good at that game in pre-K, and didn't get tricked up when the adult failed to start off the instruction with "Simon says".

But I wouldn't recommend the game of Scalia Suggests for the pre-K crowd. Especially when the correct response for the trick instruction starting with "Scalia suggests...." is

FUCK YOU TONY!

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Response to doohnibor (Reply #21)

Sun Jul 29, 2012, 05:07 PM

47. I wouldn't recommend that last part with a guy who wants to procreate more of his sad self

But welcome to DU!

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 03:03 PM

23. If Romney were to get elected he would appoint judges like Scalia.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 03:08 PM

24. And yet he has a right to be a douche.

Go figure.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 03:19 PM

26. And men have no "right" to sex, even though many of them think they do.

That should take care of it....

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 03:25 PM

27. Scalia had to be on the Inquisition court in a past life

"There's no right to privacy in the Constitution -- no generalized right to privacy," Scalia insisted.

this man is dangerous ....he would want people to be chipped with 666 on the back of their head

perhaps he needs to read the Bible

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 03:45 PM

29. Of course, he's an Opus Dei Fascist who has no respect for the Constitution.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 04:03 PM

31. He would think that way as women think he has no right to sexual intercourse.

Fair is fair. He's the oldest living virgin--no wonder he's so bitchy.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 04:19 PM

32. How the fuck did that asshole get a law degree?

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 04:19 PM

33. But I can own one of these



Now how cool is that? (Very technically I could the one photographed, it is pixels)

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Response to nadinbrzezinski (Reply #33)

Sun Jul 29, 2012, 04:49 PM

40. Yes, if you only use it to shoot at people

if you use it as a condom, all bets are off.

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Response to Warren DeMontague (Reply #40)

Sun Jul 29, 2012, 04:57 PM

44. EWWW just thinking about it

I wonder if the Good Justice has those thoughts though? How many hail mary's?

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Response to nadinbrzezinski (Reply #33)

Mon Jul 30, 2012, 02:30 PM

97. My toilet brush storage once was kind of portable too

Can't wait till Scalia declares the French had no right owning a guillotine

http://en.wikipedia.org/wiki/File:AT4_rocket_launcher.jpg

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 04:43 PM

37. I'd call Scalia a fucking pig....

...but that would be insulting to fucking pigs.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 04:44 PM

38. The man is senile.

I'm serious

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 04:48 PM

39. Is anyone surprised?

I'm not.

The Griswold decision has always been the thing the crazies REALLY want to get rid of; even moreso than Roe.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 04:50 PM

41. Opus Dei Catholic

Contraception is EVIL. You will go to Hell for PREVENTING the conception of children. Children not only have a right to be born, they have a right to be CONCEIVED. Women are nothing more than breed mares.

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Response to HockeyMom (Reply #41)

Sun Jul 29, 2012, 06:43 PM

55. He'd love to put Americans under a system of government..

...like that which existed under the reign of Leo XII in Rome and the other parts of Italy the Pope ruled before unification.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 04:57 PM

43. Scalia is a decision in search of an explanation.

Do you know about Operation Northwoods? You should.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 05:05 PM

46. I really don't give a $hit what this creep has to say.

He's an icky nasty excuse for a Supreme Court "justice".

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 05:26 PM

51. Fanculo voi ei vostri modi anti-donna, Scalia.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 05:30 PM

52. What a creepy person he is ... It is too powerful a position to be

treated as royalty.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 06:55 PM

56. this guy

is too radical. I wish we could remove him from the bench are impeach him some how.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 08:41 PM

58. Scalia: A subversive for the Vatican (Opus Dei)?

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Response to Dawson Leery (Reply #58)

Mon Jul 30, 2012, 12:25 PM

79. Well they have to keep their supply of white babies for the Catholic adoption racket. n/t

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 10:32 PM

59. VagVamp #2

 

right behind rushbo

In case you don't know what a VagVamp is, here is a definition that my daughter, my wife, and I put together last year, which hits the nail right on the head.

http://www.urbandictionary.com/define.php?term=vagvamp

If you agree with our definition please give it thumbs up, pass it on to your friends, and keep your eyes open for the grand opening of the “Into the Light” movement.

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Response to ohgeewhiz (Original post)

Sun Jul 29, 2012, 10:51 PM

60. So there's no right to marital privacy?

This should be NATIONAL HEADLINES.

Antonin, get out of my bedroom!

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Response to ohgeewhiz (Original post)

Mon Jul 30, 2012, 01:51 AM

66. After they Overturn Roe, The Next Move Will be Griswold v. Connecticut

If Romney wins and gets to appoint another Justice, both will be overturned.

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Response to AndyTiedye (Reply #66)

Mon Jul 30, 2012, 03:17 PM

107. Silly.

Why deal with the two as separate issues?

Chop down the trunk and the branch also falls.

Overturn Griswold and disposing of Roe v Wade is mopping up that a lower court could do.

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Response to Igel (Reply #107)

Mon Jul 30, 2012, 07:35 PM

129. Of Course They Could do it All At Once Like That…

…but it would help the Republicans more if they do it in stages, so that is more likely.

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Response to ohgeewhiz (Original post)

Mon Jul 30, 2012, 08:08 AM

70. "... no generalized right to privacy ...."

So, therefore ....
all medical and tax records should be public, correct?

Unlisted phone numbers are unconstitutional, correct?

Safe deposit boxes are to be inventoried and publicized, correct?

Cayman Island accounts are unconstitutional, correct?

Divulge!! Purge!!

Get the thumbscrews, we'll find out what your hiding!

Hey, Mitt, that means you too.

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Response to bucolic_frolic (Reply #70)

Mon Jul 30, 2012, 03:26 PM

108. That makes little sense.

No generalized right to privacy?

Notice that Griswold didn't deal with public, it dealt with private, which meant "private from the government." Roe didn't say that I couldn't peek into my neighbor's bedroom--we have laws for that already. The Constitution deals with government: The government can't peek into my neighbor's bedroom.


If there's no generalized right to privacy then ...

Medical and tax records could be made available to the government. (Tax records are. I'm not sure about medical records--for Medicare/Medicaid they're not really. The ACA may change private-coverage records, I don't know.)

Unlisted phone numbers could be made available to the government. (They are. Just because something's not required by the Constitution doesn't mean that the Constitution prohibits it. We have a wide area of discretion called "permitted".)

Safe deposit boxes could be inventoried by law and their contents made available to government by law. (Still need court order for those.)

Cayman Island accounts could be regulated and made subject to IRS reporting requirements. (Which is what the US government has been pushing for for a long time; the problem isn't the courts or the Constitution, the problem is that the Caymans aren't subject to the US government or the courts. Income and its sources are not private from the government. Authority to tax and regulate trumps privacy.)

Your examples don't exactly knock me over. Sorry.

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Response to ohgeewhiz (Original post)

Mon Jul 30, 2012, 08:44 AM

71. And Bloomburg is locking up baby formula in NY

They're all insane. Every last one of them.

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Response to ohgeewhiz (Original post)

Mon Jul 30, 2012, 10:17 AM

74. If that isn't the pot calling the kettle black...

Scalia's never been right once in his entire life.

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Response to ohgeewhiz (Original post)

Mon Jul 30, 2012, 12:38 PM

80. men have no right to have children.....

until they can figure out how to do it by themselves.

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Response to ohgeewhiz (Original post)

Mon Jul 30, 2012, 01:26 PM

87. He might be using some constitutional-law definition for "right"

 

I would say if it isn't explicitly guaranteed then at least *not* having the government prevent it ought to be enshrined.

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Response to ohgeewhiz (Original post)

Mon Jul 30, 2012, 01:37 PM

88. when ever his name is brought up i think of....

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Response to ohgeewhiz (Original post)

Mon Jul 30, 2012, 02:12 PM

93. Does the "legal genius" Scalia, realize he has just said he would uphold

a state law that would force women to use birth control or have an abortion against her will?

Think that would never happen, think again.

If the health insurance companies decide that fetuses with, fill in the blank, anomaly are too expensive to care for after they are born, they can easily pack the state legislatures with their hired (bribed) toadies who will pass forced abortion legislation for pregnancies with those anomalies.

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Response to ohgeewhiz (Original post)


Response to ohgeewhiz (Original post)

Mon Jul 30, 2012, 02:45 PM

101. It isn't hard to understand why his wife doesn't want him in the house.

He said it, not me.

His brand of humor was used back in the days when men sat around smoke-filled rooms and acted gross. He no longer fits in society...he just hasn't figured that out.

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Response to ohgeewhiz (Original post)

Mon Jul 30, 2012, 04:34 PM

114. What is it the Republicans say about "activist judges?!"

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Response to ohgeewhiz (Original post)

Mon Jul 30, 2012, 05:09 PM

122. Infant not considered alive until quickening (movements) in 1776.

Meaning that it would not even be called an abortion by the Founders until the fetus was 18 weeks.

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Response to McCamy Taylor (Reply #122)

Tue Jul 31, 2012, 12:36 AM

131. That was the rule of the Catholic Church (pre-1870) at the same time period

The movement to ban abortion came out of the Medical Community NOT the Religious community in the mid 1800s. Doctors wanted to replace mid-wives when it came to birth of children, but child birth and abortions had NEVER been part of the medical community (That was the area of expertise of Mid-wives NOT doctors).

In a case from the 1830s, a doctor observed that when the births in his hospital was done by mid wives, they had a much higher rate of SURVIVING then if the birth was supervised by Student Doctors. He determined the cause was that the Student Doctors went to the area where the births occur directly from the morgue and other areas where the students were taught about the human body. The head doctor also noticed that if the student doctors did NOT come from the morgue or other parts of the hospital, the rate of child deaths were almost the same as with the midwives. The head doctor then started to insist that his student doctors wash their hands with a disinfection agents, and notice after he had the student doctors use the disinfection agent the death of new born babies dropped to a level BELOW the mid wives. He apparently was about to impose the rite of cleaning on the mid wives (and some indication the mid wives started to imitate the student doctors once they saw the drop in deaths) but the rest of the medical community said his policy violated the rules of medicine. Since the head doctor could NOT show HOW the use of disinfection agents caused the drop in deaths, it was unsupported by medical evidence and thus banned by most doctors and medical associations. Pasteur's research on germs would be 50 years in the future thus the medical community of the 1830s had NOT yet embraced the germ theory of disease. The Medical community was fully embraced by the "Humor" theory of disease, that had been the basis of medicine since the time of ancient Greece. The head doctor observation was thus rejected as unscientific.

I mention the above situation to show that while Mid Wives did most births (And abortions) till the mid 1800s, the Medical community wanted control of both and did so by making abortions illegal EXCEPT WHEN MEDICALLY NEEDED (and that need was to be determined by the doctor, whose judgement was NOT to be questioned, i.e. if you wanted an abortion you had to go to a doctor not a mid wife, mid wives could NOT give medical justification but a doctor could by just saying the abortion was medically needed).

The movement by the medical community to take over births and abortions in the mid 1800s did not at first involve the churches, but as the medical community started to show that "Quickening" was not a distinct act, but just part of the process of development of birth, it undermined traditional Western justification for abortion. i.e. until the fetus had quicken, it was not "ensouled" and thus NOT a human being. For this justification to exist, one has to view quickening as some act like birth of the child or even conception of the child. The Medical community attack on quickening (To justify its take over of births and abortions) undermined 2000 years of justification for abortion in the first two trimesters. This attack on the traditional justification undermined churches teaching on when an abortion was NOT a killing of a human being. Based on what the medical community was showing as to how fetus developed, the next clear cut off from being a human being was conception. Thus the churches, as the result of the Medical Community justification to take over births and abortions, had to review their traditional attitude to abortion and dropped the quickening cut off and replaced it with the conception cut off. The Catholic Church adopted this change in 1870, it was NOT the first church to make all abortions murder, but its change had huge impact on abortion laws. The movement prior to 1870 was to adopt what the medical community wanted, it have sole power to do and justify abortions. After 1870 the movement was to make all abortions illegal UNLESS clearly medically necessary (i.e. a doctor's opinion was NO longer good enough, he had to justify the abortion based on facts not just his personal opinion).

I bring this up, for abortion has a long history, even within the Catholic Church. St Augustine justified abortion if done before quickening, this was supported by St Aquinas (Through both called all abortions a sin, it was NOT the mortal sin of murder till 1871 in the Catholic Church). The key wording was NOT that the fetus was "alive" but if it was a human being. It is murder to kill a Human being (Except by accident or in self defense) but it is NOT murder to kill something that is "alive" but is NOT a human being.

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Response to ohgeewhiz (Original post)

Mon Jul 30, 2012, 05:59 PM

127. Scalia is a good

pro-contraception douchebag - you could put his picture on the ceiling and no one would ever have sex again.

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Response to ohgeewhiz (Original post)

Tue Jul 31, 2012, 12:45 AM

132. He is mentally deficient

and should be removed from the bench, so is Alito.

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Response to ohgeewhiz (Original post)

Tue Jul 31, 2012, 04:18 AM

136. In other news, men have no right to sex.

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