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Fri Jan 25, 2013, 07:42 PM

2A and "Infringement"

There's been a whole lot of talk about not infringing on the right to keep and bear arms. Here's my take on what could be allowed:

1. Limiting magazine capacity to, say, 10 or 20 rounds
2. Banning a particular sub-type of weapon such as AR-15 or AK-47 rifles (I don't mean simply saying "no semi-automatic rifles allowed" - that is an infringement)
3. Requiring a paperwork trail of sales
4. Limiting purchases of more than one weapon at a time

Personally, I don't see any one of these other - than possibly #3 - really doing much, if anything to stop the senseless killing sprees. However, IMHO the right to keep and bear arms would not infringed by these actions.

If you believe that these infringe on the 2A, please explain why you have reached that conclusion. I appreciate a civil discussion - let's keep it that way.

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Arrow 53 replies Author Time Post
Reply 2A and "Infringement" (Original post)
tortoise1956 Jan 2013 OP
bubbayugga Jan 2013 #1
gejohnston Jan 2013 #2
rightsideout Jan 2013 #3
tortoise1956 Jan 2013 #4
jmg257 Jan 2013 #9
Clames Jan 2013 #21
jmg257 Jan 2013 #23
Glaug-Eldare Jan 2013 #28
jmg257 Jan 2013 #31
Glaug-Eldare Jan 2013 #49
jmg257 Jan 2013 #51
Clames Jan 2013 #32
jmg257 Jan 2013 #38
tortoise1956 Jan 2013 #24
jmg257 Jan 2013 #25
tortoise1956 Jan 2013 #27
jmg257 Jan 2013 #30
tortoise1956 Jan 2013 #33
jmg257 Jan 2013 #40
ZombieHorde Jan 2013 #26
gejohnston Jan 2013 #5
Berserker Jan 2013 #6
tortoise1956 Jan 2013 #7
Berserker Jan 2013 #10
tortoise1956 Jan 2013 #14
Berserker Jan 2013 #19
tortoise1956 Jan 2013 #22
iiibbb Jan 2013 #8
tortoise1956 Jan 2013 #11
iiibbb Jan 2013 #15
tortoise1956 Jan 2013 #17
iiibbb Jan 2013 #34
Berserker Jan 2013 #13
Glaug-Eldare Jan 2013 #12
tortoise1956 Jan 2013 #16
petronius Jan 2013 #18
tortoise1956 Jan 2013 #20
Glaug-Eldare Jan 2013 #29
petronius Jan 2013 #35
Glaug-Eldare Jan 2013 #36
iiibbb Jan 2013 #53
OneTenthofOnePercent Jan 2013 #37
jmg257 Jan 2013 #41
OneTenthofOnePercent Jan 2013 #44
jmg257 Jan 2013 #46
jimmy the one Jan 2013 #47
jmg257 Jan 2013 #42
jimmy the one Jan 2013 #39
lastlib Jan 2013 #43
OneTenthofOnePercent Jan 2013 #45
jimmy the one Jan 2013 #48
Glaug-Eldare Jan 2013 #50
samsingh Jan 2013 #52

Response to tortoise1956 (Original post)

Fri Jan 25, 2013, 07:57 PM

1. I think we're about to find out just what is and isn't considered infringement

 

judging by the bills moving through various states right now. Throw enough shit on the wall, and plenty of it will stick.

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Response to bubbayugga (Reply #1)

Fri Jan 25, 2013, 08:00 PM

2. most accurate description I have seen.

I agree it is shit.

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Response to tortoise1956 (Original post)

Fri Jan 25, 2013, 08:16 PM

3. How about a different tact?

2A and "well regulated."

With 1,345,000 gun deaths since 1968, the 2A isn't "well regulated" and it's killing more people than saving. 1221+ gun deaths since Newton is insanity.

But my ideas would be

1) Limit magazines to 7
2) Re-establish the assault weapon's ban
3) Eliminate straw sales. Close the gun show loop hole. Organize the databases.
4) Only one gun purchase every 30 days
5) Swear on the Bible you will be a responsible gun owner. I added that one for the Conservatives.

It sounds harsh but isn't compared to some other countries.

I would also add making gun buy-back programs more appealing.

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Response to rightsideout (Reply #3)

Fri Jan 25, 2013, 08:32 PM

4. Well-regulated doesn't mean controlled by government regulations in this clause...

But that's not the point of my post.

IMHO, nothing you suggested would technically infringe on the 2A.

I also doubt very seriously whether any of these actions would do much to prevent mass killings. They don't stop the type of individual who is prone to carrying out these acts - the extremely mentally ill person who is out of control.

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Response to tortoise1956 (Reply #4)

Fri Jan 25, 2013, 08:48 PM

9. If the governments weren't regulating the militias, who was? nt

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Response to jmg257 (Reply #9)

Fri Jan 25, 2013, 09:45 PM

21. They generally regulated themselves.

 

Back then a message took weeks to travel across the states so self reliance was kind of the point.

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Response to Clames (Reply #21)

Fri Jan 25, 2013, 09:54 PM

23. Not really. That is what musters were for...training under the authority of the state,

Armed, organized and disciplined per the regulations as prescribed by congress.

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Response to jmg257 (Reply #23)

Fri Jan 25, 2013, 10:16 PM

28. So, do you want me drilling?

Would you prefer that we have guns and military training? Remember that taking away privately-held arms isn't really an option, per Miller, Heller, &c.

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Response to Glaug-Eldare (Reply #28)

Fri Jan 25, 2013, 10:25 PM

31. Sure why not? That is why the right was secured after all. The Guard

Would be a fine place to become well regulated.

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Response to jmg257 (Reply #31)

Sat Jan 26, 2013, 10:11 PM

49. What does the Guard have to do with anything?

I'm talking about the entire militia -- you, me, your neighbors, those creepy guys on Youtube, everybody.

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Response to Glaug-Eldare (Reply #49)

Sat Jan 26, 2013, 10:28 PM

51. I'm talking about the well regulated Militia - the reason for the 2nd amendment.

And sure - you are likely more then welcome to become a part of it. Drill to your heart's content...go for it - be a part of those entities charged with defending all our liberties!

Other then that? You, me, our neighbors, everyone else - armed or unarmed, are just a part of the unorganized un-regulated militia, and are hardly deemed necessary for guaranteeing freedom. In fact, we decided a large standing army is much to be preferred to both. Which of course is why private arms, which no longer have any connections to the constitutional Militias, are subject to restrictions.

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Response to jmg257 (Reply #23)

Fri Jan 25, 2013, 11:06 PM

32. Ummmm....wrong.

 

If you knew anything about colonial militias you would at least know that for the most part they were largely self contained and self regulated within the individual colonies even well after the end of the American Revolution. How they were setup, trained, equipped (regulated) varied and had little to no direct supervision from Congress. The company "Captains" had the final decision on how they were equipped and what they were equipped with depended largely on the individual towns that supported the company.

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Response to Clames (Reply #32)

Sat Jan 26, 2013, 08:02 AM

38. Surely....And THAT is why the Constitution and the federal Militia Acts

Were written - to improve all that...to make the Militias more effective and uniformly Well Regulated.

That is exactly what we are discussing. Those well regulated Militias that are necessary.

Which is why CONGRESS was given the powers to regulate - to organize arm and discipline the Militias, and the STATES the authority of training them (in A1 S8), according to the regulations prescribed by Congress (the Militia Acts).


To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;



"The Militia Act of 1792, Passed May 8, 1792, providing federal standards for the organization of the Militia.
An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States."

"VII. And be it further enacted, That the rules of discipline, approved and established by Congress*, in their resolution of the twenty-ninth of March, 1779, shall be the rules of discipline so be observed by the militia throughout the United States...It shall be the duty of the Commanding Officer as every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained, agreeably to the said rules of said discipline."


*Regulations for the Order and Discipline of the Troops of the United States


How the Militias become well regulated:

Organized:
"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia...
...That within one year after the passing of the Act, the militia of the respective states shall be arranged into divisions, brigades, regiments, battalions, and companies, as the legislature of each state shall direct;... etc."


Armed:
"That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service...etc."

Disciplined:
"And be it further enacted, That the rules of discipline, approved and established by Congress, in their resolution of the twenty-ninth of March, 1779, shall be the rules of discipline so be observed by the militia throughout the United States, except such deviations from the said rules, as may be rendered necessary by the requisitions of the Act, or by some other unavoidable circumstances. It shall be the duty of the Commanding Officer {appointed by the State} as every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained, agreeably to the said rules of said discipline."


All as mandated in the Constitution.

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Response to jmg257 (Reply #9)

Fri Jan 25, 2013, 09:55 PM

24. The meaning of "well-regulated" was different

It meant to be functioning properly, as in a correctly tuned piano. (There's even a piano tuning book with the title,"The Well Regulated Piano"). If you serach for the term well-regulated, you should find 18th and 19th century dictionary definitions that talk to this.

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Response to tortoise1956 (Reply #24)

Fri Jan 25, 2013, 10:02 PM

25. Again...someone was doing all that regulating...the militias were trained by

The State appointed Commanding officers, according to regulations prescribed by congress.

Congress would provide regulations of uniformity for Organizing, arming and disciplining the Militias, who would be trained per those regulations under the authority of the States, just like it says in the Constitution. THAT is how they become well regulated.

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Response to jmg257 (Reply #25)

Fri Jan 25, 2013, 10:15 PM

27. Yep, that would do it

But the second amendment was not written to make the ablity to have weapons be dependent upon being in a militia. A reading of documents and letters by those who aseembled and approved the original constitution makes that pretty clear.

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Response to tortoise1956 (Reply #27)

Fri Jan 25, 2013, 10:23 PM

30. Not really. The debates from those assembled when coming up with the 2nd had VERY

Little to say about individuals outside of the Militias. They were almost exclusively concerned with the right to arms being associated with securing the militias, in keeping the militias from being disarmed and "destroyed", and thereby preventing the need for a large standing army.

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Response to jmg257 (Reply #30)

Fri Jan 25, 2013, 11:13 PM

33. It seems the debates are singularly unhelpful on this subject

As Levinson says below, the link to militas is very ambiguous for either side (I'm still looking into this one, but I haven't found much to support my statement above that the RKBA was not dependent upon militia service, based on the constitutional papers, documents and letters . I spoke from memory, wihout researching my point first. Mea culpa.).

However, at least one supreme court decision was based on the 2A being an individual right. (Dred Scott - may Chief Justice Taney forever rot in hell for that one)

http://www.huffingtonpost.com/sanford-levinson/dc-v-heller-a-dismaying-p_b_109472.html

Another link on whether this is an individual right:

http://www.nytimes.com/2007/05/06/us/06firearms.html?pagewanted=all&_r=0

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Response to tortoise1956 (Reply #33)

Sat Jan 26, 2013, 08:34 AM

40. There are numerous mentions of 'personal rights' in letters (Ames I think), and

guys like Lee and Jackson are usually good for 'individual' gun quotes.

I used to have a list of such things, and they are out there. But when it comes to actually debating the article which became the 2nd, and for most part the imminent Militia acts also, they pretty much exclusivley refer to a "militia" oriented right.

Thanks for the links - I will check them out!

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Response to tortoise1956 (Reply #4)

Fri Jan 25, 2013, 10:11 PM

26. "Well regulated" means whatever the Supreme Court says it means. nt

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Response to rightsideout (Reply #3)

Fri Jan 25, 2013, 08:32 PM

5. more harsh than some countries

If you understand how those laws operate. For example, in Austria, an AR with a 16 inch barrel requires the same license as the an AR with 8 inch barrel.

In the US, an AR with a 16 inch barrel is regulated the same, under federal law, as a single shot rifle with the same barrel length. That same single shot with a 15 inch barrel is regulated the same as a machine gun.

You must like the New York law, which is stupid
What is an "assault weapon"? Under DiFi's latest bill, the Olympic pistol team will have to train in Canada because magazine well is outside the grip. That describes most or all Olympic style target pistols.
Straw buying is a federal offense punishable by up to ten years. What is the gun show loophole? How will a database do anything other than cost money?
Economics pretty well does that already.
How about if I swear on a copy of the Tao te Ching?

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Response to tortoise1956 (Original post)

Fri Jan 25, 2013, 08:40 PM

6. My take

 

1. I do not feel a magazine ban would do anything to stop mass shootings. ie. Virginia Tech massacre
shooter used 10 round mags.

2. I support No ban on any simi-automatic rifle or pistol.

3. Require a paper trail. I think this is needed but it will not stop gun violence.

4. Limiting purchases of more than one weapon at a time? Why would that do anything to stop violence? I personally can't afford to buy more than one at a time.

The goal we are all trying to achieve is stopping gun violence and bans will do nothing but piss law abiding citizens off and make criminals out of innocent gun owners.

No one has the perfect answer YET but I think banning certain guns because of the way they look is laughable.

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Response to Berserker (Reply #6)

Fri Jan 25, 2013, 08:46 PM

7. Not the point of this post

I agree with you. However, none of these actions are outside the scope of the 2A in my opinion.

Do you agree or disagree? If you disagree, please explain why.

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Response to tortoise1956 (Reply #7)

Fri Jan 25, 2013, 08:51 PM

10. Not sure I

 

Understand your question, Just giving my opinion.

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Response to Berserker (Reply #10)

Fri Jan 25, 2013, 08:59 PM

14. Gotcha - sorry about that!

Quite a bit of the argumetn that goes on in the gun control debate has to do with the scope of the second amendment, and infringement. Some people seem to believe that absolutely nothing should be illegal, up to and including shoulder-fired SAMs. Others say that as long as you can own a single-shot rifle that is kept in storage at a government armory, you are within the letter of the amendment.

My take is that the true answer is somewhere in the middle. I personally believe that lmiitations such as magazine size, purchase limits and registering sales are not unconstitutional. I'm curious to see what other people think, and their reasoning.

Is this a little more clear?

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Response to tortoise1956 (Reply #14)

Fri Jan 25, 2013, 09:19 PM

19. Yes

 

And thank you for being civil with your posts. You are the kind of person I could sit down with and talk things out and be friends and not enemy's within our own party. I just wish that is what was going on instead of all the name calling and bullshit. Just maybe we could all come up with something to stop the madness.

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Response to Berserker (Reply #19)

Fri Jan 25, 2013, 09:52 PM

22. I learned to debate, not argue

Big difference. While obviously I think I'm right in my position, I am willing to listen and consider other sides.

Don't get me wrong - sometimes it's hard for me to change my mind - but it can be done...

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Response to tortoise1956 (Original post)

Fri Jan 25, 2013, 08:47 PM

8. multi-prong approach required

 

1) legalize pot and depressurize drug violence
2) eliminate mandatory minimums for drugs, create them for violent crime, multipliers for crimes with guns.
3) mag limit of 15.. *
4) subsidize mental health care
5) better coupling of adjudicated mental health with background checks. A method to appeal.
6) straw purchase stings and investigations
7) 2 gun per month to dissuade straw purchases, but a waiver to apply.
8) citizen access to background checks free of charge
9) a list of exempt weapons, guaranteed to be free from infringement
*. This is a compromise, I don't think it will help, but in the interest of finding middle ground

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Response to iiibbb (Reply #8)

Fri Jan 25, 2013, 08:51 PM

11. Interesting approach, but still off topic

I'm trying to find out what would and wouldn't be an infringement of the 2A. That is why I gave a short list of actions that I think would be constitutional.

IOW, this is a constitutional debate. Any takers?

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Response to tortoise1956 (Reply #11)

Fri Jan 25, 2013, 09:02 PM

15. okay

 

1. Limiting magazine capacity to, say, 10 or 20 rounds
2. Banning a particular sub-type of weapon such as AR-15 or AK-47 rifles (I don't mean simply saying "no semi-automatic rifles allowed" - that is an infringement)
3. Requiring a paperwork trail of sales
4. Limiting purchases of more than one weapon at a time


1) infringement
2) infringement unless the government decided the official arms of the militia... they define militia in us code... don't see why they can't designate the official arms (police should be limited to same list)
3) There already is in the form of dealer books. Since registrations have only been misused (NY paper publishing names, Roanoke Times too) can't support registration at this time.
4) not an infringement because you technically are only getting delayed gratification... and waiver should be available, but involve paperwork.


Most proposed gun control requires a change at the amendment level

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Response to iiibbb (Reply #15)

Fri Jan 25, 2013, 09:10 PM

17. I'm curious...

Why would limits on magazine size be an infringement?

I can't think of a valid reason. I wish I could.

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Response to tortoise1956 (Reply #17)

Fri Jan 25, 2013, 11:36 PM

34. I'm just going by "shall not be infringed"

 

based on the individual rights interpretation since the other amendments favor individual rights. A state's rights interpretation doesn't make sense to me.

Unless the government fully embraced it as I alluded to in my second point but described in far more eloquently in #14.

I think gun control of the level it would take to substantially prevent Sandy Hook would require a change at the constitutional level.

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Response to iiibbb (Reply #8)

Fri Jan 25, 2013, 08:53 PM

13. 8) citizen access to background checks free of charge

 

As long as it remains a criminal background check and not if you missed your master card payment I am ALL for it.

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Response to tortoise1956 (Original post)

Fri Jan 25, 2013, 08:52 PM

12. May be worthwhile to review the "common use" standard

Here's a quick legislator briefing on it I wrote up for our local gun rights group. It was required at very short notice, so it's not completely polished. Other commonly-used items include standard magazines, but I didn't address that.



In 1934, Congress passed the National Firearms Act in reaction to gang violence, specifically the St. Valentine's Day massacre in Chicago. This law created stringent regulations for the manufacturing, transferring, and transportation of machineguns and short-barreled long guns. In April 1938, two men (Jack Miller and Frank Layton) were put on trial for transporting a short-barreled shotgun unlawfully, and their defense challenged the constitutionality of such a law. They claimed that the National Firearms Act violated the 2nd Amendment right to keep and bear arms, and the law was ruled unconstitutional by the U.S. District Court for Western Arkansas. The case was appealed to the U.S. Supreme Court, which overturned their decision and ruled that the restrictions on certain types of firearms was, in fact, consistent with the Constitution. In doing so, they created a vague precedent that the 2nd Amendment guarantees the right of the people to possess arms "of the kind in common use at the time."

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. United States v. Miller (1939)

In 2008, the Supreme Court addressed this issue more directly in District of Columbia v. Heller, when six plaintiffs (including Dick Heller) challenged the constitutionality of the District's total ban on the possession of handguns. They looked to the Miller decision for guidance, and determined that the "common use" standard guarantees the right to keep and bear "the sorts of weapons in common use at the time." Handguns being an extremely popular weapon used by law-abiding citizens for lawful purposes such as self-defense and recreation, they held that it was indeed unconstitutional to prohibit their possession.

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “Ordinarily when called for militia service able-bodied men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, small-arms weapons used by militiamen and weapons used in defense of person and home were one and the same.” Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. District of Columbia v. Heller (2008)

In 2010, this ruling was explicitly applied against the states in McDonald v. Chicago. The Supreme Court reaffirmed the Heller decision, and overturned the previous decision in United States v. Cruikshank (1876), which had previously asserted that the Privileges or Immunities clause of the 14th Amendment did not incorporate the Bill of Rights against the states. Since then, lower courts have applied this standard to exotic weapons such as grenades, land mines, and pipe bombs, and agreed that, “unlike firearms which may be used for sports, recreation or for collection, pipe bombs have no legitimate purpose.” (United States v. Dempsey (1992); United States v. Tagg (2009)) No authoritative figures are available for modern sporting rifles, but a study by Christopher S. Koper estimates that 1.5 million were privately owned in 1994. A December 2012 article in Slate magazine suggests that 3,750,000 AR-pattern rifles are privately owned, not including other popular types such as AK-patterns and the Mini-14.

1. https://www.ncjrs.gov/pdffiles1/nij/grants/204431.pdf
2. http://www.slate.com/blogs/crime/2012/12/20/assault_rifle_stats_how_many_assault_rifles_are_there_in_america.html

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Response to Glaug-Eldare (Reply #12)

Fri Jan 25, 2013, 09:06 PM

16. By this standard,

AR-15 rifles could be considered to be protected weapons.

Excellent response. You stated your opinion, and followed with the supporting argument. This is exaclty what I'm looking for.

Thanks!

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Response to tortoise1956 (Original post)

Fri Jan 25, 2013, 09:17 PM

18. Well, I'm no Constitutional scholar, and setting aside whether I like any of those things

or think they're useful, I doubt anything in your OP would be seen as an infringement by the Courts (considering that we've had some form of all of them here in CA for years). It seems logical to me that 'infringement' would start when people are prevented from keeping the sorts of weapons that a militiaman (ad hoc infantryman) typically would be able to show up with. Today that would be a semi-auto (at least) rifle, magazines, and a handgun.

But laws dealing with registration, sales, use, storage, quantity, probably would fit under 2A.

Generally speaking, my objections to new gun control legislation are rarely on any sort of 2A grounds. Rather, I think any specific law that limits individual choice, activity, liberty, property etc must be demonstrably likely to have a positive benefit with as little interference as possible. Many gun control laws that get bandied about fail that test IMO...

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Response to petronius (Reply #18)

Fri Jan 25, 2013, 09:40 PM

20. I agree on infringement...

I also agree on utility. There is next to nothing in the new AWB bill that would actually help.

Not that that's ever slowed the other side down...

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Response to petronius (Reply #18)

Fri Jan 25, 2013, 10:20 PM

29. Whether it's long-standing law or not doesn't mean much

and the courts know it. There are numerous reasons an unconstitutional law might not be challenged for many years, including insufficient popular support, money, likelihood of success, political relationships, etc.

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Response to Glaug-Eldare (Reply #29)

Fri Jan 25, 2013, 11:46 PM

35. You're right of course - I was assuming that challenges would have arisen by

now if there were grounds, but of course that may not be a good assumption. Still, my (non-professional) understanding of current case law leads me to think that what the OP listed would pass muster...

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Response to petronius (Reply #35)

Sat Jan 26, 2013, 12:11 AM

36. 3 might survive,

but remember that new restrictions are generally held to "intermediate scrutiny." That is, the government has to prove that a restriction substantially advances a legitimate government interest. Imaginary, hypothetical, or trivial gains won't justify a law, and "legitimate government interest" doesn't include soothing its conscience, ending private gun ownership, or making people feel safe. For instance, if the government defends a magazine capacity ban on the grounds that it improves public safety, they're going to have to show evidence that it actually works, or a credible argument that it will work. I don't believe the evidence is, or ever will be there.

I don't believe #1 would pass the "common use" test, and the problem with #2 is that it would be so pointless (sales would simply shift to other similar models) that it couldn't possibly be seen as "substantial." I was thinking about that earlier today -- if you had an individual ban on every single rifle model, each one would be narrow in scope and not an extreme burden on the right. Taken together, they would constitute a total rifle ban. If they're all unconstitutional together, how can they be constitutional separately?

Depending on how it's implemented, #3 might qualify as advancing the general welfare so long as it creates no severe barriers to ownership or carry. I don't see much chance of #4 actually having any effect whatsoever on public safety, so I believe it would fail the intermediate scrutiny test.

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Response to Glaug-Eldare (Reply #36)

Sun Jan 27, 2013, 07:58 PM

53. I think #4 would help prevent straw purchases

 

I think there should be a simple form or set of forms to fill out as an application for a waiver, but this could more or less identify potential straw purchasers. This is based on only a couple of articles that described how straw guns make their way from places like GA to places like NYC or Chicago.

I actually find #3 to walk the line because all I've ever seen information like this used is to abuse law abiding gun owners when their names get published en masse.

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Response to tortoise1956 (Original post)

Sat Jan 26, 2013, 06:39 AM

37. When considering the original intent of the 2A and what actions may or my not run afoul...

 

I think it's important to realize that back then, there was NO standing army. Your everyday citizens WERE the army, when the situation requiring one arose (french attacks, british attacks, indian attacks, pissed off slave-owning freedumb fighters... you get the idea). If a state needed to form a militia, it had to muster it's citizens. And the citizens pretty much had to bring their guns and weapons from home. With that in mind, if you wanted a "well regulated" (18th century lingo for 'well functioning') militia then you couldn't disarm the general populace. This is because if a disarmed general populace shows up to form a militia in defense of the state or union, it would not function very well without weapons. And what's the point in forming a bad militia... you wanted a "well regulated" (well functioning) militia, remember?!

I think within that context, the 2A is pretty darn clear. It tells governments, modernly paraphrased, "If you want an effective force to defend the state/public, don't take away civilian weapons."

Now, to begin to address the topic of your thread (what actions violate "shall not be infringed")...

I think I outlined my beliefs of the logical intent of the 2A above; with no standing armies the people needed to be armed to form a well functioning militia. Using that historically significant context coupled with the words of the second amendment I'm going to state that I think any action that significantly detracts from the ability to form a well functioning (well regulated) militia poses an infringement.

So what does that mean? A well functioning militia is a militia that can fight on equal ground with an opposing force. This means that you must not only be able to supply able-bodied persons in adequate numbers, but also possessing adequate armament. At the time of the constitution, that meant muskets and pistols. Machete-armed infantrymen versus a firearm wielding militia won't be very functional... musket armed infantrymen versus M1 Garand armed infantrymen wont be very effective... double barrel shotgun armed infantrymen against 30-round assault rifle ... ... well I think you get the point.

I believe the vague use of the phrase "bear arms" in the second was very purposeful. The framers had to know that weapons technology would advance - some of them were scientific innovators themselves. So if you are calling The People (individual citizens) to show up to form a well functioning militia - you would expect those infantrymen to show up bearing a weapon typical of an effective militia's infantryman of that era... otherwise, ill-equipped infantrymen could not constitute a well regulated (well functioning) militia. And in today's modern era, the typical insurgent/infantry level weapon is the high-capacity magazine-fed auto-loading rifle.

Summed up from the above points to address what constitutes infringement, I believe the 2A original intent was to allow The People to posses time-period-common military arms, otherwise an effective well regulated militia could NOT be formed. Any laws that significantly detract from the ability to form such an effective militia would be considered infringement.

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Response to OneTenthofOnePercent (Reply #37)

Sat Jan 26, 2013, 09:44 AM

41. A couple things...

"vague use of the phrase "bear arms" in the 2nd..."

Apparently it wasn't all that vague to these guys when they were actually writing it.

August 17, 1789
"The house went into a committee of the whole, on the subject of amendments. The 3d clause of the 4th proposition in the report was taken into consideration, being as follows; "A well regulated militia, composed of the body of the people, being the best security of a free state; the right of the people to keep and bear arms shall not be infringed, but no person, religiously scrupulous, shall be compelled to bear arms."

Mr. Gerry — This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this {religious exemption} clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now it must be evident, that under this provision, together with their other powers, congress could take such measures with respect to a militia, as make a standing army necessary. Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. ...

Obviously Mr Gerry knew "to bear arms" and "bearing arms" means serve in the Militia. Notice no mention of 'defend themselves'.

Mr. Jackson — Did not expect that all the people of the United States would turn Quakers or Moravians, consequently one part would have to defend the other, in case of invasion; now this, in his opinion, was unjust, unless the consitution secured an equivalent, for this reason he moved to amend the clause, by inserting at the end of it "upon paying an equivalent to be established by law."

Mr. Jackson — Was willing to accommodate; he thought the expression was, "No one, religiously scrupulous of bearing arms, shall be compelled to render military service in person, upon paying an equivalent."

Obviously Jackson knew "to bear arms" meant using arms for the common defense, in military service.

Mr. Sherman — Conceived it difficult to modify the clause and make it better. It is well-known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent; many of them would rather die than do either one or the other — but he did not see an absolute necessity for a clause of this kind. We do not live under an arbitrary government, said he, and the states respectively will have the government of the militia, unless when called into actual service

Mr Sherman knew what "bearing arms" meant, as obviously no one would be hiring a subsitute for their own self defense. And he too mentions militia specifically.

Mr. Benson — Moved to have the words "But no person religiously scrupulous shall be compelled to bear arms" struck out. He would always leave it to the benevolence of the legislature — for, modify it, said he, as you please, it will be impossible to express it in such a manner as to clear it from ambiguity. No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the discretion of the government. If this stands part of the constitution, it will be a question before the judiciary, on every regulation you make with respect to the organization of the militia, whether it comports with this declaration or not?

Benson? Yes - he knew too.

August 20, 1789

Mr. SCOTT objected to the clause in the sixth amendment, "No person religiously scrupulous shall be compelled to bear arms." He said, if this becomes part of the constitution, we can neither call upon such persons for services nor an equivalent; it is attended with still further difficulties, for you can never depend upon your militia. This will lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, as in this case you must have recourse to a standing army. I conceive it is a matter of legislative right altogether...

Mr Scott knew - "bear arms" and "keeping arms" meant services in the militia.

Mr. BOUDINOT said that the provision in the clause or something like it appeared to be necessary. What dependence can be placed in men who are conscientious in this respect? Or what justice can there be in compelling them to bear arms, when, if they are honest men, they would rather die than use them. He then adverted to several instances of oppression in the case which occurred during the war. In forming a militia we ought to calculate for an effectual defence, and not compel characters of this description to bear arms. I wish that in establishing this government we may be careful to let every person know that we will not interfere with any person's particular religious profession. If we strike out this clause, we shall lead such persons to conclude that we mean to compel them to bear arms.

Boudinot too.


Hmm...there doesn't seem to be ANY one with a vague understanding here at all. An entire debate over the article which became the 2nd amendment and not 1 mention of individual rights unassociated with a militia.

And iIF there was any "vagueness" in the use of the phrase "to keep and bear arms" in the restriction, one simply refers to the preamble clause.."a well regulated militia being necessary...".

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Response to jmg257 (Reply #41)

Sat Jan 26, 2013, 03:58 PM

44. Sorry for the misunderstanding. When I said the phrase "bearing arms" was vauge I was referring to

 

the nondescript nature of the word "arms". They did not specify what TYPE type of weapons constitute "arms". They could have said swords. They could have said "clubs, pitchforks, and rocks". They could have said "muskets, pistols, and cannons". Perhaps nondescript would have been a better choice of word on my part rather than vague.

...
Obviously Mr Gerry knew "to bear arms" and "bearing arms" means serve in the Militia. Notice no mention of 'defend themselves'.
...
Obviously Jackson knew "to bear arms" meant using arms for the common defense, in military service.
...
Mr Scott knew - "bear arms" and "keeping arms" meant services in the militia.
...
Hmm...there doesn't seem to be ANY one with a vague understanding here at all. An entire debate over the article which became the 2nd amendment and not 1 mention of individual rights unassociated with a militia.


I agree. I believe a great many of them were concerned about the protection of society/state without a standing army - hence the second amendment ensures a method of national/civil defense. I think that is why they left the phrase "bearing arms" nondescript... effective military "arms" change throughout time and they understood that modern infantrymen needed to bear whatever was considered effective for any given time period. Instead of limiting the 2A protections to whatever weapons technologies they could imagine, they simply said "arms" so that the 2A could evolve along with technologies and militias could be effectively armed.

But I thought that point merited mentioning since there are a few people, even around DU, that seem to espouse the concept that the 2A only protects the right to flintlock pistols and rifles. It doesn't take a genius to realize that protecting the right to arm a militia with 100 year old weapons is pretty worthless because a militia that shows up with antiquated weapons is not well regulated/effective.

The other point of my post was that the founders recognized that the militia was made up of otherwise ordinary people... "The People", to be exact. If "The People" can't bear (modern and effective) arms, then they can't form well regulated militias, if needed.

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Response to OneTenthofOnePercent (Reply #44)

Sat Jan 26, 2013, 04:46 PM

46. Cheers - my apologies then on my long-winded reply! nt

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Response to OneTenthofOnePercent (Reply #44)

Sat Jan 26, 2013, 04:46 PM

47. there 'were' standing armies

0.1%: I think it's important to realize that back then, there was NO standing army. Your everyday citizens WERE the army, when the situation requiring one arose (french, british attacks, indian..).

No, ordinary citizens were state's militias, & there was an army soon formed for french or british attacks (indian warfare on a lesser federal scale). This formed army then became, a standing army, which was superior to the militia, as the army was a daily occupation.

If a state needed to form a militia, it had to muster it's citizens. And the citizens pretty much had to bring their guns and weapons from home.

If they had one, if they didn't & were activated they could be armed by states armory or fed armory, till they ran out of guns. Then they gave them swords, pitchforks, pikes & clubs, & could drill with a broom.

With that in mind, if you wanted a "well regulated" (18th century lingo for 'well functioning') militia then you couldn't disarm the general populace.

The bigger problem they had was to ARM the populace, disarming them was never a serious consideration.
In the 1803 firearm census of militia returns, conducted by dearborn under thomas jefferson, only 45% of militia members had their own firearms. In other words over half of white males 17-45, did not.

me elsewhere: The 1803 firearm census conducted by Thomas Jefferson's secretary of war Henry Dearborn revealed about 235,000 firearm owners and 525,000 militia members, or about 45% armed. Jefferson then enabled the militia act of 1808 to supplement the unarmed segment. The Militia Act of 1808 (coincidentally 200 years prior to the 2008 heller..), provided $200,000 a year "for the purpose of providing arms and military equipment for the whole body of the militia of {US}, either by purchase or manufacture." .. "All the arms procured in virtue of this act, shall be transmitted to the several states .. in proportion to the number of the effective militia in each state and territory." While the Miltia act of 1808 fell short of it's goal..

0.1%: I think within that context, the 2A is pretty darn clear. It tells governments, modernly paraphrased, "If you want an effective force to defend the state/public, don't take away civilian weapons."

scalia worded it in heller that an individual RKBA was there to 'prevent elimination of the {national} militia' - hardly can that be construed to mean to always maintain an effective force. Parents feed their children to prevent them from dying, is true, but you couldn't simultaneously argue that a bare bones diet made one strong & ready to fight.
BTW, scalia & his ruling disagree with what you say. Scalia felt 2ndA pertained only to the national militia, not state militias, & states militias existed to feed the national militia, to prevent it from 'elimination'.

war of 1812: Regular Army:— 7,000 (at start of war); 35,800 (at war's end) •Rangers: 3,049 •Militia: 458,463
.. 12 times more militia, but all of them not as effective as the army, tho new orleans was ok.

wiki: The {US} was not prepared to prosecute a war, for Madison had assumed that the state militias would easily seize Canada and that negotiations would follow. In 1812, the regular army consisted of fewer than 12,000 men. Congress authorized the expansion of the army to 35,000 men, but the service was voluntary and unpopular; it offered poor pay, and there were few trained and experienced officers.. The militia objected to serving outside their home states, were not open to discipline, and performed poorly against British forces when outside their home states. American prosecution of the war suffered from its unpopularity, especially in New England, where anti-war speakers were vocal.... ha .... Military and civilian leadership remained a critical American weakness until 1814. The early disasters brought about chiefly by American unpreparedness and lack of leadership..

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Response to OneTenthofOnePercent (Reply #37)

Sat Jan 26, 2013, 10:26 AM

42. On the militias and the people's role in them..

with no standing armies the people needed to be armed to form a well functioning militia...So if you are calling The People (individual citizens) to show up to form a well functioning militia - you would expect those infantrymen to show up bearing a weapon typical of an effective militia's infantryman of that era...


Yes, that was the intent - as was the intent the people were to be organized and disciplined by the States according to the guidelines prescribed by Congress.

But of course the people, through their chosen representatives, decided to recreate the Militias and reduce the states & the people's role in it. Militia duty is no longer mandatory. The well regulated, organized Militias are no longer made up of all people of certain ages, but volunteers...a select militia a bit more as Hamilton imagined. The well regulated Militias no longer provide their own arms and accoutrements, they are provided by the State.

Let's face it - the constitutional Militias of the several States has been obsoleted by the people, as has the people's role in serving it in. The well regulated Militias are by law the federally controlled and armed National Guard. Any security from a supposed infringement with regards to the people & their arms & militia service should also obsolete.


It tells governments, modernly paraphrased, "If you want an effective force to defend the state/public, don't take away civilian weapons."


Or just have a HUGE standing Army and Navy, as the people decided we would do instead.

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Response to tortoise1956 (Original post)

Sat Jan 26, 2013, 08:34 AM

39. miller 1939 a militia based interpretation

glaug: The {1939 miller} case was appealed to the U.S. Supreme Court, which .. ruled that the restrictions on certain types of firearms was, in fact, consistent with the Constitution. In doing so, they created a vague precedent that the 2nd Amendment guarantees the right of the people to possess arms "of the kind in common use at the time."

Glaug cloaks the truth with the term 'vague precedent', & simply spits out the clever song & dance which the pro gun faction has fabricated to SIDESTEP the 1939 miller ruling, which clearly supported the militia interpretation of the 2ndA:

Supreme Court, 1939 miller: 1) "The Constitution as originally adopted granted to the Congress power - 'To provide for calling forth the Militia to execute the Laws of the Union'.... With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."
2) "In the absence of any evidence tending to show that possession or use of a at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.."


This was a UNANIMOUS decision (8-0, with one justice abstaining since he was just appointed during arguments);
.. they all agreed that how they worded & signed the above was what they thought of the 2ndA, a militia based RKBA. Had they felt it an individual RKBA, or as glaug & scalia misrepresented, you'd think at least one justice would've objected to the wording above 'look at the way we've worded our ruling, people in the future will think we intended for a militia RKBA', yet not one of the 9 justices objected (including here the recused one who had by then heard the arguments).

glaug: The signification attributed to the term Militia .. that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. United States v. Miller (1939)

This is taken out of context, modus operandi for gunworld, and used as a basis, evidently, to fabricate revisionist history. It appears from the militia act of 1792 which came a year after the 2ndA in 1791, spelling out in more detail what was required from the 2ndA. Apparently just citing miller 1939 citing the militia act of 1792. More important, the militia act of 1792 was voided under the militia act of ~1916 (charles dick militia act), which established the national gds & unorg'd militias. Militias & Guards by the 20th century did not have to worry about providing their own arms.

In 2008, the Supreme Court addressed this issue more directly in .. Heller .. They looked to the Miller decision for guidance, and determined that the "common use" standard guarantees the right to keep and bear "the sorts of weapons in common use at the time."

Haha, thanks for revisiting the hilarity of heller, aka how to revise & subvert the bill of rights at the same time.
There was some effort, in the late 20th century, to interview the still alive miller justices to determine what they actually meant, dunno what happened to it.

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Response to tortoise1956 (Original post)

Sat Jan 26, 2013, 02:21 PM

43. you buy a gun, you just signed up for the militia. Report for duty.

Take the training, list your piece with the officer in charge. That simple. No infringement.

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Response to lastlib (Reply #43)

Sat Jan 26, 2013, 04:03 PM

45. No need to even buy the gun. People of military fighting age are ALREADY ascribed to the militia.

 

Specifically, the "unorganized militia".

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Response to OneTenthofOnePercent (Reply #45)

Sat Jan 26, 2013, 05:35 PM

48. old time militias & war of 1812

0.1%: People of military fighting age are ALREADY ascribed to the militia. Specifically, the "unorganized militia".

The UNorganized militia you refer to is a joke. By definition, it fails the 2ndA litmus test, in that it is not well regulated. There is no commanding officer, no pay, no drills, no mobilization point, no boot camp, no retirement, it, is, a, JOKE. The last time the unorg'd militia was activated (about the only time I believe), was in 1942 after pearl harbor due japanese invasion hysteria, & only 5,000 unorg'd militia showed up, mostly wwI vets, & they just patrolled the oregon coast mainly (Ft stevens), doing nothing.

0.1%: .. back then, there was NO standing army. Your everyday citizens WERE the army, when the situation requiring one arose (french attacks, british attacks,...
.. my beliefs of the logical intent of the 2A above; with no standing armies the people needed to be armed to form a well functioning militia.


The militias, both state & national, were intended mainly as first line defense, quickly mobilized ie 'minutemen', which could form a defense line within hours of a threat. They were intended as a temporary stop gap measure to blunt an enemy offensive, prior to an american army being raised. The army then became a 'standing army', which prosecuted the war with the militia adjunct to them.

Wm Rawle put it well in 1825 (A View of the Const.): "In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a propositon from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulation as will tend to make good soldiers with the least interruuptions of the ordinary and useful occupation of civil life. In this all the Union has a strong and visible interest.
The corollary, from the first position {militia clause}, is, that the right of the people to keep and bear arms shall not be infringed


0.1%: A well functioning militia is a militia that can fight on equal ground with an opposing force. This means that you must not only be able to supply able-bodied persons in adequate numbers, but also possessing adequate armament..

Militia could rarely hold their own against british regulars, they were essentially the same as a 'fleet in being', which meant that even tho they were negligible or inferior when put up against a trained army or navy, they still had to be considered so as to compensate for their nuisance factor, like gnats at a party.
Iran has a fleet in being which is no match for US Navy, but it still needs by countered.

0.1%: If a state needed to form a militia, it had to muster it's citizens. And the citizens pretty much had to bring their guns and weapons from home. With that in mind, if you wanted a "well regulated" militia then you couldn't disarm the general populace.

This was the original idea, but it soon splintered into two schisms by about 1830s. The militia supporters vs militia scofflaws. Militia scofflaws shirked militia duty, paid others to do it in their stead, & eventually disregarded militia yearly drills but still insisted upon an individual RKBA. Like today, they wanted to own muskets & pistols WITHOUT HAVING TO SERVE IN THE MILITIA, twisting the 2ndA as you do, into an individual right.

scalia in heller: "We have found only one early 19th-century commentator {being Benjamin Oliver} who clearly conditioned the right to keep and bear arms upon service in the militia -- and he recognized that the prevailing view was to the contrary." .. yeah by 1830 the 'prevailing view' had schismed.
.. Scalia above cited Benjamin Oliver, from Right of an American Citizen, 1832 (+emph): "The provision of the constitution, declaring the right of the people to keep and bear arms, &c. was probably intended to apply to the right of the people to bear arms for such {militia-related} purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it."

There were about 450,000 militia in the war of 1812 who showed up for duty, and about 10,000 militia members who did NOT report for the war of 1812. Are you saying, that these 'no shows' still had the same right to keep & bear arms as the militia members who DID show up? (they were not prosecuted en masse, maybe a hundred then amnesty or something).

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Response to jimmy the one (Reply #48)

Sat Jan 26, 2013, 10:13 PM

50. When has "well-regulated" ever been a litmus test?

That argument was rejected in United States v. Miller, let alone District of Columbia v. Heller.

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Response to tortoise1956 (Original post)

Sun Jan 27, 2013, 01:30 AM

52. good basis for a discussion

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