Quantcast
  1. Sign up now and join over 35,000 northwest gun owners. It's quick, easy, and 100% free!

2nd Amendment Rights for our Military?

Discussion in 'Legal & Political Archive' started by zeezee, May 29, 2010.

  1. zeezee

    zeezee nowheresville Member

    Messages:
    735
    Likes Received:
    14
  2. THC101

    THC101 Pierce County Member

    Messages:
    127
    Likes Received:
    7
    what are they afraid of?
     
  3. 56kninja

    56kninja Portland Member

    Messages:
    458
    Likes Received:
    1
    I was under the impression that the military could only control the placement and/or ownership of firearms of military members if it were to be kept on a military base.


    But, it seems like a good bill. Unless there's something hidden.

    Edit: Reading the link answered my question.
     
  4. LibertyorDeath

    LibertyorDeath Western Washington Member

    Messages:
    77
    Likes Received:
    3
    My best guess.

    They know that they expose people to some really screwed up bubblegum and then leave them high and dry with no support or help to deal with what they see. In some cases this causes people to snap. Instead of trying to fix the mental health issues they think that violating the civil rights of the entire military and their families is a better way to keep soldiers from snapping.

    Since telling people that they can't own guns stops all guns crime this is sure to work, right. :laugh::laugh::laugh:
     
  5. CEF1959

    CEF1959 Willamette Valley, Oregon New Member

    Messages:
    986
    Likes Received:
    14
    Yet another Washington politician meddling in the affairs of the US Military, second-guessing uniformed officers regarding what is necessary or appropriate for US military forces? If he gets to do this, I guess Congress may legitimately require the military to accept openly-gay service personnel (as long as they keep their sex lives off-base, that is).
     
  6. LibertyorDeath

    LibertyorDeath Western Washington Member

    Messages:
    77
    Likes Received:
    3
    Being gay is not protected in the Bill of Rights. The right to Keep and Bear arms still is. Just because you join the armed forces should not mean that the rights of you and your family members can be infringed upon. Especially off post and out of uniform.

    Here is the text of the link.

     
  7. CEF1959

    CEF1959 Willamette Valley, Oregon New Member

    Messages:
    986
    Likes Received:
    14
    If the Second Amendment prohibited this, Sen. Inhofe's proposed legislation would be unnecessary. Besides, you give up a LOT of rights when you agree to serve in the US military.

    Shouldn't this sort of stuff be decided by the military, based on military needs? If you're OK with political meddling in military policy, just remember that what's good for the goose is good for the gander.
     
  8. zeezee

    zeezee nowheresville Member

    Messages:
    735
    Likes Received:
    14
    I've a friend who is deployed right now but he and I discussed this in great detail when he was home on leave. If you live on base you must register the firearm(s), any firearm you own, with the Military Police and the firearm(s) are to be kept in the base arms locker where you may check them out when you want to use them. His wise *** remark to my saying that was a "stupid rule" was, "if and when the military wants you to be armed they will supply you with one". End of discussion. Of course he doesn't live on base so . . .
     
  9. Reco

    Reco Portland Oregon Active Member

    Messages:
    348
    Likes Received:
    43
    lol..... I remember the times in the Marines when we check out machine guns and clean them for maintenance. Trust me If you wanted to find ammo getting a hold of a weapon like that wasn't difficult to a active member in a combat unit. Lucky we were all good Disciplined Marines =P
     
  10. CounterOfBeans

    CounterOfBeans northwest Active Member

    Messages:
    287
    Likes Received:
    117
    On the surface, it seems like an ugly irony that someone who swears to uphold and defend the Constitution doesn't get to benefit from the Bill of Rights (2nd Amendment in this case) like regular citizens do. Whether or not it ruffles feathers, if you actually take a look at the UCMJ and study some case law about why this is, you'll see how it makes sense on several levels. Below is some info & some links to explain.

    UNIFORM CODE OF MILITARY JUSTICE
    SUB CHAPTER 1. GENERAL PROVISIONS

    801. ART. 1. DEFINITIONS.

    802. ART. 2. PERSONS SUBJECT TO THIS CHAPTER
    (a) The following persons are subject to this chapter:
    (1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in the armed forces, from the dates when they are required by the terms of the call or order to obey it.

    805. ART. 5. TERRITORIAL APPLICABILITY OF THIS CHAPTER
    This chapter applies in all places.

    Quote below taken from page 41 of Department of Defense notice at: http://www.dodig.mil/inspections/ipo/TIP_17JUL2008.pdf

    "UCMJ Military Personnel
    • Military personnel are subject to UCMJ jurisdiction 24/7, while on or off duty, while on or off military reservation, and worldwide
    • Members of the Reserve Components are subject to UCMJ when performing active duty or training (National Guard when in Federal Status)
    • Retired regular members of the armed forces who are entitled to pay are subject to UCMJ
    • As a general rule, military family members and civilian employees are not subject to UCMJ"

    WHAT IS TERRITORIAL STATUS?

    The italicized quote below about territorial jurisdiction is taken from the first url below, which is a link extending from the second url
    http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00664.htm
    http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/20mcrm.htm)

    "US Attorneys > USAM > Title 9 > Criminal Resource Manual 664
    prev | next | Criminal Resource Manual
    664 Territorial Jurisdiction
    Of the several categories listed in 18 U.S.C. § 7, Section 7(3) is the most significant, and provides:

    The term "special maritime and territorial jurisdiction of the United States," as used in this title, includes: . . .

    (3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

    As is readily apparent, this subsection, and particularly its second clause, bears a striking resemblance to the 17th Clause of Article I, Sec. 8 of the Constitution. This clause provides:

    The Congress shall have power. . . To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, be Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.

    (Emphasis added.) The constitutional phrase "exclusive legislation" is the equivalent of the statutory expression "exclusive jurisdiction." See James v. Dravo Contracting Co., 302 U.S. 134, 141 (1937), citing, Surplus Trading Co. v. Cook, 281 U.S. 647, 652 (1930)."


    Article 1, Section 8 is the Constitutional source for why military members don't have access to Bill of Rights protections like regular citizens do. The case below has several passages that explain why. Click the link below to read the full case and get a better understanding of how it is that military personnel under territorial jurisdiction can be lawfully subjected to treatment you and I would chafe at [my words].

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=354&invol=1
    REID v. COVERT, 354 U.S. 1 (1957)
    354 U.S. 1
    REID, SUPERINTENDENT, DISTRICT OF COLUMBIA JAIL, v. COVERT. 
ON REHEARING. * 
No. 701, October Term, 1955. 
Argued May 3, 1956; decided June 11, 1956; rehearing granted November 5, 1956; reargued February 27, 1957; 
Decided June 10, 1957.

    "Article I, 8, cl. 14 empowers Congress "To make Rules for the Government and Regulation of the land and naval Forces." It has been held that this creates an exception to the normal method of trial in civilian courts as provided by the Constitution and permits Congress to authorize military trial of members of the armed services without all the safeguards given an accused by Article III and the Bill of Rights. 36 But if the language of Clause 14 is given its natural meaning, 37 the power granted does not extend to civilians - even though they may be dependents living with servicemen on a military base."

    "It is true that the Constitution expressly grants Congress power to make all rules necessary and proper to govern and regulate those persons who are serving in the 'land and naval Forces.' "

    "Under the grand design of the Constitution civilian courts are the normal repositories of power to try persons charged with crimes against the United States. And to protect persons brought before these courts, Article III and the Fifth, Sixth, and Eighth Amendments establish the right to trial by jury, to indictment by a grand jury and a number of other specific safeguards. By way of contrast the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language in Art. I, 8, and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law."

    "Traditionally, military justice has been a rough form of justice emphasizing summary procedures, [354 U.S. 1, 36] speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks. Because of its very nature and purpose the military must place great emphasis on discipline and efficiency. Correspondingly, there has always been less emphasis in the military on protecting the rights of the individual than in civilian society and in civilian courts."

    "Notwithstanding the recent reforms, military trial does not give an accused the same protection which exists in the civil courts. Looming far above all other deficiencies of the military trial, of course, is the absence of trial by jury before an independent judge after an indictment by a grand jury. Moreover the reforms are merely statutory; Congress - and perhaps the President - can reinstate former practices, subject to any limitations imposed by the Constitution, whenever it desires. 67 As yet it has not been clearly settled to what extent the Bill of Rights and other protective parts of the Constitution apply to military trials. 68 [354 U.S. 1, 38]

    It must be emphasized that every person who comes within the jurisdiction of courts-martial is subject to military law - law that is substantially different from the law which governs civilian society. Military law is, in many respects, harsh law which is frequently cast in very sweeping and vague terms. 69 It emphasizes the iron hand of discipline more that it does the even scales of justice. Moreover, it has not yet been definitely established to what extent the President, as Commander-in-Chief of the armed forces, or his delegates, can promulgate, supplement or change substantive military law as well as the procedures of military courts in time of peace, or in time of war. 70 In any event, Congress has given the President broad discretion to provide the rules governing military trials. 71 For example, in these very cases a technical manual issued under the President's name with regard to the defense of insanity in military trials was of critical importance in the convictions of Mrs. Covert and Mrs. Smith. If the President can provide [354 U.S. 1, 39] rules of substantive law as well as procedure, then he and his military subordinates exercise legislative, executive and judicial powers with respect to those subject to military trials. Such blending of functions in one branch of the Government is the objectionable thing which the draftsmen of the Constitution endeavored to prevent by providing for the separation of governmental powers.
    In summary, 'it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts.' 72 In part this is attributable to the inherent differences in values and attitudes that separate the military establishment from civilian society. In the military, by necessity, emphasis must be placed on the security and order of the group rather than on the value and integrity of the individual."
     
  11. zeezee

    zeezee nowheresville Member

    Messages:
    735
    Likes Received:
    14
    Great post, thank you.
     
  12. CounterOfBeans

    CounterOfBeans northwest Active Member

    Messages:
    287
    Likes Received:
    117
    Sorry I haven't yet finished my research on that Sieyes case you spoke of a while back. That project turned up one rabbit hole of further research after another. There's at least six or seven cases involved in the chain of support for the Sieyes case decision and my preference to be fully informed about those cases before I put something together for you started cutting into the tasks of life, so I had to back off a bit. I haven't forgotten about it though.
     
  13. Chipperxd

    Chipperxd Buffalo Active Member

    Messages:
    705
    Likes Received:
    182
    My friends brother is in the Navy and he is not suppose to have any firearms in Military housing. Not sure how it works if you live off base. He has to keep all his guns with his parents or with my friend. Pretty stupid if you ask me.
     
  14. Martini_Up

    Martini_Up NW USA Well-Known Member

    Messages:
    1,633
    Likes Received:
    1,736
    As I see it, the Constitution is a list of rights the government recognizes it can't take away without just cause as the people are born with them automatically. If the government wants to have a list of rights over itself - the agents of government - that should be elsewhere, not in the Constitution.
     
  15. MikeSettles

    MikeSettles Vancouver, Washington Active Member

    Messages:
    348
    Likes Received:
    116
    I have served, active and reserve, for 40 years (since June, 1970), USMC and US Army. We ALWAYS were restricted from having personal firearms in barracks. On-post quarters was not a problem until recently. Off-post quarters was never a problem until just now.
    Many Soldiers and Marines in Vietnam and before purchased private shotguns and pistols and carried them to the war zone. We can't now since GEN Tommy Franks instituted General Order 1 in CENTCOM. (He also prohibited sex, alchohol, porn, drugs, and pets. It still stands in Iraq & Afghanistan.)
    Recently, some PC commanders got burned for trying to require registration of weapons in off-post quarters - the furor these acts generated caused the offending officers to back off. (Fort Bliss commander and a company commander at Ft Knox, I believe.)
    Now, we have an administration which wants to make everyone "safe" by denying the means to self-defense. As with most great "social experiments", they begin with the military, where they think that they can just order it to be done, and it's done.
    This practice has had both positive and negative outcomes for our Military, and our society: Racial segregation was instituted by Woodrow Wilson, desegregation was forced during the Korean War by Harry Truman, "beer in the barracks" during the seventies (essentially they curtailed disciplinary measures for minor infractions - equate to Child Protective Services telling you that you are responsible for what your child does, but you must neither raise your voice to, nor put your hands on them).
    The bottom line to all this is that EVERY CREATURE HAS THE INHERENT RESPONSIBILITY FOR ITS OWN SELF DEFENSE. Man has neither claws nor big teeth, nor poisonous secretions from his skin to defeat predators. He is the tool-maker and user. Leftist lawmakers, and "Politically Correct" commanders who institute gun and knife control to keep people safe remove the means most useful to meet that need.
    2nd Amendment guarantees the right to the tools necessary to keep you and yours safe: Our Service Members need this just as much as any civilian.
    Thus, this is one Right which must NOT be pre-empted, even in the name of "Good Order and Discipline"!
    And it is NOT easy to just go draw a machine gun from an arms room if you want one! Ammo and weapons are STRICTLY controlled on military bases, though there have been some anecdotal exceptions from time to time.
    Martini Up: "Agents of Government", including Soldiers, are also citizens.
     
  16. CounterOfBeans

    CounterOfBeans northwest Active Member

    Messages:
    287
    Likes Received:
    117
    The first sentence above is valid and important to point out, but the second sentence shows that the premise of the first isn't truly understood like it seems to be. It shines a light on a conspicuous problem: how our perceptions of what the Constitution is have been dangerously compromised through neglect of constitutional education in our public schools (compare your constitutional education experience to what the law requires under ORS 336.057).

    There is no aspect of our form of government whatsoever that is or can ever be "not in the Constitution". Our government is a direct and inseparable product of the Constitution and the government cannot escape its birth place. The Constitution is a contract, the limitations of which can only be broken under a condition where The People no longer want to be free.

    The word "Right" isn't an appropriate word to use to describe the capacities or protections used by public servants/employees. Their entire existence as a public servant/employee is the result of The People granting them permission to occupy those roles through the channels available under the Constitutions (federal/state).

    Any capacity to do some thing that requires the permission of someone else, is a capacity that can just as easily be taken away if the giver so decides, and such a capacity can not be masqueraded as a "right" without making a mockery of the meaning of the word "right", i.e. Bill of Rights.

    Words like "authority" or "power" are more appropriate for describing the privileged permission that The People extend to public servants/employees. Under the Constitution and through legislatively enacted laws, We authorize them to possess the "power" they need to act in our interests and in our defense.

    It's important for people to understand that the terms "authority" and "power" themselves are nothing more than traditional names used to describe that power which We The People possess, but conditionally lend or extend to public servants/employees in trust to perform their proper duties.

    When people come to adopt or accept a perception that the words "authority" or "power" mean anything that is independent of or beyond the People's permission or scrutiny or revocation, then we become vulnerable to a notion never conceived of in the Constitution: that our public servants (during the times that they are bathed in the legal capacity of public servants) are endowed with the same unalienable, natural born rights that give us the inherent power to create the Constitution which keeps them in check.

    When that reality arrives, the Constitution and all the American heritage that we like to pat ourselves on the back for on national holidays has no more value or meaning than a cheap bumper sticker on a gutted old rusting car in some wrecking yard. We become the laughing stocks of history and the jesters of our own Court.

    It's just a matter of a lack of Constitutional education, which, again, is a product of the curriculum "policies" of our public schools (ORS 336.057).
     
  17. CounterOfBeans

    CounterOfBeans northwest Active Member

    Messages:
    287
    Likes Received:
    117
    First off, I do want to thank you for your service. I served in the Army as well and I of course fully value and appreciate the sacrifices made by our military. But when I joined the military, I was fresh out of high school with almost no Constitutional education exposure (thanks to public school curriculum policy). All the same, I still raised my incompetently ignorant hand and swore to uphold and defend something that I knew almost nothing about. What kind of an oath is taken by someone who is utterly educationally unqualified to make a fully informed decision about taking it? I didn't recognize my educational incompetence when I swore the oath though. I plain ole didn't know that I didn't know what I needed to know or even that I should know. But I swore that oath all the same like many, many other people. That happened thousands of times a day across the country before I joined, when I joined, after I joined and still now after I've been out of the military.

    I'm curious to know what kind of constitutional education you received or pursued? I'm curious because people often have very strong instinctual feelings about what is right and wrong regarding the Constitution and rights, but those feelings sometimes lack the benefit of having studied authoritative legal/historical texts about what makes the Constitution what it is.

    Specifically, I'm willing to compare notes and read case law decisions that support what you've said about " 'Agents of Government', including Soldiers, are also citizens." But it pains me that People are at risk of making decisions and forming their perceptions based mostly on their feelings, maybe at risk of contributing to a larger decay of the core Constitutional understandings We The People need to remain independent and free.

    Since we probably agree that we prize our cherished country as a nation of laws, we should be careful not to put all of our eggs into a basket of feelings, because case decisions and doctrines of law that affect our daily lives don't usually hinge on feelings. If you can put something out there that fills in the details of how a government official/ employee can be recognized simultaneously as a citizen, I'd like to take a look at it. Thanks, and really, your a fellow veteran and citizen who's honestly trying to figure things out like the rest of us; no snooty tone intended on this end.
     
  18. MikeSettles

    MikeSettles Vancouver, Washington Active Member

    Messages:
    348
    Likes Received:
    116
    I don't have case law to stand on; rather it's a perception that while a "public servant" has certain authority granted to him to act in our behalf, that same person is also a citizen, with the same inherent rights as the rest of us.
    The difficulty comes in balancing government power in the hands of individuals against those rights guaranteed to all citizens for those same individuals.
    Thus, the same 4th and 5th amendment rights enjoyed by you and I as private citizens are also enjoyed by a sleazy congressman when he's caught with his fingers in the till.
    More difficult yet, is the balancing of the rights of citizens who happen to be Service Members, against the need for good order and discipline in order to perserve the nation. What little that I have seen of this, is that it is an area of law where the Commander is King, and woe to the pawn who displeases him. (Before the UCMJ (1947) commanders had MORE power, and Soldiers had little or no recourse before one who abused his power.)
    Still, with regard to the 2nd Amendment: I see NO justification, other than the usual PC Leftist "we must keep them safe from themselves" excuse to abrogate any Soldiers' right to the tools to defend himself anywhere at any time.
    Hope to see you tomorrow a the picnic!

    Mike
     
  19. PinkhamR

    PinkhamR Altus, Oklahoma MSgt, USAF (Retired)-FFL Lifetime Supporter

    Messages:
    3,280
    Likes Received:
    513
    I very good thread - thanx to all who have posted.
     
  20. Working 4 U

    Working 4 U Eugene Active Member

    Messages:
    248
    Likes Received:
    120
    To those who have served, will serve and unfortunately died serving I thank you.

    This is stupid! These are the very people that are given firearms in time of war to defend the very rights that we have. Base Commander says "You cant have a firearm in your house"!, But in a time of war or what ever little fight they feel they can send our troops to and say here is a firearm go to it! Oh yeah don't kill civilians and you can't fight the way we trained you and you also can't have a bullet in the chamber.

    The leaders in this military are just about worthless as the liberals in congress, not willing to take a stand.

    I get so disgusted at issues like this. God Help us!