Second Amendment quiz

[fd15k]

fd15k: "... current legal framework limits Second Amendment protections only to arms that are presently in common use and are not dangerous and unusual." A LARGE part of our current 2A problems stem from the fact the SCOTUS has only recently visited those issues in Heller and McDonald. Previously, nothing since Miller in the '30s, which was a "non-judgement", (Miller dead, his accomplice disappeared, no attorney to speak for their side, the Justices sent it back to the lower court, which did nothing.) The famous statement that (sic) "short-barreled shotguns are not protected because they wouldn't be militia weapons" was part of the opinion sending it back to the lower court, and was rather silly, because Doughboys had just recently used them in France 1917-18.
Before then, the Jim Crow laws (including disarming Negroes) were nullified by the 14th Amendment, late 1860s. In the first half of the 19th century, ANY attempt at limits on 2A were met, both by SCOTUS and state courts, with disdain.
My point is that currently the Supreme Court has not yet said much about limits on 2A - including what specifically is protected, and what is not. If Mr. Obama appoints one or two more liberal justices to the Court (other than replacing Ginsburg or Kennedy), the limitations in further decisions could be quite extreme.

GunCite: gun control and Second Amendment issues is a good place to find history and quotes.

Cheers!

We also recognize another important limitation on the
right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those
“in common use at the time.” 307 U. S., at 179. We think
that limitation is fairly supported by the historical tradi
tion of prohibiting the carrying of “dangerous and unusual
weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson,
Works of the Honourable James Wilson 79 (1804); J.
Dunlap, The New-York Justice 8 (1815); C. Humphreys, A
Compendium of the Common Law in Force in Kentucky
482 (1822); 1 W. Russell, A Treatise on Crimes and Indict
able Misdemeanors 271–272 (1831); H. Stephen, Summary
of the Criminal Law 48 (1840); E. Lewis, An Abridgment
of the Criminal Law of the United States 64 (1847); F.
Wharton, A Treatise on the Criminal Law of the United
States 726 (1852). See also State v. Langford, 10 N. C.
381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849);
English v. State, 35 Tex. 473, 476 (1871); State v. Lanier,
71 N. C. 288, 289 (1874).
It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have lim
ited the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the
right.

 

[Bazooka Joe]

They messed up the answer to the question about US v Miller as well. Their answer was:

A shotgun with a barrel of less than 18 inches lacks any reasonable relationship to a well regulated militia. Since the weapon would not be useful to a militia, it was beyond the protection of the Second Amendment.

That isn't what US v Miller held. What they actually said was that because no one had introduced any evidence that such a weapon would be useful to a militia, that they could not just decide that fact for themselves. Since there was no evidence of its militia usefulness, then it was not protected. It seemed clear that they were saying that if Miller could have provided some evidence that short barreled shotguns were ever used for a military purpose, then they would have decided otherwise.

 

[MikeSettles]

fd15k: For the reasons you just stated, I believe that assault rifles, machine guns, etc. should be the types MOST protected by 2A - it is still law that all able-bodied persons between 18 and 45, not currently in the Military, and some elected officials, are members of the "Unorganized Militia of the United States". (Yes, there is that "prohibited persons" thing, which is not included in the "militia" laws, rather is found elsewhere in Title 18).

Militia in modern conflict, properly trained and organized, would still be useful. And there is at least one modern example: After we fled Vietnam, while the Vietnamese Army was kicking Pol Pot out of Cambodia the Chinese took the opportunity to invade the northern provinces of Vietnam. Vietnamese militia fought the "People's Army" to a stand-still, and made their incursion so expensive that they retreated back across the border in haste. The militia used modern small arms, RPGs, booby traps, and their web of fortified villages to great effect.

 

[fd15k]

They messed up the answer to the question about US v Miller as well. Their answer was:


That isn't what US v Miller held. What they actually said was that because no one had introduced any evidence that such a weapon would be useful to a militia, that they could not just decide that fact for themselves. Since there was no evidence of its militia usefulness, then it was not protected. It seemed clear that they were saying that if Miller could have provided some evidence that short barreled shotguns were ever used for a military purpose, then they would have decided otherwise.

Yeah, and whenever they misquote themselves, it becomes new case law

 

[fd15k]

fd15k: For the reasons you just stated, I believe that assault rifles, machine guns, etc. should be the types MOST protected by 2A - it is still law that all able-bodied persons between 18 and 45, not currently in the Military, and some elected officials, are members of the "Unorganized Militia of the United States". (Yes, there is that "prohibited persons" thing, which is not included in the "militia" laws, rather is found elsewhere in Title 18).

Militia in modern conflict, properly trained and organized, would still be useful. And there is at least one modern example: After we fled Vietnam, while the Vietnamese Army was kicking Pol Pot out of Cambodia the Chinese took the opportunity to invade the northern provinces of Vietnam. Vietnamese militia fought the "People's Army" to a stand-still, and made their incursion so expensive that they retreated back across the border in haste. The militia used modern small arms, RPGs, booby traps, and their web of fortified villages to great effect.

I'm a bit tired to look for the info right now, but I have seen analysis that pretty much Heller marked Unorganized Militia as being obsolete, and that's how they found that an individual right is protected. If that's really the case, then Miller becomes less significant, and machine guns / select fire rifles are likely not protected.

 

[DoubleTapDrew]

Cannons were widely used on private vessels in that time period. I don't know what effect, if any, they had on the revolutionary war, but they were not uncommon. To think the federal government has the best intentions or purposes with the application of force, well, that's not something I agree with.
Giving exclusive rights to the tools of tyranny to those that routinely employ them is the suicide of a free nation.
Maybe you are ready to roll over and let the federal government decide your fate, but not all of us feel that way.

 

[fd15k]

Cannons were widely used on private vessels in that time period. I don't know what effect, if any, they had on the revolutionary war, but they were not uncommon. To think the federal government has the best intentions or purposes with the application of force, well, that's not something I agree with.
Giving exclusive rights to the tools of tyranny to those that routinely employ them is the suicide of a free nation.
Maybe you are ready to roll over and let the federal government decide your fate, but not all of us feel that way.

Technically nothing prevents you from owning an army. Look at BlackWater/Xe for example. I am sure they have all kinds of "dangerous and unusual" in their possession. Hollywood has plenty of functional machineguns and destructive devices too, even under restrictive California laws.

 

[MikeSettles]

I'm a bit tired to look for the info right now, but I have seen analysis that pretty much Heller marked Unorganized Militia as being obsolete, and that's how they found that an individual right is protected. If that's really the case, then Miller becomes less significant, and machine guns / select fire rifles are likely not protected.

If THE Militia became obsolete it is because "We the People" became apathetic to our responsibility to participate, and because we allowed the Government and Mainstream Media to convince us that "militia" is a bad word; that the "Government" will keep us safe. The Constitutional Militia is still relevant if we make it so. Note that I have seen something recently about a sheriff in New Mexico using local militia as to assist his deputies in disaster relief and security duties. Then there are the folks who have been helping ICE patrol the border with Mexico in TX, NM, AZ.

Regarding Militia training and organization: There does need to be some minimum standard training and equipage requirement. George Washington didn't care for militia, as he felt that they were undisciplined and ill-prepared to stand up to British troops. He wanted a standing army for national defense. Other founders were suspicious of standing armies and any "Select Militia" (what we now call the National Guard), and believed that the whole body of the citizenry should be able to handle any invasions. I think that we do need a standing army to handle immediate contingencies, the National Guard to handle state emergencies and to beef up the Regulars, and then the Unorganized Militia to beef up both of them in case of major invasion, and for the other purposes stated by the Founders. Those 2A purposes are (based on 2A and their writings - with my opinion thrown in):
1. Defense of self, family, community at any time: No "government permission" necessary.
2. Defense of state and nation when mobilized by state or national authority.
3. Defense of the Constitution against a state or national authority gone tyrannical.

What the Heller majority opinion said (as I remember)(and this part supported by all nine justices) was that the 2nd Amendment "is an individual right, not related to membership in any militia". I don't see any statement that the Unorganized Militia is "obsolete", nor that it has no purpose. They just didn't extend themselves on that.