History 102: Which people form part of a well-regulated militia?

Nothing in Miller says that.

That supports my point, which is that the argument about 'individual right' wasn't settled until Heller. A rather recent ruling in a 5/4 party line vote, hardly the stuff of strong precedent.

But that fact does not equal 'second amendment is individual right'. That argument wasn't settled until Heller.

That is not accurate.

In United States v. Miller, the Supreme Court did not explicitly rule on whether Jack Miller, the individual in question, had the right to possess a sawed-off shotgun. Instead, the Court's decision focused on whether a sawed-off shotgun had a reasonable relationship to the preservation or efficiency of a well-regulated militia. The Court held that since there was no evidence presented that a sawed-off shotgun was a weapon commonly used by the militia, the Second Amendment did not protect Miller's possession of such a weapon.

The key point of the Miller decision was about the type of weapon and its connection to militia service, not about establishing a broad individual right to own any specific type of firearm. The ruling was more about the nature of the weapon in question rather than establishing a general principle regarding individual rights to firearms.

Your question has a false premise.

Supreme Court did not explicitly address or reject a "collective right" argument regarding the Second Amendment. Rather, the focus of the Miller decision was on whether a sawed-off shotgun had a reasonable relationship to the preservation or efficiency of a well-regulated militia.

The ruling in Miller did not delve deeply into the individual right versus collective right interpretations of the Second Amendment. Instead, it examined whether the weapon in question was the type that would be part of the ordinary military equipment or could contribute to the common defense.

This case has often been interpreted in various ways in the debate over individual versus collective rights under the Second Amendment. However, it's important to note that the Supreme Court's decision was more narrowly focused on the type of weapon and its relation to militia use, rather than making a broad statement about the nature of Second Amendment rights. Again, and I repeat, the individual versus collective rights debate regarding the Second Amendment was more directly addressed in later cases, notably in Heller (200.

This is a highly nuanced subject, and it deserves more scholarship than the simplisticisms you are offering, which aren't accurate. That one isn't, either. I'll get into the nuanced details if you want, but I did, above, once, and I'm not going to do it every time you utter a simplistic claim.

Ditto, above.

Because Bruen is a terrible and unenforceable ruling. It forces Judges to become historians which they are not.

No one is questioning the fact that our history of frontiersman and their relationship with the rifle. But they also had a relationship with horses, and a multitude of things that were just part of frontier life and no one thought all of these things had to be a 'right' embedded in the constitution, they were a given. It was prosperous in the minds of the framers that anyone would want to confiscate horses, guns, farming articles, and the like and so the idea of making them a 'right' in a constitution just wasn't the big argument.

This is not the issue.

The issue is whether or not it was on the minds of the framers of the constitution when they wrote the bill of rights. If you look at the arguments given at the ratification convention, the vast bulk of the concerns by the anti-federalists was that the new constitution could give the new congress the right to usurp and thus subsume state militias into the federal standing army, which the states viewed as anathema. THAT was what was on their minds, NOT 'individual right'. All able bodied males 18-45 needed weapons, and the second amendment guaranteed it, and the reason it says 'STATE' instead of 'Country' is because of the STATE MILITIA. Second amendment is all about the militia. and 'the people' were the militia, these two were one and the same. Guess what, in modern america, they are not the same. This is the why that that argument exists on this point, and it wasn't a settled argument until Heller.

Your entire argument appears to rise or fall on your claim about Miller. Well, as far as I can tell, your claim about MIller is false, wrong, incorrect, in error, etc., etc., etc..

And there goes your argument.

Feel free to cite any part of Miller that supports your claim. Maybe I'm wrong. I'd like to know if I am. So, the ball is in your court. Let's see what you got.

 

Let's make sure we are clear on what my argument is. I don't know, off hand, if it is the same as Golem's, or not, I'll let him tell me if it is, or isn't. But my argument is that the second amendment does not clarify the issue of individual right versus 'must be in a militia' argument that has been going on for a long time. My argument is that it wasn't a totally settled argument until Heller.

Now then.....

Evolution of Legal Interpretation: While the early understanding and laws are crucial, legal interpretations can evolve. The Supreme Court's role includes interpreting the Constitution in the context of contemporary society. This means that historical interpretations and practices are considered but are not the sole basis for modern legal decisions.

Individual vs. Collective Rights Debate: The debate over whether the Second Amendment protects an individual or collective right was indeed ongoing and not definitively settled until Heller. Prior to Heller, there was a significant division among legal scholars, jurists, and historians about how to interpret the Second Amendment.

Miller and its Ambiguities: The United States v. Miller case in 1939, often cited before Heller, did not categorically affirm an individual right to bear arms, leading to varied interpretations in lower courts.

Contextual Change: The context in which the Second Amendment was written (a young nation with a strong reliance on citizen militias for defense) is quite different from today’s context, where the United States has a powerful standing military and organized law enforcement agencies. This change in context can influence legal interpretations.

In conclusion, while your points are based on valid historical references, the argument may not fully account for the complexities of constitutional interpretation, the evolution of legal thought, and the changing societal context in which the Second Amendment exists. The Heller decision marked a significant moment in clarifying the individual rights interpretation, which was not universally accepted or clearly defined in Supreme Court jurisprudence prior to that case.

And that is my argument.

 

Hmmmm, CONSERVATIVE Supreme Court Justice Warren Burger would disagree with you



Or you just know more about the Constitution than he does?

 

@Mushroom doesn't know that.

 

See?

And you follow up with a quote that makes NO mention of the 2nd A.

You act as expected.

Your quote from the Militia Act of 1792: "...shall severally and respectively be enrolled in the militia"

So they weren't already enrolled, as per the 2nd A? You have made my case.

 

Burger was a Conservative? Where in the hell do you get the idea he was a conservative?

 

You are attempting a circular argument there. Always a logical fail.

 

I don't think you did either since you constantly bring up the militia in gun control threads

 

He was an intellectual nadir for a USSC chief justice. He was a statist.

 

https://thefederalist.com/2023/02/2...e-is-ahistorical-not-to-mention-sort-of-fake/

The first problem with the popular online iteration of the quote is that it’s actually cobbled together from three separate sources to give it more impact. Don’t get me wrong: Burger is mistaken in all instances, but he is mistaken in different contexts.

The second problem is that the quote often reads as if Burger—the “conservative” who voted with the majority in Roe v. Wade—offered this argument as a member of the Supreme Court. No high-court decision has ever defined the Second Amendment as anything but an individual right. And Burger never uttered a word about the Second Amendment while sitting on the court. For that matter, he never rendered a gun decision on any court, nor ever wrote a legal paper on the issue. And it shows.


In other words, his opinion is flawed and worthless

 

I do NOT. I only bring it up in 2nd A threads.

 

I always viewed him as more of a "classic liberal". In other words, what "modern Liberals" would see as a "Conservative" simply because he did not support tearing everything down in some kind of Marxist style of totalitarianism.

Overall, when looking at his decisions, they tended to be rather consistent. Following what most would in the modern day see as "libertarian" beliefs, and that the rights of the individual in most instances were paramount. Like in Rove V. Wade, his comments were primarily based not on abortion itself, but in personal privacy. And it must be remembered he also sided with Harris V. McRae that states were not required to fun abortions. He also sided with Pennsylvania in a case which allowed that state to enact a waiting period for abortions.

So while somebody can scream he was :"conservative" in the latter ones, he did cast the crucial vote in allowing abortions to become legal in the first place. However, this is the kind of nuance that is missed on many in the modern era. Where somebody can take a moderate approach, and not jump completely into one camp or the other but tread a middle ground.

And even though he was nominated to the court by President Eisenhower and to the Chief Justice by President Nixon, he also penned the decision as the Chief Justice that rejected President Nixon's invocation of Executive Privilege during Watergate. And most of his decisions seemed to try to find a common path between sides and not point fingers at one side or the other in the cases judged.

 

where it has zero relevance to the negative restriction on the government

 

Good catch. I wasn't thinking of that for some reason.

 

That is incorrect. The OP has no evidence to support your untrue claim that the Second Amendment doesn't protect a right to own weapons.

The OP also has no evidence to support your untrue claim that Scalia "legislated" or in any way created an individual right.

You haven't provided any reason for me to think that it matters who the members of a well-regulated militia are.

Unless you can provide a compelling argument that the issue even matters, why should I waste my time correcting your untrue statements about the issue?

 

It is not a problem, but it is one of the things that must be taken into consideration when considering the Constitution. And the Second Amendment and early militia was directly patterned off of the British Yeomanry.

People forget that while we think of America and England as two separate nations, all of the Founding Fathers were born British. With British law, British history, and British culture. Which is why in the Federalist Papers like I quoted they specifically mention the "Yeomen class", which at the time was still a very real thing. And what the majority of Americans thought of themselves, only a decade separated from the Crown. And the US militia and the Second Amendment was very much patterned directly off of English law, which at that time still mandated that the yeomanry maintain arms and regularly practice their use.

And while they have not been called up for decades, the laws are still in place to call up the yeomanry of England into service if needed again. But the last time I can think of that it was done was during WWII. Most specifically, the Home Guard was very much conducted like the yeomanry in the past. Which made up 20% of the male population of England not already in the armed forces, they are the ones tasked with doing most of the defense of the nation during the war. And most of them armed themselves with their own personal weapons.

The problem that most who are trying to attack the Second Amendment are doing is that they are attempting to frame things entirely in modern concepts. And completely ignoring the actual historical framework that was in place at the time the Constitution was written. In fact, it is not unlike all of the recent attempts we have seen of Hollywood trying to rework classic movies and TV shows for "modern audiences". Which is yet another failure, as all they really mean is that they are trying to deconstruct and make them in the way they think they should be.

Which is also a failure, but in a different way.

 

So your position is that the ruling says that they will not even address the question of whether Miller has an individual right to have the weapon unless it is first established that the sawed-off shotgun is a militia weapon?

The Bruen ruling came about because lower court judges were disregarding Heller.

If lower court judges continue to disregard both Heller and Bruen, the Supreme Court will crack down on them even more harshly.

Actually the concern was that the government would prevent the militia from being armed. Or prevent the militia from organizing and training.

They addressed the issue of the government not allowing the militia to arm, by protecting the individual right to keep and bear arms.

The fact that "the people" and "the militia" are one and the same means that the Second Amendment is also all about the people.

That is incorrect. The militia remains the entire body of the people.

I also have thousands of years of history where the right to keep and bear arms has always been an individual right.

And I have the basic fact that there isn't even any such thing as a collective right. All rights are individual rights.

 

Sure, that is a thing under Marxism I believe. Where everything is held in trust by the collective.

But it sure as hell does not exist under the US Constitution.

 

It doesn't address the issue of an individual right.
Reread the statement, and don't add to it anything that isn't there.

Once again, you make the logical error of being overly simplistic, where, to be accurate, a more nuanced approach is required, which, of course, I will do for you now.

NYSRPA v. Bruen, decided in 2022, further expanded on the principles of Heller. In Bruen, the Court struck down a New York law that required individuals to demonstrate a special need for self-protection to obtain a license to carry a concealed firearm in public. The Court ruled that this requirement violated the Second Amendment.

It appears your viewpoint stems from the viewpoint that some lower court rulings after Heller did not fully align with the principles or interpretations of the Second Amendment as established in Heller. But, the spin on your expression isn't quite right. Proponents of this view argue that lower courts were too restrictive in applying Heller, leading to a need for the Supreme Court to clarify or reinforce its interpretation of the Second Amendment, which it did in Bruen. Bruen is clarification, not policing or 'cracking down' as you have put it.

However, interpretations of how lower courts have applied Heller can vary, and the relationship between lower court decisions and the Supreme Court's decision to take up Bruen is complex. The Bruen decision can be seen as part of an ongoing legal and judicial process of defining the scope and limits of the Second Amendment in the wake of Heller.

Bruen is problematic, and given this fact, I believe Bruen will require more rulings by the SCOTUS to address the conflict between what Heller requires and the level of historical expertise Bruen demands on a judge. Bruen, a number of judges have complained, is unworkable.

Your verbiage suggests that the Supreme Court is a policing agency which clearly it is not.
Bruen will probably be challenged and adjustments by the court will be made to reflect the reality check the work of lower court jurisprudence will require.

I'll have to review the documents on this, my view is that they were more focused on subsummation of militias into standing armies. I'll get back to you on this point.

You keep asserting 'individual right', yet, as I understand it, that language wasn't used in the bulk of their arguments. That is my understanding and I will further research the original documents for more clarity on this point. As I understand it, the correct question we should be asking is this, 'what was the focus of the concerns of the framers at the ratification convention regarding the second amendment'?

As I understand it, it wasn't individual rights, it was the usurpation and subsummation of state militias into standing armies which they viewed as anathema. You've offered nothing to substantiate your claim (nor have I, so we both need to do this, and quoting letters and articles outside of the transcripts of the ratification convention won't cut it). Standing armies, the framers worried, were the tools of dictators and monarchs, and they wanted no part of them. But, of course, in time, the 'standing army' became the reality as militias waned in their importance. This is why the second amendment needed Heller, to address the lack of modernity in the wording of the amendment.

"Bear arms' has a militia context, one doesn't rush to the rifle cabinet and bear arms to shoot deer, one rushes to the rifle stores to bear arms to defend the country or one's property, it has a 'fighting' context. The second amendment was there to protect the militia, and 'the people' is written in a military context, given that 'the people' were militia members. The peculiar syntax of the second amendment is not how it would be written today, so it's clear meaning at the time, this is the subject of debate. One side says it's clear it means X, the other side says it's clear it means Y. As to which it meant, this wasn't a settled argument until Heller, which goes back to my point. The wording is inadequate for modernity, which is the reason for Heller. This goes back to my point, which is this: the issue of the second amendment being both an individual right separate from the militia, and being about the militia, secondary meaning, wasn't established, constitutionally speaking, until Heller.

There really is no way around that fact, given the Heller ruling. It was debated in the halls of the body politic and in academia for years, but it wasn't a settled argument until heller. Even the courts didn't address it. What that means it's substance wasn't really on anyone's mind until the NRA came along and started pontificating about 'individual rights' blah blah blah. And, contrary to your claim, Miller does not address the notion that the second amendment is about the individual right devoid of a military context.

The context of 1788 2A's syntax cannot be extrapolated into modernity, Heller was needed.

I think this argument requires precise articulation. Given that fact, no, you don't.

No one is arguing that history is rife with frontiersman keeping and bearing arms for defense of ones home and country. This isn't about banning guns, it is about what was the focus of the arguments at the ratification convention. No one was worried that congress would take away guns from people because frontier life required guns for hunting and self defense, the very idea that they were worried about it, well, I see no evidence of it, and I think the reason was they knew that was impossible. What they worried about, as stated above. the subsummation of militias into standing armies, which would serve the interest of tyrants, which they just fought a war of independence against. This was what was on the framers' minds at the ratification convention. Now, if you have some transcripts that reveal the bulk of the arguments made at the ratification convention differ from my interpretation, please offer it.

That's simply wrong.

Individual rights refer to freedoms and protections that are held by individual persons. These rights are typically understood to protect individuals from government overreach or interference and ensure personal autonomy. The right to free speech, freedom of religion, and the right to due process are classic examples of individual rights. These rights are primarily about protecting the individual and their personal freedoms and liberties.

Collective rights, on the other hand, pertain to groups rather than individuals. These rights are exercised collectively by groups of people or communities. They are often associated with the interests or well-being of the group as a whole. Examples of collective rights include the rights of indigenous peoples to preserve and protect their traditional lands and culture, or the rights of workers to form unions and bargain collectively.

The distinction can sometimes be a matter of debate and interpretation, especially in cases where individual and collective rights may appear to be in conflict. For instance, the right to individual freedom of expression might conflict with a group's right to cultural preservation.

In the context of constitutional democracies like the United States, the emphasis is often on individual rights, as enshrined in documents like the U.S. Bill of Rights. However, the concept of collective rights is increasingly recognized in international law and in the legal systems of various countries, particularly in relation to indigenous peoples and minority groups. The point is that your claim there 'is no such thing as a collective right, all rights are individual rights' appears to be America-centric derived--where the bill of rights is focused on the individual rights, but you are claiming there is no such thing in principle, and that is simply not true.

The balance and interaction between individual and collective rights continue to be an evolving area of legal and philosophical discourse. It's important to note that the application and interpretation of these concepts can vary significantly depending on the legal system and cultural context.

Moreover, 'collective right' is a misnomer. What is meant is "second amendment's 'right' was in the context of the militia"

In Patrick Henry's oratory, he was against the new constitution because he believed that it's structure would all to easily allow for a 'president' to become 'king' by way of having sway over a standing army, which would usurp state militias into that purpose, and thus move away from democracy to a monarchy.

https://teachingamericanhistory.org/document/patrick-henry-virginia-ratifying-convention-va/

This is why the wording of the second amendment, they changed the word 'country' to 'state', so as to preserve the state militia. Henry was a plantation owner, and Virginia's signature was the 9th signature needed for the ratification and it's signature would be the representative signature for the southern States. Virginia was strategically placed in the center of the 13 states. Virginia was a plantation economy and the militia had three functions. 1. State defense. 2. General policing and 3. Slave patrols. For Henry, #3 was very important for his own livelihood depended on the militia. He needed assurance that the new constitution wouldn't subsume the state militia into a standing army which could be used by a 'president' to become 'king'.

 

ZERO!

That's exactly my point overall in these four threads. The 2nd A has NO relevance in ANYTHING that has to do with this "right to own weapons" created by justices legislating form the bench through the Heller Legislation.

 

This thread is intended to debunk the argument that everyone automatically belonged to the "well regulated militia" mentioned in the 2nd A. Please focus! If you're not going to read the OP, you should at least read the title.

If you have anything to say about THAT topic, say it. If not, then you're in the wrong thread. The OP also includes links to other topics related to the 2nd A

 

that's just plain silly. the militia has no relevance to the negative restriction on the government. the second amendment is a negative restriction on a government that was never delegated any gun control power. And the uber bullshit that ownership is not protected is so dishonest that no one takes it seriously

 

how is that relevant to the federal government being blocked from interfering with private citizens keeping, owning, carrying, etc firearms when said citizens are acting in a private capacity?

 

you complain that Heller and its progeny created an individual right that you incorrectly claim the founders did not intend but fail to admit that the FDR expansion of the commerce clause created a federal power to regulate firearms that the founders didn't intend. So you lose either way. If we stick to the original intent, there is no federal gun control power whatsoever. If you adopt the FDR court reasoning you must also acknowledge the Roberts Court decisions

 

Irrelevant to this thread. Which is about who belonged to the "well-regulated" militia. Whatever any other point you wish to try to make, you can make in the thread where it's appropriate.