Brady Campaign can't make up its mind
At the Huffington Post, Dennis Hennigan complains of an "insurrectionist view of the Second Amendment." He is appalled that the Solicitor General's brief in Heller argued that "an armed citizenry as a deterrent to abusive behavior by the federal government itself."
Yes, that does sound like what more than a few of the Framers -- including James Madison in Federalist 46 -- wrote. What's interesting is that the Heller dissent argues that the Second Amendment had nothing to do with a right of self defense, it was all concerned with enabling States to resist a Federal tyranny. So the Heller dissent itself took an insurrectionist view.
I am truly beginning to wonder if something isn't up. Barbara Boxer, on accepting the backing of Lee Baca, Sheriff of Los Angeles County, called for a new Assault Weapon ban. Outside of the fact this would probably not go over well in California at this time (blue leaning not withstanding) she has to know that if the Dems loose the House bringing an assault weapon ban to the floor of the Senate would be suicidal to those Democrats still in the Senate.
The gun control movement is bleeding money, and members, and yet their biggest friends are calling for an Assault Weapon ban at a time when most of the party leadership wants the issue kept under raps. I wonder if they think they could put something out in the lame duck session after November? something they could then fillibuster to keep enforced?
Posted by: James N. Gibson at October 9, 2010 11:34 PM
What's the purpose of guarantying the people's right to be members of the state militia if the militia members just have to do what the tyrants tell them to do? Of course people don't have the right to insurrection against a fairly elected president who is giving reasonably legal orders.
Even when the people don't have the right to insurrection, they do have the right, according to the Second Amendment, to be equipped for insurrection. However, the Heller majority's rejection of the M-16 shows that they are not willing to uphold the Second Amendment.
Posted by: Critic at October 9, 2010 11:55 PM
The Heller dissent is SOOOO full of crap. In every single case addressing the issue, the Supreme Court has held that the State Militias are under the ultimate control of the Federal Government. The States have lost every one those cases and there is a law journal article out there somewhere that talks about that exact fact.
Posted by: Letalis Maximus, Esq. at October 10, 2010 12:52 PM
Letalis - I understand that the Organized State Militias, i.e. the National Guard, are ultimately under Federal control, but what about the unorganized militia? Do the cases you refer to mention them specifically?
Posted by: Tom at October 11, 2010 04:11 PM
I honestly don't recall. Like I say, there is a law review article out there, and I believe it is fairly recent (within last 10-12 years or so).
Posted by: Letalis Maximus, Esq. at October 11, 2010 04:53 PM
FWIW, Perpich v. DOD, fn25 says this:
It is true that the state defense forces "may not be called, ordered, or drafted into the armed forces." 32 U.S.C. 109(c). It is nonetheless possible that they are subject to call under 10 U.S.C. 331-333, which distinguish the "militia" from the "armed forces," and which appear to subject all portions of the "militia" - organized or not - to call if needed for the purposes specified in the Militia Clauses. See n. 21, supra.
Posted by: CDR D at October 11, 2010 05:40 PM
According to Article I, Section 8.16, the Federal Gov't only has governing authority over such part of the militia that they may employ. The 2nd Aricle of the Bill of Rights is a grammatically constructed sentence with the subordinate clause at the beginning which is explanatory and then the independent or main clause, "the right of the people to keep and bear arms shall not be infirnged" which is specifically addressed to the Fedreal Gov't. The Preamble to the Bill of Rights makes it clear that they are restrictive of the Federal Gov't and declarative of the rights of the people.
Posted by: Ron W at October 11, 2010 06:45 PM
Letalis, are you referring to GH Reynolds and D Kates, "The Second Amendment and States' Rights: A Thought Experiment"? http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960810
Posted by: jdberger at October 12, 2010 01:55 PM
ermmmm ... wasn't this States' rights to resist the federal gov. thing settle by A. Lincoln and company?
Not endorsing his actions, but just sayin' ...
Posted by: Kristopher at October 12, 2010 03:09 PM
The NY National Guard in under the ultimate control of the Federal Government. The NY Guard and NY Naval Militia specifically cannot be federalized. Info from the DMNA website. http://dmna.state.ny.us/nyg/nyg.php
Posted by: Harold at October 12, 2010 04:47 PM
Kristopher: only if you take a purely "might makes right" view of constitutional jurisprudence.
The South's victory in the Civil War would not have been a good thing (in my opinion), but the raw fact that they lost doesn't really say anything about whether armed insurrection is a right - just that it failed to achieve its aim in that case.
Posted by: Matt at October 12, 2010 07:21 PM
Matt: I don't see the courts being ready to reverse the American Civil War on 10th amendment grounds.
My point was that either the 2nd protects citizen's rights to self defense, either against thugs, or government gone bad, or it is a states' right.
The states' right thing was killed by Mr. Lincoln.
There wasn't much else the SCOTUS could do, logically ( this being one instance when logic and law actually coincided ).
Posted by: Kristopher at October 14, 2010 03:17 PM