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Transcript of online chat yesterday
It's online here. Thanks to those who wandered in!
[UPDATE: the key is that the dissenters claim you only have a right to arms if you are in a WELL-REGULATED, with inference by the goverment, militia, which (they don't add) (a) conveniently doesn't exist and (b) certainly wouldn't be created by any jurisdiction that wanted to enact arms restrictions. They don't deal with the question of how much "regulation," recognizing the special meaning of that term, makes a force well-regulated, or whether a court is suited to make that judgment.]
UPDATE: David E. Young posts a comment suggesting reading his books on the 2A. He modestly does not point out that the Court did just that. Scalia cites secondary sources very sparingly, but cites David's book five times, by my casual count. The only other such source that gets in that range is Helen Veit. And Scalia also cites several references to framing period statements that are, to be best of my knowledge, only to be found in David's books. Given the citations in Emerson to his works (what was it, a hundred or so?) David gets the bull's ears and tails in the Second Amendment endgame.
19 Comments | Leave a comment
what you're missing is an immoral agenda! be glad.
Steven's dissent effectively runs similar to the collective rights argument, with a fig leaf on the front to try and confuse people. He finds a right to keep and bear arms as associated with a well-regulated militia. If the state government sent the militia off to fight Indians, it'd prevent the Federal government from making the militia fight them with rusty spoons, but in general it makes the right entirely moot in modern civilization. Stevens specifically notes that, between pages six and seven of the dissent, where he states that "the need for state militias has not been a matter of significant public interest for almost two centuries".
Breyer's dissent bounces back and forth as to whether the Second Amendment is relevant on matters of self-defense, states that it isn't, and then tries to provide further arguments against the right to keep and bear arms just in case it is. His sole argument for the latter is that the ban on handguns was reasonable, by aspect of being "local in scope", "affecting only handguns", and "a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment". If you've laughed at any of the above assessments, you realize exactly how weak Breyer's argument is.
Breyer's dissent is just embarrassing. Your average 2L from even a lower third law school like I attended could have done just about as well.
Great transcript, thanks!
Would you consider another question? I am wondering if Scalia affirmed or created an "unusual and dangerous" standard or test, meaning that for a ban on a weapon or a class of weapons to be constitutional, the weapon must be "unusual and dangerous."
Question? When the framers worded the 2A didn't the word regulated refer to trained? Heard that and wondered.
Thanks for keeping me up to date
Yep. "Regulated" in the meaning of the period meant "trained."
So ..... let's push for "training" (firearms safety, use and legal aspects thereof) in every High School in the country. That would satisfy the "well-regulated" portion, wouldn't it?
(innocent smile)
Now back from a working vacation, I've had chance to read both dissents. As Hardy said in reference to one of them ... "Egads."
I predict they will live on, in infamy.
Requires registration to view. Fuck that.
Try this one it should work for a while.
[email protected] pass kissmine
bug me not is your friend.
bugmenot.com
THE TRANSCRIPT DOES NOT DISPLAY ON MY HP IPAQ HANDHELD COMPUTER (FRAMED PAGE?). (LAPTOP GOT STOLEN). CAN YOU POST IT AS STANDARD HTML PAGE?
We should pursue defining the limits with haste and caution. I wonder if it's going to be possible to restrain those who want to make names for themselves from barging ahead with all sorts of nonsense suits.
Here's the link to the chat only.
They may not like me easing this out of the ads revenue.
http://chat.azstarnet.com/transcript/show/65
This is called a "kozinski".
Dave I won't be offended if you decide to take this link down. This link is an open back door to azstarnet.
Thanks to anonymous on the link.
Oops! I spoke too soon. That link takes me to their "sign up notice" (registration notice) which is a dead link on my handheld computer.
Can some copy the text into an email to me?
>>>Question? When the framers worded the 2A didn't the word regulated refer to trained?
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Well, yes it did. But better might be "functioning in an efficient manner" (which training would certainly facilitate). If the citizen cannot have arms, the citizen cannot be familiar with, or efficient in their operation.
I have a wall clock which has the word "regulated" on it.
Never once has some government agent come in to inspect or adjust it.
What does "well regulated militia" in the Second Amendment mean?
First, "militia" is a general reference to the natural defense of the country, the able-bodied men. It is not a reference to a select militia picked by the government because the term "select" would have to be added to militia to mean that.
Second, "well regulated" did NOT mean regulated by the government. It meant effective, efficient, or proficient, and it indicated an inherent characteristic of the militia, not something they were endowed with by legislation or regulation. This should be self-evident because the Second Amendment's language and all of its predecessors are government limiting Bill of Rights provisions.
The direct predecessor of the Second Amendment - Mason's proposed Bill of Rights that Madison promised to support, was used as the basis for three ratifying convention proposed Bills of Rights. It was largely these specific demands from the ratifying conventions that Congress indicated it was satisfying by its proposed Bill of Rights amendments. Mason and the ratifying conventions' Bills of Rights all clearly indicated that a well regulated militia "included" or was "composed of" the body of the people.
This is where the common understanding of the militia concept is completely lost in modern times. The militia, the able-bodied men, are not soldiers. They would only be soldiers if actually called out into service during an emergency. At all other times the able-bodied men are civilians. The Second Amendment does not protect the military, it protects civilians who are guarenteed possession and use of arms.
The Second Amendment has nothing to do with the militia powers in Article I, Section 8. I have definitively traced down the actual development of this language and those who were responsible. This information does not appear in the Heller decision other than the state well regulated militia references being entirely misinterpreted in the dissent.
For much more detailed information on the actual and largely unknown historical development of the Second Amendment predecessors, I urge interested parties to read The Founders' View of the Right to Bear Arms: A Definitive History of the Second Amendment.
I just saw a quote that I think gives us a very good clue what well regulated means.
"To preserve liberty it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them..."
-Richard Henry Lee writing in Letters from the Federal Farmer to the Republic (1787-1788).
“and be taught alike”/ "well regulated militia." Remember military doctrine at the time revolved around firing massed volleys.
It can always be argued whether the Federal Farmer was referring to organized military training in the use of arms in the above quote, or referring to very young men normally being taught how to use arms by their fathers. Considering the fact that there were a number of references to how much superior Americans were in firearms handling and accuracy to the average British soldier, I am of the opinion the reference is to being taugh when young how to use arms, not to being required to perform military discipline as militia from the age 18 to 45 or so.
The average British soldier had exactly what opportunities to extensively use arms when he was young? Think about it. The British had a select militia with property qualifications for membership that were higher than for members of Parliament. Practiacally no one was allowed to own a gun, relatively, and killing game by large numbers of young men, unless they were fairly well to do and at least owned a farm, was unthinkable and a crime. Most people in Britain in the late Colonial Period did not own a farm or a gun unlike in America. Besides, the British Army was not composed of the wealthy select militia members, but generally those quite poor. Anybody who wanted to could hunt in America, very few were legally allowed to in Britain.
Most males were very familiar with arms long before they reached official military training age in early America. The example I gave from the late Colonial Period in The Founders View of the Right to Bear Arms was of a well grown boy of 12 years old on the Pennsylvania/Virginia frontier being given a small rifle to fit his size and being assigned a porthole in the local defensive fort. He learned to use his rifle, but not by being trained in military matters such as firing in mass volleys as suggested above. Rather, it was the everyday hunting of squirrels, turkeys, and raccoons that made him an EXPERT in the use of his gun, which he would have received along with basic instruction in use from his father.
I couldn’t participate due to that work thing, but this was what I wanted to ask.
Help me understand this. The dissenters insist that it’s a collective right, or a right for members of the militia. But if we’re ALL part of the militia, doesn’t that mean it’s a collective right for everyone? Doesn’t the fact that we’re all members of the unorganized militia mean the 2nd Amendment applies to all of us, and their entire argument is moot?
What am I missing here?