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- Path: sparky!uunet!gumby!wupost!darwin.sura.net!seismo!tcarter
- From: tcarter@seismo.CSS.GOV (Thomas Carter)
- Newsgroups: sci.skeptic
- Subject: RE: 2nd Ammendment
- Keywords: None
- Message-ID: <51483@seismo.CSS.GOV>
- Date: 16 Nov 92 21:03:28 GMT
- Sender: usenet@seismo.CSS.GOV
- Organization: Center for Seismic Studies, Arlington, VA
- Lines: 135
- Nntp-Posting-Host: beno.css.gov
- Originator: tcarter@beno.CSS.GOV
-
-
-
- In several articles, Terry Preston replys to a post I made
- concerning the 2nd Ammendment. I will not repost them in their
- entirety for bandwidth's sake, but will address the points
- he raised. Let me first apologize for several typos that
- occurred in the original post concerning dates. As per
- Terry Preston's request, I will provide the entire cites.
-
- TS> The issue in 'Dred Scott' was whether or not state law could
- TS> free as slave simply by virtue of the slave entering the state.
-
-
- Scott v. Sanford indeed was not considering the 2nd Ammend.
- directly. As I have said, There are precious few S.C. cases
- that have. The reasoning behind the decision, however is
- important. In that case, the Chief Justice writes that
- certain fundamental, individual rights were inseparable
- from citizenship.
-
- "It [granting citizenship to freed slaves] would give to persons of
- the negro race, who are recognized as citizens in one state of the
- Union, the right to enter every other State whenever they pleased,
- singly or in companies...; and it would give them the full liberty of
- speech...; and to keep and bear arms wherever they went."
-
- US v. Cruikshank 95 US 542
- Presser v. Illinois 116 US 252
- Miller v. Texas 153 US 535
-
- These three cases, being pre-incorporation, are not terribly
- important but are nonetheless interesting. All three, in
- varying degrees, acknowledge that either the individual
- RKBA is protected or that the militia is composed of
- all able-bodied citizens. The Court argues however, that
- since the Bill of Rights applies only to the Federal
- Government, the States can infringe on any right that
- they wish to. As I'm sure you know, The Supreme court
- does not hold this opinion any longer.
-
- A typical quote from Presser v. Illinois:
-
- "It is undoubtedly true that all citizens capable of bearing arms
- constitute the reserved military force or reserve militia of the
- United States as well as of the states..."
-
-
- US v. Miller 307 US 174 (I inadvertently typed the year 1934
- instead of 1939 - again I apologize)
-
- This is the only modern ruling on a federal gun control law.
- Miller was charged with possession of a sawed off shotgun
- in violation of the National Firearms Act of 1934. Defense
- claims this is a violation of Miller's 2nd Ammend. rights.
- Miller lost. This case typifies the confusion over the
- 2nd Ammend. People who do not read the case assume that
- because Miller lost, The 2nd Ammend. does not protect the
- individual right to keep and bear arms. Nothing however
- could be further from the truth, as people would see if
- they would bother to read the case (and others) instead
- of relying on synopses.
-
- The Court said that the Second Amendment was intended to
- "assure the continuation and render possible the effectiveness
- of such a force [the militia]... It [the Second Amendment] must
- be interperted and applied with that end in view." The Court then
- says, in clarifying what it meant by "militia" in the previous
- sentence that membership in the militia included "all males physically
- capable of acting in concert for the common defense."
-
- The Court went on to say that although the Federal Gov. could not
- restrict ownership in general, they could restrict certain types
- of weapons that did not "have any reasonable relation to the
- preservation or efficiency of a well regulated militia".
- In essence, any weapon that is useful to the militia is protected.
- This is going to be a hard precedent to overcome when some of the
- newly enacted "assault weapon" bans hit the Supreme Court.
-
- Miller lost because there was no one present (neither he nor
- his attorney showed up) to argue that a sawed off shotgun was
- indeed standard army issue. Without evidence that it was,
- the Court ruled it wasn't, and therefore Miller was not protected
- in owning it.
-
- I included US v. Verdugo -Urquidez (1990) to shed some light on
- how the current Supreme Court may view the 2nd Ammend. and I stand
- by the cite. In trying to determine the meaning of "the people" as
- used in the Constitution, the Court says that "the people" had the
- same meaning in the First, Second, Fourth, Ninth and Tenth Amendments
- and that it means "all members of our national community."
- I cite this and the other cases because they mention the 2nd Ammend.
- As cited above, the only modern day 2nd Ammend. case states
- unequivocally that the 2nd Ammend. protects the right of the
- individual citizen to keep and bear arms. All of the other cites
- are just icing on the cake.
-
-
- TS> Terry states his opinion that Title X is just an excuse so
- TS> that Congress can can impress people into wartime service.
-
- What's your point? Congress already has this power granted to
- it in the Constitution. Specifically, "To provide for calling
- forth the militia..."
-
- Have I left anything out?
-
-
- Oh, and by the way, I am not now, nor have I ever been, a
- member of the NRA. Trying to discredit an argument by insinuation
- is not a terribly honest debate technique.
-
- My original post was a reply to Rick Moen who stated that
- every single Supreme Court case concerning the 2nd Ammend.
- found that the "individual" interpretation of the 2nd was
- an incorrect interpretation. Mr. Moen is wrong and I stated
- as much. The only modern day 2nd Ammend. case
- (US v. Miller 307 US 174) says that he is wrong.
- Every snippet that can be culled from any case that even
- mentions the 2nd Ammend. says he is wrong. Does this
- mean that the next 2nd Ammend. case that the Court
- hears will say this. I don't know. No one except the Court
- itself knows that for sure. If they follow the doctrine
- of stare decisis then you should put your money on the
- "individual" interpretation. I think Verdugo -Urquidez
- gives a clue as to how they feel.
-
-
-
-
-
- --
- ________________________________________________________________________________
- Thomas B. Carter | Center for Seismic Studies
- My wife calls this the Nut-Net... | tcarter@beno.css.gov
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