A ‘Well Regulated Militia’ the Basis of Private Gun Ownership

[RugersGR8]

http://www.breitbart.com/2nd-amendment/2018/02/01/a-well-regulated-militia-private-gun-ownership/
A ‘Well Regulated Militia’ the Basis of Private Gun Ownership
by AWR Hawkins 1 Feb 2018

 

[MacFromOK]

The Militia argument is mostly moot. The second amendment does NOT grant the right to keep and bear arms, it acknowledges that the right ALREADY exists, and specifically states that the right shall not be infringed.

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

 

[Dave70968]

The second amendment does NOT grant the right to keep and bear arms, it acknowledges that the right ALREADY exists, and specifically states that the right shall not be infringed.

This.

See also:

"Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.' As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , '[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .'"

District of Columbia v. Heller, 554 U.S. 570 (2008) at 592 [emphasis in original].

Anybody who wants to argue that the Court's interpretation is wrong is free to do so; everybody is entitled to his own opinion. Everybody is not, however, entitled to his own facts, and the fact is that this is binding SCOTUS precedent--citing to a previous precedent stating the same--and will continue to be such until overruled by a future SCOTUS ruling; that much is not open for debate.

 

[mightymouse]

Dave--or someone else--may correct me if my interpretation is wrong here, but it is my understanding that while the Second Amendment does indeed confirm a pre-existing right to bear arms, the Federal government retains the ability to regulate the trade in firearms, much as the FCC does in communications despite existence of the First Amendment. The basis of an individual right like the Second Amendment, and the manner in which the Federal government regulates the trade in firearms are two different arguments in my view.

 

[easy]

Dave--or someone else--may correct me if my interpretation is wrong here, but it is my understanding that while the Second Amendment does indeed confirm a pre-existing right to bear arms, the Federal government retains the ability to regulate the trade in firearms, much as the FCC does in communications despite existence of the First Amendment. The basis of an individual right like the Second Amendment, and the manner in which the Federal government regulates the trade in firearms are two different arguments in my view.

Please show me where something supports that idea IRT the 2A.

 

[mightymouse]

Please show me where something supports that idea IRT the 2A.

I don't know what "IRT" stands for, but if you don't think the BATFE is tasked by the government with the job of regulating the trade in alcohol, tobacco, firearms, and explosives, you could start by having a talk with your local FFL. The domestic trade in firearms is heavily regulated. It may not please the strict constitutionalists, but it is the everyday reality of my world.

 

[MCVetSteve]

They are tasked with regulating the trade because of interstate commerce. If the guns were manufactured in state and never left state lines, the argument is strong the ATF has no say. But manufacturers don't produce and sell in state exclusively. At least that's the way I understand it.

This is the basis for state laws like the “Montana Firearms Freedom Act” of 2014 if I recall correctly which states that congress has no right to regulate the production, distribution, or sale of firearms so long as all three of those things happen within the state of Montana. There was a copy of that law floating around the legislature here for a while, but because lower federal courts have struck it down and it has yet to make it to the SCOTUS, nothing ever materialized.

 

[Dave70968]

(IRT: In Regard To; I usually see it as WRT, With Regard To, but same-same.)

The "Interstate Commerce," "regulation of trade" thing is a very complicated issue. Originalists--people who think the words in the Constitution mean precisely what they meant at the time they were written--would give a definition of "regulate" somewhat different than we would today. Today, we use "regulate" to mean "make rules about;" two centuries, "regulate" meant "to make regular." Thus, an originalist view of "regulation" would be akin to a voltage regulator, or the regulator on a clock: to make it consistent. The "well-regulated" militia was one that was run in such a way as to produce consistent, effective results. From the Heller opinion:

Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).​

(Please forgive the lack of a specific page number; it's late, I'm tired, and I don't feel like hunting it down right now.)

More modern interpretations of the Commerce Clause, giving Congress the power "[t]o regulate Commerce ... among the several States..." has dramatically expanded the scope of fed.gov's "regulatory" authority. The seminal case is Wickard v. Filburn, 317 U.S. 111 (1942), holding that a farmer growing wheat on his own fields for his own use, never crossing property lines--much less state lines--could still be regulated as "interstate commerce" because his personal-use wheat reduced his demand for wheat on the general market, thus affecting interstate commerce (basic economics--reduced demand causes reduced prices). Students of history will not be surprised to learn that this came up as a result of FDR's price-fixing policies. Wickard has been cited in numerous cases since then, including Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), holding that fed.gov's outright prohibition of any market constituted regulation of interstate commerce, and was thus a proper application of the Commerce Clause. If Wickard opened the door to fed.gov meddling in every market, Raich tore the door clean off the hinges. @PBramble, this directly addresses your statement about firearms that "never left state lines;" the Supreme Court has held that it really doesn't matter.

There have been some (very) minor limitations imposed on Congress's power to regulate interstate commerce, including one specifically related to firearms, namely United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995). In Lopez, the Court held that the Gun-Free School Zones Act of 1990 was a bridge too far under the Commerce Clause, striking down that law on the grounds that it didn't have a substantial impact on interstate commerce. Congress responded by re-passing essentially the same law, this time forbidding any gun "that has moved in interstate commerce" from being brought into a school zone. Well, under the precedent of Wickard (and now the subsequent Raich), what hasn't moved in interstate commerce? Several Circuit (appellate) courts have upheld the new version of the law, and SCOTUS has not addressed the issue.

As to the Montana (and others) Firearms Freedom Act, the lower federal courts have found it lacking, and properly so. Our system relies heavily on precedent, and the precedent is quite clear that pretty much everything falls under the category of interstate commerce, even when it is neither interstate nor commerce. I don't happen to hold to that view (in fact, I think it's dead wrong), but that is the precedent, and it is binding upon lower courts (which, relative to SCOTUS, is all of them). Moreover, the Supremacy Clause subordinates the states to fed.gov, so when the two are in direct conflict, the outcome is predetermined. Again, I think that fed.gov is operating well outside its intended scope and authorized grant of authority, but so long as the superior courts take the line they've been taking (and extending) for better than three-quarters of a century, I can't say that the lower judges are doing anything wrong. Please don't mistake that statement as an endorsement of the outcome, just the process: I don't like it, I think that the theory of "garbage in, garbage out" explains perfectly what we're getting, but lower courts simply aren't free to ignore higher ones.

...and with that, I think it's bedtime, but I'll be happy to address any replies in the morning.

 

[ConstitutionCowboy]

...

Anybody who wants to argue that the Court's interpretation is wrong is free to do so; everybody is entitled to his own opinion. Everybody is not, however, entitled to his own facts, and the fact is that this is binding SCOTUS precedent--citing to a previous precedent stating the same--and will continue to be such until overruled by a future SCOTUS ruling; that much is not open for debate.

SCOTUS cannot alter the meaning of the Second Amendment. Precedent or not, the fact is that the Second Amendment so states that the Right to Keep and Bear Arms shall not be infringed. The Court read and obeyed the Second Amendment in Cruikshank and Heller properly.

As far as the Commerce Clause goes, government cannot touch the Right to Keep and Bear Arms with it. All the "gun" laws passed under the false guise that the government has power to do so under the Commerce Clause goes against the Second Amendment - which was ratified after the Commerce Clause was enacted with the original Constitution's acceptance. The Second Amendment removed any and all power the government had regarding commerce in arms or anything else regarding the Right of the People to Keep and Bear Arms. It is no different than the Federal Government passing a liquor prohibiting law under the guise it has power to do so under the Eighteenth Amendment. As we all know, the Eighteenth Amendment, though it is still in the U S Constitution, any power it gave to the Federal Government to prohibit the manufacture, sale, or transportation of intoxicating liquors was stripped away by the Twenty-first Amendment. So it is with the Second Amendment over the Commerce Clause.

Congress and the Court needs to take a refresher on the Second Amendment, read it, and obey it by taking the necessary steps to correct the errors in the law and adjudication. All in Congress and on the Court are just as culpable as those who passed the infringing law and support that law by not removing the bogus law and correcting the adjudication based upon the bogus law.

Woody

 

[Rod Snell]

Woody, I like your opinion, but unfortunately neither of us sit on the Supreme Court, and we are extremely lucky to get the last member added.
The reality is the constitution is interpreted as a majority of the court says it is, and a revisionist majority on the court sometime in the future could gut the Bill of Rights.
Appointing judges and justices is one of the most long-lasting influences of a President, IMHO.