Federal laws violating the Second Amendment in court

[fastpat]

The Second Amendment Foundation is taking the "Sporting Purpose" portion of federal firearms law to court. I say it's about time to get this 39 year old travesty off the books for good.

http://releases. usnewswire. com/GetRelease. asp?id=76853

SAF Lawsuit Defends Rights of Citizens Living Abroad, Challenges
'Sporting Purpose' Restriction

11/29/2006 12:39:00 PM

To: National Desk

Contact: Alan Gottlieb of the Second Amendment Foundation, 425-454-7012

BELLEVUE, Wash., Nov. 29 /U.S. Newswire/ -- The Second Amendment
Foundation today filed a lawsuit in federal court in Ohio,
challenging the "sporting purpose" limitation for firearms sales in
this country, and supporting the constitutional right of American
citizens living abroad to legally purchase firearms while in this country.

SAF and co-plaintiff Stephen Dearth of Winnipeg, Manitoba, Canada, a
native citizen of the United States, are represented by the law firms
of Gura & Possessky (Virginia) and Squire, Sanders & Dempsey (Ohio).

SAF founder Alan M. Gottlieb said "there is no 'sporting purpose'
limitation on the right to keep and bear arms in the language of the
Second Amendment."

"American citizens should not be penalized for living outside the
United States, but under current statute, they are," Gottlieb
explained. "There is no public safety rationale for laws or
regulations that prohibit a law-abiding citizen from exercising their
rights on American soil. We cannot allow a legal environment to exist
where the exercise of a civil right here at home is conditional to
one's country of residence.

"If Americans can have firearms for hunting, they can also have a gun
for self-defense, for pest control, for training purposes, for any
number of reasons, or for no reason at all, because the Second
Amendment is not about duck hunting or target shooting, and never has
been," he continued. "It's not a 'Bill of Needs' we're talking about,
it's a Bill of Rights.

"And those constitutional rights, guaranteed by birth right to every
American citizen, do not become null and void simply because an
individual lives in another country," Gottlieb said. "When a
law-abiding American citizen comes home for a visit, he or she should
be able to exercise their rights, including the Second Amendment
right to keep and bear arms, anywhere in the United States no matter
where they happen to live.

"We're bringing this case to the courts," Gottlieb concluded,
"because we believe the rights of American citizens, no matter where
they reside, are worth defending."

"We will continue to defend the rights of Americans against pointless
governmental interference. These laws serve no useful purpose. Dearth
cannot be denied his constitutional rights while inside the United States, merely because his home happens to be across the border,"
added Alan Gura, the lead attorney representing the plaintiffs.

[Grady Clay]

Amendment II
“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.”

An interesting part of this is that the Supreme Court has never ruled on the meaning of “militia” as far as I can tell. Does it mean the "people" in the National Guard defending the “State”? Does it mean you and your neighbor for any (legal?) purpose?

I suspect both sides of the issue don’t want this determined for fear it might not go their way.

Best,
Grady

[on2wheels52]

FFL holder since '85, I'm a bit confused what this is about.
Is this the situation: John Doe from Kansas moves to Terra del Fuego. Gets Fuegan ID. Comes to Arkansas to visit. Decides to purchase a firearm. Comes to my shop expecting me to sell him one?

An even deeper question, would I have to accept Fuegan money?
Jim

[m21sniper]

Originally posted by Grady Clay
Amendment II
“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.”

An interesting part of this is that the Supreme Court has never ruled on the meaning of “militia” as far as I can tell. Does it mean the "people" in the National Guard defending the “State”? Does it mean you and your neighbor for any (legal?) purpose?

I suspect both sides of the issue don’t want this determined for fear it might not go their way.

Best,
Grady

The Militia is CLEARLY defined in the US Constitution.

There is absolutely zero ambiguity who the militia is.

We are.

From Wiki:

"According to Title 10, USC, Section 311, all able bodied males between the ages of 17 and 45 not serving in the armed forces or state national guard units are considered the unorganized militia, as well as all commissioned female officers of state national guard units.

"That the People have a right to keep and bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defence of a free state..." --George Mason, declaration of "the essential and unalienable Rights of the People," later adopted by the Virginia ratification convention, 1788"

[MRM]

The reason the body of law surounding the second amendment is a mess is because even the founding fathers weren't sure what it meant. They wrote it, and a fair amount of the rest of the bill of rights, to be deliberately ambiguous. Partly to get it passed, partly so that later generations could decide what it meant.

The second amendement is unique to the bill of rights. Diagram the sentence. Tell me what the subject, etc., are suposed to be. See what I mean? The rest of the bill of rights is gramatically correct and pretty easy to follow.

"A well regulated militia . . ." What do they mean? Are they requiring a well regulated militia or are they just refering to one? Or do they mean that the right to keep and bear arms shall not be restricted if the restriction gets in the way of having a well regulated militia? If so, are other restrictions ok as long as the militia continues unabated?

I grew up around guns. It is fair to say that I love guns. Mmmmm ...... guns. Long guns, short guns, automatics, revolvers, bolt action, lever action, pump, it's all good. But I also recall that something called Shay's Rebellion was put down with great force by the very people who wrote the second amendment within a very few short years of the Revolutionary War.

This suggests to me that the founding fathers did contemplate some reasonable restrictions on firearms. I think they intended to create a tension between the gun toting, freedom loving masses who will keep the country free and the elites who want a well behaved country and keep the country well organized. We need both kinds to keep the country great.

The tension between the two sides of the debate and the ongoing debate itself is what makes this country so great. If one side grows too powerful and overwhelms the other, we lose the debate and our country will go out of ballance and lose much of its strength.

[m21sniper]

There is no ambiguity.

The unorganized militia as clearly codified by US law is the "well regulated militia"(doubly so because the National guard did not even exist until 1903), it is composed of: "all able bodied males between the ages of 17 and 45 not serving in the armed forces or state national guard units are considered the unorganized militia, as well as all commissioned female officers of state national guard units."

And furthermore the amendment states that the right of said well regulated militia to be armed shall not be infringed.

Finally, it states unequivocably, "the right of the people to keep and bear arms shall not be infringed".

The people are universally defined as just that, the "whole body of the people of the united states".

There are no shades of grey here that i can see at all.

Just a very clear cut instruction to the generations to follow:
Maintain a well regulated militia(defined by US law as the unregulated militia), as it is neccesary to the security of a free state. Further, the people's right to keep and bear arms shall not be infringed.

Simple.

The fed govt has responded to this by using the 10th amendment(interstate commerce) to do an end run around the very clear meaning of the 2nd amendment.

[fastpat]

Originally posted by Grady Clay
Amendment II
“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.”

An interesting part of this is that the Supreme Court has never ruled on the meaning of “militia” as far as I can tell. Does it mean the "people" in the National Guard defending the “State”? Does it mean you and your neighbor for any (legal?) purpose?

I suspect both sides of the issue don’t want this determined for fear it might not go their way.

Best,
Grady

We actually do know what militia means, it's been defined in law for over 200 years. It's the whole body of the people capable of acting in defense of self, family, neighbors, and nation. The common law definition has been around even longer. It is not an aggregate of the people, and the National Guard, being a reserve of the Active Army, isn't in the militia at all.

"A well read electorate, being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed."

[Jeff Higgins]

There is absolutely NO ambiguity on who "the people" are with regards to the Bill of Rights. All ten reaffirm rights held by citizens; they do not reafirm or grant rights to the State.

The difference between the concept of "reaffirmation" and "grant" is very important. The Bill of Rights does not "grant" anything. It reaffirms rights inherent in all men. "Birthrights", so to speak (I hesitate to say "God given rights" because I know how many of you feel about that one, but call these rights what you may); rights the State cannot take away. It bars the State from relinquishing rights it does not have the power to grant in the first place. That is what makes it such a unique document; it places restrictions on the State, not the people.

In that light, and looking at the entire context in which the Bill of Rights was written, it is ludicrous to suggest that nine ammendments preserve the rights of the people, while one preserves a right of the State. It is almost unfathomable that this is even still a question. That the Supreme Court continues to avoid any kind of ruling on this.

[red-beard]

“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.”

WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT

The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.

August 24, 2004

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

http://www.usdoj.gov/olc/secondamendment2.htm

Excerpt:

The proposed Constitution that emerged from the Constitutional Convention in 1787 did not have a bill of rights, notwithstanding a late effort by Mason, joined by Elbridge Gerry, to have one drawn up "with the aid of the State declarations." (249) It did contain a careful compromise regarding the militia. The federal Government received, in Article I, Section 8, the powers to call out the militia "to execute the Laws of the Union, suppress Insurrections, and repel Invasions," to provide for "organizing, arming, and disciplining" it, and to govern any part of it in the service of the federal Government (during which the President would be its commander-in-chief); States expressly retained the authority to appoint officers and to train the militia. (250)

Proposed bills of rights emerged from the ratifying conventions of several of the States. Many of these included protection for the right to arms - usually in language borrowed or adapted from the individual right to arms in the States' declarations of rights, and in any event always in language indicating an individual right. In those proposals, several States for the first time in a single constitutional provision both set out an individual right to arms and praised the citizen militia, uniting language from the different state declarations discussed above. In addition, some Anti-Federalists, concerned about the Constitution's allocation of powers over the militia, sought to protect the ability of the States to maintain effective militias. They proposed to do so expressly, in amendments using language similar to that of Article I, Section 8, and to be placed in the body of the Constitution, not in a bill of rights. (251)

Yet it was the former proposals that laid the foundation for the Second Amendment. And the latter proposals failed in the Federalist-controlled First Congress, which was, as many recognized at the time, willing to protect individual rights but not to alter the balance of power struck by the new Constitution between the States and the nascent federal Government. Thus, the evidence points to an understanding of the Amendment as securing the individual right to arms already well established in America, rather than safeguarding the ability of States to establish well-regulated militias, whether through a "collective right" of States or a quasi-collective right of militiamen. Rather than "lay down any novel principles of government," the Second Amendment embodied the individual "guarant[ee] and immunit[y]" to which Americans were accustomed. (252)

Excerpt to the conclusion

The text of the Amendment's operative clause, setting out a "right of the people to keep and bear Arms," is clear and is reinforced by the Constitution's structure. The Amendment's prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England's Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment's ratification, confirm what the text and history of the Second Amendment require.

Steven G. Bradbury
Principal Deputy Assistant Attorney General

Howard C. Nielson, Jr.
Deputy Assistant Attorney General

C. Kevin Marshall
Acting Deputy Assistant Attorney General

[MRM]

So how do you well regulate a milita without restricting its right to keep and bear arms?

The sentence is almost nonsensical when you break it down using rules of gramar. The basic comon law rule of statutory interpretation is that words are to be given their ordinary meaning and you use standard rules of gramar to devine the meaning of the statute. Or amendment to the constitution in this case.

What does a well regulated militia have to do with the right to bear arms? The 2nd amendment doesn't really say. Is it a split infinitive that is just sloppy drafting? Or is it a guide that we are to use in measuring whether the right to keep and bear arms is being restricted. Or....is the well regulated militia the thing that is being mandated, and the right to bear arms is just how the founding fathers thought you regulated the militia?

If we agree that the militia is the group of free men of a certain age who can be called upon to defend the country and their communities, then who regulates them? Is it permissible to regulate them by restricting the use of their arms?

A final rule of stautory interpretation is to read the statute (yes I know this is part of the constitution, the rules are the same) to avoid absurd results. Do you think the founding fathers really meant that there could be no restriction at all on the right to bear arms? Does that mean no restrictions on owning them or is it permissible to put reasonable time, place and manner restrictions on where you can carry them? Do you think the founding fathers meant "no restrictions" literally, in which case fully automatic 50 cals are as protected as a hunting rifle? That 12 year olds can carry Mac 10s? I mean outside the hood.

I think the founding fathers meant for us to debate these issues. I think they wanted push back from the masses, attempts at regulation from the elites, and a healthy debate in the process.

[fastpat]

Originally posted by MRM
So how do you well regulate a milita without restricting its right to keep and bear arms?

To regulate a militia is to standardize it, including insuring that it was itself armed. The meaning of regulate does not mean a restriction of any kind. Further the right to be protected is fully grounded in the independent clause of the Amendment. But for a fully parsed Second Amendment, I'd recommend The Unabridged Second Amendment by L. Neil Schulman.

The sentence is almost nonsensical when you break it down using rules of gramar. The basic comon law rule of statutory interpretation is that words are to be given their ordinary meaning and you use standard rules of gramar to devine the meaning of the statute. Or amendment to the constitution in this case.

No, it's actually easily understood by almost anyone. "The right of the people to keep and bear arms shall not be infringed". "A well read electorate, being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed" in no way limits books to the electorate.

What does a well regulated militia have to do with the right to bear arms? The 2nd amendment doesn't really say. Is it a split infinitive that is just sloppy drafting? Or is it a guide that we are to use in measuring whether the right to keep and bear arms is being restricted. Or....is the well regulated militia the thing that is being mandated, and the right to bear arms is just how the founding fathers thought you regulated the militia?

None of those things.

If we agree that the militia is the group of free men of a certain age who can be called upon to defend the country and their communities, then who regulates them? Is it permissible to regulate them by restricting the use of their arms?

No, it is not.

A final rule of stautory interpretation is to read the statute (yes I know this is part of the constitution, the rules are the same) to avoid absurd results. Do you think the founding fathers really meant that there could be no restriction at all on the right to bear arms?

Yes, absolutely, and in fact there were no restrictions on what arms could be born in America for all of the 18th and 19th centuries. The notion that certain arms could be made unavailable to anyone would have been considered absurd. Many private shipping concerns had the latest cannon on board their vessels.

Does that mean no restrictions on owning them or is it permissible to put reasonable time, place and manner restrictions on where you can carry them? Do you think the founding fathers meant "no restrictions" literally, in which case fully automatic 50 cals are as protected as a hunting rifle? That 12 year olds can carry Mac 10s? I mean outside the hood.

Ignoring your use of the specious arguments about children, the answer is yes, any weapon should be available to anyone. It is a right, not a privilege.

I think the founding fathers meant for us to debate these issues. I think they wanted push back from the masses, attempts at regulation from the elites, and a healthy debate in the process.

No, they did not. Rights are intrinsic to the human existence, they do not depend on arguments of utility, nor the democratic process. There are no debates to be held on these rights. Only the speed with which we can remove restrictions imposed by the enemies of freedom and liberty, that's the debate.

[m21sniper]

Originally posted by MRM
[B]So how do you well regulate a milita without restricting its right to keep and bear arms?

You control WHO is in the militia, as is done by LONG standing US law.

The militia is defined as all able bodied males 17-45 blah, blah, blah as quoted above.

THEN you regulate who it answers to, and when it is subject to calling.

That is the "regulation."

And it is ALL codified in US law.

[fastpat]

For those that need intellectual resources on this subject, I list the following.

Firearms and Liberty

The Second Amendment Law Library

Sources on the Second Amendment and Rights to Keep and Bear Arms in State Constitutions by Prof. Eugene Volokh, UCLA Law School .

The Journalist's Guide to Gun Policy Scholars and Second Amendment Scholars

Research into the Miller Decision, the only time the Second Amendment was considered by the US Supreme Court in the 20th Century.

[fastpat]

Originally posted by m21sniper
You control WHO is in the militia, as is done by LONG standing US law.

The militia is defined as all able bodied males 17-45 blah, blah, blah as quoted above.

THEN you regulate who it answers to, and when it is subject to calling.

That is the "regulation."

And it is ALL codified in US law.

You left out one of the types of militia's in the US code. Above, you're speaking of the select militia; i.e. those called to duty. That leaves all the rest of the militia, those not called to duty.
TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

[m21sniper]

If we agree that the militia is the group of free men of a certain age who can be called upon to defend the country and their communities, then who regulates them?

The president, the governer, and in some cases the county sheriff.

Is it permissible to regulate them by restricting the use of their arms?

Obviously, NO.

Further, US law clearly states that those reporting for duty when called for service in the ungregulated militia appear for service with arms and ammunition "of common military type", provided by themselves. In fact, the exact "to bring list" is codified in US law. Do a search on a legal site.

A final rule of stautory interpretation is to read the statute (yes I know this is part of the constitution, the rules are the same) to avoid absurd results. Do you think the founding fathers really meant that there could be no restriction at all on the right to bear arms?

Many of them stated flatly that no restrictions shoudl exist in their writings, and virtually all of them were decidedly pro-gun individuals.

Does that mean no restrictions on owning them or is it permissible to put reasonable time, place and manner restrictions on where you can carry them?

That clearly contradicts the 'right to keep and BEAR arms" part of the amendment. Of course they've regulated that and we haven't revolted, so obviously, yes, they can regulate such things.

Do you think the founding fathers meant "no restrictions" literally, in which case fully automatic 50 cals are as protected as a hunting rifle?

A .50 cal is perfectly legal to own, and the purpose of the 2nd amendment is totally unrelated to the issue of hunting. It is CLEARLY an issue of defense, both individual and collective. It's not about shooting bambi.

That 12 year olds can carry Mac 10s? I mean outside the hood.

You go into some of the rural states and 12 year olds prowl the woods hunting with MUCH more dangerous weapons- major caliber bolt action hunting rifles and shotguns.

It's the kids in the hood that are the problem, not their age or the ordnance.

I think the founding fathers meant for us to debate these issues. I think they wanted push back from the masses, attempts at regulation from the elites, and a healthy debate in the process. [/B]

The term "the people" is universally applied and accepted to legally mean "the whole body of the people of the United States."

ΜΟΛΩΝ ΛΑΒΕ

[m21sniper]

Originally posted by fastpat
[B]You left out one of the types of militia's in the US code.

I have been specifically referring to the unregulated militia in every post in this thread.

Sorry for any ambiguity on the matter.

[jluetjen]

At at the end of the day, the constitution has been amended, and in the future it (including this amendment) may be amended. Personally, of the rights and responsibilities described in the constitution, In my personal opinion the right of private civilians to bear arms is most likely the least worthy of continued support. There are numerous examples throughout the world of countries where the civilian population is armed to the teeth, and it has not prevented the assendency of corrupt, despotic leaders, invasion by foreign elements or the preservation of anyone's rights.

That being said, I certainly see the value of a well controlled "militia" as defined as a "part-time" army such as the National Guard, which is at least dotted-lined to the regular armed services. BTW, while the "National Guard" did not exist prior to 1903, there were numerous state raised militia units -- Teddy Roosevelt's "Rough Riders for instance, prior to that time. I also don't have a problem with gun ownership being a privalege of those citizens who have a record of acting responsibly, demonstrate adequate knowledge and judgment, and comply with the appropriate laws regarding use and storage of their guns.

Just my $0.02.

[fastpat]

Originally posted by jluetjen
At at the end of the day, the constitution has been amended, and in the future it (including this amendment) may be amended. Personally, of the rights and responsibilities described in the constitution, In my personal opinion the right of private civilians to bear arms is most likely the least worthy of continued support. There are numerous examples throughout the world of countries where the civilian population is armed to the teeth, and it has not prevented the assendency of corrupt, despotic leaders, invasion by foreign elements or the preservation of anyone's rights.

The Bill of Rights cannot be amended, the Constitutional ratification depended on the Bill of Rights being presented to the states. I'd suggest a read of the Preamble of the Bill of Rights, it makes that quite clear.

Again, the right to bear arms, and that's any arm, is intrinsic to human existence, and not subject to ANY argument of utility.

That being said, I certainly see the value of a well controlled "militia" as defined as a "part-time" army such as the National Guard, which is at least dotted-lined to the regular armed services. BTW, while the "National Guard" did not exist prior to 1903, there were numerous state raised militia units -- Teddy Roosevelt's "Rough Riders for instance, prior to that time. I also don't have a problem with gun ownership being a privalege of those citizens who have a record of acting responsibly, demonstrate adequate knowledge and judgment, and comply with the appropriate laws regarding use and storage of their guns.

Just my $0.02.

The National Guard isn't a militia, therefore isn't related in any way to the Second Amendment.

[fastpat]

For those of you making overtures of gun confiscation, you might want to think through that notion in more depth.

Here's what you're facing. There are about 100 million gun owners in America today, they own, conservatively, over 600 million guns. Further, many of those guns aren't "known" by the US government or any other government. For example, the BATFAE maintains that there are 260 million firearms in America, a figure that they've not changed appreciably in at least 3 decades despite the fact that 5 to 8 million new or newly introduced firearms have been sold every year of that time period. Guns have what is considered a permanency far beyond most tools, many operate as intended and are well over 100 years old.

If gun production were outlawed, there would be thousands of "instant" gunsmiths turning out firearms made from car parts removed from any wrecking yard in America. These would be at least as effective, and likely more effective, than those being sold today. Submachine guns are easier to make than expensive semi-automatic pistol are. Anyone with a drill press, and a few other hand tools can make 20 to 30 of them in a week. Essentially, how to make a gun is a well known process, and cannot be eliminated no matter what the law or Bill of Rights says.

Further, since, unlike almost any other group, gun owners are armed; do you really think it's a good idea to even talk about confiscation of guns, which registration actually is?

No, I'd say not.

[m21sniper]

Originally posted by jluetjen
At at the end of the day, the constitution has been amended, and in the future it (including this amendment) may be amended. Personally, of the rights and responsibilities described in the constitution, In my personal opinion the right of private civilians to bear arms is most likely the least worthy of continued support. There are numerous examples throughout the world of countries where the civilian population is armed to the teeth, and it has not prevented the assendency of corrupt, despotic leaders, invasion by foreign elements or the preservation of anyone's rights.

That being said, I certainly see the value of a well controlled "militia" as defined as a "part-time" army such as the National Guard, which is at least dotted-lined to the regular armed services. BTW, while the "National Guard" did not exist prior to 1903, there were numerous state raised militia units -- Teddy Roosevelt's "Rough Riders for instance, prior to that time. I also don't have a problem with gun ownership being a privalege of those citizens who have a record of acting responsibly, demonstrate adequate knowledge and judgment, and comply with the appropriate laws regarding use and storage of their guns.

Just my $0.02.

I hold the exact opposite view. The 2nd is the most important, and is actually the guarantor of all your rights.

"Were it not for the right to arms the Bill of Rights would be but a Bill of Priveliges."
~T.Jefferson

That about sums it up.

PS: Roosevelt's Roughriders were mercenaries.