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Supreme Court, The 2nd Amendment And The NRA

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Kolbe v. Hogan. Very good read.

 

https://newswithviews.com/supreme-court-the-2nd-amendment-and-the-nra/

 

 

Supreme Court, The 2nd Amendment And The NRA

As the readers of my columns on News With Views are aware, for more than the past decade I have attempted to awaken Americans who consider themselves “constitutionalists”, “patriots”, “friends of the Second Amendment”, and like-minded people to the importance of revitalizing “the Militia of the several States”. But my efforts have met with scant success. Whether the fault lies with the author of these missives or the audience to which they were directed may be debatable. The facts remain that, not only have vanishingly few Americans evinced any interest in this matter, but also all too many who have taken note of my work have reacted to it in a singularly negative, if not overtly hostile, fashion.

The latest manifestation of this dog-in-the-manger attitude is the refusal of the Petitioners in the pending case Kolbe v. Hogan, No. 17-127 (U.S. Supreme Court) to consent to my filing of a brief amici curiae on their behalf. The decision which is the subject of this petition—Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017)—is, in my estimation, the most egregious affront to the Second Amendment which has ever been handed down by any court in the United States. So my attempt to intervene in this case is not simply a quixotic, let alone an uninformed, effort on my part.

For those who are unfamiliar with procedure in the Supreme Court, a potential amicus curiae (“friend of the Court”) first seeks permission from the parties to file a brief, usually on behalf of one of the parties. If either party refuses consent, the amicus may file a motion for leave to file, requesting the Supreme Court to accept his brief notwithstanding that refusal.

Now, usually, parties who desire the Supreme Court to review their case through a petition for a writ or certiorari want to marshal as many amici briefs on their behalf as possible, in order to convince the Court that their petition not only has theoretical merit but also raises issues of general rather than merely passing concern. Indeed, in yesteryear, the all-too-close coördination of various amici with the parties they supported became something of an abusive “cottage industry”, which resulted in the Supreme Court’s issuance of its Rule 37.6, under which an amicus must certify that no counsel for any party has authored the amicus brief in whole or in part, and that no such counsel or any party has made a monetary contribution intended to fund the preparation or submission of such a brief. So, today, an amicus must be completely independent of the party whose position it supports, except to the extent under Rule 37.1 that the amicus brief brings to the Court’s attention matters which not only support that party but also apprise the Court of matters that the favored party will not emphasize in its petition but which nonetheless will be useful for the Court to consider.

In my brief amici curiae, as something of an expert on the Second Amendment I seek to inform the Court of critical matters related to the first thirteen words of the Amendment—to wit, “[a] well regulated Militia, being necessary to the security of a free State”—that (as my brief explained)

will “not * * * [be] brought to [the Court’s] attention by the parties”, but nevertheless “may be of considerable help to the Court.” Because these matters have  “not [been] specifically noticed in the objections taken in the records or briefs of counsel” for the parties in a satisfactory manner to date, and are unlikely to be raised hereafter, th[e Supreme] Court should take them under consideration by way of the Amici’s brief, “that the Constitution may not be violated from the carelessness or oversight of counsel in any particular.” See Pollockv. Farmer’s Loan & Trust Co., 157 U.S. 429, 604 (1895) (separate opinion of Field, J.).

Of course, one would expect that the Respondents (here, Hogan et alia) would balk at having such information brought to the Court’s attention—but that, on the other hand, the Petitioners (here, Kolbe et alia) would be grateful for whatever assistance they could obtain from an amici brief prepared by someone who knows his business. After all, at the petition stage, the strategy must be for the Petitioners to amass whatever support is available that could convince the Court to hear the case on the merits.

If the reader goes to the SCOTUSBLOG on the Internet, and searches for Kolbe v. Hogan in the compilation under “Petitions”, he will find, not only Kolbe’s Petition for a Writ of Certiorari, but also the amici briefs filed on the Petitioners’ behalf. These include briefs from such amici as the NRA and the Cato Institute. Of these briefs, mine is the only one as to which the Petitioners have denied their consent to file.

When the reader peruses these briefs, he will see that mine is the only one which focuses on the first thirteen words of the Second Amendment. The rest rely on what I should describe as the erroneous “law-school solution” to the problem raised in Kolbe—focusing on such really irrelevant matters as whether so-called “assault rifles” are in “common use” by average Americans for individual self-defense in the home, and such ultimately self-defeating arguments as whether “the right of the people to keep and bear [such] Arms” is subject to one or another anti-constitutional judicial “balancing test” (so-called “strict scrutiny” or “intermediate scrutiny”) under the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008). None of these briefs, other than my own, points out that the actually controlling precedent is United States v. Miller, 307 U.S. 174 (1939); and that, applied in tandem, both Miller and Heller demand reversal of the Court of Appeals’ decision in a manner which absolutely guarantees—indeed, if the Second Amendment is properly construed, requires—average Americans’ possession of “assault rifles”.

Under these circumstances, one would expect that my amici brief would at least be welcomed sotto voce by the Petitioners, because they have nothing to lose, and everything to gain, from having the Supreme Court made aware of the arguments which that brief, and no one else, presents. But no—the Petitioners do not want my amici curiae brief even to be considered by the Court. Having kicked around in Supreme Court practice over the years—and not without some notable successes—I find Petitioners’ reluctance to further their own interests rather perplexing. This is a conclusion in which I expect those of my readers who study the various amici briefs to concur.

So the question I raise for my readers’ consideration is: “What is going on here?” Why do the Petitioners (and, for that matter, the other amici ostensibly on their side) treat the first thirteen words of the Second Amendment, not simply as irrelevant to their case, but also as so dangerous to mention that they refuse both to address them in their own briefs and to consent for my amici brief to bring them to the Supreme Court’s attention?

Do these people really believe that the first thirteen words of the Second Amendment are actually irrelevant to the last fourteen words, even though they all are included in the very same sentence? If this the way English grammar works? Is this the way constitutional interpretation works (or ought to work)?

At this point, the matter is in the hands of the Supreme Court. But, in the long run, the problem goes beyond what happens to my amici curiae brief or even to the petition for a writ of certiorari in Kolbe itself. Kolbe, after all, will not represent the final battle over radical “gun control” in this country. The struggle to secure “the right of the people to keep and bear Arms” will continue, unabated, until all of the twenty seven words of the Second Amendment are either upheld in their entirety or so disregarded, discounted, or diluted by ridiculous decisions of the Judiciary that the Amendment is reduced to the palest shadow of what the Founders intended it to be.

To be sure, readers of this commentary who are not members of the Supreme Court Bar are not in a position to influence the Court. But many of them are capable of bringing this matter to the attention of leaders of the NRA—who, more than anyone else, are responsible for floating the mistaken notion that the Second Amendment’s overriding concern is to enable average Americans to possess “Arms” for the purpose of individual self-defense. Not simply the words of the Amendment, but especially the pre-constitutional history which informs them, teach that community self-defense is that concern. See my book The Sword and Sovereignty: The Constitutional Principles of “the Militia of the Several States” (CD-Rom Edition, 2012).

So I urge my readers—in particular, those who are members of the NRA—to contact that organization and encourage its leadership to reevaluate its position. At no time in this country’s history could such reconsideration be more vital.

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I can see argument on both sides. SCOTUS is notorious for not addressing 2A questions, especially if its presented in more than single, specific context.  Like it or not, thats the way they are. 

So a typical legal strategy always has been to present single, specific question that builds on previous SCOTUS ruling. The trick was to give SCOTUS incentive to move only a "little bit". 

Following that strategy, Kolbe is trying to take down MD patently anti-2A (it was fun reading that ruling from MD court) decision by posing very small question of "keeping newly banned weapons at home for self-defense".  Its a small leap for SCOTUS from their earlier Heller decision and defendants are hoping SCOTUS will take that leap and rule against MD.  IF SCOTUS indeed does that, it will at least scrap much of MD ruling about "sale, purchase, transport" crap. 

On the other hand, Mr. Edwin proposes to shake the tree or at least present information suggesting to shake the tree. SCOTUS is NOT stupid. They may read amicus or use them as toilet paper or just to to warm the house on cold days. But SCOTUS could also skirt the issue and could use information from any amicus as basis to skirt the issue. In that sense, amicus could provide broad enough pathway for SCOTUS to weasel out (again). Of course, they could do that without amicus too. 

If plaintiff does not want Mr. Edwin's amicus or help, then Mr. Edwin should simply shut up, find his own case to fund and take it to SCOTUS. 

On a related note, everyone should read that MD ruling. Its coming to NJ sooner than later. Scary stuff. 

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@jackandjill the problem with md argument is that the musket possessed military and civilian uses for its time. And any firearm since then, with any military development or use, should fall to the same scrutiny. Cherry picking...

We agree the author is trying to Big a bite. But, what is a militia?Or it’s purpose....

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1 minute ago, Zeke said:

@jackandjill the problem with md argument is that the musket possessed military and civilian uses for its time. And any firearm since then, with any military development or use, should fall to the same scrutiny. Cherry picking...

We agree the author is trying to Big a bite. But, what is a militia?Or it’s purpose....

Agreed. MD & its courts are traitors to the Constitution and personal freedoms. They know what would happen if they directly come out against 2A, so they are dancing around.  Unfortunately SCOTUS is no better either. They know the real answer too, but don't want to say one way or the other. 

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58 minutes ago, jackandjill said:

I can see argument on both sides. SCOTUS is notorious for not addressing 2A questions, especially if its

If plaintiff does not want Mr. Edwin's amicus or help, then Mr. Edwin should simply shut up, find his own case to fund and take it to SCOTUS. 

On a related note, everyone should read that MD ruling. Its coming to NJ sooner than later. Scary stuff. 

jackandjill present us with the reasons why we will ultimately loose this fight. Our children and grandchildren will suffer because this generation and the last know nothing at all about law, and the principles upon which this nation was built, but they are sure to disparage those who are attempting to rebuild the republic, and win the fight. 

I've written quite a bit about why the pretend pro-2nd community wants nothing to do with actually winning the struggle. There is too much at stake as far as contributions, and membership fees. There is also the fact that those who've built a base on a bold faced lie, can't go back and tell the membership that we've deceived you for decades. Then there is the membership itself. Once the actual aspects of the 2nd are explained, and how we will all have to train, they walk away much the same as the people did decades ago when the congress was forced to invoke Article 1, Section 10, Cls. 3.

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13 minutes ago, TheShootist said:

jackandjill present us with the reasons why we will ultimately loose this fight. Our children and grandchildren will suffer because this generation and the last know nothing at all about law, and the principles upon which this nation was built, but they are sure to disparage those who are attempting to rebuild the republic, and win the fight. 

I've written quite a bit about why the pretend pro-2nd community wants nothing to do with actually winning the struggle. There is too much at stake as far as contributions, and membership fees. There is also the fact that those who've built a base on a bold faced lie, can't go back and tell the membership that we've deceived you for decades. Then there is the membership itself. Once the actual aspects of the 2nd are explained, and how we will all have to train, they walk away much the same as the people did decades ago when the congress was forced to invoke Article 1, Section 10, Cls. 3.

Agreed. BTW, my comment about Mr. Edwin shutting up, is more to do his specific approach in this case. He is right on many aspects related basis of 2A etc, but I do not support forcing that onto an unwilling plaintiff.  

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6 minutes ago, jackandjill said:

Agreed. BTW, my comment about Mr. Edwin shutting up, is more to do his specific approach in this case. He is right on many aspects related basis of 2A etc, but I do not support forcing that onto an unwilling plaintiff.  

Its not the plaintiff. It is those who are handling the case, and presenting the arguments. 

Did you ever read or listen to the oral arguments in Heller? Gura could have ended the entire discussion on gun control when asked by Justice Stevens about the militia. Gura had absolutely no response because the team refused, that's right, refused to prepare for questions along those lines. 

Gura could have answered in a number of ways. One would have been that Congress have no authority to disarm, or unorganize the militia because the Constitution restricts them from doing anything other than arming, organizing, and disciplining. He could have also pointed out that through deception, and acting contra-constitutional limitations congress changed the dynamic of the Constitution without amendment, and therefore the primary reason for an armed populace. 

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2 minutes ago, TheShootist said:

Its not the plaintiff. It is those who are handling the case, and presenting the arguments. 

Did you ever read or listen to the oral arguments in Heller? Gura could have ended the entire discussion on gun control when asked by Justice Stevens about the militia. Gura had absolutely no response because the team refused, that's right, refused to prepare for questions along those lines. 

Gura could have answered in a number of ways. One would have been that Congress have no authority to disarm, or unorganize the militia because the Constitution restricts them from doing anything other than arming, organizing, and disciplining. He could have also pointed out that through deception, and acting contra-constitutional limitations congress changed the dynamic of the Constitution without amendment, and therefore the primary reason for an armed populace. 

Yes I read the Heller case and the arguments. I will say same again, nobody knows WHY SCOTUS asks certain question. They could use responses to decide in your favor or use them against you or taken you down a rabbit hole.

If anyone got better ideas, better skill or better execution strategy, they should pick a case, fund it, find proper representation who is willing to put forth appropriate argument. Complaining about what someone may or may not have done doesn't solve the problem. All I see in Mr. Edwin rant (thats right, I called it a rant) is "my-argument-better-than-their-why-dont-they-ever-listen-to-me".  Now, if that was to come from someone who actually went to SCOTUS on their own merit, presented his/her argument directly, won a case (even if they lost), then I (and million others) will listen. 

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Dr. Vieira has handled landmark cases before SCOTUS in the past. 

No one goes out and says let me try something here after years of indoctrination as to the 2nd amendment being about individual rights. 

I've been around for a long time, and I'm in discussion with someone else who is bringing a 2nd amendment case. We've both found that the biggest problem is the 2nd amendment community to begin with. Outside the individual rights theory, no one wants to hear, let alone fund such a case. That point is verified every time I have a discussion on the actual myriad of law surrounding the foundation, and power that the 2nd was added to help make impervious to any legal argument, but not so to ambivalence and ignorance. 

 

 

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Personally I think the main problem is the character of judges in U.S. judicial system.

If I'm a Supreme Court Justice, I can vote a case either way I want, based on my opinions or others, legal arguments or not, national or international laws, social norms, my grandmother's politics or the color of the tie under my black robe. And no one can do a damn thing about my vote. (Except impeach and remove me from office.)

We gave up appointing jurists who demonstrated true fidelity to the Constitution (as written!) and the law (as written!) and starting appointing proponents of like minded policies. The courts are now used as trump cards over the law, common sense, or the will of the people. Consequently we have lost control of a large part of our government and our country. Our 'votes' are mainly symbolic.

Of course whether 'the people' abide by decisions is something the courts have no control over. The people still have free will.

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24 minutes ago, TheShootist said:

Dr. Vieira has handled landmark cases before SCOTUS in the past. 

No one goes out and says let me try something here after years of indoctrination as to the 2nd amendment being about individual rights. 

I've been around for a long time, and I'm in discussion with someone else who is bringing a 2nd amendment case. We've both found that the biggest problem is the 2nd amendment community to begin with. Outside the individual rights theory, no one wants to hear, let alone fund such a case. That point is verified every time I have a discussion on the actual myriad of law surrounding the foundation, and power that the 2nd was added to help make impervious to any legal argument, but not so to ambivalence and ignorance. 

 

 

Can you quote some of those landmark cases ?  I want to read and educate myself about Dr. Vieira. 

And tell Dr. Vieira (or anyone else for that matter) that I will sell one of the firearms and donate proceeds (a grand atleast) to anyone who successfully brings a "collective private militia" case before SCOTUS. 

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I don';t think these cases are listened to or won based upon strategy. There are a number of justices that don't want to accept the second amendment for what it is: an essential part of the bill of rights. Until they are replaced these cases will not be heard. And if there is a good chance of losing we are better off not having them heard. As with most things with SCOTUS we are going to have to be very patient.

Trump's biggest achievement so far has been his federal bench appointments. The numbers far exceed previous presidents. And for that to continue we need McConnell and a majority in the senate. By the end of hist first term he may have appointed anywhere from 30% to 50% of the judiciary. That will ge HUGE.

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22 hours ago, jackandjill said:

Can you quote some of those landmark cases ?  I want to read and educate myself about Dr. Vieira. 

And tell Dr. Vieira (or anyone else for that matter) that I will sell one of the firearms and donate proceeds (a grand atleast) to anyone who successfully brings a "collective private militia" case before SCOTUS. 

You can read this. It also comes with a list of books he's written on the Constitutional Militia.

https://www.oathkeepers.org/oath-keepers-academy/edwin-vieira/

You're arguing with me, and when I read "collective private militia", I don't know why. There is no such thing in our law as a collective private militia. 

The Constitutional Militia, as it is recognized in the Constitution, is a state authority controlled by the People themselves. It exists with the force of law. NJ, as did all states, have Militia statutes defining the operation of the body. Militia was not voluntary. I was incumbent on all citizens to participate in some fashion, with the exception of some officials such as judges. It required all able-bodied men to maintain a "rifle" in good working order. 

Article 1, Section 8, Cls.15: "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions"

Article 1, Section 8, Cls. 16: "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress"

The state statutes varied slightly on such things as training and age requirements. Some states required training muster more times than others, while some states labeled able-bodied men as old as 60. 

As a note here, because it is widely misunderstood; National Guard cannot be militia. In fact the Guard was promulgated under Article 1, Section 10, Cls. 3; "No State shall, without the Consent of Congress, *** keep Troops, or Ships of War in time of Peace". The Guard are army that the states may call upon; See Rudy Pietrich v DOD, or you can read the Dick Act that most people seem not to understand at all as it clearly defines Militia, and a separate entity as the Guard. 

 

The purpose of the Militia being placed in the Constitution was to guarantee that the federal government could not disarm the militia, and to make sure that the power of the sword remained firmly in the hands of the states, and therefore the People. Both Miller and Heller note that the purpose of the 2nd was to make sure that Militia could not be disarmed. 

You can read all about this if you want to take up the task of reading Dr. Vieira's "The Sword and Sovereignty". It is some 2500 pages with, if I remember correctly, about 6000 footnotes on law and history. It is more extensive than the Selective Services documentation on service in the U.S.

One more thing. I had a conversation with Alex Roubian of NJ2AS when he stepped in to replace the previous president. I laid this out to him, as I did with his predecessor.  Neither one wanted anything to do with it. They both had in their minds, through years of misinformation, this idea of a "private militia" that ran around doing things that were heinous. They could not grasp the lawful fact of the Constitutional Militia even with it right there in the Constitution. 

Now, if you want to make a contribution I have a game plan that I've tried for a number of years to convince gun owners to implement. 

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To wit:

10 U.S. Code § 246 - 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.
 
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1 hour ago, TheShootist said:

You can read this. It also comes with a list of books he's written on the Constitutional Militia.

https://www.oathkeepers.org/oath-keepers-academy/edwin-vieira/

You're arguing with me, and when I read "collective private militia", I don't know why. There is no such thing in our law as a collective private militia. ....................

Now, if you want to make a contribution I have a game plan that I've tried for a number of years to convince gun owners to implement. 

You have to excuse me. I have certain opinion of people who do more of writing and less of doing. But I promise, I will keep open mind, read them all through and see which specific cases Dr. Vieira actually argued in front of SCOTUS. Specially if any one of them involved 2A and militia. 

I will also assure you that I have neither inclination nor energy to argue with anyone. If stuff gets done, all the better.  I have used those words without much thought knowing very well someone is going to spend too much time nitpicking it.  I am going to leave it at that. 

I am 99% positive I know what your game plan is. PM me with details of your game plan and I am all ears. If someone like Dr. Vieira actually signs up to take up the lead , even better.  Looking forward to listening to your ideas and game plan on a separate thread, a website or PM. May be we will meet for a breakfast if you are in Northern NJ. 

I am not taking shot anyone, much less Dr. Vieira, but my personal philosophy is to respect the idiot who did something more than a scholar who just preaches. 

Whether we like it or not, if WE (whoever that may be) cannot convince enough gun owners about a plan, then WE haven't tried hard enough OR the plan is flawed (practically). We can argue why its a good plan until cows come home, with no practical value. Reminds me of a time when I complained to my boss about how I had great plan but not getting the resources I wanted from upper management. That everyone in upper management was idiots for not seeing my plan blah blah blah. Her response was "any idiot can execute given enough resources". Her second comment was "if you couldnt convince those idiots, what does it say about YOUR skill". Arguments aside, there is lot of truth to it. 

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23 hours ago, 45Doll said:

To wit:

10 U.S. Code § 246 - 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.
 

I absolutely hate it when people quote  those  unconstitutional statutes. It shows a complete lack of understanding of the rule of law, the principles upon which this government was instituted, and an utter disrespect for the basic foundation of this nation.

“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorise, but what they forbid.” Alexander Hamilton – Federalist 78. The Supreme Court made this a recognized function of our law In Marbury v Madison, and repeated the warning in cases such as Norton v Shellby County 

In order for the Constitution to mean anything, it must mean exactly what it says, or it means nothing at all.

Since you brought it up please answer some questions;

Can the Constitution be changed other than in the manner described in Article 5?

Can the definitions  of the matters in the Constitution be change to suit whatever agenda a new government deems necessary to achieve whatever goal?

Can the meanings of the words in the Constitution as the Founders knew them change, or do we allow them to change to suit our ambivalence? 

In what universe does the word unorganized put a body of “well regulated Militia” together as a functionally trained unit?

The Constitution grants  a delegated authority to the Congress to “organize, arm, and discipline”. Where does it grant an authority to unorganze, disarm, and leave the militia undisciplined?

Where do you muster when you’re  unorganized?

Who are the officers that you’ve elected according to state statutes?

What arms do you keep and bear in order to comply with the functions stated in Article 1?

What are your duties when you show up in this random spot, without proper equipment or training in this emergency that called forth an “unorganized militia?”

The Constitution states,  “reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;” Do the states appoint the officers of the National Guard as the Constitution reads?

Is the National Guard a part of the army?

Does the National Guard consist of ALL able-bodied men from 17-45 as the statutes provided?

Does the National Guard answer to the state or the army?

The issue is not whether the government can do this or that. The issues in this area, are many.

Here are two;

The pretend pro-2nd community has been duped for so long, and failed to make its own investigation as to what is right or wrong that they cannot, and will not admit their complicity in destroying the full tenets of the 2nd.

The pretend pro-2nd community will do anything, or say anything it can to abdicate the responsibility under the requirements of law to fulfill the duty of an able-bodied man in “A well regulated Militia”.

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On 11/22/2017 at 11:38 AM, NJGF said:

I don';t think these cases are listened to or won based upon strategy. There are a number of justices that don't want to accept the second amendment for what it is: an essential part of the bill of rights. Until they are replaced these cases will not be heard. And if there is a good chance of losing we are better off not having them heard. As with most things with SCOTUS we are going to have to be very patient.

Trump's biggest achievement so far has been his federal bench appointments. The numbers far exceed previous presidents. And for that to continue we need McConnell and a majority in the senate. By the end of hist first term he may have appointed anywhere from 30% to 50% of the judiciary. That will ge HUGE.

If the notion is that we don't want to buck the system, then we've already lost. The court would have to affirm their previous decisions. 

Here is a link to the brief I spoke of; http://www.scotusblog.com/wp-content/uploads/2017/08/17-27-cert-tsac-edwin-vieira.pdf

In particular, you will note that the court has already opined in Miller that, “the Militia comprised all males physically capable of acting in concert for the common defense”, and that “ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time”. 307 U.S. at 179-182.

You can also read Justice Alex Kozinski's dissent in Silveria v Lockyer. I reference it in the article "Stand Your Ground".

It is also noted in both Miller and Heller that the function of the 2nd, if you read the ratification debates, was to prevent congress from disarming the Militia, which is "the whole People."

 

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7 minutes ago, USRifle30Cal said:

2-A_Meaning_pg2.gif

 

Sometimes things are, just as what the words say -

this is what amazes me. it's pretty clear. it's almost as if they were saying congress shall make no law, isn't it? people that don't like what the words say always want to use opinions and interpretations. guess what? opinions and interpretations don't matter. what matters is what the words say. the words say the right of the people shall not be infringed. period.

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The problem is, the anti-2A crowd began to interpret (even the Preamble) to mean "a restriction on the federal govt". They also interpret the 2A purpose to be "to secure State freedom". And then they proceed to conclude, hence, any restrictions State itself comes up for its Citizens are ok. They follow that thread to also conclude that its not an individual freedom, rather a Militia (to serve the State) right. 

With Feds controlling pretty much everything under "interstate commerce clause" and taking money (taxes) directly from individuals, THEN distributing to States, they got the proverbial "carrot & stick" to string along States. 

Along the way, States got rid of concept of "Militia" and stood up a State National Guard, effectively separating the Militia from general public. 

In practice, (obviously) its a web thats been creatively crafted. and deliberately setup.

Would be interesting to see couple of States challenge interstate commerce, bring back concept of Militia and challenge all Federal firearm laws as unconstitutional.  But thats not happening until Feds hold the keys to the money vault.  And States like Texas, although chest thump as "free", they have their agenda. Look no further than youtube videos on how they treat their own Citizens who exercise 2A rights. So highly unlikely any State would walk the talk. 

HUGE problem in all this is, members of SCOTUS actually believes in this shit. I hope that changes quickly. 

 

Note: I personally think the authors at the time were so caught up in worrying about a centralized Govt abusing its power that they could not envision States like Maryland, New Jersey and New York degenerating into the cesspools they have become against individual rights. 

 

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16 minutes ago, jackandjill said:

The problem is, the anti-2A crowd began to interpret (even the Preamble) to mean "a restriction on the federal govt". They also interpret the 2A purpose to be "to secure State freedom". And then they proceed to conclude, hence, any restrictions State itself comes up for its Citizens are ok. They follow that thread to also conclude that its not an individual freedom, rather a Militia (to serve the State) right. 

With Feds controlling pretty much everything under "interstate commerce clause" and taking money (taxes) directly from individuals, THEN distributing to States, they got the proverbial "carrot & stick" to string along States. 

Along the way, States got rid of concept of "Militia" and stood up a State National Guard, effectively separating the Militia from general public. 

In practice, (obviously) its a web thats been creatively crafted. and deliberately setup.

Would be interesting to see couple of States challenge interstate commerce, bring back concept of Militia and challenge all Federal firearm laws as unconstitutional.  But thats not happening until Feds hold the keys to the money vault.  And States like Texas, although chest thump as "free", they have their agenda. Look no further than youtube videos on how they treat their own Citizens who exercise 2A rights. So highly unlikely any State would walk the talk. 

HUGE problem in all this is, members of SCOTUS actually believes in this shit. I hope that changes quickly. 

 

Note: I personally think the authors at the time were so caught up in worrying about a centralized Govt abusing its power that they could not envision States like Maryland, New Jersey and New York degenerating into the cesspools they have become against individual rights. 

 

And when Hamilton is mentioned I cringe - 

While we can debate the entire federalist and anti federalist notions, merits and arguments - one thing is for sure - we have a document and we should adhere to it.

 

 

 

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28 minutes ago, jackandjill said:

The problem is, the anti-2A crowd began to interpret (even the Preamble) to mean "a restriction on the federal govt". They also interpret the 2A purpose to be "to secure State freedom". And then they proceed to conclude, hence, any restrictions State itself comes up for its Citizens are ok. They follow that thread to also conclude that its not an individual freedom, rather a Militia (to serve the State) right. 

With Feds controlling pretty much everything under "interstate commerce clause" and taking money (taxes) directly from individuals, THEN distributing to States, they got the proverbial "carrot & stick" to string along States. 

Along the way, States got rid of concept of "Militia" and stood up a State National Guard, effectively separating the Militia from general public. 

In practice, (obviously) its a web thats been creatively crafted. and deliberately setup.

Would be interesting to see couple of States challenge interstate commerce, bring back concept of Militia and challenge all Federal firearm laws as unconstitutional.  But thats not happening until Feds hold the keys to the money vault.  And States like Texas, although chest thump as "free", they have their agenda. Look no further than youtube videos on how they treat their own Citizens who exercise 2A rights. So highly unlikely any State would walk the talk. 

HUGE problem in all this is, members of SCOTUS actually believes in this shit. I hope that changes quickly. 

 

Note: I personally think the authors at the time were so caught up in worrying about a centralized Govt abusing its power that they could not envision States like Maryland, New Jersey and New York degenerating into the cesspools they have become against individual rights. 

 

and this is the problem. it matters not what they believe. it matters what the words say. we don't pay them for their opinions and interpretations.

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1 hour ago, 1LtCAP said:

and this is the problem. it matters not what they believe. it matters what the words say. we don't pay them for their opinions and interpretations.

I have to ask this question. Do you, or for that matter, any member of the 2nd amendment community believe for a minute "it matters what the words say?" Outside of a very, very few of us, the answer is a resounding no.

The Constitution starts "We the People". It does not start with We the Government. The Founders were clear to place the authority "to execute the Laws of the Union" in the hands of "the whole people" as the author of the Second recognized. Where is the difficulty in comprehending this, and the fact that government "exists and acts" for the People? 

There is such as high level of resistance to understand the fundamental aspects of Popular Sovereignty that it boggles the mind. "We the People"! If government fails to abide by our rules, in what universe does it make sense to go back and tell them you better? I believe it was Einstein who said, "Doing the same thing over, and over, and expecting different results is the definition of insanity." 

History is clear. There are those who seek power. There are those who have no compunction about perpetrating evil. In the last century, over 250,000,000 people, men, women, children, the elderly, and infirm were subject to brutal annihilation at the hands of someone with the banner of a "government official" to guide the hand that struck down a fellow man.

If you think it can't happen here, read all the comments. The majority are supporting government abuse of power by continually quoting statutes, and theories that are actually contrary to the fundamentals of the Second. If its here in this community, what is the opposition planning? 

Please take the time to read this; "to execute the Laws of the Union"

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the problem with the govt, is that we need a way to fire them all. then if their replacements fdon't do the job correctly, fire them too. and keep doing it till the ones that we vote into power get the point and do it right.

 as for do i believe that it matters what the words say? i do. and those words(at least in the 1st and 2nd) are incredibly clear and obvious. there is no "interpreting" or "i think they meant XXX"/. it's written right there on paper for us to see....and in theory abide by.

 our system got hijacked quite some time ago. sadly, i think it's beyond saving, and it's just on a slow death spiral.

 

 essentially, the way we do it now.....i hire a mechanic. he sucks. but i gotta keep him for 2 years or 4 years. then i can try to fire him.

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