New School of Thought and Research on the Second Amendment

[Thorgrim]

1) you're making a big fuss about Barron being a tort against a state using the 5th amendment and gun cases being criminal cases that were won on common law grounds

There's not a world a difference, going HEY, BALTIMORE YOU TOTALLY FUCKING RUINED MY LAND, HAVEN'T YOU EVER HEARD OF THE 5TH AMENDMENT and going HEY, BOSTON I CAN POSSESS A GUN, HAVEN'T YOU EVER HEARD OF THE 2ND AMENDMENT
is basically the same thing, you're just obfuscating to avoid the main issue that it is odd their lawyers and the local papers didn't even think to have even a sentence about it, even though today everyone would be in riot mode if the same thing happened, using the 2nd amendment

2) it's not "state" or "federal" militia powers...anymore than it's "state" or "federal" jury powers...do I have an individual right to sit on a jury? No can be struck because the defense didn't like me, but I have a right to be considered as a juror, and I HAVE to show up because it's my civic duty...there is a HUGE difference between a civic duty and total state control

and that was not the holding of Presser...Presser's central holding was that state's were not limited by the 2nd amendment in passing laws...if it was NO STATE AUTHORITY/POWER in regards to the 2nd amendment, then there never would have been latter cases on the 2nd amendment, and you know that

3)
I'm not arguing with you about the 5th amendment when the government and courts have held that Grand Juries aren't even needed anymore, see Pennsylvania

4)
I don't have to convince you of anything, civic theory is relatively new, and among other things, makes it a central point that the NRA's individualistic view and the Brady Center's collectivist view both do not make sense when you look at all the history, it just doesn't add up, so some historians are trying to work up a theory that actually fits the facts

You have already made it clear you are a very rigid and one might say extreme libertarian, I have never ever seen anyone convince someone of a strong political persuasion that they are wrong, it just doesn't happen

I'm not saying we've developed the new religion to answer all your ills, all we're saying is that the two old schools both don't fit the facts, and you need something that does, and I happen to find this pretty convincing, maybe it will be modified as time progresses, but until then I hold it as the most likely model

5) The 2nd amendment, much like the 3rd and the 10th...has fallen out of use...

Here is a better question: America was certainly a much more gun-loving country in the first half of the 20th century, yet all sorts of gun laws were passed...how come not one person complained and got to the Supreme Court on 2nd amendment grounds...Was the "greatest generation" not so great after all?

After all, if the soviets invaded, we would would realistically need automatic weapons to fight against an army of Soviets, and that was certainly a real threat...yet even in much more conservative times...not a peep, no one brought it up...

[Thorgrim]

Let me ask this:

Suppose the Supreme Court ruled the 2nd amendment, because of the many historical questions I and others before me have raised, and the lack of precedent, decides the original intent of the 2nd amendment was not the NRA's viewpoint

Then, in the rest of the opinion, it finds a fundamental right to own a handgun/rifle/shotgun for self defense/hunting...Congress/States then pass an amendment stating exactly what the Supreme Court just ruled

History is satisfied and there is a clear right to use a firearm and you can sit there saying you had the right since the dawn of man even before guns were invented...happy?

[Pocono Pete]

Originally Posted by Thorgrim

1) you're making a big fuss about Barron being a tort against a state using the 5th amendment and gun cases being criminal cases that were won on common law grounds

No, I'm just trying to reign in your "throw everything against the wall and see what sticks" method of debating.

My 2 positions on Barron are very simple;
1) That Barron proves the Bill of Rights did not then, have any impact upon state law or legal issues raised in state courts.
2) Senator Bingham took Justice Marshall's opinion to heart and used Marshall's admonitions on the inapplicability of the 5th Amendment and tried to craft the 14th to avoid those pitfalls and make the first eight Amendments of the Bill of Rights enforceable upon the states under the 14th Amendment.

Done, finished, end of my opinion on Barron. . .

Originally Posted by Thorgrim

There's not a world a difference, going HEY, BALTIMORE YOU TOTALLY FUCKING RUINED MY LAND, HAVEN'T YOU EVER HEARD OF THE 5TH AMENDMENT and going HEY, BOSTON I CAN POSSESS A GUN, HAVEN'T YOU EVER HEARD OF THE 2ND AMENDMENT is basically the same thing, you're just obfuscating to avoid the main issue that it is odd their lawyers and the local papers didn't even think to have even a sentence about it, even though today everyone would be in riot mode if the same thing happened, using the 2nd amendment

Christ on a pink pony . . . There is a huge difference when one understands there is a proper place to claim relief or an immunity under the federal Bill of Rights --ESPECIALLY IN THE PERIOD BEFORE THE ADOPTION OF THE 14TH AMENDMENT-- because everybody knew the Bill of Rights was not applicable to the states.

You brought Barron in to this discussion simply because the 5th was claimed to afford Barron relief . . . in the the Supreme Court, that's where it should be raised and in fact, the federal courts were the only place it could be raised --- SCOTUS then promptly and unequivocally dismissed that argument.

The record of the case as reiterated by the Supreme Court is silent as to when Barron, in the course of his appeals, actually began this 5ht Amendment argument and I am not inclined to find out if he did in fact raise the federal 5th Amendment in any state court of Maryland (but we already know how that would have turned out don't we?).

There's where you are off the rails; you are using the fact that the 5th was raised in arguments before the Supreme Court as your evidence that the 2nd doesn't secure an individual right because it was not raised in state cases as an immunity against state law in state courts????. . . Simply ridiculous and demonstrative of a profound misunderstanding of constitutional law and its application. Please stop wasting my time.

Originally Posted by Thorgrim

2) it's not "state" or "federal" militia powers...anymore than it's "state" or "federal" jury powers...

The entire debate of Art. I, § 8, cls. 15 & 16 was centered on the degree of control the federal government would have over state militias. That issue was, for all intents and purposes, finally decided only 16 years ago. (And, I must add again, without any referral to or appeals to, the 2nd Amendment.)

Originally Posted by Thorgrim

Presser's central holding was that state's were not limited by the 2nd amendment in passing laws...

Uhhhhh, no. The Court found that the enactment and enforcement of a law that required a permit for a private group of citizens to hold an armed parade was not injurious to the 2nd Amendment. Presser's exposition on the general right of those people to be armed and the extent that the feds can bind the states from disarming citizens is an explanation of their reasoning and entirely worthy of us referring to in forming our opinion on the right to arms.

Originally Posted by Thorgrim

if it was NO STATE AUTHORITY/POWER in regards to the 2nd amendment, then there never would have been latter cases on the 2nd amendment, and you know that

Huh? Presser along with many other cases prove that there is no protection of state action to be massaged out of the 2nd Amendment; there is only binding of Congressional action. Since that is true then any interpretation that says the 2nd makes it a requirement that "the people" must be in, or affiliated with, a state sanctioned militia to have the Amendment's protection is wrong because there is no power to create such conditions.

Originally Posted by Thorgrim

I'm not arguing with you about the 5th amendment when the government and courts have held that Grand Juries aren't even needed anymore, see Pennsylvania

Not the issue I raised; please answer the question posed or rebut my analysis. . . The issue is the distinction between active and inactive militia and the rights either disabled because of their militia enrollment or secured for them because they were just private citizens. The actual right is immaterial, it's the principle behind the distinction between militia and militia that is important.

Originally Posted by Thorgrim

. . . civic theory is relatively new, and among other things, makes it a central point that the NRA's individualistic view and the Brady Center's collectivist view both do not make sense when you look at all the history, it just doesn't add up, so some historians are trying to work up a theory that actually fits the facts

If the "history" you have cited is in any way indicative of the definition of "all the history" as used by these groundbreaking historians, I fear that hysterical exaggeration is a trait they are very acquainted with. Your citations are a joke. The ones using state law just demonstrate how shallow their understanding is of our constitutional law, the ones centered on concealing a weapon are moot also because concealed carry has never been a federal issue and the others only demonstrate the tenacity of some to root out disjointed quotes that conform to their position instead of conforming their position to history and constitutional principles.

The simple fact is the militia concept is a inherent part of our system and needed no execution of law to create it, seems elusive to these history scholars.

Originally Posted by Thorgrim

I'm not saying we've developed the new religion to answer all your ills, all we're saying is that the two old schools both don't fit the facts, and you need something that does, and I happen to find this pretty convincing, maybe it will be modified as time progresses, but until then I hold it as the most likely model

Sorry, it is you that has created the "facts" that support your "new school" of thought. Why don't you explain to me how your interpretation is correct when one recognizes the 2nd Amendment does not create, grant, give, confer or in any way establish any right for any entity. Explain where this "new" interpretation garners its logical and philosophical authority to dictate that the citizen's right to arms can have any sort of qualifications or conditions placed on its exercise.

You say, militia duty a civic duty like serving on a jury . . . OK, say I agree with you on that basic premise (and in actuality, I do); what does that stipulation do to my interpretation of the individual right to bear arms exercised without condition? Does jury duty disable my individual right to say or write an opinion on the laws and operation of government?

Does your "civic duty" interpretation allow you to disable my individual right to arms because I'm not presently fulfilling any militia duty even if the state and federal governments are remiss in creating or sustaining the very structure in which I am to perform this duty, a duty upon which my right seemingly depends?

I'm sorry to inform you that there is nothing new in your interpretation; it was stated and its ultimate end was identified, addressed and dismissed back in the 1800's by learned and respected constitutional scholars. Here's one.

• "It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.

Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 282-83 (1891)

Originally Posted by Thorgrim

5) The 2nd amendment, much like the 3rd and the 10th...has fallen out of use...

The Bill of Right is not a gallon of milk; there is no expiration date.

Originally Posted by Thorgrim

Here is a better question: America was certainly a much more gun-loving country in the first half of the 20th century, yet all sorts of gun laws were passed...how come not one person complained and got to the Supreme Court on 2nd amendment grounds...Was the "greatest generation" not so great after all?

What was passed? The national Firearms Act of 1934 was the only major national gun law in the first half of the 20th century and Congress knew then it could not constitutionally ban entire classes of firearms even ones as potentially deadly as fully automatic rifles and sawed-off shotguns. The gun control scene was placid until the late 60's.

Originally Posted by Thorgrim

After all, if the soviets invaded, we would would realistically need automatic weapons to fight against an army of Soviets, and that was certainly a real threat...yet even in much more conservative times...not a peep, no one brought it up...

I'm sure that the fact that anyone with a couple hundred bucks could buy surplus semi-auto M-1's through the mail had something to do with it . . .

[Pocono Pete]

Originally Posted by Thorgrim

Suppose the Supreme Court ruled the 2nd amendment, because of the many historical questions I and others before me have raised, and the lack of precedent, decides the original intent of the 2nd amendment was not the NRA's viewpoint

There is plenty of Supreme Court precedent to rule against your interpretation right now and I can't fathom any "new" evidence that would support a decision that does not confirm the standard model of an individual right. Certainly such evidence is not your carefully chosen snippets dissected out of larger expositions and even worse, those suspect paraphrases of works you cite but are apparently unwilling or afraid to quote directly.

Originally Posted by Thorgrim

Then, in the rest of the opinion, it finds a fundamental right to own a handgun/rifle/shotgun for self defense/hunting...Congress/States then pass an amendment stating exactly what the Supreme Court just ruled

Do you understand the ramifications of SCOTUS determining the right to arms as being fundamental? You must not because the finding of a fundamental right to own a firearm and any validation of your interpretation would be mutually exclusive.

That the 2nd Amendment does not include language securing the right to hunt or target shoot or use a gun in self-defense is of no weight. That the Constitution is completely silent on government's power to create such qualifications is the binding and controlling rule. Government can not dictate upon a subject / activity it has never possessed the power to impact or effect.

Originally Posted by Thorgrim

History is satisfied and there is a clear right to use a firearm and you can sit there saying you had the right since the dawn of man even before guns were invented...happy?

I'm happy right now but I will be ecstatic in July when SCOTUS finally puts all you goofballs in your place.

I'll put it out there right now; I predict a 9-0 decision in Heller upholding Parker. There will be some "dissenting in part" opinions (Bryer / Stevens / Souter??) in the decision because the majority opinion (written by Roberts or Alito with 6 or 7 concurring in the whole, and yes that includes Ginsburg and Kennedy!) will have some very expansive things to say on the right to arms beyond the question before the Court.

You had better get a grip on a handrail . . . this constitutional ship is going to right itself and I wouldn't want to see the sudden correction throw you overboard.

[Thorgrim]

Originally Posted by Pocono Pete

No, I'm just trying to reign in your "throw everything against the wall and see what sticks" method of debating.

My 2 positions on Barron are very simple;
1) That Barron proves the Bill of Rights did not then, have any impact upon state law or legal issues raised in state courts.
2) Senator Bingham took Justice Marshall's opinion to heart and used Marshall's admonitions on the inapplicability of the 5th Amendment and tried to craft the 14th to avoid those pitfalls and make the first eight Amendments of the Bill of Rights enforceable upon the states under the 14th Amendment.

Done, finished, end of my opinion on Barron. . .

Christ on a pink pony . . . There is a huge difference when one understands there is a proper place to claim relief or an immunity under the federal Bill of Rights --ESPECIALLY IN THE PERIOD BEFORE THE ADOPTION OF THE 14TH AMENDMENT-- because everybody knew the Bill of Rights was not applicable to the states.

You brought Barron in to this discussion simply because the 5th was claimed to afford Barron relief . . . in the the Supreme Court, that's where it should be raised and in fact, the federal courts were the only place it could be raised --- SCOTUS then promptly and unequivocally dismissed that argument.

The record of the case as reiterated by the Supreme Court is silent as to when Barron, in the course of his appeals, actually began this 5ht Amendment argument and I am not inclined to find out if he did in fact raise the federal 5th Amendment in any state court of Maryland (but we already know how that would have turned out don't we?).

There's where you are off the rails; you are using the fact that the 5th was raised in arguments before the Supreme Court as your evidence that the 2nd doesn't secure an individual right because it was not raised in state cases as an immunity against state law in state courts????. . . Simply ridiculous and demonstrative of a profound misunderstanding of constitutional law and its application. Please stop wasting my time.

The entire debate of Art. I, § 8, cls. 15 & 16 was centered on the degree of control the federal government would have over state militias. That issue was, for all intents and purposes, finally decided only 16 years ago. (And, I must add again, without any referral to or appeals to, the 2nd Amendment.)

Uhhhhh, no. The Court found that the enactment and enforcement of a law that required a permit for a private group of citizens to hold an armed parade was not injurious to the 2nd Amendment. Presser's exposition on the general right of those people to be armed and the extent that the feds can bind the states from disarming citizens is an explanation of their reasoning and entirely worthy of us referring to in forming our opinion on the right to arms.

Huh? Presser along with many other cases prove that there is no protection of state action to be massaged out of the 2nd Amendment; there is only binding of Congressional action. Since that is true then any interpretation that says the 2nd makes it a requirement that "the people" must be in, or affiliated with, a state sanctioned militia to have the Amendment's protection is wrong because there is no power to create such conditions.

Not the issue I raised; please answer the question posed or rebut my analysis. . . The issue is the distinction between active and inactive militia and the rights either disabled because of their militia enrollment or secured for them because they were just private citizens. The actual right is immaterial, it's the principle behind the distinction between militia and militia that is important.

If the "history" you have cited is in any way indicative of the definition of "all the history" as used by these groundbreaking historians, I fear that hysterical exaggeration is a trait they are very acquainted with. Your citations are a joke. The ones using state law just demonstrate how shallow their understanding is of our constitutional law, the ones centered on concealing a weapon are moot also because concealed carry has never been a federal issue and the others only demonstrate the tenacity of some to root out disjointed quotes that conform to their position instead of conforming their position to history and constitutional principles.

The simple fact is the militia concept is a inherent part of our system and needed no execution of law to create it, seems elusive to these history scholars.

Sorry, it is you that has created the "facts" that support your "new school" of thought. Why don't you explain to me how your interpretation is correct when one recognizes the 2nd Amendment does not create, grant, give, confer or in any way establish any right for any entity. Explain where this "new" interpretation garners its logical and philosophical authority to dictate that the citizen's right to arms can have any sort of qualifications or conditions placed on its exercise.

You say, militia duty a civic duty like serving on a jury . . . OK, say I agree with you on that basic premise (and in actuality, I do); what does that stipulation do to my interpretation of the individual right to bear arms exercised without condition? Does jury duty disable my individual right to say or write an opinion on the laws and operation of government?

Does your "civic duty" interpretation allow you to disable my individual right to arms because I'm not presently fulfilling any militia duty even if the state and federal governments are remiss in creating or sustaining the very structure in which I am to perform this duty, a duty upon which my right seemingly depends?

I'm sorry to inform you that there is nothing new in your interpretation; it was stated and its ultimate end was identified, addressed and dismissed back in the 1800's by learned and respected constitutional scholars. Here's one.

• "It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.

Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 282-83 (1891)

The Bill of Right is not a gallon of milk; there is no expiration date.

What was passed? The national Firearms Act of 1934 was the only major national gun law in the first half of the 20th century and Congress knew then it could not constitutionally ban entire classes of firearms even ones as potentially deadly as fully automatic rifles and sawed-off shotguns. The gun control scene was placid until the late 60's.

I'm sure that the fact that anyone with a couple hundred bucks could buy surplus semi-auto M-1's through the mail had something to do with it . . .

I couldn't care less what one senator did, it's the words they ALL agreed upon

If you think our SCOTUS has been full of morons for the past 130+ years, and couldn't look at the records properly...fine, Oliver Wendell Holmes, and other justices considered brilliant legal scholars knew nothing about the law or our constitution, maybe they never read it

Barron sued in the local county court, not federal court...saying the government owed him just compensation, sound familiar? The action in state court is summarized right in the first two paragraphs...pretty hard to miss...

If "everyone" knew the Bill of Rights meant jack shit to any state, they wouldn't have anyone making that argument, and certainly wouldn't need a ruling...just deny certiorari every time

It is you who are mistaken...criminal trials are open-ended...you are arguing to a jury, the local newspapers are firing off editorials...you act as though common journalists and jurors are going to go "well a federal venue is the best place to discuss the 2nd amendment, I think he's guilty for even mentioning something the Supreme Court hasn't ruled on..."

You also keep making the mistake that these people were being charged with carrying a weapon secretly...no they were charged with assault with a deadly weapon...the newspapers were quite clear that they had no right to shoot someone, or even show a gun when someone was attacking them...ofcourse there is the possibility that late 18th century newspapers knew nothing about the late 18th century constitution, and apparently neither did their lawyers, judges, etc

And Presser...you just didn't read the holding:

It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States.

Which would be the EXACT OPPOSITE of what you said:

any interpretation that says the 2nd makes it a requirement that "the people" must be in, or affiliated with, a state sanctioned militia to have the Amendment's protection is wrong

Presser came to the court saying he was part of a general militia, as a regular citizen in defense of his country, the governor said he wasn't because he wasn't under the state militia, the Supreme Court upheld that, saying the state's had the perfect right to regulate Presser...and the governor had every right to say "you do not belong to any recognized militia"

He came to the court with a 2nd amendment argument, saying any normal citizen can be part of the militia, why? He just wanted to have a group of men ready to defend his country...

Any other attempted interpretation is just ignoring the holding

Again, I don't see the point in parsing through a portion of an amendment which has an entire right that is no longer afforded

No expiration date? That's a funny way to phrase it...tell that to Pennsylvania which no longer requires Grand Juries on any charge, including murder

Yeah...they can tip-toe around the law...greatest generation there...seems odd that men coming back from fighting the Japanese Empire wanted to return to western, american law and live out their lives, and then facing a Soviet empire would want to be able to buy an automatic weapon legally without registration and taxation, and the possibility of being denied it anyway

[Thorgrim]

Uhm...finding a right to hunt/self-defense does not have to go back to 1787/1791

It can be a long held tradition if they find it was a growing 19th century function...and was firmly established in the 20th century...as a firmly rooted tradition

That way, we get rid of all this non-sense of making up what most people believed in the 1790s, and can accurately state that for over the past century Americans have held dear a right in self defense/hunting etc

History is properly cited, and everyone gets their "gun rights"

If you really think the Supreme Court is going to answer the question presented in the direct affirmative...saying 9-0:

"All Persons not a part of any state-regulated militia, under the 2nd amendment, have a right to keep a handgun or any other firearm in their home"

You are simply way off...Ginsburg, Kennedy, Scalia and Thomas all agreeing on the exact same expansive holding? That's just silly

[Pocono Pete]

Originally Posted by Thorgrim

I couldn't care less what one senator did, it's the words they ALL agreed upon

I think that Congress bringing Senator Bingham before them in 1871 to explain his reasoning and intent in crafting the first section is important. The Senate was then debating what would become the Enforcement Act and needed an explanation on the object of the 14th Amendment. His answers to their questions are important and stand as a succinct explanation of the first section's INTENDED operation. I urge you again to read the appendix in ADAMSON V. PEOPLE OF STATE OF CALIFORNIA , 332 U.S. 46 (1947) . . .

Originally Posted by Thorgrim

If you think our SCOTUS has been full of morons for the past 130+ years, and couldn't look at the records properly...fine, Oliver Wendell Holmes, and other justices considered brilliant legal scholars knew nothing about the law or our constitution, maybe they never read it

I think the Justices recognized a certain political agenda needed to be preserved and they did it . . . Just like SCOTUS did in Dred Scott. Dred Scott's flawed reasoning only lasted a generation . . . selective incorporation has been with us for how many years???

Originally Posted by Thorgrim

Barron sued in the local county court, not federal court...saying the government owed him just compensation, sound familiar? The action in state court is summarized right in the first two paragraphs...pretty hard to miss...

Whew, this is getting tiresome . . .

And as I said before, the local and state case was a simple tort to recover damages for injuries to his real property. The city diverted the flow of some creeks and the ensuing floodwaters filled in the docking area of his wharf with sediment. There was no "taking for public use" issue raised in the county case or in the Maryland court of Appeals. Baron was probably happy with the Baltimore court awarding him $500; that amount of money, back then, would have been enough to have the area dredged and his wharf returned to service. But Baltimore appealed and won the appeal and since the case was not remanded it went to SCOTUS.

"This case was instituted by the plaintiff in error, against the City of Baltimore . . . to recover damages for injuries to the wharf property of the plaintiff, arising from the acts of the [City of Baltimore]. . . . On all points, the decision of Baltimore county court was against the defendants, and a verdict for ,500 was rendered for the plaintiff. An appeal was taken to the court of appeals, which reversed the judgment of Baltimore county court, and did not remand the case to that court for a further trial. From this judgment, the defendant in the court of appeals prosecuted a writ of error to this court.

The counsel for the plaintiff presented the following points . . .

. . . the right and profit of wharfage, and use of the water at the wharf, for the objects of navigation, was a vested interest and incorporeal hereditament, inviolable even by the state except on just compensation for the privation; . . .

This right was interfered with, and the benefit of this property taken away from the plaintiff by the [City of Baltimore] . . . for public use, for an object of public interest . . .

3. That this exercise of authority was repugnant to the constitution of the United States, contravening the fifth article of the amendments to the constitution,"

It wasn't until the writ of error was filed with SCOTUS that the legal remedy of just compensation for the taking of private property for public use via the 5th Amendment was brought in.

That was the first opportunity it could be argued and the court promptly and unequivocally dispensed with that claim.

I hope this will end your misrepresentations.

Originally Posted by Thorgrim

Again, I don't see the point in parsing through a portion of an amendment which has an entire right that is no longer afforded

Well, isn't that a convenient "new interpretation" of your rules for this thread . . . your own words directing the permitted discourse stated, "and I am focused on the first few decades after and slightly before the US Constitution went into effect." You were not interested in discussing any subsequent court decisions and legislative enactments that might change your pure, founder's "history."

Now you want to claim the shield of the modern status of the grand jury clause of the 5th just so you don't need to address a condition inconvenient to your argument.

That's the very definition of intellectual dishonesty.

Originally Posted by Thorgrim

No expiration date? That's a funny way to phrase it...tell that to Pennsylvania which no longer requires Grand Juries on any charge, including murder

See above . . .

Originally Posted by Thorgrim

Yeah...they can tip-toe around the law...greatest generation there...seems odd that men coming back from fighting the Japanese Empire wanted to return to western, american law and live out their lives, and then facing a Soviet empire would want to be able to buy an automatic weapon legally without registration and taxation, and the possibility of being denied it anyway

The above sentence makes no sense whatsoever but I'll try to rebut it. . .

There was no law regulating purchases prior to 1968, anybody could buy just about anything through the mail, across state lines without any checks or restrictions. How many GI's brought back military trophies? I know how many my Dad brought back from Europe (101st Airborne) and my Uncle from the Pacific theater (Marines) because I have them now. I also have an M-1 my Dad bought from the Civilian Marksmanship Program in the mid 50's for I think $75.00 . . . They are still available but they have increased substantially in price and for some grades the waiting list is long. CMP has been selling military rifles to private US citizens since 1916.

[Thorgrim]

The appendix, boss, the appendix!

Arguing with you about Barron is like saying "The defendant said the people had a right to keep and bear arms and it shall not be infringed, but there's no proof he said the words '2nd amendment'" therefore any defendant arguing on the right to bears arms means nothing

I like the "facts" that the most brilliant justices and dozens of Supreme Court justices were in a political conspiracy to avoid acting on the logic of your thinking

I don't care what someone could do via mail, point is there were laws on the books when those veterans went to war, and when they came home...demanding registration, taxation, and possible rejection just for simple automatic weapons that anyone would need if the soviets invaded

[Pocono Pete]

Originally Posted by Thorgrim

And Presser...you just didn't read the holding:

(From Presser)"It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States."

Which would be the EXACT OPPOSITE of what you said:

(From Pocono Pete )
"any interpretation that says the 2nd makes it a requirement that "the people" must be in, or affiliated with, a state sanctioned militia to have the Amendment's protection is wrong"

Presser came to the court saying he was part of a general militia, as a regular citizen in defense of his country, the governor said he wasn't because he wasn't under the state militia, the Supreme Court upheld that, saying the state's had the perfect right to regulate Presser...and the governor had every right to say "you do not belong to any recognized militia"

Wrong, wrong, wrong, wrong, wrong, wrong, wrong, wrong, wrong, . . .

Even if Presser claimed his group was to be considered a lawful militia company (which he never did) that argument would fall under his attack on Illinois Militia Law being unconstitutional under Art I § 8 federal powers, not the 2nd Amendment BECAUSE THE 2ND AMENDMENT DOES NOT SPEAK IN ANY DEGREE TO THE FORMATION, ORGANIZING, OR CONTROL OF OFFICIAL MILITIAS, ESPECIALLY STATE MILITIAS!

I know this is a waste of time but here goes.

Presser had argued that the entire Illinois militia law was in violation of Art I § 8 cls.15 & 16 federal powers including of course, the two statutes he was indicted under:

"the whole scope and object of the Military Code of Illinois is in conflict with that of the law of Congress . . . that the state law makes it unlawful for any of its able-bodied citizens, except eight thousand, called the "Illinois National Guard," to associate themselves together as a military company or to drill or parade with arms without the license of the governor."

His argument recalled federal militia law (Act of May 8, 1792) which mandated that:

"That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia,"

Apparently, SCOTUS generally agreed with Presser, but for the disposition of the case and narrow question before them as to the legitimacy of only, "the two sections on which the indictment against the plaintiff in error is based," there was no need to delve into the greater issue because:

"We have not found it necessary to consider or decide the question thus raised as to the validity of the entire Military Code of Illinois, for, in our opinion, the sections under which the plaintiff in error was convicted may be valid even if the other sections of the act were invalid. For it is a settled rule that statutes that are constitutional in part only will be upheld so far as they are not in conflict with the Constitution, provided the allowed and prohibited parts are separable. . . . We are of opinion that this rule is applicable in this case"

(internal citations and quotation marks removed)

And SCOTUS then decides that even:

"If it be conceded that the entire Military Code, except these sections, is unconstitutional and invalid for the reasons stated by the plaintiff in error, these sections are separable . . ."

So, after deciding the two statutes[FN 1] Presser was indicted under do not violate Congressional powers, SCOTUS moves to whether they injure any "right of the people" secured by the 2nd Amendment:

"We are next to inquire whether the 5th and 6th sections[FN 1] of Article XI of the Military Code are in violation of the other provisions of the Constitution of the United States relied on by the plaintiff in error. The first of these is the Second Amendment, which declares: "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."

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the national government, and not upon that of the state."

And we arrive again at the proposition that the federal 2nd Amendment was not intended to be applied to state law and that the 2nd Amendment offers no immunity or relief from state law.

The Presser Court then, just to recall precedent on the above proposition on non-applicability, opens a dialogue on the nature of the citizen's right to keep and bear arms and the scope of its protection by the federal government INDEPENDENT OF THE 2ND AMENDMENT. SCOTUS continues directly from my last quoted passage (RE: state applicability):

"It was so held by this Court in the case of United States v. Cruikshank, 92 U. S. 542, , in which THE CHIEF JUSTICE, in delivering the judgment of the Court, said that the right of the people to keep and bear arms

"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, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. 102, 36 U. S. 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States."

See also Barron v. Baltimore, 7 Pet. 243; Fox v. State, 5 How. 410; Twitchell v. Commonwealth, 7 Wall. 321, 74 U. S. 327; Jackson v. Wood, 2 Cowen 819; Commonwealth v. Purchase, 2 Pick. 521; United States v. Cruikshank, 1 Woods 308; North Carolina v. Newsom, 5 Iredell 250; Andrews v. State, 3 Heiskell 165; Fife v. State, 31 Ark. 455.

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, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But as already stated, we think it clear that the sections under consideration do not have this effect."

So, the right to arms is . . .
NOT GRANTED BY THE CONSTITUTION!
NOT DEPENDENT ON THE CONSTITUTION FOR ITS EXISTENCE!
INVIOLATE BY BOTH THE FEDERAL AND STATE GOVERNMENTS "EVEN LAYING THE [2ND AMENDMENT] OUT OF VIEW!

Originally Posted by Thorgrim

He came to the court with a 2nd amendment argument, saying any normal citizen can be part of the militia, why?

No, wrong again . . .

His 2nd Amendment argument was only that the two statutes were injurious to the 2nd Amendment. Since neither disarmed him, only a) prohibited private armed assembly and b) required a permit to parade armed, and c) the 2nd Amendment was not a immunity from state law, there was no 2nd Amendment issue.

Again, the 2nd Amendment does not speak to any degree on the formation, organization or control of any militia forces, especially state militia forces. Militia forces are organs of the federal constitution and state legislatures (but only that not contradictory or offensive to the federal militia power).

Originally Posted by Thorgrim

He just wanted to have a group of men ready to defend his country...

No, wrong again. Because Presser . . . :

"belonged to a society called the "Lehr und Wehr Verein," a corporation organized April 16, 1875, in due form, under chapter 32, Revised Statutes of Illinois, called the "General Incorporation Laws of Illinois," "for the purpose," as expressed by its certificate of association, "of improving the mental and bodily condition of its members so as to qualify them for the duties of citizens of a republic. Its members shall therefore obtain, in the meetings of the association, a knowledge of our laws and political economy, and shall also be instructed in military and gymnastic exercises;"

The purpose of the private organization was to better prepare the members, "so as to qualify them for the duties of citizens of a republic." See, they recognized the civic duty aspect of militia service and recognized the state was remiss in fulfilling their obligations (in violation of federal law).

They did not declare themselves as being official militia of the State of Illinois, only that state statute forbid the citizens from fulfilling their duty because the official state force was limited to 8000 members (again, in violation of federal law mandating "all able bodied . . . be enrolled")

Originally Posted by Thorgrim

Any other attempted interpretation is just ignoring the holding

Well, there is a "correct" interpretation and an "incorrect" interpretation.

Misrepresenting the facts of the case, misrepresenting the issues before the Court, misrepresenting the claims of Presser and misrepresenting the obvious determinations of the Court place you firmly in the "incorrect" camp.

I will now add all my previous analysis of Presser and you are invited to prove (not just claim) where I am wrong.

It is clear from Presser that the right protected by the 2nd Amendment is owned exclusively by, "all citizens capable of bearing arms."

Why?

Because, as above, it is plainly established that the right protected by the 2nd Amendment does not belong to the state and their militia regulation power. If it did, the Court would have applied the Amendment's scope and restriction on the inferred federal power to bind the states, not the states power to require a permit for an armed march by private citizens.
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I brought up Presser for its statement of the whole citizenry being the reserve militia. That the case also re-states the fact that there is no state power protection angle in the 2nd defeats both the collective and your civil right theory.

There is no dichotomy . . .
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The Court found that the enactment and enforcement of a law that required a permit for a private group of citizens to hold an armed parade was not injurious to the 2nd Amendment. Presser's exposition on the general right of those people to be armed and the extent that the feds can bind the states from disarming citizens is an explanation of their reasoning and entirely worthy of us referring to in forming our opinion on the right to arms.

Presser along with many other cases prove that there is no protection of state action to be massaged out of the 2nd Amendment; there is only binding of Congressional action. Since that is true then any interpretation that says the 2nd makes it a requirement that "the people" must be in, or affiliated with, a state sanctioned militia to have the Amendment's protection is wrong because there is no power to create such conditions.

Footnote 1:

Art. XI of the Military Code Illinois § 5.
It shall not be lawful for any body of men whatever other than the regular organized volunteer militia of this state and the troops of the United States to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of this state without the license of the Governor thereof, which license may at any time be revoked, and provided further that students in educational institutions where military science is a part of the course of instruction may, with the consent of the Governor, drill and parade with arms in public under the superintendence of their instructors, and may take part in any regimental or brigade encampment under command of their military instructor, and while so encamped shall be governed by the provisions of this act. They shall be entitled only to transportation and subsistence, and shall report and be subject to the commandant of such encampment, provided that nothing herein contained shall be construed so as to prevent benevolent or social organizations from wearing swords."

Art. XI of the Military Code Illinois,§ 6.
Whoever offends against the provisions of the preceding section or belongs to or parades with any such unauthorized body of men with arms shall be punished by a fine not exceeding the sum of ten dollars (), or by imprisonment in the common jail for a term not exceeding six months, or both."

Please note that disarming of those in violation is not among the responses to a violation.

[Pocono Pete]

Originally Posted by Thorgrim

Uhm...finding a right to hunt/self-defense does not have to go back to 1787/1791

But it existed then, the founders found it being exercised without any governmental permission or qualification as to militia status before the Constitution was written and there being no grant of power in the Constitution to impact those activates the right of the people to hunt, target shoot, use a gun for self defense or any other lawful purpose continued on without any federal interference.

Originally Posted by Thorgrim

It can be a long held tradition if they find it was a growing 19th century function...and was firmly established in the 20th century...as a firmly rooted tradition

That way, we get rid of all this non-sense of making up what most people believed in the 1790s, and can accurately state that for over the past century Americans have held dear a right in self defense/hunting etc

A whole lotta nothing to arrive at where we are right now. No grant of power to impact the private arms of the citizen was ever conferred through the Constitution. In the fundamental principles of this nation such condition meant the right of the people to keep and bear arms was safe. This is the exact argument of the Federalists against a bill of rights. The powers of government were so clearly defined and thus limited no power existed to harm the citizens rights so a bill of rights was not necessary. How that truth and your individual right restricting civil duty 2nd Amendment can co-exist is a mystery and something you need to address.

Originally Posted by Thorgrim

History is properly cited, and everyone gets their "gun rights"

You are building a Rube Goldberg to explain away the principle of pre-existing rights.

Originally Posted by Thorgrim

If you really think the Supreme Court is going to answer the question presented in the direct affirmative...saying 9-0:

"All Persons not a part of any state-regulated militia, under the 2nd amendment, have a right to keep a handgun or any other firearm in their home"