An excerpt from the Washington Post's coverage of the D.C. Circuit's Second Amendment decision:
U.S. District Judge Emmet G. Sullivan dismissed the suit a year later, upholding the D.C. law, and saying the Second Amendment was narrowly tailored to membership in a "militia" — which he defined as an organized military body.This is either a big editing error — the "that" in "means just that" referring to a definition given three sentences and two paragraphs earlier — or an unwarranted bit of snide (snidish?) editorializing. If the case was just a question of whether "'militia' means just that," the collective rights argument might be stronger. But here's what "militia" means even today:The case moved on to the appellate court, with the National Rifle Association and numerous states siding with the pro-gun faction, and the Brady Center to Prevent Gun Violence and other states and cities joining with the District.
In the majority opinion, Silberman wrote that federal and state courts have been divided about the extent of protections covered by the Second Amendment. Some have sided with the position advocated by the District, that a "militia" means just that. Others have ruled that the amendment is broader, covering people who own guns for hunting or self-defense.
1. a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.So what exactly does "'militia' means just that" mean (other than "'militia' means what I want it to mean")? (On top of that, the right is expressly said to be a right "of the people," so what "militia" means is hardly the end of the story.)
2. a body of citizen soldiers as distinguished from professional soldiers.
3. all able-bodied males considered by law eligible for military service.
4. a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.
Incidentally, if the question is whether "militia" in the Second Amendment means just something like the National Guard, that's one thing that the Supreme Court has resolved: "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." (Today, after the Court's sex equality cases under the Fourteenth Amendment, it would likely include women, too.) The Militia Act of 1792 took a similar view, as does the currently effective Militia Act.
Thanks to PostWatch for the pointer.
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Speaking of "snide"...
2. The phrase is swiped from the VA declaration of rights of 1776, and as I recall VA then and now called itself a "commonwealth," not a "state."
3. I have some vague memory that an equivalent phrase is found in some British milita law of the 18th century, maybe of the 1760s, but never went back to find it.
Anyway, getting back on topic:
4. a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.
This item might be amended to read "...and typically regarding themselves, and/or portraying themselves to the public, as defenders..."
A big part of the problem with tying Second Amendment rights to militia membership is that it's next to impossible to craft a legal definition of a militia that can reliably and consistently distinguish between a "genuine" militia (i.e. one whose actual purpose is consistent with #4 above) and a sham one (i.e. one whose publicly stated purpose is consistent with #4 above, but whose actual purpose is something else entirely).
Since our legal system can only judge a militia by what it can glean (and demonstrate in court) about that militia's character, #4 above effectively extends Second Amendment rights to any armed organization with enough legal and political savvy to pass itself off as a bona fide militia. This becomes a problem when said armed organization is actually just a front for, say, a street gang, a Branch Davidian-style religious cult, a hate group of some kind, or yes, even a terrorist cell.
Of course, this is a truism that goes well beyond the Second Amendment, namely that there's no such thing as a system that can't be gamed. Equally obviously, doing away with the militia requirement leaves the door at least as wide open to this kind of abuse, if not more so. But at least that approach doesn't create a legal mechanism by which any manner of scumbags can portray themselves to the public as righteous defenders of individual rights against the Big Bad Government(TM).
Doesn't the issue of what a "militia" is really only matter if the Amendment is limited to militias? Once you accept any part of the individual argument, however regulated, you have to stop parsing "militia" as it no longer matters.
I'd strongly advise folks to READ the opinion, as it states the individual case very clearly and succinctly. Also read the dissent which is, in a word, embarrassing.
yours/
peter
§ 311. Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
Heh.
I wish I'd written that.
"Others have ruled that the amendment is broader, covering people who own guns for hunting or self-defense."
So I think the "just" in "just that" refers not to the dispute over the definition of militia ("organized group" vs. "all the [adult] people" but to the central dispute over whether the meaning of the 2d Amendment is confined only to the use of guns in a militia (however that is defined) or really is an individual "right to keep and bear arms".
I read parts of the decision, and the majority referred to an "intermediate" point of view that the right is individual, but only applies to the use of guns by an individual as a member of a militia. They concluded that this point of view was ultimately indistinguishable from the "collective right" point of view that they rejected.
Agreed.
Judge Henderson's name was one of those tossed around by the cognoscenti for the most recent nominations to the Supreme Court.
In the event we still have a Republican president for the next vacancy, I would humbly submit her dissent has taken her out of the running.
Judge Henderson made much ado about the "standing army" of the federal government, but, unless I'm missing something (and someone please clue me in), funds for the Army may only be allocated two years at a time.
Blame it on growing up in Massachusetts, but I acquired a notion of Colonial national defence as one made up primarily of Minutemen. A "militia" was all of the nice young boys* in town. While any federal army would not be adverse to helping out, it generally took them a while to get there (telegraphs for communicating the invasion and tankers for moving troops not having been invented yet). Judge Henderson would seem to require a standing army in DC to offer the same protection to that area - one that would miraculously be more benevolent to residents of DC than Congress.
*Or girls who dressed up as prepubscent boys, whichever.
In the event we still have a Republican president for the next vacancy, I would humbly submit her dissent has taken her out of the running.
Hmmm ... I wonder whether she might be gambling that the next occupant of the White House might take notice of her "brave, lonely dissent" ...
Assuming arguendo that there is a "need to fight the tyranny of the federal government," I find the idea that possessing handguns in your home will help anyone do so to be utterly amusing.
Ignorance is no excuse.
That was what struck me about the question, which seeks to contrast the ruling that the 2nd is an individual right, with another ruling that supposedly says the term militia means what it says. Huh? Where's the contrast/conflict between those two statements?
In an urban setting, a semiauto handgun can actually be pretty useful as a revolutionary weapon--and since it is concealable, it doesn't have to stay in your home.
Significantly, when Britain adopted the Firearms Act in 1920 that regulated rifles and pistols, it was specifically stated by members of the Cabinet that the object was to prevent a Bolshevik revolution. In public, of course, they pretended it was a crime control measure, until one of the idiots admitted it in Parliamentary debate.
After discussing Henry VII's attempt at disarming the great nobles, Kenworthy pointedly warned that disarming the population would not be an effective way of breaking popular control:
The Earl of Winterton responded that Kenworthy,
[90]Parliamentary Debates: Official Report, House of Commons, 5th series, 1920, 130:658-9.
[91]Parliamentary Debates: Official Report, House of Commons, 5th series, 1920, 130:662-3.
/Bartender! Gimme one of whatever they're drinking.
Of course, one can dispose of original intent and just say that the meaning of the words "right of the people to keep and bear arms" refers to an individual right. I am not much of an originalist and happen to believe this is true. (Subject, of course, to the proviso that the militia be "well regulated", i.e., regulation, but not prohibition, is constitutional.)
But if you are trying to do it by means of original intent (and I know a lot of gun rights advocates want to do this because that way they can circumscribe the type of "regulations" that are constitutional based on what was permissible and customary in the 18th Century), there is NO original intent basis for women having a right to bear arms.
And what of militia= national guard. Does this mean the states and not the Feds control these armed units? Is it not a infringment on states powers to have federalized Guard units as a matter of course? Can California have a Navy then? Marines? Air Force? Hmmmmmm.
Four presidents were shot by handguns and one by a rifle. Make that five if you count ex-presidents. Five and a half if you count as half killing the mayor near the president.
Further, I note that the paragraph (quoted) beginning, "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense," continues with:
"'A body of citizens enrolled for military discipline.' And further, 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."
Please note "enrolled"(can one overstate the ensuing uproar if the government took "to enroll" gun owners on a Master List?), and the implication of a Duty to Serve. Thus, all those who cannot be compelled by law to serve - the vast majority of citizens - are NOT a militia.
The court ruling hinged on the Second Amendment, which states, "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."
The District said the amendment applies solely to militias -- a position endorsed in the past by all but one of the nation's federal appeals courts.
I think enough editors and reporters at the Post have sprinkled the word "militia" without further ado to indicate the meaning is obvious--except, as our host has noted, it isn't.