Re: CAN THE STATE MILITIAS EVER BE ABOLISHED?

On Wed, 26 Nov 2003 12:30:31 GMT, "Morton Davis" <[EMAIL PROTECTED]> wrote:

>
>"Diogenes" <[EMAIL PROTECTED]> wrote in message
>news:[EMAIL PROTECTED]
>> Leif Rakur wrote:
>> > Diogenes <[EMAIL PROTECTED]> wrote in message
>news:<[EMAIL PROTECTED]>...
>> >
>> >>Leif Rakur wrote:
>> >>
>> >>>Robert S. Baron <[EMAIL PROTECTED]> wrote in message
>news:<[EMAIL PROTECTED]>...
>> >>>
>> >>>
>> >>>>[EMAIL PROTECTED] (Leif Rakur) wrote: 22 Nov 2003 22:03:32 -0800
>> >>>>Message-ID: <[EMAIL PROTECTED]>
>> >>>>
>> >>>>>Robert S. Baron <[EMAIL PROTECTED]> wrote in message
>> >>>>
>> >>>>news:<[EMAIL PROTECTED]>...
>> >>>>
>> >>>>
>> >>>>>>><snip>
>> >>>>>>
>> >>>>>> RSB: Since a well regulated militia is recognized as being
>necessary,
>> >>>>>> and the people have been guaranteed the general right to keep and
>bear
>> >>>>>> arms by the federal constitution, it follows that the people have
>the
>> >>>>>> particular implied right to make themselves well regulated, and
>> >>>>>> especially so when the government neglects the militia and lets it
>> >>>>>> fall into disuse.  Even in the absence of RKBA incorporation via
>the
>> >>>>>> Fourteenth Amendment, the state governments have no legitimate
>power
>> >>>>>> to prevent the people keeping arms and becoming proficient in the
>use
>> >>>>>> of arms.  The supreme court supports that position in Presser:
>> >>>>>>
>> >>>>>>     "But in view of the fact that all citizens capable of bearing
>> >>>>>>     arms constitute the reserved military force of the national
>> >>>>>>     government as well as in view of its general powers, the
>> >>>>>>     States cannot prohibit the people from keeping and bearing
>> >>>>>>     arms, so as to deprive the United States of their rightful
>> >>>>>>     resource for maintaining the public security."
>> >>>>>>
>> >>>>>> RSB: Some might conclude that this merely recognizes the supremacy
>of
>> >>>>>> federal militia powers in Art.I Sec.8, but this would represent an
>> >>>>>> extremely narrow interpretation of the phrase 'rightful resource'.
>It
>> >>>>>> would suppose that 'rightful' refers to the question of federal
>> >>>>>> supremacy, which is not in question.  And it would suppose that the
>> >>>>>> definition of 'resource' is not operative, i.e., "something that
>lies
>> >>>>>> ready for use" [Webster's New World Dictionary].  A well regulated
>> >>>>>> militia lies ready for use; a neglected, dispirited militia does
>not.
>> >>>>>
>> >>>>>Leif speaking:  What Presser says is that the Second Amendment is not
>> >>>>>applicable against the states:
>> >>>>>
>> >>>>>"But a conclusive answer to the contention that this amendment [the
>> >>>>>Second 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
>> >>>>>States."
>> >>>>>
>> >>>>>Insofar as the Second Amendment is concerned, the states can enact
>> >>>>>whatever gun legislation the people want.
>> >>>>
>> >>>> RSB: Presser was decided in 1886, well before the era of
>incorporation
>> >>>> began in 1897 with Robertson v. Baldwin, 165 U.S. 275.  As you
>> >>>> contemplate incorporation of the 2dAm via the 14thAm, ask yourself
>why
>> >>>> an amendment that begins, "Congress shall make no law...", is applied
>> >>>> against the states while the provision that guarantees a right of the
>> >>>> people shall not be infringed applies only to Congress.
>> >>>
>> >>>
>> >>>Leif speaking:  The Second Amendment is NOT incorporated under the 14
>> >>>Amendment.
>> >>
>> >>The only reason the second amendment is not incorporated is because the
>> >>courts have simply not chosen to do so, as they did with others, and
>simply
>> >>restating it hasn't been incorporated doesn't address the question that
>was
>> >>raised.
>> >>
>> >>
>> >>>Presser is good law.  The states, insofar as the Second
>> >>>Amendment is concerned, pass whatever kind of gun legislation they
>> >>>want.
>> >>
>> >>And, of course, before incorporation they could, in theory, pass
>whatever
>> >>speech, or any other, law that was previously prohibited only to the
>> >>federal government. They could even put statues of the ten commandments
>in
>> >>their court houses if they wanted to.
>> >>
>> >>
>> >>>The Second Amendment protects the right of the people
>> >>>collectively to maintain their own state militia even if Congress
>> >>>should fail to do its constitutional part in that respect.
>> >>
>> >>There is nothing any more 'collective' about the second than any other
>> >>enumerated right of the people.
>> >>
>> >>
>> >>> It's hard
>> >>>to see how that provision could be applied AGAINST the states.
>> >>
>> >>It's actually quite easy. The second's protection of the people's right
>to
>> >>keep and bear arms is precisely because government wields power, and an
>> >>armed populace is a counter balance to that power: an inherent right of
>> >>self protection, from others and even one's own government should it
>turn
>> >>oppressive; no longer serving the needs of the people. Which, if you'll
>> >>note, is precisely what the Revolutionary War was about, as specifically
>> >>stated in the Declaration of Independence.
>> >>
>> >>It is not much of a stretch to imagine that if the people have that
>right
>> >>of self protection, including from the Federal government, then they
>have
>> >>that same right of protection from their State government.
>> >
>> >
>> > Leif speaking:  The Second Amendment was written to restrain Congress
>> > from infringing the right of the people to their state militia.   That
>> > would be a good reason for not trying to incorporate in against the
>> > states.
>>
>> It's true that's the standard misinterpretation of it's meaning and it
>> would have been real simple to write "the right of the people to their
>> state militias shall not be infringed," but they didn't.
>>
>>
>Or: A well-reguilated militia being necessary to the security of a free
>state, the right of the militias to keep and bear arms shall not be
>infringed. But they said: A well-regulated militia being necessary to a free
>state, the RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED.
>
>Leif knows that, he's LYING.
>
>-*MORT*-
>


Somebody give this loser the hook!
  
    The Speedbyrd :>