Federal Judge: Assault Weapons Not Protected by 2nd Amendment

[chic]

One source: http://www.nydailynews.com/news/national...-1.2979133

But, in Miller, the SCOTUS said a member of the unorganized militia, when called to service, must appear with a weapon of his own procurement and of the type in common use at the time. It was referring to military use, not 18th century re-enactment use. The case centered on whether a short barreled shotgun was a valid militia weapon and the government chose someone unlikely to (and did not) participate in their defense, so only the government was heard.

[JASmith]

Note the rationale: The 'assault weapon' is derived from military firearms, hence is not protected.

Two things wrong: First, almost every firearm action, bolt, lever, semi, etc. is derived from a military design. Second, and most important, the 2nd Amendment is about actions related to military endeavors.

[stanc]

Note the rationale: The 'assault weapon' is derived from military firearms, hence is not protected.

That is not exactly what he is quoted as having said, but if one looks at the wording of the Second Militia Act of 1792, firearms "derived" from military weapons would not be protected, since they are not in common use by the armed forces.

For example, a select-fire M4 carbine or M16 rifle would be protected because they are in common US military use, but a semi-auto AR15 would not be protected since it is not in common use by the military.

Two things wrong: First, almost every firearm action, bolt, lever, semi, etc. is derived from a military design.

A doubtful claim. While some existing guns like the Beretta 92F were indisputably derived from a military small arm, there is no such relationship with many other firearms.

Most modern pistols have little or nothing in common with the first self-loading handgun. https://www.youtube.com/watch?v=QGzb-0PJadI

Second, and most important, the 2nd Amendment is about actions related to military endeavors.

Again, not exactly. It's not just about action type. It's about suitability for militia use, which requires commonality in caliber and a number of other characteristics.

[stanc]

One source: http://www.nydailynews.com/news/national...-1.2979133

But, in Miller, the SCOTUS said a member of the unorganized militia, when called to service, must appear with a weapon of his own procurement and of the type in common use at the time. It was referring to military use..

Yup. And the Second Militia Act of 1792 specified that the type of weapon militia infantrymen were required to procure and provide was, from 1797 onward, a musket of (IIRC) .69 caliber. Not a short-barrel shotgun, but a full-length musket with provision to attach a bayonet.

All of that has long since been rendered moot, though. In the Militia Act of 1903, the National Guard superseded the old State militias. ARNG members are not only not required to procure and provide their own weapons, they are not even allowed to use privately-purchased weapons.

[biodsl]

This decision won't stand under appeal.

[biodsl]

Adam at The Gun Collective does a decent job breaking down this decision. The explanation supports my position; the judge just made stuff up.

https://www.youtube.com/watch?v=bQZYp1EHzZM

[BjornF16]

(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.

[stanc]

(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.

:confused: Don't know what your point is.

[JASmith]

His point may have something to do with a well-referenced answer to this and several other posts suggesting that the right to bear arms is esentially a figment of the imagination.

Yup. And the Second Militia Act of 1792 specified that the type of weapon militia infantrymen were required to procure and provide was, from 1797 onward, a musket of (IIRC) .69 caliber. Not a short-barrel shotgun, but a full-length musket with provision to attach a bayonet.

All of that has long since been rendered moot, though. In the Militia Act of 1903, the National Guard superseded the old State militias. ARNG members are not only not required to procure and provide their own weapons, they are not even allowed to use privately-purchased weapons.

[stanc]

His point may have something to do with a well-referenced answer to this and several other posts suggesting that the right to bear arms is esentially a figment of the imagination.

Where do you see anything remotely like that in the post you quoted?

[BjornF16]

:confused: Don't know what your point is.

Was not trying to make any point. Was posting seemingly pertinent information, one of the reasons why this forum exists.

[BjornF16]

All of that has long since been rendered moot, though. In the Militia Act of 1903, the National Guard superseded the old State militias. ARNG members are not only not required to procure and provide their own weapons, they are not even allowed to use privately-purchased weapons.

His point may have something to do with a well-referenced answer to this and several other posts suggesting that the right to bear arms is esentially a figment of the imagination.

Where do you see anything remotely like that in the post you quoted?

Ummm...see the red text above just to start. While the name may have changed, and arms are supplied to the "organized militia" now, it doesn't diminish the fact the rest of us are still part of the militia.

The Militia is alive and well...

[Tex Nomex]

The meaning of the 2nd Amendment is clear today and has been clear since before its codification, revisionist contemporary judges and their fawning apologists be damned.

"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."
— Tench Coxe, in `Remarks on the First Part of the Amendments to the Federal Constitution under the Pseudonym `A Pennsylvanian in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.

[stanc]

Was not trying to make any point. Was posting seemingly pertinent information, one of the reasons why this forum exists.

Not seeing how it's pertinent to anything in this thread.

[stanc]

Ummm...see the red text above just to start. While the name may have changed, and arms are supplied to the "organized militia" now, it doesn't diminish the fact the rest of us are still part of the militia.

The Militia is alive and well...

Not exactly.

State militias were superseded by the National Guard over a century ago.
Members of the National Guard are not allowed to use their own weapons.
Members of the unorganized militia are no longer required by law to provide their own weapons when reporting for service.

The militia, as originally conceived by the Founders, ceased to exist. And on top of that, we now have a large, standing Army...

[98Z]

(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 posted a pretty good version of this in the "Oregon Ballot Measure" thread, and Stan didn't quote me and respond - so I guess he didn't have anything to say about it then. Here's what I put into that thread:

(Credit: Live Free Armory, for this writeup).

Thought I'd share this, since this is where the conversation has turned...

We tend to turn our backs on history unless it’s convenient. You will never hear the anti-gun lobby remind you that it was the British gun control program forced upon the colonies that started the shooting war and not the issue of taxation. In 1774, the British Crown enacted an import ban on firearms and gunpowder. Continuing the ban in 1774 and into 1775, they also started confiscating firearms and gunpowder by force. If you look at this and other background historical facts, The Second Amendment was written purposefully so that our government could never turn on us again. We the people meant something to the founding fathers. We the people should mean something to us all.

The next time you get into an argument about The Second Amendment and the term militia, remind the person of this little talked about fact from Title 10—ARMED FORCES :

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.

So what does that mean? According to federal law, every able-bodied man between the ages of 17 and 45, not on active duty, in the reserve, or in the National Guard, is already a member of the unorganized militia. Females serving in the National Guard are also members of the militia. The law was updated in 2016 so it can’t be considered one of those seldom used archaic laws. Boom…we the people are the militia.

[Tex Nomex]

"What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."
-- Thomas Jefferson to William Stephens Smith, 1787. ME 6:373, Papers 12:356

[stanc]

I posted a pretty good version of this in the "Oregon Ballot Measure" thread, and Stan didn't quote me and respond - so I guess he didn't have anything to say about it then.

Actually, I had intended to comment on it, but before I could do so, I was ordered to stay out of the thread. Thanks for giving me another chance to respond.

Here's what I put into that thread:

Thought I'd share this, since this is where the conversation has turned...

We tend to turn our backs on history unless it’s convenient. You will never hear the anti-gun lobby remind you that it was the British gun control program forced upon the colonies that started the shooting war and not the issue of taxation. In 1774, the British Crown enacted an import ban on firearms and gunpowder. Continuing the ban in 1774 and into 1775, they also started confiscating firearms and gunpowder by force. If you look at this and other background historical facts, The Second Amendment was written purposefully so that our government could never turn on us again. We the people meant something to the founding fathers. We the people should mean something to us all.

The next time you get into an argument about The Second Amendment and the term militia, remind the person of this little talked about fact from Title 10—ARMED FORCES :

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.

So what does that mean? According to federal law, every able-bodied man between the ages of 17 and 45, not on active duty, in the reserve, or in the National Guard, is already a member of the unorganized militia. Females serving in the National Guard are also members of the militia. The law was updated in 2016 so it can’t be considered one of those seldom used archaic laws. Boom…we the people are the militia.

As originally defined by the Founders in the Militia Act of 1792, the militia was comprised only of able-bodied, white males between the ages of 17 and 45.

The definition has since been revised, so the militia now includes able-bodied black, Hispanic, Asian, and other males between 17 and 45, and some females.

As defined by law, the militia is not now, and never has been, "we the people." The militia has always been only a small percentage of the people.

[BjornF16]

Not exactly.

State militias were superseded by the National Guard over a century ago.
Members of the National Guard are not allowed to use their own weapons.
Members of the unorganized militia are no longer required by law to provide their own weapons when reporting for service.

The militia, as originally conceived by the Founders, ceased to exist. And on top of that, we now have a large, standing Army...

Not really...Militia Act of 1903:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able; bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes-the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia.

Sec. 3. That the regularly enlisted, organized, and uniformed active militia in the several States and Territories and the District of Columbia who have heretofore participated or shall hereafter participate in the apportionment of the annual appropriation provided by section sixteen hundred and sixty-one of the Revised Statutes of the United States, as amended, whether known and designated as National Guard, militia, or otherwise, shall constitute the organized militia

Still the militia, (e.g. the organized militia). This was done to address federalizing of the militia which had seen issues in 19th Century.

Everyone else is the Reserve Militia (as understood by the Founders).

It was "we the people" as the Founders understood "we the people" to be...(and yes, by today's standards, bigoted).

If it were as you suggest, then why weren't members of the militia who turned age 46 required to relinquish their arms?

[BjornF16]

From the Independent Chronicle, August 6, 1789, in Documentary History of the Ratification of the Constitution, vol. 6, at 1453:

"And that the said constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States who are peaceable citizens, from keeping their own arms; ...

So, the Founding Generation understood that the 2A applied to ALL peaceable citizens of the United States; not just to State Militia members.

We'll keep dropping truth bombs...