Topic: Interesting David MacDonald quote: (Read 10998 times)

Copernicus · « **Reply #100 on:** September 25, 2007, 02:38:57 PM »

Quote from: TheDoctor on September 25, 2007, 02:08:20 PM

To the best of my knowledge, that portion of the US Code has never been brought before the Supremes.

It may well have been incorporated into legal arguments made by pro-gun lawyers. I do not know whether any court has ever taken it as relevant to the "well-regulated militia" wording in the 2nd amendment. Nor do I think that it would be in the interests of gun lobby lawyers (largely creatures of the gun manufacturing industry and its sponsored organizations) to pursue the statute that you cited. I don't think that they want to see their customer base limited to "able-bodied males" who are "under the age of 45" and "female citizens of the United States who are members of the National Guard". That code is not exactly well-written for their purposes. It is just a useful ploy in the long, expensive battle to protect the income of gun manufacturers in the US. That code is not a significant part of the legal argument, but the propaganda campaign to convince Americans that the 2nd amendment states a general right of all US citizens to own guns.

TheDoctor · « **Reply #101 on:** September 25, 2007, 02:55:05 PM »

All that part of the Code does is define the word militia as used in the 2nd amendment. Since it's still in the US Code, it's still valid.

TheDoctor · « **Reply #102 on:** September 25, 2007, 03:05:36 PM »

One of the Federal appeals courts did rule that the 2nd Amendment protects an individual's right to keep and bear arms.

http://en.wikipedia.org/wiki/United_States_v._Emerson

Copernicus · « **Reply #103 on:** September 25, 2007, 04:31:52 PM »

Quote from: TheDoctor on September 25, 2007, 02:55:05 PM

All that part of the Code does is define the word militia as used in the 2nd amendment. Since it's still in the US Code, it's still valid.

It's valid for the US Code, not the word "militia" in the Constitution. All that section does is define "militia" within the scope of the code. This linguistic argument has no legs, except in the minds of pro-gunners grasping at straws. The better course of action is to insist that the absolute construction that forms the preamble to the amendment has no restrictive force on the main clause. The reason that that more powerful argument (IMHO) has failed is that legislative language, particularly constitutional language is considered "parsimonious". It is not usually thought to contain irrelevant wording, although many poorly written laws do. Design by committee can produce some pretty warped designs, and I think that the 2nd is a case in point.

As for the cases you referenced, those were the ones I had in mind (but didn't have specific references to) when I thought that your point might already have been raised in court cases. The more recent District of Columbia ruling was a very extreme break with the earlier (discredited) ruling, and it seems to have been designed specifically to hand the new Supreme Court an opportunity to reshape the gun-rights debate on terms that favor the gun industry. It may or may not work, but this is their best shot. The next justices appointed to the court are likely to be more liberal than those appointed under conservative Republican Presidents (the majority of the justices).

TheDoctor · « **Reply #104 on:** September 26, 2007, 09:07:33 AM »

Quote from: Copernicus on September 25, 2007, 04:31:52 PM

Quote from: TheDoctor on September 25, 2007, 02:55:05 PM
All that part of the Code does is define the word militia as used in the 2nd amendment. Since it's still in the US Code, it's still valid.

It's valid for the US Code, not the word "militia" in the Constitution. All that section does is define "militia" within the scope of the code. This linguistic argument has no legs, except in the minds of pro-gunners grasping at straws. The better course of action is to insist that the absolute construction that forms the preamble to the amendment has no restrictive force on the main clause. The reason that that more powerful argument (IMHO) has failed is that legislative language, particularly constitutional language is considered "parsimonious". It is not usually thought to contain irrelevant wording, although many poorly written laws do. Design by committee can produce some pretty warped designs, and I think that the 2nd is a case in point.

As for the cases you referenced, those were the ones I had in mind (but didn't have specific references to) when I thought that your point might already have been raised in court cases. The more recent District of Columbia ruling was a very extreme break with the earlier (discredited) ruling, and it seems to have been designed specifically to hand the new Supreme Court an opportunity to reshape the gun-rights debate on terms that favor the gun industry. It may or may not work, but this is their best shot. The next justices appointed to the court are likely to be more liberal than those appointed under conservative Republican Presidents (the majority of the justices).

I dunno. My understanding about that section of the US Code is that it is specifically talking about the word militia in the 2nd Amendment.

As to that court case I referenced, I wasn't aware that it had been discredited.

Copernicus · « **Reply #105 on:** September 26, 2007, 02:48:41 PM »

Quote from: TheDoctor on September 26, 2007, 09:07:33 AM

I dunno. My understanding about that section of the US Code is that it is specifically talking about the word militia in the 2nd Amendment.

Where did you get that understanding from? It's possible that the framer of the language wanted to influence court interpretations of the 2nd, but I've never heard that case made except by the pro-gun lobby. After all, the idea of an "unorganized militia" seems to make no historical sense. At best, it seems to refer to the pool of people eligible for militia duty. The language of the 2nd, of course, makes no distinction at all between "organized" and "unorganized", so a court might well rule that the amendment was never intended to apply to anything but an organized milita. Historically, the debate was over the ability of states to train organized militias with weapons supplied by members of the militia itself.

Quote

As to that court case I referenced, I wasn't aware that it had been discredited.

See your Wikipedia article on the first ruling mentioned: "This decision conflicts with the later holding of the Ninth Circuit Court of Appeals in Silveira v. Lockyer". Note that both sides of the gun debate are active in trying to get Wikipedia to reflect their take on the subject, so be wary of what you read in there. It is more important to note that the vast majority of court cases have never upheld a 2nd amendment private right of citizens to bear arms. These are the only ones out of scores of such cases, and they are of relatively recent vintage--only a few years old.

ULTRON · « **Reply #106 on:** April 12, 2008, 06:51:38 PM »

This is why "No sex before marriage" worked best for me: http://www.foxnews.com/story/0,2933,336749,00.html

ULTRON

Author Topic: Interesting David MacDonald quote: (Read 10998 times)

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