Query In re: "The New Yorker" article and 2nd Amendment

Discussion in 'The Constitutional & RKBA Forum' started by user, Sep 20, 2009.

  1. user

    user Active Member

    Oct 16, 2007
    Northern piedmont of Va. and Middle of Nowhere, We
    Here's a question I received by email, and my response (email & website addresses removed to protect the senders):

    > Dan,
    > Can I have your insight on this subject?
    > Thanking you in advance - --
    > Sincerely, Berny Hostrop
    > GBH Gunsmithing (Since 1950)
    > NRA Master Training Counselor
    > 540-349-2584
    > --Original Message--
    > Hi All-
    > I would be grateful for fact-checking and insights regarding the
    > recent "New Yorker" article "Annals of Law: Bench Press" Sept. 21,
    > 2009.
    > On page 48, author states:
    > 1) "For many decades, into the nineteen-eighties, it was widely agreed
    > among judges and scholars that the right to bear arms belonged only to
    > militias, and thus the Second Amendment imposed no limits on the
    > ability of states and localities to enact gun-control laws. Warren
    > E. Burger, the former Chief justice (and no liberal), said that any
    > other view of the law was a ' fraud ' , and Robert Bork, the
    > conservative hero, said much the same thing. But Meese and his allies
    > in the National Rifle Association were indefatigable in pushing an
    > opposing interpretation, and their position become widely adopted,
    > first in the Republican Party, and then among many Democrats. Finally,
    > in 2008, the Supreme Court, in an opinion written by Antonin Scalia
    > (who was appointed while Meese was attorney general), struck down a
    > District of Columbia gun-control law as a violation of the Second
    > Amendment. A fringe position - a ' fraud ' - two decades earlier had
    > become the law of the land."
    > Is this an accurate portrayal of the statements and judicial views of
    > Burger and Bork? Was this an ultra-minority fringe position 25 years
    > ago? (I am older now, and my memory is less reliable than
    > previously. Help and guidance would be appreciated.).
    > Thank you,
    > "Doc" Harter

    That was, in fact, the view that jurists increasingly took between the early 1930's and the present. I think that it is because of the "standing professional army" problem that they thought that, as well as a growing view of the U.S. as a political entity hierarchically superior to the states, the power of which could be used to further the ends of various groups.

    There's no question that the "founding fathers" were highly suspicious of a continuous professional military presence. The U.S. was intended to have no land-based military except when authorized by Congress (a Navy was seen as a continuing necessity, which is why the Department of the Navy and the Department of War were historically two separate units).

    Thus, the military power of the United States lay in the state militias. And the militia of each state consisted of the able-bodied men of that state. The Virginia Code today provides for a militia, as defined in the attached code sections, that provides for just that.

    So it is my opinion that when that language was written in the Constitution of Virginia, and subsequently copied into the U.S. Constitution as the Second Amendment, the word, "militia", referred to every able bodied man capable of mobilizing for defense against invasion. I suggest that now the term must be taken to include able-bodied women as well.

    However, after the First World War, the Army was not dismantled, though it was drastically diminished, and people got used to the idea of a professional standing army. At the same time, various groups had the idea of taking over control of the United States politically and using its increasingly ascendent power over the states and the people, in order to assert their own agenda. Each such group wanted the U.S. to be in control, and would require a standing army to cement their own control, particularly the Socialists and Communists, who intended to take possession of private assets and whose experience in other countries suggested that military force would be required to do so. I suggest, though I haven't seen this in print anywhere, that every group that wants control of the country has been, and continues to be, aggressively recruiting people with sympathetic values to become judges, politicians, media spokesmen, and school teachers. And one thing all such groups share is the desire to control the military power of the United States, and to disarm the population generally. Hence the distinction that has developed between the original meaning of the term, "militia", and the modern concept of military power, and the restriction of the Second Amendment to the professional standing army.

    § 44-1. Composition of militia.

    The militia of the Commonwealth of Virginia shall consist of all able-bodied citizens of this Commonwealth and all other able-bodied persons resident in this Commonwealth who have declared their intention to become citizens of the United States, who are at least sixteen years of age and, except as hereinafter provided, not more than fifty-five years of age. The militia shall be divided into four classes, the National Guard, which includes the Army National Guard and the Air National Guard, the Virginia State Defense Force, the naval militia, and the unorganized militia.

    § 44-4. Composition of unorganized militia.

    The unorganized militia shall consist of all able-bodied persons as set out in § 44-1, except such as may be included in §§ 44-2, 44-3, and 44-54.6, and except such as may be exempted as hereinafter provided.
  2. SaddleSarge

    SaddleSarge New Member

    Aug 24, 2008
    As we all know, the Supreme Court did not want to opine on anything having to do with the Second Amendment for many, many years. Much due to the interpretation as well as the want to leave it to the states rights, however as noted in original query, Heller most certainly opened the window wherein the court had no choice.

    But as mentioned, one must now go to the "Heller Decision" in which Justice Scalia delivered the opinion of the court. Although the decision went to typical liberal/truthful lines of those seated (vote of 5/4 split), the decision (although not outstandingly great) did set the tone for hopeful success in the future. But some of the greatness in the opinions expressed by the court was the diligence taken to express not only the written language, but that of the meaning of the day just as how the 1st amendment is relevant to the electronic age, as Justice Scalia mentions.

    In the decision, Justice Scalia opines for the court several pertinent facts as to the defining of the "militia" and that of the "people." Here is an excerpt of that opinion:
    To put this in context, let's go back to the actual article.
    The oft times (intentional?) overlook is the strategically placed commas which separate the subject matter.

    It is easy to become focused on the words such as "militia," but without the context of the punctuation, the intent can be easily combined which Scalia addresses quite eloquently. I think your response User, was well done and I offer these thoughts as an addendum to your thoughts.

    For a complete read on the Heller Decision, visit: The Heller Decision

    (Edit): Additional Highlight of the Heller Case:
    Last edited: Sep 20, 2009

  3. Terry_P

    Terry_P New Member

    Mar 23, 2008
    My answer would be if it were true so what? Burger never took a 2nd Amendment case and Bork wasn't confirmed to the Supreme Court. The Roberts court did take a case and decided so it is an individual right.

    As an interesting side note that I wasn't aware of Robert Bork was the acting Attorney General under Nixon that fired Archibald Cox and the act was referred to as the Saturday night massacre.
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