NFA '34 banned rifles with bores larger than .50". So a Boys .55 is banned, while you can still own .50 rifles. And smoothbore cannon are still legal, that how the Civil War reinactors get by . . .

Basically, up until 1934 you could own any military weapons you wanted and could afford.

From Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840):



(my emphysis)

Aymette was cited in US v Miller, so it isn't "just any" 19 century state case.

Further, Aymette doesn't interprete "bear" as "carrying" but as "using for a military purpose".

If you can find one, look in a 1700's dictionary for the word "Regulated"...

It has a totally different meaning than it does now. When the Framers wrote the Constitution, "Well Regulated" meant exactly what you have stated above. It meant REGULATION.. Exactly what the current military has...

Since a lot of the meaning of the second amendment was that the citizenry would have the power to overthrow the government if that was ever warranted, I would say that there should be no line, short of we're allowed to have whatever it takes to overthrow the government. If the government has nukes, then I reckon that the populace should as well. Why bother collecting guns when they'll just go ahead and nuke you if you shoot at them?

Someone got kind of embroiled in the rights/power distinction above.  I've addresed this earlier.  I'll just add this:  Some of your rights are undoubtedly "natural rights," which no govt. has the right to take away, e.g., the right of self-defense, or the right to the product of your labor.  

Others are civil rights which are unique to our historical circumstances, defined by our unique history, and secured by positive law, e.g., the right to trial by jury (surely that's not the only mode of trial compaitble with natural rights), or the right not to testify against yourself.  

Finally, there are political rights, such as the right to vote or run for president.  Even in a regime where these didn't exist--like a constitutional monarchy--you'd still have your natural rights and your civil rights.  Foreigners, for exmaple, have certain civil rights in the US.  As did women before they could vote.  

My only point with all this is that many rights like powers are defined by law, custom, and usage.  And like grants of powers to the government, they carry with them the right to unrestricted action within a certain sphere.  In no way do I think the govt. has any "background rights" or "general authority" apart from what the people grant to it and outside of the limits prescribed in the constitution.  So please check your ahistorical half-educated Tom Paine posturing at the door.  I know and love the Constitution as much as anyone here, better probably as my job often requires me to actually interpret the Constitution and other laws.    

I appreciated the link on the 19th Century case and the precise menaing of bear.  I don't think what I'm saying is so different than that case though, which is that the common military equipment is what the people have the right to.  But the common military equipment of the milita is not identical to that of a standing army.  I say that it's that of the light infantry, and not an across-the-board individual right to own anything you can get your hands on, such as heavy crew-served weapons.    

After all that case, I believe, was saying you did not have a constitutional right to carry a Bowie knives.  I know at common law there were certain laws restricting "cross bows" and other weapons "likely to cause an afray."  It's true that case didn't read "bear" the way I did, but it was not required to as it was dealing with a subclass of "bearable" arms, in that case the Bowie knife.  It was reading an implied limitation in the right as a whole.  In a different case addressing this question, I'd think "bear" would impact the ruling because yet another implied limitation rooted in the word is that it must be "bearable."  

Damn, Mac. I'd never seen it presented like that before. Nicely done! [beer]




May I suggest that the government is given the power to deny certain people certain rights when those people have violated a law imposed by that government. In effect, the people have stated that anyone who does a certain act can lose their rights under the law and after due process?

Sadly, it doesn't seem to work that way anymore... [:(]

Someone said before where does it say you can't have artillery in the constitution.  It doesn't.  And it doesn't say a lot of things about what you can and can't do.  

It says what the government CAN do (and also says it cannot do what it is not permitted to do).  And it says also, for emphasis, what the government CANNOT do in the course of performing its functions.  

The government doesn't say you, an individual, can't murder.  It doesn't say you can't rape.  But just b/c it doesn't say that, doesn't mean the govt. (specifically the state govertmnet) cannot make it illegal.

When the constitution says the feds can:  Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress"

the Second Amendment modifies this to make it obvious that this does not extend to the power to create a "select miltiia" or "disarm" the people.

The 9th Amendment interacts with our background rights under the common law and customs of the American people.  It does not mean that unless something's mentioned in the constitution you have the right to do it.  I don't have the right to polygamy.  I don't have the right to do drugs.  I don't have the right to pollute my neighbors land.  And yet none of these things are mentioned in the constitution.

Letting people have artillery may be a good idea--I doubt it--but don't fall into the liberal trap of reading each of your policy preferences into the constitution.  It's a limited government with an even more limited set of restrictions on those rights.  The 9th Amendmnet just reinforces that the feds are a government of enumerated powers and provides a rule of interpretation.  

The Constitutions says that unless it's specifically provided for herein, it's up to the individual state to decide.

Well Ben, wouldn't this power  Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Permit NFA style regulations of items that are

1) injurious to the common defense and general welfare of the US, such as WMD, terrorist training camps, drugs, etc. and that are

2) not specifically protected under the 2nd Amendment?

[rolleyes] What a blowhard!


You said THIS:
You're wrong Constable. Admit it. You doublespoke yourself into a selfcontradictory corner and now you're trying to backtrack and pretend you never prattled these goofball statements.

If "right" and "power" are interchangeable, then it must be SOME coincidence that EVERY time the FFs used the word "power" in the Constitution they were describing the authority of Gov't and EVERY time they used the word "right" they were describing the authority of the people. [brick]




I see.

Uh-huh.

No right to artillery because we have no right to rape either.

Gotcha.

So according to you, just as long as the Gov't ALLOWS people to have a single type of gun (say a single musket or flintlock) then it is well within its 'right' to ban all other forms of arms and still be operating under the Constitution.

As I said in the passage that you seem to think is a "gotcha" pasasage, if the government has the power to do something [i]under the constitution[/i] then it has the right to do it.  That's totally consistent with everything you're saying.  This is all semantics.  (To me a right is a claim against a power, though.  So in that sense it's a subclass of power. But inasmucha s federal power encroach on state's rights, it may be useful to speak of federal rights against the states or even individual people.  Once again, to belabor the obvious, IN THOSE MATTERS WHERE THE FEDERAL GOVERNMENT IS AUTHORIZED TO DO SOMETHING BY THE CONSTITUTION).

As for the rape, polygamy thing, my only point, and you seem to agree, is that not every good thing is guaranteed by the constitution or rises to the level of a constitutional right.  The RKBA is defined by the text of the constitution and that text, as I've tried to demonstrate above, has an implicit limit to individual weapons of the militar equipment.  Whether flintlock or M-16, both fall under that definition, so no you're deduction about the flintlock does not follow from anything I've said, if you'll read above my points about (1) bearable arms and (2) parity with the standing army.  

One last thing, I don't disrespect you or anyone else here.  I lost my cool with that Tom Paine quote, and hope we can continue this civilly.  Let's remember we're all on the same side here.  

I believe that the second gives us the right to "keep and Bear" common Infantry weapons.

Armor should be reserved for the National Guard

However, Light antiarmor missles and rockets, MANPADS units, and crew served weapons, Mines, grenades, etc. were intended to be kept and borne.

The meaning of [i]bear arms[/i] in Aymette is differente than yours, since you take it to mean "carrying arms" while Aymette says it means "using arms for a military purpose". Operating a tank or flying an F-15 is "bearing arms" according to the Aymette definition, but not according to yours.

I'm not saying you are wrong and Aymette is right; I happen to have issues with Aymette (its interpretation leaves out personal defense as a valid 2nd claim), but Aymette [i]was[/i] cited in US v Miller, making it part of the Miller decision: Aymette essentially represents the latest direct Supreme Court interpretation of the 2nd, at least as a gun rights issue!



Aymette basically said that we have a right to military equipment "of a type in common usage at the time", but not to weapons that are only useful in personal brawls.

Aymette defines "bearing arms" as using them for a military purpose (for the common good). Carrying arms, per Aymette, isn't "bearing arms". If "bearing arms" means using them for a military purpose, does it matter that it takes horses to drag those arms (or whatever)?

Publius,

This kind of long excerpt is taken from:

http://www.chrononhotonthologos.com/lawnotes/pvc.htm  (sorry, I don't know how to make the link hot, and by all means feel free to puruse the rest of the site, it's cool)

and explains to me why I should be able to own whatever I damn well please, being a member of the peerage and all...

PREAMBLE

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

STRUCTURE OF PREAMBLE

TRUSTOR: We the People [trustors]

VENUE: of the United States

PURPOSE: in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty

BENEFICIARY: to ourselves and our Posterity,

ENABLING ACTION 1: do ordain [declare the law]

ENABLING ACTION 2: and establish [bring into existence]

WHAT: this Constitution [articles of incorporation for trust]

TRUSTEE: for the United States of America. [trustee]

ANALYSIS OF PREAMBLE

The Preamble defines the context in which the remainder of the Constitution must be interpreted. Most of it is self explanatory. Here's an explanation that points to popular sovereignty:

After the Declaration of Independence, but before the ordainment and establishment of the Constitution, the people of the United States pretty much handled their own affairs using the common law. They were not subject to any higher authority other than the authority of the common law as administered by the people themselves (self governance). Although the states did exist, they only existed by the authority of the people. Every man was a king, and every woman a queen--and none had any subjects. Upon declaring our independence, we all became sovereigns and members of the peerage (nobility).

"The people of this State, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the King by his prerogative. Through the medium of their Legislature they may exercise all the powers which previous to the Revolution could have been exercised either by the King alone, or by him in conjunction with his Parliament; subject only to those restrictions which have been imposed by the Constitution of this State or of the U.S."

Preambles aid in interpretation, but they do not define the metes and bounds of the constitutional powers or rights.  The common welfare, for example, is hopelessly broad. I don't think it's very helpful to look to the preamble to do very much in the way of constitutional interpretation, other than to get a "feel" of the purposes of the document.  (Don't forget, it was made after the anarchy of the Shay's Rebellion).  

It's also false to say that the states didn't do much during the Articles of Confederation.  They had broad general authority, while it is also true that most applied common law courts.

America'different than England in that we have a written constitution not one set up by precedent and custom.  And states have the background sovereignty of independent nations, save what they grant to the federal government.  

Thus, while most states adopted the common law early in their history, most states also adjust the common law on a yearly basis through statutes.  That's the democratic element of our government; the people through their reprsentatives can revise the balance between one antoher and between themselves and their government.  Thus, you can sue for wrongful death if your employer is negligent, or if you are injured by a defective product (like an exploding boiler), while you could not at traditional common law (because of the doctrine of privity of contract).  

Publius,

That excerpt was taken from a page defining the difference between being a "citizen" and being one of the people.  As it, IMHO, correctly points out the Constitution and even the government itself is subserviant to me, one of the people.  I will quote further from the same article:

ONE OF THE PEOPLE OR ONE OF THE CITIZENS?

The first issue to be resolved in any court proceeding is that of jurisdiction. Does the one entity have jurisdiction over the other entity? One should never go into court without a clear understanding as to whether he is there as a citizen, or there as one of the people.
If you claim you are a citizen of the United States, then it is strongly implied (though not necessarily true) that you are subject to the laws of the United States. On the other hand, if you are one of the People, then it is legally implied that you are a legal king, with a sovereignty superior to that of the United States, and subject only to the common law of the other kings (your peers). In short: the People are superior to the government, the government is superior to the citizens. That is the hierarchy.


PEOPLE ---> GOVERNMENT ---> CITIZENS
As a king you "are entitled to all the rights which formerly belonged to the King by his prerogative." You can do what you want to do when you want to do it. You have your own property and your own courts. The is no limit as to what you may do other than the natural limits of the universe, and the sovereignty of a fellow sovereign. You should treat the other sovereign in accordance with the Golden Rule, and at the very least must never harm him. Your sovereignty stops where the other sovereignty begins. You are one of the owners of the American government, and it is their promise that they will support your sovereignty (i.e. they have promised to support the Constitution and protect it from all enemies). You have no allegiance to anyone. The government, your only [public] servant, has an allegiance to you.

As a citizen, you are only entitled to whatever your sovereign grants to you. You have no rights. If you wish to do something that would be otherwise illegal, you must apply for a license giving you special permission. If there is no license available, and if there is no specific permission granted in the statutes, then you must apply for special permission or a waiver in order to do it. Your only allegiance is to your sovereign (the government), and that allegiance is mandated by your sovereign's law (the government, though not absolutely sovereign, is sovereign relative to you if you claim to be a citizen of the sovereign).

Here is a typical example:

As one of the People you have a right to travel, unrestricted, upon the public highways. You have right to carry guests with you in your automobile. You have a right to own a gun and that right shall not be impaired by your servant, the government. You have a right to a grand jury indictment and a trial by jury, that is a trial directly by the people, not the government.

As one of the citizens, you may not travel by automobile unless you are either a licensed motor vehicle driver, or you are a passenger with permission to be on board. Gun ownership is a privilege subject to definition and regulation. You do not have a right to a jury trial in all cases, and no right to grand jury indictment--a trial is a trial by the government, not the people.

DDubb what's the point of all that.  Even if your tin-foil hat distinction between people and citizens were meaningful, it's not, since no one, including the govt. with significant force at its disposal, agrees with your idiosyncratic interpretation, what'st he point?????

Anyone born or naturalized in a US state or US territory is a US Citizen.  We're citizens of the US, we're part of the people, and we're citizens of our original states; that's  a status you have whether you like it or not.  Ct. jurisdiction has nothing to do with citizenship but residency and you can have several residencies and/or consent to jurisdiciton.

Citizens have duties and rights.  The common law was ALWAYS a govt. institution, run by judges appointed by the King, Governors of the several states, US District courts sitting in diversity, or elected judges.  You can't pick which court is which.  They're there and they have force to back them up.

The constitution is not an abstract play thing.  It's law.  Law is predefined rules with force to back them up.  Don't pay your taxes or try to declare your tinfoil hat court after not paying your taxes and you'll find yourself in jail.  

I answered this before, but after some though I think I have a clearer answer:

Aymette was arrested for violating a law restricting the carry of certain arms. He contested the law as unconstitutional under the TN state Bill of Rights. He basically argued that a right to "bear arms" meant he had a right to carry arms--the literal interpretation, and the one you seem to be arguing. After all, if "bear arms" restricts 2nd Amendment protections to arms that can be carried, "bear arms" is being applied in a literal sense of meaning "carry arms".

The TN Supreme Court's response, basically, was that "bear arms" is a "term of art" that means employ weapons in war--it does not literaly mean "carry arms".

If you are correct in your interpretation, then the TN state SC was wrong in the Aymette case.

Note that the Aymette case concearned the TN state BoRs (the "right to bear arms" portion of which does not closely resemble the Fed 2nd). At that time, the Fed BoRs was not viewed as restricting the states. However, since the US SC in Miller used Aymette in its interpretation of the 2nd, Aymette is still relevent.

Here is the full case:
[url]http://www.healylaw.com/cases/aymette.htm[/url]

The American Revolution began when the Brits went to Concord to sieze arms, including cannon, and arrest American "radicals".

The Texas War of Independence began when the Mexican army tried to sieze the Golidad cannon.

During the Revolution, the Americans relied on warships that were owned by civilians--priviteers.

It was common for militia to be either infantry or calvery. A lot depended on the conditions and culture.

Publius,

Actually, the term "citizen" doesn't show up until after the Civil War, in the 14th amendment.



Because the govt. has "significant force at it's disposal" I am subserviant to it?



The Constitution is a limitation on government which, the last time I checked, is "supposed" to be subserviant to...you guessed it...the People.  Which includes me.

I'll "tinfoil" on if you like:

As discussed above, the People are sovereign. The People are not subject to the jurisdiction of the federal government.

Amendment XIV inverts the relationship. One of the qualifications to be a citizen of the United States is that one must be "subject to the jurisdiction thereof." It's important to understand that this is a vectored qualification. In other words, it is possible to be a citizen of the United States without being born or naturalized in the United States or subject to the jurisdiction thereof. But, if you are born or naturalized, and if you are subject to the jurisdiction, then you automatically qualify as a citizen of the United States.

From the point of view of the federal enforcers, the qualifications are not vectored. They reverse-interpret Amendment XIV as saying that if you are a citizen of the United States, then that automatically means you are totally subject to its jurisdiction. This opinion is not shared by the judicial branch. See 14 C.J.S. 426, 430:


The particular meaning of the word "citizen" is frequently dependent on the context in which it is found[25], and the word must always be taken in the sense which best harmonizes with the subject matter in which it is used[26].
"One may be considered a citizen for some purposes and not a citizen for other purposes, as, for instance, for commercial purposes, and not for political purposes[27]. So, a person may be a citizen in the sense that as such he is entitled to the protection of his life, liberty, and property, even though he is not vested with the suffrage or other political rights[28].

"[25] Cal.--Prowd v. Gore, 2 Dist. 207 P. 490. 57 C.A. 458.
[26] Cal.--Prowd v. Gore. 2 Dist. 207 P. 490. 57 C.A. 458.
     La.--Lepenser v Griffin, 83 So. 839, 146 La. 584
     N.Y.--Union Hotel Co. v. Hersee, 79 N.Y. 454
[27] U.S.--The Friendschaft, N.C., 16 U.S. 14, 3 Wheat. 14, 4 L.Ed. 322
     --Murray v. The Charming Betsy, 6 U.S. 64, 2 Cranch 64, 2 L.Ed. 208
     Md.--Risewick v. Davis, 19 Md. 82
     Mass.--Judd v. Lawrence, 1 Cush 531
     R.I.--Greeough v. Tiverton Police Com'rs, 74 A 785, 30 R.I. 212
[28] Mass.--Dillaway v. Burton, 153 N.E. 13, 256 Mass. 568"


In any case, if you fail to object to the government's view of citizenship, then you will most certainly be subjected to the laws of the government. That means no rights, only privileges. To see a list of privileges granted or denied to the citizens (there is no list for the People's natural rights because the People automatically have all rights), see http://www.chrononhotonthologos.com/lawnotes/pvcright.htm



I am endowed with "Natural" rights, which NO ONE has the right to abrogate.  I don't care how much force they employ, or how many of them there are.  That includes the right to own private property, even private property that scares you, like big spooky guns.  And I get that right as long as I respect the RIGHTS of my fellow sovereigns (PEOPLE).

*Adjusts Tin-Foil hat for comfort and more efficient mental ray blocking*

Don S, that's all true.  And they didn't have state income taxes either.  And they owned slaves.

The question is what do the words mean.  I based my argument on the words.  I think the conditions may matter, but the RKBA also has origins in the English Bill of Rights, which I believe as interpreted included militia weapons.

Miller said so too.  (I'll try to find quote).

As for whether RKBA applies to states there's two interesting cases

1) One, I think a GA case called Nash in the early 19th Century, said it was a broad grant and restricted states too.

2) Two, the US Supreme Ct. in a case supporting the rights of the states to outlaw "private armies" in Presser v. Illinois said in dicta that stastes could not disarm their people b/c they were also members of the federal miltia, and thus would be encroaching on the federal government's interest (I won't say rights : )) in their ability to be ready for service.  

Well ddubb can you own anything?  Why does the law get to say how and when you can alienate certain property.  

Can you sell yourself into slavery?

And as for "citizen" being a late invention, did you notice this part of the Constitution

Art1, Sec 2 Cl. 2: No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.


One more linguistic point, the people is not the same as a person.  Individual people did not have to accept the constitution.  Unanimity wasn't required.  And the states ratified it in state-by-state conventions, not as one homogenous hole.  What does that say to you?  Governments have always had power over "individual people."  

As for the CJS (which is just a collection of old cases, some overruled), I agree with that point.  Look at my discussion of natural, civil, and political rights above.

actuly the Destructive device additon to the NFA was adding by the Gun Control Act of 1968. which is why pre 68 one could get a 20mm's and such direct to your door.