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View Full Version : What if states opposed any ban on militia grounds?


GaryV
01-05-2013, 8:26 PM
The Texas AG has threatened to go to court (http://radio.woai.com/cc-common/mainheadlines3.html?feed=119078&article=10672432#ixzz2H4ZCW33L) to challenge any new federal gun laws. That got me to thinking, wouldn't a suit by a state AG, claiming that any such ban deprived states of their right to be able to raise a militia, be a slam dunk?

After all, the states do have an unquestioned constitutional right to raise a militia, and the Supreme Court, in Presser v. Illinois, already ruled that states couldn't ban guns entirely for essentially the same reason, that the federal government also had a right to call on that same reserve of armed citizens. And no matter how you interpret the Second Amendment, even by the most restrictive reading, it means that the states have an absolute right to have an armed citizenry if they want.

O'Brien
01-05-2013, 8:31 PM
Wait a politician that actually uses logic? The rest, especially those here in our beautiful state, will cry HERETIC!!!

ThePatriot
01-05-2013, 8:36 PM
That would be too good to be true - which is why it could only happen in Texas. The chilling thing about that is - what if a state like Kommiefornia decided it was OK to accept all anti guns laws on the basis that they do not want a militia. They would have problems of course but we would have to wage yet another court fight.

IVC
01-05-2013, 8:40 PM
We have a settled reading of the Second Amendment as applying to a fundamental individual human right to armed self defense unrelated to membership in any organized militia, per Heller.

Why pretend that the "collective interpretation" is still alive? It's gone and it's gone for good.

Moonshine
01-05-2013, 8:42 PM
California is close to maximum ban capacity. Illinois was at maximum capacity and lost a court case over it.

SilverTauron
01-05-2013, 8:45 PM
The Texas AG has threatened to go to court (http://radio.woai.com/cc-common/mainheadlines3.html?feed=119078&article=10672432#ixzz2H4ZCW33L) to challenge any new federal gun laws. That got me to thinking, wouldn't a suit by a state AG, claiming that any such ban deprived states of their right to be able to raise a militia, be a slam dunk?

After all, the states do have an unquestioned constitutional right to raise a militia, and the Supreme Court, in Presser v. Illinois, already ruled that states couldn't ban guns entirely for essentially the same reason, that the federal government also had a right to call on that same reserve of armed citizens. And no matter how you interpret the Second Amendment, even by the most restrictive reading, it means that the states have an absolute right to have an armed citizenry if they want.

A closed door meeting with the State Governor and the POTUS is the likely resolution to that crisis. Something along the lines of the Feds telling the State Governor : "no Federal $ to your state until you nip this 'gun rights suit' in the bud."

Moonshine
01-05-2013, 8:45 PM
Sorry to double post but this is what I've continually said, red states aren't just going to bend over for DiFi. Neither is Boehner. There may be some compromise but it will be so small that it will have no impact on us because no fed ban that's passable in the GOP house will come close to what we endure here.

SilverTauron
01-05-2013, 8:49 PM
The Texas AG has threatened to go to court (http://radio.woai.com/cc-common/mainheadlines3.html?feed=119078&article=10672432#ixzz2H4ZCW33L) to challenge any new federal gun laws. That got me to thinking, wouldn't a suit by a state AG, claiming that any such ban deprived states of their right to be able to raise a militia, be a slam dunk?

After all, the states do have an unquestioned constitutional right to raise a militia, and the Supreme Court, in Presser v. Illinois, already ruled that states couldn't ban guns entirely for essentially the same reason, that the federal government also had a right to call on that same reserve of armed citizens. And no matter how you interpret the Second Amendment, even by the most restrictive reading, it means that the states have an absolute right to have an armed citizenry if they want.


Almost forgot, there's actually two states I know of right now which in fact DO have local laws which deny Federal authority . Montana and Wyoming have "Firearm Freedom" laws which state any rifle made from common components which doesn't leave the state is NOT subject to regulation under the Federal Government's Commerce Clause, which in turn means the National Firearms Act does not apply.

Naturally the ATF issued a letter in dissent stating effectively that an FFL holder's license in MT and WY is issued on the good graces of the ATF, who would much rather they registered your SBRs and silencers like everyone else.No one's been busted yet, so no court case has germinated to settle the disparity.

Hogstir
01-05-2013, 9:01 PM
That would be too good to be true - which is why it could only happen in Texas. The chilling thing about that is - what if a state like Kommiefornia decided it was OK to accept all anti guns laws on the basis that they do not want a militia. They would have problems of course but we would have to wage yet another court fight.

I believe that the people decide if they want a militia not the state.

tcrpe
01-05-2013, 9:04 PM
I believe that the people decide if they want a militia not the state.

That's what militia is all about.

warbird
01-05-2013, 9:42 PM
the ATF is smart in that they are not going to take on any state that has it "ducks" in order but they will threaten any state where the state is dependent on federal money for survival like California. States like California will call the national guard their militia and fold to the feds.

Tincon
01-05-2013, 9:45 PM
the ATF is smart in that they are not going to take on any state that has it "ducks" in order but they will threaten any state where the state is dependent on federal money for survival like California. States like California will call the national guard their militia and fold to the feds.

I think you may be mistaken as to which states take in more federal money than they pay out with regard to CA vs MT/WY.

Intimid8tor
01-05-2013, 9:45 PM
Almost forgot, there's actually two states I know of right now which in fact DO have local laws which deny Federal authority . Montana and Wyoming have "Firearm Freedom" laws which state any rifle made from common components which doesn't leave the state is NOT subject to regulation under the Federal Government's Commerce Clause, which in turn means the National Firearms Act does not apply.

Naturally the ATF issued a letter in dissent stating effectively that an FFL holder's license in MT and WY is issued on the good graces of the ATF, who would much rather they registered your SBRs and silencers like everyone else.No one's been busted yet, so no court case has germinated to settle the disparity.

Idaho has it as well. When it started the process it was a better bill because part of the bill was the state paying for the defense of anyone complying with the bill but being prosecuted at the federal level. That provision was taken out.

I seem to remember seeing a letter and understanding to the effect that every last part, pin, spring, screw, etc had to be made in the state for it to apply.

If something passes this could be something that starts to get utilized in some states.

GaryV
01-05-2013, 10:02 PM
We have a settled reading of the Second Amendment as applying to a fundamental individual human right to armed self defense unrelated to membership in any organized militia, per Heller.

Why pretend that the "collective interpretation" is still alive? It's gone and it's gone for good.

It's not a collective interpretation, though such an argument would work even if the collective interpretation was used. That's the beauty of it. The 2nd Amendment is not limited to an individual right to self-defense. The militia clause means that the individual right gets special protection specifically because the states have a constitutional prerogative to raise a militia. This is not a collective interpretation of the right itself. Heller didn't limit the right to self-defense at all, it only clarified that self-defense was one protected justification for the right to keep and bear arms. The militia clause clearly means that there is at least one other, even more explicit justification, which is the need of a state to have an armed populace so that it can raise a militia in times of need. The self-defense and militia purposes are not mutually exclusive, they're complimentary.

The other good thing about this is that it doesn't matter if every other state says that they will never use it under any circumstances. The prerogative to raise a militia is a constitutional prerogative that cannot be given away except through constitutional amendment. A state can choose not to exercise the prerogative, but one legislature or administration cannot take the prerogative from future legislatures or administrations. So if even just one state sues on these grounds and wins (which would be all but guaranteed), the law is overturned as unconstitutional and it doesn't matter what the other states think.

IVC
01-05-2013, 11:10 PM
It's a good point and I see where you are going with it. We just have to make sure it's understood at the much deeper level that you suggest, rather than being interpreted as a superficial endorsement of the "collective right."

GaryV
01-05-2013, 11:27 PM
It's a good point and I see where you are going with it. We just have to make sure it's understood at the much deeper level that you suggest, rather than being interpreted as a superficial endorsement of the "collective right."

It shouldn't be too hard to do. After all, that is exactly what our side has always argued that the prefatory clause means. And if we use the logic in Presser, it's not even necessary to invoke the 2nd Amendment. According to the court in that case, the governmental prerogative to have ready access to the militia stands on its own even without the 2nd Amendment.