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Sun Jan 8 18:18:51 GMT 2006

On Sun, 8 Jan 2006 docrickfry at aol.com wrote:

> Well..seems I remember you posting that NO case has been directly on
> point--changing with the tide now that someone is calling your bluff?
> Miller and Lewis still stand as the law of the land... ERF

Your fabled "bluff" does not exist - you are experiencing a case of
selective recall: the exact words I used (and I have verified this by
going through every prior posting on this thread) was in fact contained in
the very email in which you asserted "calling my bluff" and my "changing
with the tide":

	> > The big problem is that the SCOTUS has consistently refused to
	> > hear a case that was directly on point.

It's in your own email, quoted below.  Clearly I am discussing miller in
this post.  Clearly I have stated that Miller was on-point, and clearly I
was pointing out that the errant case has never been rectified by a
SCOTUS review.  Your reply explicitly attempts to warp that into a
picture that did not exist, for the purpose of discrediting the argument
through an attack upon the opponent (ad hominem).

I believe you owe me an apology Dr.

All the best,

//Alif

-----Original Message----- > From: J.A. Terranson <measl at mfn.org>
> To: Trauma &amp; Critical Care mailing list <trauma-list at trauma.org>
> Sent: Sat, 7 Jan 2006 22:43:00 -0600 (CST)
> Subject: Re: The NRA and Injury Prevention
>
>
>
> On Sat, 7 Jan 2006 DocRickFry at aol.com wrote:
>
> > In a message dated 1/7/2006 3:00:05 P.M. Eastern Standard Time,
> > measl at mfn.org writes:
> >
> > This is  in fact *not true*.  if you will read this document you so
> > fervently  disagree with you will find that the exact opposite is true.
> > There has only  been a single case directly on-point, and the defendants
> > won.  When  the government appealed and they failed to show up they/weAll
> > "lost" by  default.  This default judgement has been perpetuated through a
> > series  of not quite on point cases - a very small number at that.  The  big
> > problem is that the SCOTUS has consistently refused to hear a case  that
> > was directly on point.
> >
> > In the absence of valid precedent, which  is the case we are faced with
> > today, an advisory opinion carries a great  deal of legal weight:despite
> > your assertion and prayers for the opposite  outcome.
> >
> >
> >
> >
> > Interesting once again you do not mention the decisions--you must be  getting
> > this drivel right off the NRA website, otherwise please tell us what
> > decisions you refer to
>
> For the record Dr. Fry, "gun nuts" are not likely to support the NRA, as
> the NRA has consistently "gone along" with every major gun-control
> initiative.  The "2ad Lobby" (aka "RKBA Lobby") is centered today around
> the "Gun Owners Of America" ( http://gunowners.org ).
>
> > --only 3 Supreme Court decisions have been "directly on  point"
> > in this matter regarding the interpretation of the meaning of the 2nd
> > amendment--In 1876, Miller in 1939, and Lewis in 1980. all decided clearly in
> FAVOR
> > of restrictions on firearm use and propagation.
>
> Without debating the nature of the "right to bear arms", it must be
> recognized that the vast majority of States recognize this "right"
> explicitly (see below).  Of the states not explicitly regcognizing this
> "right" there are states such as New York which forego a Constitutional
> "right" but establish a State Code, and there are States such as  Iowa
> which implicitly recognize this "right".  No matter how you read these
> individual state Constitutions, the plain language is clear that almost
> all states recognize that their populations have an explicit right to
> defend both themselves and their respective States, and that this right is
> excersized through the "bearing of arms".
>
> Almost all states recognize an implicit "Militia", although comparatively
> few bother to define it.  nevertheless, those that took the time to define
> "militia" almost universally defined the term as referring to "all
> ablebodied [sic]" persons, usually male, that were of majority age within
> the state (again, see below).  Clearly, those states which did not
> explicitly define the term "militia" had to have had some common concept
> of what the term referred to - this however brings us to murky waters
> where only opinions can tread.
>
> As to the judicial history of the 2ad, only the "MILLER" case has been
> directly on point.
>
> http://www.law.ucla.edu/volokh/2amteach/sources.htm#TOC11 touches on this
> case:
>
> ----------
> "A.              United States v. Miller, 307 U.S. 174 (1939)
>               [The only extensive modern discussion of the Amendment]
>               An indictment in the District Court Western District
> Arkansas, charged that Jack Miller and Frank Layton "did unlawfully,
> knowingly, wilfully, and feloniously transport in interstate commerce from
> the town of Claremore in the State of Oklahoma to the town of Siloam
> Springs in the State of Arkansas a certain firearm, to-wit, a double
> barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in
> length [contrary to the National Firearms Act] . . . ."
>               A duly interposed demurrer alleged:  The National Firearms
> Act is not a revenue measure but an attempt to usurp police power reserved
> to the States, and is therefore unconstitutional.  Also, it offends the
> inhibition of the Second Amendment to the Constitution -- "A well
> regulated Militia, being necessary to the security of a free State, the
> right of people to keep and bear Arms, shall not be infringed."  The
> District Court held that section eleven of the Act violates the Second
> Amendment.  It accordingly sustained the demurrer and quashed the
> indictment.""
> ----------
> The Government appealed from Miller, and since the defendants failed to
> participate (no doubt believing that a plainly unconstitutional statute
> cannot be appealed), the government "won" by default judgement.
> This travesty has been the shaky foundation of every subsequent "anti 2ad"
> statute.  SCOTUS has never directly addressed MILLER.
>
> Since then, the 2ad has been the subject of tremendous attention, although
> at the federal level it has drawn virtually no judicial notice.  Clearly,
> the 2ad is an "embarrassment" that should have drawn considerable judicial
> attention, given the lively debate surrounding it.  That this attention
> has never been received should itself be suspicious.
>
> Modern legal thinking on the 2ad is as diverse as the opinions here, and
> clearly nobody is going to convince anyone else as to the truth or falsity
> of their (clearly "religious") positions.  Attempts to do so are
> pointless.
>
>
> //Alif
>
>
>
>
>
>
> REVIEW OF ALL STATES "RIGHT TO BEAR" AND "MILITIA" CLAUSES:
>
> Alabama:  "Militia" defined by legislature (unusual), in Section 271.
> Does have an explicit right to bear clause: "Section26. That every citizen
> has a right to bear arms in defense of himself and the state."
>
> Alaska: Adopted federal 2ad as their own "A well-regulated militia being
> necessary to the security of a free state, the right of the people to keep
> and bear arms shall not be infringed.", but then modified it in 1994 with
> a second sentence "The individual right to keep and bear arms shall not be
> denied or infringed by the State or a political subdivision of the State."
>
> Arizona: Recognizes private "right to bear" only: "Article 2, Section 26.
> The right of the individual citizen to bear arms in defense of himself or
> the state shall not be impaired, but nothing in this section shall be
> construed as authorizing individuals or corporations to organize,
> maintain, or employ an armed body of men."   "Militia is all able bodied
> persons: "Article 16, Section 1. The militia of the state of Arizona shall
> consist of all capable citizens of the state between the ages of eighteen
> and forty-five years, and of those between said ages who shall have
> declared their intention to become citizens of the United States, residing
> therein, subject to such exemptions as now exist, or as may hereafter be
> created, by the laws of the United States or of this state."
>
> Arkansas: Constitution website broken.  Unable to find verified copy.
>
> California: Term 'Militia" is used but never defined.  No "right to bear"
> clause of any kind.
>
> Colorado: Militia defined at Article XVII, Section 1 "The militia of the
> state shall consist of all ablebodied male residents of the state between
> the ages of eighteen and fortyfive years; except, such persons as may be
> exempted by the laws of the United States, or of the state."   Article 2,
> Section 13: "The right of no person to keep and bear arms in defense of
> his home, person and property, or in aid of the civil power when thereto
> legally summoned, shall be called in question; but nothing herein
> contained shall be construed to justify the practice of carrying concealed
> weapons."
>
> Connecticut, Article 1, Section 15: "Every citizen has a right to bear
> arms in defense of himself and the state."  "Militia" used in various
> places but never defined.
>
> Delaware Article 1 section 20: "A person has the right to keep and bear
> arms for the defense of self, family, home and State, and for hunting and
> recreational use. (4-16-87)" "Militia" used in various places but never
> defined.
>
> Florida Article 1 Section 8: "The right of the people to keep and bear
> arms in defense of themselves and of  the lawful authority  of the state
> shall not be infringed, except that the manner of bearing arms may be
> regulated by law."  "Militia" used in various places but never defined.
>
> Georgia Article I, Paragraph VIII "The right of the people to keep and
> bear arms shall not be infringed, but the General Assembly shall have the
> power to prescribe the manner in which arms may be borne."  "Militia" used
> in various places but never defined.
>
> Hawaii, Section 15 "Sec. 15. A well regulated militia being necessary to
> the security of a free state, the right of the people to keep and bear
> arms shall not be infringed."  "Militia" used in various places but never
> defined.
>
>
> Idaho Article 1, Sec. 11.  The people shall have the right to bear  arms
> for their security and defense;  but the legislature shall regulate the
> exercise of this right by law.  "Militia" used in various places but never
> defined.
>
> Illinois Article 1, Sec. 22.  Subject  only to  the police power,  the
> right of  the individual citizen to keep and bear arms shall not be
> infringed.  "Militia" used in various places but never defined.
>
> Indiana Article 1, Sec. 32. "The people shall have a right to bear arms,
> for the defense of themselves and the State."  The term "militia" is not
> used in the Indiana constitution.
>
> Iowa.  Iowa is interesting in that it implicitly acknowledges the right to
> "duel", at Article 1 Section 5, however, there is no explicit "right to
> bear" clause of any kind.  Additionally, the term "Militia" is used in
> various places but never defined.
>
> Kansas, Section 4 "The people have the right to bear arms for their
> defense and security; but standing armies, in time of peace, are dangerous
> to liberty, and shall not be tolerated, and the military
> shall be in strict subordination to the civil power."  The term "militia"
> does not appear in the Kansas Constitution.
>
> Kentucky, Section 1, clause 7: "The right to bear  arms in defense of
> themselves and  of the State, subject to the power of the General Assembly
> to enact laws to prevent persons from carrying concealed weapons."  The
> term "militia" is used in various places but never defined.
>
> Louisiana, Article 1, Section 11.: "The right of each citizen to keep and
> bear arms shall not be abridged, but this provision  shall not prevent the
> passage of laws to prohibit the carrying of weapons concealed on the
> person."  The term "militia" does not appear in the Louisiana
> Constitution.
>
> Maine, Article 1, Section 16.: "Every citizen has a right to keep and bear
> arms for the common defence; and this right shall never be questioned."
> "Militia" used in various places but never defined.
>
> Maryland, does not have an explicit "right to bear" clause.  "Militia" is
> defined only implicitly at Article 28:  "That a well regulated militia is
> the proper and natural defence of a free Government."
>
> Massachusettes, Art. XVII: "The people have a right to keep and to bear
> arms for the common defence. And as, in time of peace, armies are
> dangerous to liberty, they ought not to be maintained without the consent
> of the legislature; and the military power shall always be held in an
> exact subordination to the civil authority and be governed by it."
> "Militia" used in various places but never defined.
>
> Michigan, Article 1, Sec. 6: "Every person has a  right to keep and bear
> arms for the defense of himself and the state."  The term "militia" does
> not appear in the Michigan Constitution.
>
> Minnesota has neither a "right to bear" clause nor a definition of
> "militia".
>
> Missisippi, Article 1, Sec. 12: "The right of every citizen to keep and
> bear arms in  defense of his  home, person,  or property,  or in  aid of
> the civil power when thereto legally summoned, shall not be called  in
> question, but the legislature may regulate or forbid  carrying concealed
> weapons."  The term "militia" does not appear in the Missisippi
> Constitution.
>
> Missouri Article 1, Section 23: "That the  right  of every citizen  to
> keep and  bear arms in defense of his home,  person and property, or  when
> lawfully summoned in aid of the civil power, shall not be questioned; but
> this shall not justify the wearing of concealed weapons."   "Militia" used
> in various places but never defined.
>
> Montana Article 1, Section 12: "The right of any  person to keep or bear
> arms in defense of his own home, person, and  property, or in aid of the
> civil power when thereto legally summoned, shall not be called  in
> question,  but  nothing  herein  contained  shall be held to permit the
> carrying of concealed weapons."   The term "militia" does not appear in
> the Montana Constitution.
>
> Nebraska has neither a "right to bear" clause nor a definition of the term
> "militia", although "militia" is used at various places.
>
> Nevada has neither a "right to bear" clause nor a definition of the term
> "militia", although "militia" is used at various places.
>
> New Hampshire does not address who may bear arms, but rather, who may not
> be "compelled" to do so.  Article 13: "No person, who is conscientiously
> scrupulous about the lawfulness of bearing arms, shall be compelled
> thereto. (note - as amended 1964)"  "Militia" is implicitly defined at
> Article 24: "A well regulated militia is the proper, natural, and sure
> defense, of a state."
>
> New Jersey has no explicit "right to bear" clause.  The term "Militia"
> used in various places but never defined.
>
> New Mexico, at Article II, Section 6: "No law shall abridge the right of
> the citizen to keep and bear arms for security  and defense, for lawful
> hunting and recreational use and for other lawful purposes, but  nothing
> herein shall  be held  to permit  the carrying  of concealed weapons."
> The term "Militia" used in various places but never defined.
>
> New York has neither a "right to bear" clause nor a definition of the term
> "militia", although "militia" is used at various places.
>
> North Carolina, Article 1, Section 30: "A well regulated militia being
> necessary to the security of a free state, the right of the people to keep
> and bear arms shall not be infringed; and, as standing armies in time of
> peace are dangerous to liberty, they shall not be maintained, and the
> military shall be kept under strict subordination to, and governed by, the
> civil power.  Nothing herein shall justify the practice of carrying
> concealed weapons, or prevent the General Assembly from enacting statues
> against that practice."
>
> North Dakota has neither a "right to bear" clause nor a definition of the
> term "militia", although "militia" is used at various places.
>
> Ohio Article 1, Section 4: "The people have the right to bear arms for
> their defence and security;"  The term "Militia" used but never defined.
>
> Oklahoma has neither a "right to bear" clause nor a definition of the term
> "militia".
>
> Oregon, Article 1, Section 27: "The people shall have the right to bear
> arms for the defence (sic) of themselves, and  the State, but the
> military shall be kept in strict subordination to the civil power [.]"
> The term "militia" does not appear in the Oregon Constitution.
>
> Pennsylvania Article 1, Section 21: "The right of the citizens to bear
> arms in defense of themselves and the State shall not be questioned."
> The term "Militia" is used but never defined.
>
> Rhode Island, Article 1, Section 22: "The right of the people to keep and
> bear arms shall not be infringed."  The term "Militia" is used but never
> defined.
>
> South Carolina, Article 1, Section 20: "A well regulated militia being
> necessary to the security of a free state, the right of the people to keep
> and bear arms shall not be infringed. As, in times of peace, armies are
> dangerous to liberty, they shall not be maintained without the consent of
> the General Assembly. The military power of the State shall always be held
> in subordination to the civil authority and be governed by it.  No soldier
> shall in time of peace be quartered in any house without the consent of
> the owner nor in time of war but in a manner prescribed by law."
>
> South Dakota, Article 1, Section 20: "A well regulated militia being
> necessary to the security of a free state, the right of the people to keep
> and bear arms shall not be infringed. As, in times of peace, armies are
> dangerous to liberty, they shall not be maintained without the consent of
> the General Assembly. The military power of the State shall always be held
> in subordination to the civil authority and be governed by it.  No soldier
> shall in time of peace be quartered in any house without the consent of
> the owner nor in time of war but in a manner prescribed by law."  Section
> 24: "The right of citizens to bear arms in defense of themselves and the
> state shall not be denied.
>
> Tennessee, Article 1 Section 26: "That the citizens of this State have a
> right to keep and to bear arms for the common defense; but the legislature
> shall have power, by law, to regulate the wearing of arms with a view to
> prevent crime." and at Section 28: "That no citizen of this State shall be
> compelled to bear arms, provided he will pay an equivalent, to be
> ascertained by law."   "Militia" is implicitly defined at Section 24:
> "That the sure and certain defense of a free people, is a well regulated
> militia; and, as standing armies in  time of peace are dangerous to
> freedom, they ought to be avoided  as far as the circumstances and safety
> of the community will admit; and that in all cases the military shall be
> kept in strict subordination to the civil authority."
>
> Texas, Article 1, Section 23: "Every citizen shall have the right to keep
> and bear arms in the lawful defense of himself or the State; but the
> Legislature shall have power: by law, to regulate the wearing of arms,
> with a view to prevent crime."   The term "Militia" used but never
> defined.
>
> Utah at Article 1, Section 6: "The people have the right to bear arms  for
> their security and defense, but the Legislature may regulate the  exercise
> of this right by law."  The term "militia" does not appear in the Utah
> Constitution.
>
> Vermont, Article 16: "That the people have a right to bear arms for the
> defence of themselves and the State - and as standing armies in time of
> peace are dangerous to liberty, they ought not to be kept up; and that the
> military should be kept under strict  subordination to and governed by the
> civil power."   The term "militia" is used but never defined.
>
> Virginia Article 1, Section 13: "That a well regulated militia, composed
> of the body of the people, trained to arms, is the proper, natural, and
> safe defense of a free state, therefore, the right of the people to keep
> and bear arms shall not be infringed; that standing armies, in time of
> peace, should be avoided as dangerous to liberty; and that in all cases
> the military should be under strict subordination to, and governed by, the
> civil power.
>
> West Virginia has no explicit "right to bear" clause.  The term "Militia"
> does not appear in the West Virginia Constitution.
>
> Washington State at Article 1, Section 24:  "The right of the individual
> citizen to bear arms in defense of himself, or the state, shall not be
> impaired, but nothing in this section shall be construed as authorizing
> individuals or corporations to organize, maintain or employ an armed body
> of men."  The term "Militia" does not appear in the Washington
> Constitution.
>
> Wisconsin has no explicit "right to bear" clause.  The term "Militia" does
> not appear in the Wisconson Constitution.
>
> Wyoming Article 1, Section 24:  "The right of citizens to bear arms in
> defense of themselves and the state shall not be denied."  The term
> "militia" is used but never defined.
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-- 
Yours,

J.A. Terranson
sysadmin at mfn.org
0xBD4A95BF

'The right of self defence is the first law of nature: in most governments
it has been the study of rulers to confine this right within the narrowest
limits possible. Wherever standing armies are kept up, and the right of
the people to keep and bear arms is, under any colour or pretext
whatsoever, prohibited, liberty, if not already annihilated, is on the
brink of destruction.'

St. George Tucker

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