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Discussion Starter · #1 ·
Presser v Illinois (1886)
I wanted to see what others thought about what I think is an interesting past Supreme Court Case. Basically Herman Presser led a citizen militia with no gevernment conections for a parade through Chicago; about 400 men under arms. He was found guilty and fined $10. (Would be an interesting thing to do/see in Albany these days, especially if the fine where that steep)

Case went all the way to Supreme Court who upheld that states could place restrictions on, and prohibit unauthorized military organizations. It seems the language from that case is what is used in the current NY Military Law Sect 240 (1) "No body of men... shall associate themselves together as a military company or other unit..." (A misdememanor) It goes on to prohibit parading in public with firearms but that is an OR statement so organizing without parading would appear prohibited.

A few different things to bounce off folks:
What exactly does it mean to organize as a "military company or other unit"?? Prohibitions on uniforms is entirely different section of the state Military law, and that only prohibits using ranks and insignia significantly close to those used by the state or federal military, or against uniforms of foreign militaries; and it would certainly be possible to be a military organization without uniforms as many partisans have shown in many conflicts. This part of the law doesn't care about purpose- part (6) of this section discusses 'paramilitary' organizations and trianing which are defined as having unlawful purposes (a felony)- so training or planning for lawful defense of the nation, or lawful self defense is not a felony paramilitary organization.

All kinds of gun clubs and other organizations (even businesses) engage in trianing on use of weapons. Their are a variety of organizations that practice in wargaming and planning of tactics and operational level campaigns (table top, computer, on paper). Training together in full tactical gear for paintball or mil-sim is openly done in a variety of places. The government full works together with organizations that plan and teach radio communications- a key military skill. Civic leaders even fully support the work of organizations that openly wear uniforms, use rank structures and explicitly train young men and women in the full suite of land navigation, signaling, first aid, survival, wilderness crafts, leadership, and even include firearms instruction in their programs. (The Scouting movement was started by Lord Baden-Powel ater WWI because he found Army recruits were too city-fied and wanted to create young men better suited for military service)

So what is the essential elements that woudl make an organization be or not be a "military company" prohibited under Sec 240?

Back to Presser- the Supreme Court upheld the prohibition and rejected his 2nd Amendment claim because the court found the 2A as a restriction on the Federal Govt and not on the states. Since the law was a state action.

SupremeCourt said:
We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.
What is the implicatications of the McDonald decision now incorporating the 2nd Amendment on the states?? Could this mean that the state prohibition on organizing as a military company is unconstitutional? I doubt we need to parade a battalion down 5th avenue and get arrested for it to bring a case. Perhaps filing a non-profit incorporation for a militia and being rejected by the state, or injoined by the court, would be enough to have standing? (Of course, in todays judicial cliimate parade under arms could be an interesting 1st amendment chalenge, although the restriction probably meets time/place/maner criteria).

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But I also noted somthing else in Presser.

SupremeCourt said:
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.
So, the court seems to clearly point out that the states cannot go so far in restricting the 2A as to create a situation where the nation no longer has a viable militia to call up. At the time, it was saying the state could stop people from forming military units because that prohibition did not prevent individuals from owning weapons- and armed, unorganized, individiduals was all that the nation needed to be able to meet the purpose of the 2A- quickly calling up a militia organized by the government to meet the need sof national defense. That court- EVEN THOUGH IT THOUGHT THE 2A DID NOT APPLY TO THE STATES- still thought it restrained the states form going too far and unarming the people to the point the people would be worthless as a militia.

This may be something to think about when attacking the NY Safe Act and other various bans. The supreme court has clearly stated that part of the 2A is to ensure the nation has the armed individuals for use as a militia force. And the supreme court has held that the militia is meant to bring their own personnal arms. And teh constitution clearly states that the militia is to be used to "repel Invasions".

The very idea that we can leave our citizens, and thereby our militia, with only the limited armament technology of 50 years ago, or only semi-autos without detachable magazines etc- against any invading army which invariably would be armed with fully automatic, or magazine fed semi-autos- flies in the face of the Presser decision. How could the United States ever hope to raise an adequate militia to face a modern invader with citizens living under the SAFE Act?? The only answer is that the government would need to provide them with arms, which is to say, "raise an army" <- THIS answer to the question of how the US would use citizens to face an enemy demonstrates that the militia is evicerated and rendered completely un-usable by the NY Safe Act. Which goes completely against the Supreme Court.

(Note that the fully automatic machine gun had already existed at the time of this decision and been used in the civil war and numerous indian wars)
 

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thank you for hitting on a crucial point that I have tried to get across here many, many times ...

quote:
Back to Presser- the Supreme Court upheld the prohibition and rejected his 2nd Amendment claim because the court found the 2A as a restriction on the Federal Govt and not on the states. Since the law was a state action.
 

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Discussion Starter · #3 ·
thank you for hitting on a crucial point that I have tried to get across here many, many times ...

quote:
Back to Presser- the Supreme Court upheld the prohibition and rejected his 2nd Amendment claim because the court found the 2A as a restriction on the Federal Govt and not on the states. Since the law was a state action.
Im sorry. Maybe i am misunderstanding. Are you trying to say that the point you have been trying to get across is that the 2nd amendment does NOT apply to the states?

You do realize you highlighted what the court said in 1886, which was overturned by the court in McDonald, so that, NOW, in 2014, the supreme court has made explicetly clear that the 2nd Amemdmemt DOES apply to the states amd that the 1886 court was wrong on that point.

I must be misunderstanding you, because of course you realize that fact since Heller/McDonald has been repeatedly discussed on this board, and the rest of my post goes directly to heart of the matter that McDonald incorporated the 2nd Amendment as applying to the states due to the 14th amendmemt.
 

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not exactly ..
my point has been--

a STATE may restrict that " Right" in many ways, unless it becomes an egregious violation of Federal Law
 

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Discussion Starter · #5 ·
Riiiggghhhttt.... they can restrict it, they just cannot infringe it. That still has nothing to do with what you highlighted since the same can be said of the federal govt (restrict but not infringe)

Like you said -unless it violates feferal law- well, that federal law would be the US Constitution. Specifically the 14th amendment which makes the states follow the 2nd amendment and all the parts that lay out that the judiciary gets to interpret what the law means and not the legislature or executive or the states. And the judiciary now tells us that the states need to follow the 2nd amendment the same as the federal govt does.
 

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To the OP, a friend and I tossed around the idea of an organization that trained in everything except weapons. All weapons training would be up to the individual. We figure that minus the weapons/tactics training, we'd be just another Scout-like group organized for preparedness, survival and mutual aid in times of need. Any individual skillsets in weapons or combat would be an added bonus completely unrelated to the organization, with no internal literature or discussions on the matter during official functions.
 

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Discussion Starter · #9 ·
Norm DeGuerre- I enjoy this kind of debate, and all of this is meant as good natured and friendly. We've kind of drifted away from the original post. If you want to open a new thread, we can continue to debate whether or not the Constitution is law.

AirborneGuy-
I think anyone would agree that something with weapons is a key characteristic of a military unit. But plenty of different organizations use and train with weapons, so weapons are a necesary but not sufficient condition of a 'military company'. But just about everything the Scout movement does is part of basic soldiering, so all of that is also insuficient. What do they lack that makes all of those insuficient? VFW and other vet groups even call there chief executive 'commander' and the treasurer is 'quartermaster' etc. We think of military rank as highly structured with multiple nco levels but not even 200 years ago a company of men where all peers (privates) and elected only a small number of officers- a ratio and number no different than any non profit with a president, vice, secretary, treasurer, and a few trustees.

Presser was only parading down the street in assembled formation, not even training. Is it just that structure combined with carrying arms publically? Is intent part of it- Scouting's intent and purpose is development of character so thats enough to avoid the law? Sounds like this may be constitutionally vague since we dont know exactly what is prohibited. Or is this like porn- i know it when i see it?
 

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The 14th amendment is pretty clear:
Passed by Congress June 13, 1866. Ratified July 9, 1868.
Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Privileges and Immunities Clause of Article IV, Section 2 of the Constitution states that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." This clause protects fundamental rights of individual citizens and restrains state efforts to discriminate against out-of-state citizens. However, the Privileges and Immunities Clause extends not to all commercial activity, but only to fundamental rights.
Privileges and Immunities Clause | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute

All laws concerning the restriction of Arms (knives, swords, guns, tasers and so on) not only violate the 2nd Amendment but also the 14th.

 

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To the OP, a friend and I tossed around the idea of an organization that trained in everything except weapons. All weapons training would be up to the individual. We figure that minus the weapons/tactics training, we'd be just another Scout-like group organized for preparedness, survival and mutual aid in times of need. Any individual skillsets in weapons or combat would be an added bonus completely unrelated to the organization, with no internal literature or discussions on the matter during official functions.
Just get everyone airsoft guns, form a couple teams and train for *very* realistic and long term airsoft skirmishes :)
 

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Just get everyone airsoft guns, form a couple teams and train for *very* realistic and long term airsoft skirmishes :)
Do they make air soft in 5.56
 

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here is how it works ..

a License is a commercial, regulated activity
You, voluntarily applied for such License
and of course, the State may regulate commerce
Well since we are talking about individual rights, your argument is misplaced.
 
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