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That is pretty much what the Heller decision was all about. The majority ruling was that Yes, the 2nd is a constitutional individual right protected by the federal government but the states have the right to impose reasonable restrictions. It's all good, the way it is. Massachusetts banned all assault weapons under Romney as Gov. New York and New Jersey have severe restrictions on owning large capacity magazines. So the ability to restrict is all there on a local level with existing laws. Going after the feds to tighten restrictions would be a Don Quixote thing for liberals, IMO.
I guess I'm the odd man out here. I don't believe that our current government is tyrannical or trying to create a socialist dictatorship, I think the Obama admin is doing the very best job possible under the circumstances and I'll most likely vote for him again. He could do a lot better with a little republican help. But..........and this is the rub, I will defend the second amendment and the Supreme Court's Heller decision ruling that it is an individual right. I have owned guns since 1970.
Yes, that is indeed the Heller decision. It is also the McDonald decision. I break those down in post #46 Heller and McDonald v Chicago essentially use the fairly recent idea of incorporation under the 14th amendment to expand the second amendment to cover the states and yes that is very much current law, but it is not the way things were historically.
I am actually quite surprised at the folks on here who think I am some how a rabid anti-gun marxist and would question whether the even critically read what I wrote, as well as their knowledge of historical jurisprudence. I simply tend to think McDonald v Chicago are interesting because they use liberal ideas about jurisprudence to expand rights that are not traditionally favored by liberals. Historically the Bill of rights was not intended to apply to the states. That is just a fact and it is clearly laid out in the 1833 Barron v. Baltimore case, the 1876 US v Cruikshank case and the 1873 slaughterhouse cases. With that said through the incorporation doctrine, which is a product of 20th century 14th amendment jurisprudence, more and more of the bill of rights protections are being expanded against the states. The use of the incorporation doctrine by the court is clear if you actually read McDonald v. Chicago. I tend to think it is a good thing, but a historical departure. If anything I am a critic of originalism, and not guns.
Last edited by Randomstudent; 07-22-2012 at 12:49 PM..
Yes, that is indeed the Heller decision. It is also the McDonald decision. I break those down in post #46 Heller and McDonald v Chicago essentially use the fairly recent idea of incorporation under the 14th amendment to expand the second amendment to cover the states and yes that is very much current law, but it is not the way things were historically.
I am actually quite surprised at the folks on here who think I am some how a rabid anti-gun marxist and would question whether the even critically read what I wrote, as well as their knowledge of historical jurisprudence. I simply tend to think McDonald v Chicago are interesting because they use liberal ideas about jurisprudence to expand rights that are not traditionally favored by liberals. Historically the Bill of rights was not intended to apply to the states. That is just a fact and it is clearly laid out in the 1833 Barron v. Baltimore case, the 1876 US v Cruikshank case and the 1873 slaughterhouse cases. With that said through the incorporation doctrine, which is a product of 20th century 14th amendment jurisprudence, more and more of the bill of rights protections are being expanded against the states. The use of the incorporation doctrine by the court is clear if you actually read McDonald v. Chicago. I tend to think it is a good thing, but a historical departure. If anything I am a critic of originalism, and not guns.
I know what you mean and I'm in total agreement. On the Federal level, Scotus affirmed the individual right to bear arms as constitutional. Federal law has the power of premption over state law. But........They also said that right was subject to reasonable restrictions which means that states and local municipalities may pass laws that restrict gun ownership as far as type and capacity as long as they are found reasonable. Frankly IMO, it was a brilliant decision by SCOTUS equvilant to splitting the baby in two.
In effect, this chops the legs out of the far right gun owner who claims that the 2nd means that everyone can own any weapon that the military has without restriction and hamstrings the left wing that wants to tweek gun control on a federal level. The state level is the venue for getting reasonable restrictions, not the Fed.
I also agree that liberals are completely out of touch concerning gun control and 2nd amendment rights. All their arguements are based on histrionics and emotional knee jerk solutions. They seem to prove time and time again that they know absolutely nothing about the issues in this case. whereas, republicans own guns and know the laws, supporting documentation and judicial rulings on gun rights. Frankly I've rarely seen an arguement between right and left on gun rights where liberals had reasoned, concise information to support their arguements.
The Second Amendment prohibition against "infringement" does not preclude "regulation." Whatever rights that are secured under the Second Amendment, whether individual or collective, are nevertheless subject to law; which is to say that they are not unlimited, much less absolute. As Justice Antonin Scalia stated for the majority in District of Columbia v. Heller:
‘Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. (Citation Omitted) For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. (Citation Omitted) Although we do not undertake an exhaustive historical analysis today of the full scope of theSecond Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (FN 26 Omitted)
‘We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." (Citations Omitted)’ District of Columbia v. Heller, 554 U.S. 570 (2008).
Good post Wendell, we're finally getting some common sense dialogue in this debate. Thanks for posting excerpts from the actual ruling. Can't rep you again.
The Declaration of Independence was not a foundational document; it was a declaration of our independence from the colonial rule by the English Monarchy, and an act of war. Thomas Jefferson’s ideas about natural rights were not adopted by the framers of our Constitution. (Jefferson was not a framer of the Constitution. He was serving as Ambassador to France at the time of the Constitutional Convention; and except for his correspondence with some of the delegates, what resulted was largely the work of James Madison. Even his draft Constitution and Declaration of Rights for Virginia was rejected in favor of the model of George Mason.) Jefferson wrote in the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the pursuit of Happiness. That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed . . . ." The framework of our government, however, did not incorporate the ideals expressed by Jefferson in the Declaration of Independence. The intoxicating ideas of Rousseau and Locke that Jefferson so admired, and that inspired our revolution (and that of France as well), gave way to a more sober expression of our rights and freedoms in the Constitution and Bill of Rights. The framers of our Constitution created a nation of laws and not men; which represents a compromise between the rights of individuals and the power of the state. All men are not created equal, they are equal under the law; and the rights to life, liberty and the pursuit of happiness are not unalienable, they are subject to law.
the declaration of independence absolutely IS a founding document. it tells the british king that we are an independent nation, and that british rule no longer matters in america.
Quote:
Originally Posted by gmagoo
Which countries do you speak of?
Quote:
Originally Posted by arctichomesteader
Nazi Germany, the USSR, Cambodia, China, fascist Italy, etc.
also vietnam, iraq, iran, syria, in fact most countries in the middle east and most african countries, thailand, burma, india, pakistan, cuba, argentina, any country where there is a dictator running the country. even the roman empire late in its tenure on earth, along with the ottoman empire.
anytime the citizens are disarmed, they become subjects or even slaves to the government. when teh citizenry is armed, they remain free citizens.
and while i agree that there needs to be some laws regarding firearms, they need to be responsible laws. there are more than 22,000 gun laws in this country, and the reality is that we just dont need that many laws, what we do need is better enforcement of those laws.
If you are going to intentionally change and misrepresent posts via editing quotations there is no point in having a discussion. Changing people's quotes shows a clear, obvious, and intentional disregard for honesty, and any desire to actually have a civil discussion. If you did such in an academic paper, or discussion you would likely be sanctioned or expelled and if you did such in a court of law, you would be held in contempt.
Sorry ....obviously, it was an accident, as none of the quoted material came from you, but from BruSan, quoted in the first segment. It was simply an error of copy and past ... apparently, when I thought I had copied and pasted Brusan's tag to the remaining portion of the text, I hadn't, and I pasted your tag to the rest of his text accidentally.
Why would you automatically assume that was intentional? All you have to do is look at it and realize that all of the text came from the first tag BruSan.
Before you attack a person's integrity ... use your damned head.
No, no, no, no , no ... this is mental gymnastics and contortions. The 2nd amendment is far from being a complex sentence, particularly when considered in proper context. First, a "dependent clause" is also referred to as a "subordinate clause", meaning that "A well regulated militia being necessary to the security of a free state ..." is subordinate to " .... the right of the people to keep and bear arms shaw not be infringed" which stands alone in delivering the operative foundation of the statement. The dependent or subordinate clause portion can therefore be considered a "preamble", that simply states a reason for the independent and operative portion of the statement.
As an example, the statement "Given my proclivity for suffering hangovers, I shall endeavor to ensure an ample supply of Alka Seltzer is always found in my medicine cabinet". Is this a complex statement too? No! It's very clear ..... and it could be less eloquently stated as "I drink often, and I always get terrible hangovers, so I need to keep lots of alka seltzer always on hand. The operative portion is the need to keep lots of alka seltzer on hand, and the reason for that is because I drink a lot. The underlying insinuation is that one drinks a lot of alcohol ... it isn't directly stated, but is definitely implied, since drinking milk isn't generally associated with causing hangovers.
Take this same approach to breaking down the rather simple statement made in the 2nd Amendment, and "the right of the people to keep and bear arms shall not be infringed" is clearly the operative language, with "A well regulated militia being necessary to the security of a free state..." is simply a stated reason.
Too much effort has been focused on distorting the reason, to the extent that it becomes the focus of argument, rather than the clear operative language stipulating the right to keep and bear arms without interference. This effort to distort has used every nuance of the preliminary or preamble portion of the statement including the words "well regulated" and "militia". Those that understand those terms in the proper context of their use at the time of the writing of the constitution are not the least bit confused ... it is only those who want to reinterpret the meaning by applying modern usage to the terms who are engaging in fraud, by creating a layer of complexity that really doesn't exist.
In proper context ... "well regulated" meant well equipped and prepared. This provides context to the operative portion "..... the right to keep and bear arms shall not be infringed". The unstated but implied portion suggests that it is not simply adequate to own or carry arms, but is necessary that the bearer be well equipped and well prepared, which would necessarily include keeping the most modern and effective firearms available. The "militia" in proper context meant the people ... the common citizen who constituted the militia at that time, which is further supported in the follow on language that specifies the right of "the people" .. and not the right of the "militia" or the right of the "state" to keep and bear arms. And who do you think the founders were referring to when they prohibited the "infringement" of that right? Who do you think the founders were concerned with as a potential threat to freedom ... or the "security of a free state"? I'll tell you ... the same source that the rest of the constitution focused on ... the federal government!
Who were they considering a threat to freedom of speech? Who did they consider a threat to unlawful searches and seizures? Who did they consider a threat to due process? Who did they fear would prohibit the right of assembly and of petitioning the government for the redress of grievances? Who did they suspect might impose cruel and unusual punishments?
Obviously the founders felt there existed a sufficient threat to freedom of the people which compelled them to guarantee the people all of the rights outlined in the constitution ... with the right under the law to keep (own) and bear (openly carry, display) arms being necessary to secure all of the rest of those rights, if the 1st amendment was ignored. Do you think the founders were referring to England? Russia? China? NO!! They deemed the Federal government as the primary threat.
Why do you think the founders had such an aversion to a Standing Army, and preferred the "militia" concept of defense? The obvious answer is that they did not trust the Federal Government, and deemed a standing army to be a threat to the liberty of the people. So this pretty clearly shows that the source threat to security the founders feared most came from a government gaining too much power over the people.
Typical liberal hyperbole. First, nuclear weapons are not firearms, and you do not have the means to create or purchase one. Biotoxins and chemical agents are not firearms either, and this is yet another example of the extremism of liberal non-thinking. Should the US Supreme Court declare it out of bounds and not relevant to the 2nd amendment to deny the average citizen the right to own nuclear weapons and weaponized biologicals and chemicals ... I'm all for that. If however one is so dense as to mistake these items for an AR 15 rifle ... then YOU should be restricted from having any weapons whatsoever ... but for the rest of us who do see the very clear difference ... leave our rifles alone! You can have our nuclear weapons though.
Baloney ... you've made your peace with the existence of our rights so long as you get to define the limits? Exactly what part of "shall not be infringed" is so complex that it causes you so much confusion?
Leaving aside your confusion about sentence structure, I’ll concentrate on a couple of other statements you’ve made:
Where, exactly, is the constitutional reference to “firearms”? The Constitution merely refers to a right to bear “arms”. All weapons are arms, i.e. – “nuclear arms”.
You’re correct about my personal inability to create nuclear, biological, or chemical weapons. However, none of this is beyond the abilities of those with the proper training. Creating certain types of chemical or biological weapons is, theoretically, fairly simple. I don’t know how to “create” an AK 47 or a Glock 36 either. The only reason I can purchase and own some assault weapons, is that it is legal for me to do so.
You’re the one who seems confused about “shall not be infringed”: you clearly state that you are “all for” the prohibition of nuclear, biological, and chemical weapons. Prohibiting such arms is, by definition, “infringing”… make up your mind!
Either way, you’ve earned your NRA Brownie Points…and the undying love of assault weapons manufacturers the world over.
The Second Amendment prohibition against "infringement" does not preclude "regulation." Whatever rights that are secured under the Second Amendment, whether individual or collective, are nevertheless subject to law; which is to say that they are not unlimited, much less absolute. As Justice Antonin Scalia stated for the majority in District of Columbia v. Heller:
‘Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. (Citation Omitted) For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. (Citation Omitted) Although we do not undertake an exhaustive historical analysis today of the full scope of theSecond Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (FN 26 Omitted)
‘We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." (Citations Omitted)’ District of Columbia v. Heller, 554 U.S. 570 (2008).
The AR-15 is one of the most popular rifles in America. It's in common use and protected, as the SCOTUS would say. They gave a very narrow area for regulation, namely: concealed carry can be regulated by states (but in their footnotes they pointed out open carry could not per some 19th century court decisions), certain areas (govt. buildings and schools) can be made off limits, felons and the mentally insane can be prevented from owning weapons, and perhaps background checks and restricting sales to adults can be allowed if they do not serve to restrict the right. What "in common use" amounts to is pretty broad. Virtually any arm commonly used today is protected. WMD's like nukes, chemical weapons, etc., are not.
Lower courts are already trashing many state regulations (recently MD's restrictive licensing law for concealed carry was tossed out). The ability to regulate the Second Amendment is the same as the ability to regulate the first: very limited.
I’m not a proponent of the Second Amendment. The Second Amendment does not grant any rights. I don’t want my rights "regulated" under the Second Amendment. Nor do I want the Supreme Court ruling in District of Columbia v. Heller (which is now applicable to the states under the Fourteenth Amendment by McDonald v. Chicago) that can only lead to lessening the rights of everyone. If what we want is less regulation, then the last thing we want to do is to federalize the issue, as experience has shown that Congress is obsessed with regulating everything. Here, the gun lobby (and the NRA) have misrepresented us, for in bootstaping gun ownership as an "individual" right under the Second Amendment they have made the rights of all gun owners less secure. Certainly, the legal landscape has changed. Now, gun ownership is a "fundamental right"; which raises the bar on judicial review to "strict scrutiny" - but the right of marriage is also considered fundamental, and there’s plenty of strict regulation of it under state law. (It’s hard to believe that there are those so stupid as to want to make a federal case of marriage; but here we are - bold as brass - wanting to do just that!) There’s an old saying: "Be wary of what you wish for." I fear we may get more than what we would have.
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