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Old 11-23-2013, 09:12 AM
 
9,473 posts, read 5,658,832 times
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Quote:
Originally Posted by Jeerleader View Post



No right is absolute in an ordered society.
Which is why I have no wish for an "ordered" society.
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Old 11-23-2013, 09:23 AM
 
5,092 posts, read 4,366,582 times
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Quote:
Originally Posted by pnwmdk View Post
I'm always correct and the law is always wrong.
Then there really isn't any point to a discussion, is there?
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Old 11-23-2013, 11:04 AM
 
Location: Upper Bucks County, PA.
322 posts, read 149,172 times
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Quote:
Originally Posted by djmilf View Post
The recognition that the 2nd Amendment was an individual right occurred 2008 in District of Columbia v. Heller.
Except that in 1876 the Court recognized the right as being possessed by two former slaves who were disarmed, kidnapped and lynched by the KKK in 1873. The right specified in that case's argument was that of "bearing arms for a lawful purpose" (that of self-defense). The Court explained that just like the right to assemble and the 1st Amendment, the right to arms was not a right created by the 2nd Amendment or granted by the Constitution and neither was it in any manner dependent upon the Constitution for its existence.

In 1886 the Court revisited and quoted its 1876 commentary but substituted that case specific "bearing arms for lawful purpose" descriptor for the actual language of the 2nd Amendment's restrictive clause:

......................
" . . . in the case of United States v. Cruikshank, 92 U. S. 542, 92 U. S. 553, in which THE CHIEF JUSTICE, in delivering the judgment of the Court, said that the right of the people to keep and bear arms 'is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . . '"
......................

So, the right of two former slaves in 1873 Louisiana to walk down the street, "bearing arms for lawful purpose" is the same right as the 2nd Amendment's "right of the people to keep and bear arms".

Obviously, neither "Levi Nelson and Alexander Tillman, citizens of the United States, of African descent and persons of color" were members of the Louisiana state militia and in fact, in April of 1873 there was no state militia in Louisiana, Congress ordered it disbanded.

If the 2nd Amendment only protected forms of a "collective right" or "state's right" or "militia right" then the Court would have dismissed Nelson's and Tillman's claims with minimal and very different comments and they would have applied the 2nd Amendment's protection to the state of Louisiana to repel Congressional authority to disband their militia.

Quote:
Originally Posted by djmilf View Post
In the 5 to 4 decision of the Supreme Court, the intent of the 1st United States Congress was discarded,
Your revisionist history is a fantasy.

Quote:
Originally Posted by djmilf View Post
with the Second Amendment’s drafting history being called "of dubious interpretive worth".
You do understand that the syllabus is not the opinion right?

Your quote does not appear in the majority opinion so you representing that quote as appearing in the "5 to 4 decision of the Supreme Court" is not legitimate.

The sentiment could be said to be evident in the majority opinion but you not quoting what was actually stated and omitting what the sentiment is actually referring to, is borderline dishonest:

.........................
"Justice Stevens relies on the drafting history of the Second Amendment —the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one. But even assuming that this legislative history is relevant, Justice Stevens flatly misreads the historical record."

DC v Heller
........................

Scalia isn't saying that an examination of the debate / drafting history is dubious; he's saying that reliance on that drafting history to formulate an opinion at odds with fundamental rights theory, is dubious. To argue that the framers only intended to secure a "militia right" means that the inherent / pre-existing right theory must be discarded.


Quote:
Originally Posted by djmilf View Post
In the majority opinion, Justice Scalia based the individual right to keep and bear arms upon his parsing of the wording of the 2nd Amendment but more significantly upon earlier English Common Law and later state constitutions.
Wrong. The majority re-re-re-affirmed the individual right model and invalidated the 20th Century "state's right" / "militia right" / "collective right" perversions because:

....................
" . . . it has always been widely understood that the Second Amendment , like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876) , “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”"

DC v Heller
...................

That the 2nd Amendment was understood to be recognizing and securing a PRE-EXISTING RIGHT is why Steven's massaging of the ratification debate record in his dissent, is considered dubious.

Quote:
Originally Posted by djmilf View Post
Basically, Justice Scalia discounted the original intent of the framers of the amendment and reached to other sources.
Wrong.

Quote:
Originally Posted by djmilf View Post
The individual right to keep and bear arms was incorporated in 2010 by the Supreme Court in MacDonald v Chicago. In two separate majority opinions,
There was only one majority opinion; Thomas wrote his own concurrence embracing the PoI argument. It is an amazing, informative read.

Quote:
Originally Posted by djmilf View Post
both Associate Justice Samuel Alito and Associate Justice Clarence Thomas interestingly cited two different clauses contained within the 14th Amendment. Justice Alito rested his opinion upon the Due Process Clause while Justice Thomas relied upon the Privileges or Immunities Clause.
That you find this puzzling or otherwise out-of-sync show you are unfamiliar with the case pleadings.

McDonald's argument was first premised on the Court revisiting Slaughterhouse and reinvigorating the 14th's privileges or immunities clause . . . and then a due process claim. That's why enlightened liberals supported McDonald and liberals and conservatives were excited when the Court granted cert to McDonald and not NRA v Chicago (a narrow due process case).

Quote:
Originally Posted by djmilf View Post
So yes, there's no 'except for' phrase in the 2nd Amendment, but originally the intent was to prevent the federal government and only the federal government from taking arms away from citizens. The original intent was that the right to keep and bear arms was to be regulated by the various state governments.
And then the rebel states enacted the Black Codes and used their state militias as the enforcers of those right's infringing laws.

Quote:
Originally Posted by djmilf View Post
"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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."
You do understand that the actual effect of Heller has been to cast doubt upon nearly all gun control laws? You really need to read that paragraph and include footnote 26: "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."

In fact, because of Heller, even felon dispossession laws have had doubt cast on them as only being "presumptively lawful", forcing the government to present evidence and argument that the law passes constitutional muster.

In 2011 the 3rd Circuit said:

..................
"As the Government concedes, Heller’s statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose Barton’s as-applied challenge. By describing the felon
disarmament ban as “presumptively” lawful, the Supreme Court implied that the presumption may be rebutted."

U.S. v. Barton, 633 F.3d 168 (3d Cir. 2011)
...................

Of course felon disablement of gun rights were/are sustained because they are founded on legitimate exercises of government authority which have been upheld many times using a wide range of legal reasoning under constitutional and common law.

Understand that because of Heller, any law that has been upheld using any form of the invalid triad of "collective right" / "state's right" / "militia right" reasoning is suspect and infirm.

See nearly all gun control enacted by California (Hickman v Block) and New Jersey (Burton v Sills) as examples of what will fall and the cases that have sustained those unconstitutional laws.
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Old 11-23-2013, 11:47 AM
 
5,092 posts, read 4,366,582 times
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Thanks for responding, Jeerleader, it give me the opportunity to expand my knowledge. You put a lot down, I'll try to digest it in smaller pieces.

Quote:
Originally Posted by Jeerleader View Post
Except that in 1876 the Court recognized the right as being possessed by two former slaves who were disarmed, kidnapped and lynched by the KKK in 1873. The right specified in that case's argument was that of "bearing arms for a lawful purpose" (that of self-defense). The Court explained that just like the right to assemble and the 1st Amendment, the right to arms was not a right created by the 2nd Amendment or granted by the Constitution and neither was it in any manner dependent upon the Constitution for its existence.
In United States v. Cruikshank, the actual opinion authored by Chief Justice Morrison Waite stated that:

"The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constituton of the United States."

It would appear in United States v. Cruikshank that Justice Waite, writing the majority opinion, agrees with my point, that the 2nd Amendment only restricted the federal government and nothing more.
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Old 11-23-2013, 12:02 PM
 
5,092 posts, read 4,366,582 times
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Quote:
Originally Posted by Jeerleader View Post
In 1886 the Court revisited and quoted its 1876 commentary but substituted that case specific "bearing arms for lawful purpose" descriptor for the actual language of the 2nd Amendment's restrictive clause:

......................
" . . . in the case of United States v. Cruikshank, 92 U. S. 542, 92 U. S. 553, in which THE CHIEF JUSTICE, in delivering the judgment of the Court, said that the right of the people to keep and bear arms 'is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. . . '"
......................
You don't cite the case, but I'm assuming that it is Presser v. State of Illinois.

In that case, the majority opinion held that:

"For, as was said by this court in U. S. v. Cruikshank, 92 U. S. 542, 551, 560, the government of the United States, although it is 'within the scope of its powers supreme and above the states,' 'can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction.' 'All that cannot be so granted or so secured are left to the exclusive protection of the state.'"

The opinion rendered in Presser v. State of Illinois doesn't change or overrule United States v. Cruikshank - it still recognizes that the 2nd Amendment merely limits the federal government.

Frankly, Jeerleader, your quote from what I must guess to be Pressler v. State of Illinois seems to simply be the same truncated quote that you took from United States v. Cruikshank. I'm not saying that the quote doesn't exist in the second case, but that it was merely cited verbatim from the preceding case and was not overturned.
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Old 11-23-2013, 12:17 PM
 
Location: Arizona
12,740 posts, read 7,366,749 times
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Let it be noted that the 2nd amendment also does not say, "Shall not be infringed, except on private property or when a business owner decides to remove the protections of the 2nd amendment from his premises for no other reason than he chooses to do so".
So let me ask you........Do you believe that the right of the gun, transcends the rights of the property or business owner?
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Old 11-23-2013, 12:21 PM
 
Location: Miami Metro
1,009 posts, read 1,232,394 times
Reputation: 881
It turns out the right wing is more bat$*&t that I thought.
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Old 11-23-2013, 12:29 PM
 
5,092 posts, read 4,366,582 times
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Quote:
Originally Posted by Jeerleader View Post
So, the right of two former slaves in 1873 Louisiana to walk down the street, "bearing arms for lawful purpose" is the same right as the 2nd Amendment's "right of the people to keep and bear arms.

Obviously, neither "Levi Nelson and Alexander Tillman, citizens of the United States, of African descent and persons of color" were members of the Louisiana state militia and in fact, in April of 1873 there was no state militia in Louisiana, Congress ordered it disbanded.
Yes, I actually agree that two former slaves in 1873 Louisiana had the right to walk down the street "bearing arms for lawful purpose". But that's not my point.

My point is that the 2nd Amendment originally did not confer upon all citizens an individual right to keep and bear arms, but rather that the original intent of the 2nd Amendment was to keep the federal government from confiscating arms in the hands of the people.

Even armed, both men were lynched by a mob of while men. The federal government, under the Enforcement Act of 1870, indicted, tried and convicted some of the members of the mob of several charges, among them violating the two former slaves rights to lawfully assemble, to vote, and to bear arms.

And in United States v. Cruishank, the Supreme Court in 1876 overturned the convictions of the white defendants. The Supreme Court, in its questionable ruling, made clear that the white defendants couldn't be charged with violating the rights of the two black victims because the victims didn't have a 2nd Amendment right to bear arms.

Quote:
If the 2nd Amendment only protected forms of a "collective right" or "state's right" or "militia right" then the Court would have dismissed Nelson's and Tillman's claims with minimal and very different comments and they would have applied the 2nd Amendment's protection to the state of Louisiana to repel Congressional authority to disband their militia.
Unless I am greatly mistaken, Levi Nelson and Alexander Tillman were the two black men lynched by the white mob and thus being dead couldn't take their claim to the Supreme Court. And the Supreme Court didn't dismiss their "claims" - the Court dismissed the charges against their murders, stating that the two dead men had no individual right to bear arms, or vote, or even lawfully assemble and therefore the white defendants couldn't be convicted of depriving the dead men of their rights.

Sad and sick, but true. And not something that I agree with.
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Old 11-23-2013, 12:42 PM
 
Location: Vallejo
13,458 posts, read 15,067,428 times
Reputation: 11932
Quote:
Originally Posted by Little-Acorn View Post
It was, exactly, about protecting the right of ordinary people to own and carry guns and other such weapons; and ALL governments not haing any authority to restrict or take that right away.


Other portions of what?
No, it wasn't.

Prior to the 1920s, amendments only applied to the federal government unless they specifically said otherwise (14th). Since then, most of have been incorporated. The 2nd amendment was only incorporated very recently, 2010 in McDonald v. Chicago.
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Old 11-23-2013, 01:02 PM
 
5,092 posts, read 4,366,582 times
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Quote:
Originally Posted by Jeerleader View Post
Your revisionist history is a fantasy.
I would disagree with your assertion.

Especially after I have gone through the first part of your missive.

Quote:
You do understand that the syllabus is not the opinion right?
I do now.

Quote:
Your quote does not appear in the majority opinion so you representing that quote as appearing in the "5 to 4 decision of the Supreme Court" is not legitimate.
I didn't say that the decision wasn't legitimate, I was pointing out that it was a close decision. That's all.

Quote:
The sentiment could be said to be evident in the majority opinion but you not quoting what was actually stated and omitting what the sentiment is actually referring to, is borderline dishonest:

.........................
"Justice Stevens relies on the drafting history of the Second Amendment —the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one. But even assuming that this legislative history is relevant, Justice Stevens flatly misreads the historical record."

DC v Heller
........................

Scalia isn't saying that an examination of the debate / drafting history is dubious; he's saying that reliance on that drafting history to formulate an opinion at odds with fundamental rights theory, is dubious. To argue that the framers only intended to secure a "militia right" means that the inherent / pre-existing right theory must be discarded.
Take a good look at what Justice Scalia is saying. He's saying that because the individual right to keep and bear arms pre-exists the 2nd Amendment then it's useless to consider the original intent of the members of the 1st Congress who drafted the 2nd Amendment. That's quite an amazing thing for a jurist who claims to be an originalist with regards to interpreting the Constitution.

In fact, Justice Scalia has stated that the originalist view regarding the Constitution is "It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution". Yet in this case, Justice Scalia holds that it's not what the words mean, it's what came before and after that count. Don't you find that curious? I do.

I'd also disagree with Justice Scalia's point that the 2nd Amendment is about a pre-existing individual right to keep and bear arms. The problem with that view is that prior to the Constitution such a right only existed in perhaps three places: the English Bill of Rights, the Constitution of Pennsylvania, and the Constitution of Vermont. In the English Bill of Rights, the right wasn't absolute and was further limited by one's social class. In the state constitutions of Pennsylvania and of Vermont, both refer to an individuals right to self-defense and to defense of the state, but do not confer an unlimited right. In all other states, the right to keep and bear arms was linked strictly to the need to maintain a militia for the defense of the state. So Justice Scalia is correct to say that the right existed, but it wasn't widely recognized. And it certainly wasn't the intent of the framers of the Amendment to guarantee an individual right.
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