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Old 11-23-2013, 01:29 PM
 
5,092 posts, read 4,364,365 times
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Quote:
Originally Posted by Jeerleader View Post
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:
Re-re-re-affirmed? Double-secret probation anyone?

And "perversions"? You know, we're talking about guns, not sex, right?

And that "perversion" about "state's rights", wasn't that during the 19th Century as well? I believe some called it the Civil War?

Quote:
....................
" . . . 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's an exact passage right out of Associate Justice Scalia's District of Columbia v Heller majority opinion, right down to the truncated quote from U.S. v Cruikshank. Apparently the good Associate Justice is also fond of truncating a quote to alter the meaning.

Quote:
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.
Yet 12 of the 13 States (or 14, including Vermont) didn't recognize an individual right to keep and bear arms, at least not in the Bill of Rights in their own constitutions.

And Scalia seems to require that if the right existed, then it must naturally be an individual right, and not a collective one.

Now if this individual right that Scalia has found is the English Right to Keep and Bear Arms, then the commoners (like you and me) are limited to knives under a certain blade length - only the lords had the right to swords. (Hey, that rhymes).

And if it's the Pennsylvanian/Vermonter flavor of Individual Right to Keep and Bear Arms, then I'll see you on the village green next fortnight during the mustering and drilling of the local militia.
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Old 11-23-2013, 01:39 PM
 
Location: Upper Bucks County, PA.
322 posts, read 149,105 times
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Quote:
Originally Posted by djmilf View Post
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.
First off, what does "and nothing more" mean? I have no disagreement that the 2nd Amendment's restrictions originally only applied to the federal government; that's not what I was responding to. I was responding to your statement that the first time the Court recognized an individual right was 2008.

Cruikshank (and Presser) certainly offers illumination as to the nature of rights enumerated in the Bill of Rights, who the protected entities are and the scope of federal protection under those provisions (and the venue of the federal courts to remedy injuries to those rights).

Quote:
Originally Posted by djmilf View Post
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.
Didn't say it overruled it, just that the individual right of bearing arms for lawful purpose at issue in Cruikshank (possessed by two former slaves) is the same right as "the right of the people to keep and bear arms" enumerated and secured by the 2nd Amendment according to Presser.

Quote:
Originally Posted by djmilf View Post
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.
Again, not overturned. The Court re-affirmed the principle of a pre-existing right; a right not granted, given, created or established by the Constitution and not in any manner dependent upon the Constitution for its existence using broader, unambiguous language. So, almost verbatim, except for the Court inserting "the right of the people to keep and bear arms", substituting the earlier case specific, "right of bearing arms for lawful purpose".

The Court has been boringly consistent (for going on 140 years) in re-re-re-affirming that principle which extinguishes any argument that the 2nd only protects the rights of those people organized and acting only within an entity entirely dependent upon the Constitution to exist (e.g., the "militia right").

The right to arms can not be pre-existing and only claimable and enforceable by people acting within a body created by the Constitution.
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Old 11-23-2013, 01:48 PM
 
5,092 posts, read 4,364,365 times
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Quote:
Originally Posted by Jeerleader View Post
Wrong.
I obviously disagree with this assessment.

Quote:
There was only one majority opinion; Thomas wrote his own concurrence embracing the PoI argument. It is an amazing, informative read.
Point taken, one majority opinion, one concurring opinion (did I get that right?).

And no, I didn't read Associate Justice Clarence Thomas's concurrent opinion. But apparently, you have. Perhaps you could elaborate on what makes it so amazing and informative?

Quote:
That you find this puzzling or otherwise out-of-sync show you are unfamiliar with the case pleadings.
Actually, I used the word 'interesting', not 'puzzling' or 'out-of-sync'. And I selected the word 'interesting' for a reason that apparently escapes you. I'd go into further detail, but it would be going off on a tangent.

Quote:
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).
I have to admit, I'm not quite as 'involved' in the minutia of the case as you obviously are.

Quote:
And then the rebel states enacted the Black Codes and used their state militias as the enforcers of those right's infringing laws.
But you've drifted off of my point, that the individual right to keep and bear arms wasn't recognized at the federal level until 2008. And that this individual right became incorporated at the state and local level in 2010.

My entire premise is this - if one seeks an individual right to keep and bear arms, then one doesn't find it in the 2nd Amendment until after the 14th Amendment allowed Incorporation of the Bill of Rights.
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Old 11-23-2013, 01:52 PM
 
5,092 posts, read 4,364,365 times
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Quote:
Originally Posted by Jeerleader View Post
First off, what does "and nothing more" mean? I have no disagreement that the 2nd Amendment's restrictions originally only applied to the federal government; that's not what I was responding to. I was responding to your statement that the first time the Court recognized an individual right was 2008.
'And nothing more' - it means what it means; there is nothing else to be added to it.

But it appears that we both agree on the original intent of the 2nd Amendment - that it was only limitation upon the federal government and not upon the state or local governments.
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Old 11-23-2013, 01:54 PM
 
Location: USA
4,680 posts, read 4,017,683 times
Reputation: 2767
Little-Acorn, I believe that each citizen should have his or her own personal nucleur bomb that can kill at least 500,000 on a whim. I want to sell these bombs and give them away to particular political groups dedicated to the destruction of the United States. What does the Constitution have to say about my plans?
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Old 11-23-2013, 01:54 PM
 
5,092 posts, read 4,364,365 times
Reputation: 4337
Quote:
Originally Posted by Jeerleader View Post
Cruikshank (and Presser) certainly offers illumination as to the nature of rights enumerated in the Bill of Rights, who the protected entities are and the scope of federal protection under those provisions (and the venue of the federal courts to remedy injuries to those rights).
But Cruikshank doesn't recognize an individual right to keep and bear arms.

And Presser simply affirms Cruikshank.
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Old 11-23-2013, 02:05 PM
 
5,092 posts, read 4,364,365 times
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Quote:
Originally Posted by Jeerleader View Post
The right to arms can not be pre-existing and only claimable and enforceable by people acting within a body created by the Constitution.
I'm not saying that the individual right never existed until 2008.

What I'm saying is that the individual right was recognized at the federal level in 2008.

And in fact I wish that Justice Scalia would have ignored the 2nd Amendment and relied solely upon English Common Law and upon various state constitutions in recognizing that right. But I concede that for a constitutional originalist, it was probably too much to expect Scalia to recognize a right that wasn't originally in the Constitution; in my opinion, he had to bend the amendment in order to fit in the definition and thus ease his conscience.

The individual right certainly existed, and there were those jurisdictions at the state level that recognized it as far back as 1776 (Constitution of Pennsylvania) and 1777 (Constitution of Vermont).

But having a right exist, having that right federally recognized, and having that federally recognized right incorporated are three different things.
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Old 11-23-2013, 02:14 PM
 
Location: Columbia, SC
16,431 posts, read 9,286,406 times
Reputation: 6173
Quote:
Originally Posted by pnwmdk View Post
Could you provide some evidence for this tripe?

Construct for me, other than just saying "I believe this". Anyone can say they believe anything, including that the moon is made of cheese, however, unless they can explain, in a rational way, why, it is meaningless - and using meaningless whims to govern a country is not what we'd call "wise".
I really don't have the time to teach a course in Constitutional Law right now, especially if you have no background whatsoever in the way our government and legislative processes work. I would suggest that you begin a regimen of self-study beginning with the Federalist Papers.

IIRC, the SCOTUS ruling on individuals was in 2008. Good luck with your search.
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Old 11-23-2013, 02:22 PM
 
Location: San Francisco, CA
12,852 posts, read 10,212,423 times
Reputation: 11489
Quote:
Originally Posted by Little-Acorn View Post
Why was the 2nd is written without qualifications? It says "Since X is so, the people's RKBA cannot be taken away or restricted." It does NOT say "except by due process of law". And it does NOT say "unless the person is a felon or other type of extreme criminal", and etc.
Just because it doesn't explicitly say that doesn't mean it shouldn't be the case. Stop thinking of one static version of a document written hundreds of years ago as being holy scripture; it's not. It can and has been changes; it can and has been subject to interpretation over the subsequent decades of societal advancement.

Quote:
Originally Posted by Little-Acorn View Post
Yes, the right guaranteed by the 2nd amendment, IS absolute... because of the many horrifying examples that happen when it isn't. And imperfect as we are, the closer we come to making it that way, the safer and more prosperous (and, BTW, the freer) our society will be.
Nonsense.

There is nothing about felons and crazy people owning guns that will keep us "free."
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Old 11-23-2013, 02:36 PM
 
Location: Upper Bucks County, PA.
322 posts, read 149,105 times
Reputation: 101
Quote:
Originally Posted by djmilf View Post
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.
But that is the point.

Quote:
Originally Posted by djmilf View Post
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.
Your point, "that the 2nd Amendment originally did not confer upon all citizens an individual right to keep and bear arms" is in conflict with every principle of rights theory embraced by the founders / framers and runs counter to the fundamental principles of the Constitution.

The only thing "conferred" through the Constitution are the powers of government. Those powers flow from the entity from which all power emanates, the people, to the government.

You have the dynamic perfectly backwards; the government does not establish or create or grant rights . . . The principle is conferred powers and retained rights; the government can't give back to the people what the people never parted with.

Quote:
Originally Posted by djmilf View Post
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.
The ruling certainly was a travesty but your assessment of the holding couldn't be more wrong.

The Court declined jurisdiction because the white defendants were private citizens. There was no federal authority to bring against private citizens:

"The second and tenth counts are equally defective. 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 the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States."

Cruikshank, internal citation removed
The "it" that shall not be infringed is "the right of the people to keep and bear arms" which was what was recognized as being possessed by Nelson and Tillman and as being a right not granted by the 2nd Amendment and not dependent on the Constitution to exist.

The Court only holds that there were no government actors in the rights deprivation thus there was no federal interest.

This was the travesty because the third Enforcement Act (of 1871, the Anti-KKK Act) was meant to expand federal enforcement to the actions of the KKK and other organized groups who were enforcing the Black Codes after the state militias (which the original Enforcement Act impacted) were disbanded.

Quote:
Originally Posted by djmilf View Post
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.
Indictments argue the victim's interests as is done in all criminal cases even when the victim is dead. The indictment's claim was that Nelson and Tillman possessed the right to bear arms for lawful purpose; where did the Court disagree?

Your claim that the Court held that they possessed no rights is pathetic and quite despicable.

Such is the depths one must sink to argue the anti-Constitution side though.

Quote:
Originally Posted by djmilf View Post
Sad and sick, but true. And not something that I agree with.
Why? You should embrace that which you are forced to argue, that is what must be applied to all rights if your position is correct.
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