The 2nd amendment does NOT say, "except by due process of law" or "except for felons". Why not? (weapons, suspect)

[djmilf]

Originally Posted by Memphis1979

That's because the second amendment wasn't about protecting gun ownership. It was about militia armies and the federal government not having the power to disband them.

Originally Posted by Little-Acorn

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.

Memphis1979 is right.

The U.S. Constitution's Bill of Rights were originally limitations upon the federal government and not upon the state or local governments. This was implicitly understood at the time of the ratification of the Bill of Rights and explicitly stated by the Supreme Court of the United States in 1833 (Barron v. Baltimore).

The legal concept of the Incorporation of the Bill of Rights began in 1925 with the Supreme Court decision in Gitlow v. New York. Incorporation rests squarely upon the 14th Amendment to the Constitution.

The recognition that the 2nd Amendment was an individual right occurred 2008 in District of Columbia v. Heller. In the 5 to 4 decision of the Supreme Court, the intent of the 1st United States Congress was discarded, with the Second Amendment’s drafting history being called "of dubious interpretive worth". 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. Basically, Justice Scalia discounted the original intent of the framers of the amendment and reached to other sources.

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, 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.

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.

Originally Posted by Memphis1979

Also there are other portions that say, if you're a felon, you lose lots of rights

Originally Posted by Little-Acorn

Other portions of what?

The decision of the Supreme Court in District of Columbia v Heller, perhaps?

"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."

Or maybe from Justice Scalia's majority opinion in the same case?

"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."

"We also recognize another important limitation on the right to keep and carry arms. ... We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"

[burdell]

Originally Posted by Little-Acorn

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?

Really?

Exactly WHERE and in what words does it prohibit states from regulating their own militias as they see fit?

And what SCOTUS decision has declared all state controls unconstitutional?

[BentBow]

Originally Posted by cuebald

We are still dealing with a living, breathing document that is open to further interpretation and changes. It is complete willful ignorance to claim to know anything of the Constitution and think that there is anything in it that is absolute and writ in stone.

Yes, the Constitution is changed by amendments, not statutory laws.

[BentBow]

Originally Posted by djmilf

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.

The US Constitution over rules any State Law and Constitutions. It is the chains on all government within the union. If it is not found in the US Constitution the States can rule and restrict. The second amendment is in full view of the nation, in the Bill of Rights, not just Washington DC.

It takes an amendment, not statutory law in any state, to change the intent of the god given right.
Take the 1st amendment.... Can a State silence your 1st amendment? NO.

That goes for the entire bill of rights.

[Jeerleader]

Originally Posted by Little-Acorn

Why was the 2nd is written without qualifications? It says "Since X is so, the people's RKBA cannot be taken away or restricted."

I am surprised that you would be promulgating that very dangerous, discordant reading. You are basing your absolutist position that the right has no qualifications placed on it by the 2nd, by claiming that the right is only being recognized / secured, (or worse, can be said to exist), because "x is so" (presumably, [because] a well regulated militia is necessary to the security of a free state).

To argue that defeats every principle of conferred powers and retained rights.

Originally Posted by Little-Acorn

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.

But it isn't an immunity from all government action to restrain action that is not an exercise of the right.

Your "extreme example" is not a legitimate argument because murdering someone with a firearm is not a legitimate exercise of the right to arms (under the rights theory embraced by the founders / framers). Such action is not protected by the 2nd Amendment.

Analogous conditions exist under the 1st Amendment for slander, libel, speech intended to incite or cause panic. Those non-protections are comparable to the 2nd's non-protection of brandishing a gun, threatening someone with a gun or shooting at someone without just cause . . .

Originally Posted by Little-Acorn

Many of the people who wrote the 2nd were lawyers, and knew well the effect that certain words have when included, or omitted, from legislation. And yet they chose to omit ANY exceptions to the ban on government taking people's guns away. Strictly speaking, that would even include the extreme example I just gave: Cops can't legally take away the gun of a murderer at the scene of his crime.

Again, you argue for a right to do anything with your gun (even doing harm to other citizens???) immune to any authority of government but then argue that that right is dependent upon the precise allowances the framers set-out in the 2nd. Wassupwidat?

I have always believed in the principles of conferred powers and retained rights thus the right to arms does not flow from the words of the 2nd Amendment and is not in any manner dependent upon what the 2nd Amendment says (or doesn't say) for its existence or exercise.

Originally Posted by Little-Acorn

Yet a truly strict reading of the 2nd, forbids any govt official (including police) from taking the mass-murderer's gun.

I don't examine / inspect the 2nd Amendment for any instruction as to the existence or scope of my right to arms.

Instead, I examine / inspect the body of the Constitution for the existence of any power granted to the federal government that would allow it to have any interest whatsoever in the personal arms of the private citizen . . . Under my "strict reading" of the Constitution, I have never found any such power to be granted to government and I consider that "It does NOT say", to be a definitive explanation of my right to arms.

Originally Posted by Little-Acorn

So what could the Framers' intention have been, in omitting any exceptions?

As far as "exceptions" go, the 2nd Amendment is but one big redundant exception to government exercising powers that were never surrendered by the people. That condition was seen as the absurdity it is and was a primary reason why the Federalists argued against adding a bill of rights to the Constitution.

.

They argued:

• "I . . . affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? . . . [T]he Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given[.]"

.

Originally Posted by Little-Acorn

Remember that it is GOVERNMENT that is being forbidden from taking away people's weapons.

But that prohibition does not exist because the 2nd Amendment is there . . . That prohibition exists because no power was ever granted to the federal government in the body of the Constitution to allow it to have any interest whatsoever in the personal arms of the private citizen.

Originally Posted by Little-Acorn

It's inconceivable that the Framers would want the murderer to retain his gun even as they haul him off to jail.

It's inconceivable that the framers believed they had any authority to create such a rights disability under federal law. There was no federal murder statute for much of our history, such criminal acts and the code punishment interests were left where they belong, with the states.

The federal felon gun ownership disablement (created under the GCA-68) has been examined (see LEWIS v. UNITED STATES, 445 U.S. 55 (1980) LINK) and held as constitutional. Do you have an argument against the reasoning of Lewis (specifically, that the availability of firearms to those persons who pose a threat to community peace is a legitimate federal concern)?

Originally Posted by Little-Acorn

But it's VERY conceivable that the Framers would want government to have NOT THE SLIGHTEST EXCUSE, NO MATTER HOW "REASONABLE", to take away the weapons of their populace in general.

But the conditions under which a person is subject to the imposition of a FEDERAL rights disablement has evolved far beyond what the framers could have envisioned. Your argument has less to do with the specific protections to be found under the 2nd Amendment because the scheme of federal rights disablement extends far beyond just guns. Your singular focus on gun rights and claim / reliance on the 2nd as affording an absolute right, does not alter the larger impact to liberty that has become the status quo.

Originally Posted by Little-Acorn

My own guess is, the Framers intended for the principle of Jury Nullification to apply here.

My guess is that the framers didn't have any opinion on the 2nd being a impediment to rights disablement upon criminal act given the 2nd was not enforceable upon state action.

Originally Posted by Little-Acorn

Yes, the right guaranteed by the 2nd amendment, IS absolute...

No right is absolute in an ordered society.

[djmilf]

Originally Posted by BentBow

The US Constitution over rules any State Law and Constitutions. It is the chains on all government within the union. If it is not found in the US Constitution the States can rule and restrict. The second amendment is in full view of the nation, in the Bill of Rights, not just Washington DC.

Yes, the U.S. Constitution over rules most State Law and Constitutions. That's because of the 14th Amendment.

"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.". - from Section 1 of the 14th Amendment to the Constitution of the United States

But LittleAcorn started his post with a question regarding the 2nd Amendment and claimed that from inception that the 2nd Amendment applied to all levels of government. I merely pointed out that the legal record didn't support his claim.

It takes an amendment, not statutory law in any state, to change the intent of the god given right.

God given right? Which god authored this?

"Congress shall make no law respecting an establishment of religion" - from the 1st Amendment to the United States Constitution.

Rights are recognized by society, not "God-given". A person outside of society has free reign to any rights he wishes to claim (and keep), but upon entering society, rights become limited by what society deems permissible.

Ignoring your appeal to a deity, the intent of the authors of the 2nd Amendment, as expressed in the Congressional Record, was discarded by Associate Justice Scalia in District of Columbia v Miller; the intent of the Constitution can be changed by means other than constitutional amendment.

Take the 1st amendment.... Can a State silence your 1st amendment? NO.

Ever shout 'fire' in a crowded theater? Or say 'I have a bomb' on an airplane?

How about using one of George Carlin's seven dirty words on a radio station?

ALL rights are subject to reasonable restrictions and limitations. If you disagree, then you disagree with the law of the United States.

[pnwmdk]

Originally Posted by cuebald

The Constitution was intended to be an ambiguous document that could be modified through lawsuits and amendments as the years went on and situations changed. My reading of the Second is that you have the right to keep and bear arms as a member of a "well-regulated militia". The current SCOTUS has interpreted this as the rights of individuals as private citizens.

We are still dealing with a living, breathing document that is open to further interpretation and changes. It is complete willful ignorance to claim to know anything of the Constitution and think that there is anything in it that is absolute and writ in stone.

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".

[Egbert]

Originally Posted by Little-Acorn

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.

To make up an extreme example: Some guy goes into a restaurant, pulls out a gun and blows away half a dozen people. The cops show up and surround him, and one cop says, "Give me your gun right now." The guy says, "Sorry, the 2nd amendment says my right to KBA cannot be taken away or restricted, PERIOD, so you have no authority to make me give you my gun." And this with gunsmoke in the air and bodies bleeding on the floor next to him.

So what does the cop do? Cracks him over the head with a billy club and takes his gun away anyway.

Many of the people who wrote the 2nd were lawyers, and knew well the effect that certain words have when included, or omitted, from legislation. And yet they chose to omit ANY exceptions to the ban on government taking people's guns away. Strictly speaking, that would even include the extreme example I just gave: Cops can't legally take away the gun of a murderer at the scene of his crime.

Many people use this as the reason why the 2nd amendment MUST have been intended to implicitly allow for exceptions: It's impossible that the Framers could have intended for murderers to retain their weapons immediately after committing their murders. Yet a truly strict reading of the 2nd, forbids any govt official (including police) from taking the mass-murderer's gun.

So what could the Framers' intention have been, in omitting any exceptions?

Remember that it is GOVERNMENT that is being forbidden from taking away people's weapons. And the foremost reason it's forbidden, is so that the people can use them against government itself, if/when the government becomes tyrannical. And the Framers knew that if government were given even the tiniest exception, there would be a tendency to turn that tiny loophole into more and more twisted, warped excuses to take guns away anyway, far beyond the "reasonable" exception of being able to take away a mass-murderer's gun at the scene of his crime.

The only way the Framers could find of avoiding the far-greater evil of a tyrannical government disarming its people, was to make NO EXCEPTIONS WHATSOEVER to an explicit ban on government disarming even one of us.

So where does that leave us on the question of the cops taking the mass murderer's gun at the restaurant?

It's inconceivable that the Framers would want the murderer to retain his gun even as they haul him off to jail.

But it's VERY conceivable that the Framers would want government to have NOT THE SLIGHTEST EXCUSE, NO MATTER HOW "REASONABLE", to take away the weapons of their populace in general. Because the slightest excuse, the tiniest exception, could be stretched into a huge loophole. And the Framers regarded a government that could somehow finagle its way into disarming its own people, as a far greater threat than the occasional murderous nutcase in a restaurant.

And history has proven the Framers right, time and again.

Should we amend the Constitution, changing the 2nd amendment to officially empower government to take away the right of, say, murderers, to own and carry guns?

Some would think it's obvious that we should, to make the law "really" right. But consider the potential cost.

My own guess is, the Framers intended for the principle of Jury Nullification to apply here. The restaurant mass-murderer tells the cops they have no power to take his gun. The cop responds by cracking the guy's skull with his billy club, hard, and taking away his gun anyway. Did the cop violate the strict words of the 2nd amendment by doing so? Maybe yes. But is there a judge or jury in the world that will convict the cop for it? Probably not.

And yet when government makes the slightest move toward disarming even a little of its populace by legislation, they can be met with the absolute, no-exceptions ban codified by the 2nd amendment. No loopholes, no nothing. ANY legislation that infringes on the absolute right to KBA, is unconstitutional. Period.

I suspect that's how the Framers expected this particular law to work.

Can I prove it? No. When i meet one of the Framers, I'll ask him. Until that time, I can only guess, based on the records they have left behind. If anyone can come up with a better guess, I'd be happy to hear it.

I never said the cops shouldn't take the murderer's gun away. The murderer said that, with bodies still bleeding around him. Whereupon the cop whacked him over the head with a billy club and took it from him anyway.

And later when the murderer brought charges against the cop for violating his 2nd amendment rights, the jury let the cop walk. The cop had no more worries since double jepoardy isn't allowed. And the murderer went to the chair as he deserved. And that's exactly how the system should work.

And when some govt official tried to take the gun of a law-abiding citizen, the jury did NOT let the govt official walk, but threw him into jail with all those nice criminals, where they could discuss obeying the Constitution, and the advantages of jury nullification, all they wanted. And, again, that's exactly how the system should work. And was designed to work, in fact, by those founders the leftist fanatics keep desperately denigrating and insulting.

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.

You do know that the second amendment is already much more broadly construed then the framers intended. The framers initially intended the bill of rights to only be a protection against the federal government leaving states free to pass whatever laws they wanted to in that area.

[pnwmdk]

Originally Posted by djmilf

God given right? Which god authored this?

I don't refer to them as gods... but the authors who wrote of it were the people who wrote our 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, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

I'm interested in why you think what you wrote below.

"Congress shall make no law respecting an establishment of religion" - from the 1st Amendment to the United States Constitution.

Rights are recognized by society, not "God-given". A person outside of society has free reign to any rights he wishes to claim (and keep), but upon entering society, rights become limited by what society deems permissible.

Specifically, why you don't believe that humanity has inherent rights?

Ignoring your appeal to a deity, the intent of the authors of the 2nd Amendment, as expressed in the Congressional Record, was discarded by Associate Justice Scalia in District of Columbia v Miller; the intent of the Constitution can be changed by means other than constitutional amendment.

No, it cannot.

Ever shout 'fire' in a crowded theater? Or say 'I have a bomb' on an airplane?

How about using one of George Carlin's seven dirty words on a radio station?

ALL rights are subject to reasonable restrictions and limitations. If you disagree, then you disagree with the law of the United States.

I disagree with laws on a constant basis. Further, I'm always correct and the law is always wrong.

[Egbert]

Originally Posted by BentBow

The US Constitution over rules any State Law and Constitutions. It is the chains on all government within the union. If it is not found in the US Constitution the States can rule and restrict. The second amendment is in full view of the nation, in the Bill of Rights, not just Washington DC.

It takes an amendment, not statutory law in any state, to change the intent of the god given right.
Take the 1st amendment.... Can a State silence your 1st amendment? NO.

That goes for the entire bill of rights.

That was not true when when the founders were around, the bill of rights did not apply to state laws until the late 19th and early 20th century. In fact if you look at why the bill or rights is applied against the states it is because of the Due Process clause of the 14th amendment. While the US Constitution has a supremacy clause the common view during the founders time and up until the civil war was that the protections outlined in the bill of rights were specifically protections from federal and not state authority.