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it does look like that the SCOTUS just has not learned how to read yet.
after all, if you actually read the 2nd Amendment, the government has the right to regulate the militia, but not make laws against the right of the people to keep and bear arms, none what so ever.
Your right to have a gun are limited by law. 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 the Second 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)
And not a syllable of that upsets anything SCOUTS had said before about the right to arms and the 2nd Amendment. It is not an endorsement of all standing laws and in fact, footnote 26 has been important in gun rights cases post Heller.
Heller is important for slapping the lower federal courts back into the constitutional fold by invalidating the 1942 Circuit decisions that inserted the "militia right" and "state's right" interpretations into the jurisprudence of the 2nd Amendment.
Quote:
Originally Posted by Wendell Phillips
‘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).
Reading that in a philosophical, historical and legal vacuum leads one to all sorts of inventive conclusions.
Reading that with an understanding of Miller's protection criteria (of which "in common use" is just one*) and its source, including the descriptor of "dangerous and not usual" leads one to much different conclusions about the constitutionality of existing gun control laws and the legitimate authority of the federal government to enact them (and more).
*criteria also include (in and/or fashion) if the type of arm is usually employed in civilized warfare and constitute the ordinary military equipment
Those amendments can be repealed, just like any other amendment to the constituion.
Quote:
Originally Posted by Memphis1979
As I told the BB earlier, the first 10 amendments can be repealed, updated, revoked, whatever, same as every other amendment
The first problem for your statement above is that in actual legal action, well settled by the Supreme Court, the right to arms is not granted, given, created or established by the 2nd Amendment and is not in any manner dependent upon the Constitution for its existence. Which begs the question, just what do you think repealing, updating or revoking the 2nd Amendment would do?
See, you and I don't have the right to arms because the 2nd Amendment 'gives" it to us, or any particular interpretation of the 2nd Amendment embraced by lobbing groups or even courts; we possess the right to arms because no power was ever granted to government to allow it to have any interest whatsoever in the personal arms of the private citizen.
Your proposal seems to be founded in the leftist belief that the 2nd Amendment is just a permission slip for the citizen, that the right to arms is created by the words of the 2nd Amendment and is or can be conditioned, qualified and restrained by whatever inventive constructions of the words, syntax and punctuation of the Amendment that sounds good at the moment.
Your position also faces some tough philosophical hurdles (that become legal hurdles) . . .
Because so many states made their ratification of the Constitution contingent upon rights securing provisions being added (with two states outright refusing to ratify) and those 10 provisions then being accepted by the states out of the 12 proposed amendments submitted to them for inclusion in the federal constitution, it could be argued that any retroactive modification of those provisions threatens the integrity of the original ratification (it being an illegitimate ex post facto action).
Additionally, that the provisions that merely recognize and secure original, fundamental, fully retained rights (like the 2nd Amendment) don't actually "do" anything but redundantly forbid the federal government to exercise powers never granted to it, renders a proposal to modify a provision of the Bill of Rights further into 'goofball idea' territory.
"The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote they depend on the outcome of no elections." --- West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943)
Read Scalia's decision. He is a conservative, and he said that yes you have the right to own guns, but government always has, and always will have the right to dictate what kind of arms you have.
Government can only claim a power to restrict "dangerous or unusual' arms.
But government does not get to begin its action presuming the arm is "dangerous and unusual" because liberals don't think the citizens have any good reason to own it, or it isn't used in hunting or the extreme of idiocy, that "they are designed to kill people" . . . The government only gets to make its argument after and only after, a couple questions have been asked and answered:
Is the arm of the type that constitutes the ordinary military equipment?
Is the arm of the type that is usually employed in civilized warfare?
Is the arm of the type that can be employed advantageously in the common defense of the citizens?
Is the arm of the type that is in common use?
If the type of arm meets any one of these criteria then it cannot be deemed 'dangerous and unusual' and the right to keep and bear that weapon must be preserved and any claim of authority by government to restrict the possession and use of that weapon by a citizen, must be repelled (or invalidated if already enacted).
"Dangerous and unusual" is the scaps the government can scrape off the floor after the protection criteria are all applied and all fail . . .
It is one of enumerated powers only. When “We the people†ordained and established the Constitution, we created the Federal government. It is our creature. We are the creator. It is the creature. It is not our master.
All laws made by Congress, any restrictions imposed by the Bureau of Alcohol, Tobacco and Firearms, any restrictions made by executive order, and all Supreme Court decisions that restrict firearms are unconstitutional. They are unconstitutional because there is no authority to do so.
The Framers of the Constitution understood that arms are the only defense against a Federal government that would seek to overstep its bounds. James Madison, writing in Federalist Paper No. 46, said that the reason the Citizens – the Militia – are armed is to defend ourselves, our families, our neighborhoods, communities, and States from an overreaching, tyrannical federal government.
Well, short of closing the board in the face of such unassailable logic perhaps you could tell all of us, what Article, Section, clause of the Constitution confers power upon the federal government to have any interest whatsoever in the personal arms of the private citizen?
Something along those lines would actually constitute a reasoned, articulate rebuttal to the OP.
All laws made by Congress, any restrictions imposed by the Bureau of Alcohol, Tobacco and Firearms, any restrictions made by executive order, and all Supreme Court decisions that restrict firearms are unconstitutional. They are unconstitutional because there is no authority to do so.
All laws made by Congress are part of the supreme law of the land.
Quote:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution
To reject this is to reject the Constitution itself.
But if your claim is true then you are also allowed to yell "fire" in a theater that isn't on fire. You are allowed to libel and slander who you please. You are able to walk in a court room when a trial is in session, go up to the judge and tell him to f* off. After all, no one can limit your ability to speak since the 1st comes before the 2nd.
All laws made by Congress are part of the supreme law of the land.
No, only laws which shall be made in pursuance of the constitution have that rank.
Law that is repugnant to the Constitution is void.
Law created for which no legitimate power to act was ever conferred to Congress, fall under the latter condition.
Quote:
Originally Posted by GCharlotte
Quote:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution
To reject this is to reject the Constitution itself.
To accept every action of Congress as "constitutional" is to reject the Constitution.
To interpret "under the Constitution" as empowering the SCOTUS to rewrite the Constitution is also illegitimate.
Quote:
Originally Posted by GCharlotte
But if your claim is true then you are also allowed to yell "fire" in a theater that isn't on fire. You are allowed to libel and slander who you please. You are able to walk in a court room when a trial is in session, go up to the judge and tell him to f* off. After all, no one can limit your ability to speak since the 1st comes before the 2nd.
Laughable analysis.
And just to put a cherry on top, the numbering / order of the amendments offers no interpretive value or inform us as to an rights hierarchy contemplated by the framers.
The first two proposed amendments were not ratified by the states.
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