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Old 11-25-2013, 06:38 AM
 
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Last edited by Wendell Phillips; 11-25-2013 at 08:07 AM..
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Old 11-25-2013, 02:47 PM
 
Location: Las Vegas,Nevada
9,282 posts, read 6,740,496 times
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Quote:
Originally Posted by HistorianDude View Post
Historical accident.
Really? so the fact it says "shall not be infringed" does not add weight to our side?
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Old 11-25-2013, 02:53 PM
 
Location: Las Vegas,Nevada
9,282 posts, read 6,740,496 times
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Quote:
Originally Posted by Wendell Phillips View Post
Your right of self-protection is provided only as allowed by law - not God.
It is a nature law, which is unalienable, and not subject to laws of courts or government, because courts nor government gave us these rights.

The leftist mental ill idea that rights are grants by the state is only one of support by cognitive dissonance.
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Old 11-25-2013, 03:07 PM
 
Location: San Diego, CA
10,581 posts, read 9,781,228 times
Reputation: 4174
Quote:
Originally Posted by cuebald View Post
The Constitution was intended to be an ambiguous document that could be modified through lawsuits
Flatly not true.

Quote:
and amendments
That is true.

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My reading of the Second is that you have the right to keep and bear arms as a member of a "well-regulated militia".
Looks like you flunked one of the three R's.

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The current SCOTUS has interpreted this as the rights of individuals as private citizens.
They passed.

Quote:
We are still dealing with a living, breathing document
Only to the extend that it can be explicitly amended, as described in the document itself.
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Old 11-25-2013, 03:13 PM
 
34,278 posts, read 19,364,321 times
Reputation: 17261
Quote:
Originally Posted by banjomike View Post
They could not have envisioned repeating weapons, the complete mechanization of weapons manufacture, or how easy it has become to obtain a firearm today.
I always love this quote. Yes I am sure the founders could not have envisioned this...considering they were involved in a revolutionary war in a time period during which the first automatic weapons were being created. And having watched weapons technology at the time advance tremendously. Heck in 1777 the continental congress had the opportunity to buy some machine guns from Joseph Belton, but decided against it due to price.

No I'm SURE those people could never have imagined that.....in a country where ownership of weapons was very common, and the coercive acts were one of the things that caused the war.

So yeah, I am pretty sure they foresaw that. They might have been surprised by nuclear weapons though. Which incidentally I support not allowing individuals to own as I believe those were in fact outside the original intent of the constitution. But machine guns? They were there already, although early and primitive.
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Old 11-25-2013, 03:18 PM
 
Location: San Diego, CA
10,581 posts, read 9,781,228 times
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Quote:
Originally Posted by greywar View Post
I always love this quote. Yes I am sure the founders could not have envisioned this...considering they were involved in a revolutionary war in a time period during which the first automatic weapons were being created. And having watched weapons technology at the time advance tremendously. Heck in 1777 the continental congress had the opportunity to buy some machine guns from Joseph Belton, but decided against it due to price.

No I'm SURE those people could never have imagined that.....in a country where ownership of weapons was very common, and the coercive acts were one of the things that caused the war.
When the facts don't support liberals' agenda, they simply make up new "facts".

And/or rely heavily on their constituents' ignorance of the truth, which is vital to their campaign strategy.
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Old 11-26-2013, 02:48 AM
 
Location: Upper Bucks County, PA.
408 posts, read 214,878 times
Reputation: 193
Quote:
Originally Posted by djmilf View Post
I would disagree with your assertion.
And a disagreement without a rebuttal of my statement or a defense of your statement is pretty much worthless.

Quote:
Originally Posted by djmilf View Post
I didn't say that the decision wasn't legitimate, I was pointing out that it was a close decision. That's all.
RIF.

I didn't say that you were saying that the the decision wasn't legitimate, I was pointing out that you using a "quote" that doesn't occur in the majority opinion to make a point about the majority opinion is not legitimate.

Quote:
Originally Posted by djmilf View Post
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.
Not useless, not useful if one's primary objective in parsing and analysis of the Amendment is to violate the fundamental rights theory that the Constitution is founded upon.

That the right to arms was being exercised by the people for a myriad of purposes before the Constitution was established and having no aspect of the right conferred to the federal government by the Constitution, forecloses the belief that the 2nd represents a expression of a limited, grant back to the people of a conditioned, qualified "right", to be exercised by only a select group of government approved people.

The 2nd Amendment only "does" one thing; to redundantly forbid the federal government to exercise powers never granted to it.

Quote:
Originally Posted by djmilf View Post
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.
Your confusion is a product of your lack of understanding, not Scalia's.

As evidenced by:

Quote:
Originally Posted by djmilf View Post
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.
Not Scalia's point. He only re-affirms the fundamental rights principle that is foundational for Constitution.

The principle has been confirmed by the Court many times from the very beginning.
"The constitution expressly declares, that the right of acquiring, possessing, and protecting property is natural, inherent, and unalienable. It is a right not ex gratia from the legislature, but ex debito from the constitution. . ." VANHORNE'S LESSEE v. DORRANCE, 2 U.S. 304 (1795)

"Men are endowed by their Creator with certain unalienable rights, and to 'secure,' not grant or create, these rights, governments are instituted." BUDD v. PEOPLE OF STATE OF NEW YORK, 143 U.S. 517 (1892)

"The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the nature of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable rights." UNITED STATES v. TWIN CITY POWER CO., 350 U.S. 222 (1956)

". . . [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . " MOORE v. EAST CLEVELAND, 431 U.S. 494 (1977)

"[N]either the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. . . . Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, . . . DENNIS C. VACCO, ATTORNEY GENERAL OF NEW YORK, et al., PETITIONERS v. TIMOTHY E. QUILL et al. No. 95-1858, (1997)
You want to pluck out the 2nd and create a special bubble for it but that is not legitimate. The right to arms is among those liberty interests that were never included in the grant of powers to government so the belief that the 2nd somehow can give back to the citizen something they never parted with, is just anti-constitutional.

Quote:
Originally Posted by djmilf View Post
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 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.
Confer a right??????????

Perhaps you should actually read some of those state constitutions. You would notice that the rights theory is expressed first and many important retained rights of the people creating that government are declared before a single power is conferred to government.

Pennsylvania:
Quote:
Article 1
DECLARATION OF RIGHTS


That the general, great and essential principles of liberty and free government may be recognized and unalterably established, WE DECLARE THAT -

Inherent Rights of Mankind
Section 1.


All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.
The fundamental political maxim of conferred powers is next recognized:
Quote:
Political Powers
Section 2.


All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.
And the fundamental political maxim of retained rights is recognized:
Quote:
Reservation of Powers in People
Section 25.


To guard against the transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.
Your understanding of this dynamic is perfectly backwards and is why you are just so wrong on all of this and argue from such an incorrect base of knowledge.

Rights are exceptions of powers not granted and to argue that their existence is dependent upon the government giving them to us is reprehensible.

Quote:
Originally Posted by djmilf View Post
So Justice Scalia is correct to say that the right existed, but it wasn't widely recognized.
Please.just.stop. Can you make a point without misrepresenting something?

Quote:
Originally Posted by djmilf View Post
And it certainly wasn't the intent of the framers of the Amendment to guarantee an individual right.
You are aware that the argument over whether the 2nd Amendment protects an individual right is over?

Both Heller dissents acknowledge that the right secured by the 2nd Amendment is individual.

Of course they each go on to spend a great deal of time explaining away the unavoidable implications for gun control laws from that determination.

Breyer says in Part II of his dissent and please, be sure to note that he says that Supreme Court precedent is consistent with Heller's individual right holding:
"The Second Amendment says that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (Stevens, J., dissenting). . . . "​




Stevens says in the opening of his dissent:



"The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right."​


Stevens stipulates that the right protected by the 2nd Amendment is an individual right but then he begins to examine "[t]he text of the Amendment [and] its history" to discover the "scope" of the right - in direct opposition to the Court's holding in Presser 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.'"


That's what Scalia was critiquing; Stevens acknowledgement of an individual right but then his dubious exercise of "inspecting" the text of the 2nd Amendment (upon which the Court has said the right in no manner depends) to find a conditioned / qualified "scope" of the right which only serves to sustain unconstitutional government action that limits the right.

To me, this means that by the 2nd paragraph we can just dismiss Justice Stevens' dissent as a pathetic misconstruction at odds with the fundamental principles of this nation and Supreme Court precedent.

Feel free to explain why we should give it any notice or assign any value to it (begin by demonstrating how it conforms to constitutional rights theory and SCOTUS precedent).
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Old 11-26-2013, 03:29 AM
 
Location: Upper Bucks County, PA.
408 posts, read 214,878 times
Reputation: 193
Quote:
Originally Posted by djmilf View Post
Re-re-re-affirmed? Double-secret probation anyone?
Consistently repeating the same legal concept over 140 years is re-re-re-affirming it.

And still you fail to grasp it . . .

Quote:
Originally Posted by djmilf View Post
And "perversions"? You know, we're talking about guns, not sex, right?
But the "militia right" and state's right" theories are perversions.

The word has a primary meaning separate from any sexual connotation; "the alteration of something from its original course, meaning, or state to a distortion or corruption of what was first intended."

Quote:
Originally Posted by djmilf View Post
And that "perversion" about "state's rights", wasn't that during the 19th Century as well? I believe some called it the Civil War?
The "state's right" and "militia right" theories were inserted in the federal court system in 1942.

Whatever snarky point you are trying to make will pathetically wither under scrutiny and I'll not waste time addressing it. If you wish to pursue it then we can discuss but I predict you will decline . . .

Quote:
Originally Posted by djmilf View Post
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.
You will find that I quote original sources for my arguments. I sure would like to read any support you have for your assertion that Scaila is altering the meaning of Cruikshank.

Quote:
Originally Posted by djmilf View Post
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.
The important thing to note to support your point would be to quote from those state constitutions (or the federal Constitution) any language that grants to those governments any power whatsoever to have any interest in the personal arms of the private citizen.

Again, you are perfectly backwards in your thinking. If no power is granted (surrendered by the people) to allow government to dictate to the private citizen as to their personal arms, the power over those personal arms is retained by the citizen (as the right to keep and bear arms).

Why do you have such a hard time understanding that the right does not flow from government but is a liberty interest held by the people, reserved and never placed in government's hands?

Government can't give back to the citizen something the citizen never parted with, especially in a reduced, limited, conditioned, qualified form. You are arguing absurdities when you say it wasn't, "the intent of the framers of the Amendment to guarantee an individual right". They didn't have any discretion in the manner.

Quote:
Originally Posted by djmilf View Post
And Scalia seems to require that if the right existed, then it must naturally be an individual right, and not a collective one.
LOL.

And???

Quote:
Originally Posted by djmilf View Post
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).
The exclusions in the English Bill of rights were denounced by the founders / framers. Why would you think they wanted to continue with such discriminatory practices?

Quote:
Originally Posted by djmilf View Post
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.
You would need to show where one's right to arms under any state constitution was dependent upon one's militia enrollment status or activity.

Last edited by Jeerleader; 11-26-2013 at 03:38 AM..
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Old 11-28-2013, 11:23 AM
 
Location: Upper Bucks County, PA.
408 posts, read 214,878 times
Reputation: 193
Quote:
Originally Posted by djmilf View Post
I obviously disagree with this assessment.
You are free to maintain your own opinion but when that opinion is maintained in the face of oppositional fact, then perhaps a reassessment of your position is in order?


Scalia didn't invent something new in Heller, even the dissents acknowledge this. The individual right model is what is represented in SCOTUS precedent; the various permutations of the "collective right" model have never been any part of any SCOTUS commentary on the right to arms and/or the 2nd Amendment (two completely separate and distinct things in the eyes of SCOTUS).

Quote:
Originally Posted by djmilf View Post
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?
Thomas explains in plain language the philosophical premises for the 39th Congress' desire to enforce the first eight provisions of the Bill of Rights against the states through the 14th Amendment and the subsequent legal history of SCOTUS extinguishing that action (primarily the Slaughterhouse Cases and subsequent cases relying only on due process). He lays out the history of the importance of the right to arms in the Black experience, defending the rights of life and liberty and the history of white attempts to extinguish Black's right to arms through private and governmental action, to perpetuate discrimination and subjugation based on race.

Quote:
Originally Posted by djmilf View Post
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.
Yes, I guess the distinction does escape me because your use of "interesting" can only be explained by you being puzzled and confused by the mere existence of the two opinions. You have acknowledged that you haven't a clue about the content of Thomas' concurrence so your characterization of the two opinions being "interesting" can only be attributed to your lack of understanding of why there are two opinions . . . That "interest" could be easily satisfied with a superficial knowledge of the arguments set-out by McDonald's legal representation. (254KB pdf)

You prove the premise that anything is possible when you don't know what you are talking about.

Seeing that this thread has withered, (I'm happily reviving it from page 3 LOL), your reluctance to engage in various "tangential" discussion seems to be more a cop-out than any adherence to a code of message board ethics.

Quote:
Originally Posted by djmilf View Post
I have to admit, I'm not quite as 'involved' in the minutia of the case as you obviously are.
That's not "minutia", that is the very heart of the case.

Quote:
Originally Posted by djmilf View Post
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.
Your point is wrong on multiple levels and that belief can only be maintained through turning a blind eye to fundamental constitutional principles, (including but not limited to foundational rights theory), the actual action of the Bill of Rights (more importantly, the non-action of granting, giving, creating, establishing or "conferring" rights) and the clear and unambiguous determinations of the Supreme Court explaining and confirming those concepts.

Quote:
Originally Posted by djmilf View Post
And that this individual right became incorporated at the state and local level in 2010.
And such is evidence of how detrimental Slaughterhouse was and continues to be and why Thomas endorses re-examining it in his Heller opinion.

Quote:
Originally Posted by djmilf View Post
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.
I grow weary of people telling us what the right to arms isn't and what the 2nd Amendment doesn't do . . .

I never hear them offer any evidence of their theories in legal action or any explanation for the lack of their theory in legal action. Just one cite of a "collective" entity claiming a 2nd Amendment rights injury against the federal government would be "interesting".
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Old 11-28-2013, 05:25 PM
 
14,020 posts, read 15,008,176 times
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"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
So can states ban felons from holding weapons, yes, according to the 14th amendment.
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