PDA

View Full Version : The Second Amendment: Next questions



koginam
06-30-2008, 11:40 AM
Good article got it off Google front page.
http://www.minnpost.com/community_voices/comments_community_voices/?blog_post_id=2404#comments_section

The Second Amendment: Next questions
By Matt Ehling
Monday, June 30, 2008
Last week, the Supreme Court settled a constitutional debate that had, for decades, left an unmended gap in the Bill of Rights. In the case of District of Columbia v. Heller, the court finally ruled that the Constitution's Second Amendment protects an individual right to own firearms.

The Heller opinion overturned Washington, D.C.'s, strict 30-year-old handgun ban, and also invalidated several decades of lower-court precedent, which held that the right "to keep and bear arms" belonged to government militias, rather than to individual citizens. In this regard, Heller provided not only a narrow triumph for the plaintiff in the case, but also a broader affirmation of America's tradition of guaranteed, individual liberties.

In matters of constitutional law, however, a single courtroom victory seldom provides resolution to all aspects of a given issue. Anthony Heller's victory at the Supreme Court raises a raft of additional questions about firearms law that will likely take years of litigation to resolve. It is worth taking a moment to preview some of these upcoming battles.

A matter of incorporation
The next major test of Second Amendment law is likely to involve the question of whether the amendment restrains the conduct of state governments in the same way that it binds the federal government. Heller only addressed the Second Amendment as a matter relevant to federal authority. This was proper, given that all of the questions that the court confronted in Heller were federal in nature. However, a substantial number of American gun regulations are not federal laws, but state statutes. Discovering the extent to which the court is willing to extend Heller's check on federal power to the states is the next order of business for advocates of gun owners' rights.

To understand why Heller became the effective test case for the Second Amendment, one must first understand the legal concept known as "incorporation."

The Bill of Rights, as originally conceived, applied only to the actions of the federal government, and did not bind state legislatures or local municipalities in any way. Since the D.C. handgun ban impacted an exclusively federal jurisdiction, Heller presented a clean test of the fundamental tenets of the Second Amendment. Raising a legal challenge to a state or municipal gun law would have given the court the option of dodging the matter on a technicality. Instead, Heller avoided complicating side arguments, and allowed the court to dig down to the amendment's most basic underpinnings.

While the Bill of Rights was initially meant to constrain only federal power, its role has been altered by subsequent amendments to the Constitution. Specifically, the ratification of the Fourteenth Amendment in 1868 broadened the effective scope of the Bill of Rights, and set the stage for its prohibitions to apply to the states as well.

Fearful that state governments would enact punitive, race-based laws to restrict the rights of freed persons in the post-Civil War South, Congress wisely passed a constitutional amendment that prohibited states from infringing upon "the privileges and immunities" of national citizenship. In the legal realm, this has meant that the Supreme Court has gradually moved to "incorporate" various parts of the Bill of Rights as checks against state power.

In the years since the incorporation doctrine was first adopted by the court, most of the Bill of Rights has been applied to state governments. The Second Amendment is among the last provisions of the Bill of Rights that have yet to be incorporated in this way. Because of this, the "incorporation question" is sure to fuel the next significant round of Second Amendment litigation. Due to the court's consistent track record of incorporating fundamental, individual rights, it is also highly likely that this matter will be resolved in the affirmative once it reaches the Supreme Court docket.

To keep and bear which arms?
While the incorporation question will loom large over future gun cases, it will not be the most contentious issue to arise from the Heller decision. The far more controversial area of inquiry will involve answering specific questions about which arms the people are entitled to keep and bear. In other words, federal courts will have to discern, on a case-by-case basis, which guns are protected against governmental action. In the realm of constitutional law, these sorts of questions most often get answered by applying a standard of review known as "strict scrutiny."

This "strict scrutiny" standard places a high burden on the government to show that a particular regulation or action does not limit protected, constitutional behavior. For example, in Cohen v. California, the Supreme Court ruled that the state of California could not prohibit the wearing of clothing which bore obscene words.

The court invalidated that section of the California penal code as an infringement upon a fundamental, First Amendment right. At the same time, the strict scrutiny doctrine also assumes that constitutional liberties are not absolute in every instance. Because of this, courts have allowed limited circumstances in which rights may be restricted, but only when such restrictions serve a "compelling governmental interest." In the First Amendment realm, the court has ruled that speech conduct which constitutes libel or "terroristic threats" is not protected, and may therefore be regulated by the state. By answering such highly specific questions, the court has allowed a complex body of First Amendment law to emerge.

Like its First Amendment cousin, Second Amendment doctrine may become equally complex and rule-based over time. The questions posed to the courts will be narrow, and will likely be focused on which calibers and functions fall within the scope of the right to "keep and bear arms."

While not providing a definitive answer, the Court in Heller hinted that it might look to a portion of the 1939 case "United States v. Miller," which was the high court's only prior Second Amendment case. In general, Miller set out a two-pronged test whereby guns protected by the Second Amendment must be:

1. Arms in common use;

2. Arms that could serve a militia purpose, if so needed.

Opinion endorses 'in common use' idea
The Heller opinion is unclear as to whether it would affirm both prongs of this test, but it very explicitly endorses the idea that arms "in common use" are entitled to constitutional protection. Thus, the court seems prepared to ensure the protection of some classes of firearms that have been hotly pursued by gun-ban groups in the recent past.

For instance, virtually all sidearms would fall under Miller's first category, save for some of the more exotic. This prong of the Miller test would also clearly cover the majority of semiautomatic assault rifles, many of which are in common use throughout the nation. If lower courts were to later adopt the second "militia" prong of Miller, it should be noted that many of these same assault rifles would make an even better match for Miller's dual criteria. Many common assault rifles, like the Colt AR-15, have functional characteristics that make them extremely useful in a military setting. For example, the AR-15 is a near duplicate of the army's M-16 combat rifle, with the exception that it cannot fire automatically.

By embracing the first part of the Miller test, the high court has also clearly indicated that there are limitations on the extent of Second Amendment rights. Thus, firearms that fail to satisfy the court's "common use" test will likely fail the overall test of constitutional protection. These instruments will probably include sawed-off shotguns, which were the guns at issue in the 1939 Miller opinion.

Heller is also explicit about the fact that it will allow certain regulatory schemes governing firearms to stand. The court's opinion tackles this question directly by stating that Heller should not "cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." It is probable that the court will also find that the regulation of machine guns falls into this same category. Other than this, Heller gives little in the way of detailed guidance on these questions, and leaves the specifics for another day.

Looking forward
Some gun-rights advocates have raised concerns about whether the Heller decision clings too closely to Miller, which qualifies the individual "right to bear arms" by looking to common social norms regarding firearms use. While this may be a legitimate issue, it is worth stepping back to note the broader scope of what has been achieved.

In large measure, Heller is a victory for civil libertarians of all stripes – and not just gun rights advocates. By refusing to ignore one provision of the Bill of Rights, the court has indicated its willingness to view the document in a more holistic fashion. However, as subsequent legal questions play themselves out, civil libertarians must keep a wary eye open, for the federal courts have sometimes shown a tendency to develop doctrines that are overly deferential to the needs of the government, while narrowing the scope of protected rights.

As the next rounds of firearm litigation move forward, America's lower courts need to ensure that Heller has substance, and not just form.

Matt Ehling is a St. Paul-based documentary film producer and writer.

Mr. D
06-30-2008, 01:03 PM
Great post!

Their will still remain the question as to what the founders meant and what the court says they meant.

I like and want the court to support the individual right because that's what I think is best for our country, but I think the evidence weighs on the side that the Founding Fathers were referring to the militia's ability to resist the Federal Government's Standing Army if necessary to protect state's rights! A big issue at the time. I believe the common culture and history of the time never led them to even consider that Daniel Boone's Rifle would be confiscated by ATF if they didn't have a 2nd Amendment! The fear was that state militias would be disarmed by the new Federal Government and it's standing army. That was the historical issue. Also firearms regulations existed in large cities while the Founding Fathers were still around. Do you think any stranger was allowed to come into Congress packing a concealed weapon just because they ratified the 2nd Amendment! You know that didn't happen!

ballistic64
06-30-2008, 01:27 PM
Yeah, sounds like it to me.:rolleyes:
"No free man shall ever be debarred the use of arms." -- Proposed Virginia Constitution, 1776

"Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." -- Jefferson's "Commonplace Book," 1774-1776, quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764

-- Thomas Jefferson

"The great object is, that every man be armed."

- Patrick Henry

THOMAS JEFFERSON (Author of Declaration of Independence, member Continental Congress, Governor of Virginia, Minister to France, Secretary of State, Vice President, 3rd President )
"On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." 12 Jun 1823 (The Complete Jefferson p.32)
"No free man shall ever be debarred the use of arms." (Jefferson Papers, p. 334, C.J. Boyd, 1950)

GEORGE WASHINGTON (First President)
"Firearms stand next in importance to the Constitution itself. They are the people's liberty teeth keystone... the rifle and the pistol are equally indispensable... more than 99% of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms everywhere restrains evil interference. When firearms go, all goes, we need them every hour." (Address to 1st session of Congress)

JOHN ADAMS (Signed Declaration of Independence, Continental Congress delegate, 1st Vice President, 2nd President)
"Arms in the hands of citizens (may) be used at individual discretion...in private self-defense..." 1788(A Defense of the Constitution of the Government of the USA, p.471)

Vibe
06-30-2008, 01:44 PM
At any rate now that is clearly an individuals enumerated constitutionally recognized RIGHT - several other precedent decisions come into play.

Murdoch v. Pennsylvania, 319 U.S. 105 (1943) (cannot be compelled to pay a tax in order to exercise a right)

Shapiro v. Thompson, 394 U.S. 618 (1969) (waiting period for welfare check is void as it touches upon fundamental right of interstate travel)

Thomas v. Collins, 323 U.S. 516, 538-40 (1945) (registration to exercise a right is unconstitutional)

United States v. Jackson, 390 U.S. 570, 581 (1968) (government cannot chill exercise of fundamental right)

Minnepolis Star v. Minnesota Commn'r of Rev., 460 U.S. 575 (1983) (taxes on fundamental are unconstitutional)


Which support that States, Cities, and municipalities cannot infringe upon those rights either.

HovisKM
06-30-2008, 01:51 PM
Great post!

Their will still remain the question as to what the founders meant and what the court says they meant.

I like and want the court to support the individual right because that's what I think is best for our country, but I think the evidence weighs on the side that the Founding Fathers were referring to the militia's ability to resist the Federal Government's Standing Army if necessary to protect state's rights! A big issue at the time. I believe the common culture and history of the time never led them to even consider that Daniel Boone's Rifle would be confiscated by ATF if they didn't have a 2nd Amendment! The fear was that state militias would be disarmed by the new Federal Government and it's standing army. That was the historical issue. Also firearms regulations existed in large cities while the Founding Fathers were still around. Do you think any stranger was allowed to come into Congress packing a concealed weapon just because they ratified the 2nd Amendment! You know that didn't happen!


The 2nd Amendment was a two fold amendment. One estabilishing state militias and two, the protection of the right to bear arms by citizens. Why the second part, well, who was going to protect the citizens from the state??? You saying that the founding fathers were providing a means for the state to protect itself from the federal side....what about protection of the citizens from the state goverment??? The best study I ever had concerning the constitution was at the West Point Military Academy, constitutional experts went into great detail on the understood meaning of the constitution. How is this important to the military, especially officers. Well, it's the officers duty not to support any law or order given that is unconstitutional. Well the military officers don't have time to wait on the supreme court to decide on the status of a law. It is the individual officers responsibility to know within general guidelines on whether or not the law may or may not be constitutional and he is required to enact upon his judgement and so is his superiors and subordinates on their own judgement. The military is not emplaced to protect the goverment as much as it is emplace to protect the citizens. It only protects the goverment if they are making the decisions necessary to protect the citizens. It seems the only people who try to undermine the constitution is the libs and the ACLU. The constitution is a very simple and easily understood document but some people want to try and throw in what ifs, etc...

Hovis

Vibe
06-30-2008, 02:55 PM
, but I think the evidence weighs on the side that the Founding Fathers were referring to the militia's ability to resist the Federal Government's Standing Army if necessary to protect state's rights! A big issue at the time. I believe the common culture and history of the time never led them to even consider that Daniel Boone's Rifle would be confiscated by ATF if they didn't have a 2nd Amendment! The fear was that state militias would be disarmed by the new Federal Government and it's standing army. That was the historical issue. Also firearms regulations existed in large cities while the Founding Fathers were still around. Do you think any stranger was allowed to come into Congress packing a concealed weapon just because they ratified the 2nd Amendment! You know that didn't happen!

LOL. In truth Senators and Representatives quite often carried concealed on the floors of Congress while in session.

But this brings me to wonder - which "State Militia" was at stake at Lexington, or Concord?

pendennis
06-30-2008, 04:46 PM
The issue of state militias was one of the core arguments for the Second Amendment, especially for the southern states. With a high concentration of slaves, there was a fear, rational or not, of rebellion against the owners. Southerners feared that, lacking a standing army by the Federal government, no one would be there to protect citizens in case of an uprising or rebellion. Their logic was that state militias could be called to duty easily and quickly, as opposed to regular Federal army troops, which could take months to mobilize.

Over time, this enabled the southern states' militias to remain strong. It's also one of the reasons the Confederacy was able to score a lot of early victories in the Civil War. Northern states lacked the draw from militias to man their armies, and instead, had to rely on volunteer and conscriptioned men, which took longer to train. Their officer corps was drawn from the myriad of military schools which were very popular in the south. They were able to draw from VMI, The Citadel, among many.

Best,
Dennis

Mr. D
06-30-2008, 04:51 PM
LOL. In truth Senators and Representatives quite often carried concealed on the floors of Congress while in session.

But this brings me to wonder - which "State Militia" was at stake at Lexington, or Concord?

Now be honest! You know the first conflicts were about the British seizing armories, powder and shot. The States did not want the new federal government to do what the British tried to do to stop dissent!

Mr. D
06-30-2008, 04:59 PM
The issue of state militias was one of the core arguments for the Second Amendment, especially for the southern states. With a high concentration of slaves, there was a fear, rational or not, of rebellion against the owners. Southerners feared that, lacking a standing army by the Federal government, no one would be there to protect citizens in case of an uprising or rebellion. Their logic was that state militias could be called to duty easily and quickly, as opposed to regular Federal army troops, which could take months to mobilize.

Over time, this enabled the southern states' militias to remain strong. It's also one of the reasons the Confederacy was able to score a lot of early victories in the Civil War. Northern states lacked the draw from militias to man their armies, and instead, had to rely on volunteer and conscriptioned men, which took longer to train. Their officer corps was drawn from the myriad of military schools which were very popular in the south. They were able to draw from VMI, The Citadel, among many.

Best,
Dennis

Excellent post!

(1.) Does that not underscore why the 2nd Amendment tells the Federal Government the States will retain the right to keep and bear arms as militias to protect their States from many threats including the Federal Government?

(or)

(2.) Do you think they were saying we are afraid you will ban our hunting rifles and we will not be able to shoot deer or defend our
familes from Indian raids?

Doesn't #1. make more sense in the historical context of 1790?

pendennis
06-30-2008, 06:20 PM
Excellent post!

(1.) Does that not underscore why the 2nd Amendment tells the Federal Government the States will retain the right to keep and bear arms as militias to protect their States from many threats including the Federal Government?

(or)

(2.) Do you think they were saying we are afraid you will ban our hunting rifles and we will not be able to shoot deer or defend our
familes from Indian raids?

Doesn't #1. make more sense in the historical context of 1790?

I would agree on #1, but only to a point. English common law provided for the individual's protection of "hearth and home". The founding fathers believed, as most of us do today, that our rights are inherent, and not granted by any government. While the militia argument bolsters the argument for the right to keep and bear arms, I maintain that the 2nd Amendment, at its core, is an amendment which rationally limits the power of the Federal government.

The problem, as is magnified by changing technology, is the fear of certain weapons which resemble military arms. We have a beaucracy that believes there is nothing wrong with owning a Remington 700 rifle or 870 shotgun. However, they fear the owner of an AR15 clone, because it has that "military" look. The M60 and the M2 didn't exist in 1790. However, effective self defense can't be done with a single-shot flinter, either.

We also have a woeful lack of firearms education in this country. I would imagine that at least 90% of the "men on the street" doesn't know the difference between "autoloading" and "automatic" weapons. This makes it difficult to assuage the fears of individuals who see an AR15 and confuse it with an M16.

Dennis

cntryboy1289
06-30-2008, 06:53 PM
Since my post on the other topic didn't draw a comment from anyone, who is it that you think was to man the state militias and where do you think they were to keep their arms at? Kind of makes the point moot over whether or not the militias were involved in the second amendment or not!

I have never seen mention of armorys in the Constitution which leads me to believe they intended for the guns to be kept in the homes. Again, I ask the simple question, why are we limited in the guns we can bring to bare? If I may be called into duty, my model 700 won't be much good against a fully automatic assault rifle, sort of lends one to think they meant what they said, "Congress shall pass no law to infringe upon the right to bear arms." Why then have we allowed our rights to be taken away in the name of safety when it is our safety which caused them to add this to the Bill of Rights to begin with?

Some of you have said you see nothing wrong with registration or limiting certain guns, I say you are both a sheep and a fool for thinking so. Registration is the means to an end when it comes time to take our country over, or would you like to say something else is at work here???? A citizen of good standing should be allowed to own the guns that he wants to, especially since they are the ones that will be called when the time comes!

koginam
06-30-2008, 08:07 PM
I have to agree with cntryboy1289, a person of good standing should be able to own the type of weapon he wants, with the limit of it being small arms. I am sure in a hundred years we will be fighting to own lasers or some other cool weapon.

Rock63
06-30-2008, 08:20 PM
Why the small arms limit?

Think about the revolutionary war, the colonists had weapons that were similar to or in many cases superior to the weapons being used by the British military.

The way I read the 2nd amendment there should be NO RESTRICTION, and a more careful reading of the intent would lead me to believe that I should be encouraged to own weapons that are capable of being equal or superior to those used by the Military.

jackie schmidt
06-30-2008, 09:14 PM
During the openning post in this thread, the poster asked if the Supreme Courts ruling would retrain State Governments as much as it restrains the Federal Government.
What am I missing here. The Constitution is the supreme law of the Land. No City, County, or State Government can inact and enforce a law that runs contrary to The United States Constitution.
The Supreme Court just ruled that the 2D amendment is indeed an individule right. In the majority discision, the Justices spelled out that REASONABLE restrictions could be incated, just as they are concering all of the other rights guaranteed in the Bill of Rights. This is probably where the court fights will erupt, as municipalities try to stretch the meaning of "Reasonable".
Every Government Body in the Country is simply going to have to live with this descision. Of course there are going to be challenges. Some might even try to ingnore the Courts ruling. But, they do it with the fact that there will be serious consequences......jackie

Vibe
06-30-2008, 10:01 PM
Now be honest! You know the first conflicts were about the British seizing armories, powder and shot. The States did not want the new federal government to do what the British tried to do to stop dissent!

No. I'm more convinced that it was "the people" that wanted to be sure it did not happen again. On any level.

Vibe
06-30-2008, 10:06 PM
Excellent post!

(1.) Does that not underscore why the 2nd Amendment tells the Federal Government the States will retain the right to keep and bear arms as militias to protect their States from many threats including the Federal Government?

(or)

(2.) Do you think they were saying we are afraid you will ban our hunting rifles and we will not be able to shoot deer or defend our
familes from Indian raids?

Doesn't #1. make more sense in the historical context of 1790?
Only in the sense that #2 was so completely unthinkable as to have been laughable at the time. And several papers said as much I think.,

pendennis
06-30-2008, 10:39 PM
Armories and storage depots were extremely vulnerable to seizure. The British Marines were on the way to Concord to seize powder, etc., they knew the colonists had there.

Later, prior to the Civil War, John Brown seized, for a time, the arsenal at Harper's Ferry.

Public knowledge of stores and materiels also provides enemies data on where to make seizures.

The "enemy" can't search everywhere. That's why stores are kept spread out and diversified.

Best,
Dennis

cntryboy1289
06-30-2008, 11:44 PM
This is what makes me believe their true reasoning was to make sure that no one could ever take away all of our guns by seizing an armory or two or three. An armed populace is still the best bet for prtection of one's self, the community, the state, and the Federal government as well.

I have heard folks say that it is only the State that is being protected, but that cannot be when the others were directed at each of us, not the States.

Mr. D
07-01-2008, 01:30 AM
Points well taken! Remember that my saying that the 2nd Amendment does not clearly speak to your rifle in the closet, does not mean that I don't wish it clearly did!

If the Founding Fathers had meant to speak to private gun ownership as a separate issue than protecting the Militias from the Federal Government they certainly new how to use language and say it clearly and separately. I think the F.F. would agree with us on protecting private gun ownership, but frankly I don't think it was an issue in 1780. The issue was the great fear of this new Federal Government with its standing Army that might decide to reduce State's Rights by abolishing the militias. They didn't expect Boone or Crocket to have to turn in their firearms to ATF! :D

Greg Culpepper
07-01-2008, 05:56 AM
To Koginam, ballistic 64, Vibe, Hovis, Dennis, Jeff, Rock63, Jackie;

YOU GUYS ROCK! Best thread I can remember on the intent of the Second Amendment. As scary as it is to those who would impose their will on us rather than lead by consent, the unique opportunity afforded to Americans by the 2nd Amendment is the ability to meet tyranny with insurrection. Preventing this possibility would seem to be the central objective of all gun control programs dreamed up by governors for the governed.

The SCOTUS has spoken on the topic of "Keep". It remains to be determined what "Bear" really means. Does it mean anything that you can carry as in not requiring wheels like a field piece, to move about at will where you would choose to travel or does it refer to "bring to bear " as in use.

A common misconception is that automatic weapons are prohibited. Actually they are merely taxed. Anyone who can legally own a rifle can also own automatic weapons if he pays $200 to the Treasury. SCOTUS has put us on the right vector. Future SCOTUS appointments will either support or destroy the gift that we enjoy from the Founding Fathers. November looms.

All the best to you guys,

Greg

Vibe
07-01-2008, 08:14 AM
A common misconception is that automatic weapons are prohibited. Actually they are merely taxed. Anyone who can legally own a rifle can also own automatic weapons if he pays $200 to the Treasury. SCOTUS has put us on the right vector. Future SCOTUS appointments will either support or destroy the gift that we enjoy from the Founding Fathers. November looms.

All the best to you guys,

Greg
Really? How about one made in 2004?

pendennis
07-01-2008, 08:18 AM
Amendment X

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

While the Constitution broadly limits the power of the Federal Government, the above Amendment, further limits states' powers.

Best,
Dennis

cntryboy1289
07-01-2008, 08:25 AM
Excellent point Glenn! I guess when you take into consideration this particular amendment, you have to take into consideration all of the papers being written at the time to make sure you have an understanding of what they actually meant, or what their frame of mind might be.

As pointed out earlier, that was why I think they voted the way they did as this was in individual right. If that is the case, then I would think the authors knew that the only protection we have against tryanny or an invasion will not be a standing army or police force, but rather an armed populace, since neither can be everywhere at once. This flies in the face of those Mayors and governors that are saying this is just an outcry because it is their duty to make sure we are safe and not our own which I think most fairminded people fully understand that not government can make you safe in your own home. I think this is where the intent of the amendment comes into play more so than for a state since we all would have to agree if the populace is overrun, their can be no state militias to call to duty. Not all of the 50 states abolished their militias and not all militias are state funded which seems to reinforce this idea.

Have a good one guys!!

Vibe
07-01-2008, 08:27 AM
. The purpose of the Bill of Rights was to limit the powers of the federal government, not to require it to enforce rights. The meaning of the Second Amendment is to emphasize that the Constitution delegates the federal government no power to infringe the right to keep and bear arms.


Somehow that is not what I got from readiing the founders papers. And also not what it seems the Cruikshank Court got out of them either. The BOR (with the possible exception of the 1st Amendment-which specifically mentioned Congress) was to universaly apply to ALL forms of REPUBLICAN governemnt in this country -thus the "Supreme Law of the Land" implication. It makes no sense whatsoever to, on the one hand state that these Rights are inherent and pre-existing, not dependant upon the BOR in any way -and yet on the other hand tell the States "But it's OK if YOU disregard them". It's looks more like cowardice (or actual Judicial Legislating with a decidedly pro-government/anti-individual agenda)on the part of some previous justices.

Greg Culpepper
07-01-2008, 08:45 AM
Vibe,

Your are absolutely correct to point out that the civilian registry of Class Three, NFA weapons was frozen in 1986. Fixing the supply to the then existent number of transferable weapons had the desired effect of pricing many folks out of the market by making the resource scarce. This was a much more effective strategy than simply applying a fixed tax as market forces continue to raise the cost of entry even faster than the value of currency shrinks. This clearly answered a compelling governmental interest as we have (so fare as I know) not suffered a single crime with a registered class three weapon since 1986. Of course between 1937 at the enactment of the NFA and 1986 there were only two crimes with NFA weapons, one of those committed by a sworn peace officer. Crime wave solved, the nation safe once again! But your point is well taken. The population is severely constrained without prohibition. Clever, those bureaucrats. Maybe we can eventually get this issue corrected as well. Thanks for expanding on my too brief remarks.

Best regards

Greg

Chuck Bogardus
07-01-2008, 12:16 PM
The registry -is- frozen, however, if you are a SOT or a dealer, you can own a post-86. Also, corporations tend to do this better than individuals. It's easy to incorporate. And if a buzzgun costs too much for you individually, get together with a few friends, start a small company, HQ it out of one of 'em's business, and go to town... You may even make a few bucks...

Vibe
07-01-2008, 03:19 PM
The registry -is- frozen, however, if you are a SOT or a dealer, you can own a post-86. Also, corporations tend to do this better than individuals.
Which is another thing that really ticks me off. What part of "Rights" are -Of the Corporation, For the Corporation, By the Corporations?????
It's the rights of "The People" that are allegedly protected, yet Corporations, basically fictional entities - get "Rights" ? That "the People" do not???


It's easy to incorporate. And if a buzzgun costs too much for you individually, get together with a few friends, start a small company, HQ it out of one of 'em's business, and go to town... You may even make a few bucks...
But there are other "costs" to incorporating - like voluntarily giving up a certain amount of reasonable expectation to keep personal info personal.

jackie schmidt
07-01-2008, 03:55 PM
Do you get the idea that there are posters on this Forum who believe that The Constitution only regulates the Federal Government, and does not pretain to State Governments??........jackie

HovisKM
07-01-2008, 04:04 PM
You know what I like most about people trying to bend the 2nd amendment is. In every Amendment except for the 2nd, they believe that when it says person or people, the founding fathers were talking about individuals, however, when it comes to the 2nd, they believe it is talking about states and militia.....

In all instances in the Amendments, when a comma is used, a different group or reference is in place so that there is no confusion about who they were talking about. Just like the first when it says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." I guess the right of the people to peaceably assemble means "the right of the state to peaceably assemble"....that's the libs definition or at least it would have to be since the way they are trying to rip the 2nd apart or should I say blend it together. There was no need to say that the people in the militia had the right to bear arms because that's common sense...militia has arms. The second part was to establish the fact that people have the right to bear arms. If we applied to all amendments what some want to apply to the 2nd, the constitution would be one big FUBAR.....period. Jesus...a kid with a third grade education can figure out what it means (the constitution), why...because most of the people barely had that back then and the document was meant to be simply understood by all. People...get some sense and get a life....

Hovis

mike in co
07-01-2008, 04:23 PM
Do you get the idea that there are posters on this Forum who believe that The Constitution only regulates the Federal Government, and does not pretain to State Governments??........jackie


jackie,
it applies to the people.
but then someone invented the LAWYER and things go down hill quickly.

i, as a person, believe that scotus just put in black and white, what i have believed all the time.
the issue is that while most of us can read and understand simple english, judges and lawyers cannot.
we, the common people, must now wait for THEM to implement what most of us understand.

lawyers, doctors and insurance companies/agents should never be allowed in the same room, allowed to talk to each other or provide services to each other.
and our world would be a better place.
stepping down from my soap box, which someone has set on fire.....lol

mike in co

Mr. D
07-01-2008, 11:27 PM
Do you get the idea that there are posters on this Forum who believe that The Constitution only regulates the Federal Government, and does not pretain to State Governments??........jackie

Some may have been confused because the D.C. Case only applies to D.C. although it sets precedent that affects all the states as we go down the road.

Mr. D
07-01-2008, 11:34 PM
You know what I like most about people trying to bend the 2nd amendment is. In every Amendment except for the 2nd, they believe that when it says person or people, the founding fathers were talking about individuals, however, when it comes to the 2nd, they believe it is talking about states and militia.....

In all instances in the Amendments, when a comma is used, a different group or reference is in place so that there is no confusion about who they were talking about. Just like the first when it says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." I guess the right of the people to peaceably assemble means "the right of the state to peaceably assemble"....that's the libs definition or at least it would have to be since the way they are trying to rip the 2nd apart or should I say blend it together. There was no need to say that the people in the militia had the right to bear arms because that's common sense...militia has arms. The second part was to establish the fact that people have the right to bear arms. If we applied to all amendments what some want to apply to the 2nd, the constitution would be one big FUBAR.....period. Jesus...a kid with a third grade education can figure out what it means (the constitution), why...because most of the people barely had that back then and the document was meant to be simply understood by all. People...get some sense and get a life....

Hovis

Don't go there because it weakens our argument!

Amendment II

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.

Using your correct understanding of grammar, it becomes very clear grammar wise that the 2nd Amendment is one continuous sentence that gives the purpose, support and reason of the last independent clause. If the Founding fathers would have been speaking "only" to an individual, private right only the part after the last comma was necessary. They were good grammarians and chose not to say that because their purposes were two:

(1.) To restrict the new federal government and standing army from abolishing the militias to protect state's rights.

(2.) To insure the Southern States particularly that a local militia was always available for insurrections and to control slave uprisings.

RStiefel
07-01-2008, 11:34 PM
in every state. Remember..... The District of Columbia is actually Federal Land, not state land. It is considered a Federal Enclave. We'll just have to wait and see what happens next in San Franscisco.

Mr. D
07-01-2008, 11:51 PM
It has definitely strengthened the precedent for the 2nd Amendment applying to private gun ownership which is very good. Reasonable regulation is still possible, but sweeping bans like D.C.'s can now be challenged easier.

I'm all for the court's decision, but I think it is based on politics not the Constitution language or even the history of the time period. If there is legislating from the bench, then conservative judges legislate from the bench too! This is a good example that I can very easily support. Either that, or it is the applying of the "Living Constitution Concept" to the 2nd Amendment in trying to apply the intent rather than just the words of the 2nd Amendment. Frankly, I think it is just a political decision. Even Scalia said this ruling did not prevent reasonable regulation. It just sets a precedent that wholesale bans as in D.C. can be challenged. As Martha Stewart would say, "That's a good thing!" ;)

Greg Culpepper
07-02-2008, 09:06 AM
How did Martha Stewart get in here? Oh,..... I see.

Mr. D
07-02-2008, 09:20 AM
How did Martha Stewart get in here? Oh,..... I see.

Just my dumb sense of humor! I've heard her say that when my wife watches the show.

Vibe
07-02-2008, 09:43 AM
Do you get the idea that there are posters on this Forum who believe that The Constitution only regulates the Federal Government, and does not pretain to State Governments??........jackie
Not only here. It seems that there may be 4 Justices with that same mistaken idea. I surely do not see how "That every man be armed" could possibly support the "States Rights/Collective Rights" issue. And yet some are willing to look past the obvious for the alleged esoteric.

I stated in another post that I also did not understand how a Right, that the SCOTUS has ruled existed "prior to the Constitution, and does not depend upon that document for it's existence", now applies only to the Federal government and whith their "apparent" blessings for the States to violate it as they see fit. Just doesn't follow logically.

Vibe
07-02-2008, 09:50 AM
because their purposes were two:

(1.) To restrict the new federal government and standing army from abolishing the militias to protect state's rights.

(2.) To insure the Southern States particularly that a local militia was always available for insurrections and to control slave uprisings.
And where exactly does "That every man be armed" fall into those goals?
It doesn't. And yet it was one of the stated reasons in the debates. Ergo your logic (as well as a couple of judges and lawyers with agendas) is just a tad bit off.

HovisKM
07-02-2008, 11:25 AM
Don't go there because it weakens our argument!

Amendment II

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.

Using your correct understanding of grammar, it becomes very clear grammar wise that the 2nd Amendment is one continuous sentence that gives the purpose, support and reason of the last independent clause. If the Founding fathers would have been speaking "only" to an individual, private right only the part after the last comma was necessary. They were good grammarians and chose not to say that because their purposes were two:

(1.) To restrict the new federal government and standing army from abolishing the militias to protect state's rights.

(2.) To insure the Southern States particularly that a local militia was always available for insurrections and to control slave uprisings.

FALSE....FALSE...FALSE

The first part is the states and their militia, second is the people/individual and the third part states that neither the state or the peoples right can be infringed. What kind of grammer are you using? Like I said before, this is the only amendment that the libs want to apply that funny grammer to. The meaning of this amendment is simple and clear unless you use Bill Clinton's english of what does "is" mean.

Hovis

Phil Deese
07-02-2008, 11:45 AM
Your dead on!! Some statements remind me of the old saying " If you say something long enough people will start to believe it." Most politicians know that by heart!!

Mr. D
07-02-2008, 02:07 PM
FALSE....FALSE...FALSE

The first part is the states and their militia, second is the people/individual and the third part states that neither the state or the peoples right can be infringed. What kind of grammer are you using? Like I said before, this is the only amendment that the libs want to apply that funny grammer to. The meaning of this amendment is simple and clear unless you use Bill Clinton's english of what does "is" mean.

Hovis

You're right Hovis! :eek:

Mr. D
07-02-2008, 02:10 PM
And where exactly does "That every man be armed" fall into those goals?


Debates? From whence are you quoting, "That every man be armed" as related to the 2nd Amendment so I'm on the same page? I'm not sure debates are ever proof of the intent of finished language. Look at some of the things said in Congress today! I've seen the phrase used, but much later than the formation of the 2nd Amendment.

Wow, what an interesting and educational exchange as related to the Constitution. This is General Discussion done well.

cntryboy1289
07-02-2008, 02:24 PM
"The security of a free state", does not mean it is only directed to the State, but the populace of the state. The State is not what is important here but the security of the populace of the state and they saw that the only way for them to be safe was to be armed and that is what is meant here.

If it was directed solely for the purpose of the Free State, there would have been no need to mention that the right of the people to keep and bear arms shall not be infringed, but to have said that each state has the right to have a militia and its armories.

I think the reason that a lot of people drop the ball with this is the simple fact that they forget that at the time it was written, the people as now were never meant to be kept safe by their government, either a local, state or federal one. Only the armed populace can assure that either government is kept safe by being armed and ready for the call to arms if the need arises.

Vibe
07-02-2008, 02:57 PM
Debates? From whence are you quoting, "That every man be armed" as related to the 2nd Amendment so I'm on the same page? I'm not sure debates are ever proof of the intent of finished language. Look at some of the things said in Congress today! I've seen the phrase used, but much later than the formation of the 2nd Amendment.

Wow, what an interesting and educational exchange as related to the Constitution. This is General Discussion done well.
I'm disappointed in you. I could have sworn that I remember that at some point you stated that you "Taught" this stuff.

Writing in Federalist No. 46, James Madison mocked European despotisms he described as "afraid to trust the people with arms." Said Patrick Henry, "The great object is that every man be armed . . . [e]veryone who is able may have a gun."

Madison in Federalist 46

The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands,

But of course I'm reminded that Madison was most prophetic in his musings in #46

The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

The Justices in the Emerson case had it fairly well Stated as well.

pendennis
07-02-2008, 05:59 PM
The opinion handed down, in the syllabus, very accurately states what the Court majority agreed:

"Held:

1. The Second Amendment protects and individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defence within the home. Pp. 2-53

(a) The Amendments' prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22.
(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense..."

The writing of the opinion uses the prefatory and operative clauses to separate the two thoughts.

Well thought out from this man's view.

Best,
Dennis

PS - Italics, bold, and/or underline are mine, and not the Court's.

Mr. D
07-03-2008, 04:03 AM
Vibe,

Let's keep in mind that I have repeated that I support the interpretation that the 2nd Amendment supports private gun ownership. The discussion is about whether the Founding Fathers had that in mind at the time in that language or just assumed as much.

Now be polite! You've made me aware if your intellectual superiority! I was drawing that answer out because my understanding is that the 2nd Amendment predates that quotation in the Federalist Papers and most don't consider it a valid support, but rather just a later interpretation!

Having said that, I do think the F. F. would have supported the NRA position if they thought it was necessary to spell it out at that time in history. I believe they did not think it was worth mentioning because there was such common agreement in the culture that citizens had the right to keep personal firearms it need not be a FEDERAL issue, but rather a power left to the states.

There is also the issue of the common usage of the words "to bear arms" and it was most commonly used in a military/revolt against authority sense, not as to hunting or individual home defense.

My point, which of course is an unpopular one, is that it is possible that the Founding Fathers were simply dealing with the preservation of the militias and did not think private gun ownership was a major issue in the culture at that time that is should be a FEDERAL ISSUE. The grammar very clearly leans that way. "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." There was no reason to have the first two dependent sentence parts if the import was the third independent clause. The first two dependent sentence parts give the reason and logic for the independent clause "the right of the people to keep and bear Arms, shall not be infringed."

Secondly, if your wife does not right down "the cars out of gas, so get gas" on a grocery list it does not mean she does not support the buying of gas. It may well mean she assumes you will do so because it is an obvious need and that need not be specifically stated on the list! Had there been no 2nd Amendment it certainly would have been a state's rights issue as to protecting gun rights or having regulation.

Vibe
07-03-2008, 08:25 AM
Vibe,

Let's keep in mind that I have repeated that I support the interpretation that the 2nd Amendment supports private gun ownership. The discussion is about whether the Founding Fathers had that in mind at the time in that language or just assumed as much.
And yet you continue to use the "States Right to maintain Militia" rational. Why is that?
I can't put my finger on the reference at the moment, but the FF stated that that was the assumption at the time. Seems it was in some explanation as to why the verbiage was reduced.


Now be polite! You've made me aware if your intellectual superiority!
That was being polite. :D And if that be the case..you have bigger problems than this discussion.:D


I was drawing that answer out because my understanding is that the 2nd Amendment predates that quotation in the Federalist Papers and most don't consider it a valid support, but rather just a later interpretation!The principle that the 2nd represents goes back quite a bit farther. Most importantly it goes back to the States Constitutions from which it was taken - which quite obviously could not have been pointing to States militias -that would have been somewhat ridiculous.


Having said that, I do think the F. F. would have supported the NRA position if they thought it was necessary to spell it out at that time in history. I believe they did not think it was worth mentioning because there was such common agreement in the culture that citizens had the right to keep personal firearms it need not be a FEDERAL issue,
We agree so far.


but rather a power left to the states.
But here we part ways. A duty for the Sates to enforce possibly.


There is also the issue of the common usage of the words "to bear arms" and it was most commonly used in a military/revolt against authority sense, not as to hunting or individual home defense.
I'll agree it was not ever really about hunting, but I do think it included both of the other two.


My point, which of course is an unpopular one, is that it is possible that the Founding Fathers were simply dealing with the preservation of the militias and did not think private gun ownership was a major issue in the culture at that time that is should be a FEDERAL ISSUE. Your point is only really unpopular because it is incorrect. Else the States Constitutions would have had no need to duplicate the intent of the 2nd Amendment within them. When in fact it was the State Constitution of Virginia that the National 2nd amendment was "copied" from - so the intent applied FIRST against the States, BEFORE it applied to the Nation.


The grammar very clearly leans that way. "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."
Read that as referring to a State of existence rather than a State of the Union. Much like ice being a STATE of water which requires it to be kept below 32°F at sea level.


There was no reason to have the first two dependent sentence parts if the import was the third independent clause. The first two dependent sentence parts give the reason and logic for the independent clause "the right of the people to keep and bear Arms, shall not be infringed."
The entire Declaration of Independence was a justification for the actions of the day. Why do you find it unusual that the same men would include a justification here?


Secondly, if your wife does not right down "the cars out of gas, so get gas" on a grocery list it does not mean she does not support the buying of gas. It may well mean she assumes you will do so because it is an obvious need and that need not be specifically stated on the list!
But just like the 2nd - the note, or the lack of the note, does not make it the states responsibility to maintain my car either.


Had there been no 2nd Amendment it certainly would have been a state's rights issue as to protecting gun rights or having regulation.
Correct as far as protecting the rights, it should be the States duty to do that. As far as regulations, we get back to the meaning of what "Shall NOT be infringed" means. I cannot see that they would have really meant "Shall not be infringed MUCH", or "more than required". I think they meant exactly what they meant - and what they expected the States to live up to. Which they have not.

Vibe
07-04-2008, 11:07 AM
????????????
Nothing more? is that it?

RStiefel
07-04-2008, 11:42 AM
The NRA and lawyers in Ca. have been fighting the gun laws here for many years. The NRA finally gave up on it. The states retain their right to enact and enforce reasonable gun laws. I don't believe our high court will ever hear and rule on this. They will leave that to each state.

Larry Elliott
07-05-2008, 11:10 AM
I find it never-endingly interesting that when the SCOTUS finds that nude table top dancing is protected under the 1st Amendment or that abortion is protected under some invisible provision in the Constitution it's just wonderful. BUT when they decide that, "the right of the people to keep and bear arms shall not be infringed", means exactly what it says the gun controllers just go berserk and say that the Supremes are inventing new laws or some such blather. BULLROAR! :mad:

Anyone who has minimal knowledge of what "militia" meant 200 years ago would understand that it was the body of all able bodied MEN who bore their own arms in defense of themselves, their families, communities, states, and/or country. That they might also band together to prevent an oppressive government infringing their rights was also considered. :eek:

When the dissenting opinions to Heller are considered it's pretty obvious that the dissenters weren't basing their opinions on the Constitution, but on their own political views and opinions. The comment that the majority opinion placed the Constitution over "policy considerations" says it all. It has always been my impression that the Constitution was supposed to override policy considerations otherwise why have a Constitution.

Flash The Cash
07-05-2008, 12:40 PM
Anyone who has minimal knowledge of what "militia" meant 200 years ago would understand that it was the body of all able bodied MEN who bore their own arms in defense of themselves, their families, communities, states, and/or country.

If that's what the word "militia" means, then the right to keep and bear arms ought to cease.


...the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewise to cease with it.

--Blackstone

ballistic64
07-05-2008, 08:43 PM
The comment that the majority opinion placed the Constitution over "policy considerations" says it all. It has always been my impression that the Constitution was supposed to override policy considerations otherwise why have a Constitution.


Your impression is correct Larry.I stated earlier this Country was created a Republic and has been on the rise as a Democracy ever since.The US has many government programs that were created in violation of the Constitution.Social Security is one of the many.Before I get flamed,Im not saying it wasnt a well intentioned program,just the fact that you will not find the power authorized to Federal Gov. to collect taxes for this purpose in the Constitution.Eminant Domain is another "for the good of the majority" power the government appointed to itself.There are many other programs/powers that go beyond what the Constitution limits the government to.This is the real problem with our government today.It will take more than one elected official to fix it but one elected official can certainly contribute to further demise.

Mr. D
07-06-2008, 04:01 AM
Read that as referring to a State of existence rather than a State of the Union. Much like ice being a STATE of water which requires it to be kept below 32°F at sea level.





Wow, this is a perfect example of manufacturing an interpretation to support a ideology. 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."

No thank you, I will read it with this obvious definsition of the word state: State - a nation or territory considered as an organized political community under one government : the state of Israel.

Vibe
07-06-2008, 06:16 AM
Wow, this is a perfect example of manufacturing an interpretation to support a ideology. 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."

No thank you, I will read it with this obvious definsition of the word state: State - a nation or territory considered as an organized political community under one government : the state of Israel.
No "manufacturing" required - it's really the only definition that fits the ideology of the group doing the writing.
Actually that definition of "State" (as in crystalline,solid, liquid, free, enslaved, etc) works quite well grammatically. Had the writers wanted to use yours it would have been "Each of the Several States" just as they used in several other documents with that intention. So from that viewpoint - your definition is much less "obvious", and in fact has to be tweaked a bit to fit.

http://www.thehighroad.org/showpost.php?p=4673998&postcount=92

What The Second Amendment Really Says:

The Second Amendment talks of "a well-regulated militia,..." not THE militia specifically, but A militia in general. Then it says, "...,being necessary to the security of a free state,...". Hmm, "a free state". Everywhere else in the Constitution where "a", "another", "any", "no", "each", "every", "(F)oreign", "new", "one", "other", "particular", "the", "that", "same", "such", or "the several" state(s) are addressed, it is clear that the political unit "state" is being addressed, except in Article II, Section 3, which I'll address later. These are demonstrative adjectives. In the Second Amendment, the adjective "free" modifies "state" and does not demonstrably indicate a political unit state, but a condition. Since there is no comma between "a" and "free", one of those adjectives is demonstrative("a"), and the other("free") a simple modifier of whatever "state" is.

So, we're talking about a free state. Is it talking about a free political unit or a free condition? If it said , " ...being necessary to the security of the several states", or "...,being necessary to a state", or, "...,being necessary to any state," it would be more in line with the remainder of the Constitution and undeniably talking about the political unit definition of "state".

The word "state" is also used as "condition" elsewhere in the Constitution - Article II, Section 3, which commands the president to report on the state of the union. Right there in the Constitution is precedent for the word "state" to be used with the meaning "condition", as well as the more common "political unit". Bear with me a little longer.


The Second Amendment says, "...,being necessary to the security of a free state,". OK. Cool! What about the security of the nation? Article I gives Congress power to call forth the militia, to arm it, and place whatever portion of it into the employ of the United States it deems necessary. Did our Founding Fathers forget all about that when they drafted the Second Amendment? Wouldn't they have covered that in the amendment by adding something like, "..., and to the security of a free United States,..."? That would have made it clear and without question that the amendment referred to the political unit definition of "state". I don't think they forgot about the security of the United States, do you?

I think they covered the security of the United States, and the several states, by casting a wide blanket with the "condition" definition of "state". Again, I'll remind you that the Second Amendment talks of A militia, and not THE militia. So, by not addressing THE militia, how could it be addressing a STATE, a specific political unit, when it talks of A militia, which is non-specific? The only correct grammatical context is for "state" to mean "condition" in the Second Amendment.


The concrete that has been cast as the foundation for this is the fact that the Second Amendment addresses a RIGHT of the PEOPLE . Security of the state be damned! This is about the security of the PEOPLE! We live in a free state(condition), not the state! Only something alive can be free. A state is a political construct, bound in servitude by the Constitution. It can't lift up its skirt and tip-toe through the tulips! We can - if we so desire to wear skirts - But, I digress. The point is, it's about us and how we live, how we maintain our freedom, and how we restricted those in government.

There has been a question raised about the capitalization of the word "state" in the Second Amendment, that it would indicate the use of the word to indicate the political unit. Well, if you scan the Constitution, you'll find that the Founding Fathers capitalized all nouns instead of todays practice of only capitalizing proper nouns. Both the political unit definition of "state" and the condition definition of "state" are nouns. It's a name for a political unit and a name for a condition. Ergo, capitalized by our Founding Fathers.

Mr. D
07-06-2008, 10:06 AM
Vibe,

Interesting analysis, but " When you hear hoof beats look for horses, before zebras!" :D It seems you are doing what conservatives always accuse liberals of, that is stretching the meaning to fit your ideology! I read the meaning to be saying that to have a "free state" meaning the U.S., the right for militias to remain independent from the federal government and the federal standing army (which was a major fear) is necessary! The 2nd Amendment was largely written to protect the citizens from run away power of a federal government and a standing army rather to protect Farmer Jones' musket from the ATF. Does that also extend the point that confiscation of his musket would be against the 2nd Amendment? Logically, I'd say yes! One issue supports the other.

I think the Supremes have it about right!

Flash The Cash
07-06-2008, 10:56 AM
Instead of legislating from the bench, Judge Activist Scalia should have merely pointed out that the Constitution grants the U. S. Government no authority whatsoever over instruments of combat. Instead, he uses the "history" pretext to insert his person view that we don't have a right to keep and carry any weapon in any manner and for whatever purpose. Even an idiot like him can see that there is no language in the Second Amendment that could possibly be interpreted to mean that the right is limited.

Vibe
07-06-2008, 11:18 AM
Vibe,

Interesting analysis, but " When you hear hoof beats look for horses, before zebras!" :D It seems you are doing what conservatives always accuse liberals of, that is stretching the meaning to fit your ideology!
I suppose a statement of fact is an accusation, even after it is proven to be well founded. But no - I do not see this argument practicing that tactic.



I read the meaning to be saying that to have a "free state" meaning the U.S., the right for militias to remain independent from the federal government and the federal standing army (which was a major fear) is necessary! The 2nd Amendment was largely written to protect the citizens from run away power of a federal government and a standing army rather than to protect Farmer Jones' musket from the ATF.
I added a "than" in there to try and make more sense out of this - if it's misplaced please let me know.
But protecting "Farmer Johns musket from the ATF" IS an example of having to protect from an abuse of power by run away Federal Government, so I'm not clear on what you example was supposed to clarify. Particularly since there is very little difference between a "standing armed police force" and a "Standing Army" for all intents and purposes.

My point has been that since
1)the Federal 2nd is a straightforward extension of the same principle expressed in the State constitutions of the time. and
2) Those State Constitutions did not include this principle to limit the Federal Government - but rather to protect the individual from ALL sources of Government's overstepping of bounds. that
3) The Fed 2nd was simply a further guarantee of same. A guarantee against ALL forms of Government infringement against the individual. Not "just Congress".


Does that also extend the point that confiscation of his musket would be against the 2nd Amendment? Logically, I'd say yes! One issue supports the other.


I think the Supremes have it about right!
Not quite yet, but they are closer. When the NFA falls, as well as Corporate favoritism, then we will have seen a major improvement.

Rusty Carr
07-08-2008, 08:49 AM
I seem to find myself in agreement with Mr. Koginam quite frequently. I strongly believe that from a strictly practical point of view, a law cannot be written, which can outlaw "assault weapons" and leave our semi-auto rifles and shotguns alone. The anti-gun people are not dumb, and realize that small increments are the way to carry out their agenda. There is a practical point in demanding the right to own almost anything you want. I don't like The various AK clones, and wouldn't have one. However, any law which forbade my right to own one of them, would also affect, in the long run, my Kreighoff shotgun. Just my opinion, Rusty Carr

Larry Elliott
07-08-2008, 10:24 AM
The late Finn Aagaard (I hope I spelled his name correctly) once wrote the possession of selective fire arms by (law abiding) citizens would not be a problem, as it wasn't in Kenya when the Mau Mau were terrorizing the countryside, or in Switzerland to this very day. The possession of a particular gun or type of gun isn't going to change the honest law abiding citizen into a criminal.

Those on the left who want to control the evil "assault weapon" have no idea what they really are. It's not what a rifle looks like, but various characteristics that would require some knowledge to identify. It's certainly not a "pistol grip" like the AK's or AR-15/M-16, it's not a bayonet lug, nor a flash suppressor.

Criminals tend not to obey any laws, so the only ones bothered by them are those of us who tend to obey them. The only way to control crime is to control criminals. Prohibition has been tried before with another product and didn't work then, prohibition of guns or types of guns won't work either.

Mr. D
07-08-2008, 10:27 AM
Is there not a difference between a semi automatic hunting arm with a five shot capacity and a military arm with a 30 shot capacity? Some firearms are designed to shoot humans and not for hunting use. If they are going to be defended as permissible to own we have to face that fact. You don't need a 30 shot clip to hunt deer.

Dave B
07-08-2008, 10:49 AM
I re-read the 2nd amendment and missed the part where it was about hunting deer.
I have always thought the 2nd amendment was designed to give us the a chance to protect ourselves from the government. Where am I wrong?

Rusty Carr
07-08-2008, 10:52 AM
Mr. D. you and I know the difference, but does the average, non shooting citizen? When the last "assault weapon" ban was enacted, the way it was written, many popular hunting guns could have been included. Does a bayonet stud or a pistol grip make it more dangerous? How about the ban on cop killer bullets, does it not make sense to ban armor piercing pistol bullets? Actually, the way it was written, any bullet possesing a ceertain energy level, and capeable of being fired in a pistol was the criteria. Have you not seen the specialty pistols which fire everything from .22 LR to .308 and more. It would have effectively bannesd most any cartridge commonly used for deer hunting. Show me how you would write the ban forbiding guns you don't like, and I believe I can show you how it can be used to ban hunting guns. I believe that it is not the hard core anti gunners who are the problem, rather the people who believe that those people will be satisfied with anything less than total confiscation of all guns. As always, just my opinion, Rusty Carr

cntryboy1289
07-08-2008, 11:08 AM
I may not have to hunt deer with a thirty shot clip, but I do own them and can hunt deer with one just as legally as you can without one. I can afford the bolt action rifle, but maybe not every one can own as many guns as I do and might only be able to buy just one and the 2nd was put in place to not limit anyone as to buy just one particular gun or what makes you smile inside!!

How to you justify it being only a sporting arm that is legal when the 2nd amendment strictly says the right of the people to keep and bear arms shall not be infringed???

No where did it ever mention that only a sporting arm is legal. Arms are guns and all guns should be legal according to the 2nd. No where does it give your meaning of what should be legal, that is an abomination given to us by Congress when it violated the 2nd amendment to do so.

So please go back to school and learn what is meant by a Free State, you have been told numerous times and you still interject your way of thinking when it is simply spelled out for us in black and white and in plain English that Congress shall passs no law to infringe upon our rights to keep and bear arms.

Arms meaning guns, guns that are designed with one purpose in mind, to kill what it is aimed at. Of course we have different uses that we love to partake in with our arms, but arms were meant to be used for protection and no where does it give any of the interpetations that you love to give us when you try to explain it to us. No gun is designed strictly as a sporting arm. You can of course use it in that capacity, but a gun is designed to fire a bullet and bullets are designed to hit and destroy what they are aimed at.

Larry Elliott
07-08-2008, 12:47 PM
This is where the left gets their undies all in a twist about the 2d Amendment. It's not about hunting deer or ducks or shooting benchrest or high power it's about self defense and other defense that the "militia" deems necessary. Saying that someone doesn't need a high capacity magazine for his self shucker is like saying that the journalist doesn't need a word processor or the internet to, uh, communicate.

The size of the magazine in an AR, M1A, AK, or whatever has nothing to do with the lawfulness of its use. If someone wants to have a magazine that might or might not be legal for hunting it's up to them. Most of my rifles have their magazines deactivated with single shot adapters of some kind, but that doesn't mean I shouldn't be able to have a high capacity magazine if I want one. It's all about FREEDOM. As long as someone is not robbing people, murdering people, or committing another crime against persons or property they should be able to own whatever personal firearm they choose with whatever magazine size they choose. An AR, AK, or whatever else with the largest magazine available for it won't turn a person into a murderer or robber. It's like saying that fast cars for a quick getaway turn people into criminals.

The same sort of argument is used by the gun banners to try to outlaw highpowered rifles with scopes as "sniper rifles". Does the desire to own and shoot a scope sighted high powered rifle that might be of no use for deer hunting make it wicked and evil? Hardly!

ballistic64
07-08-2008, 01:47 PM
If they are going to be defended as permissible to own we have to face that fact. You don't need a 30 shot clip to hunt deer.


You really sound like the yahoos on HCI's forum.

Vibe
07-08-2008, 02:16 PM
Is there not a difference between a semi automatic hunting arm with a five shot capacity and a military arm with a 30 shot capacity?
Mechanically? Almost none.

Some firearms are designed to shoot humans and not for hunting use.
BS. They are all "designed" to launch a projectile, nothing more - what the target at the time happens to be has almost no impact upon the functionality. Other than the degree of reliability required and expected. Besides - the 2nd Amendment was - as it turns out - precisely for the case where shooting humans is required.


If they are going to be defended as permissible to own we have to face that fact.
If it were indeed a "fact" you might have a shot at being right there. And even then only maybe. As it is not a fact, but an opinion, there is no chance whatsoever.


You don't need a 30 shot clip to hunt deer.
No. And you apparently do not "need" a 5 round magazine tube to hunt duck either, and are limited to only 2 in the magazine - yet most all pump and semi-auto shotguns have 4 to 7 round magazine capacities. What's your point?

Flash The Cash
07-09-2008, 05:03 PM
Justice Scalia’s Activist Methodology Of Constitutional Interpretation


In the excerpt below, from the opinion authored by U. S. Supreme Court Justice Scalia in the case of Heller v. D. C., the right wing activist justice announces an intention to follow the rule of construction which dictates that the words of the Constitution should be understood in the sense they were normally and ordinarily used. He then ignores the rule and goes to an obscure treatise, written seventy five years after the Second Amendment was ratified, as the primary source of the meaning of the words in the Amendment.


The Second Amendment provides: “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 this text, we are guided by the
principle that “[t]he Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.” United States v. Sprague, 282 U. S. 716, 731
(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.
The two sides in this case have set out very different
interpretations of the Amendment. Petitioners and today’s
dissenting Justices believe that it protects only the
right to possess and carry a firearm in connection with
militia service. See Brief for Petitioners 11–12; post, at 1
(STEVENS, J., dissenting). Respondent argues that it
protects an individual right to possess a firearm unconnected
with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within
the home. See Brief for Respondent 2–4.
The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased,
“Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.” See J. Tiffany, A
Treatise on Government and Constitutional Law §585,
p. 394 (1867);

The Court has become a joke!