Today's lesson in the constitution

[Flash]

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56."

Supreme Court, 2008

 

[Craig234]

Why do you think the founding fathers did not simply shorten the second amendment to, "The right of the people to keep and bear arms shall not be infringed"?

It's a VERY limited document in its verbosity. Rights like free speech get only two words, "free speech". Yet, they added a lot of words to the second amendment in addition to the above - why.

 

[Abatis]

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose

As long as the right's protection sphere is filtered through whether the weapon has military usefulness / its use can contribute to the common defense, the civilian possession and use of arms that are -- not usual -- for civilized warfare can be restricted, AKA, "dangerous and unusual", see US v Miller's sawed-off shotgun.

"For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.

The reason concealed weapon prohibitions were not considered violations of the 2nd Amendment is because the 2nd Amendment was not enforceable against state or local laws until McDonald v Chicago, 2010.

"The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

As usual, an anti "forgets" to include footnote 26 which has been proven to be the significant legal statement of the Heller decision.

26 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive."​

Since Heller, lower federal courts have accepted argument questioning all gun control laws, even those seemingly unquestionable under Heller like felon dispossession laws as only being "presumptively lawful", forcing the government to present evidence and argument that the law passes constitutional muster. In 2011 the 3rd Circuit said:

"As the Government concedes, Heller’s statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose Barton’s as-applied challenge. By describing the felon disarmament ban as “presumptively” lawful, the Supreme Court implied that the presumption may be rebutted." -- U.S. v. Barton, 633 F.3d 168 (3d Cir. 2011)​

Of course felon disablement of gun rights were/are sustained because they are founded on legitimate exercises of government authority which have been upheld many times using a wide range of legal reasoning under constitutional and common law.

Now, on the other hand, the hundreds of gun control laws that were upheld by citing US v Tot or Cases v US (and their many illegitimate progeny) and reasoned upon the "collective right" theories that the 2nd does not secure an individual right, WILL BE STRUCK DOWN.

"Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons."

"Dangerous and unusual" is not a descriptor that the government gets to label a gun and advance gun control. "Dangerous and unusual" is what an arm is after it has failed ALL the protection criteria established by SCOTUS in Miller.

Only if the arm is NOT of a type that constitutes the ordinary military equipment and/or of a type that can be employed advantageously in the common defense of the citizens and/or if it is of a type in common use at the time by the general citizenry, can it be described as "dangerous and unusual" and the government can argue that a power should be recognized to allow government to restrict its possession and use by private citizens.

If the arm meets ANY of the criteria, the citizen's right to keep and bear that arm will be preserved and any authority claimed by government to restrict its possession and use must be repelled or invalidated.

 

[Abatis]

Why do you think the founding fathers did not simply shorten the second amendment to, "The right of the people to keep and bear arms shall not be infringed"?

It's a VERY limited document in its verbosity. Rights like free speech get only two words, "free speech". Yet, they added a lot of words to the second amendment in addition to the above - why.

Because the federal provisions were a product of the suggested amendments submitted by the states. The states all lumped together standing army, military subordination and citizen RKBA into one amendment in their constitutions, it was what they were familiar with.

1776 North Carolina: That the people have a right to bear arms, for the defence of the State; and as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power. . . .

1777 Vermont: That the people have a right to bear arms for the defence of themselves and the State—and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.

1780 Massachusetts: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

1790 Pennsylvania: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.​

The separate prongs of these directives were never considered interdependent (that all must exist for any to be actionable, i.e., that if a standing army does exist, the right to arms of the people doesn't).

Actually, it is clear that the standing army declarative clauses can never actually be brought to fruition. They are merely declarations of inactive principle. It can't possibly refer to state action because the states are forbidden to keep troops by the federal Constitution and it certainly can not be interpreted to prevent the federal government from exercising its supreme Art I, § 8, cl's 11, 12, 13 & 14 powers.

The declaration in the federal 2nd Amendment, "[a] well regulated Militia, being necessary to the security of a free State" is inextricably meshed (philosophically) with, "as standing armies in time of peace are dangerous to liberty, they ought not to be kept up." To the framers each represented the same sentiment . . .

The declaratory clause of the 2nd Amendment only re-affirms what once was a universally understood and accepted maxim; that the armed citizenry dispenses with the need for a standing army (in times of peace) and those armed citizens stand as a barrier to foreign invasion and domestic tyranny (thus ensuring the free state).

So, without a doubt the inactive, dependent declaratory clause can only be said to be a statement of why the AMENDMENT exists and as such it does not create, qualify, condition, modify or constrain the pre-existing right; it only states one reason (the political one) for why the fully retained BY THE PEOPLE right is being forever shielded from government interference.

.

 

[SmarterthanYou]

Why do you think the founding fathers did not simply shorten the second amendment to, "The right of the people to keep and bear arms shall not be infringed"?

It's a VERY limited document in its verbosity. Rights like free speech get only two words, "free speech". Yet, they added a lot of words to the second amendment in addition to the above - why.

it was a reason to denote just why, exactly, the right of the people shall not be infringed. not that the people must be well regulated by the government, but it's definition at that time of we the people being trained and have well working arms and equipment to live in a secure state.

 

[Craig234]

Because the federal provisions were a product of the suggested amendments submitted by the states. The states all lumped together standing army, military subordination and citizen RKBA into one amendment in their constitutions, it was what they were familiar with.

1776 North Carolina: That the people have a right to bear arms, for the defence of the State; and as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by the civil power. . . .

1777 Vermont: That the people have a right to bear arms for the defence of themselves and the State—and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.

1780 Massachusetts: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

1790 Pennsylvania: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power.​

The separate prongs of these directives were never considered interdependent (that all must exist for any to be actionable, i.e., that if a standing army does exist, the right to arms of the people doesn't).

Actually, it is clear that the standing army declarative clauses can never actually be brought to fruition. They are merely declarations of inactive principle. It can't possibly refer to state action because the states are forbidden to keep troops by the federal Constitution and it certainly can not be interpreted to prevent the federal government from exercising its supreme Art I, § 8, cl's 11, 12, 13 & 14 powers.

The declaration in the federal 2nd Amendment, "[a] well regulated Militia, being necessary to the security of a free State" is inextricably meshed (philosophically) with, "as standing armies in time of peace are dangerous to liberty, they ought not to be kept up." To the framers each represented the same sentiment . . .

The declaratory clause of the 2nd Amendment only re-affirms what once was a universally understood and accepted maxim; that the armed citizenry dispenses with the need for a standing army (in times of peace) and those armed citizens stand as a barrier to foreign invasion and domestic tyranny (thus ensuring the free state).

So, without a doubt the inactive, dependent declaratory clause can only be said to be a statement of why the AMENDMENT exists and as such it does not create, qualify, condition, modify or constrain the pre-existing right; it only states one reason (the political one) for why the fully retained BY THE PEOPLE right is being forever shielded from government interference.

I think that's mostly a fair point. But it's also fair to note that since we've gone from 'no standing army' to a VAST standing army with military spending almost the same as the rest of the world, ally and adversary, combined, and since the large majority of the
country now lives in urban environments where almost none did then with everyone living in rural environments, with guns killing many thousands a year, the context for the right can certainly be said to have changed.

With the right to self-defense recognized, it can be argued that self-defense in today's cities would mean a ban on things like handguns rather than the right to have them.

But gun advocates do not want to admit or address any of these changes.

 

[Abatis]

I think that's mostly a fair point. But it's also fair to note that since we've gone from 'no standing army' to a VAST standing army with military spending almost the same as the rest of the world, ally and adversary, combined, and since the large majority of the
country now lives in urban environments where almost none did then with everyone living in rural environments, with guns killing many thousands a year, the context for the right can certainly be said to have changed.

That's not fair at all. That's not how the powers of government are expanded. Besides, if there is one sphere of power in society that government possesses with near plenary authority, it is to arrest, prosecute and imprison criminals. That government is derelict in this duty and criminals are free to rampage and kill citizens without repercussion does not create a condition where the rights of the law-abiding citizen are drawn into question and cancelled or sacrificed (and I'm not agreeing that such cancelling or sacrificing can even be done).

With the right to self-defense recognized, it can be argued that self-defense in today's cities would mean a ban on things like handguns rather than the right to have them.

Uhhhhh, no. Unless government is willing to alter the longstanding legal truth that government agents like police are not duty bound or legally responsible for the personal security of any person, they can not extinguish the citizen's right to self-defense.

Besides, handgun bans have already been invalidated and are officially "off-the-table". Assault weapon bans will certainly follow the same outcome when one finally reaches the High Court.

But gun advocates do not want to admit or address any of these changes.

Correct. I will never accept any statement or proposal that the benchmark for my rights as a law-abiding citizen is the behavior of anti-social criminals.

 

[Craig234]

That's not fair at all. That's not how the powers of government are expanded. Besides, if there is one sphere of power in society that government possesses with near plenary authority, it is to arrest, prosecute and imprison criminals. That government is derelict in this duty and criminals are free to rampage and kill citizens without repercussion does not create a condition where the rights of the law-abiding citizen are drawn into question and cancelled or sacrificed (and I'm not agreeing that such cancelling or sacrificing can even be done).

Your thinking is very backwards. Government is not derelict in preventing crime. Smothering the society in handguns easily available to very would-be criminal, THAT is the cause of the crime and there's nothing government can reasonable do to prevent that crime EXCEPT reduce the number of available handguns to the criminals.

No matter how much you want to say the 'good guy with the gun' solves everything, as long as would-be criminals easioly have handguns, they will ALWAYS be able to use getting to choose when and where to commit a crime and the element of surprise to their advantage and if EVERY 'good guy' in the country had a gun at all times it would not stop large numbers of crimes from happening and the criminals often not getting caught.

And yes, changing circumstances DO affect how rights are interpreted. Otherwise, the rights end up being meaningless and trampled as changing situations and technologies make the old literal versions obsolete.

 

[SmarterthanYou]

Your thinking is very backwards. Government is not derelict in preventing crime. Smothering the society in handguns easily available to very would-be criminal, THAT is the cause of the crime and there's nothing government can reasonable do to prevent that crime EXCEPT reduce the number of available handguns to the criminals.

are you seriously trying to say that there would be no more crime if all handguns disappeared?

No matter how much you want to say the 'good guy with the gun' solves everything, as long as would-be criminals easioly have handguns, they will ALWAYS be able to use getting to choose when and where to commit a crime and the element of surprise to their advantage and if EVERY 'good guy' in the country had a gun at all times it would not stop large numbers of crimes from happening and the criminals often not getting caught.

is there a criminal out there that would choose to commit a crime if there were 3 or more people carrying a gun in the vicinity?

And yes, changing circumstances DO affect how rights are interpreted. Otherwise, the rights end up being meaningless and trampled as changing situations and technologies make the old literal versions obsolete.

they are only affected by interpretation from people who believe they can alter the rights of others to feel safe or by people who believe government has unlimited power and authority to adapt to situations as they see fit. constitutions become worthless at that point.

 

[Abatis]

Your thinking is very backwards. Government is not derelict in preventing crime.

Well, when government has the power, duty and the responsibility to do something and it refuses, that's dereliction. That you want to give government more power, over people who have done nothing wrong, is just insanity (or totalitarian fantasy).

Smothering the society in handguns easily available to very would-be criminal, THAT is the cause of the crime and there's nothing government can reasonable do to prevent that crime EXCEPT reduce the number of available handguns to the criminals.

You can rationalize that you just want government to reduce the number of guns available to criminals but the mechanism to achieve that is to make guns unavailable to everyone, even law-abiding citizens . . . Problem is, government doesn't have that power; doing that is specifically and expressly forbidden.

No matter how much you want to say the 'good guy with the gun' solves everything,

I'm not arguing that an armed citizen owes or performs any service to society; my argument is strictly confined to what government is allowed to do according to the powers granted to it in the Constitution. The citizen is free to act according to his own conscience as he sees fit, arming himself if he wishes . . . It is a "right" right?

as long as would-be criminals easioly have handguns, they will ALWAYS be able to use getting to choose when and where to commit a crime and the element of surprise to their advantage and if EVERY 'good guy' in the country had a gun at all times it would not stop large numbers of crimes from happening and the criminals often not getting caught.

Again, the actions of criminals is not the scale used to define /delineate the rights of the law-abiding citizen.

You should be advocating a strong criminal justice system that can efficiently bring criminals to justice and protect society. Criminal homicide is a crime of narrow geography and demographics, we know where it happens most often and to whom . . .

Over 60% of criminal gun homicide occurs in less than 2% of US counties.

You wanting to direct gun control laws and restrictions on people who are least likely to commit any gun crime is kindasorta goofy; that the people who are actually responsible for gun crime are never going to be impacted by your proposed laws seems lost on you (assuming that you are not a statist absolutist and totalitarian control over the citizens isn't your ultimate goal).

And yes, changing circumstances DO affect how rights are interpreted. Otherwise, the rights end up being meaningless and trampled as changing situations and technologies make the old literal versions obsolete.

Some rights (legally deemed "fundamental") are the foundation upon which all other conceptualizations of rights is built upon and understood. By their foundational nature they are unalterable.

The "right to abortion" is a derivative of the right of privacy which was legally recognized to spring from the "penumbras and emanations" of the first eight rights secured in the Bill of Rights (Griswold v CT).

If one really wanted to drill down into rights theory, the hostility the left has for the right to arms could be used to argue that the legal reasoning by which the right to privacy was recognized (invented) is facially invalid . . . If the right to arms can be disrespected, excised out and discarded, then the "rational continuum of liberty" the Bill of Rights represents, is a myth thus the entire legal structure that has been built upon that fiction, is illegitimate (privacy, abortion, contraception, LGBTQ rights).

People like you and evince and dormer76, that demonstrate such little real understanding of the Constitution, its foundational principles and its operation, should be careful what they wish for . . .

.

 

[Nordberg]

fact is the Roberts court has been the most activist in generations. They take cases and stretch them where they want to go. They don't stop at the case in front of them but push it beyond.https://www.huffingtonpost.com/2013/06/26/supreme-court-doma_n_3434870.html

 

[Craig234]

Abatis, I understand the constitution. You, on the other hand... your comment is pretty offensive in addition to wrong. But your post makes it of less interest to bother explaining to you further. You go on with your limited understanding and no solutions.

 

[Abatis]

Abatis, I understand the constitution. You, on the other hand... your comment is pretty offensive in addition to wrong. But your post makes it of less interest to bother explaining to you further. You go on with your limited understanding and no solutions.

LOL. The only thing you understand is how to rationalize unconstitutional crap into being plausible (in your own mind).

Solutions? The problem with you anti-gunners is that you want to create laws while keeping your ignorance of what can be done is preserved . . . What should be done is entirely dependent upon what can be done.

As far as my solutions go, I am all for strictly enforcing 18 U.S.C. §922(g) and for strictly applying all firearm dispossession called for in law, by force if necessary. I have no sympathy for people who can't keep their nose clean and I see no reason to be concerned about their rights if they aren't concerned about preserving their "law-abiding citizen" status.

I'm for holding state government officials and federal agency heads criminally and civilly liable for failure to comply with NICS reporting requirements. Every single asshole who meets the federal dispossession / no buy criteria, must be in the background check database. As it stands now, the NICS databse is a fucking joke.

As for actual actions of government, here's my list of initiatives that would reduce overall criminal use of guns significantly without harming the rights of a single law-abiding citizen:

1) Enforce with vigor laws criminalizing the violent misuse of firearms; don't use weapons offenses as bargaining chips to be thrown out for guilty pleas for other charges and never allow the pleading down of felony gun charges to misdemeanors.

2) Mandate full time sentenced to be served for any violent misuse of a firearm.

3) Enhanced sentences for repeat offenders / felon in possession with reduced appeal opportunities.

4) Mandate states and all federal agencies who adjudicate, to maintain the most up-to-date database of prohibited persons possible (including a red flag for mental issues - HIPPA be damned). and this be shared with the FBI NICS and all other states – with criminal penalties and civil liability for ignoring the law.

5) Increase funding for parole/probation programs for enforcement of conditions of release and tightening of controls on those under conditional release and oversight of the boards responsible for early release.

6) Increase funding for states / cities for FTA & fugitive recovery with a priority on violent offenders.

7) Enact nationwide concealed weapon permit reciprocity for law-abiding citizens that no state or municipality can opt out of.

​

If these initiatives were mandated and continued, criminal homicide would fall by 50% in three years.

.

 

[Craig234]

How not to get read.

 

[Abatis]

How not to get read.

I don't care if you don't read.

I don't post to win you over; I post to sway the interested lurker.

I only need you to do exactly what you are doing . . . surrender and resign from defending your beliefs / position.

You are the epitome of why the left always loses the gun control debate.

1) you're wrong.
2) you stick your fingers in your ears and sing Henry the Eighth I Am when someone rebuts you.
3) you run away

All I have to say is, keep it up!

 

[SmarterthanYou]

Abatis, I understand the constitution.

I seriously question this and highly doubt the veracity of your claim that you understand the constitution when it's quite clear that you've only accomplished obtaining your opinions by ignoring the numerous items of factual information derived from the commentaries, debates, and actual constitutional minutes that are in lots of places for anyone to read at their choosing. Reading the founders documents is the ONLY way to get a clear understanding of the constitution. relying on subsequent court cases only muddies its value because it's been 'interpreted' via non founder ideology.

 

[Craig234]

I don't care if you don't read.

I don't post to win you over; I post to sway the interested lurker.

Good, because that's as far as you got, further than the next one.

And you're not doing well.

 

[evince]

The first thing Hamilton did was to propose powers not granted in the Constitution by creating a national bank.

FOUNDERS


notice the s on the end of that word?



it is NOT about what one founder said huh


its about what was agreed to in the contenental congress.


the discussion give us what certain members were thinking

remember

they lived in a time and a place where a GUN was live or death do to the need to hunt food

 

[evince]

and what was the decision come to by they founders?

to have a bill of rights in the constitution


the fear was people might think new rights were not going to be honored.


honor them


mmmkay

post 71

 

[evince]

Federalist No. 84 is an Alexander Hamilton essay titled "Certain General and Miscellaneous Objections to the Constitution Considered and Answered", the eighty-fourth of The Federalist Papers, published under the pseudonym Publius on July 16, July 26, and August 9, 1788.
Federalist No. 84 is notable for presenting the idea that a Bill of Rights was not a necessary component of the proposed United States Constitution. The Constitution, as originally written, did not specifically enumerate or protect the rights of the people. It is alleged that many Americans at the time opposed the inclusion of a bill of rights: if such a bill were created, they feared, this might later be interpreted as a list of the only rights that people had. Hamilton wrote:
It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Carta, obtained by the Barons, sword in hand, from king John...It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. "We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government....
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.

https://en.wikipedia.org/wiki/Federalist_No._84


post 70