The Supreme Court effectively repealed the Second Amendment in District of Columbia v. Heller by restricting the amendment to common arms.
In March, retired Supreme Court justice John Paul Stevens called for repealing the Second Amendment, implicitly admitting that it does what, in his dissent in District of Columbia v. Heller (2008), he pretended it does not: prohibit laws infringing the right to keep and bear arms.
Why Stevens called for repeal and dissented in Heller is a mystery, however. The Second Amendment was repealed, in effect, by Heller’s majority opinion. The opinion went beyond questions raised in the case and laid out a rationale by which Congress, states, and courts could ban the private possession of many offensive and defensive arms today and all such arms of the future.
Heller asked the court to decide whether Washington DC’s bans on handguns, having a loaded firearm at home, and carrying a firearm at home without a permit violated the Second Amendment. Although on imperfect grounds, the court correctly ruled that the first two bans were unconstitutional. It also said if DC required a permit to carry a gun at home, it had to issue permits to qualified applicants. But, the court added, “[w]e may as well consider at this point . . . what types of weapons [the Court’s decision in U.S. v. Miller (1939)] permits.”
The Court Turned Stare Decisis On Its Head
Miller asked whether the National Firearms Act of 1934 violated the Second Amendment by requiring that a short-barreled shotgun be registered with the federal government. Oddly, before the court heard the case, one defendant died and the other disappeared, so their lawyer didn’t go to Washington to present evidence on their behalf.
The court thus concluded, “[i]n the absence of any evidence tending to show that possession and use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense” (emphasis added).
For the right to “ordinary military equipment” and other arms that “could contribute to the common defense,” the court cited the decision of the Tennessee Supreme Court in Aymette v. State (1840), that “the arms, the right to keep which is secured [by Tennessee’s constitution] are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.”
Heller said, “We think that Miller’s ‘ordinary military equipment’ language must be read in tandem with what comes after: ‘[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’”
However, that mischaracterizes Miller. The arms to which Miller said people have the right are those that have a “relationship to a well regulated militia.” “Ordinary military equipment” is the first example of arms the court said have that relationship, and “what comes after” is a second example: other arms that “could contribute to the common defense.” It was three paragraphs later that the court stated the obvious: people commonly possessed “common” arms.
Moreover, Heller didn’t read Miller “in tandem.” It gave weight only to Miller’s comment about “common” arms, while rejecting Miller’s and Aymette’s endorsement of the right to arms relating to militia purposes, “ordinary military equipment,” and other arms that “could contribute to the common defense.”
Why ‘Common’ Can’t Be the Standard for Owning Arms
Heller’s mischaracterization of Miller is the first reason why “common” cannot be the standard for arms to which people have the right. “Common” is also vulnerable to deliberate misinterpretation. For example, while the percentage of gun owners who own an AR-15 is about the same as the percentage of drivers who own a Mercedes, judges who oppose the right to arms would likely rule that only Mercedeses are “common.”
A second reason “common” cannot be the standard was noted by Justice Stephen Breyer in his dissent in Heller. He explained, “[T]he majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.”
Breyer had in mind the majority’s argument that fully automatic rifles, common in the military, could be banned because they aren’t common among private individuals. The circularity is that they aren’t common among private individuals because they have been prohibitively taxed since 1934, banned in about half the states for almost as long, prohibited from importation since 1968, and banned from domestic manufacture since 1986.
A third reason is that the U.S. Framers didn’t limit the right to “common” arms. For example, cannons, though not as common as handheld arms, weren’t excluded from the Second Amendment. In protecting the right to arms for defense against tyranny, the Framers intended for the people to win. Several quotations from them illustrate the point.
James Madison: “Let a regular army . . . be at the devotion of the federal government. . . . [T]he State governments, with the people on their side, would be able to repel the danger.”
Alexander Hamilton: “[The] army cannot be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”
Richard Henry Lee: “To preserve liberty it is essential that the whole body of people always possess arms.”
Tench Coxe: “As the military . . . might pervert their power to the injury of their fellow citizens, the people are confirmed by the [Second Amendment] in their right to keep and bear their private arms.”
Noah Webster: “[T]he whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.”
You Can’t Protect Freedom With a Slingshot
A fourth, and the most important, reason was pointed out, but rejected by Heller’s majority opinion, written by the late Justice Antonin Scalia, an originalist from whom we might have expected faithfulness to the Framers’ intent. Referring to fully-automatic rifles, Scalia wrote:
It may be objected that if weapons that are most useful in military service . . . may be banned, then the Second Amendment right is completely detached from the [amendment’s] prefatory clause. . . . But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Although some laud Heller for recognizing an individual right to some arms, its false standard allows Congress and the states to ban arms they and the courts claim are not “common” or that are useful “in military service.” As Breyer put it, “On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the authority to do so.”
Breyer was mocking his colleagues, but “tomorrow” is important because firearms are near the end of their 500-year era of usefulness for the military purpose the Framers intended. Notwithstanding gun-control supporters’ complaints about the supposed new-fangledness of this or that firearm or firearm accessory, firearms are glorified slingshots.
Three thousand years ago, David slew Goliath with a rock ballistically comparable to a .45 caliber pistol bullet. Gunpowder propels a bullet more predictably than a whirling leather thong, but bullets, like rocks, are inert projectiles.
Sometime this century, the government will be equipped with offensive and defensive handheld arms and even more futuristic arms that will render firearms as obsolete for defense against tyranny as bows and arrows are today. While our troops should be equipped with the best equipment possible when fighting America’s enemies, it requires little imagination to envision how extraordinary technologies, such as those developed by the Pentagon’s Defense Advanced Research Projects Agency, could be misused against the American people.
Of course, regardless of Heller and whether the Second Amendment is repealed, Americans have the right to keep and bear arms, including for defense against tyranny. As a wiser Supreme Court recognized in U.S. v. Cruikshank (1876), the right, which existed before the Constitution, is “not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”
But rights are a concept. Laws that are enforced have tangible effect. In early April, U.S. District Court judge William Young ruled that Heller’s endorsement of restrictions on fully automatic firearms permits Massachusetts to ban semi-automatic firearms and ammunition magazines that many firearms use. Other courts have upheld similar bans.
If Americans allow their rights to be choked in this manner, they could find themselves no longer in control of government, but rather at its mercy.
#350: misterwhite To: nolu chan (#344)
I cited the U.S. Constitution, the Alabama state constitution, and provided a link to the constitutions of all 50 states.
"If the state does not protect the right they may infringe it. Only in bizarro world."
I'm referring to pre-Heller/McDonald. The way it was for 200 years. The way the U.S. Constitution was written and interpreted by all courts through the centuries.
misterwhite posted on 2018-06-19 17:34:48 Reply Private Reply
#351: misterwhite To: nolu chan (#345)
Yes it was. And I reject their activist opinion for all the reasons I cited.
Your argument consists of simply repeating "It's the law" and citing, ad nauseum, excerpts from the rulings.
misterwhite posted on 2018-06-19 17:40:51 Reply Private Reply
#352: misterwhite To: nolu chan (#345)
Not in the second amendment. It was in state constitutions.
The second amendment refers to the security of a free State. Most state constitutions read "that every citizen has a right to bear arms in defense of himself and the state".
misterwhite posted on 2018-06-19 17:47:48 Reply Private Reply
#353: tpaine To: misterwrong strikes again, making a fool of himself. --- 101 (#352)
"Self-defense was the central component of the right itself." ---- Exemplified by the words of the document..
This thread is proof positive that you cannot reason with a wrong-headed idiot.
tpaine posted on 2018-06-19 18:57:29 Reply Private Reply
#354: GrandIsland To: tpaine (#353)
Don’t you proudly live in Communist North Kookifornia?
lol
GrandIsland posted on 2018-06-19 21:46:39 Reply Private Reply
#355: nolu chan To: misterwhite (#346)
Mopery is measured on the stupidity spectrum. Malicious mopery, committed against a woman on Sunday, is especially heinous (and stupid).
A state may decriminalize marijuana possession under state law. They simply repeal any state law that made it a state crime.
No state can make marijuana possession legal. A state law saying marijuana possession is legal conflicts with federal law and is null and void, and of no effect. A transgressor is still subject to federal prosecution.
If you register or acquire a state permit or license to purchase marijuana, you forfeit your right to possess a gun. You piss away your Second Amendment fundamental individual right to keep and bear arms.
A state law saying automatic weapon possession was legal in the state would be null and void, and of no effect.
Walk into the federal courthouse carrying a doobie and an M-16 and you will learn the difference. One is a minor misdemeanor and the other is a major felony. Congress has given the Department of Justice no funding to prosecute marijuana possession cases, so you won't face federal prosecution for the doobie unless they get funding.
Neither violates the Supremacy Clause. You misconstrue the Supremacy Clause just as you misconstrue the 2nd Amendment. The Supremacy Clause is a statement of which law prevails, federal or state.
States which merely decriminalize marijuana possession under state law do not violate the Supremacy Clause. Just because the federal government enacts a law making marijuana possession unlawful does not mean that a state must have such a law. The nonexistence of such a state law does not make marijuana possession lawful in the state, it just makes it non-prosecutable under state law.
A state law which purports that small amount marijuana possession is legal in the state does not violate the Supremacy Clause. It violates the applicable Federal law.
States may similarly repeal all state gun control laws without violating the Supremacy Clause. That does not make the Federal law any less applicable.
nolu chan posted on 2018-06-20 11:04:05 Reply Private Reply
#356: nolu chan To: misterwhite (#347)
It is your definition of sedition, and your allusion to it being a capital crime, which are bullshit.
For a criminal conviction, you need proof beyond a reasonable doubt of the commission of a violation of the actual criminal statute. That puts an end to your bullshit.
https://law.justia.com/codes/us/2016/title-18/part-i/chapter-115/sec.-2383/
https://law.justia.com/codes/us/2016/title-18/part-i/chapter-115/sec.-2384/
https://law.justia.com/codes/us/2016/title-18/part-i/chapter-115/sec.-2385/
nolu chan posted on 2018-06-20 11:04:49 Reply Private Reply
#357: nolu chan To: misterwhite (#348)
Who gives a shit what you claim? You repetitively claim all nature of silly bullshit. The Constitution has not yet been amended to empower you to take over the functions of the Judicial Branch.
The U.S. Supreme Court has ruled in Heller and McDonald that the 2nd Amendment right to keep and bear arms is fundamental and an individual right.
Heller, at 554 U.S. 579-80:
McDonald Syllabus at 561 U.S. 744: (boldface added)
A right protected by the Bill of Rights, only qualifies for selective incorporation via the Due Process Clause if it is determined to be fundamental. The 2nd Amendment right to keep and bear arms is a fundamental right. It was also clearly held to be an individual right.
McDonald at 561 U.S. 767: (boldface added)
McDonald at 561 U.S. 768: (boldface added)
McDonald at 561 U.S. 787: (boldface added)
nolu chan posted on 2018-06-20 11:08:02 Reply Private Reply
#358: nolu chan To: misterwhite (#349)
[misterwhite #85]
You're the one who said the RKBA is not protected by the 2nd Amendment, but is protected by state constitutions.
When asked how state constitutions perform this miracle, you say that is the question.
Apparently you never had, and still do not have, a clue as to how your state constitutions protect the 2nd Amendment RKBA. In other words, you have been caught bullshitting again.
The question is why did you claim that the RKBA is not protected by the Seconnd Amendment, but is protected by state constitutions, if your are unable to state how state constitutions accomplish this miracle.
Let's say the Federal government DID act on guns, because IT DID.
A Federal law is the Supreme Law of the land and strikes down all conflicting state law as null and void, and of no effect, let's not talk about your wet dreams.
nolu chan posted on 2018-06-20 11:08:52 Reply Private Reply
#359: nolu chan To: misterwhite (#350)
So the correct answer to my question is that you cited ONE CURRENTLY EFFECTIVE CONSTITUTION. That would be the U.S. Constitution.
You cited the first Alabama constitution of 1819 which has now passed through multiple editions. Other constitutions were in 1865, 1867, 1875, and 1901.
The current constitution at section 256 states:
Apparently you did not reject the ruling of the U.S. Supreme Court in Brown v. Topeka Board of Education, and permitted the schools to be desegregated to comply with the Court ruling.
https://en.wikipedia.org/wiki/Stand_in_the_Schoolhouse_Door
A link identifies no specific information and provides nothing to support any brain droppings you may have been muttering about.
Your argument is insane bullshit.
We are not living in pre-Heller and McDonald.
You may even be surprised to learn we are not living in pre-Plessy v. Ferguson or pre-Brown v. Topeka Board of Education.
We are not even discussing your weird notions about what the law used to be.
nolu chan posted on 2018-06-20 11:10:14 Reply Private Reply
#360: nolu chan To: misterwhite (#351)
And nobody gives a shit it you reject the rulings of the U.S. Supreme Court. Their interpretations of the Constitution in Heller and McDonald are the supreme law of the land, and all inconsistent laws were struck down as null and void, and of no effect.
I cite and provide the actual law that prevails in this country. You blather your personal bullshit which, if blathered in court, gets people sent to prison as amply demonstrated by the court opinions I provided where real people tried to argue your insane bullshit.
nolu chan posted on 2018-06-20 11:10:53 Reply Private Reply
#361: nolu chan To: misterwhite (#352)
You are still full of shit.
McDonald at 561 U.S. 767: (boldface added)
The 2nd Amendment refers to the security of a free state in the prefacing clause, not in the operative clause.
Pursuant to Heller and McDonald, individual self-defense is “the central component” of the Second Amendment right, and the right itself is a fundamental individual right. That is the supreme law of the land.
nolu chan posted on 2018-06-20 11:11:49 Reply Private Reply
#362: nolu chan To: tpaine (#353)
This thread, with the assistance of a wrong-headed idiot, is a one-stop shopping center with sources to document the falsity and vacuity of his arguments. All it needs is a bookmark for future use.
nolu chan posted on 2018-06-20 11:14:20 Reply Private Reply
#363: nolu chan To: GrandIsland, tpaine (#354)
They cannot do it without congressional consent, which may be difficult to obtain as it would give current California six senators.
nolu chan posted on 2018-06-20 11:16:08 Reply Private Reply
#364: Liberator To: nolu chan, misterwhite (#362)
At its core was it Feral vs. State authoritah vis a vis gun "rights" and limitations on certain arms? Thanks...
Liberator posted on 2018-06-20 11:21:10 Reply Private Reply
#365: Liberator To: GrandIsland, tpaine (#354)
I don't have a problem with it...other than the proposal conveniently making Frisco and Oakland part of "Northern" CA, polluting the north.
Liberator posted on 2018-06-20 11:23:08 Reply Private Reply
#366: GrandIsland To: Liberator (#365)
GrandIsland posted on 2018-06-20 11:47:14 Reply Private Reply
#367: Liberator To: GrandIsland (#366)
Right, I knew central CA was the hotbed of loons.
The problems with the south -- as you note that its where most of the conservatives hold down the fort -- is that it is inundated by La Razan invaders.
CA is in a No-Win situation. The Left has all but annexed it.
Liberator posted on 2018-06-20 12:00:06 Reply Private Reply
#368: tpaine To: nolu chan, grandisland, Y'ALL (#362)
A bookmark, and an index, without which it would be almost impossible to find the constitutional cites needed, because they are buried by your compulsion to post unneeded 'lost in the weeds' legal cites.
Nevertheless, you've made a good effort, (congrats), but be prepared for the idiot to ignore you and find someone else to target with his agitprop. ---- That is his pattern, along with using other 'personalities' (grandisland, roscoe, etc) for disruptive purposes..
tpaine posted on 2018-06-20 14:13:01 Reply Private Reply
#369: misterwhite To: GrandIsland (#354)
If he doesn't he'll move there.
misterwhite posted on 2018-06-20 15:12:11 Reply Private Reply
#370: misterwhite To: nolu chan (#355)
Federal laws trump state laws to the contrary -- whether we're talking about illegal drugs or guns. Period.
Don't try to weasel your way out by citing the "type" of violation or whether or not the government funds prosecution.
And I'm not talking about decriminalization. I'm talking about a state LEGALIZING a federally controlled substance for medical or recreational use. That violates federal laws to the contrary. That violates the Supremacy Clause. That's what the U.S. Supreme Court concluded in Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005).
So again I ask. How is that any different than a state legalizing the possession of a weapon banned by the federal government? If you were fucking honest for a fucking change, you'd reply, "There is no difference, misterwhite. None at all."
misterwhite posted on 2018-06-20 15:28:07 Reply Private Reply
#371: misterwhite To: nolu chan (#357)
Either they're full of shit or you are. The right may be "fundamental" to some goal, but it's not a fundamental right.
As proof, there's this. Any law infringing on a fundamental right must pass strict scrutiny by a court. Heller was not decided under strict scrutiny.
misterwhite posted on 2018-06-20 15:51:59 Reply Private Reply
#372: misterwhite To: nolu chan (#358)
Let's try again.
You said the question is NOT whether some federal act is infringement. Well, federal laws ARE an infringement on the individual RKBA.
The protection of the individual RKBA falls under state constitutions, not the federal government or the second amendment. So when the federal government passes a law that infringes on the individual RKBA, the state is powerless to protect that right.
So the real question IS whether or not the federal government laws are an infringement on the individual RKBA. I say they are because the federal government was not given the power to ban guns.
That's what I meant.
misterwhite posted on 2018-06-20 16:02:43 Reply Private Reply
#373: misterwhite To: nolu chan (#358)
True. But you said, "The question is not whether some federal act is infringement."
Well, how do you wish to proceed? You say the Federal government DID infringe on guns ... but that's not the question.
I say it IS the question. A big one. Where did the federal government get the power to ban the individual ownership of guns? And where does that power stop? And what stops that power?
Because once the federal government starts passing laws that infringe on the individual RKBA, the states can't stop that. The states can't shield their citizens from those laws.
misterwhite posted on 2018-06-20 16:16:26 Reply Private Reply
#374: misterwhite To: nolu chan (#360)
So we can't debate Roe v Wade, or Kelo, or any other U.S. Supreme Court decision because shut up?
misterwhite posted on 2018-06-20 16:18:57 Reply Private Reply
#375: misterwhite To: nolu chan (#361)
Only because Heller and McDonald said that individual self- defense is “the central component” of the Second Amendment right.
Circular reasoning. It is because they said it is.
They made it up. They referenced … … nothing. They said it so that means it's true.
Well, the second amendment says NOTHING about individual self defense. It does, however, refer to the security of a free State.
STATE constitutions are very specific. THEY refer to "defense of self and the state".
misterwhite posted on 2018-06-20 16:27:57 Reply Private Reply
#376: misterwhite To: Liberator (#364)
Subsequent to the Heller ruling, nolu chan says it's the second amendment. When asked what protects state militias and their arms from federal infringement, he says nothing does.
I maintain the Heller decision was wrong, that state constitutions protect the individual citizen's right to keep and bear arms in their state, that the second amendment protects state militias and their arms from federal infringement, and that most federal laws against guns are unconstitutional.
misterwhite posted on 2018-06-20 19:19:29 Reply Private Reply
#377: nolu chan To: Liberator (#364)
misterwhite is a persistent purveyor of fake law. When the legal whore gets caught streetwalking, he moves to a new corner and starts over as a virgin.
At its core, state laws inconsistent with federal laws are null and void, and of no effect. That whole matter is a fake law argument, a dead letter under the Supremacy Clause of the Constitution.
nolu chan posted on 2018-06-21 10:52:02 Reply Private Reply
#378: nolu chan To: misterwhite, Liberator (#376)
nolu chan says it is the 2nd Amendment since 1791.
The 2nd Amendment protects the individual right of the people to keep and bear arms. That includes those civilians enrolled in the unorganized militia.
The Federal Congress at Art. 1, §8, Cl. 16, was empowered "[t]o provide for organizing, arming, and disciplining the Militia."
The Federal government has organized the militia as the National Guard and provides ALL the weapons for the National Guard. The weapons remain the property of the Federal government. Being on active duty in the National Guard (or Regular Armed Forces) brings no "right" to keep and bear arms. Medics and clerics are prohibited from keeping and bearing arms, as are those previously convicted of misdemeanor domestic violence.
For the umpteenth time, Heller did NOT protect the individual citizen's right to keep and bear arms in their state. Dick Heller was a resident of the federal District of Columbia. Heller (2008) did NOT incorporate the 2nd Amendment into the 14th Amendment. McDonald (2010), a case arising in Illinois, incorporated the 2nd Amendment into the 14th Amendment and made its protections fully enforceable against the 50 states.
It is legally impossible for a state constitution to protect against a federal law. The federal law must be challenged in federal court.
This is directly contrary to Heller and McDonald.
The fact is that federal courts have held such laws to be constitutional, and inconsistent provisions of state constitutions are null and void, and of no effect.
nolu chan posted on 2018-06-21 10:54:42 Reply Private Reply
#379: nolu chan To: misterwhite (#370)
That does not violate the Supremacy Clause, it violates the inconsistent Federal law. As such, the state law is null and void ab initio, of no effect.
Try to buy a gun, fill out ATF Form 4473, Firearms Transaction Report, which asks and warns at 11(e): [emphasis as in original]
The warning above the signature block reads in relevant part: (emphasis added)
Register to obtain marijuana under an invalid state law and you are considered a drug user. Lie about on your AFT-4473 and commit a felony.
That is not any conclusion of Raich which stated:
A federal law prevails over an inconsistent state law. The state law is struck down by the federal law, not for being unconstitutional.
nolu chan posted on 2018-06-21 10:57:02 Reply Private Reply
#380: nolu chan To: misterwhite (#371)
Recycled sewage.
nolu chan posted on 2018-06-21 10:57:35 Reply Private Reply
#381: nolu chan To: misterwhite (#372)
Recycled sewage.
nolu chan posted on 2018-06-21 10:58:11 Reply Private Reply
#382: nolu chan To: misterwhite (#373)
Therefore, the states cannot hypothetically protect the 2nd Amendment fundamental individual right to keep and bear arms from hypothetical Federal infringement. Arguments that it can or does are fake law.
nolu chan posted on 2018-06-21 10:59:00 Reply Private Reply
#383: nolu chan To: misterwhite (#374)
You can debate Roe or Kelo or even Dred Scott v. Sandford. What you cannot do is pronounce your misconceived personal bullshit as the actual law, replacing the opinion of SCOTUS.
nolu chan posted on 2018-06-21 10:59:32 Reply Private Reply
#384: nolu chan To: misterwhite (#375)
Recycled sewage.
nolu chan posted on 2018-06-21 11:00:01 Reply Private Reply
#385: tpaine To: nolu chan, Y'ALL (#382)
Good question, which you haven't addressed. -- Can you? -- In your own words, please..
tpaine posted on 2018-06-21 13:49:01 Reply Private Reply
#386: tpaine To: Grandiose, misterwrong, Y'ALL (#354)
Here we have two kooky 'personas' responding to itself, making idiotic comments about a previously great state where Governor Reagan began his climb to the Presidency..
After the army, I moved to San Mateo Co. (Bay Area) in 1958, and five years ago retired to Plumas Co. -- Both are considered to be in Northern California, but only the coastal areas are now infested with communistic types who distain our Constitution.. --- As do our two fascistic clowns above.
Strange bedfellows, fascists and communists, who have a special hate for conservatives --- like most of us here on LF..
tpaine posted on 2018-06-21 14:35:29 Reply Private Reply
#387: nolu chan To: tpaine (#385)
Where did your get the legal authority to beat your wife, where does that authority end, and when are you going to stop beating your wife?
nolu chan posted on 2018-06-21 15:35:32 Reply Private Reply
#388: tpaine To: nolu chan, Y'ALL (#387)
Mr.Wrong and I applaud your idiotic response to a valid question...
Got any smarts?
tpaine posted on 2018-06-21 15:53:46 Reply Private Reply
#389: Liberator To: nolu chan, misterwhite (#377)
Thank you both for responding and clarifying your respective perspective/opinion. Now I can try and make some sense out of the thread debate.
Perhaps my impression of this debate did apply ("Feral vs. State authoritah vis a vis gun "rights") in the strictest sense.
The Tenth Amendment:
“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”.
We run into potential trouble here as many might see it.
One problem is concern that original intent of the Founders might be mis-interpretated by contemporary federalists.
We also have another problem with constitutional interpretation of those 9 Black Robed SCOTUS (who may believe in a "living, breathing document") -- but that may be another argument for another day.
IF the Supremacy Clause is considered THE final authority of judicial arbitration in the strictest sense, and end-all of debate between Fed vs State Law, then wouldn't (or couldn't) it theoretically render ALL State Law as either irrelevant or un-necessary?
Liberator posted on 2018-06-21 15:57:31 Reply Private Reply
#390: misterwhite To: Liberator (#389)
Yes. But ONLY if the federal government has the constitutional power to write the law.
misterwhite posted on 2018-06-21 16:28:18 Reply Private Reply
#391: tpaine To: Liberator, Y'ALL (#389)
The big misconception here, made by nearly everyone, is that SCOTUS opinions change the Constitution and/or constitutional laws.. They do strike down unconstitutional laws, both fed and state.
Otherwise, these opinions only apply to the case at hand/lesser courts, --- they also serve as advisory opinions to guide the legislative/executive branches of fed and state governments on lawmaking and enforcement.
tpaine posted on 2018-06-21 16:44:47 Reply Private Reply
#392: tpaine To: misterwhite, nolu chan, Y'ALL (#390)
And in this case, the Constitution does NOT give Congress the power to write laws that infringe on our right to bear arms..
In fact, given the principles inherent in all our founding documents, it stands to reason that this right cannot be abriged, -- it cannot be amended away..
tpaine posted on 2018-06-21 17:01:15 Reply Private Reply
#393: nolu chan To: Liberator (#389)
As for the militia, the Constitution gives the unilateral power to the Congress to, "provide for organizing, arming, and disciplining, the Militia...."
The operative clause of the 2nd Amendment states, "the right of the people to keep and bear arms, shall not be infringed."
It was a pre-existing right of the people, and the people did not delegate it to either the Federal government or the State government. It is still the right of the people. The Second Amendment was an act of the people, not the government. The 2nd Amendment neither created the right, nor bestowed it upon anyone. The 2nd Amendment was a restriction placed by the people on the federal government, in protection of their right to keep and bear arms.
The right to keep and bear arms was the English common law right of the colonists under British rule. Heller notes that, "By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred."
The Due Process clause of the 14th Amendment reads, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law...."
Originally, the Bill of Rights only restrained the federal government. The Due Process Clause of the 14th Amendment reads, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law...." This post-war Amendment applied to the states. For many years, the Supreme Court has acted on the provisions of the Bill of Rights piecemeal, and holdinng that the Due Process Clause incorporates particular rights contained in the first eight Amendments, making them enforceable against the states. McDonald found that the 2nd Amendment right to keep and bear arms is fundamental to our scheme of ordered liberty and system of justice. McDonald also observed that, "The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights," and gives voluminous citation to those early Americans. Heller found, and McDonald affirmed, that "individual self-defense is the central component of the Second Amendment right."
I am not arguing the law that ought to be, but that law that is. One may readily argue that Roe is wrongly decided, and abortion will still be legal in all 50 states, and may not be banned by any state. Arguing that a SCOTUS opinion is wrongly decided does not change it. They are the ultimate arbiter of the law.
nolu chan posted on 2018-06-21 17:44:24 Reply Private Reply
#394: nolu chan To: tpaine (#392)
Congress does not claim any such power. The right to keep and bear arms is not absolute, and never has been. It has never applied to weapons not lawful to possess, and is subject to regulation, just as are other rights. The right to free speech is not the right to utter falsehoods under oath or to commit libel or slander with impunity.
You simply adopt a false definition of the right, then attack your straw man.
The 2nd Amendment right to keep and bear arms does not mean that everyone has a right to keep and bear an illegal-to-possess M-16 or a nuclear bomb.
nolu chan posted on 2018-06-21 17:50:37 Reply Private Reply
#395: nolu chan To: tpaine, Liberator (#391)
That is complete bullshit, as I have informed you many times over.
SCOTUS interpret constitutional provisions. Those interpretations may change.
Plessy v. Ferguson found seperate but equal to be constitutional. Brown v. Board of Education found seperate but equal to be inherently unequal and unconstitutional. There were segregated schools, and then there were not.
If Roe only applied to the case at hand, why is abortion lawful in all 50 states, and cannot be prohibited by any of the 50 states?
Federal courts are prohibited from issuing advisory opinions.
The opinions they do issue are anything but advisory.
Black's Law Dictionary, 6th Ed.
https://www.law.cornell.edu/wex/advisory_opinion
https://founders.archives.gov/documents/Washington/05-13-02-0263
George Washington requested an advisory opinion from the U.S. Supreme Court. In a letter signed by Chief Justice John Jay and four associate justices, the Court politely refused.
nolu chan posted on 2018-06-21 18:22:53 Reply Private Reply
#396: misterwhite To: nolu chan (#393)
So? You can't cite a portion of the second amendment, call it "The Operative Clause", pretend it stands alone, then sit back like that explains everything. Worse, claim things that aren't there -- like "self-defense is the central component of the right itself".
Huh? What if I claimed that hunting is the central component of the right itself? You buy that? I think you'd ask me to support such a claim.
Anyways, you can't omit the first part -- "A well regulated Militia, being necessary to the security of a free State" -- because that part explains your "operative clause". Why else put in in the second amendment? You don't like it because it totally fucks up your individual rights theory.
Lastly, the phrase "to keep and bear arms" is a military phrase. The Founders intentionally used that phrase because that is what they wished to protect from federal infringement.
misterwhite posted on 2018-06-21 18:35:22 Reply Private Reply
#397: misterwhite To: nolu chan (#394)
It IS absolute if you read the second amendment the way you should -- protecting state Militias and the RKBA of those who are a part of them from federal infringement. No militia arms may be banned, regulated, registered, or even taxed by the federal governent.
Shall not be infringed. Put there for a reason.
misterwhite posted on 2018-06-21 19:02:50 Reply Private Reply
#398: misterwhite To: nolu chan (#394)
Not everyone, no.
But if M-16's and nuclear weapons existed in 1790, the federal government could not prevent the state militias from having them.
misterwhite posted on 2018-06-21 19:07:18 Reply Private Reply
#399: tpaine To: nolu chan, Y'ALL (#394)
Your opinion that The right to keep and bear arms is not absolute, and has never applied to weapons not lawful to possess, --- is absolute bull that you've made up, or worse, have plagiarized from some bullshit 'legal source'.
You also make the point of that not everyone has a right to keep and bear an illegal-to-possess M-16 or a nuclear bomb.
Full auto rifles are arguably 'illegal', and that opinion will hopefully be re- addressed someday by a more rational Court.. --- Nukes really aren't really bearable arms, as perhaps even a nitpicker like you will admit..
tpaine posted on 2018-06-21 19:18:14 Reply Private Reply