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Old 09-09-2019, 10:04 AM
Abatis is offline
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Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by iiandyiiii View Post
I'm not sure why this makes a difference, legally speaking (though IANAL). If the 2nd Amendment were repealed, then there's nothing in the Constitution that prevents states from passing laws that ban guns. Whether or not there is some magical non-corporeal "right" to bear arms that exists outside of law, if laws are passed, and remain on the books, that ban guns, then any such right is moot.
First off, the right to arms is not granted, given, created or established by the 2nd Amendment. Repealing it would not allow the federal government to "infringe" on the right. The People possess the right because we never granted to government any power to impact the personal arms of the private citizen. Granting that new power would need to happen, repeal the 2nd to remove the redundant prohibition to exercise powers never granted and then grant the feds the new (hopefully specifically defined) power to restrict the citizen's arms possession and use.

This discussion is focused primarily on federal law and how that is either bound or unencumbered by the framers original intent.

Original intent (and action) of the Bill of Rights was that it did not bind state action at all. The 14th Amendment (1868) changed that dynamic (or was supposed to). Fact is, the 2nd Amendment has not been much of an impediment to state laws at all, even after it was finally "incorporated" under the 14th in 2010 (in McDonald v Chicago which invalidated Chicago's handgun ban).

The only binding action emanating from the federal Constitution for protecting the right to arms of state citizens flows from the Constitution's promise to forever provide a Republican form of government. Because the armed citizens also serve as the reserve military force of the nation, as well as the states, the states can not disarm their citizens. (see Presser v Illinois)