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Old 09-12-2019, 04:31 PM
Abatis is offline
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Originally Posted by Hamlet View Post
Cruikshank: " The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution."

As I pointed out to Bone, I do think there is a right to self-defense and a right to keep and bear arms, so, in effect, I kinda agree with Cruikshank.
Is that you saying your earlier statement that Heller recognized "a right that, according to precedent, had not been recognized before . . . " was wrong?

Originally Posted by Hamlet View Post
You continue to cite Cruikshank, which, as you pointed out, was a racist decision based on bad intent, has been overrruled multiple times, and was decided decades before Miller.
Overruled as to its holding on the 14th Amendment; I'm not aware of any case that abrogates Cruikshank on the point I'm citing it for. In fact that point was expanded 10 years later in Presser v. Illinois., 116 U.S. 252 (1886) and of course, re-affirmed in Heller.

The Presser opinion, written by Justice Woods, quotes Cruikshank on this point but the case-specific language of Cruikshank is excluded and Woods inserts the familiar words of the 2nd Amendment instead (without any reference to the declaratory clause):
" . . . in the case of U. S. v. Cruikshank, 92 U. S. 542, 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress."
I find this intriguing because Woods is essentially putting words in the mouth of Chief Justice Waite and could be seen as greatly widening Waite's direct quote of the Cruikshank indictment. It can be safely surmised that Waite agreed with this paraphrase though, since he was still serving on the Court as Chief Justice and obviously put his signature on this opinion (it being unanimous).

So I argue the Court obviously believes that Cruikshank's "the right of bearing arms for lawful purpose" as exercised by Levi Nelson and Alexander Tillman, citizens of the United States, of African descent and persons of color -- that of carrying guns for self defense in public -- is, in action and effect, completely and unequivocally legally interchangeable with the 2nd Amendment recognized and secured, "the right of the people to keep and bear arms".

Whatever you want to say about Cruikshank and how it is of dubious application due to its underlying flaws, in Presser the Court removed all doubt on this point:

  • The right of the people to keep and bear arms = the right of bearing arms for lawful purpose = carrying guns for self defense in public.

Originally Posted by Hamlet View Post
Miller is much more controlling on the issue than Cruikshank.
Well, Cruikshank / Presser speak to the origin and nature of the underlying right and how the right can not be conditioned or qualified by the words of the 2nd Amendment . . . Miller speaks to scope of the right, what types of arms are protected for private civilian possession and use, considering the object of the 2nd Amendment.

Originally Posted by Hamlet View Post
But if you have the same views about the recognition of unenumerated rights, say the right to contraception or the right to same sex marriage, or the right to vote that you have for gun rights, I think we may agree more than disagree.
I absolutely want those rights protected, BUT . . . I would like the Court to revisit Slaughterhouse and to reinvigorate the "privileges or immunities" clause of the 14th to secure unenumerated rights. For now, penumbral rights theory is a serviceable workaround of Slaughterhouse but it does have infirmities and incongruities.

The vast majority of people haven't a clue about how abortion and contraception and LGBTQ rights came to be recognized and secured, which begs a question (at least for me) . . . My issue is how liberals hold those Griswold derived rights to be absolutely unquestionable and inviolate, but then, turn to the 2ndA and the right to arms and claim a justification to come up with all kinds of schemes to restrict that right.

My question is, how can a right that is recognized to exist in the "penumbras and emanations" of the rights secured in the first eight Amendments of the Bill of Rights, be considered more vital, more important and more secure than a right that is actually included in the eight, expressly enumerated in the Bill of Rights?

This leads to the scenario that I asked Quicksilver about . . . How the left's success at restricting the right to arms can call into question the legitimacy of the penumbral rights theory because if an enumerated right can be cut out, that can be used as the justification to roll back the right to privacy and the derivative rights of abortion, contraception, LGBTQ rights.

I've asked about this many times and it never receives any answer (well, an answer grounded in constitutional law). I do get called lots of names.


Last edited by Abatis; 09-12-2019 at 04:36 PM.