Reply
 
Thread Tools Display Modes
  #51  
Old 08-29-2019, 06:54 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by Czarcasm View Post
Maybe it is a mite hard to believe that someone who posts

is interested in a reasoned discussion?
I only have the words he types to ascertain his beliefs.

Perhaps you should review the exchange between him and I.

To my very focused on the USA post he writes; "If people have some natural right to own firearms, why don't people in other countries have this right?". That he's bringing in "other countries" and how the existence of governments that don't respect the right somehow impugns the existence of unalienable rights, meant to me he is denying the legitimacy of the US "conferred powers / retained rights" system . . .

He doubles down with, "You have the right to own a firearm for one reason only - you live in a country where the government gives you that right." From that I did begin assuming that he believes the system in "other countries", where rights flow from, are given by the government, is a preferred one.

I reply with a post that I took the time to make as comprehensive as I could, a post that would lay-out with specifics, what "unalienable rights" are and from where they emanate.

It is all ignored and he replies with "My point is that it's obviously wrong to speak of unalienable rights while observing these rights don't exist in other countries. That's proof that these rights are, in fact, quite alienable."

So, I'm thinking to myself, do I assume he is just sloppy with the "alienable" terminology or is he "obviously wrong" in his definition or is it as simple as he just holds a deep contempt for the "unalienable rights" concept?

Why claim I'm "obviously wrong" when no explanation or support for that emphatic statement is provided; who's he trying to convince, himself?

My first intuition was to just ignore him from his first post to me, I was "obviously wrong" in thinking replying to him might be a worthwhile expenditure of time.
.
  #52  
Old 08-29-2019, 07:23 PM
Moriarty's Avatar
Moriarty is offline
Guest
 
Join Date: Jun 2007
Location: Denver, CO, USA
Posts: 2,850
Quote:
Originally Posted by Abatis View Post
We can not be barred from speaking out against that government or writing in opposition to the government or assembling to protest the government or even, if we decide the government is violating the principles of its establishment, take up arms and abolish that government. None of these rights are given, granted, created or established by the government, such a concept is absurd; as is the belief these rights are granted by the compact by which the people grant government its powers. We possess those rights because we retained them, we never gave government any power to act against those interests.
This statement is absurd. And the Founding Fathers (who passed Alien and Sedition Acts) would tell you so.

You seem to be of the mindset that the Declaration of Independence has the force of law. Well, good luck with asserting in American jurisprudence that you retain some sort of right to take up arms and abolish the government. You will lose every single time.
  #53  
Old 08-29-2019, 07:47 PM
Chronos's Avatar
Chronos is offline
Charter Member
Moderator
 
Join Date: Jan 2000
Location: The Land of Cleves
Posts: 85,050
If the Second Amendment is about self-defense, and self-defense is an inalienable right that the US is based on, then why is the US the only country in the world where the people are not allowed effective tools of self-defense?
  #54  
Old 08-29-2019, 08:51 PM
Moriarty's Avatar
Moriarty is offline
Guest
 
Join Date: Jun 2007
Location: Denver, CO, USA
Posts: 2,850
Quote:
Originally Posted by Chronos View Post
If the Second Amendment is about self-defense, and self-defense is an inalienable right that the US is based on, then why is the US the only country in the world where the people are not allowed effective tools of self-defense?
Well, as an initial matter, it’s important to remember that the founders only viewed the constitution as applying to the federal government. It is entirely up to a state, in their mind, to decide for itself such issues as the right to bear arms within its borders (although I’m certain that most states at that time, if not all, did in fact assure their citizens of the right to bear arms). The 2nd amendment, as originally conceived, wouldn’t have prevented a state from outlawing individual gun ownership (amendments were not “incorporated” to the states until courts said so, much later, and even then they did so selectively with specific amendments).

Moreover, the 2nd amendment was an assurance to the States that they could maintain their own militias, so that they wouldn’t be a) subject to an invading federal army, or b) unable to suppress their own uprisings because the federal government failed to defend them. It doesn’t pertain to individuals.

Scalia invented the individual right stuff. He was an activist judge on things he wanted.

Last edited by Moriarty; 08-29-2019 at 08:52 PM.
  #55  
Old 08-30-2019, 12:30 AM
Flyer is offline
Guest
 
Join Date: Feb 2012
Location: Colorado
Posts: 3,345
Quote:
Originally Posted by Little Nemo View Post
Yes, I think there are human rights. But I don't think they appear out of thin air. I think we choose to establish a right. And then we establish a government to make the right happen.
Then no government in history, no matter how corrupt, capricious, or evil, has ever violated a single human right. It's quite literally impossible.

When Uday Hussein saw a woman out in public, and had his bodyguards kidnap her so that he could rape her, nobody involved ever violated any woman's rights. You see, the Iraqi government had never established those rights in the first place. And obviously, you can't break something that doesn't exist.
  #56  
Old 08-30-2019, 08:06 AM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by Moriarty View Post
This statement is absurd. And the Founding Fathers (who passed Alien and Sedition Acts) would tell you so.
Except that what I wrote there is set-out clearly in the writings of the founders / framers . . . So there's that.

Quote:
Originally Posted by Moriarty View Post
You seem to be of the mindset that the Declaration of Independence has the force of law.
The DoI is referred to and cited as the foundational principles of the nation and the concept of unalienable rights is the guiding principle as to the recognition of rights and their nature.

Quote:
Originally Posted by Moriarty View Post
Well, good luck with asserting in American jurisprudence that you retain some sort of right to take up arms and abolish the government. You will lose every single time.
I would never expect such a ruling. As I said, none of these rights (including the right to rescind our consent to be governed) emanate from the compact by which the people grant government its powers. Since that is true, it is absurd to want or expect a structure created by the Constitution (the federal courts) and deriving its limited powers from the Constitution, to find and delineate a right that does not in any manner depend on the Constitution for its existence.

To be even more emphatic, I don't need any agent of the government to tell me what my rights are. My unalienable rights predate the Constitution and the governmental authority created by it.

By the Constitution's structure, no governmental agency has any legitimate import on the extent of my rights, only of laws. This also extends to the courts including SCOTUS. As a creation of the Constitution their duty is NOT to determine if a right exists, or its scope, or whether it is socially or culturally popular, or whether the perceived social impact outweighs holding the government to the constraints inherent in enumerated powers. The Court's only duty is to decide whether a challenged law was enacted beyond the strictly limited, clearly defined powers delegated to the legislature.

And while I'm ranting, I find especially repugnant any government servant pontificating on the extent of my rights; their purview is only the creation and execution of law at the citizen's behest and for our benefit, not the citizen's rights. Their only legitimate concern regarding my rights is to not exceed the legislative, executive or judicial powers granted to them by the Constitution . . . if the bastards could only stick to that our rights would be safe without regard of their listing (or not) in the Bill of Rights.

.

Last edited by Abatis; 08-30-2019 at 08:11 AM.
  #57  
Old 08-30-2019, 08:15 AM
QuickSilver is offline
Guest
 
Join Date: Mar 2000
Posts: 18,991
Quote:
Originally Posted by Abatis View Post
To be even more emphatic, I don't need any agent of the government to tell me what my rights are. My unalienable rights predate the Constitution and the governmental authority created by it.
And I suppose you have the gold fringe to prove it.
__________________
St. QuickSilver: Patron Saint of Thermometers.
  #58  
Old 08-30-2019, 09:01 AM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by QuickSilver View Post
And I suppose you have the gold fringe to prove it.
Do you think that constitutes a refutation or even a rebuttal to what I said?

It doesn't, and in trying to be sarcastic you make my point about the degraded condition of liberty, that citizens would allow someone with gold fringe to dictate to them as to their rights. Who awards the gold fringe in your world, that would allow them to speak on the subject of unalienable rights?

That those rights are considered "unalienable" precludes such a condition doesn't it?

Last edited by Abatis; 08-30-2019 at 09:06 AM.
  #59  
Old 08-30-2019, 09:09 AM
Czarcasm's Avatar
Czarcasm is offline
Charter Member
Charter Member
 
Join Date: Apr 1999
Location: Portland, OR
Posts: 62,511
Quote:
Originally Posted by Abatis View Post
Do you think that constitutes a refutation or even a rebuttal to what I said?

It doesn't, and in trying to be sarcastic you make my point about the degraded condition of liberty, that citizens would allow someone with gold fringe to dictate to them as to their rights. Who awards the gold fringe in your world, that would allow them to speak on the subject of unalienable rights?

That those rights are considered "unalienable" precludes such a condition doesn't it?
I'm pretty sure you didn't get the point about "gold fringe".

edited to add: Or worse yet, you did.

Last edited by Czarcasm; 08-30-2019 at 09:10 AM.
  #60  
Old 08-30-2019, 09:22 AM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by Czarcasm View Post
I'm pretty sure you didn't get the point about "gold fringe".

edited to add: Or worse yet, you did.
Of course I did.

I guess now we are in the paradoxical situation that a citizen claiming their rights and demanding government constrain itself to just the powers granted to it, can be condemned for hypocrisy, for assuming a power to define rights . . .

Is that really where you are at?
  #61  
Old 08-30-2019, 09:28 AM
QuickSilver is offline
Guest
 
Join Date: Mar 2000
Posts: 18,991
Quote:
Originally Posted by Abatis View Post
Do you think that constitutes a refutation or even a rebuttal to what I said?

It doesn't, and in trying to be sarcastic you make my point about the degraded condition of liberty, that citizens would allow someone with gold fringe to dictate to them as to their rights. Who awards the gold fringe in your world, that would allow them to speak on the subject of unalienable rights?

That those rights are considered "unalienable" precludes such a condition doesn't it?
I'm trying to understand whether you believe that America is currently under admiralty law and that government only has the right to impose only those laws to which you have given direct consent.
__________________
St. QuickSilver: Patron Saint of Thermometers.
  #62  
Old 08-30-2019, 09:29 AM
Czarcasm's Avatar
Czarcasm is offline
Charter Member
Charter Member
 
Join Date: Apr 1999
Location: Portland, OR
Posts: 62,511
Quote:
Originally Posted by Abatis View Post
Of course I did.

I guess now we are in the paradoxical situation that a citizen claiming their rights and demanding government constrain itself to just the powers granted to it, can be condemned for hypocrisy, for assuming a power to define rights . . .

Is that really where you are at?
Where I am at is that I still don't think you got the reference to "gold fringe", despite your "Of course I did" toss-off. What is the significance of gold fringe when it comes to the law?

Last edited by Czarcasm; 08-30-2019 at 09:29 AM.
  #63  
Old 08-30-2019, 09:33 AM
Max S. is offline
Guest
 
Join Date: Aug 2017
Location: Florida, USA
Posts: 1,503
Quote:
Originally Posted by Northern Piper View Post
Why does Madison get to be the deciding voice?
It was actually Justice Stevens whose dissent placed emphasis on Madison's rejected draft. Justice Scalia rejected Stevens's interpretation of Madison's opinion. If Madison were to tell Scalia that Stevens was right, that removes one point from Scalia's opinion.

Nevertheless you're right. However many people does it take to satisfy an originalist? Who knows, possibly a majority, possibly an influential minority. About half of Justice Scalia's opinion in Hellen is spent supporting his interpretation with contemporary sources. If most of the people behind those sources, or possibly the influential people behind those sources, were to rise from the grave and tell Scalia that he got them all wrong, then he might have ruled differently in that case.

There's a lot of speculation built into this post, but there's a lot of speculation built into the original question.

~Max

Last edited by Max S.; 08-30-2019 at 09:34 AM. Reason: removed extra word
  #64  
Old 08-30-2019, 09:40 AM
Akaj's Avatar
Akaj is offline
Guest
 
Join Date: May 2018
Location: In the vanishing middle
Posts: 757
Quote:
Originally Posted by Max S.;21833444

Nevertheless you're right. However many people does it take to satisfy an originalist? Who knows, possibly a majority, possibly an influential minority. About half of Justice Scalia's opinion in [I
Hellen[/I] is spent supporting his interpretation with contemporary sources. If most of the people behind those sources, or possibly the influential people behind those sources, were to rise from the grave and tell Scalia that he got them all wrong, then he might have ruled differently in that case.

~Max
If the FFs rose from the grave to express disagreement with this, Citizens United or other recent right-leaning decisions, Fox News would label them socialists and Trump would tweet insults about their height.
__________________
I'm not expecting any surprises.
  #65  
Old 08-30-2019, 09:49 AM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by QuickSilver View Post
I'm trying to understand whether you believe that America is currently under admiralty law and that government only has the right to impose only those laws to which you have given direct consent.
I'm not talking about "direct consent", I'm talking about the federal government restraining its operations (or being restrained) to just the specific powers granted to it by the Constitution. If one considers the 10th Amendment a part of the Constitution and a guide for the application of constitutional powers, what's the dispute?

Do you really consider it a contested premise that what isn't conferred to the feds by the Constitution is retained by the people or the states? I admit, the principle seems dead and buried as far as the people's rights go, in the minds of government agents and the citizens, (given your comments here), hence my comment about the degraded sense of liberty today. That the principle is being ignored for rights doesn't mean I'm wrong in principle, or wrong to argue for the principle . . .

I find it interesting that it remains a principle applied to benefit the states, as seem in the enforcement of the anti-commandeering doctrine, in a case so recent it hasn't been assigned a page number yet:

"The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States … Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority."

Murphy v. National Collegiate Athletic Association, 584 U.S. ___ (2018)

Also conspicuously absent is any power granted to define unalienable rights.

Last edited by Abatis; 08-30-2019 at 09:53 AM.
  #66  
Old 08-30-2019, 09:53 AM
Czarcasm's Avatar
Czarcasm is offline
Charter Member
Charter Member
 
Join Date: Apr 1999
Location: Portland, OR
Posts: 62,511
Quote:
Originally Posted by Abatis View Post
I'm not talking about "direct consent", I'm talking about the federal government restraining its operations (or being restrained) to just the specific powers granted to it by the Constitution. If one considers the 10th Amendment a part of the Constitution and a guide for the application of constitutional powers, what's the dispute?

Do you really consider it a contested premise that what isn't conferred to the feds by the Constitution is retained by the people or the states? I admit, the principle seems dead and buried as far as the people's rights go, in the minds of government agents and the citizens, (given your comments here), hence my comment about the degraded sense of liberty today. That the principle is being ignored for rights doesn't mean I'm wrong in principle, or wrong to argue for the principle . . .

I find it interesting that it remains a principle applied to benefit the states, as seem in the enforcement of the anti-commandeering doctrine, in a case so recent it hasn't been assigned a page number yet:

"The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States … Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority."

Murphy v. National Collegiate Athletic Association, 584 U.S. ___ (2018)
This is getting tiresome. Would you mind directly answering about whether you believe that America is currently under admiralty law, and how "gold fringe" ties into it?
  #67  
Old 08-30-2019, 09:59 AM
Max S. is offline
Guest
 
Join Date: Aug 2017
Location: Florida, USA
Posts: 1,503
Quote:
Originally Posted by Akaj View Post
If the FFs rose from the grave to express disagreement with this, Citizens United or other recent right-leaning decisions, Fox News would label them socialists and Trump would tweet insults about their height.
Even if they did so, I doubt Mr. Trump could successfully appoint a justice that insults the founding fathers. Presumably the Supreme Court would reverse on the Second Amendment, and those forces who still want an individual right to keep and bear arms will attempt to expand the court or pass a new amendment.

~Max
  #68  
Old 08-30-2019, 10:33 AM
Max S. is offline
Guest
 
Join Date: Aug 2017
Location: Florida, USA
Posts: 1,503
Quote:
Originally Posted by QuickSilver View Post
I'm trying to understand whether you believe that America is currently under admiralty law and that government only has the right to impose only those laws to which you have given direct consent.
I almost completely agree with Abatis. I don't understand your reference to "gold fringes" or "admirality law", but in my opinion and my interpretation of the Supreme Court and founding father's opinions, the federal government only has the powers enumerated under the constitution. Neither the Supreme Court nor the Constitution have the power to grant rights. The Constitution is an instrument of the states (and the people by extension) that gives the federal government the power to restrict certain rights, and prevents the state governments from restricting certain rights.

It's a small but important distinction.

~Max
  #69  
Old 08-30-2019, 10:48 AM
Shodan is offline
Charter Member
 
Join Date: Jul 2000
Location: Milky Way Galaxy
Posts: 39,949
Quote:
Originally Posted by Czarcasm View Post
This is getting tiresome. Would you mind directly answering about whether you believe that America is currently under admiralty law, and how "gold fringe" ties into it?
I'm not Abatis, but I can certainly answer directly. America is under the Constitution, and gold fringe doesn't enter into it, and is irrelevant. You shouldn't have brought it up.

Glad to be of help.

Regards,
Shodan
  #70  
Old 08-30-2019, 10:53 AM
Czarcasm's Avatar
Czarcasm is offline
Charter Member
Charter Member
 
Join Date: Apr 1999
Location: Portland, OR
Posts: 62,511
Quote:
Originally Posted by Shodan View Post
I'm not Abatis
No, you are not.
Thanks for clearing up the confusion.
  #71  
Old 08-30-2019, 11:02 AM
Bone's Avatar
Bone is online now
Extrajudicial
Moderator
 
Join Date: Jul 2003
Posts: 10,846

Moderating


Quote:
Originally Posted by QuickSilver View Post
And I suppose you have the gold fringe to prove it.
Quote:
Originally Posted by Czarcasm View Post
This is getting tiresome. Would you mind directly answering about whether you believe that America is currently under admiralty law, and how "gold fringe" ties into it?
Drop this tiresome trite hijack about gold fringes.

[/moderating]
  #72  
Old 08-30-2019, 11:28 AM
puddleglum's Avatar
puddleglum is offline
Guest
 
Join Date: Oct 2000
Location: a van down by the river
Posts: 6,657
Quote:
Originally Posted by tomndebb View Post
OK. Not ignored, just hand-waved away with odd interpretation of grammar.
It is not an odd interpretation of grammar. It was a relatively common way of expressing an idea when the constitution was written.
For example: The Constitution of Massachusetts, written in 1784 "The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever"
In the second amendment the first clause gives the reason and the second gives the rule. Well regulated obviously refers to the militia and not the weapons themselves.

Today it would be written, Because a properly functioning militia is necessary for a free country, the right to keep and bear weapons shall not be infringed.

Who does it apply to? This was answered explicitly by George Mason: "Who are the militia? They consist now of the whole people, except a few public officers."
  #73  
Old 08-30-2019, 11:34 AM
Czarcasm's Avatar
Czarcasm is offline
Charter Member
Charter Member
 
Join Date: Apr 1999
Location: Portland, OR
Posts: 62,511
Quote:
Originally Posted by puddleglum View Post
Who does it apply to? This was answered explicitly by George Mason: "Who are the militia? They consist now of the whole people, except a few public officers."
But wouldn't an originalist want the original meaning of "miltia", as it was understood at the time the term was written in the Consititution, to hold sway over Mason's reinterpretation?
  #74  
Old 08-30-2019, 11:57 AM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by Czarcasm View Post
This is getting tiresome.
Sit down sweetpea, unless you have something on topic to say.

Last edited by Abatis; 08-30-2019 at 11:58 AM.
  #75  
Old 08-30-2019, 12:12 PM
Shodan is offline
Charter Member
 
Join Date: Jul 2000
Location: Milky Way Galaxy
Posts: 39,949
Quote:
Originally Posted by Czarcasm View Post
But wouldn't an originalist want the original meaning of "miltia", as it was understood at the time the term was written in the Consititution, to hold sway over Mason's reinterpretation?
The Mason quote is from 1788. The Constitution was ratified in 1787. Do the math.

Regards,
Shodan
  #76  
Old 08-30-2019, 12:21 PM
Czarcasm's Avatar
Czarcasm is offline
Charter Member
Charter Member
 
Join Date: Apr 1999
Location: Portland, OR
Posts: 62,511
Quote:
Originally Posted by Shodan View Post
The Mason quote is from 1788. The Constitution was ratified in 1787. Do the math.
Sorry-I got it mixed up with a previous post from puddleglum in which he said:
Quote:
Originally Posted by puddleglum View Post
Well regulated at the time meant something like "in good working order" and a militia was all of the adult males of a territory that could be called on to serve in times of war.
(bolding mine) This seems to be a different definition of "militia" than "the whole people, except a few public officers". I might go so far as to opine that "the whole people, except a few public officers" do not fall under any definition of "well regulated militia" that I can think of.
  #77  
Old 08-30-2019, 12:26 PM
Bone's Avatar
Bone is online now
Extrajudicial
Moderator
 
Join Date: Jul 2003
Posts: 10,846

Moderating


Quote:
Originally Posted by Abatis View Post
Sit down sweetpea, unless you have something on topic to say.
Do not junior mod. Please consider that not every post requires a response.

[/moderating]
  #78  
Old 08-30-2019, 12:31 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by Czarcasm View Post
This seems to be a different definition of "militia" than "the whole people, except a few public officers". I might go so far as to opine that "the whole people, except a few public officers" do not fall under any definition of "well regulated militia" that I can think of.
In the Militia act of 1792, elected officials, postmen, judges and many other public officers are all exempted from any militia obligation:
"And be it further enacted, That the Vice-President of the United States, the Officers, judicial and executives, of the government of the United States; the members of both houses of Congress, and their respective officers; all custom house officers, with the clerks; all post officers, and stage-drivers who are employed in the care and conveyance of the mail of the post office of the United States; all Ferrymen employed at any ferry on the post road; all inspectors of exports; all pilots, all mariners actually employed in the sea service of any citizen or merchant within the United States; and all persons who now are or may be hereafter exempted by the laws of the respective states, shall be and are hereby exempted from militia duty, notwithstanding their being above the age of eighteen and under the age of forty-five years."

Last edited by Abatis; 08-30-2019 at 12:31 PM.
  #79  
Old 08-30-2019, 12:34 PM
Czarcasm's Avatar
Czarcasm is offline
Charter Member
Charter Member
 
Join Date: Apr 1999
Location: Portland, OR
Posts: 62,511
Quote:
Originally Posted by Abatis View Post
In the Militia act of 1792, elected officials, postmen, judges and many other public officers are all exempted from any militia obligation:
"And be it further enacted, That the Vice-President of the United States, the Officers, judicial and executives, of the government of the United States; the members of both houses of Congress, and their respective officers; all custom house officers, with the clerks; all post officers, and stage-drivers who are employed in the care and conveyance of the mail of the post office of the United States; all Ferrymen employed at any ferry on the post road; all inspectors of exports; all pilots, all mariners actually employed in the sea service of any citizen or merchant within the United States; and all persons who now are or may be hereafter exempted by the laws of the respective states, shall be and are hereby exempted from militia duty, notwithstanding their being above the age of eighteen and under the age of forty-five years."
I don't believe I mentioned having any problems with the exemptions that were listed under the Militia Act of 1792.
  #80  
Old 08-30-2019, 02:01 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by Czarcasm View Post
I don't believe I mentioned having any problems with the exemptions that were listed under the Militia Act of 1792.
This is getting tiresome.
  #81  
Old 08-30-2019, 04:59 PM
Moriarty's Avatar
Moriarty is offline
Guest
 
Join Date: Jun 2007
Location: Denver, CO, USA
Posts: 2,850
Quote:
Originally Posted by Abatis View Post
The DoI [Declaration of Independence] is referred to and cited as the foundational principles of the nation and the concept of unalienable rights is the guiding principle as to the recognition of rights and their nature.
Where is it referred to and cited, other than within its own text? The Declaration of Independence does not establish any system of government, and it has no force of law. Yes, it espouses a philosophy of self-government, and you might very well agree with it, but it does nothing to constrain or preserve rights in this country.

Quote:
Do you really consider it a contested premise that what isn't conferred to the feds by the Constitution is retained by the people or the states?
No, but that's not what you are arguing. Although here you acknowledge the power of the individual states, you've otherwise been arguing about individual rights. Can you see how the Constitution only limited the federal government, and made no guarantees about the rights of individuals in situations where the states denied them?

Remember that it wasn't until the 14th amendment that the courts said that the constitution guaranteed individuals certain liberties and due process even when states denied it. From the founders' perspective, the constitution was no impediment on state power to define or deny rights.

Quote:
By the Constitution's structure, no governmental agency has any legitimate import on the extent of my rights, only of laws.
Except state governments, right?

Last edited by Moriarty; 08-30-2019 at 05:00 PM.
  #82  
Old 08-30-2019, 08:31 PM
asahi's Avatar
asahi is offline
Guest
 
Join Date: Aug 2015
Location: On your computer screen
Posts: 10,772
Quote:
Originally Posted by Abatis View Post
The framers would be shocked that people were dissecting and parsing the 2nd Amendment and trying to discern what rights the framers "intended" to give the people They would think it preposterous that people are reading the 2ndA to try to discover what arms the people were "allowed" to possess and use. They would be horrified that such ridiculous things were being said. . .

"We the People" don't possess the right to arms because the 2nd Amendment is there . . . "We the People" possess the right because "We the People" never granted government any power to have any interest in the personal arms of the private citizen.

IOW, the right isn't ours because of what the 2nd Amendment says, the right is ours because of what the body of the Constitution DOESN'T say.

That's what the framers would be telling us if they could.

.
So the Framers would be fine with someone living in an apartment building possessing rocket launchers, hand grenades, and suitcase nukes.
  #83  
Old 08-30-2019, 10:15 PM
thelurkinghorror is offline
Guest
 
Join Date: Jun 2006
Location: Venial Sin City
Posts: 13,896
Quote:
Originally Posted by asahi View Post
rocket launchers
Legal.
Quote:
hand grenades
Legal.
Quote:
and suitcase nukes.
Probably not legal.
  #84  
Old 08-30-2019, 10:16 PM
Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 82,352
Quote:
Originally Posted by Flyer View Post
Then no government in history, no matter how corrupt, capricious, or evil, has ever violated a single human right. It's quite literally impossible.

When Uday Hussein saw a woman out in public, and had his bodyguards kidnap her so that he could rape her, nobody involved ever violated any woman's rights. You see, the Iraqi government had never established those rights in the first place. And obviously, you can't break something that doesn't exist.
That's not what I said. Human rights exist. But I disagree with the idea that they somehow appear out of thin air and are universal truths.

Human rights are created by humans. And the fact that people in one country can have a different set of human rights than the people in another country demonstrates how they are connected with the government.
  #85  
Old 08-30-2019, 10:21 PM
Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 82,352
Quote:
Originally Posted by puddleglum View Post
It is not an odd interpretation of grammar. It was a relatively common way of expressing an idea when the constitution was written.
For example: The Constitution of Massachusetts, written in 1784 "The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever"
In the second amendment the first clause gives the reason and the second gives the rule. Well regulated obviously refers to the militia and not the weapons themselves.

Today it would be written, Because a properly functioning militia is necessary for a free country, the right to keep and bear weapons shall not be infringed.

Who does it apply to? This was answered explicitly by George Mason: "Who are the militia? They consist now of the whole people, except a few public officers."
I'm still not sure I'm getting your point. Are you saying that the necessity of having a properly functioning militia is the justification for having a right to keep and bear arms?
  #86  
Old 08-31-2019, 04:13 AM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by Moriarty View Post
Where is it referred to and cited, other than within its own text? The Declaration of Independence does not establish any system of government, and it has no force of law. Yes, it espouses a philosophy of self-government, and you might very well agree with it, but it does nothing to constrain or preserve rights in this country.
The Constitution and its enforcement can not be divorced from its foundational principles. It is without dispute that the founders AND framers embraced the principle that all governmental power emanates from the people; the bedrock of the system they were framing is the principle of conferred powers and retained rights. If the people did not possess all power before the Constitution was established, and retain the interests not conferred, (inherent rights), the 9th and 10th Amendments are declarations standing alone in meaningless absurdity.

I have a bunch of quotes from SCOTUS that discuss the DoI and unalienable rights and how that informs their reasoning. I haven't gone through them to discern if they are majority opinions rather than dissents or concurrences. I'll post them up in another message if you want, with that caveat stated beforehand.

Quote:
Originally Posted by Moriarty View Post
No, but that's not what you are arguing.
Of course it is. My entire argument, every post has been focused on the principle of conferred powers and retained rights.

Quote:
Originally Posted by Moriarty View Post
Although here you acknowledge the power of the individual states, you've otherwise been arguing about individual rights. Can you see how the Constitution only limited the federal government, and made no guarantees about the rights of individuals in situations where the states denied them?

Remember that it wasn't until the 14th amendment that the courts said that the constitution guaranteed individuals certain liberties and due process even when states denied it. From the founders' perspective, the constitution was no impediment on state power to define or deny rights.
Yes, that the federal Bill of Rights only applied to the federal government is a well settled concept. Barron v Baltimore set it in stone.

The Constitution is another subject though; it does establish limiting powers on the states. The Constitution's "guarantee to every State in this Union a Republican Form of Government" denotes an implied power to enforce that promise. An example -- interestingly on the point of the RKBA -- is explained in Presser v Illinois:
"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."
So, even though the 2ndA wasn't applicable to state action, actually, even if the 2nd Amendment was not there, structurally an underlying principle of the federal Constitution binds the states from disarming their citizens.

Quote:
Originally Posted by Moriarty View Post
Quote:
Originally Posted by Abatis View Post
By the Constitution's structure, no governmental agency has any legitimate import on the extent of my rights, only of laws.
Except state governments, right?
Well, there are also state constitutions with their own bills of rights. Actually, my statement is especially true for state governments under their constitutions.

The principle of conferred powers and retained rights is much more evident in state constitutions. Actually it is an unavoidable conclusion as soon as one begins reading; declaring the rights of the citizen was primary, not an afterthought.

Most state constitutions have as Article I, their declarations of rights (I'm saying "most" because I haven't read every last one). The rights of the people are set-out before any powers are enumerated. The intention is of course to demonstrate that the rights of the citizen pre-exist the powers of government and that the rights of the people are formally and expressly held-out / withheld from the powers being conferred.

For my state, the Pennsylvania constitution, Art I calls out (among others) the rights of:

§ 1, . . . enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, . . .

§ 2, All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.

§ 21, The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.

§ 25, To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.

Not much wiggle room there . . .
  #87  
Old 08-31-2019, 05:06 AM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by asahi View Post
So the Framers would be fine with someone living in an apartment building possessing rocket launchers, hand grenades, and suitcase nukes.
I'll focus on modern weapons of indiscriminate warfare, e.g., missiles, rockets / RPG's, aerial bombs, NBC weapons. But, since you asked about what I feel the framer's opinion on the right to own such weapons would be, I'll not bring any modern laws or judicial decisions into my argument (which could address small munitions / ordinance / artillery that are "destructive devices" under NFA-34) . . .

I sound like a broken record but I begin the answer with the principles of conferred powers and retained rights. I look to the body of the Constitution to see if any powers have been surrendered by "We the People" and been granted to the federal government over a particular interest.

I see "We the People" granted the federal government the power to raise and support and provide for, and set the rules for the military forces to perform their war making duties. I also see the Constitution forbids states to keep troops or ships of war and by logical extension, the weapons of indiscriminate warfare. I also see that the most devastating weapon of the founding period (Man o' War's) were owned by private citizens (Privateer's) but after the War, through the Constitution, power / control over those weapons was granted to Congress. Private citizens could not maintain or sail these ships without the permission of Congress, Art I, §8, cl. 11, by receiving a letter of marque and reprisal.

Taken those points together and recognizing and applying the doctrines of federal preemption and supremacy, my belief is that the same principle allowing government to place restrictions on citizens owning warships and the supreme power of the feds to provide for the armed forces, and forbidding states to keep troops and warships, can be applied to restrictions over private citizens owning weapons of modern open / indiscriminate warfare. Thus, I would argue that the people have surrendered all such rights and can not claim any rights to acquire, possess, maintain or use, weapons of indiscriminate warfare.

Note, none of this reasoning has anything to do with the 2nd Amendment.

What interests "We the People" have surrendered, we can not claim any right.
OTOH, what interests we have withheld power over and retained the right to exercise, government can not claim any authority . . . without any reference to, or reliance on, any particular Bill of Rights provision.

.
  #88  
Old 08-31-2019, 08:45 AM
HMS Irruncible is offline
Guest
 
Join Date: Nov 2004
Posts: 8,494
Quote:
Originally Posted by Max S. View Post
If James Madison had risen from the grave and told Justice Scalia that the Second Amendment did not guarantee an individual right, we would have a different jurisprudence for that Amendment.
See, I doubt that. I think Scalia would tell Madison that the text is supreme, and we're not about to change 200+ years of jurisprudence just because one author's revisionist stance.

All conservative principles are situational. Originalism is no different.
  #89  
Old 08-31-2019, 10:43 AM
QuickSilver is offline
Guest
 
Join Date: Mar 2000
Posts: 18,991
Quote:
Originally Posted by Abatis View Post
I'm not talking about "direct consent", I'm talking about the federal government restraining its operations (or being restrained) to just the specific powers granted to it by the Constitution. If one considers the 10th Amendment a part of the Constitution and a guide for the application of constitutional powers, what's the dispute?

Do you really consider it a contested premise that what isn't conferred to the feds by the Constitution is retained by the people or the states? I admit, the principle seems dead and buried as far as the people's rights go, in the minds of government agents and the citizens, (given your comments here), hence my comment about the degraded sense of liberty today. That the principle is being ignored for rights doesn't mean I'm wrong in principle, or wrong to argue for the principle . . .

I find it interesting that it remains a principle applied to benefit the states, as seem in the enforcement of the anti-commandeering doctrine, in a case so recent it hasn't been assigned a page number yet:

"The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States … Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority."

Murphy v. National Collegiate Athletic Association, 584 U.S. ___ (2018)

Also conspicuously absent is any power granted to define unalienable rights.
Quote:
Originally Posted by Max S. View Post
I almost completely agree with Abatis. I don't understand your reference to "gold fringes" or "admirality law", but in my opinion and my interpretation of the Supreme Court and founding father's opinions, the federal government only has the powers enumerated under the constitution. Neither the Supreme Court nor the Constitution have the power to grant rights. The Constitution is an instrument of the states (and the people by extension) that gives the federal government the power to restrict certain rights, and prevents the state governments from restricting certain rights.

It's a small but important distinction.

~Max
I may have rushed to judgement about where this was headed.

I think I understand the position that at it's core, the constitution is meant to protect "unalienable rights". But what's heard more often than not is that we live in a 'nation of laws' and under 'rule of law'. Whether state or federal, these laws often serve to put restrictions on "unalienable rights". Do either of you find these two concepts in opposition? If not, why not? If so, can they be reconciled, or have we mostly moved well past the founding fathers principles of individualist rights towards those of social justice, i.e. "a more just society"?
__________________
St. QuickSilver: Patron Saint of Thermometers.
  #90  
Old 08-31-2019, 10:52 AM
asahi's Avatar
asahi is offline
Guest
 
Join Date: Aug 2015
Location: On your computer screen
Posts: 10,772
Quote:
Originally Posted by QuickSilver View Post
I may have rushed to judgement about where this was headed.

I think I understand the position that at it's core, the constitution is meant to protect "unalienable rights".
Except that the Constitution in toto was not at all meant to protect unalienable rights. Moreover, the rights enshrined in the Bill of Rights aren't unalieanable; they are expressed as limitations on governmental powers, with some limitations being more explicit than others. The Bill of Rights sit within the broader framework of the Constitution itself. The people who wrote and influenced the drafting and final ratification were acutely aware that Constitutions could fail, which is why it seems highly unlikely that they would take an literally textual interpretation of the Constitution seriously.
  #91  
Old 08-31-2019, 10:06 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by QuickSilver View Post
I think I understand the position that at it's core, the constitution is meant to protect "unalienable rights".
The concept of "unalienable rights" requires the establishment of a government that respects these principles -- that its powers emanate from the people being governed and that the people retain powers over themselves that they do not confer.

To say that government has an obligation to "protect" something that the people never parted with, that they never gave government any power over, nor placed any aspect of those interests in the care or control of government, represents a true incongruity. How can government assume to protect what it has no power or authority to even contemplate?

"Rights" in the parlance of the framers, were "exceptions of powers not granted". This is why our rights are sometimes referred to as "negative liberties" . . . Our original, inherent rights do not require any government announcement or notation or any positive action or operation of government to exist, be recognized, realized or exercised; they only demand inaction of government to survive.

As opposed to being "protected" by government, our rights are "secured" by government inaction.

Quote:
Originally Posted by QuickSilver View Post
But what's heard more often than not is that we live in a 'nation of laws' and under 'rule of law'.
The "rule of law" means that the enactment and enforcement of the law has rules. The "rule of law" isn't something that is impressed on the people, it is what the people impress on government, forcing it to operate within the strict confines established by the Constitution.

The power of government is strictly limited by enumerated powers and the exercise of those powers is confined only to perform the specific duties assigned to government and its specific offices (legislative, executive and judicial being the general categories). This immovable, unalterable, unyielding foundational principle of the Constitution creates a structural framework that restricts the powers of government; this is where the real protection of rights emanates from -- government can only "do" what we say it can do:

"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation."

MARBURY v. MADISON, 5 U.S. 137 (1803)
It should be noted with special attention that the Court says, "The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent."

This means, once the fundamental principles of the governmental model are agreed upon and the Constitution, founded on those principles is established, because the federal Constitution "is supreme" --the highest law of the land-- and the government established by the Constitution "can seldom act" --its powers are strictly limited-- those principles can not be retroactively altered, they are permanent. It also means that a court "interpreting" the Constitution so that foundational principles are violated or invalidated, is illegitimate, a usurpation.


Quote:
Originally Posted by QuickSilver View Post
Whether state or federal, these laws often serve to put restrictions on "unalienable rights". Do either of you find these two concepts in opposition? If not, why not?
Not in opposition, because of the "RULE OF LAW". No right is absolute in an ordered society. Even those most exemplary, most revered "unalienable rights" can be disabled for actual crimes committed after due process; people can have their liberty taken, they can have property confiscated, they can even be put to death, after due process.

Our rights are immunities from arbitrary and capricious government action -- freedom from government operations that exceed conferred powers or do not follow established and agreed upon legal rules and processes (extra-constitutional / extra-judicial).

For gun ownership and use, of course there is a government interest in public safety, that's why laws forbidding guns to criminals and the insane and fugitives and those dishonorably discharged from the military, pass constitutional muster . . . We as a society have decided that arms possession by those particular people is dangerous. We accept that rights restriction for dangerous people because we expect the application of rights disablement has rules and is a process that can be relied on wherever one is, whatever jurisdiction one finds themselves in, in the USA . . . Not arbitrary or capricious, applied with different standards or in a blanket fashion on the whole citizenry.

Quote:
Originally Posted by QuickSilver View Post
If so, can they be reconciled, or have we mostly moved well past the founding fathers principles of individualist rights towards those of social justice, i.e. "a more just society"?
Yes they can be reconciled, as long as the government applies the law adhering to the aforementioned "rules of law". The thought that rule-less, ever evolving group-identity driven, anti-individual rights UN-JUST "social justice" could ever supplant actual justice, is horrifying.

.

Last edited by Abatis; 08-31-2019 at 10:07 PM.
  #92  
Old 08-31-2019, 10:35 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by asahi View Post
Moreover, the rights enshrined in the Bill of Rights aren't unalieanable; they are expressed as limitations on governmental powers, with some limitations being more explicit than others.
Some of the provisions do recognize unalienable rights and certainly original, inherent rights that the people possessed and exercised before the Constitution was ratified. Those provisions do not establish or declare any prohibition that wasn't already a inviolate principle of the Constitution before December 15th, 1791. All those provisions "do" is redundantly tell the federal government it can not exercise powers it was never granted.

This truth was a primary argument of the Federalists against adding a bill of rights:
"I . . . affirm that bills of rights, in the sense and to 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 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? . . ."
Quote:
Originally Posted by asahi View Post
The people who wrote and influenced the drafting and final ratification were acutely aware that Constitutions could fail, which is why it seems highly unlikely that they would take an literally textual interpretation of the Constitution seriously.
That the framers included a rigid process to amend the Constitution, to formally alter it and the ambit of federal powers, stands as a testament that they believed the Constitution must be applied as written. If they believed that the Constitution was a fluid, malleable evolving series of suggestions on how to operate the federal government, them including an amendment process was the ultimate troll . . .

Not a word about post 87, in agreement or disagreement?

.

Last edited by Abatis; 08-31-2019 at 10:37 PM.
  #93  
Old 09-01-2019, 08:51 AM
thorny locust's Avatar
thorny locust is offline
Guest
 
Join Date: Apr 2019
Location: Upstate New York
Posts: 1,259
Quote:
Originally Posted by Abatis View Post
The Constitution is another subject though; it does establish limiting powers on the states. The Constitution's "guarantee to every State in this Union a Republican Form of Government" denotes an implied power to enforce that promise. An example -- interestingly on the point of the RKBA -- is explained in Presser v Illinois:
"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."
So considering that along with the phrase about "well regulated militia", shouldn't the Federal government, as well as the states, have the right to regulate that militia -- including, for instance, the right to require that all members of it take training in how to properly handle their weapons, and be removed from the militia if they can't pass that training? and the right to keep track of who is in the militia and what weapons they possess? so that if the state and/or federal government needs to call upon that reserved military force those governments know who and how many that force is comprised of, what equipment is available, and that the members of the force are trained in using that equipment?


Quote:
Originally Posted by Abatis View Post
To say that government has an obligation to "protect" something that the people never parted with, that they never gave government any power over, nor placed any aspect of those interests in the care or control of government, represents a true incongruity. How can government assume to protect what it has no power or authority to even contemplate?
[ . . . ]
As opposed to being "protected" by government, our rights are "secured" by government inaction.
But they are not "secured" by government inaction; because it's not only the government that endangers them.

All "inalienable" rights are also endangered, and in practice throughout human history frequently taken away, by non-governmental actors: individuals and, more recently, businesses including corporations. If we're in practice going to have such rights -- or any rights -- at all, what will keep them available to us, if not government action?

Quote:
Originally Posted by Abatis View Post
The "rule of law" means that the enactment and enforcement of the law has rules.
And those rules are themselves part of the laws.

Last edited by thorny locust; 09-01-2019 at 08:53 AM. Reason: clearer word choice
  #94  
Old 09-01-2019, 11:36 AM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by thorny locust View Post
So considering that along with the phrase about "well regulated militia", shouldn't the Federal government, as well as the states, have the right to regulate that militia . . . ?
Not any right, both entities possessed militia regulatory powers as set-out in Article I,§8, cl's 15 & 16. The full and complete ambit of militia regulatory powers emanates from those clauses in the body of the Constitution and those clauses only.

The 2nd Amendment has never been examined or held to inform on any aspect of militia regulatory powers of the federal government or the states. When SCOTUS had militia issues come before them, the 2nd Amendment was ignored; they only examined clauses 15 & 16 and the laws enacted under the authority of those clauses e.g., the Militia Act of 1792.

Quote:
Originally Posted by thorny locust View Post
-- including, for instance, the right to require that all members of it take training in how to properly handle their weapons, and be removed from the militia if they can't pass that training? and the right to keep track of who is in the militia and what weapons they possess?
That was precisely the conditions set out in the Militia Act of 1792. BUT, those regulations were only impressed upon those citizens "enrolled and notified" in the militia, not regular, private citizens who were not members of the militia. This is a long standing principle of law, that only the people expressly addressed in the law are considered to be bound by it, expressio unius est exclusio alterius.

Quote:
Originally Posted by thorny locust View Post
so that if the state and/or federal government needs to call upon that reserved military force those governments know who and how many that force is comprised of, what equipment is available, and that the members of the force are trained in using that equipment?
Absolutely, but those were all conditions established in regulations issued under constitutional authority set-out in the body of the Constitution, not the 2nd Amendment. Regular reports were made of the entire organized militia with attention to the types of arms and their caliber. Enrolled members were required to bring an appropriate gun and a limited amount of ammunition and supplies for that gun. The militia company was to have on hand, enough bullets, balls, cartridges, powder, patches and flints to keep that militia company operating during extended service. The Militia Act of 1792 mandated that:

"That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, . . . "

If we had a militia law today, members would be required to muster with an operational AR-15 or AR-10, three 30 round magazines loaded with 90 NATO approved cartridges , either .223/5.56mm or .308/7.62mm. Of course the government would have ample supplies of correct ammo and spare parts and armorers familiar with the weapon platform.

To bad we don't have that now; in 1903 Congress chose to kill the Militia Act and completely eliminate all citizen militia obligation . . . One could argue (and I certainly do) that with that action, Congress extinguished any legitimate interest Congress could be said to have under the Constitution, in any arms any citizen possesses. CHANGE MY MIND . . .

Quote:
Originally Posted by thorny locust View Post
But they are not "secured" by government inaction; because it's not only the government that endangers them.
But the US Constitution establishes the rules for the federal government and only the federal government. The actions of rights enforcement by the federal government against non-federal government agents / actors is very narrow. Often the federal government, in particular the courts, deny jurisdiction because there is no federal issue and often, especially when the effect of the 14th Amendment was getting applied drip-by-drip, issues of rights infringements by state governments or private citizens were flatly refused standing in federal courts . . . The right to arms was only incorporated under the 14th in 2010; many claims of 2ndA rights infringement by states were thrown out of federal courts before any merits were briefed or heard.

Quote:
Originally Posted by thorny locust View Post
All "inalienable" rights are also endangered, and in practice throughout human history frequently taken away, by non-governmental actors: individuals and, more recently, businesses including corporations. If we're in practice going to have such rights -- or any rights -- at all, what will keep them available to us, if not government action?
The philosophy of unalienable rights precludes the argument that they exist between private citizens (say criminal / victim) or business and customer. Unalienable means that these natural rights which you possessed before entering society, are of such an intrinsic value to being human they can not be willingly surrendered to the care and control of society (government). You can not legitimately sell yourself into slavery or sell your life, that does not mean that you can not be vanquished or conquered and placed into slavery or even killed.

Unalienable rights only apply in a government / governed dynamic, when a government is being established to NOT surrender rights to. One can't say that "unalienable rights" are being violated for people living under an autocratic dictatorship; the question of if those people ever surrendered, willingly, the limited powers that allow a government of their choosing to perform, can not be said to have ever been asked, let alone answered in the affirmative.

Quote:
Originally Posted by thorny locust View Post
And those rules are themselves part of the laws.
Of course, limitations demanded by those being governed to restrain the extra-legal arbitrary and capricious use of governmental power.

.

Last edited by Abatis; 09-01-2019 at 11:40 AM.
  #95  
Old 09-01-2019, 12:06 PM
asahi's Avatar
asahi is offline
Guest
 
Join Date: Aug 2015
Location: On your computer screen
Posts: 10,772
Quote:
Originally Posted by thelurkinghorror View Post
Legal.

Legal.

Probably not legal.
I missed this gem.

Possessing "destructive devices" is absolutely NOT legal (see National Firearms Act and National Crimes Control Act).
  #96  
Old 09-01-2019, 12:27 PM
thorny locust's Avatar
thorny locust is offline
Guest
 
Join Date: Apr 2019
Location: Upstate New York
Posts: 1,259
Quote:
Originally Posted by Abatis View Post
An example -- interestingly on the point of the RKBA -- is explained in Presser v Illinois:
"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states,
Quote:
Originally Posted by Abatis View Post
BUT, those regulations were only impressed upon those citizens "enrolled and notified" in the militia, not regular, private citizens who were not members of the militia. This is a long standing principle of law, that only the people expressly addressed in the law are considered to be bound by it .
The government may at the time have decided to only impress those regulations on those citizens enrolled and notified in the militia.

However, I don't see how you can simultaneously claim that the word "militia" undoubtedly applies to all citizens capable of bearing arms, and that it only applies to those who are enrolled and notified. Either the government had the regulatory power to impose all those regulations on "all citizens capable of bearing arms", whether or not it chose to in 1792; or it didn't -- in which case, where are all the objections from 1792, when most of the founders were still around? -- ; or the word "militia" doesn't apply to all citizens capable of bearing arms, but only to those officially enrolled in a state or federal militia -- in which case the 2nd doesn't apply to individuals except as part of such a militia.


Quote:
Originally Posted by Abatis View Post
The philosophy of unalienable rights precludes the argument that they exist between private citizens (say criminal / victim) or business and customer. Unalienable means that these natural rights which you possessed before entering society, are of such an intrinsic value to being human they can not be willingly surrendered to the care and control of society (government). You can not legitimately sell yourself into slavery or sell your life, that does not mean that you can not be vanquished or conquered and placed into slavery or even killed.

Unalienable rights only apply in a government / governed dynamic
.
So people have no right not be be murdered or enslaved as long as this is done by a private actor?

That's, I'll just say, an interesting position.

But I'm pretty sure that's a very large part of why most people agree to be governed in the first place: so they won't be murdered or enslaved by anybody who happens along.

Quote:
Originally Posted by Abatis View Post

CHANGE MY MIND . . .

.
I kind of doubt that's possible.

Poking holes in your argument is mostly for the purpose of dissuading anybody else from believing it.
  #97  
Old 09-01-2019, 12:38 PM
The Other Waldo Pepper is online now
Guest
 
Join Date: Apr 2009
Posts: 16,734
Quote:
Originally Posted by thorny locust View Post
I don't see how you can simultaneously claim that the word "militia" undoubtedly applies to all citizens capable of bearing arms, and that it only applies to those who are enrolled and notified. Either the government had the regulatory power to impose all those regulations on "all citizens capable of bearing arms", whether or not it chose to in 1792; or it didn't -- in which case, where are all the objections from 1792, when most of the founders were still around? -- ; or the word "militia" doesn't apply to all citizens capable of bearing arms, but only to those officially enrolled in a state or federal militia -- in which case the 2nd doesn't apply to individuals except as part of such a militia.
How do you figure?

I’m with you if it said “a well-regulated militia, being necessary to the security of a free State, the right of that militia to keep and bear Arms, shall not be infringed.” But for some reason, it doesn’t say “the right of that militia”; all of a sudden, it changes direction and starts talking about “the right of the people”.
  #98  
Old 09-01-2019, 01:11 PM
thelurkinghorror is offline
Guest
 
Join Date: Jun 2006
Location: Venial Sin City
Posts: 13,896
Quote:
Originally Posted by asahi View Post
I missed this gem.

Possessing "destructive devices" is absolutely NOT legal (see National Firearms Act and National Crimes Control Act).
They are subject to a $200 tax stamp and long wait, and that goes separate for every single projectile. Some states restrict them but the majority do not.
  #99  
Old 09-01-2019, 01:29 PM
Abatis is offline
Guest
 
Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by thorny locust View Post
The government may at the time have decided to only impress those regulations on those citizens enrolled and notified in the militia.

However, I don't see how you can simultaneously claim that the word "militia" undoubtedly applies to all citizens capable of bearing arms, and that it only applies to those who are enrolled and notified.
Actually, legally, there are at least three "militia". . .

The 1) unorganized "general" militia, the "all citizens capable of bearing arms" . . . from which the 2) organized militia of the state is drawn and then trained and deployed according to regulations issued under the authority of the Art. I militia clauses, and the 3) "part" of the organized state militia which are called up into actual service of the nation and paid by the United States. Number 1 is not addressed in the body of the Constitution, only the 2nd Amendment; numbers 2 & 3 are addressed in the body of the Constitution and in the 5th Amendment ("when in actual service in time of War or public danger" the grand jury requirement is relieved because you are bound under the UCMJ).

And if you really want to nit-pick, (and who doesn't) only the part of the militia "employed in the actual service of the nation" is in any shape or form, under any "governing" control of Congress . . . and the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States". So, tell me what control does either Congress or the President really, legitimately have over the unorganized, not enrolled in any militia, arms keeping a bearing private citizen?

Stop trying to pound the round peg of the people's right to arms into the square hole of the organized militia.

Quote:
Originally Posted by thorny locust View Post
Either the government had the regulatory power to impose all those regulations on "all citizens capable of bearing arms", whether or not it chose to in 1792; or it didn't --
It didn't.

Quote:
Originally Posted by thorny locust View Post
in which case, where are all the objections from 1792, when most of the founders were still around? -- ; or the word "militia" doesn't apply to all citizens capable of bearing arms, but only to those officially enrolled in a state or federal militia -- in which case the 2nd doesn't apply to individuals except as part of such a militia.
Object to what? OK, let's run with your absurd reading /interpretation . . .

The impressment of militia duty was only on "free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted).

So, is it your contention that . . .

"the Vice-President of the United States, the Officers, judicial and executives, of the government of the United States; the members of both houses of Congress, and their respective officers; all custom house officers, with the clerks; all post officers, and stage-drivers who are employed in the care and conveyance of the mail of the post office of the United States; all Ferrymen employed at any ferry on the post road; all inspectors of exports; all pilots, all mariners actually employed in the sea service of any citizen or merchant within the United States; and all persons who now are or may be hereafter exempted by the laws of the respective states, shall be and are hereby exempted from militia duty, notwithstanding their being above the age of eighteen and under the age of forty-five years."

. . . had no right to keep and bear arms and could have legally had some sort of arms deprivation placed on them because they were not members of the militia?

THAT strikes me as something they really would have objected to . . .


Quote:
Originally Posted by thorny locust View Post
So people have no right not be be murdered or enslaved as long as this is done by a private actor?
Correct.

You have no enforceable right to not be a victim of crime.

You have no right to be or "feel" safe.

No doubt a person killing you is a violation of law, but that isn't because it is an enforceable right.

Quote:
Originally Posted by thorny locust View Post
That's, I'll just say, an interesting position.
Take your objections up with John Locke and how the founders /framers interpreted his teatise.

Quote:
Originally Posted by thorny locust View Post
But I'm pretty sure that's a very large part of why most people agree to be governed in the first place: so they won't be murdered or enslaved by anybody who happens along.
Correct, an important reason why people enter into society is for power in numbers and using that collective force for defense from outside aggression. Also, establishing a criminal code to punish violations of the social order by those within that society according to agreed upon processes of justice (including due process).

Quote:
Originally Posted by thorny locust View Post
I kind of doubt that's possible.
Correct again.

Quote:
Originally Posted by thorny locust View Post
Poking holes in your argument is mostly for the purpose of dissuading anybody else from believing it.
Will you let me know, perhaps with changing the font color, when you feel you are poking holes in my argument?

.

Last edited by Abatis; 09-01-2019 at 01:31 PM.
  #100  
Old 09-01-2019, 01:50 PM
Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 82,352
Quote:
Originally Posted by The Other Waldo Pepper View Post
How do you figure?

I’m with you if it said “a well-regulated militia, being necessary to the security of a free State, the right of that militia to keep and bear Arms, shall not be infringed.” But for some reason, it doesn’t say “the right of that militia”; all of a sudden, it changes direction and starts talking about “the right of the people”.
An analogy would be is the first amendment had offered a similar preamble and said "Active churches, being necessary to the spiritual health of the community, the right of the people to be free in their religion, shall not be infringed."

This would imply that the purpose of individuals having the right is in order to provide support to churches. And that would lead to the argument that if churches can derive sufficient support from other means, it's not necessary to have an absolute right. For example, suppose you could get enough church members if half of the people in the community have freedom of religion? Or suppose some individual wants to carry out some religious practice that doesn't lead to church membership? This interpretation would also support laws that made church membership mandatory; a person would be free to choose their religion but they wouldn't have the right to choose no religion.

I'm assuming people can see how this analogy would apply to the second amendment. If you accept the militia clause as having legal weight, you could then argue that it's fulfilled if a sufficient majority of the people have the right to own weapons even if all of them don't. And you could argue that a weapon that doesn't function in a military sense, like a handgun, doesn't support the militia and isn't covered by the right. And you could say that everyone is required to own a firearm and belong to a militia.
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 08:24 PM.

Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2019, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@straightdope.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Copyright © 2019 STM Reader, LLC.

 
Copyright © 2017