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  #301  
Old 09-09-2019, 10:42 AM
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Originally Posted by Abatis View Post
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)
Maybe you're right about the legal aspects, but I suspect this would just depend on which party happens to have a majority of SCOTUS justices at the moment (i.e. the Republicans own the SCOTUS now, and have for many years, but that probably won't last forever). I'm less and less convinced that any of this is more than just a house of cards that we all happen to (mostly) agree to avoid tipping over. I don't think it would take much to expose how truly flawed and vulnerable our system is (and much of that is happening as we speak).

Last edited by iiandyiiii; 09-09-2019 at 10:43 AM.
  #302  
Old 09-09-2019, 01:02 PM
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Perhaps, but if so, such a ruling would have been because the 2nd applies only to militia use, and does NOT declare there to be an individual right outside that context. How can that be unclear?
How do you know this? Previous decisions had mentioned it as a right to defense.
  #303  
Old 09-09-2019, 01:07 PM
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No way to read it otherwise, is there?
  #304  
Old 09-09-2019, 01:09 PM
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No way to read it otherwise, is there?
Of course there is, experienced justices ruled otherwise in Heller and previous decisions.

Unless you think you know more law than a Supreme Court Justice?
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Old 09-09-2019, 01:28 PM
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Of course there is, experienced justices ruled otherwise in Heller and previous decisions.

Unless you think you know more law than a Supreme Court Justice?
...And by resounding unanimous decision, if I recall.
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  #306  
Old 09-09-2019, 01:48 PM
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Mostly because I've read Miller and Stevens conclusions regarding it are poor.
Like I already said: "It sounds like you took issue with the fact that I agree with Stevens and you disagree with Stevens."

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I understand that Stevens is arguing that precedent was overturned. But as a matter of law, he's wrong and it is incorrect to say that Heller overturned precedent.
You know what word doesn't show up at all in Stevens' dissent.

Overturned.

He, and I, never once said Heller overturned precedent. There is a world of difference between overturning precedent and misreading and mistakenly distinguishing precedent. Which is what the majority opinion did.

I get that you want to make it seem like Heller wasn't a shift in the interpretation of the Second Amendment, but it is.
  #307  
Old 09-09-2019, 01:57 PM
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You know what word doesn't show up at all in Stevens' dissent.

Overturned.

He, and I, never once said Heller overturned precedent. There is a world of difference between overturning precedent and misreading and mistakenly distinguishing precedent. Which is what the majority opinion did.

I get that you want to make it seem like Heller wasn't a shift in the interpretation of the Second Amendment, but it is.
"Overturned" was a poor word choice on my part. The operative phrase was "contrary to precedent" which is the line of discussion that I took issue with. In that sense, I'm not seeing much of a distinction, but I would continue to say that nothing in Heller was contrary to precedent as you asserted in post #252. Heller did carve new ground and made certain things more explicit of course.
  #308  
Old 09-09-2019, 01:58 PM
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Of course there is
No intellectually-honest way.
  #309  
Old 09-09-2019, 02:12 PM
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"Overturned" was a poor word choice on my part. The operative phrase was "contrary to precedent" which is the line of discussion that I took issue with. In that sense, I'm not seeing much of a distinction, but I would continue to say that nothing in Heller was contrary to precedent as you asserted in post #252. Heller did carve new ground and made certain things more explicit of course.
Recognizing a right that, according to precedent, had not been recognized before, is, to my mind, "contrary to precedent". You are free to think otherwise.

Heck, I think there is certainly a right to self defense, although it is not enumerated in the Bill of Rights. I also think there is an individual right to keep and bear arms. But that should not be the end of the inquiry, just the beginning. But it's pretty clear that Heller changed the state of the law which, until it was decided, had pretty firmly been established.
  #310  
Old 09-09-2019, 03:37 PM
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True. There are 300,000,000 guns in the uSA. About 10000 are used form murder.

So you'd ban that 299,990,000 to solve that 10000.


And it wont. Gun control has never worked in the USA.

And why do you want gun control?

1, to reduce suicides (biggest potion of gun deaths)? Well, I think suicide is both a tragedy and a right, and Japans seems to have no problem keeping it's suicide rate well about the USAs with no guns. So, that's a crappy reason. Lets get some more counseling and such out there.

2. To reduce Murder? Ok, but you see the violent crime rate has been going down for some time, while the number of guns owned is increasing. Hmmm. Maybe a few more reasonable restrictions, like on straw man sales might help, sure, why not?

3. To reduce mass killings? As I have proven, mass shootings are a product of the media, not guns. So, then, we'd have to get rid of the 1st Ad for that. Are you in favor?
I've been following this thread because I think it's fascinating, and I've learned a lot from both sides. About your #1, though, I'm curious: would you support higher taxes to "get more counseling and such out there"? I'm not trying to jack the thread, but I've heard this line, yet I never hear the people using it say they'd support what it would cost to make this happen. Is it hand-waving, or do you really mean it?
  #311  
Old 09-09-2019, 03:38 PM
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You never see or hear them actually doing anything about it, either.
  #312  
Old 09-09-2019, 04:35 PM
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...And by resounding unanimous decision, if I recall.
Roe vs Wade wasnt unanimous.


Lawrence v. Texas wasnt unanimous.


Obergefell v. Hodges wasnt unanimous.

Mapp v. Ohio wasnt unanimous.

Miranda v. Arizona wasnt unanimous.

I guess those are all bad decisions then, eh?
  #313  
Old 09-09-2019, 04:37 PM
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I've been following this thread because I think it's fascinating, and I've learned a lot from both sides. About your #1, though, I'm curious: would you support higher taxes to "get more counseling and such out there"? I'm not trying to jack the thread, but I've heard this line, yet I never hear the people using it say they'd support what it would cost to make this happen. Is it hand-waving, or do you really mean it?
Sure, or we could just not waste the billions on the "Wall".
  #314  
Old 09-09-2019, 04:38 PM
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You never see or hear them actually doing anything about it, either.
I write my congresscritter, what do you do?
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Old 09-09-2019, 06:49 PM
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Roe vs Wade wasnt unanimous.


Lawrence v. Texas wasnt unanimous.


Obergefell v. Hodges wasnt unanimous.

Mapp v. Ohio wasnt unanimous.

Miranda v. Arizona wasnt unanimous.

I guess those are all bad decisions then, eh?
You didn't say anything about good or bad decisions. You said: "...experienced justices ruled otherwise in Heller and previous decisions."

Implying what exactly; that the dissenting SCOTUS judges were inexperienced in the law?
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  #316  
Old 09-09-2019, 06:55 PM
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I write my congresscritter, what do you do?
I choose not to contribute to the problem by buying guns.
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  #317  
Old 09-09-2019, 07:27 PM
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You didn't say anything about good or bad decisions. You said: "...experienced justices ruled otherwise in Heller and previous decisions."

Implying what exactly; that the dissenting SCOTUS judges were inexperienced in the law?
Not implying, sorry I am out and out stating that the posters here on this message board are not experienced justices in Constitutional Law.


No, they were simply out voted, which occurred in all those rather groundbreaking, great and critical cases i posted.

Roe vs Wade wasnt unanimous.


Lawrence v. Texas wasnt unanimous.


Obergefell v. Hodges wasnt unanimous.

Mapp v. Ohio wasnt unanimous.

Miranda v. Arizona wasnt unanimous.


So, as you seem to be implying any decision which isnt unanimous is a bad one, which make all of those great decisions also bad.

I disagree- lack of unanimity seems to be the hallmark of a groundbreaking, great and critical case.
  #318  
Old 09-09-2019, 07:33 PM
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No intellectually-honest way.
You know, I'm going to rule that an insult, Elvis. Such phrasing has been ruled so before.

Don't insult other posters, nor even imply that they are lying.
  #319  
Old 09-09-2019, 07:58 PM
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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.
The Second Amendment, if one reads it literally, always applied to state governments as well as the federal government, and the Constitution plainly and clearly gives states the power to make and enforce criminal law. Were the Second Amendment to be repealed it would be entirely constitutional for any state government to simply make it illegal to possess a firearm, just as it is Constitutional for them to make any number of things illegal that are not specifically protected in the Constitution.
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  #320  
Old 09-10-2019, 02:24 PM
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Do you think there is such a thing as "human rights"? Something such that a country like, North Korea, could violate?

Everyone starts with certain unalienable rights. The right to not be killed for example. Just because someone kills another person, doesn't mean they didn't possess that right, it means that someone violated their rights. That a right is violated does not mean that it never existed, though depending on circumstances one may not have the ability to enforce those rights.

In your view, people are subjects of the government. In the context of the US, the government is subject to the people.
Bolding mine. In point of fact, both of the two last sentences are true, and political philosophies differ largely in the extent to which they value the role of government or, alternatively, seek to minimize it. The whole gun debate in essence revolves around that issue -- whether it's government's role to promote a society that is relatively free of guns so that the right not to be killed by a random lunatic is part of the social contract, or whether possession of such weaponry is an individual right regardless of the societal consequences.

The idea that "the government is subject to the people" is an oft-cited trope in American history, as if true democracies did not exist elsewhere. But in fact they do, and often in a more robust form, free of plutocratic rule, and relatively free of the corrupting influence of money in politics and relatively free of gun violence wrought by an extreme devotion to individualism. To quote a current conservative hero, Neil Gorsuch, making my point albeit no doubt unintentionally:
For Gorsuch, the structure of government is his lodestar even more fundamentally so than the Bill of Rights.

"North Korea has an excellent Bill of Rights," he offers.

"They promise all the rights we have, and a bunch more. Right to free medical care, right to free education, and my favorite, a right to relaxation."

"Now, ask political prisoners how is that working out?" he queries.

For Gorsuch, those promises "aren't worth the paper they're written on" because there aren't structures to keep the power "from flowing into one set of hands."
https://www.cnn.com/2019/09/10/polit...ump/index.html
Thus even the libertarian Cato Institute ranks the US #17 in the world on the Human Freedom Index [PDF], behind New Zealand, Switzerland, Hong Kong, Australia, Canada, Netherlands, Denmark, Ireland, United Kingdom, Finland, Norway, Taiwan, Germany, Estonia, Luxembourg, and Austria. And according to FreedomHouse.org, the US comes out much worse, way down at #53 on the index of personal freedom. So obviously the principle of government -- or societal structures in general -- being subservient to the people in America isn't working out quite as intended.
  #321  
Old 09-10-2019, 03:32 PM
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Don't insult other posters, nor even imply that they are lying.
The reference was to Antonin Scalia.
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Old 09-10-2019, 07:34 PM
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You argue as if the constitution stands entirely on the inviolate, perpetual existence of the 2nd Amendment. I do detest the emotional fragility of the right that requires constant assurance from the grim death grip on their guns.
I am arguing obverse of what you say there . . . I argue that the the 2nd Amendment stands entirely on the inviolate, perpetual existence of the fundamental principles of the Constitution.

You are the one arguing that the 2nd Amendment is a red-headed step child that has no hereditary linkage to the rest of the Constitution or the Bill of Rights. Your argument is that the 2ndA was nothing but a Trojan Horse, sneaking in federal powers when they were supposed to be prohibited, to dictate to the states and the people just who shall be the approved arms bearers, and to override any state's bill of rights provision holding out their individual citizens as possessing a right to keep and bear arms.

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QED. And are you seriously arguing that the conservative right and the 2nd Amendment stands to protect human rights from the progressive left?
SMH. . . No, I'm saying that the left's hostility for the RKBA and the 2nd Amendment will furnish the legal premise to argue that the penumbral rights theory is a myth because a right that is a link in the "rational continuum" of liberty the Bill of Rights represents, can be cut out . . . Thus the premise for penumbral rights was never true.

Penumbral rights theory demands the "rational continuum" remain inviolate and pristine.

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Any port in a storm. Colour me shocked.
Which can be said for any person's vote predicated on any politician's position on any public policy that the voter believes is of primary importance to them. Have you ever voted for a candidate that you agreed with on everything?

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  #323  
Old 09-10-2019, 07:47 PM
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Maybe you're right about the legal aspects, but I suspect this would just depend on which party happens to have a majority of SCOTUS justices at the moment (i.e. the Republicans own the SCOTUS now, and have for many years, but that probably won't last forever). I'm less and less convinced that any of this is more than just a house of cards that we all happen to (mostly) agree to avoid tipping over. I don't think it would take much to expose how truly flawed and vulnerable our system is (and much of that is happening as we speak).
The current interpretation of the 2nd (DC v Heller, McDonald v Chicago, Caetano v. Massachusetts) places it right in the fold of the other enumerated rights in the Bill of Rights. To reverse that would take a mutation of law and a reworking of nearly 200 years of SCOTUS explanations on the right to arms and the 2nd Amendment.
  #324  
Old 09-10-2019, 07:50 PM
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No way to read it otherwise, is there?
Well, you could read it with the correct fundamental understanding, that the right to arms isn't granted, given, created or established by the 2nd Amendment so the right is not in any manner dependent on the Constitution for its existence.

You could try that.
  #325  
Old 09-10-2019, 07:53 PM
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...And by resounding unanimous decision, if I recall.
True, 9-0 on the question of if the 2nd Amendment protects an individual right.

I sure wish more anti's recognized that fact going into the debate.
  #326  
Old 09-10-2019, 08:16 PM
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Recognizing a right that, according to precedent, had not been recognized before, is, to my mind, "contrary to precedent". You are free to think otherwise.
The Court "recognized" the right to "bear arms for lawful purpose" of two former slaves, then citizens, for self defense in public, from the KKK / Night Riders, in 1873 Louisiana, a state that had no state militia, it having been disbanded by Congress.

Even if there was a Louisiana state militia, these two citizens would have been forbidden to enroll by federal law since they were not White.

So, given the indisputable facts of Cruikshank -- the first time the Court looked at the right to arms of citizens -- please explain your statement.


SPOILER:
a) The quote "bear arms for lawful purpose" was from the indictment the Court was examining, of Cruikshank et al. The facts of incident that predicated the case are a sad part of US history called the Colfax Massacre.

b) That the Court did not enforce the 14th Amendment or the Enforcement Act in Cruikshank, was not because the Court held the two lynched former slaves did not have a federally recognized right to keep and bear arms, the right was recognized. The case was decided on the single point that the scumbags who killed them were private citizens, not state actors.

The same justification was used to dismiss all claims of rights violation, those being (again, SCOTUS quoting the indictment):
"[T]heir respective free exercise and enjoyment of their lawful right and privilege to peaceably assemble together with each other and with other citizens of the said United States for a peaceable and lawful purpose.'"

The right to "bear arms for a lawful purpose."

The right to be free from depravation, "of their respective several lives and liberty of person, without due process of law."

The right of, "free exercise and enjoyment of the right and privilege to the full and equal benefit of all laws and proceedings for the security of persons and property' enjoyed by white citizens."

To be free "in the exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the said United States, and as citizens of the said State of Louisiana, by reason of and for and on account of the race and color' of the said persons."

The right of, "the free exercise and enjoyment of the several and respective right and privilege to vote at any election to be thereafter by law had and held by the people in and of the said State of Louisiana."

To not be, "put in great fear of bodily harm, injure, and oppress' the same persons, 'because and for the reason' that, having the right to vote, they had voted."

And finally, all the rights listed in the Constitution; "in their several and respective free exercise and enjoyment of every, each, all, and singular and several rights and privileges granted and secured' to them 'by the constitution and laws of the United States."

Last edited by Abatis; 09-10-2019 at 08:20 PM.
  #327  
Old 09-10-2019, 08:26 PM
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I am arguing obverse of what you say there . . . I argue that the the 2nd Amendment stands entirely on the inviolate, perpetual existence of the fundamental principles of the Constitution.

You are the one arguing that the 2nd Amendment is a red-headed step child that has no hereditary linkage to the rest of the Constitution or the Bill of Rights. Your argument is that the 2ndA was nothing but a Trojan Horse, sneaking in federal powers when they were supposed to be prohibited, to dictate to the states and the people just who shall be the approved arms bearers, and to override any state's bill of rights provision holding out their individual citizens as possessing a right to keep and bear arms.
No. I'm arguing that the 2nd A has outlived its usefulness and should be dumped into the dustbin of history. Because it does not live up to it's intended purpose and because it's purpose has been entirely co-opted by those who either don't give a damn about its original intent or are delusional in that it still serves its original intent.

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SMH. . . No, I'm saying that the left's hostility for the RKBA and the 2nd Amendment will furnish the legal premise to argue that the penumbral rights theory is a myth because a right that is a link in the "rational continuum" of liberty the Bill of Rights represents, can be cut out . . . Thus the premise for penumbral rights was never true.

Penumbral rights theory demands the "rational continuum" remain inviolate and pristine.
I dismiss your boogeyman legal premise thus.

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Which can be said for any person's vote predicated on any politician's position on any public policy that the voter believes is of primary importance to them. Have you ever voted for a candidate that you agreed with on everything?
I'm not a single issue voter. I tend to vote for the person with whom I agree with on a large majority of key issues. I especially avoid casting my vote for a candidates who have shown themselves to be incompetent, bigoted, pathological liars.
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  #328  
Old 09-10-2019, 08:50 PM
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No. I'm arguing that the 2nd A has outlived its usefulness and should be dumped into the dustbin of history. Because it does not live up to it's intended purpose and because it's purpose has been entirely co-opted by those who either don't give a damn about its original intent or are delusional in that it still serves its original intent.
Ok, well that's not a legal argument, that's just emotion and wishcasting.

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I dismiss your boogeyman legal premise thus.
I didn't expect you to get it.

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I'm not a single issue voter. I tend to vote for the person with whom I agree with on a large majority of key issues.
In a normal year that works great. Some years when faced with someone who advocates nothing you support and everything you oppose your choices are very limited. In 2016 such was the case and a when someone says they will nominate constitutionalists for the federal judiciary that was good enough for me.

Besides, who the hell thought he could win? My vote for him is only condemnable now because he won, if Hillary won, you would only take note of it for ridicule.

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I especially avoid casting my vote for a candidates who have shown themselves to be incompetent, bigoted, pathological liars.
So then you understand why I couldn't vote for Hillary!

.

Last edited by Abatis; 09-10-2019 at 08:51 PM.
  #329  
Old 09-10-2019, 10:01 PM
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No. I'm arguing that the 2nd A has outlived its usefulness and should be dumped into the dustbin of history. Because it does not live up to it's intended purpose and because it's purpose has been entirely co-opted by those who either don't give a damn about its original intent or are delusional in that it still serves its original intent. ....
It had two purposes- to allow each state to have a militia so that the central government, with a small regular army couldn't overpower them. Rightly or wrong, the USA has decided to be the Worlds Policeman with a very powerful standing army. So yeah, that part is gone.

The second part is to allow people to defend their own homes, just as the Supreme court and the Founders said. That part is still very viable.
  #330  
Old 09-11-2019, 09:59 AM
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Ok, well that's not a legal argument, that's just emotion and wishcasting.
It's an observational argument, actually. There is no functioning "unorganized" citizen militia.



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I didn't expect you to get it.
No. You didn't expect me to agree.

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Besides, who the hell thought he could win? My vote for him is only condemnable now because he won, if Hillary won, you would only take note of it for ridicule.
It's condemnable because:
1) Trump is contemptable
2) You don't admit fault for helping elect him to power
3) I ridicule it on its merit, regardless of outcome



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So then you understand why I couldn't vote for Hillary!.
I'm not interested in re-litigating her merits, or lack thereof. She had serious flaws, for sure. Not the least of which that she could not inspire sufficient numbers of democrats and independents to come out to vote for her. But despite that, she was a far more competent, experienced and serious candidate than Trump.
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  #331  
Old 09-11-2019, 10:14 AM
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The second part is to allow people to defend their own homes, just as the Supreme court and the Founders said. That part is still very viable.
It doesn't say anything about defending your own home. The Founders didn't say that in 2A. That's a rationalization that was created later.
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  #332  
Old 09-11-2019, 12:00 PM
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It doesn't say anything about defending your own home. The Founders didn't say that in 2A. That's a rationalization that was created later.

True, becuase the Founders didnt like to put obvious things into the BoR, in fact there was almost not BoR as many Founders thought those rights were self-obvious. But if you read the debate and discussion and writings from the Convention, it is very clear they considered that using your gum to defend you home was obvious.
  #333  
Old 09-11-2019, 07:57 PM
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It's an observational argument, actually.
It's insular navel gazing and unobservant. You dismiss the foundational principles, you ignore the framers contemporaneous writings, you handwave the determinations of SCOTUS and invent your conclusion.

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There is no functioning "unorganized" citizen militia.
The "unorganized" militia is nothing but the able-bodied men of the nation who are able to work in concert to secure their own liberty or the aid the civil authorities in time of need. It doesn't need any legislation or regulation to exist, only to be formally called-up, organized, trained and deployed.

Today is a day when we pay our respects and honor some members of the "unorganized" militia . . . The passengers of Flight 93. Their actions are the epitome of the sense of civic duty and sacrifice for the greater good of "unorganized" militia -- even though they took no oath of service to their state or the nation. Your denial spits on their service.

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No. You didn't expect me to agree.
No, but I thought you might be capable of articulating a cogent oppositional legal argument.
  #334  
Old 09-11-2019, 08:14 PM
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It doesn't say anything about defending your own home. The Founders didn't say that in 2A. That's a rationalization that was created later.
You say that as if the right to arms is only what the 2nd Amendment "allows".

Actually, you are 180 degrees wrong. This standard you want to hold the 2nd Amendment to, really only applies to the federal government and the enumerated powers. If the framers didn't "say" IN THE BODY OF THE CONSTITUTION, that the feds can restrict the right to arms and not recognize home defense, then you would have an argument.

Pointing the the 2nd Amendment and saying, the right to defend your home ain't in there, has no legitimacy.
  #335  
Old 09-11-2019, 08:48 PM
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No, but I thought you might be capable of articulating a cogent oppositional legal argument.
I'm not a lawyer. We're not in court. You were the one who made the absurd claim that reversal of 2A would lead to penumbral protection reversals of abortion and various other rights. Conveniently ignoring the fact that all those other rights were hard fought for, separate and apart from 2A. Conveniently forgetting the fact that you admitted to wanting more right leaning courts that would challenge/restrict rights like abortion and marriage equality. Conveniently dismissing that other democracies around the world honor rights and liberty without reliance on anything like 2A.

In summary, if it please the court, I call bullshit on your entire line of reasoning. Articulate enough for you?

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Today is a day when we pay our respects and honor some members of the "unorganized" militia . . . The passengers of Flight 93. Their actions are the epitome of the sense of civic duty and sacrifice for the greater good of "unorganized" militia -- even though they took no oath of service to their state or the nation. Your denial spits on their service.
Wow. I'm almost embarrassed for you, that you thought nothing of sinking so low as to use the anniversary of a national tragedy in such a transparently manipulative manner, in an attempt to further your bent agenda. If your previous posts didn't quite say it clearly enough, this has certainly put all doubt to rest about the kind of person you really are. I'm done here.
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Last edited by QuickSilver; 09-11-2019 at 08:49 PM.
  #336  
Old 09-11-2019, 09:08 PM
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It had two purposes- to allow each state to have a militia so that the central government, with a small regular army couldn't overpower them.
Then why does the Constitution authorize the president to command the militia? I really can't read the 2d Am. in any way intended to supersede that.
  #337  
Old 09-11-2019, 09:35 PM
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Then why does the Constitution authorize the president to command the militia? I really can't read the 2d Am. in any way intended to supersede that.
".....when called into the actual Service of the United States."

So, when the State militia is called up to defend us in case of invasion, the Pres is CinC. Happened in war of 1812.
  #338  
Old 09-11-2019, 09:40 PM
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".....when called into the actual Service of the United States."

So, when the State militia is called up to defend us in case of invasion, the Pres is CinC. Happened in war of 1812.
But, no limitation is placed on the circumstances under which the militia can be called into federal service. E.g., the New England states declare secession in protest of the War of 1812 (that was an actual thing), so Madison federalizes their militia and that's that, all perfectly constitutional.
  #339  
Old 09-12-2019, 07:09 AM
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The Court "recognized" the right to "bear arms for lawful purpose" of two former slaves, then citizens, for self defense in public, from the KKK / Night Riders, in 1873 Louisiana, a state that had no state militia, it having been disbanded by Congress.
[b]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. 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. Miller is much more controlling on the issue than Cruikshank. 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.

Last edited by Hamlet; 09-12-2019 at 07:12 AM.
  #340  
Old 09-12-2019, 07:42 AM
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But, no limitation is placed on the circumstances under which the militia can be called into federal service. E.g., the New England states declare secession in protest of the War of 1812 (that was an actual thing), so Madison federalizes their militia and that's that, all perfectly constitutional.
In a more recent example, from 1957, when Arkansas Governor Orval Faubus called out the Guard to prevent desegregation of Little Rock Central HS, President Eisenhower federalized them and ordered them to facilitate it.
  #341  
Old 09-12-2019, 08:06 AM
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Today is a day when we pay our respects and honor some members of the "unorganized" militia . . . The passengers of Flight 93. Their actions are the epitome of the sense of civic duty and sacrifice for the greater good of "unorganized" militia -- even though they took no oath of service to their state or the nation. Your denial spits on their service.
This is a ridiculous argument from emotion, absolutely embarrassing.
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  #342  
Old 09-12-2019, 08:33 AM
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Wow. I'm almost embarrassed for you, that you thought nothing of sinking so low as to use the anniversary of a national tragedy in such a transparently manipulative manner, in an attempt to further your bent agenda. If your previous posts didn't quite say it clearly enough, this has certainly put all doubt to rest about the kind of person you really are. I'm done here.
I missed that post by Abatis. Ugly. I think I'll join you and leave this thread.
  #343  
Old 09-12-2019, 01:51 PM
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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"?
Sorry, I missed this until now.

I think by definition so-called natural/unalienable/human rights supersede legal rights. Laws that unjustly infringe natural rights are invalid on that basis alone. The only reconciliation is on the law side. This was the legal philosophy put forward by the Declaration of Independence, endorsed by many of the same founding fathers who wrote the Articles of Confederation and then the Constitution.

As you know I don't believe natural rights actually exist except as people are willing to create and respect them; that is, they are (to me) a legal fiction.

~Max

Last edited by Max S.; 09-12-2019 at 01:54 PM. Reason: unjustly infringe
  #344  
Old 09-12-2019, 02:12 PM
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I'm not a lawyer. We're not in court.
And? That doesn't mean that correct legal / constitutional arguments can't be made by one person, and the other person be shown to just be blowing smoke.

One of us is using quotes and citations and one of us is just wishcasting.

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You were the one who made the absurd claim that reversal of 2A would lead to penumbral protection reversals of abortion and various other rights.
Hard fought in what way? The right to privacy was conjured into being in Griswold, using a theory that I don't disagree with -- for as long as SCOTUS refuses to revisit The Slaughterhouse Cases , overturn it and reinvigorate the 14th Amendment's "privileges or immunities" clause . . . That would open the constitutional path to recognizing unenumerated rights. The "Penumbral Rights Theory" is a serviceable workaround to Slaughterhouse, for now . . .

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Originally Posted by QuickSilver View Post
Conveniently ignoring the fact that all those other rights were hard fought for, separate and apart from 2A.
And there's where you are wrong . . . That "Penumbral Rights Theory" rests on the inviolate nature of the rights recognized and secured in the first eight provisions of the Bill of Rights, is a legal truth and it forms the central point of my argument.

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Originally Posted by QuickSilver View Post
Conveniently forgetting the fact that you admitted to wanting more right leaning courts that would challenge/restrict rights like abortion and marriage equality.
I only want judges and Justices that will respect and uphold the Constitution. That they are considered "right leaning" has more to do with the left's penchant for disrespecting and ignoring the Constitution than anyone else's hostility for the right to privacy and its derivative rights.

Just to throw this out there, I consider social conservatives (AKA "religious right") and their anti-abortion / anti-LGBTQ rights agenda to be nearly as dangerous to Liberty and the Constitution as Constitution hating / ignoring liberals . . . Both can be condemned for envisioning government exercising powers it was never granted, to modify the behavior of those they consider either Godless Heathens or the Basket of Deplorables.

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Originally Posted by QuickSilver View Post
[Conveniently dismissing that other democracies around the world honor rights and liberty without reliance on anything like 2A.
As it should be dismissed, with ease and no further consideration.

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Originally Posted by QuickSilver View Post
In summary, if it please the court, I call bullshit on your entire line of reasoning. Articulate enough for you?
For someone with 37 posts in this thread so far, it seems a letdown to just surrender like that.

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Originally Posted by QuickSilver View Post
Wow. I'm almost embarrassed for you, that you thought nothing of sinking so low as to use the anniversary of a national tragedy in such a transparently manipulative manner, in an attempt to further your bent agenda. If your previous posts didn't quite say it clearly enough, this has certainly put all doubt to rest about the kind of person you really are. I'm done here.
And your vapor attack there doesn't explain how I'm wrong. Lord knows, Todd Beamer and the other passengers had a horrible decision to make and that decision was the unorganized militia principle in action.

"Let's Roll" is what Liberty loving, civic minded Americans do.

Last edited by Abatis; 09-12-2019 at 02:14 PM.
  #345  
Old 09-12-2019, 02:17 PM
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Deleted, out of sequence reply....

Last edited by Abatis; 09-12-2019 at 02:21 PM.
  #346  
Old 09-12-2019, 04:23 PM
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But, no limitation is placed on the circumstances under which the militia can be called into federal service. E.g., the New England states declare secession in protest of the War of 1812 (that was an actual thing), so Madison federalizes their militia and that's that, all perfectly constitutional.
Except NH, I don't think the New England states or their militias fully complied with Madison's orders, especially orders to invade Canada. And the states didn't declare secession. After Madison tried and failed to invade Canada, at the end of the war, you had the Hartford Convention which dealt not with secession but constitutional amendments to remove the three-fifths compromise and require two-thirds of Congress to declare war, admit new states, or restrict trade.

And Madison only had the authority to call the militias into national service (to federalize them) because Congress gave him that statutory authority. The Constitution itself gives Congress the power to call militia into national service "to repel invasion". When Madison issued orders to invade Canada, given the unpopularity of the war, many NE states (including their congressmen) refused to comply because they did not consider that within Congress's authority much less the President's delegated authority.

In direct opposition to your assertion, see the United States Constitution, Article I, Section 8, Clause 15 which expressly limits the government's power to certain circumstances:
"[The Congress shall have Power] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"
~Max
  #347  
Old 09-12-2019, 04:31 PM
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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?


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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.

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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.

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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.
  #348  
Old 09-12-2019, 04:41 PM
Max S. is offline
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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.
Be careful not read too much into 1880s dicta from Presser. That pre-incorporation ruling was that the Second Amendment did not apply to states, in the same vein as the First Amendment in United States v. Cruikshank (1875). The dicta does not extend to all forms of arms control, only such controls that "deprive the United States of their rightful resource for maintaining the public security", that is, the militia that the national Congress may organize and arm (U.S. Const. art I sect 8).

For example, if Congress issued (or called for the keeping of) a rifle to every able-bodied adult between 21 and 40 years of age, the states relinquished their power to disarm their own citizens of such rifles. Not through the Second Amendment, but through the original Constitution. As originally devised, the states would have a check via their representation in the Senate. Now that check is gone, but the people still retain a check through their representation.

The Second Amendment itself prevents the Congress from disarming the people.

Incorporation of the Second Amendment means that the states cannot necessarily disarm their own people, even if the Congress has not issued or prescribed the keeping of arms. There are fuzzy exceptions as with other incorporated doctrines.

~Max

Last edited by Max S.; 09-12-2019 at 04:44 PM.
  #349  
Old 09-12-2019, 04:57 PM
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Originally Posted by ElvisL1ves View Post
In a more recent example, from 1957, when Arkansas Governor Orval Faubus called out the Guard to prevent desegregation of Little Rock Central HS, President Eisenhower federalized them and ordered them to facilitate it.
That was after the NG had been nationalized.
  #350  
Old 09-12-2019, 04:59 PM
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But, no limitation is placed on the circumstances under which the militia can be called into federal service. E.g., the New England states declare secession in protest of the War of 1812 (that was an actual thing), so Madison federalizes their militia and that's that, all perfectly constitutional.
So, what's your point?

In 1861 did the Militias of the CSA states follow the orders of President Lincoln?


The state militia would just ignore the "other
" president.
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