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  #351  
Old 09-12-2019, 06:51 PM
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Originally Posted by Abatis View Post
Is that you saying your earlier statement that Heller recognized "a right that, according to precedent, had not been recognized before . . . " was wrong?
Heller recognized a right to keep and bear arms in the 2nd Amendment, which, until it ruled, it had not recognized before.

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Originally Posted by Abatis
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.
When you use a national tragedy as a ham handed tool in an unrelated argument, I can see why you get called lots of names. I for one, but for the rules in this forum, would love to give you more than a few.

As to the rest of your post, it's a strawman based on your broad, and inaccurate, belief of what "liberals" believe. So if you wish to tilt at the windmills of your imagined advocates of unlimited rights, have fun with that. Just make sure you don't miss the "2nd Amendment" one.
  #352  
Old 09-12-2019, 09:48 PM
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Originally Posted by Max S. View Post
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).
But I can read what the Court plainly said without reading too much into it.

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Originally Posted by Max S. View Post
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).
The Court is very clear that they are only discussing private citizens, those capable of bearing arms, the "reserve militia" of the states and the nation and the nature of their right to arms as it relates to the states and federal government.

There was no "gun control" law being challenged or even tangentially addressed in this case. The law that was being challenged was not a gun law, it, "only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law". The Court decided that law "do[es] not infringe the right of the people to keep and bear arms" This was because private citizens have no claims to any militia rights, protected by the 2nd Amendment.

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Originally Posted by Max S. View Post
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.
Whew, talk about over reading . . . with a bit of taffy-pulling thrown in for good measure.

Citizens mandated by Congress to provide themselves with a firearm are not in any manner exercising a constitutional right, 2nd Amendment or otherwise. I don't even know where you are drawing the reasoning for the above from, the Court doesn't say the exercise of such a power would render the states impotent . . . The Court explains that the federal mandate that forces the rule that "the states cannot, even laying the [the 2nd Amendment] out of view, prohibit the people from keeping and bearing arms, . . . " is a structural one, borne out of principle.

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Originally Posted by Max S. View Post
The Second Amendment itself prevents the Congress from disarming the people.
The federal government was forbidden to disarm the people before any provision of the Bill of Rights was proposed, before a single word of what would become the 2nd Amendment was put to parchment.

All the 2nd Amendment "does" is redundantly forbid the federal government to exercise powers it was never granted.

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Originally Posted by Max S. View Post
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.
The entire field of 2nd Amendment incorporation is fuzzy because it hasn't been advanced since being ruled on in 2010.

.
  #353  
Old 09-12-2019, 10:37 PM
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Originally Posted by obbn View Post
Hello Everyone,

This is of course politely fantasy and I wasn't sure which category to put this in, so GD it is. Let say that we have somehow perfected time travel and for kicks went back to the founding of our Nation and brought the Founding Fathers to present day. Would their opinions on current day issues matter? Take for example the 2nd Amendment. If we could ask them, what exactly did you mean by well regulated militia? Do you consider modern weapons to be covered under your intent? Etc...

Would their clarification today end the debate? If they said, we never meant weapons that could fire more than a single shot to be covered by the 2nd OR just that opposite, we think that civilians should have aces to all weapons including fully automatic firearms. Would that be the end of the arguments concerning the 2nd or would their opinions, although all we do is based on the Constitution, be irrelevant to us?

This of course would not only be applied to the 2nd, but to everything laid out in the Constitution.

And I picked the 2nd for an example as we always hear each side trying to interpret what was meant and we can't agree on what they intended. Would both sides consider it settled if we could hear an expanded explanation right from the horses mouths?
Besides cannons, muskets, sailing ships, bladed weapons, and fighting involving combinations of skirmishes and soldiers in formation firing, marching, etc., the FF also experienced the ff.

- the use of militias serving as slave patrols, etc.;

- the British trying to encourage slaves to rebel;

- several armed because they lived in isolation or far away from each other or from various authorities, and faced problems ranging from famine to disease to armed groups attacking them;

- instances where standing armies threatened rule by civilians or subjects.

The response to these was 2A, which called for individual rights to defend oneself, state rights to defend themselves, and the need for the country to defend itself with a small standing army and a large supplement of regulated militias (defined in Art. 1 Sec. 8 and the Militia Acts).

With prison, surveillance, and police systems far greater today than they were back then, then the FF would probably support ownership of anything up to semi-automatic firearms plus gun control enabled by local governments, with police and the military allowed to use more powerful weapons.

At the same time, give greater sophistication and complexities in standing armies, the FF would acknowledge that militias are outdated, and would logically support larger standing armies, more sophisticated training for advanced weaponry, armaments, and delivery systems, and thus something like the National Guard.
  #354  
Old 09-12-2019, 10:44 PM
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Originally Posted by Hamlet View Post
Heller recognized a right to keep and bear arms in the 2nd Amendment, which, until it ruled, it had not recognized before.
Well, that is worded in such a way that I can't say what I think it means. Are you saying that the 2nd Amendment doesn't actually say "right to keep and bear arms" or are you saying that Heller ruled on something that Heller never ruled on . . .

Or are you back to saying that Heller recognized a new right that SCOTUS never noticed before after saying, "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" in your last post?

This judge is giving you a 9.7 for mental gymnastics.

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Originally Posted by Hamlet View Post
When you use a national tragedy as a ham handed tool in an unrelated argument, I can see why you get called lots of names. I for one, but for the rules in this forum, would love to give you more than a few.
Well, if people can find the composure to rebut Omar's "some people did something" you should be able to take a deep breath and show me how I'm wrong . . .

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Originally Posted by Hamlet View Post
As to the rest of your post, it's a strawman based on your broad, and inaccurate, belief of what "liberals" believe.
Look, if you can't form a cogent argument that actually rebuts mine, that's OK. Throwing around "straw man" just shows you don't know what a straw-man is, especially given the entirety of the post and where my claims of "liberal beliefs" fit in it. Perhaps resigning from the thread is in your best interest

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Originally Posted by Hamlet View Post
So if you wish to tilt at the windmills of your imagined advocates of unlimited rights, have fun with that. Just make sure you don't miss the "2nd Amendment" one.
You, more than most should understand the concept of, and value in, direct rebuttal and if my arguments were so flawed it should be easy to dispense with them in a couple of on point paragraphs, demonstrating the flaws.

You chose ^that^ though . . . easier than debate and proving me wrong but even easier on the ego.

Too bad, I love debating lawyers (and those who claim to be).
  #355  
Old 09-12-2019, 11:51 PM
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Originally Posted by Hamlet View Post
Heller recognized a right to keep and bear arms in the 2nd Amendment, which, until it ruled, it had not recognized before.
....

That is not true.
  #356  
Old 09-13-2019, 08:18 AM
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Originally Posted by Abatis View Post
Well, that is worded in such a way that I can't say what I think it means.
Sorry for that. To sum my argument up: The Supreme Court has never held that the 2nd Amendent protected an individual's right to keep and bear arms. Citing Cruikshank, which dealt not with the protection of the right in the 2nd Amendment, but rather as it exists in theory, does nothing to disprove that. Neither does Presser. which was explained in Quilici v. City of Morton Grove: "Read in context, the phrase referred to by the plaintiffs was not meant to be a limitation on the authority of the states, but merely stated the obvious position that, whenever required by the federal government or absent any regulation whatsoever, an individual has the right to keep and bear arms. Under certain circumstances, that right may be limited by the states through the valid exercise of what has come to be known as the "police power," without fear that any United States Constitutional provisions will be infringed."

Quilici is just one of the hundreds of cases that Stevens in his dissent references. Those cases held, based on the Supreme Court ruling in Miller, that the 2nd Amendment does not protect an individual right to keep and bear arms. That was the state of the law in the United States at the time the majority in Heller changed it.

I really don't think it's that difficult to understand, or, even that contested. Heller changed, not just the state of the law, but also gun control legislation.

Quote:
Originally Posted by Abatis
Well, if people can find the composure to rebut Omar's "some people did something" you should be able to take a deep breath and show me how I'm wrong . . .
Keep digging. I'm regretting actually trying to deal with you on a rational level when you clearly show your ease in using ... troubling rhetoric.

Quote:
Originally Posted by Abatis
Look, if you can't form a cogent argument that actually rebuts mine, that's OK.
How can I rebut a an argument that is basically: "Liberals want to take all our guns!! Durp Durp!!! 9/11!!!!!!"

In a last ditch effort to find a common understanding, I will, once again, try to point out that it appears you and I can agree that there exist rights, rights that should be protected by the legislatures and judiciary, that are not specifically enumerated and protected in the Bill of Rights. For you, the right to keep and bear arms, is one of those rights. Great. For me, those rights include right to vote, right to contraception, rights to same sex marriage, right to self defense, and others. I think it is a good thing we can agree on this issue, and, to be honest, it's a bit different than most gun control debates.

But saying a right exists is, as Souter pointed out, the start of the analysis. Not the end.

Last edited by Hamlet; 09-13-2019 at 08:19 AM.
  #357  
Old 09-13-2019, 08:43 AM
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Originally Posted by DrDeth View Post
That was after the NG had been nationalized.
If you're claiming the Dick Act was unconstitutional, it would really help you to explain how.
  #358  
Old 09-13-2019, 01:42 PM
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Originally Posted by ElvisL1ves View Post
If you're claiming the Dick Act was unconstitutional, it would really help you to explain how.

Not in the least. I have no idea how you get that idea.

The NG was Nationalized after the Dick act was passed. Bills supplanted parts of the Dick act, something which occurs constantly on Capital Hill.
  #359  
Old 09-13-2019, 01:47 PM
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If you're good with that, then what the hell is your complaint?
  #360  
Old 09-13-2019, 02:00 PM
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Originally Posted by ElvisL1ves View Post
If you're good with that, then what the hell is your complaint?
You posted "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."


But like I said that was after the NG had been nationalized. So your point there was meaningless. The NG , ever since ww1, is not a "militia" anymore. It is part of the Federal Armed forces.
  #361  
Old 09-13-2019, 02:04 PM
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Whether the Guard is the militias or replaced them, what does it matter? If you're trying to make a point, it's still opaque.
  #362  
Old 09-13-2019, 02:10 PM
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Originally Posted by ElvisL1ves View Post
Whether the Guard is the militias or replaced them, what does it matter? If you're trying to make a point, it's still opaque.
I realize you dont understand what I am saying.
  #363  
Old 09-13-2019, 02:27 PM
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I'm patient. Give it a try.
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