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  #151  
Old 12-18-2018, 09:17 AM
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Originally Posted by DrDeth View Post
We have- in Chicago, DC and San francisco (which last got blocked before it really took effect).
Note that I said in "this country", not "in parts of the country". It does no good to have very strict gun control in just a city. Surely this is self-evident.

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So, it's just your idea that this would happen.
Are you implying that if we did get rid of 95% of the guns, that homicides would NOT decrease?

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So, let's try a experiment that would cost 100's of billions, triple the prison population, and require ten times more cops. Yeah, because a guy on a message board thinks it would work. And maybe homicides with other weapons would increase as much. Who knows?
Please explain why this is so. Or is it just your idea that this would happen? The "guy on a message board" comment is just silly.

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On the other hand, Norway, Finland, Germany, France and Denmark, all countries with heavy gun ownership, have a history of low murder rates.
If we can figure out how these countries do this, I'm all for it. I am not saying strict gun control is the only answer.
  #152  
Old 12-18-2018, 09:20 AM
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Originally Posted by DrDeth View Post
Well, because 'your way" means getting rid of a Constitutional Right, and would cost 100's of billions, triple the prison population, and require ten times more cops.

Our way- means violent crime keeps going down. But yeah, once in a while there is a horrible tragedy.
As I said, I am aware of the 2nd amendment. So I ask this of you again, and anyone else who want to answer it:

Quote:
But at this point, I want to ask gun owners, especially those who own guns for protection: why does your right to live in a society which allows you to own many guns because you think it makes you safer supersede my right to live in a society where I think most guns should be banned, because I think it makes me safer? This is not a 2nd amendment question, as I am well aware of its existence. It is a moral question.
  #153  
Old 12-18-2018, 09:24 AM
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Originally Posted by UltraVires View Post
A lot of weasel words in this. Why are you only concerned about homicides which involve guns? Would it be better if they were stabbed or strangled?
I'm not only concerned about homicides with guns. Why are you changing the subject?

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Your last sentence is a completely recursive argument. If I could ban all televisions and the law worked and televisions were actually destroyed, then I could definitely reduce the number of heart attacks caused solely by inactive people, which inactivity was sitting in front of televisions all day.
Yet again, someone who doesn't want to say that banning whole swaths of guns, 95% in my example, would greatly reduce homicides. Let me ask again: do you think this would happen or not?

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None of which addresses the OP as to why the 2nd Amendment is the bastard child of the Bill of Rights. Even if tomorrow we all realized that free speech was a bad thing, you still cannot restrict it without an amendment to the Constitution.
To reiterate, I am not raising this as a constitutional issue. I am raising it as a moral issue.
  #154  
Old 12-18-2018, 09:32 AM
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Originally Posted by Fiddle Peghead View Post
As I said, I am aware of the 2nd amendment. So I ask this of you again, and anyone else who want to answer it:

That's a pretty easy answer.
My right to own something doesn't infringe on your right to want it gone ... but when you turn it around utoh!
Your right to not want me to have something does indeed infringe on me
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  #155  
Old 12-18-2018, 09:41 AM
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Originally Posted by Kearsen View Post
That's a pretty easy answer.
My right to own something doesn't infringe on your right to want it gone ... but when you turn it around utoh!
Your right to not want me to have something does indeed infringe on me
That's pretty much an excuse for you to be able to own any damn thing you want. Any. Damn. Thing.
  #156  
Old 12-18-2018, 10:32 AM
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That's a pretty easy answer.
My right to own something doesn't infringe on your right to want it gone ... but when you turn it around utoh!
Your right to not want me to have something does indeed infringe on me
And that would be fine, except way too many of your fellow citizens are showing themselves unable or unwilling to use the "something" responsibly, so it's their fault if you lose access to the shiny shooty-bangy thing.
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  #157  
Old 12-18-2018, 10:53 AM
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Originally Posted by Fiddle Peghead View Post
I didn't say there was any such evidence. We have never in this country passed gun control laws that would drastically reduce the number of guns. I am simply saying that if we did in large numbers, homicides by guns would be reduced greatly. For instance, if we were to somehow be able to get rid of, say, 95% of the guns in the country, homicides involving guns as the murder weapon would plummet.
Sure that's true. Somewhat tautological though. If we also were able to get rid of gravity, then injuries from falling from a great height would be greatly reduced too. Did you think this was some kind of clever line of argument? This however:
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Originally Posted by Fiddle Peghead View Post
Rabid pro-gun people don't even want to answer the question, because they don't want to admit to the obvious truth that reducing the number of guns (and types, for that matter) will bring down the homicide rate even more than it has fallen over the last decades.
There is no evidence to support this.

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Originally Posted by Fiddle Peghead View Post
To add: yes, the "gun control" that gets discussed in these forums, stuff like background checks, and gun-safety training, and banning AR-15s and the like, ain't gonna cut it in this country. These things may save a few lives, but in the long run aren't going to solve the problem. We as a society have proven, at least for the moment, that we cannot handle guns in an appropriate way. Yes, I am aware that this is a case of others ruining it for the rest of us (okay, not me, I'm not a gun owner). But at this point, I want to ask gun owners, especially those who own guns for protection: why does your right to live in a society which allows you to own many guns because you think it makes you safer supersede my right to live in a society where I think most guns should be banned, because I think it makes me safer? This is not a 2nd amendment question, as I am well aware of its existence. It is a moral question.

How about this? We've tried it "your" way for century upon century. How about we try it my way for a 100 years, and see which way worked out best?
Because you don't have a right to live in a society where you think most guns should be banned. Oh, you're not talking about the law or reality, but your own personal morality. In that case, I don't subscribe to your system of morality because I think it's bad. Nor do a sufficient number of people to enact your version of society in the US. Feel free to try it your way, when you get the votes.

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Originally Posted by Bryan Ekers View Post
Where's your grenade launcher? Whassamatta, you don't like freedom?
This is answered by Heller. Have you read it?

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Originally Posted by Cheesesteak View Post
Why is it OK for the government to effectively ban military grade weapons from the people?
This is answered by Heller, have your read it? And really, I don't think it's okay to ban military grade weapons from the people. But that needs to be built up to at SCOTUS, give it time
  #158  
Old 12-18-2018, 11:13 AM
DirkHardly DirkHardly is offline
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Originally Posted by ElvisL1ves View Post
DirkHardly, why the hell are you blathering on about a right to self defense in a discussion about rules of grammar?
I answered that fully in post #139. Paragraphs 2 and 3 mistakenly appear in the quote box because of a coding error on my part but it's all right there.

Why do you think that grammar construction is either the only consideration when courts interpret the law or is somehow dispositive? (Once again see post #139)

Why do you think that given the rules of grammar that your interpretation of the significance of the prefatory clause with relation to the operative clause is the correct one?

Why do you have such unwavering faith in your skills at legal analysis when you possess exactly zero of the relevant qualifications?

Why do you continually ignore facts that completely undermine your version of what you believe to be true?

Do you have a response to post #143 or are you going to keep repeating the false claim that the NRA rewrote history with their gunpowder-fueled time machine?
  #159  
Old 12-18-2018, 11:29 AM
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Originally Posted by ElvisL1ves View Post
Yeah, right. How much are machine guns going for these days at Walmart?

Another falsehood. The ruling was that non-military weapons weren't protected. Really, you could read it.

Excuses, excuses.

If that was relevant to the current discussion, you might have something that could appear to be a point, if seen through a telescope. But here it's just demonstrating lack of interest in actual discussion.
First of all, at the time of Miller shotguns like the the one in question were in use by the military:

...advocates frequently point out that short-barreled shotguns (with 20 inch barrels) have been commonly used in warfare, and the statement made by the judges indicates that they were not made aware of this.[8] Because the defense did not appear, there was arguably no way for judges to know otherwise. Two of the justices involved in the decision had prior military experience, Justice Black as a Captain in the field artillery during World War I and Justice Frankfurter as a Major in the Army legal service; however, there is no way to know if they were personally aware of the use of shotguns by American troops. During World War I, between 30,000 and 40,000 short-barreled pump-action shotguns were purchased by the US Ordnance Department and saw service in the trenches and for guarding German prisoners.[9]

United States v. Miller - Wikipedia

And in our adversarial system one side fails to show up and present any evidence whatsoever and you hand-wave it away as "excuses, excuses"? That's just some razor-sharp logic there. Seems like another case of you ignoring facts inconvenient to your position.
  #160  
Old 12-18-2018, 11:42 AM
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Originally Posted by Bone View Post
Sure that's true. Somewhat tautological though. If we also were able to get rid of gravity, then injuries from falling from a great height would be greatly reduced too. Did you think this was some kind of clever line of argument? This however:

There is no evidence to support this.



Because you don't have a right to live in a society where you think most guns should be banned. Oh, you're not talking about the law or reality, but your own personal morality. In that case, I don't subscribe to your system of morality because I think it's bad. Nor do a sufficient number of people to enact your version of society in the US. Feel free to try it your way, when you get the votes.


This is answered by Heller. Have you read it?


This is answered by Heller, have your read it? And really, I don't think it's okay to ban military grade weapons from the people. But that needs to be built up to at SCOTUS, give it time
Building on the reasoning and holding in Heller one could argue that grenade-launchers are not standard issue weapons, at least not in any military I'm aware of. And I would have no problem with the upper-limit of gun ownership in the US being restricted to arms that are standard issue in the military or at least bear a "reasonable relationship."

The Swiss have a modern militia where members keep their weapons in their home (or have the option to do so). Grenade-launchers are not standard issue in the Swiss military either and as far as I know would not be included in the weapons Swiss militia members keep in their homes as part of their service.
  #161  
Old 12-18-2018, 11:47 AM
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This is answered by Heller. Have you read it?
Nah, I live in a civilized country. Mocking Americans for their gun fetishism is just a hobby for me.
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  #162  
Old 12-18-2018, 12:57 PM
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Sure that's true. Somewhat tautological though. If we also were able to get rid of gravity, then injuries from falling from a great height would be greatly reduced too. Did you think this was some kind of clever line of argument?
As I said earlier, it's not brilliiant. Nor is it clever. It's a simple idea. I put it to DrDeth like this: Are you implying that if we did get rid of 95% of the guns, that homicides would NOT decrease?

What do you think would happen in this case?

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Because you don't have a right to live in a society where you think most guns should be banned. Oh, you're not talking about the law or reality, but your own personal morality. In that case, I don't subscribe to your system of morality because I think it's bad. Nor do a sufficient number of people to enact your version of society in the US. Feel free to try it your way, when you get the votes.
I am not bringing this up as a possibility in America today. This is merely a thought experiment. A "what-if". And the morality I speak of, is finding some way to get rid of the unconscionable, preventable number of murders, and suicides made easier by guns, in our society. This is not my morality. It is all of ours. At least I hope so.
  #163  
Old 12-18-2018, 01:09 PM
UltraVires UltraVires is online now
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Originally Posted by Fiddle Peghead View Post
I'm not only concerned about homicides with guns. Why are you changing the subject?



Yet again, someone who doesn't want to say that banning whole swaths of guns, 95% in my example, would greatly reduce homicides. Let me ask again: do you think this would happen or not?



To reiterate, I am not raising this as a constitutional issue. I am raising it as a moral issue.
Your post did not claim that it would reduce homicides. You said that if you could pass a law that would work and actually get rid of 95% of guns, you could reduce gun homicides. That's absolutely true but a tautology.

Even assuming for the purposes of argument that private ownership of guns results in a net harm to society, freedom comes at a price. If we repealed the Fourth Amendment and had random searches of homes or repealed the Sixth and denied people lawyers, we would definitely solve more crimes and make the country safer.

I think it most immoral to deny me or my family the ability to defend ourselves because others misuse guns. The police don't station a squad car in my driveway. If someone tries to harm me, I need the tools to protect myself until the police arrive. To say that my family should be slaughtered in pursuit of an ivory tower goal of banning guns is highly immoral.
  #164  
Old 12-18-2018, 01:10 PM
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Originally Posted by Bone View Post
This is answered by Heller, have your read it? And really, I don't think it's okay to ban military grade weapons from the people. But that needs to be built up to at SCOTUS, give it time
I do like this part
Quote:
This holding is not only consistent with, but positively
suggests, that the Second Amendment confers an individ
ual right to keep and bear arms (though only arms that
ďhave some reasonable relationship to the preservation or
efficiency of a well regulated militiaĒ).
I also like the addition of this
Quote:
It may be objected that if weapons that are most useful
in military serviceóM-16 rifles and the likeómay be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendmentís ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large.
It's OK to ban M-16s because they are highly unusual for individuals to lawfully own. Let's ignore the fact that they've been banned from home ownership from the first day of their development, it's OK to ban them because very few people own them. No shit Sherlock, actual military weapons have been banned for 80 years as dangerous and unusual, and you're justifying the ban because, they're unusual.

Here is one thing I can guarantee, if you made fully automatic weapons legal, there'd be nothing 'unusual' about them.


In terms of an answer to the question, Heller is fucking garbage. It's a decision crafted not because of any logical reading of what the words of the 2nd amendment mean, but because 5 justices wanted to suck the NRA's dick.

Frankly, I've lost my appetite for believing that a SCOTUS decision is anything but a political decision backed up by whatever legal mumbo jumbo they could shit out to support it.
  #165  
Old 12-18-2018, 01:20 PM
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I do like this part


I also like the addition of thisIt's OK to ban M-16s because they are highly unusual for individuals to lawfully own. Let's ignore the fact that they've been banned from home ownership from the first day of their development, it's OK to ban them because very few people own them. No shit Sherlock, actual military weapons have been banned for 80 years as dangerous and unusual, and you're justifying the ban because, they're unusual.

Here is one thing I can guarantee, if you made fully automatic weapons legal, there'd be nothing 'unusual' about them.


In terms of an answer to the question, Heller is fucking garbage. It's a decision crafted not because of any logical reading of what the words of the 2nd amendment mean, but because 5 justices wanted to suck the NRA's dick.

Frankly, I've lost my appetite for believing that a SCOTUS decision is anything but a political decision backed up by whatever legal mumbo jumbo they could shit out to support it.
I agree with everything you said except the last two paragraphs. The rationale for keeping M-16s illegal is absurd. I'm not saying that there could or should not be other reasons for keeping them illegal, but the "unusual" aspect is absurd at best.

You could argue just as easily that handguns were not in common use in Washington D.C. because they had been banned for 32 years. Every restriction on guns would thereby act as its own constitutional justification no matter how wrong or how right the restriction was.

Further, Scalia said, with no citations or support that "longstanding" bans on felons in possession or possessing guns in schools were not called into question by the decision. The felon ban was first enacted in 1968. Gun free school zone laws were first started in the 1980s. To call those longstanding is absurd.

Again, maybe all ex-felons should not own guns, or maybe there is no reason to ever possess a gun near a school. But there needs to be better reasoning than such a bald declaration. It is, IMHO, one of Scalia's worst opinions, even though I agree with the result.

However, I read something recently that Kennedy insisted that these things be thrown in there in order for him to join the opinion. That makes sense. Those statements all have Kennedy-esque language.
  #166  
Old 12-18-2018, 01:32 PM
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However, to disagree with you that Heller was results-oriented, the rest of the opinion is solid. The right to self-defense and to bear arms predates the Second Amendment. Notice how it is written: It concludes, "the right of the people to keep and bear arms shall not be infringed." It does not say something like, "the people are hereby granted the right to keep and bear arms."

By its own terms, the Second Amendment recognizes a pre-existing right of people to keep and bear arms. The entire Bill of Rights was not included in the original Constitution and the reason was that as the federal government did not have the power (under the idea that it could only do those things in Article I) to establish a religion, to ban guns, to conduct searches without a warrant, etc. that there was no need for these amendments.

So, we don't need to talk about militias and whether guns need to be militia weapons or a gun owner need to be a militia member. The right to keep and bear arms is one of the basic rights of free people and it exists even if the Second Amendment was repealed tomorrow.

It is a right that the history and traditions of our people recognize, much similar to the right of a fit parent to the care, custody and control of his or her minor children; or the right to marry. There is nothing in the Constitution that talks about parenting or marriage, yet it is something that is deemed so basic to liberty as defined by OUR traditions (not Finland's or Norway's or Japan's) that it is protected nonetheless.

Parsing the Second Amendment's language does not do anything in this area.
  #167  
Old 12-18-2018, 01:35 PM
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Originally Posted by Fiddle Peghead View Post
As I said earlier, it's not brilliiant. Nor is it clever. It's a simple idea. I put it to DrDeth like this: Are you implying that if we did get rid of 95% of the guns, that homicides would NOT decrease?
They may, or they may not. Maybe a resulting crime wave would ensue resulting in even greater homicides. Maybe not. I suppose I don't think the answer is informative in any way. Because if we knew for certainty that overall homicide rate would go down, I'd still be opposed.

We could drastically reduce a number of negative outcomes if we wanted to. Deaths due to drunk driving could be virtually eliminated - ban cars. Ban alcohol. Lower the speed limit to 1 mph. We could eliminate drowning in pools - by banning pools.
We could eliminate recidivism by executing all people convicted of crimes. We could dramatically reduce obesity by regimenting certain diet and exercise routines. Lots of challenges that exist could be solved pretty easily if there was a will to do it. People don't want to do that though. And people also don't want to get rid of 95% of the guns.

Quote:
I am not bringing this up as a possibility in America today. This is merely a thought experiment. A "what-if". And the morality I speak of, is finding some way to get rid of the unconscionable, preventable number of murders, and suicides made easier by guns, in our society. This is not my morality. It is all of ours. At least I hope so.
No - I don't share your morality. Your hope is for naught.

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Originally Posted by Cheesesteak View Post
I also like the addition of thisIt's OK to ban M-16s because they are highly unusual for individuals to lawfully own. Let's ignore the fact that they've been banned from home ownership from the first day of their development, it's OK to ban them because very few people own them. No shit Sherlock, actual military weapons have been banned for 80 years as dangerous and unusual, and you're justifying the ban because, they're unusual.

Here is one thing I can guarantee, if you made fully automatic weapons legal, there'd be nothing 'unusual' about them.
M-16's aren't banned, at least not federally so you're incorrect on that point. And Heller wasn't opining on M-16s or long guns at all, so there's that too.

Perhaps one day a future court will realize the circular reasoning employed in the 'dangerous and unusual' rubric and correct it. But your question was asking why is it okay to ban military grade weaponry from the people. Was that rhetorical then? Because it's addressed in Heller as you've quoted.
  #168  
Old 12-18-2018, 01:53 PM
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M-16's aren't banned, at least not federally so you're incorrect on that point. And Heller wasn't opining on M-16s or long guns at all, so there's that too.

Perhaps one day a future court will realize the circular reasoning employed in the 'dangerous and unusual' rubric and correct it. But your question was asking why is it okay to ban military grade weaponry from the people. Was that rhetorical then? Because it's addressed in Heller as you've quoted.
I think this is hair-splitting. They are effectively banned. I can only buy an M-16 if it was lawfully registered prior to 1986, and as there are a finite number of them, the price is astronomical. I understand the new models are select fire, but there is no full auto mode, just 3 round burst mode. Those were all made after 1986 and are banned.

So I can buy an old model, no longer produced, and limited to those already registered and pay a tax and an outrageous sum of money. I agree that is not a ban, but it is enough of a disincentive such that it acts like a ban.

I mean, if we put a $1 million tax on every gay marriage performed, would you argue that it was not a ban on gay marriage?

To your second point, it will be difficult for the Court to revisit the full auto ban. If I am a district court judge and a guy argues that the ban on his full auto is unconstitutional, I have to rule against him because Heller specifically decided the issue. The Court of Appeals would rule the same way. There would not be a circuit split. There would not also be a way to skirt the rule and hope to get a different ruling.

For example: abortion. Ohio is about to pass a law banning abortions after six weeks. You can make an argument (with tongue in cheek) that this is perfectly consistently consistent with Roe and Casey because of the state's interest in preserving life. Then if you get to the Supreme Court you can make the same argument but throw in oh, btw, please overrule Roe and Casey.

I don't know how you challenge a full auto ban without directly challenging it.
  #169  
Old 12-18-2018, 02:07 PM
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Originally Posted by UltraVires View Post
I think this is hair-splitting. They are effectively banned. I can only buy an M-16 if it was lawfully registered prior to 1986, and as there are a finite number of them, the price is astronomical. I understand the new models are select fire, but there is no full auto mode, just 3 round burst mode. Those were all made after 1986 and are banned.
It is hairsplitting and normally I'd leave it alone, but if you say that they were banned from the first day of their development that's just not true.

Quote:
To your second point, it will be difficult for the Court to revisit the full auto ban. If I am a district court judge and a guy argues that the ban on his full auto is unconstitutional, I have to rule against him because Heller specifically decided the issue. The Court of Appeals would rule the same way. There would not be a circuit split. There would not also be a way to skirt the rule and hope to get a different ruling.
Perhaps. I don't think Heller specifically decided the issue, the language with regard to M16s in Heller was dicta. Further, the strategy would not be to challenge the restriction on full auto because that would be fruitless. It would need to take a more round about form - attack the "unusual" part of dangerous and unusual. If it is decided that the rarity of an item due to heavy restriction cannot be considered in determining whether it is unusual, then modern day restrictions could be analyzed on a more what if basis - what if it weren't restricted, then would it still be unusual? The counter to unusual would be if these weapons were in common use. That can be done with data, and if the floor of what constitutes common use be lowered, then that bar can be met.

The approach need not address full auto directly. It could address the sphere of what is protected and not protected, to create a new rubric that would result in full auto falling under the ambit of 2nd amendment protection as they should be. There are a lot of domino that would have to fall first. Another Justice or two in the next two years may be enough.
  #170  
Old 12-18-2018, 02:10 PM
ElvisL1ves ElvisL1ves is online now
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No - I don't share your morality. Your hope is for naught.
And that, friend, is the heart of the problem. While the civilized world, and all widely-accepted religious and moral systems and theories, and legal codes for that matter based there, hold the value of human life to be the most fundamental and precious thing there is, you "don't share" that. It merely annoys you to keep seeing it brought up, doesn't it?

Why, then, do you bother, on a board devoted to Fighting Ignorance? Is there any hope of you convincing the civilized world to change the foundations of our basic moral codes from revering human life to revering a tool for ending it?

Who's truly in the wrong?
  #171  
Old 12-18-2018, 02:20 PM
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Originally Posted by Bone View Post
IPerhaps. I don't think Heller specifically decided the issue, the language with regard to M16s in Heller was dicta. Further, the strategy would not be to challenge the restriction on full auto because that would be fruitless. It would need to take a more round about form - attack the "unusual" part of dangerous and unusual. If it is decided that the rarity of an item due to heavy restriction cannot be considered in determining whether it is unusual, then modern day restrictions could be analyzed on a more what if basis - what if it weren't restricted, then would it still be unusual? The counter to unusual would be if these weapons were in common use. That can be done with data, and if the floor of what constitutes common use be lowered, then that bar can be met.

The approach need not address full auto directly. It could address the sphere of what is protected and not protected, to create a new rubric that would result in full auto falling under the ambit of 2nd amendment protection as they should be. There are a lot of domino that would have to fall first. Another Justice or two in the next two years may be enough.
That would be very tough, but I see your point. However if your client argued that such and such gun was only unusual because it was banned, and I was representing the government, I would say "Judge, that's exactly what we had in Heller. The Court did not give any weight to the idea that because M-16's were effectively banned that played any part in making them unusual for the purposes of this legal analysis."

I think the judge would have to side with me there, even if he thought the Heller analysis was a pile of crap. And throughout my relatively short legal career, I have never won or lost a case with the argument of that part of the opinion was mere dicta. Judges accept dicta as the rule. Only in law school is dicta not controlling.

Heller devoted a substantial part of the opinion for the idea that gun ownership was not to be unrestricted and specifically singled out full autos for mention.
  #172  
Old 12-18-2018, 02:21 PM
ElvisL1ves ElvisL1ves is online now
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DirkHardly, when you get tired of punching that strawman, do please provide an example or two, anywhere outside the practice of interpreting the Second to mean what you wish it did, of the concept of a "prefatory" and "operative" clause even existing in grammar, or of a subordinate clause not modifying the main one. I won't even ask you to explain why the framers thought it was important to define militias as a purpose but not self-defense or anything else. Okay?
  #173  
Old 12-18-2018, 02:29 PM
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DirkHardly, when you get tired of punching that strawman, do please provide an example or two, anywhere outside the practice of interpreting the Second to mean what you wish it did, of the concept of a "prefatory" and "operative" clause even existing in grammar, or of a subordinate clause not modifying the main one. I won't even ask you to explain why the framers thought it was important to define militias as a purpose but not self-defense or anything else. Okay?
I never get an answer to this question, but I'll try again. Let's say that a provision of the Bill of Rights read as follows:

"The writing of books, necessary to the preservation of a free society, the right of the people to keep and purchase quill pens shall not be infringed."

Now, here we are in 2018 and nobody uses quill pens to write books. In your opinion, does that mean that the government may outlaw quill pens?

I say no. The purpose is clearly no longer applicable, but the direct statement of a right to keep quill pens remains. The Constitution has a mechanism for getting rid of things that no longer apply. But if you cannot get 2/3s of each House of Congress and 3/4ths of the states to amend the Constitution to outlaw quill pens, then there must be a reason for that.
  #174  
Old 12-18-2018, 02:38 PM
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And I'm going to miss the edit window, but I don't think that the structure of my hypothetical amendment would suggest that you could only buy a quill pen if you were literate, or actually writing a book, or could show that it was a good book, or a book that furthered the goals of a free society.

The prefatory clause does not contain words of limitation such as "because" or "only" or "if." And as I stated above, the amendment does not bestow a right, but recognizes a preexisting right (i.e. the right of the people to keep and purchase quill pens; the right of the people to keep and bear arms).

Even if we put a "because" or "only if" in there, the right remains the same. If we said that "Only because a militia is needed, the right of the people to keep and bear arms shall not be infringed." When a militia is not needed, that does not turn into a positive grant of authority for the national government to deny the preexisting right of the people to keep and bear arms. It has no Article I power to do so. Repeal the Second Amendment and the right remains.
  #175  
Old 12-18-2018, 02:48 PM
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You haven't explained a thing, UV. All you've done is repeat the claim that there is a special way of reading just that one sentence, with the intent of ignoring what the writers so fucking obviously meant by it, because they fucking told us.

The Constitution is a statement of intent, of principles, from which laws are supposed to derive. Not something that invites you to look for ways to pick apart, to cleverly get around the inconvenient parts to get the result you wish, in contravention to the intent.
  #176  
Old 12-18-2018, 02:58 PM
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You haven't explained a thing, UV. All you've done is repeat the claim that there is a special way of reading just that one sentence, with the intent of ignoring what the writers so fucking obviously meant by it, because they fucking told us.

The Constitution is a statement of intent, of principles, from which laws are supposed to derive. Not something that invites you to look for ways to pick apart, to cleverly get around the inconvenient parts to get the result you wish, in contravention to the intent.
So under my amendment, you believe the government could outlaw quill pens?
  #177  
Old 12-18-2018, 03:05 PM
DrDeth DrDeth is offline
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Here's the question that has been asked before, and you are refusing (for good reason, I bet) to answer.

Why is it OK for the government to effectively ban military grade weapons from the people?
If by Military grade weapons, you mean crew served and high explosive and fully automatic weapons, then:

Because the Supreme Court has so ruled. Because it is something that affects only a super tiny number of people.

But of course you can own rifles that are pretty much as effective as a standard military rifle.

However, it appears you would like to legalize such weapons, and that's OK by me....
  #178  
Old 12-18-2018, 03:06 PM
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You haven't explained a thing, UV. All you've done is repeat the claim that there is a special way of reading just that one sentence, with the intent of ignoring what the writers so fucking obviously meant by it, because they fucking told us.

The Constitution is a statement of intent, of principles, from which laws are supposed to derive. Not something that invites you to look for ways to pick apart, to cleverly get around the inconvenient parts to get the result you wish, in contravention to the intent.
Further, even if we only look at the half of the Second Amendment that you like, we see: "A well-regulated militia, being necessary for the security of a free state...." then are not all laws which hamper a militia invalid?

If these are statements of principle, then why have we drifted away from that? Why does my neighborhood not have a militia? Why cannot the guys in my neighborhood drill on the weekends so that we have a good militia? And a part of that drilling and training so that we can become well regulated would be that we own, carry, and train in the arms that will be "necessary" when called up for our militia duties.
  #179  
Old 12-18-2018, 03:07 PM
DirkHardly DirkHardly is offline
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DirkHardly, when you get tired of punching that strawman, do please provide an example or two, anywhere outside the practice of interpreting the Second to mean what you wish it did, of the concept of a "prefatory" and "operative" clause even existing in grammar, or of a subordinate clause not modifying the main one. I won't even ask you to explain why the framers thought it was important to define militias as a purpose but not self-defense or anything else. Okay?
Once again, this was answered in post #139 and you continue to ignore it. Instead you just declare any argument you can't rebut as a "strawman" without any evidence of why it is. Not a real effective debate technique. But I'll reiterate again for you and those following along:

The rules of grammar are not the only consideration in interpreting a law. In fact, they can be summarily disposed of if they seem to conflict with the known intent of the promulgating body. Did you read my example of a court changing an "and" to "or" and how it completely changed the reach and implications of the statute in question? How do you square that with your view of the role grammar plays in legal analysis?

The prefatory clause does indeed modify the operative clause, just not in the way you're interpreting it. It does indeed give A REASON why the right to bear arms shall not be infringed. It does not logically follow that it is the only reason. And the rules of grammar are necessarily silent on this point because it has nothing whatsoever to do with grammar. We know the Framers contemplated other reasons because of the massive amount of evidence supporting it from outside the words of the document. The kind of evidence actual lawyers, judges, and legal scholars use when interpreting laws. You know, those people infinitely more qualified and experienced in such things than you are.

As to why they included the militia clause? They were founding a nation-state and having a military is kind of an important consideration when doing so. The very existence of the militia/military they envisioned depended entirely on the people bearing arms so they could be called upon for service. I mean the other Amendments have no such clauses explaining their inclusion in the BOR. By your logic that means they are somehow subject to even more limitations because not only do they not have listed every possible reason for their inclusion but have no reasons listed at all.

You see ElvisL1ves, I know I'm good at legal analysis and making legal arguments because it's what I do. My wife is an attorney and a law professor as well and I know she respects my abilities (in that regard at least). I have many friends/acquaintances who are attorneys and quite a few who are law professors with impressive credentials of their own and I know they feel likewise about my skills and abilities. Or they're fantastic liars, but that honestly seems unlikely. I mean a few, maybe, but not all of them.

You, on the other hand, offer arguments without any real evidence, have no legal qualifications whatsoever and seem to confuse you not understanding something based on that complete lack of knowledge and qualifications with it being incorrect. So what have you got again?
  #180  
Old 12-18-2018, 03:21 PM
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If by Military grade weapons, you mean crew served and high explosive and fully automatic weapons, then:

Because the Supreme Court has so ruled. Because it is something that affects only a super tiny number of people.
They're banned because they're banned, and it's OK that they're banned because so few people own them (because they're banned).

Is this what passes for logic with you?

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But of course you can own rifles that are pretty much as effective as a standard military rifle.

However, it appears you would like to legalize such weapons, and that's OK by me....
Pretty much as effective is what I could say about bolt action vs. semi-auto or 6 shot revolver vs. 12 shot semi-automatic pistol. I'm pretty sure you're not OK with banning semi-autos in favor of bolt-action or revolvers even though they're pretty much as effective.

I'm not interested in legalizing them I'm interested in understanding why pro-gun folks are so sedate about one kind of ban and hysterical about another kind of ban.

Even here, even you, the idea of legalizing military weaponry is tepidly supported. Where is the zeal, the lashing out at gun grabbers who took away your right to own an M-60?
  #181  
Old 12-18-2018, 03:23 PM
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Luckily, the right to bear nunchucks has been affirmed.
  #182  
Old 12-18-2018, 03:23 PM
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So under my amendment, you believe the government could outlaw quill pens?
You're not getting the point about intent and principles.
  #183  
Old 12-18-2018, 03:27 PM
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I mean the other Amendments have no such clauses explaining their inclusion in the BOR. By your logic that means they are somehow subject to even more limitations because not only do they not have listed every possible reason for their inclusion but have no reasons listed at all.
*snip. I agree with your overall point, but I have to buzz you there. I disagree with that logic. Placing a explanation on a point does seem to put limits on the point. Example:

#1 Father to Child: Your curfew is 10 p.m.

#2 Father to Child: Your grades were good this term; your curfew is 10 p.m.

Contrary to your argument, #1 is much more broad exactly because there was no rationale given. It was not stated anything about grades and is therefore more expansive than #2.

The giving of the rationale seems to imply that the condition subsequent is properly understood by the explanation. In #2, the child gets a curfew seemingly only because her grades were good. If her grades slip next term, the implication is that her curfew could be earlier.

I agree that we have a personal RKBA, but this is the type of argument that gets us stuck in the mud.
  #184  
Old 12-18-2018, 03:27 PM
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Further, even if we only look at the half of the Second Amendment that you like
It isn't that I like it, but that it's what it says. The whole thing, taken in its entirety. Thanks for the example of trying to belittle rather than engage in an argument which shows you to be wrong; no doubt that works great for your clients.

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"A well-regulated militia, being necessary for the security of a free state...." then are not all laws which hamper a militia invalid?
Strawman. No doubt you came across the concept of conflicting and limiting rights on Day 1 of Con Law, or would have if you hadn't overslept.

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Why does my neighborhood not have a militia? Why cannot the guys in my neighborhood drill on the weekends so that we have a good militia?
A. Well-regulated and B. State. Please.
  #185  
Old 12-18-2018, 03:29 PM
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You're not getting the point about intent and principles.
Maybe if you answer the question that could help me out.

If I understand you correctly, I think you would answer that the government could indeed outlaw quill pens so long as it still allowed computers, word processing programs, emails and printers so that books could be published. That is the intent and purpose: that books be published, and if they specified a manner for them to be published that has turned out to be antiquated, then we can just shitcan that manner on our own and substitute the new one.

Am I close?
  #186  
Old 12-18-2018, 03:29 PM
DrDeth DrDeth is offline
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Note that I said in "this country", not "in parts of the country". It does no good to have very strict gun control in just a city. Surely this is self-evident.



Are you implying that if we did get rid of 95% of the guns, that homicides would NOT decrease?



Please explain why this is so. Or is it just your idea that this would happen? The "guy on a message board" comment is just silly.



If we can figure out how these countries do this, I'm all for it. I am not saying strict gun control is the only answer.
Why not? I mean then only criminals in that city would have guns. But see, that's my point. Gun control, no matter how stringent or how wide- simply does not work in the USA. CA has the most stringent gun laws in the nations, and it is a very large state- still, they dont work. But when the Gun control advocates see (and concede) it doesnt work, then they insist that we can make it work by making the laws more far reaching and more stringent- in the face of all evidence to the contrary. The fact that a experiment doesn't work on a small scale is certainly evidence it might not work on a larger scale. And think of what the USA would have to do: repeal the 2nd Ad. Force all states to have the same gun control laws. Spend hundreds of billions buying back all those guns. Hire tens of thousands more cops. Build three times the number of prisons we have now. Get rid of the 4th and 5th Ad, so you can have house to house warrantless "no knock" searches. Be prepared for hundreds of Ruby Ridge sitreps. And after that- if it still doesnt work, then what? Say ooops?

Of course- but for how long? You can make guns you know. Hand crossbows, knives, etc. If we saw the murder rate dip by half then creep back up to 90% of what it is today- would that be worth it? Remember- billions and billions spent. Three Amendments gutted. Your civil rights trampled upon- because yes, they will do a warrantless search of your house too. A dozen armed police or agents coming in the middle of the night, smashing open your door, scaring your kids or pets, and if you make the wrong move- you're dead meat.

Why? Well in order to not gut yet another part of the Constitution, you'd have to buy back all those guns. You'd have to hire three times the number of police or Feds. Some number wouldnt comply, so off to prison for them. Remember, there are about 100 million gun owners in this nation. Even if only 5% didnt comply, that would be Five million more in prisons- that's double what we have now.

Australia did it, true. But it was expensive, and so far experts disagree whether or not it worked. And Australia had only 700000 such guns in ownership, a much lower ratio that the US- one gun for every five Aussies, instead of one gun for every American. It cost them over $500Million. The USA has 300 million guns. It would cost 1000 times that or $500 billion. And, like I said experts disagree on whether or not it worked.
  #187  
Old 12-18-2018, 03:32 PM
DrDeth DrDeth is offline
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As I said, I am aware of the 2nd amendment. So I ask this of you again, and anyone else who want to answer it:
Well, because 'your way" means getting rid of a Constitutional Right, and would cost 100's of billions, triple the prison population, and require ten times more cops.

Our way- means violent crime keeps going down. But yeah, once in a while there is a horrible tragedy.

Gun owners and gun controllers both think their way would make things safer. But so far the evidence is that more guns do not make you less safe.

So altho you think so, it would be a hugely costly experiment, that likely would work.
  #188  
Old 12-18-2018, 03:34 PM
ElvisL1ves ElvisL1ves is online now
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The prefatory clause does indeed modify the operative clause, just not in the way you're interpreting it. It does indeed give A REASON why the right to bear arms shall not be infringed. It does not logically follow that it is the only reason.
A. If that were true, it wouldn't be modifying it at all, and B. Again, the Constitution is a statement of principle and intent. The writers presented a ready military force as their intent, but did not present anything else as their intent.

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the massive amount of evidence supporting it from outside the words of the document
You can call it that if you like, but none of that actually made it into the debate or the document, did it? You're forced to claim that what they said doesn't matter, but that something they didn't say is what they actually meant.

But you can keep blustering away on that point if you like. It just doesn't convince anybody else.

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As to why they included the militia clause? They were founding a nation-state and having a military is kind of an important consideration when doing so.
Nobody says otherwise. But if you'd like to get something off your chest, go right ahead.

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I mean the other Amendments have no such clauses explaining their inclusion in the BOR.
None of the others are so susceptible to willful misinterpretation that they needed it, either.

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You see ElvisL1ves, I know I'm good at legal analysis and making legal arguments because it's what I do.
Ad hominem. Shrug. Next?
  #189  
Old 12-18-2018, 03:35 PM
UltraVires UltraVires is online now
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It isn't that I like it, but that it's what it says. The whole thing, taken in its entirety. Thanks for the example of trying to belittle rather than engage in an argument which shows you to be wrong; no doubt that works great for your clients.

Strawman. No doubt you came across the concept of conflicting and limiting rights on Day 1 of Con Law, or would have if you hadn't overslept.

A. Well-regulated and B. State. Please.
1) Okay, that was a bit snippy so I apologize and retract.

2) Yes, there are limitations on rights, but a basic part of having a militia is a citizen owning a gun. You cannot have one without the other.

3) Are we really doing this "well regulated" thing again? It means well trained, well school, well drilled. Not regulated to holy hell by the government. What would be the point of outlining a freedom only to state that it can be regulated out of existence by the government that the amendment attempts to limit?

State? Yes, a qualified militia is necessary to the security of a free state. That is a statement of principle. A militia is me and my law abiding friends and you and yours. In order to have that, we need guns.
  #190  
Old 12-18-2018, 03:36 PM
ElvisL1ves ElvisL1ves is online now
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Maybe if you answer the question that could help me out.
No, the fact that you're even asking it is proof that answering it wouldn't help you understand why we have a Constitution.
  #191  
Old 12-18-2018, 03:36 PM
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I'm not only concerned about homicides with guns. Why are you changing the subject?



Yet again, someone who doesn't want to say that banning whole swaths of guns, 95% in my example, would greatly reduce homicides. Let me ask again: do you think this would happen or not?

And like I said- sure, for a while, then the numbers would go back up. Let say we executed all the violent offenders. All those in prison, all those just convicted. BAM! Bullet to the head. Would crime go down? Of course. But would it stay down? Evidence says elsewise.

Let say we make belonging to a violent org illegal- MS13, crips, Bloods, KKK, Hells Angels. Put them all in prison. Would crime go down? Sure. But would it stay down?
  #192  
Old 12-18-2018, 03:39 PM
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And that would be fine, except way too many of your fellow citizens are showing themselves unable or unwilling to use the "something" responsibly, so it's their fault if you lose access to the shiny shooty-bangy thing.
Too many? 300 Million guns. 10000 used ito murder. 1 in 30 thousand is too many?
  #193  
Old 12-18-2018, 03:39 PM
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No, the fact that you're even asking it is proof that answering it wouldn't help you understand why we have a Constitution.
Well, can I ask that you just help an idiot like me out and explain it?
  #194  
Old 12-18-2018, 03:40 PM
DrDeth DrDeth is offline
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First of all, at the time of Miller shotguns like the the one in question were in use by the military:

...advocates frequently point out that short-barreled shotguns (with 20 inch barrels) have been commonly used in warfare, and the statement made by the judges indicates that they were not made aware of this.[8] Because the defense did not appear, there was arguably no way for judges to know otherwise. Two of the justices involved in the decision had prior military experience, Justice Black as a Captain in the field artillery during World War I and Justice Frankfurter as a Major in the Army legal service; however, there is no way to know if they were personally aware of the use of shotguns by American troops. During World War I, between 30,000 and 40,000 short-barreled pump-action shotguns were purchased by the US Ordnance Department and saw service in the trenches and for guarding German prisoners.[9]

United States v. Miller - Wikipedia

And in our adversarial system one side fails to show up and present any evidence whatsoever and you hand-wave it away as "excuses, excuses"? That's just some razor-sharp logic there. Seems like another case of you ignoring facts inconvenient to your position.
Yes, if the defense mounted a argument, Miller would have been decided the other way.
  #195  
Old 12-18-2018, 03:42 PM
ElvisL1ves ElvisL1ves is online now
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a basic part of having a militia is a citizen owning a gun. You cannot have one without the other.
Not "a citizen", but "the people". That has evolved over years of legislation to mean the National Guard, whose right to own weaponry is indeed unquestioned.

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Are we really doing this "well regulated" thing again?
If you want to discuss the entire amendment, then yes, you do.

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It means well trained, well school, well drilled. Not regulated to holy hell by the government.
If you think the Guard, and the permanent military that the government quickly created soon after realizing that militias would be inadequate, aren't "regulated to holy hell" then maybe you should enlist and find out for yourself.

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What would be the point of outlining a freedom only to state that it can be regulated out of existence by the government that the amendment attempts to limit?
If you're seeing some attempt by We The People to retain the ability to suppress insurrections by use of military force, well, hell yes, that's elsewhere in the Constitution. Are you also making the NRA claim that there is somehow an intent to establish the means to overthrow the government by forces outside its control? If you're going to be that silly, then maybe we're done here.

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A militia is me and my law abiding friends and you and yours.
Under the (well-) regulation of the State, IOW We The People together via the government we have created and established with the Constitution, not your local gang of yahoos. So apparently yes, you really are going to be that silly. Bye now.

Last edited by ElvisL1ves; 12-18-2018 at 03:47 PM.
  #196  
Old 12-18-2018, 03:47 PM
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Yes, if the defense mounted a argument, Miller would have been decided the other way.
If the conclusion which the Court reached hadn't been so bleeding obvious and uncontroversial, then maybe there would have been a point in mounting an argument against it. 'Cause that's what the situation was, that there was an obvious and generally accepted meaning of the amendment for most of our history. Now why do you think that was?
  #197  
Old 12-18-2018, 03:57 PM
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Not "a citizen", but "the people". That has evolved over years of legislation to mean the National Guard, whose right to own weaponry is indeed unquestioned.
Then here is where we definitely part ways. How can the National Guard be considered a militia by the Framer's definition? It is an arm of the (ultimately) federal government!

You might as well argue that the feds can create a "Free Speech Board" in each community and that through that board (and only through that board) are citizen complaints about the government heard.

The whole point of the Second Amendment is that the government, and especially the federal government, cannot monopolize force or the use of it. Standing armies were considered dangerous and citizen militias were the cure for that.

You cannot create an arm of the government and say "There is your citizen militia" which is wholly controlled and ran by the government. The government control was the very evil addressed, by intent and principle, in the Second Amendment.
  #198  
Old 12-18-2018, 04:01 PM
DrDeth DrDeth is offline
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If the conclusion which the Court reached hadn't been so bleeding obvious and uncontroversial, then maybe there would have been a point in mounting an argument against it. 'Cause that's what the situation was, that there was an obvious and generally accepted meaning of the amendment for most of our history. Now why do you think that was?
No, there was no point and no defense as Miller was dead and no longer had a legal team.
  #199  
Old 12-18-2018, 04:41 PM
DirkHardly DirkHardly is offline
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Quote:
Originally Posted by ElvisL1ves View Post
A. If that were true, it wouldn't be modifying it at all, and B. Again, the Constitution is a statement of principle and intent. The writers presented a ready military force as their intent, but did not present anything else as their intent.

You can call it that if you like, but none of that actually made it into the debate or the document, did it? You're forced to claim that what they said doesn't matter, but that something they didn't say is what they actually meant.

But you can keep blustering away on that point if you like. It just doesn't convince anybody else.

Nobody says otherwise. But if you'd like to get something off your chest, go right ahead.

None of the others are so susceptible to willful misinterpretation that they needed it, either.

Ad hominem. Shrug. Next?
Of course if still modifies it. For example: I like TV Show because of the acting. Is "because of the acting" a subordinate clause modifying "I like TV show."? Yep. Is it necessarily the only reason that I could enjoy TV show and precludes any other reason? Nope. I could also enjoy the writing, directing, setting etc. and just didn't add those for whatever reason.

And your second point is just as irrelevant and illogical as the first. Courts and legal scholars go to external sources to provide context for interpreting the law all the time, things like Congressional records for instance. In the case of the Constitution, courts and scholars have consulted records of the Convention as well as the writings of those involved with the drafting and ratification outside of the context of the Convention. That's how actual judges and legal scholars do it. You should probably get right on telling them they've been doing it wrong this whole time.

And what they did say did matter, just not in the way you claim. And what they meant is evidenced by their words taken into context with other sources and considerations. Just like any other law.

And the huge body of case law concerning defining terms like "speech", "probable cause", "cruel and unusual" etc seems to suggest that many parts of the Constitution are subject to ambiguity as well. That's how words work, they are inherently and necessarily ambiguous to one degree or another. That's why we look to context. That's how language works. Laws are written in words, so that's how Courts go about interpreting those words. Maybe read a few hundred cases and get back to me on that.

And you seem to have the same problem understanding "ad hominem" as you have with "strawman." Calling someone's credentials, or lack thereof, into question when discussing a highly technical subject is not an ad hominem. That's just how logic and credentials work. There's a reason law is a highly regulated field normally requiring 3 years/90 credit hours of graduate school, followed by obtaining a license in every jurisdiction you want to practice in and then followed by constant professional regulation. It's also why practicing law without a license is a crime in many jurisdictions. Do you argue with physicians over medicine as well? Argue with architects or engineers about building construction? With PhDs in their area if expertise? I mean I wouldn't doubt that you do, but you really shouldn't.
  #200  
Old 12-18-2018, 04:42 PM
DrDeth DrDeth is offline
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Quote:
Originally Posted by Cheesesteak View Post
They're banned because they're banned, and it's OK that they're banned because so few people own them (because they're banned).

Is this what passes for logic with you?

Pretty much as effective is what I could say about bolt action vs. semi-auto or 6 shot revolver vs. 12 shot semi-automatic pistol. I'm pretty sure you're not OK with banning semi-autos in favor of bolt-action or revolvers even though they're pretty much as effective.

I'm not interested in legalizing them I'm interested in understanding why pro-gun folks are so sedate about one kind of ban and hysterical about another kind of ban.

Even here, even you, the idea of legalizing military weaponry is tepidly supported. Where is the zeal, the lashing out at gun grabbers who took away your right to own an M-60?
Well, we have laws that infringe the 1st Ad, also, dont we? Laws vs slander, Libel and kiddy porn. No right is absolute. Why do we accept those infringements on the 1st Ad?

Well, only a tiny few sickos want to look at kiddy porn. The good that such laws do- preventing the making of kiddy porn by raping and abusing a child- is worth the small infringement on our 1st Ad rights, since so few want kiddy porn anyway.

So, just like with heavy weapons- The good that such laws do- preventing the mass slaughter of thousands - is worth the small infringement on our 2nd Ad rights, since so few want howitzers anyway.
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