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Old 08-28-2019, 02:48 AM
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Founding Fathers influencing today's politics


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?

Last edited by obbn; 08-28-2019 at 02:52 AM.
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Old 08-28-2019, 02:53 AM
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If the founding fathers had any special genius, it was the awareness that they were men of their time. They realized that the country would change and that the laws they were writing in 1789 might not be the right laws in 1889 or 1989 or 2089. They recognized that changes would be needed and they made sure to make it possible for people in their future to change the laws as needed.
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Old 08-29-2019, 01:53 PM
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If the founding fathers had any special genius, it was the awareness that they were men of their time. They realized that the country would change and that the laws they were writing in 1789 might not be the right laws in 1889 or 1989 or 2089. They recognized that changes would be needed and they made sure to make it possible for people in their future to change the laws as needed.
They also made sure to make it possible for people in their future to change the Constitution as needed.



Not just hand-wave it away.
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Old 08-28-2019, 03:33 AM
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Would both sides consider it settled if we could hear an expanded explanation right from the horses mouths?
Only the originalist faction might be satisfied. The late Justice Scalia was an originalist. He delivered the majority opinion in District of Columbia v. Heller (2008). If James Madison had risen from the grave and told Justice Scalia that the Second Amendment did not guarantee an individual right, we would have a different jurisprudence for that Amendment.
District of Columbia v. Heller, 554 U.S. 570 (2008)
~Max
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Old 08-28-2019, 06:49 PM
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Only the originalist faction might be satisfied. The late Justice Scalia was an originalist.
Originalism is a pretty easy legal principle to satisfy. It basically amounts to "What do I think the person who wrote this document was thinking?" And of course, it's easy to assume that person was thinking the same thing then that you're thinking now.
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Old 08-28-2019, 09:39 PM
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If James Madison had risen from the grave and told Justice Scalia that the Second Amendment did not guarantee an individual right, we would have a different jurisprudence for that Amendment
Why does Madison get to be the deciding voice? There are two problems with that.

First, he was only one of about 60 Representatives. He only had one vote. Why should he have the deciding say?

Second, what he proposed as the text in relation to guns was rejected by Congress. His proposal in relation to guns was significantly different from what Congress ultimately approved.

Madison's version in the first draft presented to the was:

Quote:
Originally Posted by Representative Madison
A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.
A variant of that was accepted by the Representatives, and then it was changed by the Senate, and then the final version was settled by the House-Senate conference. The Second Amendment, as framed, isn't the work of Madison, or any other single individual. It was the joint product of over 80 individuals in the House and the Senate. How can originalism say that those 80+ politicians would have all agreed on the meaning of what they had just drafted?

And of course it doesn't end there. The Fourth Article of Amendment went off to the states. It got ratified, unlike the First and Second Articles, by the necessary 11 state legislatures, totalling additional hundreds of politicians. They didn't draft it, but their approval was necessary, as the fate of the First and Second Articles show. They too were part of the original voters on the proposal.

How is it possible to say that there is a common, original intent? That if you asked all of those hundreds of politicians the meaning and application, they all would have agreed, unanimously? (And, as an aside, this language of "Founding Fathers" masks what they were : politicians. Two centuries ago, but politicians.)

Originalism only works if you assume that old dead politicians were omniscient, able to foresee all social problems, and unanimous in their interpretation of the law they had drafted. But they wren't. They were politicians, not Demi-gods.
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Last edited by Northern Piper; 08-28-2019 at 09:40 PM.
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Old 08-30-2019, 10:33 AM
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Why does Madison get to be the deciding voice?
It was actually Justice Stevens whose dissent placed emphasis on Madison's rejected draft. Justice Scalia rejected Stevens's interpretation of Madison's opinion. If Madison were to tell Scalia that Stevens was right, that removes one point from Scalia's opinion.

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

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

~Max

Last edited by Max S.; 08-30-2019 at 10:34 AM. Reason: removed extra word
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Old 08-30-2019, 10:40 AM
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Originally Posted by Max S.;21833444

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

~Max
If the FFs rose from the grave to express disagreement with this, Citizens United or other recent right-leaning decisions, Fox News would label them socialists and Trump would tweet insults about their height.
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Old 08-30-2019, 10:59 AM
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If the FFs rose from the grave to express disagreement with this, Citizens United or other recent right-leaning decisions, Fox News would label them socialists and Trump would tweet insults about their height.
Even if they did so, I doubt Mr. Trump could successfully appoint a justice that insults the founding fathers. Presumably the Supreme Court would reverse on the Second Amendment, and those forces who still want an individual right to keep and bear arms will attempt to expand the court or pass a new amendment.

~Max
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Old 08-31-2019, 09:45 AM
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If James Madison had risen from the grave and told Justice Scalia that the Second Amendment did not guarantee an individual right, we would have a different jurisprudence for that Amendment.
See, I doubt that. I think Scalia would tell Madison that the text is supreme, and we're not about to change 200+ years of jurisprudence just because one author's revisionist stance.

All conservative principles are situational. Originalism is no different.
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Old 08-31-2019, 11:43 AM
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I'm not talking about "direct consent", I'm talking about the federal government restraining its operations (or being restrained) to just the specific powers granted to it by the Constitution. If one considers the 10th Amendment a part of the Constitution and a guide for the application of constitutional powers, what's the dispute?

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

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

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

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

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

It's a small but important distinction.

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

I think I understand the position that at it's core, the constitution is meant to protect "unalienable rights". But what's heard more often than not is that we live in a 'nation of laws' and under 'rule of law'. Whether state or federal, these laws often serve to put restrictions on "unalienable rights". Do either of you find these two concepts in opposition? If not, why not? If so, can they be reconciled, or have we mostly moved well past the founding fathers principles of individualist rights towards those of social justice, i.e. "a more just society"?
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Old 08-31-2019, 11:52 AM
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I may have rushed to judgement about where this was headed.

I think I understand the position that at it's core, the constitution is meant to protect "unalienable rights".
Except that the Constitution in toto was not at all meant to protect unalienable rights. Moreover, the rights enshrined in the Bill of Rights aren't unalieanable; they are expressed as limitations on governmental powers, with some limitations being more explicit than others. The Bill of Rights sit within the broader framework of the Constitution itself. The people who wrote and influenced the drafting and final ratification were acutely aware that Constitutions could fail, which is why it seems highly unlikely that they would take an literally textual interpretation of the Constitution seriously.
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Old 08-31-2019, 11:35 PM
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Moreover, the rights enshrined in the Bill of Rights aren't unalieanable; they are expressed as limitations on governmental powers, with some limitations being more explicit than others.
Some of the provisions do recognize unalienable rights and certainly original, inherent rights that the people possessed and exercised before the Constitution was ratified. Those provisions do not establish or declare any prohibition that wasn't already a inviolate principle of the Constitution before December 15th, 1791. All those provisions "do" is redundantly tell the federal government it can not exercise powers it was never granted.

This truth was a primary argument of the Federalists against adding a bill of rights:
"I . . . affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? . . ."
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The people who wrote and influenced the drafting and final ratification were acutely aware that Constitutions could fail, which is why it seems highly unlikely that they would take an literally textual interpretation of the Constitution seriously.
That the framers included a rigid process to amend the Constitution, to formally alter it and the ambit of federal powers, stands as a testament that they believed the Constitution must be applied as written. If they believed that the Constitution was a fluid, malleable evolving series of suggestions on how to operate the federal government, them including an amendment process was the ultimate troll . . .

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

.

Last edited by Abatis; 08-31-2019 at 11:37 PM.
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Old 08-31-2019, 11:06 PM
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I think I understand the position that at it's core, the constitution is meant to protect "unalienable rights".
The concept of "unalienable rights" requires the establishment of a government that respects these principles -- that its powers emanate from the people being governed and that the people retain powers over themselves that they do not confer.

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

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

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

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

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

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

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

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

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

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


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

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

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

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

.

Last edited by Abatis; 08-31-2019 at 11:07 PM.
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Old 09-12-2019, 02:51 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 02:54 PM. Reason: unjustly infringe
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Old 08-28-2019, 03:06 PM
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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?
The real question raised by your post is not what did / would the framers think, it is are you really that unaware of what they did say or are you just proposing dismissing what hey said and start afresh, writing a new, more palatable "history" for them?
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Old 08-28-2019, 05:36 PM
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We know what they meant by "well regulated," both from contemporary non-constitutional definitions and their more private "deuterocanonical" writings. As you don't say whether you want this thread to be specifically addressing that issue, I won't turn that into a debate.
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Old 08-28-2019, 06:12 PM
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The two sides are too well entrenched now to have their opinions changed by any particular bunch of people. The pro-gun side may say it's because of the Founding Fathers' intent in the second amendment, but if the Founding Fathers actually got in a time machine, showed up and looked around and collectively exclaimed "Oh God, NO - ban everything more powerful than a musket!" I don't actually think the NRA would nod politely, say "well, if you say so" and shut up shop. They'd just drop that specific justification, but keep arguing for the same actual policies. Founding Fathers' intent is a useful justification precisely because in the normal way of things nobody can prove you wrong.
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Old 08-28-2019, 06:34 PM
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I don't know what any of them would actually say, after they got over the shock. But I am quite certain that they wouldn't all say the same thing.
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Old 08-28-2019, 06:53 PM
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I don't know what any of them would actually say, after they got over the shock. But I am quite certain that they wouldn't all say the same thing.
True, 'dat
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Old 08-28-2019, 06:45 PM
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The two sides are too well entrenched now to have their opinions changed by any particular bunch of people. The pro-gun side may say it's because of the Founding Fathers' intent in the second amendment, but if the Founding Fathers actually got in a time machine, showed up and looked around and collectively exclaimed "Oh God, NO - ban everything more powerful than a musket!" I don't actually think the NRA would nod politely, say "well, if you say so" and shut up shop. They'd just drop that specific justification, but keep arguing for the same actual policies. Founding Fathers' intent is a useful justification precisely because in the normal way of things nobody can prove you wrong.
Maybe I am giving Justice Scalia more credit than he deserved, but I think he would have admitted that he was wrong.

~Max
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Old 08-28-2019, 07:05 PM
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If it came down to what the Founding Fathers actually say, vs. what Scalia and his ilk like to imagine them saying, the imaginary Founders would beat the real ones every time.
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Old 08-28-2019, 08:01 PM
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It would be a drastic mistake to presume that all of the Founding Fathers would agree on what the words of the constitution meant - it was borne out of compromise, not necessarily consensus. And when confronted with circumstances not originally considered, they debated vigorously over what they had designed (take Thomas Jefferson, for example - he was the quintessential small government politician who opposed central power, until he became President and had the chance to more than double the country by purchasing "Louisiana"; suddenly, his studied principles were cast aside to justify his authority to make such a large decision).

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[T]here was a debate about how such a large purchase was allowed under the Constitution.
Jefferson took a strict, literal view of constitutional powers, meaning that specific powers reserved for the President and Executive Branch needed to be spelled out in the Constitution. The ability to buy property from foreign governments was not among these powers listed in Article IV of the Constitution – a fact that his political opponents, the Federalists, were eager to point out to the President...
Instead, Jefferson considered a constitutional amendment as the only way to conclude the deal with France...
By that time, Jefferson and his supporters faced an October 31, 1803 deadline to ratify the treaty or lose the purchase. Ironically, the deal to expand federal powers would need to be sold to the Federalists, who had advocated such a position before the treaty was signed, and supported by the Republicans, Jefferson’s party, which had opposed such a broad extension of presidential powers.
Cite: https://constitutioncenter.org/blog/...tional-gamble/
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Old 08-28-2019, 08:28 PM
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Scalia is often lumped with originalists, but I am pretty sure that he was a textualist. From that perspective, it does not matter what the author desired, it is a matter of what he actually said. Bringing in all the Founding Fathers to re-convene the Constitutional convention would have no bearing on current interpretation because if the authors goofed and said the wrong thing, that is how the law should be decided.

Of course, we still get no satisfaction in appealing to texts, as the recent decision demonstrates with Scalia and company's decision to simply ignore (or handwave away), the opening clause of the 2d Amendment.
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Old 08-28-2019, 08:50 PM
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Scalia is often lumped with originalists, but I am pretty sure that he was a textualist. From that perspective, it does not matter what the author desired, it is a matter of what he actually said. Bringing in all the Founding Fathers to re-convene the Constitutional convention would have no bearing on current interpretation because if the authors goofed and said the wrong thing, that is how the law should be decided.
I once read an interview that gave an interesting take on textualism. It was back when the dangers of second-hand smoke were coming into view, and some workers were arguing that occupational health and safety laws entitled them to smoke-free workplaces. The journalist interviewed an expert in Occupational health and safety, and the expert said something along the lines of:

"I've helped draft those laws and regulations that require safe workplaces. And everyone around the table was smoking - the rooms would be filled with smoke. If you had asked us if our smoking would be contrary to the laws we had just drafted, we would have laughed you out of the room and lit up another one."

"But now the situation has changed. The science is making it clear that second-hand smoke is contrary to the laws I helped draft. Even though none of us doing the drafting knew it at the time."
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Old 08-28-2019, 09:00 PM
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Scalia is often lumped with originalists, but I am pretty sure that he was a textualist.
I disagree. Scalia called himself an originalist and his actions matched his words.
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Old 08-29-2019, 01:37 PM
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Scalia is often lumped with originalists, but I am pretty sure that he was a textualist. From that perspective, it does not matter what the author desired, it is a matter of what he actually said. Bringing in all the Founding Fathers to re-convene the Constitutional convention would have no bearing on current interpretation because if the authors goofed and said the wrong thing, that is how the law should be decided.

Of course, we still get no satisfaction in appealing to texts, as the recent decision demonstrates with Scalia and company's decision to simply ignore (or handwave away), the opening clause of the 2d Amendment.
The opening clause of the 2nd amendment is not ignored. Well regulated at the time meant something like "in good working order" and a militia was all of the adult males of a territory that could be called on to serve in times of war. Those who insist otherwise are either ignorant or being tendentious.
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Old 08-29-2019, 01:57 PM
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The opening clause of the 2nd amendment is not ignored. Well regulated at the time meant something like "in good working order" and a militia was all of the adult males of a territory that could be called on to serve in times of war. Those who insist otherwise are either ignorant or being tendentious.
I can't seem to recall any time in U.S. history where a civilian was brought up on charges for not keeping firearms "in good working order". Seems like a strange thing to stick in the Constitution.
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Old 08-29-2019, 03:32 PM
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I can't seem to recall any time in U.S. history where a civilian was brought up on charges for not keeping firearms "in good working order". Seems like a strange thing to stick in the Constitution.
The idea of charging a civilian with not keeping his firearms "well regulated" isn't in the Constitution. "Arms" and "militia" are different words, referring to different things.

Maybe the Founding Fathers could explain that clearly enough, but I doubt it.

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Old 08-29-2019, 05:00 PM
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I can't seem to recall any time in U.S. history where a civilian was brought up on charges for not keeping firearms "in good working order". Seems like a strange thing to stick in the Constitution.
Formally enrolled members of militia were under Militia Act of 1792 impressment and obligated to "provide himself with a good musket or firelock", I would say that "good" is a qualifier that denotes a gun "in good working order".

While charges or fines were not set-out in federal law, many states had penalties and fines for failing to keep up with the requirements as to arms and accouterments; when called, one had to muster in a condition to fight.

Of course this has NOTHING to do with "the right of the people to keep and bear arms" .
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Old 08-29-2019, 02:58 PM
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The opening clause of the 2nd amendment is not ignored. Well regulated at the time meant something like "in good working order" and a militia was all of the adult males of a territory that could be called on to serve in times of war. Those who insist otherwise are either ignorant or being tendentious.
Not sure where you're going with this. Are you saying our current laws on gun ownership are based on membership in a militia?
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Old 08-29-2019, 03:02 PM
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Not sure where you're going with this. Are you saying our current laws on gun ownership are based on membership in a militia?
Only people that can be called on in time of war can own guns, and the guns they own must be in good working order.
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Old 08-29-2019, 04:21 PM
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The opening clause of the 2nd amendment is not ignored. Well regulated at the time meant something like "in good working order" and a militia was all of the adult males of a territory that could be called on to serve in times of war. Those who insist otherwise are either ignorant or being tendentious.
OK. Not ignored, just hand-waved away with odd interpretation of grammar.

Last edited by tomndebb; 08-29-2019 at 04:23 PM.
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Old 08-30-2019, 12:28 PM
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OK. Not ignored, just hand-waved away with odd interpretation of grammar.
It is not an odd interpretation of grammar. It was a relatively common way of expressing an idea when the constitution was written.
For example: The Constitution of Massachusetts, written in 1784 "The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever"
In the second amendment the first clause gives the reason and the second gives the rule. Well regulated obviously refers to the militia and not the weapons themselves.

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

Who does it apply to? This was answered explicitly by George Mason: "Who are the militia? They consist now of the whole people, except a few public officers."
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Old 09-02-2019, 09:17 PM
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The opening clause of the 2nd amendment is not ignored. Well regulated at the time meant something like "in good working order" and a militia was all of the adult males of a territory that could be called on to serve in times of war. Those who insist otherwise are either ignorant or being tendentious.
If you're going to use the 18th century definition of "Well regulated", you have to use the 18th century definition of "arms" (not to mention "bear", which I'd think would toss concealed-carry out the window). Conversely, if you're going to use the 21st century meaning of "arms", then don't take umbrage with those wishing to use the 21st century meaning of "well regulated".

I'd like to see what they'd say about porn.

Last edited by E-DUB; 09-02-2019 at 09:18 PM. Reason: spelling correction
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Old 09-03-2019, 10:21 AM
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If you're going to use the 18th century definition of "Well regulated", you have to use the 18th century definition of "arms" (not to mention "bear", which I'd think would toss concealed-carry out the window). Conversely, if you're going to use the 21st century meaning of "arms", then don't take umbrage with those wishing to use the 21st century meaning of "well regulated".
Again - "well regulated" applies to the militia, not the arms.

You could, I suppose, apply a different definition to "militia". But the Second Amendment says that the right of the people to keep and bear arms cannot be infringed, no matter what you say about the militia. So whatever you wind up with as a "well regulated militia", the people have to have a right to keep and bear arms so you can wind up with it.

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Old 08-28-2019, 08:35 PM
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But I am quite certain that they wouldn't all say the same thing.
This.


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It would be a drastic mistake to presume that all of the Founding Fathers would agree on what the words of the constitution meant - it was borne out of compromise, not necessarily consensus.
And this. Many time, this. Except I would say that a series of compromises can be accepted by a general consensus, even if not everyone agrees on it all.


I once interviewed one of the politicians who had a major hand in drafting the Patriation package of constitutional amendments that brought Canada's constitution home from Britain in 1982. And that was what he emphasized: that everyone in the room had to give way on some points, that no-one got everything they wanted, and that everyone in the room disliked something in the final version. Not that everyone disliked the same things, of course, but rather that no-one was completely satisfied. But overall, there was consensus to accept it (except, of course, for the fact that the Quebec delegation rejected the package entirely.)

So I asked him the natural follow-up question: since there were things in the final package he disagreed with, if he could go back and change something, what would he change? His response? "Not a thing." It was the overall package that attracted consensus (and even that was a flawed consensus, as Quebec dissented). But his basic point was that in constitution building, there will never be unanimity. At best, there will be consensus, and consensus is what is necessary to get it passed. He accepted that everyone gave up something to get the final deal that attracted the most support, and if he had the power to change it, it would have unraveled.

And even then, even with a consensus, there will be disagreements. Farrand records that after the deal was done in Philadelphia, and the delegates were leaving, a discussion came up about education. One of the drafters said that he hoped the new federal government would establish a national university. Another delegate interrupted and said that the Constitution wouldn't give the federal government the power to create universities. And then they both pointed to different parts of the text that they had just drafted and agreed on, to support their position.

Thinks about it: if you've ever been in a group of about 30 or 40 people, and polled them on an issue, have you ever got unanimity? And not on general terms, but if the question is one of detail, and carries issues of social policy? Why would it be any different for the guys at Philadelphia?

That to my mind is the deep flaw in originalism. It assumes unanimity, when really there was only consensus.
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Last edited by Northern Piper; 08-28-2019 at 08:38 PM.
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Old 08-28-2019, 09:44 PM
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The framers would all hold the idea that the right to arms is conditioned and qualified or restrained by the words of the 2nd Amendment with contempt -- after they stopped laughing when they realized people were seriously saying that the declaratory clause modifies the right.

None of them believed they were granting or giving "the people" the right to arms. They all believed in the principle of conferred powers and retained rights . . . That anything and everything not spelled out in the body of the Constitution, (granting government a power over that interest), was retained by the people as a right.

The fight over adding a bill of rights was on that point, not any disagreement about what rights were. The Federalists thought it dangerous and absurd to call out that things shall not be done when no power was ever granted that allowed government to act. Yeah, they lost that fight and we have a Bill of Rights but Federalist arguments against adding a bill of rights were codified and became the 9th and 10th Amendments, and speak directly on this point.

The framers would be shocked that people were dissecting and parsing the 2nd Amendment and trying to discern what rights the framers "intended" to give the people They would think it preposterous that people are reading the 2ndA to try to discover what arms the people were "allowed" to possess and use. They would be horrified that such ridiculous things were being said. . .

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

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

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

.

Last edited by Abatis; 08-28-2019 at 09:45 PM.
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Old 08-29-2019, 01:28 AM
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The framers would all hold the idea that the right to arms is conditioned and qualified or restrained by the words of the 2nd Amendment with contempt -- after they stopped laughing when they realized people were seriously saying that the declaratory clause modifies the right.

None of them believed they were granting or giving "the people" the right to arms. They all believed in the principle of conferred powers and retained rights . . . That anything and everything not spelled out in the body of the Constitution, (granting government a power over that interest), was retained by the people as a right.

The fight over adding a bill of rights was on that point, not any disagreement about what rights were. The Federalists thought it dangerous and absurd to call out that things shall not be done when no power was ever granted that allowed government to act. Yeah, they lost that fight and we have a Bill of Rights but Federalist arguments against adding a bill of rights were codified and became the 9th and 10th Amendments, and speak directly on this point.

The framers would be shocked that people were dissecting and parsing the 2nd Amendment and trying to discern what rights the framers "intended" to give the people They would think it preposterous that people are reading the 2ndA to try to discover what arms the people were "allowed" to possess and use. They would be horrified that such ridiculous things were being said. . .

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

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

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

.
If people have some natural right to own firearms, why don't people in other countries have this right?

You have the right to own a firearm for one reason only - you live in a country where the government gives you that right.

Last edited by Little Nemo; 08-29-2019 at 01:29 AM.
  #40  
Old 08-29-2019, 09:33 AM
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If people have some natural right to own firearms, . . .
The undeniable "natural right" is the right of self defense. I recognize that some governments assume they possess a power to dictate to people what tools they can use to defend their life.

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why don't people in other countries have this right?

You have the right to own a firearm for one reason only - you live in a country where the government gives you that right.
I will reply assuming you are actually interested in "why" and that you haven't been instructed in "why".

Short answer, (which you have already been given), US citizens posses the right to arms because "We the People", when establishing the Constitution (a compact which empowers and establishes government and delegates specific duties for it to perform on our behalf) did not grant the government any power to allow it to have any interest in the personal arms of the private citizen.

Long answer:

US citizens possess the right to arms because the United States is the only nation founded on the principle of unalienable rights. So while . . .

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

.. . the reality is, not everyone in the world is able to claim the full complement of rights under the governments they subject themselves to, or allow themselves to be subjected under. As stated, a vital part of claiming unalienable rights is society establishing a government of their choosing, an exercise in free will.

So, actionable unalienable rights are not universal. They do not exist for everyone, everywhere under all forms of government. The concept of unalienable rights has a very limited and specific application . . .

The founders / framers of the USA embraced and based their governmental model on the principles of conferred powers and retained rights. The people empower government by surrendering specific powers in a limited, delegated fashion. This established the principle that government cannot legitimately be arbitrary over the lives and fortunes of the people because government's power is only the sum of that limited amount of power each member of the society gives up to the legislative assembly.

The power vested in the assembly can be no greater than that which the people had before they entered into that society because no person can transfer to another, more power than he possesses himself, and nobody has an absolute arbitrary power over any other, to destroy or take away, the life, liberty or property of another person.

Here is the vital point; under these principles, government only keeps that power with the consent of the governed and the citizens retained everything not delegated to the government. Our rights were understood to be inherent and among those inherent rights a subset, called unalienable rights (sometimes inalienable), were considered of such intrinsic value to being human that a person, even willingly, cannot confer or surrender them to another person.

Unalienable rights is a concept focused on legitimacy; a person cannot legitimately confer to government the care or defense of his life, liberty or property. Unalienable also denotes legitimacy of action for government because no legitimate government would ever accept such a surrender by a citizen if offered.

Unalienable really has nothing to do with whether a particular right can be violated by government . . . Of course it can, that's a given. The term again is centered on legitimacy; when an unalienable right is violated, that government is no longer operating according to the principles of its establishment, thus it has lost its legitimacy to govern. It is then subject to the people's original "natural", never surrendered right of self dense, to rescind their consent to be governed and retake the powers originally conferred.

Important to your question, this is the principle of the 2nd Amendment; if this rescinding of their consent to be governed can not be done peacefully, then the people retain the right and the means, to bear arms and use force to oust the usurpers.

Unalienable rights is a concept of importance primarily at the genesis of the social compact / contract. Once the government's powers have been established, (by a ratified by the people constitution, consenting to be governed), unalienable rights become relatively moot because their status has unalterably been codified. The only concern is whether they are being violated and the only enforcers of violations are the people (again, because the care of these rights can not be surrendered or transferred) . . .

In the final analysis, one must understand that "unalienable rights" is a meaningless concept if there isn't a government being established to NOT surrender rights to.

It makes no sense to apply the term or use it in the context of people living under say, a monarchy or a dictatorship or even a parliamentary scheme . . . It is at its core a refutation of a monarchy and any authoritarian rule that is not subject to the citizen's determination and ultimately, their right to rescind their consent to be governed.

Even more nonsensical is a modern enlightened socialist/communist/anarchist discussing the term only to deny the existence of unalienable rights.

.
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Old 08-29-2019, 12:32 PM
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My point is that it's obviously wrong to speak of unalienable rights while observing these rights don't exist in other countries. That's proof that these rights are, in fact, quite alienable.

And that's evidence of the bigger point. People don't have rights despite the government. We have rights because of our government. Government is the tool we collectively use to establish and protect our rights. Without government, we're just a mob of individuals who have no rights.
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Old 09-08-2019, 02:33 PM
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US citizens possess the right to arms because the United States is the only nation founded on the principle of unalienable rights. So while . . .

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
N.B.: That's not the Constitution, that's the DoI. The Constitution is a binding legal document. The DoI is a revolutionary document with no surviving legal significance whatsoever.
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Old 08-30-2019, 09:31 PM
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The framers would be shocked that people were dissecting and parsing the 2nd Amendment and trying to discern what rights the framers "intended" to give the people They would think it preposterous that people are reading the 2ndA to try to discover what arms the people were "allowed" to possess and use. They would be horrified that such ridiculous things were being said. . .

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

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

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

.
So the Framers would be fine with someone living in an apartment building possessing rocket launchers, hand grenades, and suitcase nukes.
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Old 08-30-2019, 11:15 PM
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rocket launchers
Legal.
Quote:
hand grenades
Legal.
Quote:
and suitcase nukes.
Probably not legal.
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Old 09-01-2019, 01:06 PM
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Legal.

Legal.

Probably not legal.
I missed this gem.

Possessing "destructive devices" is absolutely NOT legal (see National Firearms Act and National Crimes Control Act).
  #46  
Old 08-31-2019, 06:06 AM
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So the Framers would be fine with someone living in an apartment building possessing rocket launchers, hand grenades, and suitcase nukes.
I'll focus on modern weapons of indiscriminate warfare, e.g., missiles, rockets / RPG's, aerial bombs, NBC weapons. But, since you asked about what I feel the framer's opinion on the right to own such weapons would be, I'll not bring any modern laws or judicial decisions into my argument (which could address small munitions / ordinance / artillery that are "destructive devices" under NFA-34) . . .

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

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

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

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

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

.
  #47  
Old 08-28-2019, 09:03 PM
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Would their opinions on current day issues matter?
Yes, because some people would care , and take their opinions into account. And, after all, they were pretty smart guys.
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Would their clarification today end the debate?
No, of course not. Even among people who cared what they think, it would just be one more thing to take into account, not a definitive end to the debate (unless their opinions reinforced what you already believe and want).
  #48  
Old 08-29-2019, 02:45 PM
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That's the opposite of what the Declaration of Independence and the Ninth Amendment say.



Maybe the Founding Fathers will rise from the dead tomorrow and say "jk lol" but I doubt it.

Bingo.



Regards,

Shodan


The people who wrote those were also cool with slavery.
  #49  
Old 09-02-2019, 02:42 PM
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The people who wrote those were also cool with slavery.
That's not true, slightly less than half were 'cool with slavery", but a compromise had to be made.



If you read the history of the 2nd, the "militia" clause was added afterwards, the more to make sure the USA didnt have a standing Army and each state was allowed a militia. The Founding fathers assumed this militia would be made of men who owned their own muskets.
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Old 08-29-2019, 08:47 PM
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If the Second Amendment is about self-defense, and self-defense is an inalienable right that the US is based on, then why is the US the only country in the world where the people are not allowed effective tools of self-defense?
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