This is a ridiculous argument from emotion, absolutely embarrassing.
I missed that post by Abatis. Ugly. I think I’ll join you and leave this thread.
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
And? That doesn’t mean that correct legal / constitutional arguments can’t be made by one person, and the other person be shown to just be blowing smoke.
One of us is using quotes and citations and one of us is just wishcasting.
Hard fought in what way? The right to privacy was conjured into being in Griswold, using a theory that I don’t disagree with – for as long as SCOTUS refuses to revisit *The Slaughterhouse Cases *, overturn it and reinvigorate the 14th Amendment’s “privileges or immunities” clause . . . That would open the constitutional path to recognizing unenumerated rights. The “Penumbral Rights Theory” is a serviceable workaround to Slaughterhouse, for now . . .
And there’s where you are wrong . . . That “Penumbral Rights Theory” rests on the inviolate nature of the rights recognized and secured in the first eight provisions of the Bill of Rights, is a legal truth and it forms the central point of my argument.
I only want judges and Justices that will respect and uphold the Constitution. That they are considered “right leaning” has more to do with the left’s penchant for disrespecting and ignoring the Constitution than anyone else’s hostility for the right to privacy and its derivative rights.
Just to throw this out there, I consider social conservatives (AKA “religious right”) and their anti-abortion / anti-LGBTQ rights agenda to be nearly as dangerous to Liberty and the Constitution as Constitution hating / ignoring liberals . . . Both can be condemned for envisioning government exercising powers it was never granted, to modify the behavior of those they consider either Godless Heathens or the Basket of Deplorables.
As it should be dismissed, with ease and no further consideration.
For someone with 37 posts in this thread so far, it seems a letdown to just surrender like that.
And your vapor attack there doesn’t explain how I’m wrong. Lord knows, Todd Beamer and the other passengers had a horrible decision to make and that decision was the unorganized militia principle in action.
“Let’s Roll” is what Liberty loving, civic minded Americans do.
Deleted, out of sequence reply…
Except NH, I don’t think the New England states or their militias fully complied with Madison’s orders, especially orders to invade Canada. And the states didn’t declare secession. After Madison tried and failed to invade Canada, at the end of the war, you had the Hartford Convention which dealt not with secession but constitutional amendments to remove the three-fifths compromise and require two-thirds of Congress to declare war, admit new states, or restrict trade.
And Madison only had the authority to call the militias into national service (to federalize them) because Congress gave him that statutory authority. The Constitution itself gives Congress the power to call militia into national service “to repel invasion”. When Madison issued orders to invade Canada, given the unpopularity of the war, many NE states (including their congressmen) refused to comply because they did not consider that within Congress’s authority much less the President’s delegated authority.
In direct opposition to your assertion, see the United States Constitution, Article I, Section 8, Clause 15 which expressly limits the government’s power to certain circumstances:
“[The Congress shall have Power] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”
~Max
Is that you saying your earlier statement that Heller recognized "a right that, according to precedent, had not been recognized before . . . " was wrong?
Overruled as to its holding on the 14th Amendment; I’m not aware of any case that abrogates Cruikshank on the point I’m citing it for. In fact that point was expanded 10 years later in Presser v. Illinois., 116 U.S. 252 (1886) and of course, re-affirmed in Heller.
The Presser opinion, written by Justice Woods, quotes Cruikshank on this point but the case-specific language of Cruikshank is excluded and Woods inserts the familiar words of the 2nd Amendment instead (without any reference to the declaratory clause):
[INDENT]" . . . in the case of U. S. v. Cruikshank, 92 U. S. 542, 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress."
[/INDENT]
I find this intriguing because Woods is essentially putting words in the mouth of Chief Justice Waite and could be seen as greatly widening Waite’s direct quote of the Cruikshank indictment. It can be safely surmised that Waite agreed with this paraphrase though, since he was still serving on the Court as Chief Justice and obviously put his signature on this opinion (it being unanimous).
So I argue the Court obviously believes that Cruikshank’s “the right of bearing arms for lawful purpose” as exercised by Levi Nelson and Alexander Tillman, citizens of the United States, of African descent and persons of color – that of carrying guns for self defense in public – is, in action and effect, completely and unequivocally legally interchangeable with the 2nd Amendment recognized and secured, “the right of the people to keep and bear arms”.
Whatever you want to say about Cruikshank and how it is of dubious application due to its underlying flaws, in Presser the Court removed all doubt on this point:
[ul]
[li]The right of the people to keep and bear arms = the right of bearing arms for lawful purpose = carrying guns for self defense in public.[/li][/ul]
Well, Cruikshank / Presser speak to the origin and nature of the underlying right and how the right can not be conditioned or qualified by the words of the 2nd Amendment . . . Miller speaks to scope of the right, what types of arms are protected for private civilian possession and use, considering the object of the 2nd Amendment.
I absolutely want those rights protected, BUT . . . I would like the Court to revisit Slaughterhouse and to reinvigorate the “privileges or immunities” clause of the 14th to secure unenumerated rights. For now, penumbral rights theory is a serviceable workaround of Slaughterhouse but it does have infirmities and incongruities.
The vast majority of people haven’t a clue about how abortion and contraception and LGBTQ rights came to be recognized and secured, which begs a question (at least for me) . . . My issue is how liberals hold those Griswold derived rights to be absolutely unquestionable and inviolate, but then, turn to the 2ndA and the right to arms and claim a justification to come up with all kinds of schemes to restrict that right.
My question is, how can a right that is recognized to exist in the “penumbras and emanations” of the rights secured in the first eight Amendments of the Bill of Rights, be considered more vital, more important and more secure than a right that is actually included in the eight, expressly enumerated in the Bill of Rights?
This leads to the scenario that I asked Quicksilver about . . . How the left’s success at restricting the right to arms can call into question the legitimacy of the penumbral rights theory because if an enumerated right can be cut out, that can be used as the justification to roll back the right to privacy and the derivative rights of abortion, contraception, LGBTQ rights.
I’ve asked about this many times and it never receives any answer (well, an answer grounded in constitutional law). I do get called lots of names.
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Be careful not read too much into 1880s dicta from Presser. That pre-incorporation ruling was that the Second Amendment did not apply to states, in the same vein as the First Amendment in United States v. Cruikshank (1875). The dicta does not extend to all forms of arms control, only such controls that “deprive the United States of their rightful resource for maintaining the public security”, that is, the militia that the national Congress may organize and arm (U.S. Const. art I sect 8).
For example, if Congress issued (or called for the keeping of) a rifle to every able-bodied adult between 21 and 40 years of age, the states relinquished their power to disarm their own citizens of such rifles. Not through the Second Amendment, but through the original Constitution. As originally devised, the states would have a check via their representation in the Senate. Now that check is gone, but the people still retain a check through their representation.
The Second Amendment itself prevents the Congress from disarming the people.
Incorporation of the Second Amendment means that the states cannot necessarily disarm their own people, even if the Congress has not issued or prescribed the keeping of arms. There are fuzzy exceptions as with other incorporated doctrines.
~Max
That was after the NG had been nationalized.
So, what’s your point?
In 1861 did the Militias of the CSA states follow the orders of President Lincoln?
The state militia would just ignore the "other
" president.
Heller recognized a right to keep and bear arms in the 2nd Amendment, which, until it ruled, it had not recognized before.
When you use a national tragedy as a ham handed tool in an unrelated argument, I can see why you get called lots of names. I for one, but for the rules in this forum, would love to give you more than a few.
As to the rest of your post, it’s a strawman based on your broad, and inaccurate, belief of what “liberals” believe. So if you wish to tilt at the windmills of your imagined advocates of unlimited rights, have fun with that. Just make sure you don’t miss the “2nd Amendment” one.
But I can read what the Court plainly said without reading too much into it.
The Court is very clear that they are only discussing private citizens, those capable of bearing arms, the “reserve militia” of the states and the nation and the nature of their right to arms as it relates to the states and federal government.
There was no “gun control” law being challenged or even tangentially addressed in this case. The law that was being challenged was not a gun law, it, “only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law". The Court decided that law "do[es] not infringe the right of the people to keep and bear arms” This was because private citizens have no claims to any militia rights, protected by the 2nd Amendment.
Whew, talk about over reading . . . with a bit of taffy-pulling thrown in for good measure.
Citizens mandated by Congress to provide themselves with a firearm are not in any manner exercising a constitutional right, 2nd Amendment or otherwise. I don’t even know where you are drawing the reasoning for the above from, the Court doesn’t say the exercise of such a power would render the states impotent . . . The Court explains that the federal mandate that forces the rule that "the states cannot, even laying the [the 2nd Amendment] out of view, prohibit the people from keeping and bearing arms, . . . " is a structural one, borne out of principle.
The federal government was forbidden to disarm the people before any provision of the Bill of Rights was proposed, before a single word of what would become the 2nd Amendment was put to parchment.
All the 2nd Amendment “does” is redundantly forbid the federal government to exercise powers it was never granted.
The entire field of 2nd Amendment incorporation is fuzzy because it hasn’t been advanced since being ruled on in 2010.
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Besides cannons, muskets, sailing ships, bladed weapons, and fighting involving combinations of skirmishes and soldiers in formation firing, marching, etc., the FF also experienced the ff.
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the use of militias serving as slave patrols, etc.;
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the British trying to encourage slaves to rebel;
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several armed because they lived in isolation or far away from each other or from various authorities, and faced problems ranging from famine to disease to armed groups attacking them;
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instances where standing armies threatened rule by civilians or subjects.
The response to these was 2A, which called for individual rights to defend oneself, state rights to defend themselves, and the need for the country to defend itself with a small standing army and a large supplement of regulated militias (defined in Art. 1 Sec. 8 and the Militia Acts).
With prison, surveillance, and police systems far greater today than they were back then, then the FF would probably support ownership of anything up to semi-automatic firearms plus gun control enabled by local governments, with police and the military allowed to use more powerful weapons.
At the same time, give greater sophistication and complexities in standing armies, the FF would acknowledge that militias are outdated, and would logically support larger standing armies, more sophisticated training for advanced weaponry, armaments, and delivery systems, and thus something like the National Guard.
Well, that is worded in such a way that I can’t say what I think it means. Are you saying that the 2nd Amendment doesn’t actually say “right to keep and bear arms” or are you saying that Heller ruled on something that Heller never ruled on . . .
Or are you ***back ***to saying that Heller recognized a new right that SCOTUS never noticed before *after *saying, “I do think there is a right to self-defense and a right to keep and bear arms, so, in effect, I kinda agree with Cruikshank” in your last post?
This judge is giving you a 9.7 for mental gymnastics.
Well, if people can find the composure to rebut Omar’s “some people did something” you should be able to take a deep breath and show me how I’m wrong . . .
Look, if you can’t form a cogent argument that actually rebuts mine, that’s OK. Throwing around “straw man” just shows you don’t know what a straw-man is, especially given the entirety of the post and where my claims of “liberal beliefs” fit in it. Perhaps resigning from the thread is in your best interest
:smack: You, more than most should understand the concept of, and value in, direct rebuttal and if my arguments were so flawed it should be easy to dispense with them in a couple of on point paragraphs, demonstrating the flaws.
You chose ^that^ though . . . easier than debate and proving me wrong but even easier on the ego.
Too bad, I love debating lawyers (and those who claim to be).
That is not true.
Sorry for that. To sum my argument up: The Supreme Court has never held that the 2nd Amendent protected an individual’s right to keep and bear arms. Citing Cruikshank, which dealt not with the protection of the right in the 2nd Amendment, but rather as it exists in theory, does nothing to disprove that. Neither does Presser. which was explained in Quilici v. City of Morton Grove: “Read in context, the phrase referred to by the plaintiffs was not meant to be a limitation on the authority of the states, but merely stated the obvious position that, whenever required by the federal government or absent any regulation whatsoever, an individual has the right to keep and bear arms. Under certain circumstances, that right may be limited by the states through the valid exercise of what has come to be known as the “police power,” without fear that any United States Constitutional provisions will be infringed.”
Quilici is just one of the hundreds of cases that Stevens in his dissent references. Those cases held, based on the Supreme Court ruling in Miller, that the 2nd Amendment does not protect an individual right to keep and bear arms. That was the state of the law in the United States at the time the majority in Heller changed it.
I really don’t think it’s that difficult to understand, or, even that contested. Heller changed, not just the state of the law, but also gun control legislation.
Keep digging. I’m regretting actually trying to deal with you on a rational level when you clearly show your ease in using … troubling rhetoric.
How can I rebut a an argument that is basically: “Liberals want to take all our guns!! Durp Durp!!! 9/11!!!”
In a last ditch effort to find a common understanding, I will, once again, try to point out that it appears you and I can agree that there exist rights, rights that should be protected by the legislatures and judiciary, that are not specifically enumerated and protected in the Bill of Rights. For you, the right to keep and bear arms, is one of those rights. Great. For me, those rights include right to vote, right to contraception, rights to same sex marriage, right to self defense, and others. I think it is a good thing we can agree on this issue, and, to be honest, it’s a bit different than most gun control debates.
But saying a right exists is, as Souter pointed out, the start of the analysis. Not the end.
If you’re claiming the Dick Act was unconstitutional, it would really help you to explain how.
Not in the least. I have no idea how you get that idea.
The NG was Nationalized after the Dick act was passed. Bills supplanted parts of the Dick act, something which occurs constantly on Capital Hill.
If you’re good with that, then what the hell is your complaint?
You posted “*In a more recent example, from 1957, when Arkansas Governor Orval Faubus called out the Guard to prevent desegregation of Little Rock Central HS, President Eisenhower federalized them and ordered them to facilitate it.”
*
But like I said that was after the NG had been nationalized. So your point there was meaningless. The NG , ever since ww1, is not a “militia” anymore. It is part of the Federal Armed forces.