Right to Bear Arms

Great Debates
101

Sweet Painted Moses.

[QUOTE=DSYoungEsq]
I did not say you were in agreement with anything with regard to Heller.
[/QUOTE]

I know, you implied that I disagreed with Scalia in Heller, this is completely and totally false. I said I did agree with him. I’m beginning to think you have an inverting filter applied when you read my posts.

[QUOTE=DSYoungEsq]
*I said that Justice Scalia’s notation on incorporation is precisely correct,
[/QUOTE]

BLOODY HELL! AND I AGREE THAT HIS POSITION IS CORRECT TOO. What part of my agreement do you not understand, I have agreed with him since I read the opinion on Thursday.

[QUOTE=DSYoungEsq]

  • because he notes that Cruikshank said that the Second Amendment only applies to the federal government, and that Presser and Miller agreed with this, but that this doesn’t address whether or not states can violate the “right to keep and bear arms,” since that issue has yet to be addressed by the Court since it began analyzing the due process clause of the Fourteenth Amendment through the lens of “selective incorporation.”
    [/QUOTE]

THIS IS THE EXACT POINT THAT I HAVE BEEN MAKING ALL ALONG. PLEASE READ MY POSTS This is my exact point that I have been steadfastly making since the beginning.
Please go back and read my posts with the understanding that I am PRO GUN that I want to see the bans of San Francisco, Chicago New York et al removed, and that to do this we need to bring a case to the court that addresses this issue and get a proper ruling on it.

You say that California could rule on this and strike down the San Francisco ban. Sure they could, but they never will. In addition even if one state strikes down a ban, as Pennsylvania is doing in Philadelphia via the state Pre-Emption law. This too will not have any effect over any other ban in other states. Having one state singularly overturn a ban does little good, until we get it through the Supreme Court so that we can stop all of the bans.

102

[QUOTE=Euthanasiast]
This is how simple it should be to understand what the founding fathers meant. Pay particular attention to the last half of this one minute video. Whether or not you agree with the opionion, you should at least respect the simplicity of the interpretation, as the founding father’s certainly would have intended it.
[/QUOTE]

There is a point missing. At that time we were citizen soldiers. When the call came to arms ,citizens gathered their own ammo and guns and ran off to defend the country against invaders. If they had no guns ,we had no militia. But we have an army,navy,marines,FBI ,CIA ,police (city and state) to presumably protect us. To suggest a AK is a logical derivative is a huge stretch. They are far removed.
But guns are here to stay. There are too damn many and it would be impossible to take them away ,so no discussion about that s necessary. But I do not see a logical progression from the the second amendment to guns being sacrosanct. A machine gun in every home is not a constitutional right.

103

SidV, I never said you agreed with or disagreed with Heller. I was not making reference to Justice Scalia’s opinion in order to draw contrast with your opinions as previously expressed. I was implying nothing about your opinion of Heller. I think you need to calm down and stop reacting, and start reading, please.

Nor am I asserting that your position on what should be done about the Heller decision is incorrect (or correct for that matter; you will notice I have offered no opinion as to whether or not the right to keep and bear arms should be incorporated into the meaning of “liberty” in the due process clause). I have not taken you to task on this at all.

I have asserted that you have made two mistakes in your posts.

  1. You incorrectly assert that Cecil’s statement that you excerpted from his column is wrong. I and others have shown you that Cecil’s statement is not incorrect: if all the rights which HAVE been found to be incorporated into the meaning of “liberty” in the 14th Amendment are part of that term, it seems likely that the right to keep and bear arms is also incorporated into that term, and will be found to be incorporated as soon as the Supreme Court addresses the issue. Note that this does not mean that Cecil is asserting that the Court has already addressed the issue.

  2. You incorrectly assert that the various amendments of the Bill of Rights apply to the states through the selective incorporation doctrine. This is not correct. It may seem a subtle difference, but it is vastly important, if for no other reason than the fact it means that the Supreme Court always has the ability to decide at some later point that, for example, states do NOT have to avoid abridging your right of free speech. It can do that simply by deciding at some later time that the meaning of “liberty” does not include the right to speak freely. However, the federal government’s prohibition on passing laws that abridge your right of free speech is enshrined in the First Amendment and cannot be removed short of further amendment to the Constitution.

104

Your first assertation is an opinion, on that we can disagree and I have not argued that at length. I disagree and the only one who can settle that is the author, my point of the comparison still holds, at the least it calls for clarification in the article.

Your second point, and the pint where you continue to demand I’m wrong, without showing so, or in fact addressing the point. Your point in your last post is philosophical at best, and irrelevant to my point. So far as I know once incorporated there is no way to renounce incorporation, but again this point is irrelevant. Comparison to the first do not currently work. Scalia has made the specific point that this decision has no bearing whatsoever on bans outside of DC, as such he says the 2nd does not currently apply to state law or city ordinance. This is the only point I have ade, I have made no other point.

I ask you point blank, are the bans in states outside of the DC area currently legal or proscribed by the 2nd amendment. A simple yes they currently stand as legal, or no they are specifically proscribed and have no current legal power over the citizens in that area.

Are these bans currently in force, or are they specifically proscribed by the second amendment and not enforceable? As of today please, and utilizing current precedent and court rulings.
And I don’t incorrectly assert anything, your incorrectly apply pre-concived notions onto my opinions and choose to make incorrect assumptions. And I still hold that you need to start reading, you can get me to calm down by doing that and stopping with the incorrect assertations.

105

[QUOTE=SidV]
So far as I know once incorporated there is no way to renounce incorporation,
[/quote]
This is manifestly not true. One can simply look at what happened to the previous doctrine of “substantive due process” which the Court used to review laws challenged under the Fourteenth amendment. The whole concept was dumped, and decisions based upon it were ruled to be no longer valid (such as the infamous Lochner decision). As a general rule, the Court is loathe to set its prior opinions aside, but as happened with Plessy v Ferguson, it will do so when it feels the need. So, in the future, there is no guarantee that a right considered by the Court to be incorporated into the meaning of “liberty” wouldn’t be deemed unincorporated by some later decision.

Well, this is not true, and I quoted you on the fact that you have made assertions that were untrue. Which is why I posted in the first place.

<sigh> They would NEVER be banned by the Second Amendment, as that applies only to the federal government! What part of this simple concept is beyond comprehension??

Now, if you are asking: are various state (and state subdivision such as city) firearm regulations constitutionally impermissible as infringing upon the right to keep and bear arms in violation of the Fourteenth Amendment? My answer to this is: we don’t know yet. They may be in violation of that amendment, yes. They may not be. Some may be, some may not be. But the Supreme Court has not said they are, and I’m not aware of any decision by a lower federal court that has said they are or are not. Thus, we simply don’t know.

Now, perhaps you think that something is not in violation of the Constitution until the Supreme Court says it is. This is not true. The Supreme Court may be the arbiter of a dispute on such a question, but something that violates the Constitution violates it even if the Court hasn’t given us an answer yet. So, in answer to the question, are firearm bans passed by states and state subdivisions constitutional, I would have to say simply, we don’t know.

Now the related question you ask is, are such bans in force at present. The answer to that is that any act of a state is in force until overturned by a court of competent jurisdiction, or until the state itself ends enforcement. But that doesn’t answer the constitutional question. And at least one jurisdiction I have read about has already suspended its enforcement of a firearm statute as a result of the decision in Heller.

106

[QUOTE=DSYoungEsq]
This is manifestly not true. One can simply look at what happened to the previous doctrine of “substantive due process”

[/QUOTE]

What is manifestly untrue, where I said so far as I know. That’s not exactly me putting forth hard facts.

[QUOTE=DSYoungEsq]

<sigh> They would NEVER be banned by the Second Amendment, as that applies only to the federal government! What part of this simple concept is beyond comprehension??
[/QUOTE]

You can’t even understand simple questions.

But your post shows that, for whatever reason your having comprehension issues. My very first post, and every subsequent post have said that the 2nd amendment only applies to the Federall governement currently, and somewhow me stating this means I don’t understand.

You guys just playing with the new guy, or do you really lack the understanding of what I have written so many times so far.
I didn’t ask if they we’re constitutional, because I have stated it has not been decided yet, as such the 2nd has not been incorporated yet, the crux of my argument. You keep muddying the issue.

Let me ask. What part of my original statement do you disagree with.

Only things I have put forth to date.

-The 2nd, unlike the 1st has not been incorporated yet.-

-The heller case has not changed that.-

You seem ot have a problem with my positions by applying straw man arguemnts. THe above are the only thesis I have put forward. Where are they wrong.

107

[QUOTE=DSYoungEsq]
<sigh> They would NEVER be banned by the Second Amendment, as that applies only to the federal government! What part of this simple concept is beyond comprehension??

[/QUOTE]

ANd PS, this makes the same arguement against Cecil’s statement that I origianlly made.

108

If five people tell you you’re drunk – go lie down.

SidV – your posts are poorly organized, poorly spelled, and your ability to understand these issues is not coming across well at all.

109

Does that fall under the insult caveat, the first part, not the second.

Spelling is an issue due to dyslexia, and the fact that I’m used to editing after posting, which I cannot do here yet. You’ll note some have been pre-edited.

and I would say the poor organization comes from responding to poorly organized reply’s, with irrelevant points and straw men arguments, to my first. And I would make the same claims that those responding to me are not showing their ability to understand my first, simply put post, as they continue to say the same thing I am saying, while at the same time saying I am wrong. You can imagine the frustration level with that.

I also don’t fall to the majority rules argument, that is a false and useless argument. Nothing says the majority is correct. It’s just as easy for 5 to be wrong, and 1 to be right as 5 to be right and 1 to be wrong. More importantly I haven’t seen anyone put forth any evidence that my few simple, original points are incorrect. Cecil’s meaning in his original article is debatable and there is no direct evidence. The incorporation issue is explicit, and plenty of sources, some of which I have posted.

There have been, to me, plenty of arguments put forward here, in rebuttal to me, that make no sense, for instance the context issue, where the context simply supports the conclusion, doesn’t change the conclusion.

Sorry, I respect your longevity here and your opinion is marked down, but particularly when you start with an insult do you really expect someone to take your comment to heart.

110

[QUOTE=SidV]
Does that fall under the insult caveat, the first part, not the second.

Spelling is an issue due to dyslexia, and the fact that I’m used to editing after posting, which I cannot do here yet. You’ll note some have been pre-edited.

and I would say the poor organization comes from responding to poorly organized reply’s, with irrelevant points and straw men arguments, to my first. And I would make the same claims that those responding to me are not showing their ability to understand my first, simply put post, as they continue to say the same thing I am saying, while at the same time saying I am wrong. You can imagine the frustration level with that.

I also don’t fall to the majority rules argument, that is a false and useless argument. Nothing says the majority is correct. It’s just as easy for 5 to be wrong, and 1 to be right as 5 to be right and 1 to be wrong. More importantly I haven’t seen anyone put forth any evidence that my few simple, original points are incorrect. Cecil’s meaning in his original article is debatable and there is no direct evidence. The incorporation issue is explicit, and plenty of sources, some of which I have posted.

There have been, to me, plenty of arguments put forward here, in rebuttal to me, that make no sense, for instance the context issue, where the context simply supports the conclusion, doesn’t change the conclusion.

Sorry, I respect your longevity here and your opinion is marked down, but particularly when you start with an insult do you really expect someone to take your comment to heart.
[/QUOTE]

My comment was not meant to be insulting – it was simply a recognition that, analogous to a man that’s impaired by alcohol, sometimes your own perceptions of your presentation and ability may not be in line with how others perceive you.

Since this is a message board, the sine qua non of posting success is the ability to communicate effectively with your readers. You may insist that your points are lucid, cogent, and compelling – but if the reading audience finds them impenetrable, then you haven’t succeeded.

111

This is not the first time I’ve made these arguments, and not my first message board, spelling aside, I understand that can be an issue and make the attempt.

These are not the first 5 people I have had this discussion with and all of the others, one coincidentally a lawyer in the DC area, who I’ve explained this issue to, and they’ve understood just fine.

Sorry, I can’t sign up for your argument about it full blame being levied on the author, me in this case. I believe it’s a valid point, but other evidence on my end shows me differently. I grant you that oftentimes it can be the fault of the author, but conversely it can also be the fault of the reader regardless of how eloquent (and I make no claims that my posts here are the epitome of eloquence) the author is, sometimes the reader can not “get it”, oftentimes willfully, which I believe to be the case here, from my own perspective of course.

Understand that I know I’m a Noob here, I have no beliefs that I expect to come in here and expect everyone to make my word as gospel. I did not come in here with the thought of any long term presence, (and I still don’t), if it weren’t for, to me, the ludicrous of the claims, and the invective aimed towards me, likely you would have never seen a second post. However, I have not seen healthy skepticism here, I see claims of being incorrect with poor arguments and a complete lack of any substantiation to those claims. As I said I don’t disagree with your claims of poor structure, it’s hard when what your replying to has poor structure.

You’ll note that our brief interlude, besides being much clearer, is also more civil. You’ll note that one party is the same and un-changed.

112

[QUOTE=SidV]
Only things I have put forth to date.

-The 2nd, unlike the 1st has not been incorporated yet.-
[/quote]
Amendments aren’t incorporated. This is your first mistake, the one I’ve been trying to correct now for multiple posts. The First Amendment is not incorporated, nor is the Fourth, nor the Fifth, nor the Sixth.

Rights, however, may be incorporated into the meaning of “liberty.” Those rights may be the same rights protected from federal intrusion by various of the provisions of the Bill of Rights. Thus, the right of free speech is incorporated in the meaning of “liberty” in the 14th Amendment. The First Amendment is NOT incorporated, but the right it protects is.

Understand this? Amendments: not incorporated. Rights: can be incorporated.

Is the right to keep and bear arms incorporated in the meaning of “liberty”? We don’t KNOW.

Why? Well, because the courts haven’t been asked if it is or not. Until they rule, we can’t be certain if it is or it isn’t. Cecil seems to think it is likely it will be held to be incorporated, because after all, most all its brethren rights have been held to be incorporated. You said Cecil was wrong for saying this, because you somehow misread what Cecil was saying to mean that the Second Amendment was incorporated, though it is manifest that you don’t understand what it means to be “incorporated,” and you don’t understand that Amendments can’t be incorporated. Cecil does understand these things; hence his statement did not assert that the right to keep and bear arms was incorporated in the meaning of “liberty”, only that it seems likely it is.

Correct. Heller did not address whether or not states can infringe the right to keep and bear arms without violating the due process clause of the 14th Amendment.

113

Sorry, your wrong. There is plenty of information on incorporation. There has been plenty of argument that the 14th does incorporate all of the bill of rights, and I agree, but the reality is that the courts have not agreed. You and I can have our opinions, but sadly that doesn’t make it law. The courts decide that, and they have decided to selectively incorporate the amendments.

And when the legal scholars talk about it, they talk about incorporating the bill of rights, which would be the first 10 amendments, and the specifically call out each amendment during the discussion, so I have to say your assertation is incorrect. Also your making a semantic argument, since the Bill of rights spells out certain liberties, it is perfectly fine to discuss incorporating a liberty by referring to and referencing the individual amendments within the Bill of Rights that enumerates that liberty.
Not below they are discussing the individual amendments

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=229228

http://www.usconstitution.net/consttop_bor.html

[Quote=USCOnsititutiononline]

The “Due Process Clause” has been interpreted as applying the Bill of Rights, which lists the rights (or privileges and immunities) of the citizens, to the states. Known as “incorporation,” the application of the Bill to the states did not come all at once, nor is incorporation complete. Even today, there are some parts of the Bill which have not been incorporated.
[/quote]

http://www.smccd.net/accounts/kennedy/210/les5am.htm

114

“Not below” should be “note below”

115

[QUOTE=glee]
Wow. This is how you debate?

Tbrown posted ‘In a country of supposedly “free” people, if you are not allowed to have weapons with which to defend yourselves or your loved ones, then you will always be the subject of any criminal, tyrant, or other individual looking to usurp your rights and belongings.’

Since we here in the Uk don’t have any guns for self-defence (including the regular police), and yet we are not constantly faced by armed criminals, tyrants or individuals seizing our rights and belongings, this shows Tbrown was wrong.

Yes, there is some crime here in the UK. (We have more mobile phones stolen here than in the US.)
However we have a smaller murder rate and no school shootings. None ever.
It is therefore hard to see how the millions of guns US citizens have for self-defence is a policy that works.
[/QUOTE]

A friend wrote an article on this, which I can try to dig up, and the violent crime rate in the UK (not the murder rate) I believe is higher than that of the US.

I accept the murder rate in the US is horribly high, and needs to come down. What a straight rate does not tell you is who is affected by that crime. I can tell you that I felt much more threatened walking around England at night when I lived there (until the mid-90’s, in Oxford) or when I return home now to visit (usually London) than I have done in Chicago, Philly, Nashville or now Alexandria/downtown DC. Violent crime in the US seems to be much more localized in areas which I don’t spend time in. That’s not to downplay its relevance, but it does effect the impact of said crime on me, and on many others.

Moreover, a simplistic UK-US comparison just doesn’t work. If guns were criminalized in the US, it isn’t like they would cease to exist. The large numbers of guns in criminal hands would remain there,a nd that is why the argument that law abiding citizens being disarmed would leave them unprotected is more applicable in the US, with such a large number of guns in circulation, than the UK where criminals are less likely to be packing heat (though seemingly more and more likely each year).

116

SidB, the fact that the rights protected by an amendment are incorporated into the meaning of “liberty” does not mean the Amendment is APPLIED to the states. This was the initial statement you made that was incorrect. Further, your citation to the U. S. Constitution Online does not support your point. Applying the “Bill of Rights” is not the same thing as applying the amendments; rather, it is selective incorporation of the rights guaranteed therein.

To understand that this is true, I ask you a simple question:

Does the Fifth Amendment apply to the states?

You cannot answer this question “yes,” because it does not apply to them. You can’t even answer it “yes,” intending this as shorthand for asserting that the rights therein are incorporated into the meaning of liberty in the 14th Amendment, because at least one of the rights contained in the 5th Amendment is specifically NOT incorporated (grand jury).

You may think this a semantic argument, but it is anything but. It is important in addressing the very question you have been positing to properly understand what is meant by “selective incorporation.” The correct answer to your questions about the Second Amendment depends upon knowing what is really happening.

I have offered you citation to Constitutional Law text, I have referenced the actual language of the Supreme Court in cases involving incorporation, I have pointed out the actual language of the First and Second Amendments (which actually limits them to the federal government on their face). I have done all I can to properly educate you on this aspect of constitutional law. You choose instead to misapply a philosophy you clearly do not understand, and apparently do not wish to properly comprehend. I am done, therefore, trying to educate you further. If you wish to continue to in your ignorance, by all means, proceed. Fortunately, the justices of the Supreme Court do understand.

117

All covered in the citations (links) I posted, in particular the 5th and the grand jury.

So I disagree with your statement, as do others, including Mr. Gura and Mr. Neily who I received my original information on this issue from, and whom I’m sure are well versed in this issue, and whom I have greater respect for, and confidence in, having been closer to the issue than you or I.

I am also well aware of the 14th amendment issue.

As to your argument of the word “applied” it’s semantics, suffice to say the word is used by many in precisely this context. You may not like it by I think it is apt in this context.

You may disagree irrelevant to me, but you still have not shown any rebuttal, and if it is the word “applied” your only problem, as I say, that’s just semantics. With 28.5 million hits searching google for the phrase “amendment applying to states” amendment applying to states - Google Search I hardly think my usage is outside of the norm. The term “apply” or “Applies” is used often in discussions of this issue.

And I’m sorry sir, if you disagree with apply, you can cite whatever you want, I saw no substantiation in what citations you gave and I reviewed, in fact I saw little relevance, you continue to argue against things different from what I have said, so be it. Carry on.

118

[QUOTE=DSYoungEsq]

Does the Fifth Amendment apply to the states?

You cannot answer this question “yes,” because it does not apply to them.
[/QUOTE]

No, the answer is that it has been partially incorporated, some of the rights detailed in the 5th have been incorporated, some have not.

The right to indictment by a grand Jury: Has not been incorporated.

The Protection from double Jeopardy: has been incorporated

Privilege against self-incrimination: has been been incorporated.

Protection against the taking of private property without justification: has been incorporated

The result it has been partially incorporated, and this is how I see legal scholars discussing it, using the same wording I use, so I see your position as incorrect.

Or comparison is bad as well. The 2nd enumerates only one right, while the 5th enumerated multiple rights. As such the 2nd could never be partially incorporated, it either has been, or it has not been.
http://legal-dictionary.thefreedictionary.com/Incorporation+Doctrine

Please not of course the usage of the word apply and applied in the above statements.

119

My “e” must not be working well. Again “Please not” = “Pleae note”

And for verification twice the “e” did not come up again.

120

“S”'s are a close second, too.