I would enjoy reading your explanation of the impetus for the 9th Amendment and the principle it conveys.
An even more interesting read would be you providing an examination / explanation of the various Federalist objections to adding a bill of rights to the Constitution.
IOW, I don’t disagree that “in a court of law” a positive appeal to a specific “recognized right” is what the court wants to hear . . .
I would argue that such a condition is emblematic of the destruction of the Constitution’s fundamental principles.
DId you miss where SCOTUS recognized the right to bear arms and that of self defense as pre-existing the constitution? It has been definitively decided as a matter of law. Pretending that we need to know where the right comes from or else it can’t exist is rather silly in light of the specific recognition of the pre-existing right in Heller.
Your posts make it seem like you haven’t read Heller. Have you? If you are not ignorant of the opinion what is your rationale for intentionally distorting the unambiguous language from it?
The way you say that leaves one in doubt as to whether you mean it as a good thing or a bad.
Fun fact: judicial precedent extends well beyond the Constitution…
Insurrection might be an “original right” but it is not a constitutional right and has nothing to do with the 2nd Amendment.
This is not true. The 2nd amendment could be repealed via the proscribed process and the United States would continue. I would see this as a negative of course, but it’s hyperbolic to insist our form of government would fall without it. Fuck, there was no right to arms in CA before Heller. You could argue that CA was not a functioning government, but that wont get that far.
What does this mean? SCOTUS has placed many conditions on the 2nd amendment. Are you saying their actions are illegitimate? Can you define how you are using that term because as it stands the statement makes no sense.
Where rights come from is a very important issue. Do they come from God? From tradition? From the will of the people? From acts of legislature?
You seem to have dismissed legislation but I think you might wish to rethink that. Consider this: suppose a majority of the people wanted to ban a type of firearm somewhere in the United States. If you’re arguing that rights don’t derive from legislation then that’s a strong argument that they should be allowed to go ahead - an act of legislation like the Second Amendment shouldn’t override the will of the majority.
Yes, original, fundamental rights exist without reference to the Constitution.
Interesting statement. You have one word correct, “nothing” . . .
Nothing is created, given, granted or established by the 2nd Amendment and nothing is reliant on the 2nd Amendment to exist.
The 2nd Amendment only “does” one thing, it redundantly forbids the federal government to exercise powers never granted to it.
Do you feel state or local governments have the authority to ban firearms?
Of course it is. To attempt to disarm the citizenry would violate the foundational principles and violate the Constitution. Did you read #155?
[INDENT]
[/INDENT][/INDENT]
The mass of citizens capable of bearing arms are the reserve militia of the US and the states and that because of that interdependence, neither government can disarm the citizens, compromising the security of the other. SCOTUS said that this double ended prohibition exists, “even laying the 2nd Amendment out of view” which means that prohibition exists in the fundamental principles of the Constitution, established before the pen was put to paper writing the Constitution.
Presser explains that the prohibition on the states disarming the mass of armed citizens exists on two planes; in the general powers AND the prerogative of the federal government. The Constitution promises to the states to forever provide a Republican form of government (Art IV, §4). Included in that promise are inferred powers to enforce that promise and maintain that political system, even by act of force against the states. No state can be permitted to act in an *un-*republican fashion such as "prohibit[ing] the people from keeping and bearing arms".
That wouldn’t do anything because nothing is created or established by the 2nd Amendment. The right to arms exists without reference to the 2ndA (again, "even laying the Amendment out of view) and is not in any manner dependent upon the Constitution for its existence.
Such an action would be a critical and fatal action for government to undertake though; it would threaten the entire compact as the ratification of the Constitution was conditioned upon the addition of those provisions (including the 2nd). Repealing the 2nd would be the ultimate ex post facto action.
And it is ignorant to believe the republic would continue without it.
California, like most states call out the rights of the people before a single power is conferred. Since powers are limited and rights are retained and held out of the reach of government, a “right” exists even if not expressly called out.
California’s right to arms experience has been different . . .
Since California doesn’t have a right to arms provision it never developed a sophisticated jurisprudence examining the right to arms under its constitution. California instead just lazily relied on the collective right holdings of the federal courts, begun in 1942. The adherence to that mutation is what has stolen the right to arms from California citizens and yes, Heller invalidated those mutations.
I’m talking about inventing a condition / qualification for the exercise of the right from a simple reading of the Amendment. The “militia right” is a form of that, saying that the right is only protected when one is using the gun in the context of militia service.
Like what?
But for SCOTUS there is no need to make any determination on the origin of original, fundamental rights. All SCOTUS need consider is the the government (including the Court) is bound by the principles of the Constitution to treat those rights as inherent in the person.
Some rights are products of the compact, they only exist because the compact exists and are recognized as necessary for the equatable operation of government (e.g., voting, redress, search and seizure, warrants, jury trial, grand jury, cruel and unusual punishments).
And again, the right isn’t what can be squeezed or distilled from the 2nd Amendment, the right is the silence of the body of the Constitution allowing government to act in any manner against the right to arms of the citizen (even at the behest of a majority).
That is the most cherished quality of a Constitutional Republic, the will of the majority is restrained and repelled.
Not anymore for those arms that meet 2nd Amendment protection criteria because McDonald v. Chicago, 561 U.S. 3025 (2010) enforced the 2nd Amendment upon the states.
Unusual argument. Are you saying that people had a right to own firearms before the Bill of Rights was enacted and that this right would exist even if the Second Amendment had not been enacted? Do people in other countries have this fundamental right - like say Japan, where private ownership of firearms is generally prohibited?
Yes, exactly that.
That principle of our Constitution was one of the primary Federalist arguments against adding a bill of rights to the Constitution:
[INDENT][INDENT]"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? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given . . . "
Federalist 84 (paragraph break added)[/INDENT][/INDENT]
The Federalist fears about misconstruction facilitating usurpation, are evident in the modern left’s treatment of the 2nd Amendment.
Well, the general philosophy of inherent rights which are retained by the people, reserved by them because they were held out from their conferring of power to government, is a uniquely Constitution of the USA doctrine.
Now you are getting into the **Lockean social contract theories of what constitutes a legitimate government **.
That people who live under other forms of governance do not enjoy the same rights (or any rights) should not be surprising.
What do you do if you claim a right exists and others say “Bullshit, there is no such right”?
Gun rights are controversial in every country. They are more controversial here because more people get shot to death than in any other highly Westernized country.* The body count naturally makes guns a bigger issue. If our high rate of gun ownership actually was associated with few people getting shot, it still would be controversial for us to be such an international outlier in our gun laws, but less so.
When you have 41 times the gun death rate in your nation compared to that of the mother country (10.3/100,000 in the US, 0.25/100,000 in the UK), guns are going to be a big issue.
- The statistics-keeping nations with a higher firearm death rate than the US are 9 Latin Americas countries, plus South Africa and Swaziland:
It depends on the sense I get from them of what the origin of the statement is.
It usually ends up being sourced from either profound ignorance or one’s dutiful service promoting a political / social agenda hostile to Constitutional principles.
Ignorance is addressed with information and laying out how the system was designed to function. Problem is, most ignorant people are incapable of understanding the argument, unable to comprehend philosophical concepts or unwilling to wade into the legal cesspool .
The political / social agenda people are more difficult because whatever is not party doctrine / dogma is dismissed out of hand.
Out of that diverse mob, two groups stand in my eyes as the most egregious and despicable;
First would be social / cultural conservatives (AKA the "religious right) who abandon constitutional principles in their jihad against abortion and LGBT rights and condemnation of other actions of people they find to be against the rule of God and then demand government correct these ills of society
Second would be those who embrace the leftist (social/ economic justice) / statist / authoritarian political models (invented in the early 20th Century) and argue that those principles are either represented in the US Constitution or can be folded into the actions of government and have the government remain “constitutional”.
So, like I said it depends.
My reply could be as simple as THIS . . .
Gun control is always rooted in political control. It might be premised on crime control to garner public support from the ignorant masses, but it is never about crime control when the policy makers sit down and craft the measures to be considered by the legislature.
And your apparent belief that the body count is on the march, higher and higher and higher and higher is part of the ignorance that emboldens the politically motivated to call for more controls on you.
But as 10’s of millions of people were added and 10’s of millions of guns wer added, gun homicides have fallen substantially.
In 1990, 16,218 people out of a population of 249,464,396 were murdered with a gun.
In 2010, 8,775 people out of a population of 308,745,538 were murdered with a gun.
21 years + 60,000,000 people + at least 80,000,000 guns = 7743 FEWER ANNUAL HOMICIDES?
The least effective argument to present to a gun rights supporter is to say that Europeans consider us an outlier or that they don’t approve of the rights we possess.
The UK’s experience enacting gun control as crime control is very recent and not too effective. The vast majority of the UK’s gun control has been in force for centuries and was enacted to exert political control over certain classes and peoples.
That a subjugated, submissive culture that has been under the thumb for so long, doesn’t use guns in crime is not really that noteworthy.
Today though, the ordinary “traditional” British citizen isn’t driving the crime or their increasing gun crime. Like us, their gun crime is driven by an underclass of people who are not effectively handled by law enforcement.
And when you examine the geography of the USA’s gun crime you see that most gun homicides occur close to cities and the rates of those bloody “islands” in a vast sea of calm, are equal to or far exceed the worst violent hellholes you can find from around the world.
http://cdn.theatlanticcities.com/img/upload/2013/01/18/homicide_metro_country%20(2)web.jpg
Almost everyone is hostile to the principle that the right to keep and bear arms cannot be infringed. Except for a few raze-the-prisons-to-the-ground anarchists, all second amendment supporters violate its principles by reading into it limits – whether for small children, the mentally ill, or nuclear arms – that just aren’t there. Maybe the founders meant to limit the right to non-criminals, and to the sane, and to small arms, but, guess what? They didn’t. So I can’t take this quasi-religious attitude towards the defective-on-it’s-face second amendment too seriously.
The US Constitution has an extremely low number of words:
That shortness is not a feature. It’s a defect. The US Constitution is too short to include qualifications necessary for the principles to make sense. This makes it impossible for the Supreme Court to call those John Roberts balls and strikes. Instead they are forced to legislate.
I can see serious arguments for and against infringing the right of the mentally ill to gun ownership. The mentally ill are stigmatized enough. But we shouldn’t replace that kind of serious discussion by putting the existing legal formulation up on a quasi-religious pedestal where everyone who disagrees with you is a violator of sacred principles.