About that second amendment.

[Gramps]

I really doubt anyone even knows what it stands for any longer. It's been raped and violated so many times by pressure groups who want it to support their views. If all of the rulings handed down by various courts were laid end to end they'e probably reach the moon.

It has evolved into one of those "interpretation" deals simply because of technological creation. The law was conceived during an era of muzzle loader, single shot long guns so if one interprets it to mean weapons of the age then we would be free to own and keep muzzle loaders to their heart's content but not modern rapid fire weapons. If you choose to interpet it to mean all weapons then everyone should be able to have their own atomic or nuclear bombs. Now, which interpretation should really be the basis for such a decision?

Gramps

 

[BrianDamage]

I really doubt anyone even knows what it stands for any longer. It's been raped and violated so many times by pressure groups who want it to support their views. If all of the rulings handed down by various courts were laid end to end they'e probably reach the moon.

It has evolved into one of those "interpretation" deals simply because of technological creation. The law was conceived during an era of muzzle loader, single shot long guns so if one interprets it to mean weapons of the age then we would be free to own and keep muzzle loaders to their heart's content but not modern rapid fire weapons. If you choose to interpet it to mean all weapons then everyone should be able to have their own atomic or nuclear bombs. Now, which interpretation should really be the basis for such a decision?

Gramps

Private ownership of nuclear weapons may be possible already. After all, the government buys the weapons from Westinghouse, Lockheed Martin, and McDonnell Douglas Corp. currently. God only knows how many regulatory hoops you'd have to jump through to get a license for a nuke.

 

[Abatis]

I really doubt anyone even knows what it stands for any longer.

Knowing what it doesn't "stand for" is vital to knowing what it does "stand for". Most important thing to understand that it doesn't stand for is giving, granting, creating or otherwise establishing "the right of the people to keep and bear arms".

It's been raped and violated so many times by pressure groups who want it to support their views.

Well, the leading mutation was beheaded in 2008 when SCOTUS re-re-re-affirmed what the right to arms is and the action of the 2nd Amendment recognizing and securing "it".

If all of the rulings handed down by various courts were laid end to end they'e probably reach the moon.

Actually, the 2nd Amendment is nearly the least ruled on Amendment (after the 3rd Amendment). Federally, the judicial record is pretty short and not complicated. It is an interesting study if only to witness how things can go off the constitutional rails as gun decisions did in 1942 in the lower federal courts.

It has evolved into one of those "interpretation" deals simply because of technological creation. The law was conceived during an era of muzzle loader, single shot long guns so if one interprets it to mean weapons of the age then we would be free to own and keep muzzle loaders to their heart's content but not modern rapid fire weapons.

Well, the first lesson in "interpretation" is learning how to differentiate between the right to arms and the 2nd Amendment . . . they are two separate and distinct things.

If you choose to interpet it to mean all weapons then everyone should be able to have their own atomic or nuclear bombs.

No

Now, which interpretation should really be the basis for such a decision?

None. It is not a 2nd Amendment issue, no more than the 'right" to print your own currency can be interpreted to exist because of the 1st Amendment. One must always filter any question such as this through the co-mingled principles of conferred powers / retained rights.

We the People can not claim as a right something that we have surrendered (warmaking powers, support and providing for the armed forces, i.e., the acquisition, maintenance and use of the weapons of open / indiscriminate warfare).

Of course, on the other hand, the government can not claim as a power something We the People have never conferred to government (in this case, the right of the private citizen to keep and bear his personal arms).

The 2nd Amendment is redundant . . . All it really 'does' is forbid the government the exercise of powers that were never granted to it. Read Federalist 84 for an explanation of this argument (against adding a bill of rights).

We don't possess the right to arms because of any particular interpretation of the 2nd Amendment.

We possess the right to arms because no power was ever granted to government to impact in any manner the personal arms of the private citizen.

 

[oicu812]

Knowing what it doesn't "stand for" is vital to knowing what it does "stand for". Most important thing to understand that it doesn't stand for is giving, granting, creating or otherwise establishing "the right of the people to keep and bear arms".



Well, the leading mutation was beheaded in 2008 when SCOTUS re-re-re-affirmed what the right to arms is and the action of the 2nd Amendment recognizing and securing "it".



Actually, the 2nd Amendment is nearly the least ruled on Amendment (after the 3rd Amendment). Federally, the judicial record is pretty short and not complicated. It is an interesting study if only to witness how things can go off the constitutional rails as gun decisions did in 1942 in the lower federal courts.



Well, the first lesson in "interpretation" is learning how to differentiate between the right to arms and the 2nd Amendment . . . they are two separate and distinct things.



No



None. It is not a 2nd Amendment issue, no more than the 'right" to print your own currency can be interpreted to exist because of the 1st Amendment. One must always filter any question such as this through the co-mingled principles of conferred powers / retained rights.

We the People can not claim as a right something that we have surrendered (warmaking powers, support and providing for the armed forces, i.e., the acquisition, maintenance and use of the weapons of open / indiscriminate warfare).

Of course, on the other hand, the government can not claim as a power something We the People have never conferred to government (in this case, the right of the private citizen to keep and bear his personal arms).

The 2nd Amendment is redundant . . . All it really 'does' is forbid the government the exercise of powers that were never granted to it. Read Federalist 84 for an explanation of this argument (against adding a bill of rights).

We don't possess the right to arms because of any particular interpretation of the 2nd Amendment.

We possess the right to arms because no power was ever granted to government to impact in any manner the personal arms of the private citizen.

i am always amazed that people who claim to know something never bother to research the very things they claim to know...the ingrained ignorance is mind boggeling..


indeed,,,the federalist papers explain the very ideal the left is continually missing...the 2nd does not grant anything...it re-affirms a "right" never given to the govt. one that existed BEFORE the govt. was formed...and shall not be infringed....

 

[Abatis]

the 2nd does not grant anything...it re-affirms a "right" never given to the govt. one that existed BEFORE the govt. was formed...and shall not be infringed....

The most ridiculous statements are when someone wants to "rewrite" the Amendment to make it more timely . . . It is as absurd as proposing we rewrite Newton's Law to alter gravity so injuries and deaths from falls can be averted.

Our rights might as well be forces of physics if we are discussing the powers of Congress to alter them.

The laws of men have no effect on forces that existed before and beyond their inception, establishment and exercise.

 

[gabriel]

I really doubt anyone even knows what it stands for any longer. It's been raped and violated so many times by pressure groups who want it to support their views. If all of the rulings handed down by various courts were laid end to end they'e probably reach the moon.

It has evolved into one of those "interpretation" deals simply because of technological creation. The law was conceived during an era of muzzle loader, single shot long guns so if one interprets it to mean weapons of the age then we would be free to own and keep muzzle loaders to their heart's content but not modern rapid fire weapons. If you choose to interpet it to mean all weapons then everyone should be able to have their own atomic or nuclear bombs. Now, which interpretation should really be the basis for such a decision?

Gramps

as n interested bystander, i vote for the atomic bombs.

 

[EatTheRich]

Really, the missing piece here is popular militias trained through the unions like the Cuban Committees for the Defense of the Revolution.

 

[trapdoor]

I really doubt anyone even knows what it stands for any longer. It's been raped and violated so many times by pressure groups who want it to support their views. If all of the rulings handed down by various courts were laid end to end they'e probably reach the moon.

It has evolved into one of those "interpretation" deals simply because of technological creation. The law was conceived during an era of muzzle loader, single shot long guns so if one interprets it to mean weapons of the age then we would be free to own and keep muzzle loaders to their heart's content but not modern rapid fire weapons. If you choose to interpet it to mean all weapons then everyone should be able to have their own atomic or nuclear bombs. Now, which interpretation should really be the basis for such a decision?

Gramps

There have been three rulings on the Second Amendment by the Supreme Court. They are styled U.S. v. Miller; District of Columbia v. Heller; and McDonald v. Chicago. In the first, the court held that certain weapons unsuitable for use by the militia (defined as unorganized members of the general public, not the National Guard), could be regulated by the federal government; the second found that the ownership of individual arms is an individual and not a collective right -- that there was no need to participate in an organized militia to exercise that right; the third found that states have only limited authority to regulate the individual right.

So there is no lengthy group of distortive cases regarding the Second Amendment.

The nukes argument is worn out, and nonsensical. Nukes are a special case even when owned by governments. If, however, you'd like to make the nuke argument as a reductio ad absurdem I will say, OK, I'd rather that my next door neighbor be allowed to have nukes than that the government have the right to take my other weapons away.

 

[degsme]

There have been three rulings on the Second Amendment by the Supreme Court. They are styled U.S. v. Miller; District of Columbia v. Heller; and McDonald v. Chicago. In the first, the court held that certain weapons unsuitable for use by the militia (defined as unorganized members of the general public, not the National Guard), could be regulated by the federal government; the second found that the ownership of individual arms is an individual and not a collective right -- that there was no need to participate in an organized militia to exercise that right; the third found that states have only limited authority to regulate the individual right.

So there is no lengthy group of distortive cases regarding the Second Amendment.

The nukes argument is worn out, and nonsensical. Nukes are a special case even when owned by governments. If, however, you'd like to make the nuke argument as a reductio ad absurdem I will say, OK, I'd rather that my next door neighbor be allowed to have nukes than that the government have the right to take my other weapons away.

First off, reductio ad absurdum is precisely what pro-gun advocates engage in so turn about is fair play.

Secondly Nukes are not the only issue. General "WMD" are. For example Zazi was arrested on conspiracy to build home-made explosives. So was Terry Nichols, So was Jose Padilla. And the NRA did not say "boo".

This, combined with Alito's comment in McDonald about how the "state militia" need based in a fear of an oppressive Foederal Army had cased to be an issue is very much a distortive 2nd Am case, made more confusing by the arbitrary EXCEPTION that both Hellerand McDonald carve out based on Miller

namely that "dangerous" or "unusual" arms (weapons) are NOT protected by the 2nd Amendment. And the definition of "dangerous" is hardly defined. And in fact both Scalia and Alito make up an implicit definition that fits their PERSONAL notions rather than one that is supported by empirical evidence.



Now why is this the case? Well because as the Nukes arguement points out - modern weaponry and societal density means that an unlimited access by the citizenry to "keep and bear arms" is basically suicidal. It empowers the least sane of us to have the ability to destroy society en masse on a whim.

And yet the 18th Century equivilent of WMD - the MOST POWERFUL weapons in the Foederal aresenal, capable of destroying whole towns in a matter of hours - not only were permitted to be owned by individuals at least through 1860, But in the War of 1812; private citizens had ten times as many of these weapons systems as the Foederal government

So this leaves "originalists" like Scalia and Alito scrabbling for any excuse so that they can justify the arrest of a Jose Padilla without alienating the gun fetishists like Trapdoor and the rest of the NRA (I use "fetishist" in its talismanic form).

And hence we have the bastardized rulings like Heller and McDonald which apply to SOME ARMS, but not ALL Arms...

 

[degsme]

The most ridiculous statements are when someone wants to "rewrite" the Amendment to make it more timely . . . It is as absurd as proposing we rewrite Newton's Law to alter gravity so injuries and deaths from falls can be averted.
o o o
Well, the leading mutation was beheaded in 2008 when SCOTUS re-re-re-affirmed what the right to arms is and the action of the 2nd Amendment recognizing and securing "it".

Um no. the 2008 decision did not reaffirm the "right to arms".

Under the 2008 decision of McDonald - not only is the original historic "state's militia" motivation abandoned (you should actually read McDonald) http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf but in the process, Judge Alito underscored the same capricious and arbitrary rule that Scalia put forth in Heller http://www.law.cornell.edu/supct/html/07-290.ZO.html

Namely that "dangerous" and "unusual" arms were not protected Well of course this begs the question as to what is and is not a "dangerous arm". The notion that a handgun is not dangerous is preposterous based on the data, yet regularly asserted by gun fetishists and these two justices.

And yet the very ruling in McDonald - precisely because of the bastardized way that Alito and Scalia carved out the excpetions to allow the likes of Zazi and Padilla to be arrested - opens the door for a banning of ANY armament that can be shown to be "dangerous" - ie causing more harm than benefit. So these rulings hardly do what you think they do.

Read them carefully. And by carefully I don't mean "looking for evidence to support your claim" - but rather read them as though you were an hard core anti-gun advocate looking for ways to use the rulings to regulate gun ownership. You will find them far weaker than you think.

 

[trapdoor]

First off, reductio ad absurdum is precisely what pro-gun advocates engage in so turn about is fair play.

Very seldom, Degs, but let it be.

Secondly Nukes are not the only issue. General "WMD" are. For example Zazi was arrested on conspiracy to build home-made explosives. So was Terry Nichols, So was Jose Padilla. And the NRA did not say "boo".

Bomb building and WMD building is not illegal, it merely requires licensing, licensing that the courts have ruled is not an infringement on the 2nd Amendment right, any more than a parade permit is an infringement on the First Amendment right to peaceable assembly.

This, combined with Alito's comment in McDonald about how the "state militia" need based in a fear of an oppressive Foederal Army had cased to be an issue is very much a distortive 2nd Am case, made more confusing by the arbitrary EXCEPTION that both Hellerand McDonald carve out based on Miller

Alito didn't make any statement of that nature. He said the fear of the federal government denying a state militia had faded, not that the state militia no longer had a role or right of existence. You persistently distort the sentence by taking it out of context.

namely that "dangerous" or "unusual" arms (weapons) are NOT protected by the 2nd Amendment. And the definition of "dangerous" is hardly defined. And in fact both Scalia and Alito make up an implicit definition that fits their PERSONAL notions rather than one that is supported by empirical evidence.

Both decisions go a long way toward explaining what dangerous and unusual arms are, and what they aren't. They further INVITE FURTHER CHALLENGES to existing law to draw those lines. You don't like them simply because the decisions themselves say what gun owners have been saying ever since gun control became a hot-button issue in the 1960s -- the right to keep and bear arms is an individual right, not a collective one. (If it were a collective one, the National Guard is not a militia, but that's a different topic).

And yet the 18th Century equivilent of WMD - the MOST POWERFUL weapons in the Foederal aresenal, capable of destroying whole towns in a matter of hours - not only were permitted to be owned by individuals at least through 1860, But in the War of 1812; private citizens had ten times as many of these weapons systems as the Foederal government

As there were no 18th century arms that could destroy towns in a matter of hours, the entire statement is ridiculous on its face.

 

[JackDallas]

Silly ass

I really doubt anyone even knows what it stands for any longer. It's been raped and violated so many times by pressure groups who want it to support their views. If all of the rulings handed down by various courts were laid end to end they'e probably reach the moon.

It has evolved into one of those "interpretation" deals simply because of technological creation. The law was conceived during an era of muzzle loader, single shot long guns so if one interprets it to mean weapons of the age then we would be free to own and keep muzzle loaders to their heart's content but not modern rapid fire weapons. If you choose to interpet it to mean all weapons then everyone should be able to have their own atomic or nuclear bombs. Now, which interpretation should really be the basis for such a decision?

Gramps

 

[gabriel]

reported

 

[Abatis]

Um no. the 2008 decision did not reaffirm the "right to arms".

Well, Heller certainly returned the federal court opinion to prior SCOTUS opinion by invalidating the lower federal court perversions of Tot and Cases and their "collective right" / "militia right" / "state's right" inventions.

Under the 2008 decision of McDonald

McDonald was heard and decided in 2010. But please, . . . Continue . . .

not only is the original historic "state's militia" motivation abandoned

Uhhh, "original historic"??? And what precisely is being motivated?

(you should actually read McDonald)

I have many times but not once in the philosophical, historical and legal vacuum you have . . .

Judge Alito underscored the same capricious and arbitrary rule that Scalia put forth in Heller. . . Namely that "dangerous" and "unusual" arms were not protected Well of course this begs the question as to what is and is not a "dangerous arm". The notion that a handgun is not dangerous is preposterous based on the data, yet regularly asserted by gun fetishists and these two justices.

Can't see the forest because of the trees huh?

All roads lead to Aymette v State; that's where the Miller Court garnered its reasoning and it explains the use of the term "dangerous and unusual" as applied to arms and their scope of protection. Scalia and Alito continue with that reasoning and follow prior SCOTUS opinion . . .

Dangerous and unusual is not a stand alone criteria . . . It is what's left after the type of arm fails ALL the long-standing inclusion / protection tests.

They are, to refresh your memory:

• In common use at the time and/or
• are usually employed in civilized warfare and/or
• that constitute the ordinary military equipment and/or
• can be employed advantageously in the common defence of the citizens.

Failing ALL those tests, the arm could then be argued to be "dangerous and unusual" and the legislature could be said to possess the legitimate power to restrict that type of arm.

Here is the pertinent excerpt from Aymette, beginning on page 158, cited within Miller's famous "In the absence of any evidence" paragraph as, "Aymette v. State, 2 Humphreys (Tenn.) 154, 158".

"As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution.

A thousand inventions for inflicting death may be imagined, which might come under the appellation of an "arm" in the figurative (p.159)use of that term, and which could by no possibility be rendered effectual in war, or in the least degree aid in the common defence. Would it not be absurd to contend that a constitutional provision, securing to the citizens the means of their common defence, should be construed to extend to such weapons, although they manifestly would not contribute to that end, merely because, in the hands of an assassin, they might take away life?

The legislature, therefore, have a right to prohibit the wearing, or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence. The right to keep and bear arms for the common defence is a great political right. It respects the citizens on the one hand and the rulers on the other. And although this right must be inviolably preserved, yet, it does not follow that the legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed."
​

So these rulings hardly do what you think they do.

I am comfortable standing on my ground that Heller and McDonald can be effective vehicles to invalidate wide swaths of existing gun control and to defeat the enactment of proposed measures. Your position, that they render the right infirm is quite ridiculous and hopefully just chocked up to liberal wishful thinking on your part and not evidence of a profound separation from reality.

Read them carefully. And by carefully I don't mean "looking for evidence to support your claim" - but rather read them as though you were an hard core anti-gun advocate looking for ways to use the rulings to regulate gun ownership. You will find them far weaker than you think.

And I would suggest you read the 2nd Amendment in alignment with the principle endorsed many times by SCOTUS that the right to arms is not granted, given, created or established by the Amendment and is not in any manner dependent upon the 2nd Amendment for its existence.

Perhaps then you might stop the intellectually dishonest and constitutionally illegitimate practice of "interpreting" conditions, qualifications and restraints on the right to arms from words that the right does not rely on.

It certainly would allow a more legitimate reading of Heller and McDonald. LOL

 

[trapdoor]

Degs: You have now been taken to school on the 2nd Amendment and the surrounding court cases. The faculty hopes you enjoyed the class.

 

[degsme]

What happpened to my post??? I'll see if it is still sitting on my other machine but basically I agree it goes back to Aymette, but I disagree that Aymette requires that ALL the tests be met or that there is any hierarchy. The relevant quote being.

The legislature, therefore, have a right to prohibit the wearing, or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence.

Note the grammar here. The use of an "or" with a preceding comma indicates it is an elided set of basis, not a hierarchical or contingent one. Thus ANY "weapons dangerous to the peace and safety of the citizens" is regulatable.

In McDonald and Heller BOTH but more particularly and explicitly in the former Alito and Scalia basically make up out of whole gun fetishist cloth - the notion that handguns are not dangerous.

Now as to how to read the 2nd Amendment - Remember that States retained their incorporated rights at the time of ratification. And since Phillyand Boston both had gun control laws on the books at the time and afterwards, that were not challenged, and that militias stored their arms in common storage sheds, the notion that somehow there is a historic right to unfettered carriage of all manner of weapons in the public sphere is hardly based in a looking at it through "rights not granted".

And it is intellectually dishonest to pretend that guns are not dangerous to the "peace and safety of the citizens" or that Gun Control was alien to the ratifiying colonies.

 

[degsme]

No trap I have not. In fact his citations support my position.

 

[degsme]

Reductio ad absurdum is also known as "first principles". It has lead to everything from Quantum Mechanics to various medical development.

Bomb building and WMD building is not illegal, it merely requires licensing,

And Licensing is an infringement of the right to keep and bear that is unless you are in agreement that it is OK for the Federal Government to have a Licensing Requirement for ALL firearms that is not universally issued.

Both decisions go a long way toward explaining what dangerous and unusual arms are

No not really. Because they invoke no fact based analysis in defining what is dangerous That's their core weakness. Alito and Scalia make their claims up out of whole cloth.

As for 18th century arms - sure there were. Mortars/Bombards with incindiary shells did just that (bombs bursting in air).

 

[trapdoor]

And Licensing is an infringement of the right to keep and bear that is unless you are in agreement that it is OK for the Federal Government to have a Licensing Requirement for ALL firearms that is not universally issued.

No, Degs -- licensing has been determined not to be an infringement on a right -- as I pointed out by offering the licensing for a parade does not infringe on the right to free assembly. I believe the federal government COULD probably license all firearms -- but I think it would be unpopular and is politically unfeasible. Fully automatic weapons have been licensed in this way since the 1930s.

No not really. Because they invoke no fact based analysis in defining what is dangerous That's their core weakness. Alito and Scalia make their claims up out of whole cloth.

They don't have to -- as has been pointed out, that determination goes back to Aymette.

As for 18th century arms - sure there were. Mortars/Bombards with incindiary shells did just that (bombs bursting in air).

None of these had the power you claim for them, the power to level a city within a few hours. The British brought entire fleet equipped with such weapons to numerous cities, and leveled none of them -- Copenhagen, Baltimore, etc. -- in multiple hours of bombardments (in fact, some of these bombardments went on for days).

I'm sorry, but continually making this false claim, along with the false claim about Heller and militia, just makes you look like a boob. It doesn't further your argument at all.

 

[degsme]

All roads lead to Aymette v State; that's where the Miller Court garnered its reasoning and it explains the use of the term "dangerous and unusual" as applied to arms and their scope of protection. Scalia and Alito continue with that reasoning and follow prior SCOTUS opinion . . .

Dangerous and unusual is not a stand alone criteria . . . It is what's left after the type of arm fails ALL the long-standing inclusion / protection tests.

You are correct about the raod leading back to Aymette through Miller. But therein lies the rub Scalia and Alito (Yes McDonald comes in 2010) are part and parcel of that same fetishized reading. You do ccorrectly cite the relevant part of Aymette, but there is no "hierachy" of criteria. Nor do you have to fail ALL those tests to be a restrictable weapon:

The legislature, therefore, have a right to prohibit the wearing, or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence.​

Notice the commas in use.... They distinguish separate CATEGORIES of arms that can be regulated, not an aggregate of requirements that ALL must be met.

So what Scalia in Heller but more generally Alito in McDonald both did was to assert - WITHOUT EVIDENTIARY SUPPORT - that handguns are not "dangerous to the Peace and Safety of the Citizens". Well we know from almost all the non-cooked data, that this is not the case.

So what remains is for a jurisdiction to identify them to be dangerous arms (and the MD case wending its way up is somewhat predicated on that) and its done.

There is no question that Heller and McDonald HAVE invalidated wide swaths of existing gun control But they have done so based on fetishized logic.

BTW The Constitution grants to The Government "incorporated rights" as a principle - and since "gun control" was in existance in Philly and Boston at the time of ratification, it is hardly a case where the "right" to Keep and Bear Arms is clearly unrestricted. The intellectual dishonesty here is yours.

You are basically arguing a gun fetishism view without any desire to actually invoke the basis why the 2nd Amendment was put in place in the first place