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April 11, 2014, 10:57 AM | #1 | |
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Justice Stevens - bye bye to the 2nd as we know it.
http://www.washingtonpost.com/opinio...y.html?hpid=z2
The Justice basically says our interpretation of the 2nd is baloney. He echoes a point that I made - Scalia, the gun rights genius to some, really left open myriad ways to control guns. Sorry to some who claimed Scalia was a wily old bird laying the ground work for new pro gun decisions. He proposes a new 2nd that removes all gun rights: Quote:
I also think we cannot think that all the cases now brewing will lead to decisions that will produce a golden age of gun rights.
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April 11, 2014, 11:17 AM | #2 |
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Ok. So, a retired judge writes a book and advocates a number of fundimental changes to the basic workings of the country. Incl the above change to the wording of the 2nd
Im not seeing this as an event. All gun owners understand the thought process of a large portion of the politicians and judges. Nothing new here What is the actual legal process for actually changing the wording of the bill of rights? I cant imagine that being done without the masses agreeing Or could this be done with a sweep of the pen? |
April 11, 2014, 11:24 AM | #3 | |
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You should read it. (Not being a jerk, everyone should read it)
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April 11, 2014, 11:26 AM | #4 |
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There is a well defined mechanism for amending the Constitution. Civics class - anyone?
Is it likely - probably not. It is useful to see the thinking of court members. Remember that slim majorities can institute major changes. That's why it counts to see how present and past members view the issue. Recall that Justice Berger - a conservative thought the 2nd was baloney. We forget that many progun folks thought that Scotus cases were a terrible risk. We just made it this time.
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April 11, 2014, 11:55 AM | #5 | |
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I don't see the hysteria.
The militia has been defined as every able-bodied person, so we're all serving in the militia all the time anyways. From the Heller decision, quoting Miller: Quote:
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April 11, 2014, 11:57 AM | #6 |
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You don't see the hysteria because there isn't any. Geez - it's informational.
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April 11, 2014, 12:12 PM | #7 | |
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April 11, 2014, 12:25 PM | #8 |
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I agree with speedracer...
So then I just need to join my state/county/local/neighborhood militia, and then I get to have all the Class3 stuff I want because it's for duty... and we all know that the militia is always on duty, so I'd need to have instant access to it, not only in my home, but to carry it around with me at all times. Heck, we could all probably get the state/county/whatever to start paying for our ammo in order to train! |
April 11, 2014, 12:44 PM | #9 | ||
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April 11, 2014, 12:46 PM | #10 | |
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Only anyone too young, too old, too infirmed, too female need not apply?
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April 11, 2014, 01:00 PM | #11 |
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As near as I can tell it's not "all able-bodied men". 10 U.S. Code § 311 has an age limitation of 17-45, limit it to men who are, or have declared an intention to become a US citizen, and females who are citizens (but not specifically including those who have declared an intention to become one like the men) AND in the National Guard.
Apparently, a woman who has declared her intention to become a citizen, and joins the Guard as a permanent resident isn't in the Militia of the United States. While it's probably between hard and impossible to find such a person, I find the loophole entertaining. |
April 11, 2014, 01:03 PM | #12 | |
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Only if Congress determines that all of us who "qualify" running around between call-ups that never happen are currently "serving" in the militia. You did notice that bolded add-on right? He limited it to militia WHEN serving. |
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April 11, 2014, 03:30 PM | #13 |
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"Well regulated militia" could also mean members would have to store all their privately purchased firearms in the local National Guard armory, etc. So being a member of the militia means nothing when it comes to gun rights.
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April 11, 2014, 04:15 PM | #14 |
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I share Glenn's view of Scalia's decision in Heller. I'm not sure I agree with Glenn on the motive -- in fact, I don't know if Glenn expressed a motive. I sort of think that Scalia wrote his majority decision the way he did because he needed to keep Kennedy on the side of pro-2A. That said, the verbiage declaring all existing anti-gun laws a "presumptively legal" and then stating that the RKBA is subject to "reasonable" regulation (it does NOT say that in the 2A) did not do us, the 2A, or the RKBA any favors.
Thus, as a consequence of Scalia not being able to interpret "shall not be infringed" to mean "shall not be infringed," we are now stuck with "reasonable regulation" and years and years of court cases to determine what's "reasonable" and what's not. |
April 11, 2014, 04:42 PM | #15 |
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His amendment would simply lead to a new slogan: "A Militia of one".
Missouri would quickly make them legal.
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April 11, 2014, 05:00 PM | #16 |
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There were two problems in Heller. The first problem is that you needed to get five votes. I am not so sure that Justice Kennedy was the swing vote for that matter. In any case, you had to write an opinion that was as restrictive as that fifth Justice wanted it to be - or at least could be legitimately read that way (although it perhaps could be read other ways as well).
The second problem is that even with a well-planned attack, you are going to have 100 Frank Millers for every Dick Heller or Otis McDonald. Giving the lower courts an easy way to dispose of those Miller cases - a way that in fact encourages those lower courts to dispose of those cases offhandedly without doing a proper analysis of scrutiny isn't actually a bad thing in my view. We were always going to be stuck with years and years of court cases to determine reasonable regulation. The problem is, I think RKBA activists (I know I did) expected that when a good plaintiff and case did reach the appellate courts, they would listen to the arguments and actually apply intermediate scrutiny instead of continuing to pass the buck and rubber stamp the lower court. And except for a few cases so far, that hasn't happened a lot. Even where courts are pretending to apply intermediate scrutiny they are either finding it "outside the core right" and subject to rational basis or they are doing rational basis analysis and calling it "intermediate scrutiny." |
April 11, 2014, 05:45 PM | #17 |
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I worry more about the next supreme court judge to be nominated. So many of our rights we enjoy are only one vote away from being taken from us. It certainly does not help what the "honorable" Stevens has written, but the short cut to change is to go from 5-4 to 4-5. Before I get pounded, the "honorable" part was sarcasm.
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April 11, 2014, 06:50 PM | #18 |
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We aren't worried about former Justice Stevens. We just hope Ginsberg retires before Scalia.
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April 11, 2014, 06:55 PM | #19 | |
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April 11, 2014, 07:27 PM | #20 | ||||
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The statement of Miller is disgustingly misleading. Quote:
It's truly embarrassing that he couldn't come up with better propaganda than that. A bunch of whining ("nobody would have written Heller decades ago!"), mis-stating history, and an hollow call to amend the constitution.
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April 11, 2014, 07:28 PM | #21 | |||||
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OTOH, if you're on life support, then OK, you're out. Quote:
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April 11, 2014, 07:39 PM | #22 | |
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April 11, 2014, 07:46 PM | #23 | |||
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[EDIT]Wait ... my bad. I thought your comment was about the militia. Upon a second reading I guess you were applying the 2A to women. Sorry. I'm taking Remedial Reading 202 next semester. |
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April 11, 2014, 08:27 PM | #24 |
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I forget which one of the founders it was (and too lazy to look) but when asked "who are the militia" they answered "it is all the people, absent a few government officials".
I kind of like that one...
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April 11, 2014, 09:28 PM | #25 | |
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The point of Heller is that we got our foot in the door on one important issue: the 2A applies to individuals (sorry, Justice Stevens) and is independent of militia service. That'll be a hard one to reverse in the immediate future. That said, we need to be somewhat wary of future appointments that could whittle away the contours of the right from the edges in.
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