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February 8, 2016, 07:27 PM | #51 |
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I suspect the signatories of the constitution intended there to be no governmental authority over the possession or purpose of arms (just the use/consequences)...but with the clear understanding that it was impossible for a governing structure to remain disciplined & avoid infringing upon the right almost immediately.
It'd be like how human equality was a base principle underpinning the whole arrangement, yet the 2/3rds compromise for slave 'votes' was shoe-horned in before the document had even been signed. The RKBA, like all the other rights, is aspirational. The Bill of Rights has never been a guarantee (which is why so many founders opposed it playing at being one & did not want it included), but is instead a statement for us future generations to reflect back upon; are we abiding it? If not, we know we are straying from the principles supporting our entire governmental framework, and should work to correct ourselves. As we know, the RKBA is one of, if not the hardest, of the explicitly-enumerated rights for governing bodies to respect and stay clear from. Almost as difficult as the recognition of intrinsic human equality before the law (and for a lot of the same reasons, to be honest) TCB
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February 8, 2016, 07:49 PM | #52 |
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The 2/3 (it was a little different I think, but that doesn't really matter for this discussion) vote was slipped in so that the slave states could not count the slaves to give them more voting power than non slave states. Despite what the Farrikans etc claim, it was not to diminish the humanity of blacks but to ensure they were not used to increase votes in favor of slavery. The slave owner could determine the slaves' votes.
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February 8, 2016, 10:11 PM | #53 | |
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PA 1776 - XIII. That the people have a right to bear arms for the defence of themselves and the state; VT 1777 - XV. That the people have a right to bear arms for the defence of themselves and the State; MA 1780 - Art. XVII. The people have a right to keep and to bear arms for the common defence. NC 1776 - XVII. That the people have a right to bear arms, for the defence of the State; The state constitutions acknowledged a right to arms, but did not bar the states from adopting what we would call 'reasonable regulations' today. Indeed, Heller and McDonald examined a few of those early regulations. In contrast, the Second Amendment (at least as I read it) totally denies the federal government any power regarding the right to arms. Based on the historic record, the Founders appear to have been comfortable with the states retaining power related to the right to arms, but were emphatic ("shall not be infringed") about the federal government not being involved in any way. I did not mean to suggest that the Founders "didn't care if the states infringed the RKBA." Rather, I think the Founders believed that the people of the respective states were the ones who should make determinations for their states. |
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February 8, 2016, 10:38 PM | #54 | |
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February 8, 2016, 11:13 PM | #55 | ||
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February 8, 2016, 11:37 PM | #56 | ||||
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February 9, 2016, 12:01 AM | #57 |
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So can the court that this was sent back to just do some pretzel logic and claim that they are utilizing "Strict Scrutiny" to uphold the AWB and magazine capacity limitations? I mean a lot of the logic these courts use is asinine anyway regarding how they support gun control.
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February 9, 2016, 05:56 AM | #58 | |
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February 9, 2016, 08:56 AM | #59 | ||
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As we have seen, time and again, the lower courts have used Intermediate Scrutiny in name, but Rational Scrutiny in practice. I would expect the exact same: Strict Scrutiny in name, but Rational Scrutiny in practice. See Korematsu v. United States |
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February 25, 2016, 10:38 AM | #60 |
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Just a bit of an update.
On Thursday, Feb 18th, a petition for rehearing en banc was filed. The mandate was stayed the next day and a response to the petition was requested. |
March 5, 2016, 11:57 AM | #61 | |
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Filed yesterday, March 4th
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March 6, 2016, 06:31 PM | #62 | |
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If someone is willing to commit the crime of murder, the fear of punishment of the lesser crime of possessing a banned gun couldn't possibly be a deterrent. By nature, only the law abiding respect a ban. Those seeking to commit murder are not bound by law lest they not be murderers. If it is a question of access, I concede that fewer of a thing makes that thing less obtainable by the aggregate but perhaps not by those for whom the ban was intended. A ban does not prevent a targeted item from entering a restricted area but it DOES limit the consumer base of that item to those willing to break the law in order to obtain it.
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March 6, 2016, 08:04 PM | #63 | |
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To them it makes sense -- but that's because they have no idea how quickly a shooter with even moderate practice can change magazines. On top of that, I think I recall reading in connection with Sandy Hook that the police found partially expended magazines along the shooter's path. In other words, he was doing tactical reloads between classrooms in order to minimize his time lost for magazine changes while in a classroom and engaging targets. I periodically wonder if it would help us or hurt us to show them the video clip of Travis Tomasie doing a mag change ... Don't blink https://www.youtube.com/watch?v=Hgdq1FBYTUE https://www.youtube.com/watch?v=8d2VdaiIodo |
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March 7, 2016, 08:42 AM | #64 | |
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The way the justice system is now, someone who commits multiple crimes at once, frequently gets a "discount" to the penalty leveled on them by serving time for all of them at the same time (concurring sentences). So, a murder conviction of, say, 20 years, can effectively negate virtually all the other crimes committed around the time of the murder. So, even if the gun laws were enforced, the penalties would largely be levied against those who solely committed a gun crime (carry concealed without permit, etc) but did not commit any other crimes with the gun. |
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March 7, 2016, 08:50 AM | #65 | |
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March 16, 2016, 01:23 AM | #66 |
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"I periodically wonder if it would help us or hurt us to show them the video clip of Travis Tomasie doing a mag change ..."
Well, let me put it to you this way...Using the recent San Bernardino shooting as an excuse (because the rifles used were not configured with "bullet buttons" in compliance with current California law), two bills have been (re)introduced to ban the bullet button because this work-around for the California requirement of fixed magazines for AR/AK pattern rifles apparently allows shooters to reload too quickly. If (when) passed by the Legislature (and unless vetoed by Gov. Brown, which is quite possible), the proposed law will require opening the action to reload the fixed internal magazine. You will be able to keep your BB equipped rifle, but will be required to register it with the State DOJ as an "assault weapon", the effect of which is to prohibit all in-state transfers of that firearm. Another bill, finding this approach not good enough, proposes banning sales of ALL semiauto rifles and shotguns with detachable magazines. I do not know if there is a grandfather clause in this proposed law, but assume there must be. |
March 16, 2016, 10:00 AM | #67 |
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Don't assume that in new legislation. The folks analyzing the AWB of the past are quite aware that existing stocks of weapons and mags made it useless.
Confiscating all semis and mags has been proposed.
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March 17, 2016, 12:00 AM | #68 |
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"The Second Amendment was written as a clear prohibition against federal government interference in an area perceived to be the domain of the states."
I disagree. The first clause reads "A well regulated militia being necessary to the security of a free State," reflecting the prior disdain for a federal army, and recognizing that the individual States had the sovereign power to provide for their own defense." So your position is partially correct. However, the dominant clause reads: "the right of the people to keep and bear Arms, shall not be infringed." The important words here are "the people." The Constitution provides in its very first sentence: "We the People of the United States." Numerous provisions of the constitution distinguish between the States and the People (or people), recognizing their separate sovereignties. So when the Second Amendment refers to "the people," it is not referring to the rights of the States to form militias, but the individual rights of the individual citizens to keep and bear arms. [One might note that most militias of the day were armed with the rifles the militiamen brought with them. Without a right to keep and bear, these militiamen could hardly have done so.] All nine justices agreed that the Second guaranteed an individual right, disagreeing as to the scope of that right. |
March 17, 2016, 08:48 AM | #69 | ||||
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An individual right to serve a government controlled entity isn't an individual right in any substantive way. Only five of the justices on the Heller court endorsed an right of an individual to act as an individual.
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March 23, 2016, 04:54 PM | #70 |
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Caetano may have made it that much more difficult for CA4 to try to pull a fast one. Since this law is effectively a ban, it seems meaningless for them to argue over scrutiny when the ban shouldn't be upheld under any elevated scrutiny.
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February 21, 2017, 09:35 PM | #71 |
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En-banc decision of 4th Circuit:
http://www.ca4.uscourts.gov/Opinions.../141945A.P.pdf Summary: Semi-automatic weapons and standard capacity magazines not protected by the Second Amendment. The Fourth Circuit basically said in a summary judgement that these arms are completely outside the Second Amendment and even if they aren't, Maryland's ban satisfies intermediate scrutiny. Really biased, hackneyed opinion. Last edited by Bartholomew Roberts; February 21, 2017 at 09:43 PM. |
February 21, 2017, 10:08 PM | #72 |
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Before I read the entire opinion, does it mean the 2nd Amendment only applies to muzzle loading firearms?
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February 21, 2017, 10:10 PM | #73 |
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They even tried to say Heller allowed the banning of arms useful for military service...Talk about an intellectually bankrupt court!
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February 22, 2017, 11:21 AM | #74 | ||
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From the 4th's opinion:
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The closest thing I can find supports the right: Quote:
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February 22, 2017, 11:26 AM | #75 |
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So judicial rulings are based on statistics now? How about a little constitutional law consideration?
As a born and bred Marylander, this is exactly why I left that miserable state 15 years ago.
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