June 30, 2010, 02:51 PM | #151 | ||
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Per Scalia, Quote:
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June 30, 2010, 02:59 PM | #152 |
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My comment about racist implications is that when I look at the motivations for playing the local control card, I see it not as a real argument for state vs federal perogatives. It is the view of the minority population needing to be controlled or protected against themselves as the attitudinal engine that wants to ban guns and then the local argument is used to bolster or enforce that opinion.
I'm always one to look for the emotional to drive the decision and then folks choose the cognitive rationale to support it.
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June 30, 2010, 04:41 PM | #153 |
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People's opinions are emotionally driven? Oh, surely not. I'm shocked, shocked....
And speaking of emotional reactions, it seems excessively paranoid to me to worry that because both Heller and McDonald dealt specifically with handguns as tools for self-defense, other types of guns will suddenly be more subject to bans. As Zukiphile notes, "Neither decision indicates that the right is solely for self defense." While these decisions don't automatically rule out such attempts, I see nothing in either that would make them easier. Rather the opposite, given the standard of "common use." And defining "common use" more clearly, along with what counts as a "class" of weapon under that standard, would seem to be high on any list of goals for upcoming cases.
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June 30, 2010, 06:35 PM | #154 | |
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June 30, 2010, 07:30 PM | #155 | |
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This guy nailed it on the head:
I thought I remembered this and, yep, this guy nailed it (post 399):
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June 30, 2010, 08:20 PM | #156 |
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While the high court's decision dealt primarily with having a handgun in the home for defense, and not so much with arms in general (although there was some mention), isn't that because the case(s) before the court were about having a handgun?
Also, I don't see the rulings as establishing an individual right vs a collective right. What I see is the establishment of the individual right as well as the collective right. How could we have a right to arms for personal defense, and not have the right to those same arms for collective defense (militia)?
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June 30, 2010, 08:26 PM | #157 | |
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From the article quoted by Glenn E. Meyer:
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I respectfully submit that Mr. Derek P. Langhauser should never have been allowed to graduate from whatever law school he attended. |
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June 30, 2010, 08:32 PM | #158 | |
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Great presentation by Gura at Brown University on Law Day. He addresses the "circularity" argument at: 1:35.29. Good presentation of the Heller decision implications.
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June 30, 2010, 09:10 PM | #159 | ||
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I imagine we'd have a chance to refute Presser used as a precedent. Still, I wonder what kind of case we could bring that would (re)establish the right to form militias... Quote:
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June 30, 2010, 09:39 PM | #160 |
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While I agree that the court did not address except in passing the bearing of arms - I do think that what they did say was highly signficant. They made it a point to specifically say that the carrying of arms could be constitutionally prohibited in government buildings, schools, and sensitive places. While this is not definitive by any means - it is highly significant in that there would be no reason to expicitly make this point if they did not in fact view the carrying or bearing of arms as a normal and a protected part of the right. It also makes sense that given the value the court placed on self-defense that the court would not truncate that right at the door to ones home.
More speculative is the courts language that the States had/have leaway to determine to some extent where, when, and how arms would be carried. I would take that to mean that States may define a preferrred method of carry and limit carry in the areas described above. Thus a State could require concealed carry over open carry or perhaps even require it in certain venues so long as the method of carry did not materially infringe the core right to self defense, which also implies a shall issue model for ccw. This would be congruent with the courts description of the right as a fundamental right. |
June 30, 2010, 09:44 PM | #161 |
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The court did say that arms could be prohibited from schools - my assumption is that this certainly means at least elementary though H.S., whether or not this also applies to colleges - I am less certain - particularily where there is student housing on campus.
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June 30, 2010, 10:12 PM | #162 |
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That the court even went partially down the road of "bearing" arms surprised me. Frankly I expected a simple yes or know on incorporation and batting it back to the lower courts.
Never expect any more from a SCOTUS case than the very narrow question being asked.
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July 1, 2010, 07:28 AM | #163 | ||
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The intent of the 14th amendment was clearly to apply consitutional rights and protections to actions by state governments and thus change federalism. And I don't really have a problem with that because it was done through the process laid out in the consitution. While the founders couldn't foresee a time when the states would be the agents of Tyranny the congress in the years following the civil war saw it and started the process to amend the constitution. The gutting of federalism was done largely because of the civil war but the process used was the one laid out in the consitution. The congress passed the amendment and it was ratified by a sufficient number of the states. The states essentially decided that federalism needed to change and agreed to the change as required by the consitution. |
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July 1, 2010, 12:46 PM | #164 | |
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Freedom of economic experimentation is one thing. Infringing on fundamental rights, especially when these states ratified the Bill of Rights upon entry to the union, is a different thing altogether. If Arkansas wants to suspend the income tax, or charge more than Texas, they've got that option. If Colorado wants to lower the speed limit to 35, that's their prerogative. None of those states, being parts of the union, have the authority to tell me how to worship, search my house without a warrant, or tell me that I can't arm myself. ...and let's please not use the term "state's rights." Individuals have rights; governments have powers. Those are two completely different animals.
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July 1, 2010, 01:32 PM | #165 | |
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July 1, 2010, 01:43 PM | #166 | |
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July 1, 2010, 04:10 PM | #167 | |
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What constitutes a militia, and what actions are protected? Where does a liberal state decide that an innocent group of armed, prepared citizens might be domestic terrorists in training? What criteria are there? Is a militia considered a distinct political/lobbying organization if its members try to encourage or discourage legislation? How many members would said militia have to have to qualify? Does it come under federal scrutiny if it has membership across state lines? I can remember the government doing its absolute best to demonize the very word "militia" during the Waco/Ruby Ridge/Oklahoma City period, and many people still have a very bad impression. Just last year the SPLC was publishing "studies" attacking the idea of civilian militias. Our definition of militia is quite clear. To the general public and the legal system, it is still murky. Perhaps a case in which a local militia is harassed will provide a means to challenge Presser and establish a favorable precedent.
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July 1, 2010, 08:45 PM | #168 | |||
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July 1, 2010, 10:00 PM | #169 | ||
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Tom, the militias you speak of are unauthorized paramilitary organizations. they are not protected by the Second Amendment.
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July 2, 2010, 07:58 AM | #170 | |
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The first amendment should be sufficient to protect the right to form private associations.
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July 2, 2010, 08:47 AM | #171 |
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Quick! Somebody trot out the ruling in Presser!
Folks, the McDonald decision had nothing to do with the militia clause of the 2A. So let's not go there. |
July 2, 2010, 01:43 PM | #172 |
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Meanwhile in Chicago
City Council has just passed the new handgun law.
http://newsblogs.chicagotribune.com/...tions-450.html Far from perfect but miles ahead of the previous law. |
July 2, 2010, 02:17 PM | #173 |
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What is the Fundamental Right?
I believe in Heller, the Supreme Court of the United States ruled by 5-4 that the Second Amendment in the US Constitution protected a FUNDAMENTAL, INDIVIDUAL right. In McDonald, the USSC ruled by 5-4 that the 2nd A. also applies to the states and local governments. There are all kinds of open questions up in the air because of this.
However, many people say that all that they've done is to protect keeping a gun IN THE HOME for self defense. I'm not sure that is the case. The "right" in question, and which is protected by the 2nd A. is the "right to keep AND bear arms". Notice the right involves both of those actions and is a singular right, not a plural one. It's not the right to keep arms and the right to bear arms. It's not the right to keep OR bear arms. It's not the right to keep arms or bear arms. It's the right "TO KEEP AND BEAR ARMS". So, if the 2nd A. protects the fundamental, individual, right "to keep AND bear arms", how are they going to wiggle into saying this only permits someone to keep a gun in the home for self defense. It would seem that the new Chicago law, saying you cannot have a gun on the porch, in the yard, or in the garage, already runs afoul of the rulings in Heller and McDonald. It's one right which encompasses two distinct yet related actions. You can't say the right is protected for keeping arms but not for bearing arms. This will be interesting to see how it plays out, especially in Chicago and Washington, D.C. Don't get me wrong. I'm under no illusions that either of those two cities will come to their senses any time soon and agree with what I've stated here. They will continue to twist, obfuscate, lie, and do anything they can think of to keep their citizens from being free and exercising ALL of their rights, especially when it comes to the 2nd A. They are tyrants. In some ways I have pity on their subjects. On the other hand, those subjects voted for the tyrants and continue to do so. They've locked themselves up in their own virtual prisons in many respects. Too bad for them. I feel the most sorry for the freedom loving people who have voted against the tyrants and fought them any way they could. They have to suffer or leave. I just might pick the latter, though I understand that's not always an easy proposition, nor a desirable one.
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July 2, 2010, 03:19 PM | #174 | |
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I do believe that it should be up to the authorities within the states to call forth their respective militia before a bunch of guys just show up with guns ready to do whatever they think is necessary for whatever reasons. I don't believe what the founders had in mind was for armed individuals to take matters into their own hands outside of any governing influence or official notice. If there is a natural disaster and the governor of a specific state, for whatever reason, asks for volunteers to show up with their own arms to perform some duty under the guidance and direction of a state government official, that's just fine and dandy. No one can force you to show up, but if you want to, go for it. If the crap were to really hit the fan, all bets are off. Who knows what that would look like, when it would happen, what the conditions would be, or what would end up being done? I don't believe that's something we can plan for. If it ever came to that, we'd all try to do our best to cope with it. Certain people would assume leadership roles, and others would follow them or form their own groups. You can't predict what might happen amongst humans when a nasty crisis causes panic and turmoil on a grand scale. Guys getting together on their own to practice military duties is fine as long as they don't break any laws or specifically and intentionally target any individual(s) for harm. But a group who does that is more of a private army than what was meant by "the militia" during the early days of the nation. That's my opinion.
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July 2, 2010, 06:23 PM | #175 | ||
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That one little word carries a great deal of legal weight. Fortunately, Alito saw fit to echo the Palko language in his opinion: Quote:
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