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Old May 17, 2015, 02:45 PM   #1
SC4006
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Tell me more about the 2A

Recently I made a thread ranting about how in New Hampshire I can own just about anything I want outside of NFA items, but travel down south into Massachusetts and its a whole different story. I want to understand a little more of why that is.

I took the time to read Spats McGee's Federal Constitutional Primer, and that definitely gave me a better understanding of the 2nd Amendment. So as I understand it, some states can get away with extremely restrictive firearms laws because the Supreme Court is still in the process of figuring out what exactly the 2A means for us, correct? I remember reading that they ruled it does in fact apply to the states, they just don't know exactly how yet.

It seems as though the 2A is too vague, but I'm not sure it could have been avoided. As technology advances at an ever increasing rate, so does the definition of what "arms" can actually refer to.

I also hope someone can clarify the "shall not be infringed" part. If it is in fact true that the 2A shall not be infringed, how can we deny a felon this right? Does this also have to do with the fact that we just don't know the scope of what the 2A covers? As an example, driving a vehicle on a public roadway is a privilege, not a right, and therefore can be taken away from someone. How can we strip someone of something we consider in this country a basic human right?

Just hope the people of TFL can share some of their vast knowledge with me, as I am interested in learning more about one of the biggest issues in the country right now.
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Old May 17, 2015, 04:08 PM   #2
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Quote:
I also hope someone can clarify the "shall not be infringed" part. If it is in fact true that the 2A shall not be infringed, how can we deny a felon this right? Does this also have to do with the fact that we just don't know the scope of what the 2A covers? As an example, driving a vehicle on a public roadway is a privilege, not a right, and therefore can be taken away from someone. How can we strip someone of something we consider in this country a basic human right?
We can discuss the philosophy of the 2nd amendment all day*, but what matters is how the federal and state executive branches are regulating it, and what the courts say about that.

Felons are denied the right on the basis that being convicted of a serious crime includes forfeiture of a variety of civil rights, either permanently or temporarily. Voting is a right for all adult citizens, but being convicted of a felony revokes that right, too. We can argue about the wisdom of doing that, but that's the reality. Felons have more serious problems than gun ownership and voting; getting a job or even finding housing can be challenging, and those are not even legislative penalties, but rather socioeconomic penalties.

Driving is not a very good example, because practically speaking it might be considered to be a right. It's more of a right than gun ownership, in the sense that felons aren't prohibited from driving. To the extent that driving is a privilege, it's a nearly universal privilege, barring medical problems or evidence of unwillingness to follow basic safety rules.

* e.g. "2A means I can carry a grenade launcher into Whole Foods and resist arrest if they try to detain or arrest me for it." or "2A means you can own bolt action rifles and revolvers, and anything else can properly require licensing with arbitrarily steep requirements."
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Old May 17, 2015, 06:10 PM   #3
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Good points. I see how driving could practically be considered a right even though technically it is not. I personally think in some cases not allowing a felon to be in possession of a firearm is a good thing, but it depends upon the circumstances of the felony.
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Old May 17, 2015, 06:52 PM   #4
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Personally, I don't think "shall not be infringed" could be any more clear. The only confusion is on the part of those who refuse to accept that "shall not be infringed" means "shall not be infringed," and who refuse to acknowledge that regulation is infringement.

If you read back through old threads, I think you'll find that a number of us believe that ex-felons (meaning those who have served their term of incarceration and are no longer on parole) should be allowed to own and shoot firearms. The argument is that they should have the right to defend themselves, and that if we can't trust them with a gun they probably should not have been let out of prison.
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Old May 17, 2015, 08:53 PM   #5
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It seems as though the 2A is too vague, but I'm not sure it could have been avoided. As technology advances at an ever increasing rate, so does the definition of what "arms" can actually refer to.
It's not vague considering the style of writing at the time. It's actually a forceful contrast to the watered-down "right" articulated in the English Bill of Rights.

As far as advances in technology go, the founders expected that. We don't limit freedom of expression to 18th-century printing presses. It includes things like telephone networks and the internet.
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Old May 17, 2015, 10:31 PM   #6
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It seems as though the 2A is too vague, but I'm not sure it could have been avoided. As technology advances at an ever increasing rate, so does the definition of what "arms" can actually refer to.
Tench Coxe, an influential Pennsylvania legislator at the time of the founding, had this to say about the Second Amendment:

Quote:
"Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American . . . . The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." --- Tench Coxe The Pennsylvania Gazette, Feb. 20, 1788
"Every other terrible implement of the soldier." That's what the Founders had in mind for "arms."

Quote:
"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms." --- Tench Coxe (1755–1824), writing as "A Pennsylvanian," in "Remarks On The First Part Of The Amendments To The Federal Constitution," in the Philadelphia Federal Gazette, June 18, 1789, p. 2 col. 1
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Old May 18, 2015, 07:23 AM   #7
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I also hope someone can clarify the "shall not be infringed" part.
Well, Congress makes laws and the Supreme Court rules on them when they are brought before it and they have ruled that the right can be infringed.
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Old May 18, 2015, 07:32 AM   #8
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There are two very important words that have to be translated from old English to modern. The first is "militia". Aquila Blanca did that - the militia is "all citizens". The second word is "regulated". In modern language regulated means something quite different from what it meant in the late 1700s. In those days, regulated meant "equipped" - now "lawed".

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Old May 18, 2015, 11:20 AM   #9
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Quote:
Originally Posted by SC4006
...If it is in fact true that the 2A shall not be infringed, how can we deny a felon this right? Does this also have to do with the fact that we just don't know the scope of what the 2A covers? As an example, driving a vehicle on a public roadway is a privilege, not a right, and therefore can be taken away from someone. How can we strip someone of something we consider in this country a basic human right?...
It's well settled law that under certain circumstance and to some extent a constitutionally protected right may be regulated. What those circumstance might be and the nature and extent of permissible regulation will be worked out by the courts. To do so, a court will consider, among other things, the nature of the right, the nature of the regulation, and the governmental purpose intended to be served.

For the purposes of illustration, let's consider the regulation of rights protected by the First Amendment. While the First Amendment protects freedom of speech, assembly and religion against laws that abridge those rights we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:
  • Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve compelling state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.

  • If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regularly enforced.

  • Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official. See, for example:

    • Hill v Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), in which the Court, in upholding a Colorado law restricting protesting, educational or counseling activities within 100 feet of the entrance to a health facility, noted:
      Quote:
      ...We are likewise persuaded that the statute is "narrowly tailored" to serve those interests and that it leaves open ample alternative channels for communication. As we have emphasized on more than one occasion, when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement...
    • Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022 (9th Cir., 2006) in which the court upheld a Santa Monica ordinance requiring a permit for public assemblies. In fact in Santa Monica Food Not Bombs the court specifically acknowledges that the ordinance may burden the protected right, noting, at pg 1038:
      Quote:
      ...A narrowly-tailored permitting regulation need not be the least restrictive means of furthering a locality's asserted interests. The regulation may not, however, burden substantially more speech than necessary to achieve a scheme's important goals. See United States v. Baugh, 187 F.3d 1037, 1043 (9th Cir.1999). "[T]he requirement of narrow tailoring is satisfied `so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'" Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985))...

  • In the leading case on prior restraint (Near v. State of Minnesota Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)) the Court in striking down a Minnesota statute allowing for the abatement, as a public nuisance, of malicious, scandalous and defamatory news analyzed in considerable detail and depth the scope and extent of the infringement of the freedom of press, the interests served and the availability of other and narrower remedies. And the Court then reached the conclusion that the statute went too far to be a permissible regulation.

    But nonetheless the Court also noted that certain interests, under certain circumstances would justify even prior restraint (Near, 283 U. S. 657, at 715 - 716):
    Quote:
    ...The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 139, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.' Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity...
  • In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion (Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890)).

So in fact the reality is that rights protected by the Constitution may nonetheless be subject to some limited regulation. The foregoing discussion of First Amendment jurisprudence serves the limited purpose of demonstrating that the courts do permit limited regulation of a constitutionally protected right. There are numerous examples of laws sustained by the courts which abridge freedom of speech, freedom of assembly, freedom of association, and freedom of religion. And First Amendment jurisprudence also offers some clues as to how such regulations will be evaluated by the courts.

We can not expect, nor will we see, perfect correspondence between the regulation of rights protected by the First Amendment and the regulation of rights protected by the Second Amendment. First Amendment jurisprudence is quite mature at this point, but Second Amendment jurisprudence, in the wake of Heller, is in its infancy. However, we can expect some regulation of Second Amendment rights to be upheld by the courts.

And now to test the permissible scope of the regulation of rights protected by the Second Amendment and to try to build a more favorable Second Amendment jurisprudence various RKBA advocacy groups are pursuing or participating in litigation. There are something on the order of 70 RKBA cases around the country at various stages of litigation.

With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:
  1. Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.

  2. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.

  3. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.

  4. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.

  5. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.

  6. Second Amendment jurisprudence is still in its infancy. Until Heller just five years ago, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald just three years ago, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.

  7. The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.
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Old May 18, 2015, 11:51 AM   #10
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Frank and Double Naught Spy are correct that it is ultimately the courts who decide what the words in any law actually mean in practice. That said, in the dicta (the lengthy verbiage supporting the actual decision) in both Heller and McDonald, Justices Scalia and Alito referred to various parts of the historical context. This suggests that, at least today, a majority of the Supreme Court thinks it is important to understand what the words meant to the people who wrote them, at the time they were written. As has been pointed out, in the context of the 2A the word "regulated" meant "practiced" or "organized," not "legislatively restricted."

The other point I think is significant in the discussion of "constitutional rights are subject to reasonable regulation" is that there are no other rights, in the Bill of Rights or any of the subsequent constitutional amendments, that specifically and explicitly say they shall NOT be regulated ("infringed"). The 2A does say that ... a point that even Justice Scalia and Justice Alito seem to have ignored.

Unfortunately, they didn't consult me before writing their decisions.

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Old May 18, 2015, 12:05 PM   #11
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We scream "shall not be infringed!!"

They scream "well regulated militia"

And real thing that matters is "the right of the PEOPLE"
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Old May 18, 2015, 12:54 PM   #12
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Well-Regulated = Well Trained/Disciplined = in proper working order

The meaning was clear then, and would be clear now where it not for those who would forego
the honest amendment process, and instead simply (and obsequiously) mouth the mantra of
"Living" constitution to mean whatever today's hot-button-right du jour happens to be.

Unfortunately the vast electorate is now largely -- and very deliberately -- totally ignorant of
that old & useless 9th-grade req'd course called "Civics."
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Old May 18, 2015, 01:45 PM   #13
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Quote:
Originally Posted by mehavey
Well-Regulated = Well Trained/Disciplined = in proper working order

The meaning was clear then, and would be clear now...
No, it's always been perfectly clear that the Congress and the states can regulate the militia in the legal sense of the word. Statute law on this subject dates from the days when the Constitution was new and the Founding Fathers were still around to interpret it; refer Militia Acts of 1792.

I discuss this at length in THIS LINKED THREAD.

It's widely understood from a historical perspective that the prefatory or militia clause of the 2A is intended to protect the states' ability to maintain a strong militia when confronted with an incompetent, weak, neglectful, and/or malicious federal government. The key point to understand is that the operative clause of the 2A is separate from the prefatory clause and protects an individual right independent of the person's militia service.
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Old May 18, 2015, 01:54 PM   #14
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I believe you have mixed Apples (the ability of the States to keep/train/regulate)
the organized militia units, with the concomitant Oranges (concomitant-but-separate) right of the
People/individuals) to keep & bear the arms normally associated w/ those militia units.

Both The States -- and -- The People, were the intended keepers of the 2A.




(Actually, reading your last sentence, I think you & I are saying the same thing)
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Old May 18, 2015, 05:04 PM   #15
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Don't forget the unorganized militia, as well.

Which was, back then, expected to be "well regulated" as well.

And in that context, it meant the called up citizen showed up with his arm, some ammo, his basic field kit, and understood the rudiments of military drill.

Putting these guys together in groups under commanders, forming them into units, etc. made them organized.

Without the unorganized militia (individual citizens) being armed (and hopefully otherwise equipped) there is no pool for the State's organized militia to be created from.

the 2nd Amendment covers both the individual and the collective right, and the Fed Gov's relationship with those rights (shall not be infringed).

If we had a time machine, and could go back and advise the Founders, I'm not sure what would be better, in the long run. "Congress shall make no law" worked pretty well for quite a while, but as I see it, even that has been "infringed" for some time.

Perhaps what we needed was "The right of the people to keep and bear any and all arms, any and all places, shall not be infringed in any shape, manner or form! And this time, we really, really, mean it!"
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Old May 18, 2015, 05:10 PM   #16
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One thing is for sure, the founding fathers knew that governments and politicians will want to disarm citizens.
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Old May 18, 2015, 06:40 PM   #17
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Thanks for the input everyone; I'm already learning a lot about our second amendment. The way things work in our government is quite a fascinating thing... If only I cared about how it worked during high school civics.
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Old May 18, 2015, 08:18 PM   #18
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Another Primer

Quote:
I took the time to read Spats McGee's Federal Constitutional Primer, and that definitely gave me a better understanding of the 2nd Amendment.
There is another primer that I would suggest reading and even though I did not have a problem understanding and accepting 2A, it gave me the historical foundation of it. Excuse me if has already been listed.....

"The Second Amendment Primer"
By les Adams, Odysseus Editions
Birmingham, Alabama

Be Free and;
Be Safe !!!
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Old May 18, 2015, 09:07 PM   #19
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Quote:
Originally Posted by mehavey
(Actually, reading your last sentence, I think you & I are saying the same thing)
Essentially yes. My point is simply that it's erroneous to imply that the militia was not subject to legal regulation. The Militia Acts of 1792 created regulations to ensure that the militia would be well-regulated.
Quote:
Originally Posted by 44 AMP
Don't forget the unorganized militia, as well.

Which was, back then, expected to be "well regulated" as well...

Without the unorganized militia (individual citizens) being armed (and hopefully otherwise equipped) there is no pool for the State's organized militia to be created from.
Precisely.

As an interesting historical footnote, the Militia Acts largely lapsed into irrelevance and became increasingly ignored as the 19th century progressed and the threat of foreign invasion subsided, and as it became clear that ragtag gangs of minutemen in the colonial mold (or even the Civil War mold) would be inadequate to fight a modern mechanized war. The organized militia has morphed into the National Guard and various state guards, while the unorganized militia no longer has any duties except waiting to be drafted; the Constitution contains no explicit provision for a military draft, so the draft is conducted under the guise of calling up the unorganized militia.
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Old May 18, 2015, 09:40 PM   #20
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But ... a version of the Militia Act is still currently in effect, a factoid that a majority of Americans don't understand even an iota. It is currently found at 10 U.S. Code § 311 - Militia: composition and classes. (See also 10 USC § 312)

https://www.law.cornell.edu/uscode/text/10/311
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Old May 19, 2015, 03:56 PM   #21
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The Militia Act covers males between the ages of 17 and 45, and others who previously served, up to the age of 64. Is it a matter of time before some anti 2A politician figures this out and creates a problem for the older guys, and women?
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Old May 19, 2015, 04:41 PM   #22
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It should not cause problems, after the Heller decision decided that the 2nd protects an individual right, rather than some collective right exclusive to those in some group (like the militia).

...granted, not all judges use what I would consider sound logic.
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Old May 19, 2015, 05:03 PM   #23
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Another distinction worth mentioning is the lens in which the left and the right generally view the constitution. The left believes it is a living changing document as a reflection of current society. The right believes it is to be interpreted as it was written and and only through that lens. The semantics around "regulated militia" "not to be infringed" is grounded in the lens in which it is viewed.
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Old May 19, 2015, 05:50 PM   #24
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On the issue of what the 2nd Amendment means, I think it's interesting to look at how it changed prior to final ratification. From 7 Jun 1789 thru 15 Dec 1789 there were 7 versions of the 2nd A. The one constenent in all of these versions is the words "The right of the people to keep and bear arms, shall not be infringed" is in every single one of them. The Militia part was the changed part.in its wording/meaning and there was the addition of a religous exemption that was dropped all togeather in it finale version.

In 2nd A cases, the Power of the SCOTUS and Federal Judges is not in their authority to rule on constitutional matters of law IMO, it's in their authority to refuse to hear a challenge. It's in that entitlement to say "NO", that is such an amazing use of raw judicial power. Because no citizen has the authority under the Constitution to say "NO" to a unconstitutional law without penalty. In fact, no citizen is expected to refuse to follow a unconstitution law nor is a Court required to review a law unless a challenge is made by someone, with what the court considers to have standing. Thus, the court can simply say that a citizen lacks standing (say NO) to even hearing the challenge. It amazes me because according to the BAR Association in Rule 2.6 "(A) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law". However, the Judge gets to decide if they have a "Legal Interest" and therby if they have a "right to be heard according to law". Now if someone is challenging a 2nd Amendment law as Unconstitutional because it is an infringment on their right, why wouldn't that in itself be Standing? Additionally in the Sixteenth American Jurisprudence, Second Edition, Section 177. (late 2nd Ed. Section 256) you find this statement from the SCOTUS:
"No one is bound to obey an unconstitutional law and no courts are bound to enforce it."

For 30 years the "Distric of Criminals" violated the constitutional rights of Americans. Question: was anyone thrown in jail or prosecuted for this violation of civil rights for the 600,000 residents? Nope. In that same Jurisprudence it states that: "The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it."

Laws are a matter of trust IMO. I fail to understand how a Federal law that says "this thing" is legal and a State law can say that "this thing" is illegal at the same time or vice versa. The two cannot both be constitutional at the same time when talking about a constitutional right. This is where trust falls apart, like I said IMO.
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Old May 19, 2015, 08:24 PM   #25
Tom Servo
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Quote:
Another distinction worth mentioning is the lens in which the left and the right generally view the constitution.
First off, we don't do right/left discussions. They paint complex issues with an unfairly broad brush.

Second, gun rights aren't necessarily a right/left issue, no matter what the pundits claim. There are compelling arguments for the RKBA from a traditional liberal standpoint, and we have staunch advocates who self-identify as liberals.
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