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Old April 5, 2013, 11:54 AM   #26
Vanya
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Somehow, I just can't say that I'm in favor of a 2A rewrite.
Umm... no.

The author of the Times piece acknowledges that any rewrite would have to go through same process as a new amendment, or for that matter, a repeal. He also pretty much admits that it ain't gonna happen: "Of course, even an uncontroversial constitutional amendment requires a minor miracle."

The editors at the Times seem to be willing to publish almost any op-ed piece supporting gun control, no matter how pointless or loony it seems. The one that sticks in my mind is this one: Please Take Away My Right to a Gun.
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Old April 5, 2013, 12:34 PM   #27
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Yes, the author lives in Austin. That's not where he got his indoctrination education, though. From his UT Austin page:
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Old April 5, 2013, 12:42 PM   #28
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There's a shocker!
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Old April 5, 2013, 01:22 PM   #29
maestro pistolero
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If we get anything from Miller (post Heller) it is that the military and militia purposes were considered synonymous. For the record, I believe Heller erred in its reading, because in the historical landscape from which they drew their 'reading', there was no difference between military and civilian small arms. Because there was no difference, neither was there a disparity of firepower, a critical fact which the Second Amendment intended to preserve as its primary function and purpose. Of course then, all that was needed to preserve that equanimity was make sure everyone could be armed. A musket, after all, is a musket.

The common use test is somewhat specious, because no such test would have existed at the time of founding, because, again, all the bearable arms were essentially equivalent.

The Heller court went on to say that "it may be objected" that modern developments such as bombers and tanks create a disparity of firepower that creates a disconnect of the militia clause from the right itself, but that fact cannot "change their interpretation of the right".

But in direct conflict with the stated inability to change their interpretation of the right, the court said that invalidating bans on "M16s and the like" would be "startling".

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We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
I would ask: In common use by whom? The same arms were in common use by the regular troops. Today, the M4 is the most commonly used American weapon, BOTH in the military and in its civilian, semi-auto only configuration. The most widely used sniper rifle is a near copy of common hunting rifles, i.e. the Remington 700. Interestingly, civilian small arms have always historically mirrored their military-issue cousins, and that continues to this day (though perhaps not beyond this day, if one lives in NY, CT, MD, or IL)

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307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25
But of course, Miller said nothing of the sort. If the Miller court intended to weigh anything, it was whether there was a militia/military purpose of the weapon that placed it under the protection of the amendment. There would be no logical reason to make such an assessment if their actual intent was to decide whether it was a household item or not.

It was simply not within judicial notice that the SBSs were ordinary military equipment. The case was orphaned, and was decided without ever being fully litigated.

So this is a contorted, inverted reading by the Heller court, born, in my opinion of an unwillingness to even consider reconciling Miller's advocacy of 2A protection for military small arms in the context of modern urban society.

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If there is an anti-tyranny and self defense purpose to the 2nd amendment (and the Supreme Court and several other federal courts have clearly said that there is), then legislation reducing the capability and performance characteristics of the most common, semi-automatic small arms would eviscerate the amendment of its core purpose.

The Second Amendment's very function is to put law abiding citizens on at least equal footing with criminals, and would-be tyrants. Anything less than equal footing for the citizen guts the amendment of that function and renders it null.

The Supreme Court has made it abundantly clear that long-standing laws banning firearms ownership for felons, mentally ill, and drug addicts are not in question. Many other regulations will certainly pass constitutional muster.

But there is a cavernous difference between regulations (such as requiring training, safe storage, background checks, maintaining proficiency, etc) and banning or neutering an entire class of common, garden variety semi-automatic firearms (now disparagingly called assault weapons).

All firearms, self evidently, are lethal weapons. The performance characteristics of all semi-automatic firearms have not changed in 100 years. The idea that a semi-automatic-only, civilian AR15 is some kind of exotic, unusual weapon is completely false. AR15-pattern rifles, by a wide margin, are the most common long arm chosen by Americans, for every conceivable lawful purpose for which a firearm can be used.

The 2nd amendment specifically protects keeping and bearing lethal weapons that are in common use. (See US Supreme Court Heller vs DC, 2008, and McDonald vs Chicago 2010, Us vs Miller 1939.)

If we dare to repeal the amendment, then there is a constitutional procedure in place to accomplish that. But we simply cannot pretend the amendment doesn't mean what it says without structurally undermining the whole document. If we can turn a blind eye to one fundamental, enumerated, and incorporated civil right, then no other civil right will ever be immune to the whims of the legislature.

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Old April 5, 2013, 04:32 PM   #30
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Thanks for the summary, MP.
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Old April 5, 2013, 05:50 PM   #31
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You're welcome.

The common use test addresses present and (presumably) past arms, but what about the future? The court is clear that the 2nd Amendment will protect technology yet to be invented. For that purpose, the common use test is wholly useless. At best, the common use test is but one measure of a weapon's 2A protection.

AR15s, (and I would argue any weapon which shares its performance characteristics, regardless of the technology through which it operates) clear the common use hurdle by a mile. A weapon cannot simultaneously ubiquitous AND unusual.

But as new technology is introduced, there will be the inevitable period of time where it is initially rare in the population at large. It will be interesting to see what tests are concocted for that eventuality.
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Old April 5, 2013, 07:01 PM   #32
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Originally Posted by maestro p
But of course, Miller said nothing of the sort. If the Miller court intended to weigh anything, it was whether there was a militia/military purpose of the weapon that placed it under the protection of the amendment. There would be no logical reason to make such an assessment if their actual intent was to decide whether it was a household item or not.
Miller is further flawed because the decision ignored the fact that sawed-off (or short-barreled) shotguns were, in fact, used by the military -- for close-quarters engagements.
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Old April 5, 2013, 07:54 PM   #33
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Originally Posted by Aguila
Miller is further flawed because the decision ignored the fact that sawed-off (or short-barreled) shotguns were, in fact, used by the military -- for close-quarters engagements.
The only side heard by the Court was the Governments side. Do you really expect them to tell the Court that the SBS was a standard military arm? Of course, they didn't say a word, which was why the Court said that it was not within judicial notice. The Court did remand the case to the district court for fact-finding on this very subject.

We know that Miller was dead at this time, so no further litigation occurred.
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Old April 7, 2013, 06:37 PM   #34
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Originally Posted by patriotic
NY I believe is one of the few if not the only state that does not have a RKBA statement in the state’s constitution.

I'm almost certain that New York is far from the only state that doesn't have a RKBA provision in the state's constitution. I'm pretty sure I researched that several years ago.

Interestingly, Massachusetts (the seat of the American Revolution) does have a RKBA provision -- but it is limited to defense of the State.

Connecticut has a RKBA provision, which specifically mentions "in defense of the self and of the state," yet NO carry is allowed in Connecticut without a permit. You have to wonder how that system has survived. I suspect the courts in Connecticut are so liberal that nobody dares bring a case.

Looks like this may be a good read on the subject: http://www.guncite.com/journals/dowrkba.html



Umm NYS Bill of rights article 2 subsection 4: § 4. Right to keep and bear arms. A well regulated militia being
necessary to the security of a free state, the right of the people to
keep and bear arms cannot be infringed.
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Old April 8, 2013, 04:36 AM   #35
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Yes, the author lives in Austin. That's not where he got his indoctrination education, though. From his UT Austin page:
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Zachary Elkins
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I thought it was disappointing that an associate professor of government at Texas didn't understand the context of "well-regulated" (or basic grammar for that matter) even though it should be evident from its use; but now I see he comes by his confusion honestly.
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Old April 8, 2013, 06:43 AM   #36
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The problem is that the Supremes are loaded with progressive liberals who are activist judges.

Even Scalia is NOT our friend. He believes the 2nd Amendment has limits and can prohibit full auto guns. Where in the 2nd Amendment does it say that?

A well regulated militia requires the same tools that are used by the military and that includes machine guns, rockets, smart bombs, tanks, drones, etc.
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Old April 8, 2013, 10:19 AM   #37
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That claim will get us nowhere, so let's pass on that discussion here. Thanks.
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Old April 8, 2013, 01:43 PM   #38
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Even Scalia is NOT our friend. He believes the 2nd Amendment has limits and can prohibit full auto guns. Where in the 2nd Amendment does it say that?
The same place the 1st Amendment discusses shouting fire in a crowded theater, and in which the 4th Amendment discusses wiretaps.

Like it or not, there have always been limits on our rights. Most noteworthy are the time/place/manner restrictions on 1st Amendment activity. We can't expect an unfettered 2A at all. Even in the best possible world, its exercise will be subject to some restrictions.

The important thing is to make sure those restrictions are subject to strict scrutiny, as are restrictions on the 1A and 4A.
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Old April 8, 2013, 04:31 PM   #39
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Originally Posted by Tom Servo
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Even Scalia is NOT our friend. He believes the 2nd Amendment has limits and can prohibit full auto guns. Where in the 2nd Amendment does it say that?
The same place the 1st Amendment discusses shouting fire in a crowded theater, and in which the 4th Amendment discusses wiretaps.
Not a perfect, or even good, analogy.

The 1st says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Even after we accept incorporation and read "Congress" to include the state legislatures, the 1st still says only that the gummint shall not enact a law abridging the freedom of speech. Your example of yelling "FIRE!" in a crowded theater is NOT illegal. In fact, if I were a theater patron and I discovered a smouldering fire in a corner and yelled "FIRE!" in time to empty the place before it burned to the ground, not only would I not have broken any laws, I would perhaps be hailed as a hero.

But freedom carries responsibility. While it is not against the law to yell "FIRE!" in a crowded theater, if one does so when there is no fire, for the purpose of inciting panic, THAT is illegal and the yeller simply is asked under the law to accept the responsibility and consequences of his/her action.

4th Amendment. Wiretaps? Wiretaps are searches. They require warrants. What's the issue?

Quote:
Originally Posted by Tom Servo
Like it or not, there have always been limits on our rights.
So now we come to the 2nd Amendment. Your argument that our rights have always been subject to limits sounds eerily like what Frank Ettin has told me in the past. (I guess you moderators do talk to one another.) My response is that judges are human, and the fact some rights may have been limited in the past doesn't mean the limits were/are constitutional, it just means they haven't yet been declared UNconsitutional.

I like to compare the 2nd and the 4th Amendments. The 4th Amendment specifically says we are to be secure against "unreasonable" searches and seizures. This opens the door -- if we are secure only against UN reasonable searches, then some searches must be reasonable, and it then falls to the courts to determine where to draw the line between reasonable and unreasonable. Fine. I get that.

But ... show me where the word "reasonable" (or "unreasonable") appears in the 2nd Amendment. You can't -- it isn't there. The 2nd Amendment is an absolute prohibition on infringement of the RKBA. And "regulation" equals "infringement."And this is why I agree with rajbcpa. Justice Scalia wrote what he wrote and we're stuck with it, at least for now, but I have the temerity to propose that he was flat-out wrong. A true strict constructionist would have to acknowledge that there is simply no room under the language of the 2nd Amendment to argue that the RKBA can be subject to any degree of regulation, of any degree of reasonableness.
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Old April 8, 2013, 05:47 PM   #40
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Not a perfect, or even good, analogy.
An indirect one, perhaps. The actual quote is from Justice Holmes, who held in Schenk that distributing fliers in opposition to the draft wasn't protected by the 1A because such speech was "dangerous" and had no "useful" purpose. Compare that to Scalia's stance on "dangerous and unusual" weapons.

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4th Amendment. Wiretaps? Wiretaps are searches. They require warrants. What's the issue?
If I put a wiretap on your house or office, I'm getting all sorts of information that would never have been part of a warrant for specific papers and possessions. I really doubt the founders would have approved of the practice.

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Your argument that our rights have always been subject to limits sounds eerily like what Frank Ettin has told me in the past.
I don't like it, but it's true. We've always had restrictions on the 2A. I fear we always will. The trick now is to limit them as much as possible.

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But ... show me where the word "reasonable" (or "unreasonable") appears in the 2nd Amendment. You can't -- it isn't there.
You're factually correct, but getting back to the 1A analogy, there are laws restricting freedom of speech, the press, and public gatherings that have passed constitutional muster. Consider free speech zones, campaign finance reform, and nebulous definitions of indecency.

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Justice Scalia wrote what he wrote and we're stuck with it, at least for now, but I have the temerity to propose that he was flat-out wrong.
It's not temerity; you're right. But the alternative was heinous enough that we're fortunate to have gotten that much.

A ban on military-style weapons violates the intent and text of the 2A as much as nearly anything can, and the founders would have found it reprehensible. But we went astray as a nation on the matter for a long time, and Heller was our foot in the door to start fixing that. As it stands right now, I think we can count on its dicta to overturn another ban. I understand your frustration, but that's just where we are at the moment.
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Old April 8, 2013, 06:49 PM   #41
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As it stands right now, I think we can count on its dicta to overturn another ban.
I don't believe Heller's language regarding what sort of weapons are protected could be dicta, as it pertained to questions that were necessary to the outcome of the case.

If I am right, I believe that reinforces your prediction.
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Old April 8, 2013, 06:55 PM   #42
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I am not so sanguine. The views on what the 2nd Amend. covers are defined by political beliefs. Yes, we think it is crystal clear but 5 to 4 isn't Steuben glass. A change in the court would flip it the other way or would have.

I think the current abortion debate is instructive (don't discuss abortion). There seemed to be a clear decision 40 years. Several states are acting against that. It will go to the SCOTUS. Based on the political views of the justices - Roe might be overturned. Same for Heller, IMHO.

To continue after a break. Many decisions are being looked at again. Analogously to the NY, CO, CT, etcl laws - states are challenging what seemed to be a clear decision in Roe. Affirmative action is going through the same process. It all plays to the makeup of the court. So, I'm not counting a precedent. I've thought Scalia left a glaring hole that can what was seen as strong. Yep, we all might have the right to a Biden blaster and that's it.
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Old April 8, 2013, 07:12 PM   #43
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Originally Posted by Aguila Blanca
But ... show me where the word "reasonable" (or "unreasonable") appears in the 2nd Amendment. You can't -- it isn't there.
Regardless of absolute language, one person's right tends to end when it clashes with another person's right. If the Second Amendment was really applied as an absolute, I could set up a target stand and use your house as a backstop for target practice - something that you might rightfully find objectionable.
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Old April 8, 2013, 08:06 PM   #44
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Originally Posted by gc70
Regardless of absolute language, one person's right tends to end when it clashes with another person's right. If the Second Amendment was really applied as an absolute, I could set up a target stand and use your house as a backstop for target practice - something that you might rightfully find objectionable.
Oh no you couldn't, and the validity of the 2nd Amendment has little to nothing to do or say about it. The 2A guarantees us the right the Keep" and "bear" arms. The 2A in no way conveys or guarantees to anyone a RIGHT to shoot on or at the property or person of anyone else.

This actually IS analogous to the fire in a crowded theater example. It is not illegal per se to yell "FIRE!" in a crowded theater. However, it is illegal (in most places) to falsely incite panic. So, as your right to free speech is not "limited by" but is subject to ancillary regulations pertaining to the maintenance of order in society, the same is true of the 2A. And I'm absolutely certain that the Founders would never have envisioned the RKBA as in any way guaranteeing a license to do harm to another person's person or property.

Using my house for target practice quite simply has nothing to do with the 2A.

As to Tom's example of Justice Holmes and anti-draft literature, I'll play. Justice Holmes was clearly wrong, and ruling based on a political agenda rather than the Constitution. In fact, the entire purpose of the 1st Amendment guarantee of freedom of speech was to ensure that citizens would NOT be punished for speaking out with views that run counter to those of the government.
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Old April 8, 2013, 09:28 PM   #45
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Originally Posted by Aguila Blanca
So, as your right to free speech is not "limited by" but is subject to ancillary regulations pertaining to the maintenance of order in society, the same is true of the 2A.
So the Second Amendment itself is not limited, it is just subject to ancillary regulations. That sound like a distinction without a meaningful difference.
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Old April 8, 2013, 10:15 PM   #46
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Originally Posted by gc70
So the Second Amendment itself is not limited, it is just subject to ancillary regulations. That sound like a distinction without a meaningful difference.
Without meaningful difference? Not at all.

Words have meaning. The 2A guarantees a right to "keep" and "bear" arms. Do you see anything at all in the 2A about guaranteeing you a RIGHT to shoot up your neighbor's house?

That's just the base language. Then we fast forward to Heller and Justice Scalia's majority decision, in which he wrote:

Quote:
Originally Posted by Scalia
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
There are several states right now where we can carry sidearms with no permit, open or concealed. These are the so-called "Constitutional carry" states: Vermont, Alaska, Arizona, and __?__. Without doing any research at all, I am absolutely certain that in all of those states, despite your having an absolute right to pack iron, it is against the law to USE that firearm to rob a bank, to threaten someone you think cut you off in traffic, to commit murder ... or to shoot up your neighbor's house.

How are the laws prohibiting such anti-social behaviors in any way a restriction (an "infringement") on your right to bear arms? Are you seriously arguing that the 2A guarantees us a right to commit armed robbery and murder?
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Old April 9, 2013, 01:36 AM   #47
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I agree with Aguila Blanca. Right to Keep and bear arms says nothing of what you can do with them. Commit a crime with a gun? You're going to prison, not because you exercised your second amendment rights, but because you killed somebody.
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Old April 9, 2013, 01:38 AM   #48
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That said, I have a feeling this is not a direction the moderators will tolerate too much longer.
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Old April 9, 2013, 10:45 AM   #49
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Dakota, you're correct, of course. Yet at the same time, a bit of veering can and should occur if we are to fully understand what is protected by the right, in its plain language and understand what is protected by the right as opined by the Supreme Court.

They are not always the same thing.

"Shall not be infringed," is perhaps the strongest verbiage that has been used by the Constitution to describe what the Federal Government may not do. In that respect, those who hold to an absolutist view, are correct. Yet they are also wrong.

Elsewhere in our Constitution, the Supreme Court has been given the Judicial Power to interpret what those words mean and how far those word stretch. That authority is contained in Article III section 1.

What some people fail to understand is that this "Judicial Power" that is granted by the Constitution stems from our Common Law that was inherited from the British, at the time of our founding. Part and parcel of this judicial power was the authority to interpret what the meaning of the law was. That interpretation includes the very Constitution itself.

As the Court has held, no right is absolute.

In terms of the 2A, we are at the threshold of determining the boundaries of the right. It's going to be a long process and there will be things decided that we will not like. There will also be things decided that the (various) government(s) won't like. That's just the nature of the beast.
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Old April 9, 2013, 03:32 PM   #50
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No, Heller does not protect us from a AWB. Heller was a 5-4 decision, and in MacDonald, later on, the same 4 dissenters in Heller said Heller should be reversed. Just one vote on SCOTUS stands between having the right to keep and bear arms and no rights at all.
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