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April 5, 2013, 11:54 AM | #26 | |
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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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April 5, 2013, 12:34 PM | #27 | |
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Yes, the author lives in Austin. That's not where he got his
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April 5, 2013, 12:42 PM | #28 |
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There's a shocker!
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April 5, 2013, 01:22 PM | #29 | |||
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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". Quote:
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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. From my FB Wall: Quote:
Last edited by maestro pistolero; April 5, 2013 at 01:27 PM. |
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April 5, 2013, 04:32 PM | #30 |
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Thanks for the summary, MP.
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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. |
April 5, 2013, 07:01 PM | #32 | |
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April 5, 2013, 07:54 PM | #33 | |
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We know that Miller was dead at this time, so no further litigation occurred. |
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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. |
April 8, 2013, 04:36 AM | #35 | |
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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. |
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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April 8, 2013, 01:43 PM | #38 | |
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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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April 8, 2013, 04:31 PM | #39 | |||
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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:
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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April 8, 2013, 05:47 PM | #40 | |||||
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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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April 8, 2013, 06:49 PM | #41 | |
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If I am right, I believe that reinforces your prediction. |
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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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April 8, 2013, 07:12 PM | #43 | |
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April 8, 2013, 08:06 PM | #44 | |
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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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April 8, 2013, 09:28 PM | #45 | |
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April 8, 2013, 10:15 PM | #46 | ||
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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:
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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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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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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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. |
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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