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April 9, 2017, 07:03 AM | #76 |
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Aquila Biancor is correct!!!
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April 9, 2017, 10:28 AM | #77 |
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Yeah -- I'm a legend in my own mind.
The problem is that I can say "Regulation is infringement" 'til the cows come home but, until we see a majority of the SCOTUS put that in writing, I'm just whistling in the dark, hoping to scare away goblins. It seems crystal clear to me, and one might hope that a true "originalist" / "strict constructionist" justice would have no choice other than to agree. But ... we live in a complicated world, and sometimes purity is sacrificed to pragmatism. For example (IMO), Justice Scalia's reprehensible "existing presumptively lawful regulations" phrase. I don't think he would have said that if he hadn't needed to keep Kennedy in line, but just look at all the harm that seemingly innocuous phrase has caused and is causing. |
April 9, 2017, 02:13 PM | #78 | |
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At the time of the writing, "well regulated" referred to being properly supplied, clean and in usable condition. It did not mean a third party come into your home and tell you what you can and cant do "Militia" was every able bodied "man" big enough to carry and properly use a firearm in order to defend the Country from all enemies both foreign and domestic. So when it was written it meant that every ably bodied person was free to own, carry and use any weapon to protect themselves and the Country. Over the years the meaning of the two words has changed and therefor the perception has changed as to what was meant when writing the 2A. And it does not mean a formal militia group being regulated by the govt. |
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April 9, 2017, 05:41 PM | #79 |
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^^^ You just reiterated my point, which is that all the so-called "common sense" regulations the anti-gun lobby wants ARE infringements, and as such are supposed to be barred by the Second Amendment.
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April 10, 2017, 08:14 AM | #80 | |
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That isn't the water in which lawyers swim on these issues. However, it shouldn't be necessary to radically rebuild constitutional jurisprudence to achieve everything you could get done politically. If strict scrutiny were applied to laws that may infringe the right, those laws would need to serve a compelling governmental interest and use narrowly tailored law to achieve that interest. That allows deprivation of the right those who are adjudicated incompetent (having a hearing on the matter is about as narrowly tailored as it gets) and felons. I understand that some people think the right should be restored following a prison sentence, but such a reading would likely see a constitutional amendment that would keep John Allen Muhammad from having his rights restored. Heller was a big step, but a 5-4 precedent isn't much of one. Getting more justices who would vote for language recognizing the right as fundamental is the necessary foundation.
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April 10, 2017, 09:45 AM | #81 | |
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Grammatically, that's a fail. I may not be the sharpest knife in the drawer, but even I know the difference between a singular noun versus a plural noun, and "the right" is singular. That means "the right to keep and bear arms" is ONE right, not two separate rights. And, of course, at the time the Constitution and the Bill of Rights were written, firearms were common tools in all the colonies. The notion of allowing "the People" to keep firearms within the home but not allowing anyone to venture forth with a firearm is something that probably never occurred to any of the Founding Fathers. So, despite the fact that the immediate question before the court in Heller was keeping a functional firearm in the home, the crucial question hinged on whether the 2A is an individual right or a collective right. Heller established that it is an individual right. Having established that the RKBA is an individual right, it therefore follows (grammatically) that individuals have the right to keep AND to bear arms. There can be no other [intellectually honest] interpretation of the Second Amendment. Some state supreme courts have confirmed this based on the language of their respective state constitutions. Ohio is one such, and I think Idaho is another. |
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April 10, 2017, 10:03 AM | #82 | ||
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Unless you find a way to clone Thomas eight times and have his clones confirmed, I doubt you will ever see a "Here's the part of the COTUS that answers your question" kind of opinion. My phantasy would involve Kennedy, Ginsberg and Breyer retiring before Thomas and being replaced by Federalists who would join Alito, Gorsuch, Thomas* and Roberts for a 7-2 "This is a fundamental right for which strict scrutiny is the correct analysis" sort of decision. __________________________ *Thomas has a separate rationale re the 2d Am., but if the vote comes out 7-2, sidestepping a decision should be less common.
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April 10, 2017, 12:24 PM | #83 | |
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The good news is it is a real possibility. Ginsburg is 84, Kennedy 80, and Breyer 78. They all have a decade on Thomas. Like it or not, their days are numbered and they can't stay on forever. Something tells me that who is president at the moment affects a SCOTUS Justice's decision on when to step down just as much as age, though. I see us at least picking up Ginsburg's seat, though. At least that one. Possibly Kennedy's seat, as it is still unclear as to whether he has picked a partisan side to completely be in bed with. |
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April 10, 2017, 01:22 PM | #84 | |
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April 10, 2017, 05:41 PM | #85 |
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The Washington State constitution puts it this way:
Article 1; SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men. |
April 10, 2017, 08:51 PM | #86 |
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^^^ Lots of state constitutions contain very similar language. The point is to have a court back it up. What eventually led to a concealed carry law in Ohio was a case that went to the Ohio Supreme Court. The court ruled that, because the state's constitution guaranteed a right to bear arms, the legislature could not ban carry. Therefore, since the legislature had made it illegal to carry concealed, open carry had to be allowed.
Following this, the Buckeye pro-gun groups (sorry, I don't recall the name or names) began organizing "carry ins," at which citizens would lawfully appear -- wearing guns. The soccer moms were unhappy, so they called the cops, who told them there was nothing they could do because open carry was legal per the Supreme Court. That led to many soccer moms contacting their legislators, who finally took the hint and enacted a concealed carry law. The point being: Once it is conceded that the bearing of arms is subject to regulation, the permitted mode of carry is up for grabs. One state might allow open carry but not concealed, while a neighboring state could allow concealed carry but not open carry. Either would be constitutional (if "reasonable" regulation is allowed), since carry would not be banned, only "regulated." That said -- just as we see with the federal Second Amendment, the RKBA language in a state's constitution doesn't mean much unless and until that state's highest court rules what the language means. As an aside, I find it painfully ironic that the state constitution of Massachusetts, the birthplace of the American Revolution, does NOT treat the RKBA as an individual right. The MA constitution guarantees the RKBA only in defense of the state. Sad. |
April 11, 2017, 06:38 AM | #87 | |
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April 11, 2017, 07:47 AM | #88 | |
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Several people here wanted Merrick Garland to be a given a hearing and or vote because they were confident HRC would win the presidency and name someone worse. I doubt many people had the foresight to see the chain of events, a chubby but apparently energetic Scalia passing, the repub primary taking a direction many within the party had discounted as impossible, the insecurity leading DJT to make a commitment based on a Federalist Society list, and DJT then honoring that promise, that led to Gorsuch being sworn in yesterday. I know people who assure me that DJT will continue to pick this sort in the future, but they don't really know. There are a lot of openings on the various circuit courts of appeal, and I don't recall anyone being named for those important spots.
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April 11, 2017, 08:25 AM | #89 | |||
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April 11, 2017, 09:35 AM | #90 | |
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It wouldn't be worth saying "I told you so" to see him engage in a full reversal on an issue, 2d Am. rights for instance, but it isn't unimaginable either. I saw a fellow explain the electoral choice last time around as follows. If I am presented two doors and am forced to open one, one of which says "Man Eating Tiger" and the other of which says "Could be a Man Eating Tiger", I'll choose the latter every time.
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April 11, 2017, 03:23 PM | #91 | |
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And that worries me if we have a particularly horrific public shooting or enough pressure to "compromise" on a piece of "common sense" legislation. My point? Let's not assume we're out of the woods yet as it applies to any of the three branches.
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April 11, 2017, 03:49 PM | #92 | |
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This tired "analogy" again.
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Next, the yelling of fire falsely is punished AFTER the fact. Just like we punish violent crimes committed with guns AFTER the fact. Gun control, by contrast, is prior restraint. It is preventing you from having a gun, on the theory that such a restriction might somewhere, someday prevent somebody from committing a violent crime. Therefore, the correct analogy for gun control is forcing everyone to enter movie theaters gagged, on the theory that that requirement will somewhere, someday prevent somebody from falsely yelling fire in a theater. Unconstitutional and ridiculous. Even if someone calls it "reasonable." |
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April 11, 2017, 05:18 PM | #93 | |||||
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So for the purposes of illustration, let's consider the real life 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:
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.
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April 11, 2017, 06:27 PM | #94 | |
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April 11, 2017, 06:40 PM | #95 |
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Removing judges on suspect mental health issues because you disagree with them is a terrible move.
It would have to be incredibly obvious to the other members of the court. But, again with all the theory - I wait for the behavior. Will the new SCOTUS really take on and make decisions that remove restrictions and negate state laws? I'm not holding my breath on that.
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April 11, 2017, 07:26 PM | #96 | |
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April 12, 2017, 06:19 AM | #97 | |||||
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I appreciate your support...
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Perhaps, with either a national reciprocity law (which I agree has very low chance of passage), or with the Gorsuch-staffed Court (taking on, I hope, Peruta and also rulings in districts where "assault weapons" bans have been pronounced okay), that day will soon be at hand. Quote:
We should be careful not to imply that the Court's "the protection even as to previous restraint is not absolutely unlimited" actually means that any "reasonable" prior restraint on speech is acceptable; that would be as dishonest as claiming (as anti-gunners do) that the Court's "the Second Amendment right is not unlimited" means that all restrictions deemed "reasonable" by gun-controllers are constitutional. (Frank, that was a wonderful review of First Amendment boundaries, as delineated by the Court. Thanks.) Last edited by Loosedhorse; April 12, 2017 at 06:57 AM. |
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April 12, 2017, 06:27 AM | #98 | |
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A justice could be removed IMO only if there was overwhelming public sentiment that such a removal was necessary, thus providing senators the political "cover" they'd need for an unprecedented vote to remove one. |
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April 12, 2017, 07:54 AM | #99 | ||
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In the end, he did leave voluntarily though not happily and we got Thomas in his place.
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