Throwing it their face

[davem]

Here's an idea. The U.S. Supreme court recognized the Second As an individual right but a lot of States go right on regulating this right. Why not get some conservative lawyers and law makers to use the same logic in other areas. For example a State could pass a law saying there will be no more throwing out evidence based on a faulty police search, etc, etc AND cite the States limiting Second Amendment rights as justification for such laws, after all the liberals can't have it both ways.

[DAS9mm]

I'm on of those liberals, but I own guns. I came across a very intersting piece on Daily Kos. http://www.dailykos.com/storyonly/20...cond-Amendment.

Now before anybody's head explodes, copy the link and read it. I've had a vague sense of cognitive dissonance regarding guns and my other political views. The authors bring up the valid point that one of the arguments against the 2nd amendment as an individual right is the text speaks of "the people." The authors then point out that the rest of the Bill of Rights and it's subsequent amendents all use the same language. So if the 1st amendment speaks of the "people" and we take that to mean an individual right to run our mouths off, then shouldn't the people in the 2nd amendment mean the same thing? I am not giving the article it due, so flame suit on, and give it a read.

[KyJim]

The Exclusionary Rule (throwing out evidence) was adopted to enforce the individual's Fourth Amendment right against unreasonable searches and seizures. You are suggesting we take away this individual right which is exactly the opposite to what the Court did in McDonald where they recognized an individual right to keep and bear arms was applicable to the states.

[GM-GUY]

I like the direction, but why not more basic:

The 2nd Ammendment is 'Federal' law. Now they say Arizona has no right to enforce, modify, touch 'Federal' juristicion.

Seems to me all state and local laws doing anything to gun rights is now out.

[BlueTrain]

Does the second admendment say that it is or should be an unregulated right? This seems to be the critical difference is the various viewpoints concerning this particular admendment. Some seem to believe that it means there can be no regulations whatsoever about arms, other seem to tie it to some quaint notion of a militia.

[Aguila Blanca]

Originally Posted by davem

For example a State could pass a law saying there will be no more throwing out evidence based on a faulty police search, etc, etc AND cite the States limiting Second Amendment rights as justification for such laws,

I must have overdosed on slow pills this morning ... I'm trying hard, but I just can't seem to find any logical correlation whatsoever between tossing the 4th Amendment protection against unreasonable search and seizure and limitations on the RKBA. How do these go together again?

[Aguila Blanca]

Originally Posted by Blue Train

Does the second admendment say that it is or should be an unregulated right?

What does the 2nd Amendment say? Does it say "... the right of the People to keep and bear arms shall not be infringed" or does it say "... the right of the People to keep and bear arms shall not be unreasonably infringed"?

What it says is perfectly clear. Regulation IS infringement. What muddies the waters is 200+ years of common law jurisprudence by judges who can't read English.

[gc70]

Originally Posted by Aguila Blanca

What it says is perfectly clear. Regulation IS infringement. What muddies the waters is 200+ years of common law jurisprudence by judges who can't read English.

Some view infringement quite literally - as in prohibiting any government encroachment or limitations of any nature whatsoever. So how would that work?

When the police arrest a bad guy with a gun, they could not disarm him because that would "infringe" his RKBA. Of course, everyone will agree that is an unrealistic scenario. And many would offer hairsplitting justifications of why the otherwise absolute meaning of "infringe" is suddenly not so absolute.

[USAFNoDak]

When the police arrest a bad guy with a gun, they could not disarm him because that would "infringe" his RKBA. Of course, everyone will agree that is an unrealistic scenario. And many would offer hairsplitting justifications of why the otherwise absolute meaning of "infringe" is suddenly not so absolute.

This is a very grey area. I believe that most people would state that the right of free speech shall not be infringed, even if it doesn't specifically say so in the first amendment. But what about a guy using a computer and the internet to correspond with terrorists in planning to blow up a federal building, for example? Would the police confiscate his computer upon arrest? Most likely so. Is that an infringement on his first amendment rights? Not necessarily because he is participating in "criminal" activity.

If a person with a computer posted on a blog that they think the President (whomever that may be at the time) is a low down, stinking, pig, can the police get a warrant to raid his home and confiscate his computer? I think not. If a man who owned firearms did the same thing, could they then get a warrant to confiscate his computer AND his firearms? I don't believe they could.

Under normal circumstances, I do believe "shall not be infringed" generally means to leave us law abiding people alone with respect to "arms". However, once you break some other law, that protection being lifted can possibly be justified, legally. It's a grey area for sure.

[USAFNoDak]

I'm on of those liberals, but I own guns. I came across a very intersting piece on Daily Kos.

That was a very interesting article on Daily Kos. There are some very interesting comments as well. We know there are people on the left who understand all of the rights. We saw this when they said they needed to run more "pro gun rights" candidates from the democratic party to get control of congress. It worked. The anti gun folks in the party, however, got pushed aside.

They wanted a new Assault Weapons Ban, but they aren't politically able to muster enough votes, even from their own party. Obama blew them off saying it's not politically possible at this time.

I wonder how many of those people who made "positive comments" on the DK are more libertarian than liberal. What about you DAS9mm? Do you really consider yourself to be more liberal than libertarian? (note the small "l" in libertarian). I am fiscally conservative, but socially, I lean libertarian. I cross over in other areas which I prefer not to get into via this thread. On guns, definitely more libertarian. Keep in mind, there are so-called conservatives out there who are for more gun control, such as assault weapons bans. John McCain comes to mind. So does GWB. Harry Reid, on the other hand, a liberals liberal in many aspects, voted against the AWB. Gun ownership and gun rights tends to cut across the political spectrum more than many issues do. However, with respect to bans, most proponents of banning firearms are liberals. Not all, as I mentioned, but most.

That's why it is heartening to see an article like that on the DK. Thanks for sharing DAS9mm. (virtual hand extended to you for a handshake).

[BGutzman]

What it says is perfectly clear. Regulation IS infringement. What muddies the waters is 200+ years of common law jurisprudence by judges who can't read English.

Amen brother, for some reason many (not all) in the legal system are confused by simple english. IMHO many of these previous judgements were based on the personal preference of the judge and having nothing to do with the constitution. Unfortunately it seems to be a time honored tradition that has brought our nation to where it is today. (struggling)

Yes, I agree some reasonable regulation must be allowed, for instance when a serious crime is comitted. I would contend that in the past (first 50 years after the ratification of the constitution) most convicted felons were allowed to bear arms without limitation once the time was served.

Further we the people were and are the militia (minutemen) and were and are expected (under the origional ideals of the founders) to defend our country against all enemies foreign and domestic.

IMHO any gun suitable for military service or personal protection is protected for use by private citizens as it may be needed for militia or personal defense.

We (as a people) seem to forget that violence did happen between individuals during the founding of our country and this had been considered and weighed by the founders in writing the Constitution and the Bill of Rights. Occasional criminal violence had been weighed and found not sufficient a reason to restrict weapons.

We live in the area of political correctness that has nothing to do with being constitutionally correct. Its all about the media and the news and the spin....

[Glenn E. Meyer]

Criminal violence was seen as a reason for weapons restrictions. Where do you think all those concealed carry laws came from? Western towns that didn't allow guns in town or bars, etc.

Come on - halcyon day distorted appeals are just for the choir. The NFA rules didn't come politics, it came from criminal usage.

[BGutzman]

Criminal violence was seen as a reason for weapons restrictions. Where do you think all those concealed carry laws came from? Western towns that didn't allow guns in town or bars, etc.

Come on - halcyon day distorted appeals are just for the choir. The NFA rules didn't come politics, it came from criminal usage.

Glenn your point is well taken and valid, that is where those laws came from. I have too much respect for you to quote George Washington and others who would have almost certainly sprung to arms to defeat these laws had they been blessed with super human lifespans. Time passes, generations come and go and we are but feeble creatures in the fullness of time. I firmly believe the founding fathers meant what they wrote and they meant it as they wrote it.

Each generation since seems to feel they have the power to somehow modify the words (in the Constitution and the Bill of Rights) to new and different meanings or in some cases no meaning at all. The bottom line for me is that these rights were meant to be the minimum protections from government and not the maximum protections. The problem is we now see them as limitations to our rights as a people and not as limitations on government power.

The laws in the wild west were every bit as much in violation of these natural rights. It seems easy to deviate from the lofty goals of the founding fathers and hard to get back to anything approaching the origional intent.

Rights come with responsibilities and sometimes downsides such as the potential use of guns by criminals. As I have said even in Revolutionary times we had criminals who murdered and everything else and it was not so different as we would like to imagine.

Yet the founders chose the words they chose and the Second Ammendment was passed with virtually no debate. (showing the universal agreement of the founders).

[Aguila Blanca]

Originally Posted by gc70

When the police arrest a bad guy with a gun, they could not disarm him because that would "infringe" his RKBA. Of course, everyone will agree that is an unrealistic scenario. And many would offer hairsplitting justifications of why the otherwise absolute meaning of "infringe" is suddenly not so absolute.

The scenario is not at all unrealistic. Further, the scenario in no way argues that the 2nd Amendment demands NO infringement on the RKBA.

We have (in most states, anyway) a nice parallel to show how it can/should work: body armor. I don't know about in your state, but in my state it is NOT illegal for any private citizen to buy and wear body armor. It IS, however, illegal for me to wear body armor in the commission of a crime.

Why should firearms be any different? I don't care if some biker dude has a gun in his jeans as long as he isn't using it to bother or threaten anyone. Dirt bags have a right to defend themselves from dirtier bags, just as the rest of us do. The laws should not be prohibiting the possession or carrying of arms, the laws should be prohibiting the use of firearms to commit crimes.

Oddly enough, in most states this happens to already be the case. So why the hullabaloo about taking guns away from the honest citizens? Just grab the guys who use them for crimes, lock 'em up, and lose the keys.

[ADB]

What does the 2nd Amendment say? Does it say "... the right of the People to keep and bear arms shall not be infringed" or does it say "... the right of the People to keep and bear arms shall not be unreasonably infringed"?

Look, there is a lot in the bill of rights that's subject to some "infringement" for good reasons. Try putting libel in a newspaper and defending it under a free speech argument. Just because the constitution doesn't include "(with some exceptions)" behind every amendment doesn't mean that no human judgment is used in applying them.

[BGutzman]

Try putting libel in a newspaper and defending it under a free speech argument. Just because the constitution doesn't include "(with some exceptions)" behind every amendment doesn't mean that no human judgment is used in applying them.

This may well be, but shall not be infringed is pretty straight forward and leaves little question (in my mind) about how much human judgement the founders wanted the government to be able to apply to this right.

I suspect that each person was expected to act under a common code of morals that was agreed to exist within communities. A persons word was once a contract and a handshake as good as written in stone. I suspect that these rules of conduct were applied to all the the rights as enumerated. (Acting upright in our several stations before god and man) Violations such as murder were meant to be dealth with under trial by the community but the Right was never in question even if a particular individual was in question.

Like it our not, agree with it or not the words of the Constitution and the Bill of Rights werent written like some credit card contract even though that seems to be how many people want to interpret straight forward words.

So many people seem to find some unwritten social contract that overrides the constitution and the rights as listed in what is construed to be for the good of the community.

In reality the social contract whatever it may or may not be MUST be subservient to these rights or freedom cannot live. We were entrusted to act as a community for the good of all but these enumerated rights stand supreme.

[BGutzman]

Certainly the word "regulation" and words "subject to regulation" existed at the time the Constitution and the Bill of rights were written and yet none of these words were included as a part of the 2nd Amendment.....

Further there was virtually no debate on if the 2nd amendment should be included, some amendments were heatedly debated.

In fact in at least cursory web research it seems quite difficult if not imposible to find even a suggestion that regulations of firearms was an accepted idea. (by the founders) If there are resouces to the contrary please let me know because I am truly interested.

A large body of commentary exist from many of the founding fathers that seems to confirm that the right to bear arms was not only necessary but mandatory to the establishment of a free nation. In this arena I again cannot seem to find any contradictory evidence. Nor do I seem to find any evidence that even mildly suggest some sort of regulation for public safety was acceptable under any circumstance outside of that of prisoners and even then only while in prison.

I would contend that the "regulation for public safety" is a relatively modern concept probably developed by others much like the mayor of Chicago. People who thought they knew better than the Constitution and the Bill of Rights.

Yes, various towns came up with anti gun laws as our country developed but they were probably much more rooted in religion and religious beliefs and to an extent a reaction to crime. - Nothing to do with what the founding fathers had in mind concerning the right to bear arms.

[Aguila Blanca]

Originally Posted by ADB

Look, there is a lot in the bill of rights that's subject to some "infringement" for good reasons. Try putting libel in a newspaper and defending it under a free speech argument. Just because the constitution doesn't include "(with some exceptions)" behind every amendment doesn't mean that no human judgment is used in applying them.

You chose a poor analogy. The Bill of Rights constrains governments. There is no law at either the Federal or state level that prohibits you from printing a libelous statement in a newspaper, or significantly "regulates" your freedom to do so. And if you do so, you will not be arrested.

You may, however, be sued in civil court for libel. The 1st Amendment protects your right to expect the government to leave you alone and give you enough rope to hang yourself, and that's what you would be doing if you printed a libelous comment. But it would not be the government doing the hanging, it would be a civil court jury.

[blume357]

if you are planning to commit a crime and talk or write about it then they can get you for that.

has been pointed out on this forum before, it is actually not illegal to yell fire in a crowded theater... but the consequences of that action maybe.

[Mike Irwin]

"What it says is perfectly clear. Regulation IS infringement. What muddies the waters is 200+ years of common law jurisprudence by judges who can't read English."

Bogus claim.

Even the Founders and Framers, the ones who brought you the Constitution AND the Bill of Rights, recognized that NO right was absolute under every circumstance and that the most efficient means of protecting the rights of all is the adoption of a code of laws that applies equally to all.

It should also be pointed out that the Framers wasted no time in passing laws that, on their very face, violated the Constitution, such as the Alien and Sedition Acts.

Anyone who tries to claim that the Framers meant the Constitution to stop with the last period in the Bill of Rights, that in their Godlike Marbleized Magnificence they laid down utter perfection of the kind that even God would envy, that any law or ruling that builds on any part of the Bill of Rights, apparently even those by those of Godlike Marbleized Magnificence, is somehow an infringement is, well.... silly.

[Mike Irwin]

"In fact in at least cursory web research it seems quite difficult if not imposible to find even a suggestion that regulations of firearms was an accepted idea. (by the founders)."


Many colonies/states and communities had a few laws regulating the possession and carrying of firearms.

In Massachusetts I believe it was illegal to carry a firearm into a house of worship as early as 1800, well within the lifespan of the Framers. Oddly enough, in the early days of the colonies, many had laws specifically REQUIRING those attending church to be armed.

But, in either case, wouldn't requiring either be an infringement? Or are you being infringed upon only when you're told you can't do something, as opposed to being told you must do something?

It was also illegal in many colonies to sell or give firearms to slaves or indians, laws that carried right thorough to the United States. Seems like a violation not only of free choice but also RKBA. But, then again, slaves and indians weren't very human, or so the thinking went.

Obviously, most of the EARLY colonial laws required that colonists be armed and maintain stocks of powder and bullets along with the guns, all of this as a defense against indian attacks. As the threat of indian attack faded, however, these laws grew considerably laxer.

Another obvious "infringement" occurred in the town of Boston when indiscreet discharge of firearms was made illegal in 1714. What the hell is the point of having a gun if you can't shoot at whatever you want?

Clayton Cramer has a discussion on early firearms regulations in America here:

http://www.claytoncramer.com/popular...NewEngland.PDF

[BlueTrain]

I think one point that is consistently being ignored here is that the chief purpose of the 2nd admendment was to enable the citizens to form a militia. And it was clearly the intent of at least some of the founding fathers that the militia was not to be construed to be private armies. There was no intention, I believe, to construct a mechanism for rebellion, though it happens that it eventually turned out that way. The Civil War was largely fought by state forces. The other Civil War, the one in England, was in their case the starting point for gun control in that country. At any rate, there was almost universal distrust of standing armies in this country, partially because of some of the also universal military practices in the 18th century, one of which was the quartering of soldiers in private homes. That was even mentioned in the Declaration of Independence, so it must have bothered people.

However, like a few other things in the Constitution, it was found that some things just didn't work out in practice and you needed at least a small standing army. It got a workout right away, too, pushing the Indians a little further west, after which "the country was flooded with land speculators."

[DanThaMan1776]

Does the second admendment say that it is or should be an unregulated right? This seems to be the critical difference is the various viewpoints concerning this particular admendment. Some seem to believe that it means there can be no regulations whatsoever about arms, other seem to tie it to some quaint notion of a militia.

History is only my minor (current college student).. but it captures my interests more than my major (physics). I find myself reading more history text than physics texts. What most people don't know when they argue over the Founding Fathers' intentions in the documents which form the basis of our country is that most of them are made explicit in the Federalist Papers.

Try Googling Federalist Paper 46. Madison states that so long as the population of American INDIVIDUALS are armed, no militant government coup will be capable of changing the status quo by force.

Also, he says that "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms."

[Aguila Blanca]

Originally Posted by BlueTrain

There was no intention, I believe, to construct a mechanism for rebellion, though it happens that it eventually turned out that way.

That is entirely opposite to my understanding. Many of the Founders fully intended that the militia(s) be armed because they had no trust of standing armies, and they wanted the people to be able to rise up against the government if the government became excessively tyrannical. The 2nd Amendment was very much intended to provide a mechanism for rebellion.

[Mike Irwin]

"they wanted the people to be able to rise up against the government if the government became excessively tyrannical."

And yet, in the US code, those very same men made it illegal to... rise up against the government...