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Old July 11, 2016, 12:09 PM   #1
KyJim
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Rights hanging on the edge

From time to time, I've seen criticism of NRA for not having litigated gun rights as ardently as some would have liked over the past 40 years or so. Heller was propelled forward, not by the NRA principally, but by the Second Amendment Foundation. Since then, however, most federal courts have been reluctant to apply Heller beyond the narrow facts presented in it and some courts have simply given it lip service.

In response, some members of the gun rights community have urged further litigation and deplored the Supreme Court's refusal to consider additional gun rights cases. I'm not talking about overly broad or vague criminal statutes, but those cases involving magazine limits, carry bans, etc. The Supreme Court's refusal to consider these cases may be a blessing in disguise.

Exhibit one in support of this thesis is a statement made recently by Justice Ginsburg to the New York Times. While the lead in the story was Ginsburg's anti-Trump statements, buried near the end of the online story was this statement:

Quote:
She mulled whether the court could revisit its 2013 decision in Shelby County v. Holder, which effectively struck down a key part of the Voting Rights Act. She said she did not see how that could be done.

The court’s 2008 decision in District of Columbia v. Heller, establishing an individual right to own guns, may be another matter, she said.

“I thought Heller was “a very bad decision,” she said, adding that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.
http://www.nytimes.com/2016/07/11/us...=pl-share&_r=0

If Justice Ginsburg is correct, and she is in a good position to know, then the right to keep and bear arms is balanced on a precipice. I sense in her statement that the gun abolition wing of the court may have declined to review lower court decisions so that Heller could be later overturned more cleanly than otherwise possible if there were a string of pro-2A Supreme Court decisions. Justice Thomas' recent remarks about the court's lack of attention to the right to keep and bear arms underscore the ambivalence that some members of the majority in Heller have for the Second Amendment. http://www.nytimes.com/2016/03/01/us...ce-thomas.html

The smart approach for the short term is to take a conservative approach to litigation. Instead, we should focus on the sort of grass roots advocacy that has mostly worked since 1968. For if the Supreme Court were to strike down Heller and decide there is no individual right to own a firearm, there would be at least a few states which would outright ban them -- California, New Jersey, and Hawaii immediately come to mind. Given the recent mass shootings, especially the murder of the five Dallas police officers, I can see another "assault rifle" ban federally, but with more teeth.

I stated earlier that our rights are balanced on a precipice. Let's don't push it over the edge with foolhardy litigation.
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Old July 11, 2016, 01:05 PM   #2
ATN082268
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Quote:
Originally Posted by KyJim
The smart approach for the short term is to take a conservative approach to litigation.
For those pro-gun, I agree. The problem is that won't keep the anti-gun types from bringing cases to the courts. The U.S. Supreme Court doesn't have to directly overturn Heller decision to undermine it with numerous other cases. Eventually it might overturn Heller but that certainly isn't necessary in the short run. My main concern is the U.S. Supreme Court legislating to the states with "lax" gun laws.
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Old July 11, 2016, 02:27 PM   #3
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I think the Supreme Court has, most dramatically, failed to correct lower court decisions. That's not good, but it's better than taking the cases up and then approving them or even overruling Heller entirely.
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Old July 11, 2016, 02:41 PM   #4
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Quote:
Originally Posted by KyJim
...I stated earlier that our rights are balanced on a precipice. Let's don't push it over the edge with foolhardy litigation.
I agree.

As I wrote a short while ago here:
Quote:
...It is a classic example of a result driven opinion. You pick the result and then try to justify it. We used to call it, in my science days, a finagle factor -- multiple the answer you got by "what you want" divided by "what you have."

I've been wondering if we didn't try too aggressively to exploit Heller and McDonald. Basically we pushed forward with lawsuits all over the place trying to undue a hundred years of bad law practically overnight.

Heller and McDonald were dramatic rebukes to what was, until those cases, dogma. The, in hindsight, predictable response was a stubborn intransigence and a dogged desire to preserve the status quo ante. Heller and McDonald were major paradigm shifts, and major paradigm shifts tend to be threatening.

Perhaps we should have let Heller and McDonald settle in for a bit before we pressed matters.

Heller and McDonald were important cases, and we needed those results. We needed to kill the collective right model of the Second Amendment and we needed to deep-six Cruikshank. We did that. But perhaps we didn't have try to fix everything all at once.
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Old July 11, 2016, 10:46 PM   #5
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I would remind all that there is a difference between our natural rights, and our legally recognized rights.

Our legally recognized rights are open to government interpretation, and re-interpretation. Like SLAVERY, for the most blatant historical example.

For many long years there was a Supreme Court decision that upheld slavery as legal and Constitutional.

What the high court rules is the law of the land, but that doesn't mean the law is right, or just, only that the people on the high court thought it was.

Never give up hope.
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Old July 12, 2016, 09:41 AM   #6
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I said a long time ago that there were weaknesses in the Heller decision that will be used and it seems to be the case.

Thus, I agree that trying to use it to expand beyond its specifics should be avoided.

The NRA was against SCOTUS challenges as they thought we could lose. Seeing how close and then the subsequent circuits and failure to have these taken up, shows that they had some insight.
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Old July 12, 2016, 10:25 AM   #7
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Quote:
...It is a classic example of a result driven opinion. You pick the result and then try to justify it. We used to call it, in my science days, a finagle factor -- multiple the answer you got by "what you want" divided by "what you have."
As explained beautifully by Danae from Non Sequitor:



Result driven logic is a staple of liberalism. They decide what they would like to be true and then bend the facts to fit. The "Collective Right" notion regarding the Second Amendment is one of the most famous examples. It doesn't fit the historical context of the American revolution. It requires the phrase "right of the people" in the 2nd to mean the exact opposite of what it means everywhere else in the Bill of Rights. Yet they clung to it like a rock until Heller demolished it. The ACLU is still clinging to it.
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Old July 12, 2016, 12:59 PM   #8
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Quote:
Originally Posted by KyJim
I stated earlier that our rights are balanced on a precipice. Let's don't push it over the edge with foolhardy litigation.
One man's foolhardiness is another man's genius.
Maybe MLK shouldn't have organized all those marches, because thousands of people across the South were upset by the social change!

Our rights are not dependent on what's trending on twitter, or what might hurt some snowflake's feelings. No one need even consider the ruffling of feathers or upsetting status quos in defense of our civil rights.

Ginsberg wants to nuke Heller? Let her open that can of worms. Let history record that the left destroyed stare decisis. And in some decades, when the pendulum swings back the other way, the conservatives will reinstate the 2A, destroy Roe v Wade & Obergefell v Hodges and whatever else, and then when the pendulum swings back again etc etc etc. Perhaps eventually we'll just have two Constitutions, one for when the libs are in power, and one for when the conservatives are in power.

Quote:
Originally Posted by Glenn E Meyer
The NRA was against SCOTUS challenges as they thought we could lose. Seeing how close and then the subsequent circuits and failure to have these taken up, shows that they had some insight.
Being wrong is considered insightful now? The world sure has changed.
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Old July 12, 2016, 02:20 PM   #9
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Quote:
Originally Posted by speedrrracer
...One man's foolhardiness is another man's genius.
Maybe MLK shouldn't have organized all those marches, because thousands of people across the South were upset by the social change!
....
Once again someone in the RKBA community has pointed at the Civil Rights Movement without understanding in any depth how it worked, why it worked, and how its lessons can and can not be useful for the advancement of our interests. But --
  • During the Civil Rights Movement many Whites came to care about the plight of the Blacks, and much of the focus was to make Whites understand and care. The successes of non-Whites on the social and legislative fronts depended on Whites seeing non-Whites as oppressed. How many non-gun owners think gun owners are oppressed?

  • The acts of civil disobedience, involved very normal, benign, human acts: taking a seat on a bus for the ride home after a hard day at work; sitting at a lunch counter to have a meal; a child registering to attend school; registering to vote; voting; etc. These are normal, every day thing that White folks took for granted. And it became profoundly disturbing for many White to see other humans arrested for doing these normal, benign things simply because of the color of their skin.

  • During the days of the Civil Rights Movement of the '50s and '60s, civil disobedience, as favorably reported by the mainstream media, and as favorably commented upon on college campuses and in sermons in houses of worship across the nation, helped generate great public sympathy for the cause. That sympathy helped lead to the election of pro-civil rights legislators and executives. And that led to the enactment of pro-civil rights laws.

  • On the other hand how has the public thus far responded to the thus far minimal "civil disobedience" of RKBA advocates?

    • Where have there been any great outpourings of sympathy for the plight of gun owners, especially from non-gun owners -- as whites showed sympathy for the plight of non-whites during the days of the Civil Rights Movement?

    • Where are the editorials in the New York Times lauding the courage of gun owners in their resistance to the oppression of anti-gun prejudice?

    • Who has heard a pro-gun rights sermon in his church? Where are the pro-gun rights rallies on college campuses?

    • Where are non-gun owners joining with gun owners in pro-gun rights demonstrations, just as whites joined with non-whites in marches and demonstrations during the Civil Rights Movement? Where are our charismatic leaders inspiring the nation?

    • A tired black woman arrested for taking a seat on a bus is something that many ordinary people could respond sympathetically to. Does anyone really think that a man arrested for the illegal possession of a gun is likely to produce anything like a similar degree of sympathy in a non-gun owner -- especially after Columbine, Virginia Tech and Sandy Hook?

  • Let's look at the comparison with the Civil Rights Movement graphically. In the days of the Civil Rights Movement:

    • White folks cared in 1960 when U. S. Marshals had to escort a black girl to school in New Orleans, Louisiana.

    • White folks cared in 1963 when George Wallace attempted to block the desegregation of the University of Alabama. He was confronted by federal marshals, Deputy Attorney General Nicholas Katzenbach, and the Alabama Army National Guard and forced to step aside.

    • White folks cared in 1963 when Wallace again attempted to stop four black students from enrolling in segregated elementary schools in Huntsville.

    • And White folks cared about --




      • and




      • and




      • and


    • On the other hand, what do non-gun owners (and many gun owners) think about:




      • and


Quote:
Originally Posted by speedrrracer
...No one need even consider the ruffling of feathers or upsetting status quos in defense of our civil rights....
Hogwash. Public sentiment has a lot to do with who gets elected and what laws get adopted.
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Old July 12, 2016, 05:07 PM   #10
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Quote:
Originally Posted by Frank Ettin
Public sentiment has a lot to do with who gets elected and what laws get adopted.
Sure does. And civil rights have a lot to do with empowering minorities against abuse from majorities. What you don't grasp is that both things matter a great deal.

It's always easy for those on the sidelines to disparage and criticize those taking all the risks. The NRA sure did when SAF went to bat for Heller.

I could see your/KyJim's point as being reasonable if someone were suing for the right to own a backpack nuke, but that's not remotely what's happening.
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Old July 12, 2016, 05:37 PM   #11
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Originally Posted by speedrrracer
...civil rights have a lot to do with empowering minorities against abuse from majorities. What you don't grasp is that both things matter a great deal.....
What you don't grasp is that struggles for minority rights need broad support for success. The struggles for women's rights had considerable support and participation from men. The struggles against discrimination on the bases of religion had broad support and participation from a broad spectrum of religions. The struggles for racial equality had considerable support and participation from the White community. The struggles for gay rights had considerable support and participation from non-gays.

How much support and participation has the struggle for the RKBA had from non-gun owners?
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Old July 12, 2016, 05:51 PM   #12
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Quote:
Originally Posted by Frank Ettin
Public sentiment has a lot to do with who gets elected and what laws get adopted.
Quote:
Originally Posted by speedrrracer
Sure does. And civil rights have a lot to do with empowering minorities against abuse from majorities. What you don't grasp is that both things matter a great deal.
I don't think anyone is arguing that civil rights are unimportant. I think the crux of the matter is that—rather than rolling the dice in the courts—it's better to elect pro-gun politicians, persuasively explain the gun-rights perspective in public forums, and get the public on our side.

Ginsberg or another like-minded justice does not need to "nuke" Heller in order to whittle away at our rights. There is plenty of language in the Heller decision that could be manipulated to hurt us.

Although I won't claim that the 2 issues are equivalent in any other way, I've argued that the pro-choice movement exemplifies the strategic mistake of over-reliance on friendly court decisions. Despite decades of SCOTUS rulings in their favor, Whole Woman’s Health v. Hellerstedt was a nail-biter right up to the end. Imagine a law imposing conditions that would shutter all but 5 gun stores in your state, and the state's AG is trying to support the law's legitimacy using Heller statement that "...nothing in our opinion should be taken to cast doubt on... laws imposing conditions and qualifications on the commercial sale of arms."

I'd rather not wind up in that position in the first place.
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Last edited by carguychris; July 13, 2016 at 07:59 AM. Reason: correction
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Old July 12, 2016, 05:51 PM   #13
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You can spin it anyway you want, but it is the will of the people that determines the law. The Constitution was once interpeted to allow segregation, and all sorts of racism. What changed that? You can argue it was the Congress or the courts, but those changes in the law only happened because of the will of the people. To argue that public opinion doesn't matter regarding our rights is a losing argument IMO.
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Old July 12, 2016, 05:53 PM   #14
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Quote:
White folks cared in 1963 when George Wallace attempted to block the desegregation of the University of Alabama. He was confronted by federal marshals, Deputy Attorney General Nicholas Katzenbach, and the Alabama Army National Guard and forced to step aside.
The Civil Rights movement had a few other things we don't have - a sympathetic national press, a sympathetic President and Attorney General willing to order the National Guard to enforce a Supreme Court ruling.

The current President and Attorney General are playing George Wallace's part.
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Old July 12, 2016, 07:38 PM   #15
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Frank -- your post #9 graphically and persuasively illustrates the difference in perception better than anything I've seen before -- and perception is absolutely critical if we are to maintain our firearm rights.
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Old July 12, 2016, 08:59 PM   #16
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Quote:
Originally Posted by Frank Ettin
The struggles for women's rights had considerable support and participation from men. The struggles against discrimination on the bases of religion had broad support and participation from a broad spectrum of religions. The struggles for racial equality had considerable support and participation from the White community. The struggles for gay rights had considerable support and participation from non-gays.

How much support and participation has the struggle for the RKBA had from non-gun owners?
Of course the above things are true -- somewhat broad support is required to pass federal legislation such as the Civil Rights Act of 1964.

But you're failing to grasp that we're not trying to drum up support to pass a RKBA. You may be shocked to discover we already have the 2A, and it's codified in the highest law of the land.

I have no problem with SCOTUS defining the reasonable restrictions around that right, just as they have done around the others. But in order for them to do their job, cases must be brought before them, and it's not Santa Claus who drops off those cases.

Maybe some of my differences with KyJim's position come from the differences between KY and CA. 2A-wise, things in KY are probably pretty good, and he just doesn't want his apple cart upset. But that's not the case here in CA, and I wonder how much KyJim would embrace his status quo if his legislature had decided to make him a criminal.

Well, elect different legislators, you say? Naive, I say.

Make more people pro-2A, you say? I have I do and I will, but that rate of change projects to have legislative impact well after the time when the 2A is a dead letter in this state, and as this state goes, so goes the nation.

Since the legislative option is currently insufficient, our actions must include lawsuits. I'm sorry that might put ripples into the serene surface of KyJim's lily pond, but if something more thoughtful than "don't do bad stuff" can be offered, perhaps we can implement it to everyone's benefit.
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Old July 13, 2016, 12:24 AM   #17
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Quote:
Originally Posted by speedrrracer
...Maybe some of my differences with KyJim's position come from the differences between KY and CA. 2A-wise, things in KY are probably pretty good, and he just doesn't want his apple cart upset. But that's not the case here in CA, and I wonder how much KyJim would embrace his status quo if his legislature had decided to make him a criminal....
Phooey! The reality is that KyJim is a very able and experienced lawyer. He understands how these things work much better than you do. In fact, you manifestly do not understand the points that he is making about legal strategy and how things work in the legal system.

Quote:
Originally Posted by speedrrracer
....our actions must include lawsuits. I'm sorry that might put ripples into the serene surface of KyJim's lily pond, but if something more thoughtful than "don't do bad stuff" can be offered, perhaps we can implement it to everyone's benefit.
I guess you haven't been paying attention to current events, but we've gotten hammered in some important cases in influential Circuits. We are also facing at least one key appointment to a sharply divided Supreme Court which could determine the direction the Court is likely to take in a number of types of cases, including Second Amendment cases.

So we're getting some really lousy RKBA opinions and some bad precedent. That's a hell of a lot more than a "ripple in a pond." Bad precedent can have a awfully long self-life. It took us over 130 years to get out from behind Cruikshank and something over 60 years to drive a stake through the heart of Miller. Heller and McDonald laid a great foundation, but the foundation is starting to crumble in, among other places, the Second, Third, Fourth, and Ninth Circuits. And if a Second Amendment case gets to an antagonistic Supreme Court, such a Court can do a great deal to eviscerate Heller and McDonald while giving the appearance of honoring stare decisis.

But of course you don't understand any of that.
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Old July 13, 2016, 10:57 AM   #18
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I suggest one read the recent comments by Justice Ginsburg and Chelsea Clinton's comments on her mother's plans for the 2nd Amend. now that Scalia is gone.

Quote:
But you're failing to grasp that we're not trying to drum up support to pass a RKBA. You may be shocked to discover we already have the 2A, and it's codified in the highest law of the land.
Just silliness as pointed out by our experts. The Constitution and the SCOTUS didn't keep 100K Japanese out of camps when the social consensus supported it.

If there were a 5/4 majority that wanted to ban all kinds of guns under reasonable restrictions, etc., bringing a case forward would be suicidal.

BTW, we had a debate where I claimed that the judges may be ruled more by their beliefs than the law. Some argued that I was overdoing it. Here's from the NY Times:
http://mobile.nytimes.com/2016/07/13...-ginsburg.html

Quote:
In this election cycle in particular, the potential of a new president to affect the balance of the court has taken on great importance, with the vacancy left by the death of Justice Antonin Scalia. As Justice Ginsburg pointed out, other justices are nearing an age when retirement would not be surprising. That makes it vital that the court remain outside the presidential process. And just imagine if this were 2000 and the resolution of the election depended on a Supreme Court decision. Could anyone now argue with a straight face that Justice Ginsburg’s only guide would be the law?
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Old July 13, 2016, 10:57 AM   #19
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Look at the 14th Amendment and the Slaughter-house cases. The court found what it wanted to find, and virtually destroyed a major segment of an amendment protecting our rights...and over 100 years later, we still have not regained that!
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Old July 13, 2016, 08:29 PM   #20
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Perhaps a better comparison than the civil rights movement would be the era of McCarthyism in the 50s. We have the hysteria and the complete disregard of constitutional rights of a group because their beliefs were unpopular.

I don't like communism at all, but that's not the point. It's still wrong to persecute someone because of their political beliefs. I fear we may be headed for something similar if this election goes the wrong way. We certainly have an adequate supply of hysteria and disregard for constitutional rights.
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Old July 13, 2016, 11:13 PM   #21
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Quote:
Originally Posted by Glenn E Meyer
The Constitution and the SCOTUS didn't keep 100K Japanese out of camps when the social consensus supported it.
This is where Frank would go off an a wild but educational tangent claiming you are completely ignorant of anything related to WW2. I'll look forward to his post.

Your statement isn't an indictment of the Constitution -- it's just a piece of paper. And it is far less an indictment of the judicial branch than of the executive branch, which ordered the internment.

But it completes the loop, as the executive branch was the only branch of government we hadn't yet damned in this thread. With that complete, we have presented irrefutable evidence which shows all 3 branches of the federal government are wildly irresponsible, shirk their duties, fail to protect citizens, and trample on civil rights. We can conclude that no single branch of the federal government can help us.

So....time to involve the state governments? Article V convention?

Quote:
Originally Posted by raimius
Look at the 14th Amendment and the Slaughter-house cases. The court found what it wanted to find...
Do legislatures do otherwise, and pass laws they don't want to pass? No, they don't, and that's the elephant in the room that many of the above posters have failed to address. Perhaps they think by sticking their heads in the sand the problems go away?
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Old July 14, 2016, 12:13 AM   #22
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Quote:
Originally Posted by speedrrracer
Quote:
Originally Posted by Glenn E Meyer
The Constitution and the SCOTUS didn't keep 100K Japanese out of camps when the social consensus supported it.
This is where Frank would go off an a wild but educational tangent claiming you are completely ignorant of anything related to WW2. I'll look forward to his post....
Actually, Glenn is correct.

Quote:
Originally Posted by speedrrracer
...Your statement isn't an indictment of the Constitution -- it's just a piece of paper. And it is far less an indictment of the judicial branch than of the executive branch, which ordered the internment.

But it completes the loop, as the executive branch was the only branch of government we hadn't yet damned in this thread. With that complete, we have presented irrefutable evidence which shows all 3 branches of the federal government are wildly irresponsible, shirk their duties, fail to protect citizens, and trample on civil rights. We can conclude that no single branch of the federal government can help us....
Is all of that supposed to mean something? It's complete gibberish.

Let's stay focused on reality and skip these excursions into your private universe.
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Old July 25, 2016, 12:34 AM   #23
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I'd like to raise another point about Frank's comparison to the Civil Rights Movement. Notice, if you will, that the black people in the photos he posted are not wearing berets and giving black power salutes, nor are the decked out in traditional African garb, nor are the in the faces of the white people surrounding them attempting to force their way of life down the whites' throats.

I think most would agree that Dr. King was the greatest Civil Rights leader in American history and that his work probably contributed to more positive change than that of any other single individual. What I always noticed about Dr. King which particularly contrasts with many of the so-called "civil rights activists" we're saddled with today was the way in which he conducted himself. Dr. King always took care to dress and groom himself in such a way that he looked respectable. He always spoke in an eloquent and articulate manner which sounded educated and respectable. I am thankful that the Civil Rights Movement was in the hands of people like Dr. King and not the race-baiting political bomb throwers we seem to be saddled with today as I believe that Dr. King and those like him achieved a much better result.

Dr. King could have delivered the same message while wearing a traditional African outfit and speaking in the slang of the black culture of the time, but he chose not to because his message would have been less well received that way. Dr. King understood that his argument would seem much more reasonable, and garner much wider support, if it were delivered by someone who seemed like a reasonable, educated, and respectable man.

Those who claim to be 2A activists could learn much from how Dr. King conducted himself. Strolling through a department store dressed like an unkempt hipster with a black rifle in your hands isn't going to make you seem reasonable, educated, or respectable to many people. It's nothing more than grandstanding and attempting to shove the gun culture down people's throats for the shock value of it.

While I'm not categorically against open carry, if you're going to do it then at least be a good ambassador to the rest of the populace. Dress yourself respectably, be articulate, use a proper holster which offers at least some retention and security, don't try to draw attention to yourself, and above all be polite and courteous.

For those who say "but it's my right, by God, and I should be able to carry however I want to!" I say this: we live in an imperfect word where what should be and what is are often two very different things. Stamping your proverbial feet and being obtuse isn't a very effective way to change enough people's minds to make what is into what it should be.
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Old July 25, 2016, 05:37 AM   #24
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Very, very well said, Webleymkv.
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Old July 25, 2016, 05:59 AM   #25
Tom Servo
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Join Date: September 27, 2008
Location: Foothills of the Appalachians
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It's always easy for those on the sidelines to disparage and criticize those taking all the risks. The NRA sure did when SAF went to bat for Heller.
OK. Let me put it this way: what if we'd lost Heller? What if the result had been 5-4 that the 2A only protects a right to own firearms in the service of a state-owned militia?

The very next mass shooting, we'd have seen sweeping bans and confiscation from an administration claiming, "it's constitutional; the Supreme Court said so."

2A litigation has a spotty and questionable history. I was optimistic about Heller at the time, but I was also very, very nervous. Our right to own firearms hinged on one Justice's opinion of the matter.

Were the case to be brought right now, we'd probably lose.

So, yes, the NRA was cautious. I don't blame them. We've seen dozens, if not scores, of shoddy nuisance 2A cases brought in the wake of Heller by people who don't understand the legal and political situation (Leonard Embody and Jay Hollis spring to mind), and I'm very glad none of those are going before SCOTUS any time soon.
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