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Old February 8, 2016, 07:27 PM   #51
barnbwt
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I suspect the signatories of the constitution intended there to be no governmental authority over the possession or purpose of arms (just the use/consequences)...but with the clear understanding that it was impossible for a governing structure to remain disciplined & avoid infringing upon the right almost immediately.

It'd be like how human equality was a base principle underpinning the whole arrangement, yet the 2/3rds compromise for slave 'votes' was shoe-horned in before the document had even been signed. The RKBA, like all the other rights, is aspirational. The Bill of Rights has never been a guarantee (which is why so many founders opposed it playing at being one & did not want it included), but is instead a statement for us future generations to reflect back upon; are we abiding it? If not, we know we are straying from the principles supporting our entire governmental framework, and should work to correct ourselves.

As we know, the RKBA is one of, if not the hardest, of the explicitly-enumerated rights for governing bodies to respect and stay clear from. Almost as difficult as the recognition of intrinsic human equality before the law (and for a lot of the same reasons, to be honest)

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Old February 8, 2016, 07:49 PM   #52
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The 2/3 (it was a little different I think, but that doesn't really matter for this discussion) vote was slipped in so that the slave states could not count the slaves to give them more voting power than non slave states. Despite what the Farrikans etc claim, it was not to diminish the humanity of blacks but to ensure they were not used to increase votes in favor of slavery. The slave owner could determine the slaves' votes.
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Old February 8, 2016, 10:11 PM   #53
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Quote:
Originally Posted by Aguila Blanca
Please expand on this. I've read a lot about the Constitution and the pros and cons at the time it was adopted, and I have no idea what your statement means. It seems to imply that the Founders didn't care if the states infringed the RKBA, yet the fact was that virtually all the original thirteen colonies/states either already had a similar (sometimes stronger) prohibition in their constitutions, or adopted something very similar soon after the federal Constitution and Bill of Rights were ratified.

Reading contemporaneous writings, it seems clear to me that the Founders absolutely intended that the RKBA should not be infringed -- at any level. What am I missing?
As noted in the Heller decision, only four state constitutions contained a right to bear arms when the Bill of Rights was ratified.

PA 1776 - XIII. That the people have a right to bear arms for the defence of themselves and the state;
VT 1777 - XV. That the people have a right to bear arms for the defence of themselves and the State;
MA 1780 - Art. XVII. The people have a right to keep and to bear arms for the common defence.
NC 1776 - XVII. That the people have a right to bear arms, for the defence of the State;

The state constitutions acknowledged a right to arms, but did not bar the states from adopting what we would call 'reasonable regulations' today. Indeed, Heller and McDonald examined a few of those early regulations. In contrast, the Second Amendment (at least as I read it) totally denies the federal government any power regarding the right to arms.

Based on the historic record, the Founders appear to have been comfortable with the states retaining power related to the right to arms, but were emphatic ("shall not be infringed") about the federal government not being involved in any way.

I did not mean to suggest that the Founders "didn't care if the states infringed the RKBA." Rather, I think the Founders believed that the people of the respective states were the ones who should make determinations for their states.
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Old February 8, 2016, 10:38 PM   #54
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The Second Amendment was written as a clear prohibition against federal government interference in an area perceived to be the domain of the states. But that structure of no federal power or authority was based on the reality of state power and authority. The awkward process of "incorporating" the Bill of Rights through the 14 Amendment creates the problem. If the Second Amendment is applied to the states absolutely, as it was intended to be applied to the federal government, then no level of government would have any power or authority over arms. That result clearly flies in the face of the understanding and intent of the Founders when the Second Amendment was adopted. Thus, the square peg meets the round hole.
This was cleared up by the Supreme Court in 2010 in the case McDonald v. Chicago. The Court held that the individual RKBA protected by the Second Amendment is incorporated by the due process clause of the 14th Amendment and applies to the states.
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Old February 8, 2016, 11:13 PM   #55
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Quote:
Originally Posted by gc70
As noted in the Heller decision, only four state constitutions contained a right to bear arms when the Bill of Rights was ratified.
I believe that's incorrect. That citation from Heller was a reference to the only four original states whose constitutions made the RKBA a collective right ("for the common defence"). Most, if not all, of the other states either guaranteed to the[ir] People a RKBA that was not tied to the common defence, or that was for both personal and common defense. (Curiously, Massachusetts was one of the few outliers, that recognized ONLY the common defense for the RKBA.)

Quote:
The state constitutions acknowledged a right to arms, but did not bar the states from adopting what we would call 'reasonable regulations' today.
I don't this is correct, either. The Pennsylvania state constitution, for example, says that the RKBA "shall not be questioned."
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Old February 8, 2016, 11:37 PM   #56
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Quote:
Originally Posted by Aguila Blanca
Quote:
Originally Posted by gc70
As noted in the Heller decision, only four state constitutions contained a right to bear arms when the Bill of Rights was ratified.
I believe that's incorrect. That citation from Heller was a reference to the only four original states whose constitutions made the RKBA a collective right ("for the common defence"). Most, if not all, of the other states either guaranteed to the[ir] People a RKBA that was not tied to the common defence, or that was for both personal and common defense. (Curiously, Massachusetts was one of the few outliers, that recognized ONLY the common defense for the RKBA.)
From page 29 of Heller:

Quote:
We therefore believe that the most likely reading of all four of these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other States did not include rights to bear arms in their pre-1789 constitutions—
You will find the same results if you check the individual state constitutions (as I did) at Yale's Avalon Project website.

Quote:
Originally Posted by Aguila Blanca
The Pennsylvania state constitution, for example, says that the RKBA "shall not be questioned."
The Pennsylvania Constitution of 1776 did not contain such language. That language was adopted subsequent to the Second Amendment's ratification in the Pennsylvania Constitution of 1790.
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Old February 9, 2016, 12:01 AM   #57
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So can the court that this was sent back to just do some pretzel logic and claim that they are utilizing "Strict Scrutiny" to uphold the AWB and magazine capacity limitations? I mean a lot of the logic these courts use is asinine anyway regarding how they support gun control.
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Old February 9, 2016, 05:56 AM   #58
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So can the court that this was sent back to just do some pretzel logic and claim that they are utilizing "Strict Scrutiny" to uphold the AWB and magazine capacity limitations?
It would be very interesting to see how they could reconcile a blanket ban on a commonly owned weapon with strict scrutiny.
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Old February 9, 2016, 08:56 AM   #59
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Quote:
Originally Posted by Tom Servo
Quote:
Originally Posted by LogicMan
So can the court that this was sent back to just do some pretzel logic and claim that they are utilizing "Strict Scrutiny" to uphold the AWB and magazine capacity limitations? I mean a lot of the logic these courts use is asinine anyway regarding how they support gun control.
It would be very interesting to see how they could reconcile a blanket ban on a commonly owned weapon with strict scrutiny.
That was my whole point in stating the Third Option.

As we have seen, time and again, the lower courts have used Intermediate Scrutiny in name, but Rational Scrutiny in practice. I would expect the exact same: Strict Scrutiny in name, but Rational Scrutiny in practice. See Korematsu v. United States
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Old February 25, 2016, 10:38 AM   #60
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Just a bit of an update.

On Thursday, Feb 18th, a petition for rehearing en banc was filed. The mandate was stayed the next day and a response to the petition was requested.
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Old March 5, 2016, 11:57 AM   #61
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Filed yesterday, March 4th

Quote:
A majority of judges in regular active service and not disqualified having voted in a requested poll of the court to grant Appellees’ petition for rehearing en banc,

IT IS ORDERED that rehearing en banc is granted.

The parties and amici curiae shall file, within 10 days of the date of this order, 16 additional paper copies of their briefs and appendices filed under the original briefing schedule.

En banc oral argument of this case is scheduled for Wednesday, May 11, 2016, at 9:00 a.m. in Richmond, Virginia.
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Old March 6, 2016, 06:31 PM   #62
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Quote:
Looks like the Maryland assault weapons ban and magazine capacity restrictions will stand. The judge cited statistics saying that the banned firearms and large capacity magazines were rarely owned but disproportionately used in mass shootings and in murders of leos. Will this be appealed? What can we do to counter the arguments that firearms and magazines that hold over ten rounds are unusual and dangerous arms?
I'm not a lawyer, I don't even play one on TV so it's no wonder that I'm confused by this.

If someone is willing to commit the crime of murder, the fear of punishment of the lesser crime of possessing a banned gun couldn't possibly be a deterrent.

By nature, only the law abiding respect a ban. Those seeking to commit murder are not bound by law lest they not be murderers.

If it is a question of access, I concede that fewer of a thing makes that thing less obtainable by the aggregate but perhaps not by those for whom the ban was intended. A ban does not prevent a targeted item from entering a restricted area but it DOES limit the consumer base of that item to those willing to break the law in order to obtain it.
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Old March 6, 2016, 08:04 PM   #63
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Quote:
Originally Posted by Ocraknife
If it is a question of access, I concede that fewer of a thing makes that thing less obtainable by the aggregate but perhaps not by those for whom the ban was intended. A ban does not prevent a targeted item from entering a restricted area but it DOES limit the consumer base of that item to those willing to break the law in order to obtain it.
I can't see inside legislators' minds, but my gut feeling is that magazine capacity limits are nothing more nor less than a kneejerk reaction to some of the more spectacular mass shootings, such as Sandy Hook. Lawmakers who know nothing about guns read the horrific reports about shooters carrying all those "bullets," and they get it in their heads that reducing the capacity of the magazines will somehow make a difference. If they could get away wityh requiring all firearms to be single-shot, they would do that in a heartbeat, but they know that won't fly (yet), so magazine capacity limits is their first step.

To them it makes sense -- but that's because they have no idea how quickly a shooter with even moderate practice can change magazines. On top of that, I think I recall reading in connection with Sandy Hook that the police found partially expended magazines along the shooter's path. In other words, he was doing tactical reloads between classrooms in order to minimize his time lost for magazine changes while in a classroom and engaging targets.

I periodically wonder if it would help us or hurt us to show them the video clip of Travis Tomasie doing a mag change ...

Don't blink

https://www.youtube.com/watch?v=Hgdq1FBYTUE

https://www.youtube.com/watch?v=8d2VdaiIodo
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Old March 7, 2016, 08:42 AM   #64
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Quote:
Originally Posted by Orcaknife
If someone is willing to commit the crime of murder, the fear of punishment of the lesser crime of possessing a banned gun couldn't possibly be a deterrent.

The way the justice system is now, someone who commits multiple crimes at once, frequently gets a "discount" to the penalty leveled on them by serving time for all of them at the same time (concurring sentences). So, a murder conviction of, say, 20 years, can effectively negate virtually all the other crimes committed around the time of the murder. So, even if the gun laws were enforced, the penalties would largely be levied against those who solely committed a gun crime (carry concealed without permit, etc) but did not commit any other crimes with the gun.
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Old March 7, 2016, 08:50 AM   #65
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Quote:
Originally Posted by Aguila Blanca
I can't see inside legislators' minds, but my gut feeling is that magazine capacity limits are nothing more nor less than a kneejerk reaction to some of the more spectacular mass shootings, such as Sandy Hook.
Some of it was undoubtedly to make the creepy politicians look good. I think stuff like magazine capacities, though, are more of an incremental approach to banning all guns. Once you get handgun magazine capacities down to around a revolver, more people will just buy revolvers. Once that happens, politicians will ban semi-auto handguns without too much fallout. Etc. Etc.
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Old March 16, 2016, 01:23 AM   #66
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"I periodically wonder if it would help us or hurt us to show them the video clip of Travis Tomasie doing a mag change ..."

Well, let me put it to you this way...Using the recent San Bernardino shooting as an excuse (because the rifles used were not configured with "bullet buttons" in compliance with current California law), two bills have been (re)introduced to ban the bullet button because this work-around for the California requirement of fixed magazines for AR/AK pattern rifles apparently allows shooters to reload too quickly. If (when) passed by the Legislature (and unless vetoed by Gov. Brown, which is quite possible), the proposed law will require opening the action to reload the fixed internal magazine. You will be able to keep your BB equipped rifle, but will be required to register it with the State DOJ as an "assault weapon", the effect of which is to prohibit all in-state transfers of that firearm.

Another bill, finding this approach not good enough, proposes banning sales of ALL semiauto rifles and shotguns with detachable magazines. I do not know if there is a grandfather clause in this proposed law, but assume there must be.
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Old March 16, 2016, 10:00 AM   #67
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Don't assume that in new legislation. The folks analyzing the AWB of the past are quite aware that existing stocks of weapons and mags made it useless.

Confiscating all semis and mags has been proposed.
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Old March 17, 2016, 12:00 AM   #68
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"The Second Amendment was written as a clear prohibition against federal government interference in an area perceived to be the domain of the states."

I disagree. The first clause reads "A well regulated militia being necessary to the security of a free State," reflecting the prior disdain for a federal army, and recognizing that the individual States had the sovereign power to provide for their own defense." So your position is partially correct.

However, the dominant clause reads: "the right of the people to keep and bear Arms, shall not be infringed." The important words here are "the people." The Constitution provides in its very first sentence: "We the People of the United States." Numerous provisions of the constitution distinguish between the States and the People (or people), recognizing their separate sovereignties. So when the Second Amendment refers to "the people," it is not referring to the rights of the States to form militias, but the individual rights of the individual citizens to keep and bear arms. [One might note that most militias of the day were armed with the rifles the militiamen brought with them. Without a right to keep and bear, these militiamen could hardly have done so.]

All nine justices agreed that the Second guaranteed an individual right, disagreeing as to the scope of that right.
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Old March 17, 2016, 08:48 AM   #69
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Quote:
All nine justices agreed that the Second guaranteed an individual right, disagreeing as to the scope of that right.
That's quite difficult to square with the substance of the four justice dissent. The dissent written by Stevens does begin:

Quote:
The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.
The balance of Stevens' dissent explains how the rights isn't individual at all, but is really just a right to serve as a soldier in the military.

Quote:
The term “bear arms” is a familiar idiom; when used unadorned by any additional words, its meaning is “to serve as a soldier, do military service, fight.”
***
The Amendment’s use of the term “keep” in no way contradicts the military meaning conveyed by the phrase “bear arms” and the Amendment’s preamble.
Quote:
Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.
https://www.law.cornell.edu/supct/html/07-290.ZD.html

An individual right to serve a government controlled entity isn't an individual right in any substantive way. Only five of the justices on the Heller court endorsed an right of an individual to act as an individual.

Last edited by zukiphile; March 17, 2016 at 09:15 AM.
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Old March 23, 2016, 04:54 PM   #70
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Caetano may have made it that much more difficult for CA4 to try to pull a fast one. Since this law is effectively a ban, it seems meaningless for them to argue over scrutiny when the ban shouldn't be upheld under any elevated scrutiny.
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Old February 21, 2017, 09:35 PM   #71
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En-banc decision of 4th Circuit:
http://www.ca4.uscourts.gov/Opinions.../141945A.P.pdf

Summary: Semi-automatic weapons and standard capacity magazines not protected by the Second Amendment.

The Fourth Circuit basically said in a summary judgement that these arms are completely outside the Second Amendment and even if they aren't, Maryland's ban satisfies intermediate scrutiny. Really biased, hackneyed opinion.

Last edited by Bartholomew Roberts; February 21, 2017 at 09:43 PM.
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Old February 21, 2017, 10:08 PM   #72
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Before I read the entire opinion, does it mean the 2nd Amendment only applies to muzzle loading firearms?
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Old February 21, 2017, 10:10 PM   #73
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They even tried to say Heller allowed the banning of arms useful for military service...Talk about an intellectually bankrupt court!
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Old February 22, 2017, 11:21 AM   #74
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From the 4th's opinion:

Quote:
That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” —which the Heller Court singled out as being beyond the Second Amendment’s reach.
Can anybody explain just where in Heller SCOTUS said anything of the sort? They refer to US 554 (which is Heller) 627, but I don't have a copy of Heller with line numbers.

The closest thing I can find supports the right:

Quote:
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.
DC v Heller, p55
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Old February 22, 2017, 11:26 AM   #75
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So judicial rulings are based on statistics now? How about a little constitutional law consideration?
As a born and bred Marylander, this is exactly why I left that miserable state 15 years ago.
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