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pinkieplum -> The 2nd Amendment (6/24/2008 12:36:16 AM)

quote:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
 
 
U.S. Constit., 2nd Amendment.
 
quote:

In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. The opposing theories, perhaps oversimplified, are an ''individual rights'' thesis whereby individuals are protected in ownership, possession, and transportation, and a ''states' rights'' thesis whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units.2829 Whatever the Amendment may mean, it is a bar only to federal action, not extending to state3233 or private3637 restraints. The Supreme Court has given effect to the dependent clause of the Amendment in the only case in which it has tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force

 
http://caselaw.lp.findlaw.com/data/constitution/amendment02/
 
The homepage of the National Rifle Association is here:
 
http://www.nra.org/home.aspx
 
The homepage of The Brady Campaign to Prevent Gun Violence is here:
 
http://www.bradycampaign.org/
 
Both sites have information on relevant judical decisions and legislative initiatives.
 
What do you think the U.S. Constitution permits -- or prohibits -- in the mileu of the 2nd Amendment?
 
What -- if any -- legislative initiatves should be passed?
 
The purpose of the Op is to elicit a discussion of on the 2nd Amendment and the legislation affected by it. 
 
It is not the purpose of the Op to inspire members' to post their own personal POVs on gun control and related issues.
 
pinkieplum



housesub4you -> RE: The 2nd Amendment (6/24/2008 4:11:59 AM)

Well, all I know is that Rockford is going to vote on allowing people to carry handguns.  It's about time.  I'm so dam tired of running over deer and geese for dinner.  Soon I'll be able to just shoot them as I drive through the park.  That is of course if I can still afford the gas



DarkSteven -> RE: The 2nd Amendment (6/24/2008 6:46:56 AM)

I'm surprised.  My understanding was that the 2dn amendment clearly was set up so that individuals could protect themselves from government power. 

My interpretation is that the amendment protects the populace in ways that guns were used for back then.

1. As stated, for direct defense against a government that could grow unjust.
2. As a means of livelihood.  Back then, guns were used to supply the larder. My interpretation thus is that the government should not infringe upon someone's right to provide for themselves.




Owner59 -> RE: The 2nd Amendment (6/24/2008 6:55:19 AM)

"My understanding was that the 2dn amendment clearly was set up so that individuals could protect themselves from government power. "

I hear that a lot but have never seen anything from the Founding Fathers to indicate this is true.

Could you reference where you learned this concept from?

So far,I`ve only heard NRA types say this.



TahoeSadist -> RE: The 2nd Amendment (6/24/2008 7:03:41 AM)

     It's a very simple bit of writing, that grants nothing, but recognizes the natural right of a person to keep and bear arms. Basic elementary school English class teaches (or did when I was in school) how to dissect a sentence, and that makes it even more clear. Thus: "A well regulated militia, being necessary to the security of a free State" is not a complete sentence, it is a clause, and provides an argument for the sentence "the right of the people to keep and bear arms shall not be infringed". Also of note is the last word, "infringed". It doesn't say that this right can not be taken away, it is stricter than that by saying that it can not even be approached or infringed upon. This document was written by people who started a revolution with weapons they owned, and acknowledged in the Declaration of Independence that there are times when it becomes necessary for such action to take place, so they understood that the best defense a free people have against tyranny is to be armed.

    This is even more clear when you look at the things Congress is actually allowed and required to do, most interestingly they are to "Provide and maintain a Navy" but there is not such a charge about maintaining an Army, in fact they can raise an army, but can only fund one for periods of 2 years, evidence of the distrust the founders had of government controlled standing armies. Another interesting point is that Congress has authority to issue "Letters of Marque and Reprisal", which in those days meant that in time of war, a person could get a letter and use his ship to attack enemy vessels in the same way the US Navy can. Note they don't say that upon issue the person can then arm himself, as logic says that the person wishing to become a privateer must have cannons of his own (the most powerful weapon of the day) as a matter of course.

    To answer the original question then, I think that the laws and legislation has missed a crucial test, i.e. "Does this <insert any proposed law or ruling>  infringe on the right of the people to keep and bear arms?"  Thus it is a simple yes or no, with no emotion involved. Unfortunately, as can be seen with the myriad laws that do not meet this test, this hasn't been done, and worse then, proponents of more laws point to faulty decisions and say "they ruled this way, so we can or must as well", the functional equivalent of justifying bad behavior to your parents by saying "all the other kids were doing it".


TS



pinkieplum -> RE: The 2nd Amendment (6/24/2008 7:32:34 AM)

quote:

ORIGINAL: DarkSteven

I'm surprised.  My understanding was that the 2dn amendment clearly was set up so that individuals could protect themselves from government power. 

My interpretation is that the amendment protects the populace in ways that guns were used for back then.

1. As stated, for direct defense against a government that could grow unjust.
2. As a means of livelihood.  Back then, guns were used to supply the larder. My interpretation thus is that the government should not infringe upon someone's right to provide for themselves.




The FindLaw link I gave in the Op has a short but informative discussion of 2nd Amendment decisions.  The basic dispute lies in confusion over whether to read the Amendment's single sentence as a whole -- so that gun-toting is limited to forming militias -- or to as 'additive' -- that people have both the right to bear arms and the right to form militias. 
 
Since the U.S. Supreme Court decisions under the 2nd Amendment are so convoluted it's hard to suss out even the current state of the law.  IMO, only a Con Law expert can suss the history of 2nd Amendment Law.
 
BTW, I'm not aware of any decision holding that a person has the right to bear arms for the purpose of overthrowing the government, and Treason is a Constitutionally-defined crime. 
 
quote:

U.S. Constitution, Section 3.
 
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

 
Please don't ask me about the law of Treason. 
 
I'll have a total brain fart.
 
pinkieplum



celticlord2112 -> RE: The 2nd Amendment (6/24/2008 7:37:34 AM)

It says the right to keep and bear arms shall not be infringed.

Seems fairly simple and straightforward enough to me.  The government cannot and should not ban or prohibit private gun ownership.

Assault Weapons Ban?  Unconstitutional

Bans on certain types of ammunition?  Unconstitutional

Any law that restricts or inhibits the right of a person to purchase and possess weapons (firearms) is verboten under the 2nd Amendment.

Any argument that asserts otherwise.....is wrong.



pinkieplum -> RE: The 2nd Amendment (6/24/2008 7:47:07 AM)

quote:

To answer the original question then, I think that the laws and legislation has missed a crucial test, i.e. "Does this <insert any proposed law or ruling>  infringe on the right of the people to keep and bear arms?"  Thus it is a simple yes or no, with no emotion involved. Unfortunately, as can be seen with the myriad laws that do not meet this test, this hasn't been done, and worse then, proponents of more laws point to faulty decisions and say "they ruled this way, so we can or must as well", the functional equivalent of justifying bad behavior to your parents by saying "all the other kids were doing it".

TohoeSadist


Man, You are bright, TahoeSadist!
 
I agree with what You've said; legislators do not draft bills with an eye on the Constitional prohibition contained in the 2nd Amendment. 
 
Instead they act like f**ktards and jump around responding to the latest poll, letters from constituents, Supreme Court decision, lobbyists' 'efforts', etc.
 
We only disagree on one point:  I read the 2nd Amendment as conjunctive; so unless there's a 'Militia' underway, no person is guaranteed a right to bear arms by the Constitutiion.
 
pinkieplum



slaveboyforyou -> RE: The 2nd Amendment (6/24/2008 7:51:26 AM)

quote:

I hear that a lot but have never seen anything from the Founding Fathers to indicate this is true.

Could you reference where you learned this concept from?

So far,I`ve only heard NRA types say this.


It's in the words Owner; it's clear as day if you look at the language. 

quote:

A well regulated Militia...


The word "regulated" meant trained or proficient in the 18th Century.  Regulated didn't mean legislated or controlled.  A "Militia" did not mean an army.  If it meant that, the founders would have said so.  A militia at that time was the people.  The Founders never made any attempt to set up an organized Militia like the National Guard, and they never attempted to regulate firearms. 

quote:

being necessary to the security of a free State


Here is a key phrase in the wording.  It doesn't say the security of the State.  It says "necessary for the security of a FREE State."  The Founders were less worried about foreign invaders than they were about government tyranny.  The Founders specifically set up the Constitution to give the People the power, not the State.  The word "necessary" is not a mistake in wording.  They fully believed that an armed citizenry was the only way to SECURE a free society. 

quote:

the right of the people to keep and bear Arms, shall not be infringed.


The end of the wording is clear as a bell.  THE RIGHT (not a priviledge granted by the government, but a natural right) of the PEOPLE (all of us, not just soldiers and government authorities) SHALL NOT BE INFRINGED (not maybe, not sometimes.  NOT BE infringed.  Period)



UncleNasty -> RE: The 2nd Amendment (6/24/2008 1:59:05 PM)

Most, if not all, state militias have fallen under the control of the states National Gaurd units. Ed Vieira, a renowned Costitutional Attorney (he's had 4 cases before the US Supreme court - and he's won 3 of them) speaks quite intelligently and eloquently on the subject of militias.

As for the 2nd Amendment, the wording has always leapt out at me, and I note it is one of only two places in the Constitution that uses language which not only informs of a right and governmental disability, but also tells us why we need to have it, and do in fact it.

"A well regulated militia, BEING NECESSARY TO THE SECURITY OF A FREE STATE, the right of the people to keep and bear arms shall not be infringed."

They didn't make a suggestion. They didn't say "We think this might be a good idea." Tthey didn't say "How about if we try this for awhile..." No, they chose very specific language "...being necessary..." I think and feel there is great import in those words.

Does anyone else recall guns being confiscated from law abiding citizens that were merely trying to protect their property in the aftermath of Kitrina? National Gaurd troops, in conjunction with the private militia the operates outside of governmental controls known as Black Water USA, were going around confiscating weapons.

A scary place we're living when we compare what the reality is supposed to be, in accordance with our Constitution, the supreme law of the land, and the reality we actually have.

Please folks, read and understand our Constitution.

Sincerely,

Uncle Nasty



housesub4you -> RE: The 2nd Amendment (6/24/2008 2:08:22 PM)

Please folks, read and understand our Constitution.

Sincerely,

Uncle Nasty
[/quote]

Read it sure, but it appears it is starting to protect only those who can afford to defend themselves in court.  Just look at the last 4 years, what I have learned is if you have enough power, then you are above the law.





slvemike4u -> RE: The 2nd Amendment (6/24/2008 2:20:16 PM)

quote:

ORIGINAL: celticlord2112

It says the right to keep and bear arms shall not be infringed.

Seems fairly simple and straightforward enough to me.  The government cannot and should not ban or prohibit private gun ownership.

Assault Weapons Ban?  Unconstitutional

Bans on certain types of ammunition?  Unconstitutional

Any law that restricts or inhibits the right of a person to purchase and possess weapons (firearms) is verboten under the 2nd Amendment.

Any argument that asserts otherwise.....is wrong.

All true...You know what else would be wrong ,to assert that the Founding Fathers could concieve of such things as Assualt Weapons or armor piercing ammunition...that too would be wrong...



DomKen -> RE: The 2nd Amendment (6/24/2008 2:24:12 PM)

If only they had been clear.

Two reasonable arguments can be made. On one hand you can ignore the initial clause entirely and say that this is a right that is granted to all people. It would also mean that the right is unlimited as to type of firearm. Note ammuntion is definitely not covered by this ammendment only the firearm itself under this hyper technical interpretation.

OTOH you can include the introductory phrase and take into account that this 'right' wasn't folded into the other individual rights enumerated in the First Ammendment. Under this interpretation each state is allowed to maintain its own militia and to arm them as it sees fit. Historically this was the way it was viewed as evidenced by historical accounts of frontier towns banning firearms inside the city limits including quite famously the town of Medora North Dakota, site of Teddy Roosevelt's ranch, whose gun control efforts the great Republican President praised.

Which is right? At this point I think it is long past the point where we can legitimately discuss the concept of completely unfettered gun ownership. However I don't see the political will to amend the Constitution to make the matter clear. So I hope that we can find some mutually acceptable middle ground but have my doubts that people who argue for .50 caliber machineguns in private hands is a good thing will ever agree to any restrictions.



slvemike4u -> RE: The 2nd Amendment (6/24/2008 2:32:09 PM)

quote:

ORIGINAL: DomKen

If only they had been clear.

Two reasonable arguments can be made. On one hand you can ignore the initial clause entirely and say that this is a right that is granted to all people. It would also mean that the right is unlimited as to type of firearm. Note ammuntion is definitely not covered by this ammendment only the firearm itself under this hyper technical interpretation.

OTOH you can include the introductory phrase and take into account that this 'right' wasn't folded into the other individual rights enumerated in the First Ammendment. Under this interpretation each state is allowed to maintain its own militia and to arm them as it sees fit. Historically this was the way it was viewed as evidenced by historical accounts of frontier towns banning firearms inside the city limits including quite famously the town of Medora North Dakota, site of Teddy Roosevelt's ranch, whose gun control efforts the great Republican President praised.

Which is right? At this point I think it is long past the point where we can legitimately discuss the concept of completely unfettered gun ownership. However I don't see the political will to amend the Constitution to make the matter clear. So I hope that we can find some mutually acceptable middle ground but have my doubts that people who argue for .50 caliber machineguns in private hands is a good thing will ever agree to any restrictions.
Domken You need to reread some of the post's on this very thread ,just a short recounting of them would see an argument made for the unconstituionalness of the ban on assualt weapons ,a depiction of unlawful siezures of weapons after Katrina from citizens merely trying to protect their property,nevermind some of these citizens were firing on rescue workers merely charged with saving their lives...



kdsub -> RE: The 2nd Amendment (6/24/2008 2:38:15 PM)

Nitpick this word…nitpick that word…shouldn’t common sense be considered.

The cats out of the bag… there are guns everywhere…no US government is going to make all guns illegal. Arguing will not make them disappear so why bother. Spend the energy solving the problems that cause people to abuse that right.

Does that mean if I want arm myself with a tank or antiaircraft missile I have the right under the 2nd amendment...NO… common sense

Should states have the right to make laws regulating the sale and registering the owners… YES…common sense

Should states have the right to determine where these weapons can be carried….YES…common sense.

Should the states have the right to determine when someone is not mentally stable and prohibit them from owning weapons…YES…common sense.

Should the Federal courts have the right to strike down any state laws it deems contrary to the constitution…YES…common sense… it is their job.

Don’t you all ever get tired of the same old useless arguments over and over again?

Butch



Hippiekinkster -> RE: The 2nd Amendment (6/24/2008 2:46:25 PM)

"James Madison wrote the Second Amendment to assure the southern states that Congress would not undermine the slave system by disarming the militia, which were then the principal instruments of slave control throughout the South."
http://www.vpc.org/fact_sht/hidhist.htm



DomKen -> RE: The 2nd Amendment (6/24/2008 3:01:20 PM)

quote:

ORIGINAL: slvemike4u

quote:

ORIGINAL: DomKen

If only they had been clear.

Two reasonable arguments can be made. On one hand you can ignore the initial clause entirely and say that this is a right that is granted to all people. It would also mean that the right is unlimited as to type of firearm. Note ammuntion is definitely not covered by this ammendment only the firearm itself under this hyper technical interpretation.

OTOH you can include the introductory phrase and take into account that this 'right' wasn't folded into the other individual rights enumerated in the First Ammendment. Under this interpretation each state is allowed to maintain its own militia and to arm them as it sees fit. Historically this was the way it was viewed as evidenced by historical accounts of frontier towns banning firearms inside the city limits including quite famously the town of Medora North Dakota, site of Teddy Roosevelt's ranch, whose gun control efforts the great Republican President praised.

Which is right? At this point I think it is long past the point where we can legitimately discuss the concept of completely unfettered gun ownership. However I don't see the political will to amend the Constitution to make the matter clear. So I hope that we can find some mutually acceptable middle ground but have my doubts that people who argue for .50 caliber machineguns in private hands is a good thing will ever agree to any restrictions.
Domken You need to reread some of the post's on this very thread ,just a short recounting of them would see an argument made for the unconstituionalness of the ban on assualt weapons ,a depiction of unlawful siezures of weapons after Katrina from citizens merely trying to protect their property,nevermind some of these citizens were firing on rescue workers merely charged with saving their lives...

What point are you trying to make?

Taking weapons from people firing on emergency workers is certainly legal in every jurisdiction I'm aware of. Whether those laws are themselves constitutional is something I'm not entirely sure about.

I never said anything about banning assault weapons, the term is functionally meaningless.



slvemike4u -> RE: The 2nd Amendment (6/24/2008 3:10:37 PM)

My point was that You while You seem to concede a need for some gun laws there are those amonst us who read it different.While I personally feel better knowing assualt weapons are banned an earlier post declared that,according to his interpatation, to be unconstitutional,while another post decried the seizing of personal weapons after Katrina.My point is not all seem willing to have common  sense be used...they read the line "the right of the people to keep and bear arms,shall not be infringed"has sacrosant...never mind the Founders could not envision assualt rifles



DomKen -> RE: The 2nd Amendment (6/24/2008 3:29:35 PM)

Which I made clear was a possible interpretation of the ammendment see my original post in this thread.



slvemike4u -> RE: The 2nd Amendment (6/24/2008 3:43:47 PM)

My response wasn't necessarily a rebuttal of Your post ,more me pointing out that not all are so willing to be reasonable when discussing their precious right to arm themselves to the teeth...and damm the body count...sorry if You saw my post as an attack on Yours,I will try to be cleared in the future



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