RE: 2nd Amendment and Strict Constructionists

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TheIronHorse -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 7:02:51 AM)
My individual right to live as a free man is absolute. A weapon that is at least as good as my enemy, real or perceived, is necessary to protect that freedom. My rights are NOT granted to me by the state, but by God, or at least my mom and dad. You cannot take that from me. So fuck your gun laws.

DomKen -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 7:03:14 AM)
quote: ORIGINAL: Kirata quote: ORIGINAL: DomKen I'll get started by presenting the two versions of the second amendment.... The capitalization of "militia" in the Second Amendment does not make it a proper noun, any more than the capitalization of "state" or "arms" in the same sentence makes them proper nouns. Only in a specific reference or title, as for example the Tennessee Militia, New York State, or Sergeant at Arms, are they proper nouns. All you are seeing here is the remnant of a quaint archaic convention of capitalizing nouns which was common during the 18th Century. Actually, it was fading out of favor by the time the Bill of Rights was drafted, but the practice persisted somewhat spottily. K. Got a reference to that?

thornhappy -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 7:36:46 AM)
quote: ORIGINAL: Arpig You know, every time I read the amendment, it seems to say something different, thus I cannot decide if it guarantees everybody the right to have guns, or if it guarantees the States the right to maintain an armed militia. However, given the context of the times, when the "militia" wasn't an organized equipped force like the National Guard and also that damned near everybody had a gun or two (for hunting and shooting redskins, etc.)m I tend to fall on the side of an individual right to guns. They didn't, not in Revolutionary times. There was no mass production at the time; Washington just about tore his hair out trying to get enough arms for his men.

Thadius -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 8:36:17 AM)
Morning Panda, Very interesting question. It has been one that I have wrestled with for a very long time, originally being from Chicago and seeing how harsh the bans and registration laws were. Speaking strictly from the Constructionist side of things, at least as I understand it, the argument would also have to include a discussion of States' Rights, and the fact that state and local law trumps federal. I believe that the founders rightly left the power at the local (state and smaller) levels. So from that perspective, one must ask is the 2nd Amendment one of those rights that the states gave power of to the federal government? Is the 2nd amendment, or even the 1st, for that matter, protected by the federal government or by the state governments? Which has power to enforce and protect those rights? I suppose that the 2nd Amendment debates before the courts in the future are more likely to focus on the 10th Amendment and the question "Did the states "expressly delegate" the matters of individual rights and protections (i.e. the bill of rights) to the federal government upon ratification of the Constitution? Madison said during the debate of the 10th Amendment "Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.'' The reason I bring this up, is there has been a history of using the 10th Amendment to curtail the rights or protections granted under other Amendments, such as the 14th and 15th. For the record, I am an avid hunter and sportsman. I love my firearms, and look forward to owning and purchasing more in the future (both for sport and self defense). I wish you well, Thadius

SpinnerofTales -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 9:16:51 AM)
quote: ORIGINAL: TheIronHorse My individual right to live as a free man is absolute. A weapon that is at least as good as my enemy, real or perceived, is necessary to protect that freedom. My rights are NOT granted to me by the state, but by God, or at least my mom and dad. You cannot take that from me. So fuck your gun laws. I do try to keep an open mind about gun ownership, even though I am not a gun owner. I try to ignore things like the statistics that say that a person is 400% more likely to get shot if they own a gun than if they don't. I try to concentrate on the posts of reasonable, sensible people who I have a good degree ofconfidence will not be a threat to themselves or others with a firearm in their possession. Then I read posts like this, think about the poster having one or more firearms and start to understand the "ban the guns" efforts.

DomImus -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 9:30:51 AM)
quote: ORIGINAL: Thadius Speaking strictly from the Constructionist side of things, at least as I understand it, the argument would also have to include a discussion of States' Rights, and the fact that state and local law trumps federal. I believe that the founders rightly left the power at the local (state and smaller) levels. So from that perspective, one must ask is the 2nd Amendment one of those rights that the states gave power of to the federal government? Is the 2nd amendment, or even the 1st, for that matter, protected by the federal government or by the state governments? Which has power to enforce and protect those rights? Good point. The way I see we should decide whether the Constitution does or does not trump local (state/local) law on the whole. Look back to election day and the vote in California to amend their state constitution to no longer allow gay marriage. There was a huge backlash calling it unconstitutional based on IIRC the 14th Amendment. This is just an example but if the Constitution does indeed protect gay marriage at a local level based on the 14th Amendment then shouldn't the 2nd Amendment also apply at local levels? Conversely if the 2nd Amendment does not extend to local jurisdictions (and simply prohibits the federal government from infringing upon gun owner's rights) then do any of the amendments to the Constitution apply in like fashion? It's worth noting that many of the same folks who supported the issues surrounding the 14th Amendment don't see the 2nd Amendment providing the same safeguards that the gun activist crowd does.

Kirata -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 9:34:09 AM)
quote: ORIGINAL: DomKen Got a reference to that? The underlining in the following excerpts is mine... Wikipedia: In German, all nouns and noun-like words are capitalized. This was also the practice in Danish before a spelling reform in 1948. It was also done in 18th century English (as with Gulliver's Travels and most of the original 1787 United States Constitution). Eighteenth Century Grammars: Daniel Fenning, the author of the highly successful spelling book of 1756, instructed that both schoolmasters and pupils are to write substantives with a "Capital Letter." It was custom, then, to begin every noun with a capital letter, which is the same practice the German language still holds today. However, by 1795, the discussion of capitals was dropped by Fenning and the practice of the capitalization of all nouns soon became a thing of the past. University of Wyoming Style Guide: When citing 18th-century petitions, stick to original capitalization, as we do in 18th-century book titles. K.

DomImus -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 9:35:39 AM)
quote: ORIGINAL: SpinnerofTales I do try to keep an open mind about gun ownership, even though I am not a gun owner. I try to ignore things like the statistics that say that a person is 400% more likely to get shot if they own a gun than if they don't. I try to concentrate on the posts of reasonable, sensible people who I have a good degree ofconfidence will not be a threat to themselves or others with a firearm in their possession. Then I read posts like this, think about the poster having one or more firearms and start to understand the "ban the guns" efforts. We're into our second page of largely intelligent discourse on this topic and that's the one post you chose to focus on.

Thunderbird56 -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 10:41:29 AM)
quote: ORIGINAL: TheIronHorse My individual right to live as a free man is absolute. A weapon that is at least as good as my enemy, real or perceived, is necessary to protect that freedom. My rights are NOT granted to me by the state, but by God, or at least my mom and dad. You cannot take that from me. So fuck your gun laws. Bravo! The road to hell is paved with good intentions. That's what all of you advocating "reasonable" firearms restrictions are trying to accomplish ... you're trying to prevent something bad from happening. I concur with the sentiment, but the result is often not what you anticipated or expected. Prohibition doesn't work. Period. It didn't work with alcohol, it isn't working with drugs, gambling, or prostitution and it won't work with guns ... no matter how much you want it to.

SpinnerofTales -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 10:44:08 AM)
quote: ORIGINAL: DomImus We're into our second page of largely intelligent discourse on this topic and that's the one post you chose to focus on. Yes. When in any situation, the one loony with a gun is the one I'm going to focus on. Now let's see how many "right on"'s he gets.

Kirata -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 10:49:54 AM)
quote: ORIGINAL: SpinnerofTales in any situation, the one loony with a gun is the one I'm going to focus on. Gloria: Did you know that 65% of the people murdered in this country were killed by handguns? Archie: Would it make you feel any better, little girl, if they was pushed out of windows? K.

popeye1250 -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 11:14:23 AM)
Panda, why should anyone need a "permit" to excercise a right? You don't need a "permit" to vote or to speak your mind under the first amendment. Why anyone would want "government" involved in something like that is beyond me. Having a driver's lisense is a "priviledge" not a right. I just wish that those in government would fight for our second amendment rights with the exact same zeal that they seem to have for "Civil Rights." Where's the pony-tail birchenstockers on this issue? As they say, their silence is deafening. In Vermont you don't need no stinking "permits" to carry a gun either concealed or openly and I think New Hampshire and Maine are leaning the same way and that's the way it should be. Can you imagine what would happen if any level of "government" tried to limit the first amendment? "Government" exists to "serve" The People not to "dictate" to us!

SpinnerofTales -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 11:53:26 AM)
quote: ORIGINAL: popeye1250 Where's the pony-tail birchenstockers on this issue? As they say, their silence is deafening. Gee...I don't know, Popeye. Maybe they were in the same bar the gun nuts (and no, I don't mean all the responsible gun owners or even those concerned with the second amendment, I mean the gun nuts) hung out in when things like voting rights, equal pay for equal work, the government not being allowed to spy on anyone for any reason without any acountablility were being raised. How silly of them not to "realize" that the "only" important "issue" is whether or not you can buy a "howitzer" at your "local" "7-11". Sheesh.

DomKen -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 11:58:14 AM)
quote: ORIGINAL: Thadius Morning Panda, Very interesting question. It has been one that I have wrestled with for a very long time, originally being from Chicago and seeing how harsh the bans and registration laws were. Speaking strictly from the Constructionist side of things, at least as I understand it, the argument would also have to include a discussion of States' Rights, and the fact that state and local law trumps federal. I believe that the founders rightly left the power at the local (state and smaller) levels. So from that perspective, one must ask is the 2nd Amendment one of those rights that the states gave power of to the federal government? Is the 2nd amendment, or even the 1st, for that matter, protected by the federal government or by the state governments? Which has power to enforce and protect those rights? I suppose that the 2nd Amendment debates before the courts in the future are more likely to focus on the 10th Amendment and the question "Did the states "expressly delegate" the matters of individual rights and protections (i.e. the bill of rights) to the federal government upon ratification of the Constitution? Madison said during the debate of the 10th Amendment "Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.'' The reason I bring this up, is there has been a history of using the 10th Amendment to curtail the rights or protections granted under other Amendments, such as the 14th and 15th. For the record, I am an avid hunter and sportsman. I love my firearms, and look forward to owning and purchasing more in the future (both for sport and self defense). I wish you well, Thadius The US Constitution trumps any and all state action period. The 14th amendment applies all federally granted rights to all persons in the US no matter the opinions of the states. That is all extremely well settled law. If the 2nd amendment is a personal right in the same way those granted in the first are then no law can be made restricting the ownership or carrying of a firearm except under the same sort of conditions where speech is curtailed, the infamous shouting "fire" in a theater example, which I guess means until at least an implied threat was made anyone would be legal carrying. I'm guessing most people do not view that as a good idea, gang kids with full auto kalishnikovs slung over their shoulders would make Chicago a very different place very quickly. So it is necessary to either view the 2 nd as it has been traditionally interpreted, as applying to official state "militias" or to repeal it and pass a batter amendment in its place that would allow for some common sense on the subject.

AnimusRex -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 12:10:19 PM)
In answer to Panda's question: A good point, but there are no unlimited rights; Freedom of religion doesn't allow me to withold medical treatment from my child; Freedom of speech doesn't allow me to scream "Fire" in a crowded theater; and freedom to keep and bear arms doesn't allow me to walk around with a fully automatic rifle. We aren't atomized individuals, living on our own separate islands; we have to live and work and cooperate in a civil society, which means we need to accomodate reasonable - repeat- reasonable restrictions on liberties so as to make sure everyone gets a fair chance to exercise them. For the most part, SCOTUS has adopted a standard where any restriction on liberty has to be prompted by some "compelling" need for it, llike public safety. All the examples I noted above were based on the need for public safety and order. In fact, the entire Constitution is written around the underlying idea that all power needs to be balanced, held in check by something else. The idea of unlimited or unrestricted anything was definitely not in the spirit of their thinking- they were cautious about giving over to rash or extreme positions.

Kirata -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 12:33:29 PM)
quote: ORIGINAL: DomKen The US Constitution trumps any and all state action period. The 14th amendment applies all federally granted rights to all persons in the US no matter the opinions of the states. That is all extremely well settled law. That is incorrect, as I pointed out here. From the Associated Press story reporting the Supreme Count's acceptance of the case: The court has previously said that most, but not all, rights laid out in the Constitution's Bill of Rights serve as checks on state as well as federal restrictions. And from the University of Missouri-Kansas City School of Law Exploring Constitutional Conflicts website: The debate over whether the Fourteenth Amendment makes applicable against the states all of the protections of the Bill of Rights is one of the most important and longest-lasting debates involving interpretation of the U. S. Constitution. The UMKC link above gives the following as the incorporation status of the first eight amendments to the Constitution: 1st Amendment: Fully incorporated. 2nd Amendment: No Supreme Court decision on incorporation since 1876 (when it was rejected). 3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated. 4th Amendment: Fully incorporated. 5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment. 6th Amendment: Fully incorporated. 7th Amendment: Not incorporated. 8th Amendment: Incorporated with respect to the protection against "cruel and unusual punishments," but no specific Supreme Court ruling on the incorporation of the "excessive fines" and "excessive bail" protections. The issue of 2nd Amendment incorporation in the 19th Century was tainted by concerns about allowing "Negros" to keep and bear arms. The 1876 case involved the Ku Klux Klan. K.

tazzygirl -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 12:43:30 PM)
With all this unfinished business... forgive me for asking... but what the hell are they being paid to do?

cadenas -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 12:57:12 PM)
quote: ORIGINAL: Thunderbird56 The road to hell is paved with good intentions. That's what all of you advocating "reasonable" firearms restrictions are trying to accomplish ... you're trying to prevent something bad from happening. I concur with the sentiment, but the result is often not what you anticipated or expected. Prohibition doesn't work. Period. It didn't work with alcohol, it isn't working with drugs, gambling, or prostitution and it won't work with guns ... no matter how much you want it to. Ummmm... you mention reasonable restrictions, and then use the most UNreasonable restriction of Prohibition as an example? Reasonable restrictions are the equivalent to drunk-driving laws, which HAVE reduced deaths tremendously (even though they are still sometimes broken, drunk driving is way down since DUI laws were introduced).

cadenas -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 1:04:11 PM)
quote: ORIGINAL: popeye1250 Panda, why should anyone need a "permit" to excercise a right? You don't need a "permit" to vote or to speak your mind under the first amendment. That's because one vote or one word does not kill (or rather, words that do lead to killing aren't protected by the First Amendment). One pull on the trigger can. It's all a matter of balancing the rights of the two people. quote: ORIGINAL: popeye1250 In Vermont you don't need no stinking "permits" to carry a gun either concealed or openly and I think New Hampshire and Maine are leaning the same way and that's the way it should be. You know, I would actually support that idea for those states that want it - and I have to admit that it makes a lot of sense in a rural state like New Hampshire. But at the same time we'd need strict border control checks between Vermont and New York to prevent introducing guns into states that chose to take a different approach. Why should the citizens of Vermont or New Hampshire be able to dictate to New Yorkers how to handle their guns?

mnottertail -> RE: 2nd Amendment and Strict Constructionists (10/8/2009 1:07:32 PM)
tremendously? from 40% to 31% since 1999? from something like 16k to 11k since 1999? hospitals kill more than that yearly total a month. not tremendously, marginally maybe.

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