“I think that there is this idea that the Second Amendment is an absolutist text and that if you quote those words those are the most magical words that open up all the doors to whatever weapons you want and however you want to carry them and I simply think that’s not true because Supreme Court jurisprudence has repeatedly, along with federal and state jurisprudence, repeatedly said that reasonable restrictions on guns are lawful.” – Indiana University Law Professor Jody Lynee Madiera in City of Indianapolis cannot ban guns at Circle of Lights celebration [via fox59.com]
I don’t care what a certain pile of tyrants in black bathrobes said. They have no authority on the matter that they did not grant themselves. The 2nd amendment is clear. SHALL NOT BE INFRINGED. Move along little commie.
I recommend that you acquire some shoulder-fired SAMs and sit at the end of a runway at any major airport to see how that works out for you. Or if you have the skills, you might brew up some chemical or biological weapons under your right to “bear arms”. Law enforcement might have issues with that and I wouldn’t count on the courts to affirm your 2A rights in either case. Right now the US is attempting to prevent (for good reason) another nation from bearing arms that our country possesses. And while the “intelligence” was wrong, we invaded Iraq under the pretext of them bearing arms, that we had but didn’t want them to acquire. The constitution is completely silent on guns and the right to “bear arms” covers a lot of territory. You don’t have to be a “commie” to understand that.
1. I would not lump nuclear, biological or chemical weapons into the category of “bearable arms.”
2. “Shall not be infringed” are the magical Absolutist Abracadabra words and are not found ANYWHERE ELSE in the Bill of Rights or the Constitution of the United States.
3. Do you eat at FUDDruckers often?
The constitution says nothing about “bearable” arms; the text is “the right of the people to keep and bear arms, shall not be infringed”. The words “keep and” theoretically encompasses any weapon. Since you didn’t reference it, are you advocating that shoulder-fired SAMs should be widely available under 2A?
Yes kiddo, shoulder fired SAMS should be available over the counter at any hardware store. Anybody too dangerous to own one should be in jail due to previous crimes or in a mental institution. The US would be one of the safest countries on the planet if the left would quit importing goat raping savages and letting criminals and nutjobs out of their cages.
Mark- brush up on your and/or boolean operators.
The constitution says nothing about “bearable” arms; the text is “the right of the people to keep and bear arms, shall not be infringed”. The words “keep and” theoretically encompasses any weapon.
—————–
Your argument is so ridiculous that even you had to leave off the “keep and bear” when talking about what is theoretically covered by the Second Amendment
All Constitutionally protected activities that directly endanger others can be subject to restrictions. A person can’t order the murder of another and then claim immunity to prosecution because words are protected by the First Amendment.
Items, such as explosives, directly endanger others. Firearms and ammunition do not. A person must misuse a firearm or ammunition in order for another to be injured. Explosives can injure others outside of any human action, hence, the possession or explosives can be limited.
If you think a “potential” danger is enough to violate constitutional rights, that same logic can be used to round up and summarily execute every member of a street gang because they have the “potential” to cause harm. In a rational society we don’t punish people because of a “potential” we punish people for actual harm caused. Me using two pallets of C4 covered by a tarp as a couch is not actively harming anybody. Therefore, the government has no constitutional authority to tell me I can’t do it.
The reason I can see restrictions on nuclear/chemical/biological weapons but not on other arms is simply one of public safety. If I neglect my firearms and they become rusted and deteriorated, they still don’t pose, in themselves, a public safety issue. They may be dangerous if someone tries to use them, but then it’s on whoever decided to use them without checking them first.
For n/c/b weapons, they can pose a significant threat simply by existing, if not cared for properly. If I owned a nuclear warhead and didn’t maintain it properly, radiation could affect me and those in the area without anyone actually having to do anything.
Serge, you said that “[i]n a rational society we don’t punish people because of a “potential” we punish people for actual harm caused.” In relation to our society and the constitution, I would point you to the fighting words doctrine; where we punish people for a “potential” harm done to them by others.
@MarkC
“The constitution says nothing about “bearable” arms; the text is “the right of the people to keep and bear arms, shall not be infringed”. The words “keep and” theoretically encompasses any weapon”
The Second Amendment has to do with the militia; it says so. That qualifier means that the right to keep and bear arms covers the arms of the militia — otherwise the main clause would have no bearing on fulfilling the first, explanatory clause. For the explanatory clause to have any meaning, it has to define what the main clause means.
So the phrase “keep and bear arms”, applied to individuals, means to own, and carry, the standard arms of the ordinary soldier, and nothing less. But given that this is about the militia, that individual right cannot limit the militia to the individual arms of the common soldier; it is never less than the individual right but in order to have a “well-regulated militia” it must be more than that. So to look again at the militia system, we see that cannon and mortars — not at all individual weapons — were legitimate items for the militia to own, not as individuals but as a body. This is where there is indeed a ‘corporate’ or ‘community’ meaning to the Second: it rests on individuals but includes all aspects of the militia, so that a properly constituted local militia has every right to own the modern equivalent of cannon and mortars — those being crew-served weapons.
This is also, BTW, the reason that large landowners and merchants could have, under the militia concept, crew-served weapons for the protection of their property: a land or business owner plus his employees constituted a ‘corporate’ piece of the militia, and as such had the right to whatever military weapons pertained to the defense of their bit of the “free state”.
Roymond make the false argument that the Second Amendment applies only to the “militia.” Apparently Roymond doesn’t understand punctuation or commas. But even if the authors of the Bill of Rights intended the 2nd only apply to “militia,” (they didn’t and clearly said so in repeated letters and public documents) Roymond will have a real problem restricting arms. Aparently Roymond doesn’t know US law either. The Militia Act of 1792 (contemporaneous with ratification of the Bill of Rights) specifies that EVERY US Citizen between the ages of 17 and 45 IS a member of the militia. The CURRENT 10USCss.311 expands that a little and 230 years of common law and court cases make it clear that any male between the ages of 16 and 45 is OBLIGATED and required to be in the militia, PLUS just about everyone else CAN choose to be militia.
The bottom line is: the “Militia argument” won’t fly both because that is not the intend of the 2nd, and because everyone is – or can be – in the militia anyway.
Your argument fails on a lot of levels but let’s take the first one as illustrative. Acquire shoulder fired sams, yeah, I could do that. The failure occurred when you said, “sit at the end of a runway”. In doing so you placed an unwarranted condition. NO law abiding person would even consider doing that. Jihadis, on the other hand, will take your suggestion to heart.
thank you for point out his logical fallacy. I’m not sure if it’s a false dichotomy or a slippery slope, maybe neither.
There’s probably a Latin term for it, but I learned this fallacy as “inclusion of an unnecessary condition”; it’s a way of sabotaging an argument by importing a weakness that doesn’t actually pertain.
You have no idea what you’re talking bout. What part of “I don’t care what the courts think” did you not understand? The 2nd amendment is about giving the citizenry the ability to have a parity of force with the government. So, yes, that includes SAMS and everything else on your wacko list. It also has jack shit to do with foreign policy. Foreign countries don’t have constitutional rights.
I’m glad you cleared that up. I think the idea that 2A gives all citizens the right to acquire weapons of mass destruction is likely a minority view and one that no member of SCOTUS has or will ever affirm.
“…the idea that 2A gives all citizens the right…”
No rights are given, all rights are pre existing. The constitution protects them by denying authority to the government. As written the 2nd amendment simply denies the government any authority to restrict the ownership of arms. That *is* in fact what it says whether anyone likes it or not.
Mark, what part of “I don’t give a shit” did you not understand? My rights are not dependent on a bunch of bathrobe wearing tyrants “affirming” them. That’s why the 2nd amendment exists. So that if they don’t “affirm” them, I have the physical capability to defend them anyway.
” As written the 2nd amendment simply denies the government any authority to restrict the ownership of arms. That *is* in fact what it says whether anyone likes it or not.”
No, it isn’t. First, it doesn’t say “the government”, or “Congress”, which means it is an unlimited restriction; the “shall not” applies to any entity whatsoever. Second, it doesn’t merely mean “the ownership of arms”; the term “infringe” means to meddle with not just the core but any peripheral issues. So what it covers is not merely ownership, but acquisition, maintenance, transport, storage, etc. (except insofar as Congress has authority to provide for the discipline of the militia in Article I Section 8, noting that the amendment forbids any “discipline” that is burdensome [e.g. not just requiring safe storage, but specifying that safe storage requires a $2500 safe]).
In modern court terms, the Second forbids any burden at all on the right of ownership of arms; applied as strictly as the courts have done with the rights in the First Amendment, that would exclude all existing firearms laws that aren’t penalties for their misuse.
The 2A supersedes any power granted to the Congress.
“In modern court terms, the Second forbids any burden at all on the right of ownership of arms; applied as strictly as the courts have done with the rights in the First Amendment, that would exclude all existing firearms laws that aren’t penalties for their misuse.” – If you believe that, you need to educate yourself on how much restriction of speech the courts allow.
Our Navy was established by taking merchant ships, commisioning them and their crews, and converting them in to armed vessels. Nearly all artillery and small arms, powder, swords, and horses, were privately owned and remained so for several decades after the revolution.
Even today, a vast majority of the machineguns, “destructive devices”, and artillery (granted its mostly obsolete) in america are owned by private citizens (the military only has ~1300 artillery pieces, in 2011 ATF said private citizens in california alone owned ~160,000 registered destructive devices and 25,000 machineguns) … if a private citizen could muster up the billions and billions of dollars it would take to develop and build a nuclear bomb or Aegis missile cruiser, I’d argue that that citizen is a country unto them selves and probably writes their own laws.
Interesting question, but ‘First, do no Harm’ is in order.
If you own enough land and no harm results, why not SAMs, 155 artillery, or a recoilless rifle?
Long as you don’t hurt anyone or cause harm, I don’t see the issue.
Nukes, Bio, and Chem weapons cause harm that can’t be controlled or contained. No matter what you do they will cause harm.
Anything else should fall under ‘Shall not be Infringed’ including all NFA items.
I would say that the 2nd exists for the sole purpose of having the capability of “doing harm.”
Technically-speaking, nuclear, chemical, and biological weapons require advanced scientific training to store and handle properly. They could kill millions just by accidental mis-handling. This would fall under Scalia’s “dangerous or unusual weapons” along with the Remington 700 with the defective trigger😀.
Tanks, SAMs, artillery, and most other conventional weapons do not require advanced scientific training to store, handle, or deploy. Furthermore, these items are “in common use for lawful purposes” by most militaries around the world.
I think owning an Abrams tank or an F15 would be cost-prohibitive for most.
“I think owning an Abrams tank or an F15 would be cost-prohibitive for most”
Let’s remember that a tank is just a vehicle, an F-15 is just an airplane. Perhaps we could argue about the munitions which they are designed to carry and employ, but both *should* be available on their own, and likely will be (as surplus) at some point. There was a WWII military pilot living in my area who owned one of 3 remaining P-38 Lightnings for many years, and he had never flown the craft before he bought one. Well, I have never flown an F-15, but if Powerball ever gives me my damn money, my bid will be in for an F-15. Any model, I’m not picky. And yes, I’d fly it all over the country, as my neighbor did with his P-38. He raced it at Reno, and then gave an aerobatics demonstration, when he was 83. Just FYI, those suckers give new meaning to the word “loud”.
I wonder if I could mount a snow plow on an Abrams….
Wouldn’t mind an MRAP…snow plow, stump puller, secure ride through Chicago, etc., etc.
There is no question that the ‘higher order’ weapons complicate the 2nd amendment. However, they did have cannons, bombs, etc, when the thing was written. They intended us to have them.
I’d say that we should be allowed to buy them. I’d be willing to entertain a reasonable degree of background checks for that sort of thing. The cost of such items would do most of the ‘control’ for us.
Your average man on the street could not afford the 38,000.00 for a stinger missile. A group could easily get together for such a purpose but the purchase of such an item, would put that person or persons so squarely on the radar of the government, my guess is that few would want to try.
Those that would, would likely be the very people least likely to use them.
I live in CA, so I wouldn’t even be allowed to purchase a pink plastic version
in 1776 “crew served” weapons (artillery) was a community asset. The Redcoats marching out of Boston were looking for the community store of powder and artillery.
Today the community weapons might be an M1, M109, M966, etc. Iikely anything upstream of an M2 50cal or Mk19. As an ultralight airplane was something one man could pick up.
Don’t need a shoulder fired stinger or SAM to bring down an airplane. Any number of firearms currently available legally will work quite well also. The easiest time to take down an airplane is during takeoff. Terrorist and hut jobs will always find a way to commit evil So don’t be absured it only shows your Anti freedom and Anti gun bias. The more true patriots who are armed. The more likely we are to stop terrorist and nut jobs. Do us all a favor. Either be a part of the helping to protect our nation and it’s people or get out of the way.
It was pretty clearly established at the time that the 2nd Amendment covered fully cannon armed frigates capable of taking on regularly navy warships. I don’t believe that WMDs are or should be considered “arms” by reason of use. Modern Nuclear, Biological, or Chemical weapons are not designed to be used as part of a military offensive to reduce an enemy stronghold. Even the one time that Nuclear devices were used they were not used as part of an assault on a fortified stronghold. They are a political diplomatic tool, used to bring a state to the negotiation table. As such they have more in common with the official Seal of the Secretary of State than they do with a tank.
However, Mustard Gas was used as a weapon during World War I. An argument could be made that simple posession of Mustard Gas would be covered. However, as the Geneva Convention forbid it’s use in war, it is debatable. Are treaties limiting the possible rules of engagement binding on private citizens?
Treaties do not trump the constitution.
But they do. It is why all the globalist pressure for trade agreements that establish new courts to settle disputes, preventing American parties from looking to the constitution (US Federal courts) for relief. It is why there is so much sturm and drang over the UN small arms treaty potentially stopping gun sales to citizens of signatory nations.
“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” Note the final words.
Federal law (constitution, statute, treaty) trumps state law. That’s all that quote says. Look at it this way, “anything in the constitution … of any state to the contrary notwithstanding.”
“A simple statute can overturn any treaty. “The chapter explains that both federal statutes and treaties override conflicting state law, and if a treaty and a federal statute conflict, whichever is later in time prevails. Thus, Congress can, and often does, enact laws that override existing tax treaty obligations.” – from the abstract describing “Rhoades & Langer U.S. International Taxation and Tax Treaties.” It’s a legal resource in Lexis Nexus’s Matthew Bender line of books. I’m also pretty sure I’ve read SC cases about this principle. I found it surprising because of the super majority required in the Senate to pass a treaty, but on further reflection, a statute has to have support from two chambers of Congress, where a treaty only needs support from one.
The Constitution definitely reigns supreme over treaties.” Me responding to you on October 9, 2017 at 15:34. http://www.thetruthaboutguns.com/2017/10/robert-farago/question-day-defend-bump-fire-stocks/#comment-3673135
“Law of the land” means all the law of the land. The constitution is “the law of the land”.
The Supremacy Clause simply says federal law, whether it be the Constitution, statutes, or treaties, override any state law, whether it is a statute or state constitution.
“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
Paraphrased as “the Constitution, laws passed under the Constitution, and treaties override all state law.” It doesn’t say anything about the preeminence of one type of federal law over another. It doesn’t say treaties are the supreme law of the land. It says the Constitution, statutes, and treaties are the supreme law of the land in relation to state law.
I’m not sure what your reasoning is, so I can’t get any more specific than that. Trust me or google it. You are wrong. Treaties cannot override an amendment (anymore than any other law can).
Have a look at NAFTA and TTP for starters. They both deny American entities from recourse to American courts for settling disputes. NAFTA nullifies USDOT safety requirements for commercial trucking within the US. Both treaties establish arbitration as the one and only means for settling disputes arising under the treaties. I just read what is written. Seems that denying an American entity from going into American courts to settle a dispute arising from the treaty makes the treaty superior to the constitution.
When the constitution declares the law of the land, it includes law of the United States. At the founding, the federal government was severely constrained by “states rights”, thus the wording you quoted. Currently, states are subjugated to the central government, except when convenient for the central government.
Court cases still arise as to the limits of treaties to intrude into the sovereignty of the nation/states. I.E. the limits on treaty power (and implementing legislation) are not “settled law”.
https://www.law.cornell.edu/anncon/html/art2frag18_user.html
http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=3696&context=ndlr
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1324&context=wmborj
https://www.forbes.com/sites/realspin/2014/06/12/the-supreme-court-misses-its-chance-to-limit-the-treaty-power/#6716af2d5588
From your first link: “By the supremacy clause, both statutes and treaties “are declared . . . to be the supreme law of the land, and no superior efficacy is given to either over the other.”328 As statutes may be held void because they contravene the Constitution, it should follow that treaties may be held void, the Constitution being superior to both. And indeed[p.483]the Court has numerous times so stated.329 It does not appear that the Court has ever held a treaty unconstitutional,330 although there are examples in which decision was seemingly based on a reading compelled by constitutional considerations.” Treaties are subject to the Constitution. That whole article is about whether or not the Tenth Amendment and the delegated powers limit the Feds authority to make treaties. The answer to that question is basically no.
The authors of your second link does indeed agree that treaties can override the Constitution. The authors are wrong.
The third article is about “the view that the rights of the accused guaranteed in the Bill of Rights do not extend beyond the physical borders of the United States,” at 517, and “[n]o differentiation should exist between actions taken domestically and those taken extraterritorially.” At 517. It is not about whether or not a treaty supersedes the Constitution.
The fourth article is once again about whether Missouri v. Holland allows the federal government “to override state law, even if those laws would normally be shielded from federal power by the Constitution’s Tenth Amendment.”
I’m very pro-states rights. I think the 17A should be repealed. Maybe even most of the 14A. I remember thinking the Holland case was poorly decided when I first read it.
I don’t have time to address your particular arguments because I have to go to my sisters for Thanksgiving. If you want to reply with something from a paged source in the future, it would be helpful for me if you cited to a specific page.
Mark, I won’t waste time debating the Constitution of the United States with you because it’s clear that’s not why you are even commenting here. You are a Liberal troll and I suggest you go back home to Tumblr where you can discuss whatever gender fluid state you are in today with the rest of the 13-year-olds.
Agreed. The ONLY reason these issues are still even “debated”, is because the filthy, subhuman, Liberal Terrorists™ view firearms ownership merely as a privilege (like a drivers license) and not a Constitutional right, even as they pay lip service to it. And for the few who honestly recognize it’s place in the BOR, do so grudgingly and completely ignore that it’s an individual right and that it’s not to be infringed.
Should be an “SM”, not a “TM”, unless there are some tangible goods that they are offering under the mark, rather than merely services (using that term loosely).
Have to agree with pwrsurge. Fast and furious is a great example that even those in government can’t really manage their own affairs, but can dictate which members of society are “worthy” enough. It’s kind of like the Samurai class in feudal Japan, only they could possess two swords while commoners could only hold one. That gave a huge advantage to the Samurai. Not saying all government worker bees are out to control the populace, but if the left keeps incrementally making private citizens less of a force, we are all on the train to work off our debt so to speak
Except that our legal system allows the government to infringe ANY of our “rights” given a compelling interest – depending on what that right is, the amount of compelling interest the government needs to show can be overwhelming to simply convenient.
Source – Am lawyer, practiced constitutional law.
Raptor Jesus, as a lawyer who doesn’t (and never has) practiced constitutional law (other than the ever present due process stuff and a little criminal law stuff), aren’t there a lot of rights that don’t have anything to do with strict scrutiny? It is my understanding that the rational basis, heightened scrutiny, strict scrutiny paradigm only applies to the 1A and “suspect classifications.”
The 4A is all about reasonableness, the standard on the 2A is very unclear with many having nothing to due with the scrutiny paradigm, I’ve never heard of a 4th, 5th, or 6A case that mentions the scrutiny paradigm. I don’t think the paradigm even makes sense in the context of the 3rd, 7th, 8th, 9th, and 10A.
Also, I’m assuming you meant “the amount of interest,” not “the amount of compelling interest” as many 1A cases don’t apply strict scrutiny, instead applying intermediate or heightened scrutiny.
Raptor Jesus,
“Except that our legal system allows the government to infringe ANY of our ‘rights’ given a compelling interest …”
Our very same legal system does not allow defense attorneys to tell a jury that the jury’s job is to serve justice.
Just because our legal system does something or bans something doesn’t mean that practice is proper, righteous, or constitutional. It simply means that no one has swung a large enough hammer to stop it.
The irony: THAT is exactly why our Fournders codified the Second Amendment — in case We the People ever need to form and swing that big hammer.
People simply don’t understand the purpose of the Second Amendment along with all other amendments and the Constitution. Those documents are not intended in anyway to place restrictions on the people. Those documents place restrictions on the government and define the 19 services government is to provide to the union states and the people. Americans have been badly misinformed purposely to believe our rights come from the Constitution or government. People are born with unalienable rights from God/Nature. Common Law was the law if the land but has been usurped by statutory law. In common law, if there is not a damaged/harmed living human being, there is NO CRIME! Now, the average American commits 3 felonies each day (there’s actually a book about this) because of the million of unjust laws conjured up as a huge source of revenue. It’s said that ignorance of the law is no excuse but even the best judges and lawyers can’t keep track of all the ridiculous laws.
You are so right. Our basic rights are infringed on continuously by prohibitive “laws” that the government has NO authority to enact. The US government as well as the governments of the states and most US cities are not even legitimate governments, they are Incorporated/Corporations/Companies and they are regulating us with their rules, regulations, codes, and statues that are “called” laws. The courts are maritime courts that have no jurisdiction over the people, yet we go along with what we are told! Add to that that the Constitution states that it is only Congress that can make laws, yet most of these illegitimate laws are created by agencies in government, not Congress! What is in effect now is exactly why our forefathers wrote the Constitution, problem is that we refuse to force government to adhere to that Constitution.
Serge, you inspired me to update an old song. Probably needs some more work:
While I was walkin’ one mornin’ for pleasure
I spied a young Marine just ridin’ along
His hat was throwed back and his gear was a jinglin’
And as he approached he was singin’ this song
Yippy ti yi yo get along little commies it’s your misfortune and none of my own
Yippy ti yi yo get along little commies you know that Hell will be your new home
(guitar)
Now, early in spring we’ll round up the commies
Mark ’em and brand ’em and cut off their heads
Round up the troops load up the Bradleys
And throw all the commies in one giant mass grave
Yippy ti yi yo get along little commies…
“I think that there is this idea that the -First- Amendment is an absolutist text and that if you quote those words those are the most magical words that open up all the doors to whatever -speech- you want and however you want to speak” she said, “and I simply think that’s not true because Supreme Court jurisprudence has repeatedly, along with federal and state jurisprudence, repeatedly said that reasonable restrictions on -speech- are lawful.”
Edited by me to illustrate the sheer absurdity of this undereducated human’s statement.
The Bill of Rights CANNOT be infringed by government at any level. Period.
“The Bill of Rights CANNOT be infringed by government at any level. Period.”
Though it is. Quite regularly. But I know what you mean.
Of course it can. There are amendments that have yet to be incorporated against the States.
The bill of rights restricts what the FEDERAL government can do. It doesn’t restrict what the STATES can do, unless those amendments have been specifically been incorporated against the States.
The Fourteenth Amendment incorporated all the rights for all the people against all levels of government — that was its whole reason for being. How the courts ever invented this crap that they get to decide if a right applies against a state government I fail to understand, unless it was racists in the aftermath of Reconstruction who decided the southern states really needed to be able to trample on the rights of the new citizens.
The intent of the fourteenth was to subvert the sovereignty of the states. Unlike so many today, who try to impose current politics and jurisprudence onto the founding of the nation, the people who engineered the ratification of the fourteenth understood perfectly that the tenth amendment prohibited the central government from rendering states subservient to the central government. Two things about the fourteenth stand out: the conditions targeted (slavery) by the fourteenth existed well prior to the Civil War (yet, no constitutional amendment to prohibit slavery was put forth from Congress); the fourteenth was only capable of ratification under the political conditions of war reparations and punishments promulgated by the so-called Radical Republicans (denying tens of thousands of people in the southern states the right to vote was essential to ratification of the fourteenth), and only necessary because even in 1868 “everyone” understood that the states were sovereign masters of the central government. A constitutional amendment was needed to end that idea, permanently. Since 1868, states are “sovereign” only when it is a convenience to the central government.
As the old rubric goes: “Prior to the Civil War, the common statement was, “The United States Are…”; after, the common statement became, “The United States is…” The verb tells the entire story.
Careful with that “at any level” stuff, 1A *specifically* states that it applies to CONGRESS (shall make no law …), your city council can probably violate it at will. Of course, that is not the way it is being enforced, what a surprise.
Obviously another law professor who has never spent a day practicing law. Even an ambulance chaser would nail her to a cross within 2 seconds. Objection, define “reasonable.”
Also, federal and state jurisprudence is irrelevant, because landmark cases go to SCOTUS anyway. It’s SCOTUS and the Constitution.
Unfortunately, it’s NOT SCOTUS and the Constitution, it’s how a particular partisan SCOTUS decides to interpret the Constitution.
The problem with the Second Amendment, of course, is that it’s the government the Second Amendment was intended to protect your RKBA from that is deciding how much government infringement on that natural right is actually counted as infringement.
Ironically, the disarmament lobby likes to throw out the phrase “reasonable restrictions” from Heller as if that magically turns whatever neutral misfire they’re having today into a constitutionally valid law. After all, “reasonable restrictions” is so much clearer and more specific than “the right of the People to keep and bear arms shall not be infringed.”
You’re right. She a Bachelor’s, a Master’s, a law degree and a Ph.D., but no real world experience. After school, she clerked for a Carter-appointed judge, did a couple of fellowships and visiting professorships before landing this Indiana University gig.
I don’t see anywhere on her C.V. where she has ever tried a case.
Voted for Barry 11x in 2 elections. Loves her some Bernie.
Yes why carry a gun, when the government can protect you from everything. Oh, wait.
A government that can give you everything you need is a government that can take everything you have.
The supreme court also ruled that not engaging in interstate commerce is engaging in interstate commerce. Sometimes the supreme court gets things wrong.
The constitution is a pretty plainly written text, intended to be understood by every citizen. A court ruling out of ideological activism and far of upsetting bad precedent due to political fallout is not a very reliable rubric for judging the constitution through. You know what is a good rubric for doing so? Reading the damned document and understanding that it was written plainly.
This is not rocket science.
They also ruled that the fugitive slave act, human slavery and segregation were constitutional at one time or another, so absolutely they get it wrong.
Worse than that, they twice ruled that humans weren’t humans. First in Dred Scott when they ruled that blacks weren’t human (presumably even the free ones?) and second in Roe v Wade when they ruled that babies weren’t human until their mothers decided they wanted to keep them.
Specifically the free ones.
This is where POTG start to sound like gun grabbers; law doesn’t matter, only what I think is correct today.
When the Fugitive Slave Act was enacted, and decided, the SC applied the existing law. Slavery, not being mentioned anywhere in the constitution, was a matter of property rights AT THE TIME – IN THOSE DAYS. The SC ruled correctly, in accordance with the property laws of the day. The morality of the question was irrelevant. Nothing in the constitution defines “moral”, nothing in the constitution requires all legislation, law, procedure or process must be “moral”. Indeed, “moral” is a question open to application of force, whether political or military/police. What is “moral” today is subject to a change in the mood of the society. Indeed, until most recently, abortion and many other “disgusting” behaviors were “immoral”, and subject to application of law (force). And since “moral” is not germane to the constitution, the definition of “moral” in the future will be predicated on what the nation will declare or accept as “moral” in the future.
When we start overturning laws based on “morality”, we are being subjective, no matter the law, or the proponent of overturning. The “morality” problem was at the heart of the civil war. The constitution did not prohibit slavery. That power was not delegated to the central government. The moralists of the day were trying to avoid a constitutional fight (amendment) because they knew they could not win. The end-around was to pass legislation attempting to do what could not be done through the provided process (amendment). The basic theme was that “we” cannot let the constitution stand in the way of doing the right thing. No matter which side of a political question you stand on, trying (as gun grabbers do) to circumvent the constitution through legislation is wrong, as in trickery, subterfuge, swindle, evasion.
To declare that the courts “got it wrong” yesterday because the “morals” of the country are different today leads to the argument that 2A made sense back then (1789), but not today; whatever restrictions legislators can put on guns is a “reasonable” attempt to overturn the immorality of applying eighteenth century morality and imperatives to a society that has evolved understanding or “right and wrong” such that an archaic document cannot be read strictly any longer. The anti-gun crowd is pushing the idea that it is immoral in this day and age to allow the public to freely own and carry guns, and threaten society. And that the idea that government needs to be contained by threats of revolution is itself immoral because after 250+ years, government has not become tyrannical.
We, POTG, must maintain a consistent view of law if we insist the gun grabbers do the same. For right now, every court decision that maintains or “expands” so-called gun rights (upholding “shall issue”), the gun grabbers can claim “the court got it wrong”, because “morality” (“common sense”)
Marus (Aurelius) Payne rote, “This is not rocket science.”
A friend of mine worked in Huntsville, AL for a few years and got to play with NASA toys. His expression is, “Rocket science is simple, politics is convoluted.”
You are right that Mason and friends INTENDED that the Constitution be straightforward and understandable by every citizen. And it WAS – for about 10 minutes! Then people started twisting words to try and make everyone agree that “their” interpretation was was what the framers “really meant.” Not long after ten of the first 12 proposed amendments were ratified, the courts also started applying spin to the Constitution to yield political results.
Congressman David Crockett is alleged to have said in Congress, “. . . Congress has no power to appropriate . . .money as an act of charity.” when speaking in opposition to a bill to award a stipend to a widow of a hero. Whether he actually did say it (the speech is not in the Congressional Record), his argument in the 1820s on the limits upon federal government authority was not acceptable to that government! Likewise today, we may argue that the federal government is limited, but those IN that government do not agree.
Truly, the second amendment DOES (as it is intended) provide an means for recourse against a government too enamored of itself. But we are not (yet) to the point where a sufficient number of citizens have determined that the ballot box has failed and our armed militia (citizens NOT in the organized Armed Forces) is the only remaining means to remove oppressors doing business in the District.
I ran across this article by Nelson Lund, a law professor at George Mason University. I was amazed a the clarity and depth of research. It’s a bit long, but I would wager you will not notice.
http://www.heritage.org/political-process/report/the-right-arms-and-the-american-philosophy-freedom
Thank you for the link to that essay. It is well written (if a bit wordy) and specifically addresses the positions in this thread. Too bad the “progressive” movement and their globalist backers will never agree with anything in it.
The fact is, government is inherently opposed to individual responsibility and individual freedoms. The Constitution is the most successful attempt ever made to impede the efforts of government to suppliant personal freedom. While mostly successful in limiting government, 230 years of government efforts, have left their mark upon freedom. The past 40 years have seen a significant change, as children are indoctrinated to see government “protections” as good, and “unregulated” individual rights and dangerous.
I fear that, in my life, there may come a day when American Citizens may again have to take up arms to oppose the oppression of an overreaching government. And though I fear that day, I will not hesitate to take up my arms, gird my loins, and stand among citizens willing to give their last full measure to restore the rights God granted ever man, woman and child. (I am guessing that most liberals will oppose that action by twitter comments!)
“And though I fear that day, I will not hesitate to take up my arms, gird my loins, and stand among citizens willing to give their last full measure to restore the rights God granted ever man, woman and child.”
I would rather you left the above out or your comment, even out of your thinking. Do you really understand the trivial nature of the “oppressions” of the founders that actually led to revolution? We (the entire nation) suffered Waco, Ruby Ridge and Bundy1. The nation was not enraged at rogue government power. These incidents resulted in actual deaths (of even old people and children), yet there was no galvanizing outrage, no armed response. If we, the nation, are willing to put our hands in our pockets and walk away whistling tuneless melody, what exactly is the bright red line? Who decides? Who agrees to it? Who responds by visiting retribution on a rogue government?
We are so far gone as a nation that there will be no third armed revolution. We only pamper ourselves with heroic images of what we would do “when the time comes”. The time will never come. We are left only with our votes, our lobbyists and our legal aid groups. While a well armed and ready peoples militia should be the barricade to government tyranny, we no longer really know what tyranny is, nor how to effectively push it back into its cage.
So forget the sons of liberty rhetoric, focus on elections and law suits. Fight with money and positive propaganda. Throw up legal challenges at even the least harm to our RTKBA. You really do not want to be first on the ridge to oppose government, and look back only to find yourself an army of one.
Excellent !
Thanks for the link.
Unfortunately those words don’t have very powerful magic, because Lord Voldemort and his followers keep hitting them with counter-curses and chipping away at them.
And Lord Voldemort and his Death Eaters didn’t give a damn about wand Control laws or prohibitions against certain curses or potions and went about killing both wizards and muggles anyway.
Go figure.
It’s almost like the people crazy enough to throw around unforgivables don’t really care about laws against unforgivables. Weird huh.
LMAO. That made my day, thank you.
Unforgivables, or deplorables?
Somewhere they have binders full of unforgiveables.
Another example of the failures of our education system. This time, a law professor.
SMH.
The 2nd amendment is legitimately the most absolutist section of the constitution that I am aware of. While the 1st states “congress shall pass no law…” the 2nd simply denies the possibility for the power to exist entirely. Since the constitution, with all of it’s amendments, is not just the law that defines our federal government, but a contract between member states (hey! maybe those ideas are related!) every state in the union also agrees that the right of the people shall not be infringed with regards to owning arms. There is nothing specific in the 2nd amendment that states it is a restriction on power that only applies to the federal government.
IF THE 2ND AMENDMENT IS
NOT
ABSOLUTIST,
THEN THERE IS NO WAY YOU CAN EXERCISE YOUR GOD-GIVEN AUTHORITY UNDER THE 2ND PARAGRAPH OF THE DECLARATION OF INDEPENDENCE.
AND, IF YOU’RE SAYING (OR EVEN FING HINTING AT THAT) WE CAN FING HAVE-AT RIGHT THE Fv<k NOW, MF.
I NEED YOUR ANSWER IMMEDIATELY.
No constitutional right is absolute. My First Amendment right to freely exercise my religion does not mean that I can sacrifice my son to God on an altar in my backyard. My First Amendment right to free speech does not mean that I can lie under oath, defame you, or distribute child pornography. My Fourth Amendment right to be free from unreasonable searches does not mean that the police can never search my home. My Sixth Amendment rights do not mean that I can demand that the state provide me with a lawyer and a jury trial for a +10 mph speeding ticket. My Eighth Amendment right not to be subjected to cruel and unusual punishment does not mean that I can’t be thrown into solitary confinement.
Yes, the Second Amendment is not absolute. Five-year-olds cannot own firearms, you can’t take guns on airplanes or to school, felons and the mentally deranged cannot keep and bear arms, you can’t carry a gun when you tour the White House, etc.
Where the professor goes wrong, however, is in saying that the Second Amendment permits “reasonable” gun regulations. Such laws should be subjected at the very least to heightened judicial scrutiny, which requires that the state have an important interest for having the regulation and that the regulation be narrowly tailored so that it doesn’t unnecessarily burden the 2A rights of law-abiding citizens.
When gun laws interfere with law-abiding citizens’ ability to select or use guns for self defense, the laws should be subject to even more exacting judicial scrutiny, under which the state must have a compelling interest for the law and there be no less restrictive means of achieving that interest than imposing the law.
Alas, lower courts have not taken the Supreme Court’s decision in Heller seriously and have subjected gun laws to only mild scrutiny that requires nothing more than that the law be “reasonable.” That is wrong.
Your 1A examples involve using your religious freedom or freedom of speech to infringe on the rights of others. To compare those to the 2A would be to say that the limitations of your RKBA are that you can’t use your weapons to harm others without due cause (self defense). You don’t have the right to murder your neighbor or to use his car for target practice. But saying that the reasonable limitation to a 2A right includes banning weapons would be like banning the possession of a cross or banning the public display of a cross. Or perhaps a more likely scenario would be banning the swastika. You have an absolute right to believe whatever you like as long as your actions don’t infringe on the rights of others. I don’t see how ‘shall not be infringed’ could be construed to mean that ‘reasonable’ limitations to the right are less absolute that those in the 1A.
But the purported reason for laws banning guns (e.g., “assault weapons” or machine guns) is public safety—the protection of others. Under the public safety rationale, such laws keep the gun owner from infringing the rights of others.
Now, I don’t agree, for example, that bans on “assault weapons” significantly protect the public, especially when they also deprive law-abiding citizens of those weapons for self defense.
My point is that the 1A examples work because gun regulations almost always are justified by reducing or eliminating the danger of guns to others.
I agree that “shall not be infringed” means a lot more than just that gun regulations be “reasonable.” But the 2A is not absolute.
The difference is that your examples are examples of direct harm to the rights of others, while all gun laws relate to POTENTIAL harm. In a civilized society, we don’t punish people because they have the POTENTIAL to do something harmful.
Sure, ‘public safety’ is used as a pretext to banning weapons, but they could easily use the same pretext to ban the swastika or ban white robes and hoods. Consider the ignorance the politicians who propose these bans show whenever asked questions about the weapons they propose to ban. Such ignorance could easily be utilized to infringe on our other rights as well.
The 2nd Amendment IS ABSOLUTE. The founders/framers in drafting the Declaration of Independence ACKNOWLEDGED (WHILE ALSO RESERVING FOR THEMSELVES) EVERYONE ELSE’S RIGHT TO DO WHAT THEY WERE ATTEMPTING TO ACCOMPLISH. They KNEW that it would likely TAKE MORE MIGHT THAN THEY COULD MUSTER, BUT ASSUMED IT WOULD TAKE UP-TO AND INCLUDING THE FING KITCHEN SINK.
NOWHERE IS IT NOTED that they thought it would take ANY LESS for you to accomplish the same (at any later date).
THAT IS A STANDING ACKNOWLEDGEMENT (of GOD given rights) UNDER PARAGRAPH 2, OF THE DECLARATION OF INDEPENDENCE.
THERE IS NO ESTABLISHMENT OF ANY GOVERNMENTAL AUTHORITY TO OVERRIDE THAT.
The Declaration ONLY SUGGESTS THAT ” a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation”.
HOWEVER, YOU HAVE ALL BEEN ‘ON NOTICE’ SINCE THE FOUNDING OF AMERICA.
And all those from “elsewhere” who choose to chime in on any of our rights can go F themselves with something sharp and heavy.
Whenever I see or hear anyone trying to make a “reasonable restriction” comparison between the 1A and the 2A, all I can think is “someone could yell fire in a theater, so we need to cut everyone’s tongues out.”
To pwrserge: It depends on what you mean by “punish.” If you mean “regulate” or “deny,” we DO punish based on potential harm. Just a few examples: A person is forbidden from driving over the speed limit, even if he has not yet caused an accident, because of the potential danger he poses to others. An underage person can be denied the ability to purchase alcohol, even if she has not yet harmed anyone, because of the potential danger she poses to others. We don’t let people on the no-fly list on airplanes because of they potentially might be terrorists.
Hey Greg… False equivalency is false.
We don’t ban cars that have the capability of driving faster than the speed limit.
Children don’t have full constitutional rights because they are children and the concept would be absurd. The government acts “in loco parentis”.
The “No Fly” list is blatantly unconstitutional.
To Gov. William: My initial point was that constitutional rights are not absolute and I gave several examples. You responded that all my examples involved exercising rights in ways that harmed others (BTW, my 4A, 6A, and 8A examples did not), but banning guns only harm the gun owner. I replied that gun laws, especially gun bans, typically are justified by concerns for public safety—i.e., concerns for the protection of others from harm—so my examples are analogous.
Now your argument shifts to the possibility of pretextual rationales, which have nothing to do with whether constitutional rights are absolute.
So what about the public safety rationale for denying firearms to felons and the mentally deranged. Is that also pretextual?
Greg, people who cannot be trusted with weapons shouldn’t be walking the streets as free men. The felon who wishes to turn his life around is not a threat to the public and the felon who returns to a life of crime will have his weapon anyway. Now I would concede that going about unarmed could and possibly should be a condition of early release, but once a felon has done his time and met the requirements of his parole he should once again be free. And even if we all disarmed and firearms were eradicated from the planet, that wouldn’t stop people from hacking others to death with machetes.
On the other hand, I would also concede that possession of weapons of mass destruction would tend to prove intent to use them against others. In that case it’s not inappropriate for the authorities to intervene, but there has to be evidence of conspiracy to commit murder. Just that if you’re busted driving a rental truck loaded with a diesel and fertilizer bomb toward a fede ral building it would seem to be very strong evidence of conspiracy. Kind of turns the whole innocent until proven guilty on it’s head, but the authorities shouldn’t wait until you’ve killed 168 people before they remove you from society. The possession of an AR-15 on the other hand is hardly evidence of ill intent.
Also, pertaining to your other examples;
The 4A provides protection from ‘unreasonable’ searches. Right in the text it uses the word ‘unreasonable’. Which sounds more absolute to you, ‘unreasonable searches’ or ‘shall not be infringed’? No, the Fourth Amendment is not absolute.
As far as the 6A, perhaps we shouldn’t be passing laws that are so trivial in nature that we feel we don’t need to follow the Sixth Amendment. But even so, you may not have the right to a jury trial, but you still do have the right to confront your accusers. If you fight the ticket and the cop doesn’t show up the ticket gets thrown out.
8A; ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ ‘Excessive’, ‘excessive’, ‘cruel’ and ‘unusual’ are all subjective terms, so the Eighth Amendment is certainly not absolute. If you ever run afoul of the EPA, OSHA or most any other federal bureaucracy you’ll quickly find that their subjective view of what an ‘excessive fine’ is is quite different from yours.
The end result of public safety policy is we all live in white rubber rooms, completely safe from ourselves and everyone else, cared for by robots with no emotions. Which is why I care more about freedom based policies than public safety based policies. We all die, we all have short lives, and I want mine free, not safe. When you are guaranteed to die, why keep staring at safety, when you could look to something better suited to a short life. So I adamantly oppose
Greg, “Reasonable” gun regulations are assault weapons bans, handgun bans, and whatever else they like. Because to them, it isn’t mildly reasonable, it is extremely reasonable. We shouldn’t base any law or right on subjective terms like this. The 2A was not subjective when it was written. It was really clear cut, by the way.
Here Greg. I posted this below, but it addresses a great many of your arguments.
—>
They don’t see it deep enough.
They like to draw the “fire in a crowded theater” card, and claim that rights are not absolute. Obviously if you kill someone with your words, you will be found responsible for the incident, but nobody tries to take away your capacity to use words. With firearms, it is similar. Owning a firearm doesn’t guarantee someone will be killed. Like words, that must be decided by the individual. But what is different, is they are actively seeking to eliminate your capacity to own arms, guaranteed by the 2A, by means of a non-comparable term like “rights are not absolute.”
Moreover, if rights are not absolute, then why do we call them rights? Why not just call them laws. After all, they are not absolute, right? They are a moral and legal entitlement that must not be infringed upon by even the majority. This was a philosophical implementation the founders installed in the hopes everyone would see that tolerance and freedom was the rule to follow and that couldn’t be taken from them. They even made it so that a multistage supermajority was needed to change any of them.
There is only a problem with these when “rights” are perceived to do harm to individuals, then we have a conflict. But ownership of firearms (whatever the type) affects no one at all. No victims. Nothing. Only when a person uses those firearms in a manner that harms, is there a conflict. This is the distinction they aren’t getting. You have a right to own them, but you don’t have a right to hurt people. You have a right for freedom of speech and press, but you don’t have a right to hurt people with that (slander, libel, fire in a theater, etc). The key here is freedom, and responsibility for that freedom, and those that abuse the freedom are held responsible. The leftist answer however – is to remove the right, remove the freedom, remove the responsibility. And that goes against the very fabric of our culture (or at least mine).
Greg says: “We don’t let people on the no-fly list on airplanes because of they potentially might be terrorists.”
And here, IMO, is a problem; while that would seem to be a “reasonable” rule, the harm it does to others who want to fly, but can’t because that “reasonable” rule is so poorly executed, is real.
The government has a duty to protect its inhabitants not just from danger (in this case, terrorists who want to bring down a plane), but also from the government itself (in this case, from the damage done because of a poorly executed rule the government made).
The fact that many want to use that no-fly list as a no-buy list shows that far too many have no idea of what’s going on in the real world we have to live in. Ignoring the harm done to people simply because they have a name that is “too similar” to a name on the list (it doesn’t even need to be identical!) who can’t fly, then proposing that same harm be done to others in relation to guns, is absurd.
How about a “no vote” rule? Would that be acceptable? (I doubt it; these idiots won’t even allow checking to see if a person has the right to vote.)
How about we just randomly search anyone with a name that happens to be on the no fly list? Or ban these people from posting on the internet? Or going to church?
Of course not, it’s absurd on its very face.
But guns? Of course. Because guns…
If your goal was to execute the 2nd Paragraph of the Declaration of Independence IT WOULDN’T MATTER WHAT THE RULES WERE TO TAKE SH_T ON PLANES.
AND YES.
EVEN A 5 YR OLD IS PERMITTED TO EXERCISE HIS GOD-GIVEN RIGHT TO EXECUTE THE 2ND PARAGRAPH OF THE DECLARATION OF INDEPENDENCE. And if his/her parent sent her to school that day (for something to occur later that day) THEN AGAIN, IF THAT WAS THE GOAL, IT WOULDN’T MATTER WHATEVER-THE-Fv<kN RULES WERE AGAINST IT.
The 2nd Paragraph of the Declaration of Independence says "look around, if I choose to, because my government is being a d1<K, (and you are not on my side about that) I am going to end all of this". OBSTRUCTION OF THAT ("INFRINGEMENT") IS JUST YOU TRYING TO BEAT ME TO THE PUNCH OR GET THE UPPER HAND.
I’m in substantial agreement with your point of view. However, I think that the DC Circuit’s reasoning – that the RK&BA is for the “average” citizen – is a more useful tactic than striving for the highest achievable level of “scrutiny” possible. I suggest everyone read the DC opinion in Wrenn v. DC.
As with Heller, the Wrenn opinion cut-through the nasty business of choosing the “proper” level of scrutiny. Wrenn took an “absolutist” point of view in saying that a law that made it impossible for the “average” citizen to exercise his 2A rights was absolutely UN-Constitutinal. That court (DC Circuit) needn’t try to figure out which level of scrutiny pertained to a particular activity – as a right – under the 2A.
We have 20,000 gun laws on the books (by conventional wisdom). Imagine trying to fit each of these laws into one of the 3 levels of scrutiny! That’s an over-statement. Let’s imagine that the 20,000 gun laws might be sorted out into 200 distinct types of laws (e.g., a type might be home storage of guns). Let’s fight all the way to SCOTUS 200 times to discover the applicable level of scrutiny!
It’s much simpler to pick a law we perceive to be un-Constitutional which is so onerous that its application is absolute; or, so nearly absolute that it is impossible to make an argument that it could be distinguished from absolute. DC’s law baring the registration of a handgun (apart from the few grandfathered guns) was such an absolutist – or nearly so – infringement on the right to keep arms. Likewise, the DC prohibition against keeping a gun in a condition ready to be used in the home. Likewise, (in Wrenn) the DC prohibition against carrying a concealed handgun by anyone without a “special” need.
Such laws as those of DC are so onerous that a court can conclude that they couldn’t withstand any level of scrutiny. This conclusion is so close to “strict scrutiny” as to be indistinguishable from “strict scrutiny” itself. In fact, the conclusion that a law couldn’t pass any level of scrutiny is more strict than “strict scrutiny”.
The beauty of pushing for a decision that a law couldn’t pass any level of scrutiny is advantageous in that it skirts the difficulty of getting a court to conclude whether intermediate vs. strict scrutiny is the “correct” standard.
The Antis will be delighted to try to persuade a Circuit court or SCOTUS that Law X is so peculiar that it’s hard to decide whether it should be subject to “rational basis” vs. “intermediate” scrutiny. Certainly, there is no such thing as a gun law that deserves to be subject to “strict” scrutiny. So, then, the judges on a Circuit court or the Justices can sit around for a while and debate their various viewpoints on level-of-scrutiny. After they have amused themselves for a while they conclude that they are irrevocably divided on the applicable level of scrutiny; therefore, the only logical thing to do is to refuse to hear the appeal. This is a perfect outcome for the Antis; but not a satisfying outcome for gun-rights advocates. Why play this game?
Let’s spend our time looking for cases – any case, no matter how trivial – that seems to fly in the face of the prohibition against “infringement” on the RK&BA. How about a law against duck-hunting on high Jewish holidays?
The longer and wider the platform – the floor – of gun-rights we can build the easier it will be to achieve the holy-grail of bringing our first really good “strict scrutiny” case to court. We will need to have a very good case to enable a Circuit court – let alone SCOTUS – to entertain its first “strict scrutiny” applicaiton to guns.
It does us no good to build an ever-increasing list of “victories” where a Circuit court – God forbid a SCOTUS – decision applying “intermediate scrutiny” to a gun case. That would tend to lock-us-into a situation where ALL courts automatically apply “intermediate scrutiny” to every gun case that follows where the arguments are most compelling. All other cases would get “rational basis test” – which is no scrutiny at all. The difficulty there is that – for gun cases – “intermediate scrutiny” can be diluted to the point where it’s hardly distinguishable from rational-basis.
“I think that there is this idea that the Second Amendment is an absolutist text”
And it is, in black and white, no hidden meanings, no “read between the lines”, simple, straight to the point, nothing ambiguous about it, and it’s the “Law of the Land”…
Holding,bearing, and possessing arms hurts no one. It’s the actions that are already very illegal. And the penalties are slim in some jurisdictions.
Make the penalties swift and severe and you’ll get a handle on bad behavior.
It is literally called “bill of RIGHTS”.
By being a right it is of course absolutely absolute. That is why it is a right and not a temporarily issued privilege. They cannot have any authority to change this since they made it a right. Because now it is a right. Do these people have no brains? How many times do i have to repeat the word right untill they get it?
They don’t see it deep enough.
They like to draw the “fire in a crowded theater” card, and claim that rights are not absolute. Obviously if you kill someone with your words, you will be found responsible for the incident, but nobody tries to take away your capacity to use words. With firearms, it is similar. Owning a firearm doesn’t guarantee someone will be killed. Like words, that must be decided by the individual. But what is different, is they are actively seeking to eliminate your capacity to own arms, guaranteed by the 2A, by means of a non-comparable term like “rights are not absolute.”
Moreover, if rights are not absolute, then why do we call them rights? Why not just call them laws. After all, they are not absolute, right? They are a moral and legal entitlement that must not be infringed upon by even the majority. This was a philosophical implementation the founders installed in the hopes everyone would see that tolerance and freedom was the rule to follow and that couldn’t be taken from them. They even made it so that a multistage supermajority was needed to change any of them.
There is only a problem with these when “rights” are perceived to do harm to individuals, then we have a conflict. But ownership of firearms (whatever the type) affects no one at all. No victims. Nothing. Only when a person uses those firearms in a manner that harms, is there a conflict. This is the distinction they aren’t getting. You have a right to own them, but you don’t have a right to hurt people. You have a right for freedom of speech and press, but you don’t have a right to hurt people with that (slander, libel, fire in a theater, etc). The key here is freedom, and responsibility for that freedom, and those that abuse the freedom are held responsible. The leftist answer however – is to remove the right, remove the freedom, remove the responsibility. And that goes against the very fabric of our culture (or at least mine).
Holy crap — we’ve just been lectured on Constitutional Law by the Breck Girl.
Next, we’ll be reading her report on Toxic Masculinity and White Male Privilege. Gee, I can’t wait.
The “absolutist” argument is COUNTER-productive.
Many PotG who post on gun boards assert an “absolutist” or very-nearly absolutist argument in defense of gun rights. Let’s suppose – merely for the sake of this argument – that these opinions are absolutely right. Somehow, magically, we’ve consulted with our Creator and the long-dead delegates to the Constitutional ratifying conventions – to say nothing of the common men of the time – and determined that the absolutist argument is the correct one. Nevertheless, we operate in a very real world today in the 21’st Century and the absolute truth of our position is NOT shared widely among non-gun-owning voters. We, therefore, face a dilemma.
Naturally, all our problems with gun-control would be solved INSTANTANEOUSLY if ONLY we could persuade 51% of the voters to see the truth of the absolutist position; AND, that they would share our passion for the truth. Likely, it would take a super-majority such as 61% or 71% because not all would feel passionately ENOUGH to affect their votes for politicians. How do we achieve a majority – to say nothing of a super-majority – of opinion?
Our fellow WRONG-thinking voters are subject to being “soft” on gun-control. For example, there is a law requiring licensed manufacturers to stamp their products with their maker’s markS and a serial numberS. They must make records of their production and report to the ATF. Despite being open to hearing the gospel Chapter 2A, these voters just can’t quite bring themselves to construe these any such laws bearing on manufacturers to constitute a full-fledged “infringement”. In their ignorance, they conclude that there really is at least 1 – count it ONE – law that concerns guns that does not constitute an “infringement” – as contemplated by a correct reading of the 2A.
What do we do with these heretics? There exist – by conventional wisdom – some 20,000 gun laws in the US. At least one of these 20,000 laws will have some appeal to one or another voter who does NOT see-the-light as as been revealed to us.
The wrong-thinking of these heretics is encouraged by nearly all our government officials. It’s nearly impossible to find a Federal or State judge who will publicly announce his opinion endorsing the absolutist position. Only a very few Congress-critters, from the most staunch gun-rights districts, will so opine. There is no Circuit judge or SCOTUS justice who will even discuss the possibility that any Constitutional right is absolute – least of all, the RK&BA.
We are facing an up-hill battle. IF – and that’s a big IF – we could succeed we would cut the “Gordian Knot” of gun-control in a SINGLE blow. Yet, it seems, that we have been hacking-away at the Knot of gun-control for decades now and have made little progress in convincing many voters of the absolutist position. What should we do?
Certainly – knowing the absolute truth of our position – we find it very self-satisfying to continue to hack away with the sword of absolutism. Most importantly, we signal our virtue – our purity of thought – to other like-minded PotG. Yet, still, we seem to get nowhere. The voters are just NOT buying our arguments about the truth, as it has been revealed to us.
Sometimes I wonder if some apparently absolutist gun-rights posters are really Antis. Suppose the absolutist argument – in fact – is working AGAINST us. Were that the case, we should expect Antis (who are, by definition, heretics) should regularly contribute absolutist posts to our gun blogs so as to further our own efforts to undermine our cause.
If trying to eat the gun-control rhinoceros with the single gulp of absolutism is POOR tactics THEN, perhaps, we should consider eating it just one bite – even nibble – at a time. Perhaps we ought to choose some bite/nibble softer than the pointed horn.
Let’s imagine a sympathetic gun-rights case. Instead of grinding our own axes as OFWGs, let’s imagine an adult woman. She is of sound-mind, peaceable and law-abiding – i.e., she is not a prohibited person. Her life – e.g., job or schooling – requires her to walk the streets of her home-town at night; perhaps in a not-altogether safe neighborhood. To carry the matter as far as we might, she is a single mother, the sole support of her children. She is of a minority race!
Does she have a Constitutional right to bear an arm in defense of herself (and her children’s livelihood) on the streets of her home town – say, New York City? This is a very simple question – a very soft question which can be nibbled on by any fair-minded voter.
We needn’t argue for her right to open-carry an M-16; a revolver will do. Indeed, to start-out small, how about a double-barreled derringer – about the closest modern-day counterpart to a single-shot flint-lock of the founding era. Does she have the right to carry a derringer? May she carry it openly, or concealed, we are open to accepting either possibility.
Admittedly, there is a practical problem of ascertaining – to a degree socially acceptable to all her neighbors – as to whether she really is of sound-mind, peaceable and law-abiding. Suppose – merely for the sake of this small first nibble – that we concede to a Shall-Issue permitting scheme. Does she have – as a matter of Constitutional right – the ability to insist that she be issued such a permit upon showing that she is qualified?
But is she competent? For the sake of argument, let’s suppose NYC requires that one show national standing in IDPA competition; our hypothetical woman is so ranked.
Can the applicable government agency (NYPD) ARBITRARILY refuse to issue her a permit because she: is not employed as an armed currier/guard; nor is she a politician judge or prosecutor; nor is she a substantial political contributor nor a person of considerable celebrity?
Can the applicable government make it prohibitively expensive or otherwise onerous for her to obtain such a permit? E.g., could it charge a fee of $10,000, require lots of superfluous paperwork or delay the issuance for years? Could it require her to sue the government before it would admit of her right?
If the fair-minded voter MIGHT be convinced that there is just one law – among 20,000 now on the books – that constitutes an admitted INFRINGEMENT upon the RK&BA, then such a voter must concede that such a law is UN-Constitutional. I have suggested the NY “Sullivan” Law as a candidate un-Constitutional law with a sympathetic application. No doubt, there are plenty of others still more sympathetic.
Perhaps we would be more successful – and sooner – if we began the long march of 1,000 miles nibbling on the most readily-admitted infringements of gun-rights.
But, then again, maybe I’m mistaken. Messrs. Heller and McDonald were not men of great virtue-signaling.
You fail on a basic concept. We don’t live in a democracy. I don’t give one solitary fuck about what 99.999% of the population thinks about my rights as defined by the document that keeps people like me living as peaceable citizens rather than setting up our own little fiefdoms through force of arms. At the end of the day, the Constitution protects them from me as much as it protects me from them. I think most people prefer it that way.
I fully agree with your viewpoint philosophically. So, how about you and I and like-minded PotG collect ourselves at the village green in Lexington or Concord and fire the 2’nd shot heard round-the-world?
Unfortunately, maybe there aren’t quite enough PotG fired-up today. We may have to suffer a lot of successive defeats before enough of us are riled up enough to start shooting government agents.
If that day comes, it will behove us – those few, perhaps 3% – to be backed by the largest number of sympathetic voters as possible. These voters will – like a few parliament members in the 1770’s – stand up and support our rights. That will make it far more difficult for the Antis to oppose us on the field of battle.
Jefferson wrote, in 1776, “. . . a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” This is, I think, good guidance if one is going to go to war over one’s rights. It is, for this reason, I think it worth-while to “declare the causes which impel” us to those of the the voters (even if they be 99%) who are indifferent to our rights.
Only because of so many centrists that don’t understand tolerance, freedom, or true responsibility, and their different set of values.
Law is a function of culture. Law is a function of morality and values. The entire reason there is a conflict here, is because of the difference of values, and the negative freedom regarding guns, that they perceive is something of value.
So, how do we start to persuade some of these centrists to begin to see some value in the RK&BA? Does it not make sense to find sympathetic cases (such as the one I offered as an example) and ask them whether the example case constitutes an “infringement” rendering the law (Sullivan) un-Constitutional?
“So, how do we start to persuade some of these centrists to begin to see some value in the RK&BA?”
Not sure there are any “centrists”. If you define “centrists” as unaware, uninformed, uninterested, uncaring, indifferent, then those “centrists” would seem impervious to any sort of persuasion. If you define “centrists” as the “undecided” that community would be so small as to not sway opinion to overwhelming majority. My understanding, from reading the news and the polls (poor tools though they be), the nation is pretty much balanced, moving plus or minus in the range of “margin of error”.
The need, trick, game is to persuade an overwhelming majority that 2A is as near absolute as can be. That majority then must consider 2A a defining principle when choosing political candidates. The candidates must prove themselves protectors of our RTKBA, voting down restrictions, and insisting on jurists who hold 2A to be a first class right of the people.
No, “we gotta do something” doesn’t work here. We gotta do something really big, really profound, really powerful and near irreversible. (Yes, I recognize the need, and have absolutely no idea what will alter the culture significantly).
“If you define “centrists” as unaware, uninformed, uninterested, uncaring, indifferent, then those “centrists” would seem impervious to any sort of persuasion.” – Take them to the range once. Perhaps they can be hooked. If every gun owner converts two apathetic voters … .
“Take them to the range once. Perhaps…”
It is incrementalism that wars against us. The opposition needs to be crushed, not nibbled at. Near-stasis is not victory. We have been trying incrementalism for how long now?
“The “absolutist” argument is COUNTER-productive.”
Yeah, that’s why the F we’re still arguing over it nearly 250 years after it was “SETTLED LAW”
WTF WOULD BE ‘PRODUCTIVE’ ? ? ?
HAVING A CONVERSATION ? ? ?
HAVING A DIALOG – OPEN DISCUSSION ? ? ?
“They” (the other side) AT BEST, is only offering a “compromise” UNTIL THE NEXT TIME THE CHOOSE TO TAKE MORE AWAY FROM YOU AND YOU COMPROMISE TO AN EVEN LESSER POSITION.
F ALL THAT
Counter productive in practice, but exactly correct logically speaking. This discrepancy is due to modern society embracing a way of thinking that rejects reality.
The fact that public support is difficult to raise for the absolutist view has no bearing on whether or not it is the correct view or not. A majority of the people CAN be wrong.
This is why it’s prudent to fight the battles before us. We can only take one hill at a time. Fight against any bans that are before us, keep making the point that guns are used more often in defense than in crime and that they are, in fact, a net benefit to society, show how the UK and Australian models have proven that to be true, get people used to the idea that restrictions are at best ineffective and at most counter productive and save the rest for after that has succeeded.
Agreed. I have presumed – for the sake of my argument – that the absolutist position is absolute truth.
Your approach is to allow the Antis to choose the “field of battle”. E.g., the Las Vegas incident occurs and they choose bump-stocks as their preferred field. Won’t the Antis always pick the field that seems at the moment to favor their objective?
Could we do any better if WE choose the “field of battle”? What if WE choose an issue to raise in public debate, or debate with our open-minded friends and acquaintances? If WE made the choice, might we be more likely to score a point or two? Might we possibly start to get open-minded women of good will to start to think about the gun-rights viewpoint?
Despite the tactics and arguments of people spouting off on the internet, the incremental approach is what people passing laws and trying cases are actually doing. The people legislating in Washington are doing a piss poor job of it, but the guys in most of the states are doing a much better job.
As to the guys in Washington, at least add the NICS Improvement Act of 2017 to the SHARE Act or something if your going to try it. That will give them arguments to their 2A voters to not vote them out of office, arguments for the dems to vote for it, and all the emotional “do something or you hate babies” arguments against the dems who vote against it. What a bunch of morons. I wonder if they have meetings in which they come up with the least politically advantageous way of doing things.
“The right to bear arms” I interperate(sic) that meaning, “Small” “medium” and “Heavy” arms, aka Any and all semi automatic firearms AND fully automatic Rifle, Shotgun and Pistols Including Everything from the M249 saw to the M2HB (.50cal Browning heavy machinegun) NOT, nukes, chem, bio weapons (don’t be stupid) not grenades, bazookas, sams, or fighter jets, tanks, aircraft carriers or any other stupid ass, horse shit far fetched weapons the prog mind can think of.
All “arms” are “weapons” but not all weapons are arms????
Why enter into this discussion at all?
Yes, it would make sense that if only we could persuade a majority of people that a suitcase nuke is an “arm” protected by the 2A then we would have swept the “battlefield” and achieved protection for bazookas, etc.
The problem with this reasoning is that if we FAIL to persuade ANYONE that our chosen weapon is WITHIN the term “arms” as contemplated by the 2A then we have FAILED to achieve any ground at all. As a consequence, we have failed to protect – e.g., – a 10 gage single-shot shotgun. The open-minded voter is apt to be persuaded that a 12 gage single-shot shotgun is OK, but anything larger than 12 gage is beyond the pale.
What do we really want to achieve? Success with a single strike at the gun-control Gordian Knot? Is that necessary? Or, is it that we should try to win some points – however small and few – so as to get the ball rolling our way?
The AWB is a good place to work. Is a calibre .22 an “assault weapon” calibre? How about .223? How about .308? Does it make any sense that neither a calibre .22 nor a .308 is an “assault weapon” calibre yet a .223 IS?
A 5.56 NATO bullet weighs about X “grains” whereas a 30-06 bullet weighs about Y grains. Y > X by Z grains. How is it that a 5.56 NATO bullet is an “assault weapon” bullet whereas a 30-06 is not?
An M1 Garand has a bayonet mount and is classified as a “battle rifle”; it is never considered an “assault weapon”. A .223 calibre Mini-14 has no bayonet mount; an AR-15 typically has a bayonet mount and is calibre .223. Does the bayonet mount make it an “assault weapon”?
Isn’t it silly to be talking about calibre and bullet weights and bayonet mounts in such arbitrary manner in order to sort-out various makes and models of rifles into “is an assault weapon” vs. “is NOT an assault weapon”?
Professor Madiera is the darling of the local Demanding Mommies. At the hearings on Constitutional Carry this year in Indianapolis she claimed that easier carry increased crime rates referencing “studies” which used “synthetic controls” carefully shaped to get the results they had predetermined. She also expressed the opinion that “public safety overrides the text of a few words in the Constitution.” So the law means what she says it means and that’s that. In short, what a tool.
That’s because they were wrong!
And “reasonable restrictions” is a vague subjective term that opens the door to whatever opinion you perceive to be reasonable. So – NO!
Pwrserge,
Sometimes I wonder if you’re an agent provocateur, trying to give the gun-owning community a bad name.
You said everyone should be able to buy surface-to-air missiles (SAMs), and you seemed serious.
Are you trying your best to make gun owners look crazy and dangerous, trying your best to get the 2nd Amendment repealed? That’s what it seems like your goal is.
You know that compared to guns, there’s no legitimate use for a shoulder-fired SAM.
Legitimate uses include self-defense, home defense, hunting, target shooting, practical shooting competitions like 3-gun and Cowboy Action Shooting, etc.
If you need a SAM for home defense, then you must be a member of the Taliban hiding out in Afghanistan.
If you need a SAM for hunting, then you must be living in Jurassic Park with man-eating pterodactyls flying around.
If you need a SAM for self-defense, then you must have some pretty large mosquitoes trying to bite you.
And if you tried target shooting with a SAM, or 3-gun shooting, or even practiced shooting it once, you’d shoot down an airliner by mistake.
However, being a former tanker myself, I admit that if I had the money I would want to buy myself an M1 Abrams tank or at least an M60A3 tank.
Copied from my earlier post..
“Interesting question, but ‘First, do no Harm’ is in order.
If you own enough land and no harm results, why not SAMs, 155 artillery, or a recoilless rifle?
Long as you don’t hurt anyone or cause harm, I don’t see the issue.
Nukes, Bio, and Chem weapons cause harm that can’t be controlled or contained. No matter what you do they will cause harm.
Anything else should fall under ‘Shall not be Infringed’ including all NFA items.””
~Its not a Bill of Needs, Wants, or Legitimate Use.~
Where is the “legitimate use” restriction in the 2A? I must have missed it like you seem to have missed “‘Shall not be infringed” part.
Manse Jolly, you said, “Long as you don’t hurt anyone or cause harm, I don’t see the issue.”
If you’re allowed to own a SAM missile, you must also be allowed to target shoot it, and if you kill 300 passengers every time you target shoot, tough break, eh? You can’t target shoot without knocking an airliner out of the sky!
Stereodude,
the only possible use of a SAM outside of a battlefield is terrorism or criminal activity. Again, you can’t even target shoot without knocking an airliner out of the sky. By “legitimate use” all I mean any use that is NOT TERRORISM or criminality, and SAM missiles and nukes have no legitimate use other than terrorism or criminal activity. You rights do not include criminality or terrorism.
If you’re such an absolutist that surface-to-air missiles belong in every backyard, then you must be okay with privately owned nuclear weapons too!
After all, if “shall not be infringed” as you claim makes no exception for legitimate use, so if someone wants to buy a nuclear weapon, just in case they wake up one morning and decide it’s necessary to exterminate humanity, why not?
And if you own it, you have to be allowed to test-fire it, so you’ll have to allow testing nuclear weapons at your local gun range, because it’s your God-given right. You have to practice with your weapons, after all!
Even Constitutional rights are bounded by such a thing as common sense — which you two and Pwrserge seem to be totally devoid of, if you advocate unrestricted personal ownership of missiles and nuclear weapons. For example, you have freedom of religion, unless your religion says you must sacrifice 8-year-old virgins on an altar in order to please Satan, then society has to say “No, religious rights are not absolute.” If your god (or your opinion on “parental rights”) says you should have sex with toddlers, then your religious rights or parental rights will get overruled by society’s right to protect children!
You have the right to free speech, but you can’t yell “Fire!” in a crowded theater if there’s no fire.
And you have the right to bear arms, but not nuclear weapons or antiaircraft missiles, because no good can possibly come from it, and a lot of harm can come from it.
I have no problem with private ownership of .50 caliber rifles, AR-15, AK-47, silencers, SBRs, SBSs, etc. (in fact, every gun owner shooting a gun with a 16″ or shorter barrel should be REQUIRED to use a silencer on it at the range!)
But everyone has to draw a common-sense line somewhere, and I think nuclear weapons and surface-to-air missiles are two examples where common sense would say, “No, it’s not a good idea to be shooting down American airliners or nuking American cities. Sorry if it infringes your right, but you can’t own a nuke or an antiaircraft SAM missile, because no good can possibly come from owning them, while a helluva lot of bad things can come from owning them.”
“Need” and “legitimate use” are irrelevant and immaterial. #NotAnArgument
Try again.
Also, do retire the old “only possible use is criminality/terrorism” canard. Debunked and repeatedly-falsified bullshit that’s been used as a (non)argument to ban even commonly-owned guns and knives. That’s all it is.
Dave, you’re failing to get the terms of the Second Amendment down before venturing opinions on them — otherwise you would have listed “overthrowing a tyrannical government” as a “legitimate use”, since that was the primary point of the Second Amendment.
By so failing, you lack any basis for what arms you would allow and what you wouldn’t other than pure subjectivity, and that subjectivity seems to boil down to the same thing the anti-gunners use: that some things are scary, the only difference being that they find even bullets scary while you’re putting the line near the level of WMDs.
Under the militia concept of the Second, a fully-outfitted F-15 or a howitzer is not something an individual may keep — but it is something an organized militia, i.e. one with recognized officers constituting a chain of command, regular training, etc. may have; and as has been noted, a merchant or landowner with employees de facto constitutes an organized militia, however informal.
Any argument made from anywhere but the militia concept is surrendering the terms of debate to the subjective — and that hands fuel to the antis.
—–“Manse Jolly, you said, “Long as you don’t hurt anyone or cause harm, I don’t see the issue.”
If you’re allowed to own a SAM missile, you must also be allowed to target shoot it, and if you kill 300 passengers every time you target shoot, tough break, eh? You can’t target shoot without knocking an airliner out of the sky!…”
Why can’t I shoot at the drone I bought on my own land? I mean if I have enough money to buy a SAM, I can buy a used drone of some type.
First do no harm.
And if I own a gazillion acres in Montana and can prove no fallout will drift outside of my property, why do you care? An extreme example to be sure but I suddenly might want a big hole somewhere or maybe its the 4th of July and I want the best.
Again why do you care if no harm has been caused.
I think the way to approach the “conventional ordnance” issue is to point out that these are classified as “destructive devices” and are already regulated by the NFA’34. The ATF will cheerfully register any such NFA “firearm” upon filing a Form-1 and a check for $200. It may take a year to get your tax stamp, but you are then free to by your Sherman tank, or whatever.
Now, then, is there any record of any crime committed by any owner of a registered “destructive device” (involving that device in the crime)? If not, then how about we start our discussion with those “arms” that are in ordinary use by millions of law-abiding citizens such as revolvers, semi-auto pistols and rifles. Wouldn’t that be a much better use of our debate time?
“Need” and “legitimate use” are irrelevant and immaterial. #NotAnArgument
Try again.
“Legitimate uses include self-defense, home defense, hunting, target shooting, practical shooting competitions like 3-gun and Cowboy Action Shooting, etc.”
Just wanted to point out that you forgot the main reason the 2nd Amendment was written: to preserve freedom. If the time came when freedom was truly threatened, would it be beneficial for law-abiding citizens to have the means to shoot down a bomber or drone controlled by a tyrannical regime?
“I think that there is this idea that the Thirteenth Amendment is an absolutist text and that if you quote those words those are the most magical words that open up all the doors to avoiding whatever non-punishment for a crime involuntary servitude you want you want and I simply think that’s not true because Supreme Court jurisprudence has repeatedly, along with federal and state jurisprudence, repeatedly said that reasonable restrictions on freedom are lawful.”
Well done !
Problem with this example is that there are, very likely, a few cases where the courts have upheld what would appear to be “involuntary servitude”. As an example, what would the captain of a ship do with an “able bodied seaman” who refused to do his duty? Perhaps this worker stubbornly refused to perform a vital duty – e.g., operate the radio where he was the only man aboard who knew Morse code? Could he jeopardize the safety of every other man aboard? Or, could the captain use draconian force to compel him to perform his contractual duty? What would the courts have done with such cases?
The whole difficulty with the “absolute” argument for rights is that it’s really hard to make a compelling case for why it is so. For example, the text of the 3A is:
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
There is hardly anything “absolute” about it. In time of peace the President can do whatever he needs to do to make an owner “an offer he can’t refuse” to consent to the quartering of soldiers. In time of war, Congress can compel the quartering of troops without consent on whatever terms it chooses.
Picking through the other Amendments it’s almost always the case that there is well-established case law to the effect that actions that seem to be covered by the text of the right are not-so-covered.
Unless you can get 5 Justices of SCOTUS to subscribe to the notion of some right being “absolute” – or you are prepared to go to war over the proposition – it’s really a non-starter to say that all rights are absolute or that a particular right is absolute.
The “joke” is Korematsu V. United States actually happened, and US v. Miller was directly related.
” Perhaps this worker stubbornly refused to perform a vital duty – e.g., operate the radio where he was the only man aboard who knew Morse code?”
Mark, they no longer require Morse code for radiomen in the armed services…
The Constitution has not been read as an absolute document since before the Louisiana Purchase. Jefferson thought the government didn’t have the authority under the Constitution to do the deal. He struggled with it. He went ahead and did it anyway under the logic often summarized as “the Constitution isn’t a suicide pact.”
I know a lot of us respond to this line of thinking with the response that while the Constitution isn’t a suicide pact, it does contain one in the 2A. I lean that way myself. I believe the 2A should be read to include everything short of WMDs.
The “levels of scrutiny” approach to limiting the 2A is an ill fit to the amendment. Even if every court applied strict scrutiny to all gun laws, many if not all could survive that level of scrutiny. Strict scrutiny is a two or three part test. The first part of a compelling government interest will always be met. The second part is that the law is narrowly tailored to the compelling interest. The third part (which is considered part of the second part by some) is that the law must be the least restrictive means of accomplishing the government interest. If there is a law that restricts speech that can meet strict scrutiny, pretty much all gun laws can.
So we shouldn’t argue for strict scrutiny, and we will never win on an argument for a literal interpretation of the 2A. What we need is a standard that the average person can live with. And that standard will probably be something like the one Thomas referred to in his dissent from the denial of cert. Basically, that if a restriction isn’t “longstanding,” then it isn’t legal.
Truthfully, this is a nonsense standard too because there aren’t any longstanding restrictions on the right to keep and bear arms. There are longstanding restrictions on the use of arms. In Heller, the Court refers to longstanding restrictions on “dangerous and unusual” arms as the exemplar of a longstanding restriction. If you follow the sources cited to the original law they cite, what you get is a statute prohibiting an affray. An affray is an instance of fighting in a public place that disturbs the peace. Basically an act of violence that falls between a simple assault or battery (depending on which word the legislature is using) and a full on riot.
The way the law was interpreted was to prohibit people from “going about armed with dangerous and unusual arms in a manner so as to cause a terror in the people.” Reading that in it’s historical and legal context and then translating it into modern POTG English, that would be super brandishing because it would be more than simply pointing a gun at someone. Intentionally pointing a gun at someone is an illegal threat because it causes “apprehension” or bodily harm. Terror is a much stronger form of fear than apprehension.
I can’t think of a single gun control law, other than sentence enhancements, that would survive this standard. Maybe restrictions on discharging firearms inside city limits, but probably not even those. Heavily regulating WMDs, maybe to the point of banning them, would be a 2A restriction that would meet this test. Probably some laws on the use and storage of artillery and modern weapons (like missiles, tanks, and planes) would be pass constitutional muster under this standard.
I seen a coyote and a doe while out walking yesterday. Last week a momma wild cat was fighting with a Tom cat, it was trying to kill the kitten, the kitten wound up hiding under my house. It was starving to death but had never seen a human. It finally got so hungry it chumed up cause I fed it, now I got a new little buddy. Life is good.
The idea is the Bill of Right are not suppose to be modified. Start and the door is open to mess with any of them! If you want that you are crazy as a loon!
The right was granted by God. Man is born with this right. The supreme Court does not supercede the will of God to free men on Earth. It shall not assert itself as such….for this would allow an equal, and free, man to dictate the free will if another free man….which would be a declaration of authority over free men.
This is not permissible….and shall be met with force….to sustain that free will of living men.
Hence the 2a.
Any time the Constitutional mentions “people”, it is an individual right.
Any time the Constitution mentions “state”, it is a collective right.
The Constitution does not grant “rights”, but limits government usurpation of our “rights endowed by our creator”…
Quite often, firearms owners are their own worst enemies. The duck hunters don’t like the AR-15 “black rifles” so they see no problem if attempts are made to ban them. The traditional rifle owners don’t like machine guns, so they have no problem with them being legislated out of existence. Some pistol owners see nothing wrong with certain long guns being outlawed just as some rifle owners would have no problem seeing pistols banned.
Friends, ALL firearms advocates must “hang together” and realize that an assault on ANY means of firearms ownership and self-defense is an assault on ALL forms of firearms ownership and self-defense.
There is absolutely NO ROOM for complacency among ANY Second Amendment supporters. An attack on one is an attack on ALL…
ALL firearms laws are unconstitutional on their face. Imagine the hue and cry if “reasonable” restrictions were placed on First Amendment activities, especially with the “mainstream media”. The Second Amendment is clear–what part of “shall not be infringed” do politicians and the media not understand…of course, they understand full well…it’s part of their communist agenda…
There are those who argue that the Second Amendment to the Constitution was made for a “day and age” that is long gone and that it should only apply to firearms “of the day”–muskets and black-powder firearms–no semi-automatic or modern-day cartridge firearms..
Taking this insane argument logically to the First Amendment, the same (il)logic would not cover modern offset presses, typewriters, television, radio or the internet, public-address systems and the like… First Amendment “protections” would only apply to town criers and flat printing presses, the like of which were in use in Benjamin Franklin’s day…
It is curious to note that the Second Amendment is of the only God-given “right” that is constantly under attack, with restrictions of time, place, type of weapons, and permissions needed in order to exercise this “right”.
Second Amendment supporters (actually “guardians”) are the only group of people who are vilified for (attempting to) exercise a “God-given right.
The most strident attackers of the Second Amendment are most often total “protectors” of the First Amendment and that present-day abomination, abortion.
We are constantly being reminded “not to judge all moslems by the actions of a few”…shouldn’t the same consideration be given to Second Amendment supporters??
Spoken like a “Law” Professor, with complete ignorance of the Constitution and what the 2nd Amendment is or is not. The 2nd Amendment is absolute and if this Professor did any homework at all she’d understand why our Framers put it in the Constitution. Also if she had any understanding of the Constitution at all she’d know that any Law or Supreme Court opinion contrary to the Constitution is void and has no force. For a Law Professor she’s pretty dumb.
Or- she’s smart enough to know exactly what it means….but because she’s a Liberal Terrorist™ and a domestic enemy, says what she does to fulfil her ideological agenda. There are countless sheeple in the cult of the democrat party that are either ignorant or obtuse. This lady is neither. She’s…..committed.
Ok. I’ve read all of the comments and I really have enjoyed myself. I love hearing other educated gun-lovers speak out about 2A.
But please, will someone tell me what POTG means?
People/person of the gun (meaning, in the gun community)
The wording of the 2nd is understood grammatically, please see Bill Whittle here: https://youtu.be/FOwy9OWfnAM
It is interesting to note the anti-2nd crowd seems to think that by arguing that individuals can’t have a grenade launcher, that the entire 2nd Amendment is somehow undermined.
Ridiculous.
I do so enjoy one entirely unexpected consequence of the 2nd Amendment – it drives the liberal/Marxist faction totally bat guano crazy.
Obviously what she says is silly. But putting that aside, that was the longest sentence I’ve ever seen that has originated from a professor.
“You can’t target shoot without knocking an airliner out of the sky!” Derringer Dave seems to have a problem with stolen valor, using that U.S. Army Armor patch. If he really were an armorer, he would know that you don’t have to track and lock to fire. As a prototyping technician responsible for building and testing target acquisition systems years ago, I know this for a fact.
Jimmy, when you use the term “stolen valor,” those are fighting words. Say that to my face, why don’t you, but no, you use the anonymity of the Internet. Identify yourself, so I can kick your ass or sue your ass, don’t throw out fighting words and libel like that.
FYI, I was a U.S. Army tanker, not an “armorer,” FYI, and WTF is an “armorer” anyway? Tankers don’t use surface-to-air (SAM) missiles, and I was never ADA (Air Defense Artillery), so I’m no expert on SAM missiles, and I never said I was. It’s just my opinion that we shouldn’t have every Tom, Dick, and Mohammed in America owning SAM missiles so they can shoot down airliners in their back yard! If you think every Tom, Dick, and Mohammed in America should have SAM missiles, then I guess you’re fine with being an airline passenger flying into an airport where Mohammed has a SAM missile pointed at your airplane, but as for me, I prefer not to arm every Tom, Dick, and Mohammed in USA with surface-to-air missiles. If you want every gang-banger in Chicago armed with SAM missiles, go ahead and fly in a commercial airliner over Chicago after you legalize SAM missiles. But don’t throw around libelous fighting-words slurs like “stolen valor” at someone who’s an Army vet myself from a military family, son of a WWII Infantry vet from the famed 10th Mountain Division, brother of two other Army vets, brother of an Air Force vet, uncle of a Marine Corps vet, uncle of an Air Force officer, etc.
https://youtu.be/rEqGBOt32NM
See the video above on YouTube.
The professor is right. By the way – the should fired SAM argument is a straw man discussion at best and otherwise just a plain waste of time. Can you have a shoulder fired SAM? Hell no.
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