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To: David Treibs
The line of reasoning seems to be, you have a Constitutional right to whatever arms the government says is legal.

If the government says no arms are legal, then I suppose you are just sunk.

Naturally, I don’t buy that argument.

Just as naturally, I did not make that argument, and neither has the court ever reached such a conclusion. You invent an argument that it is all or nothing at all. No court has ever said that, but they have outright rejected that.

The RBKA contains exceptions, precisely as stated in the English Common Law, and as stated in District of Columbia v. Heller. As the Right to Keep and Bear Arms cannot be infringed, a ban of all arms would be a constitutional violation.

The government can regulate classes of weapons; they cannot lawfully take all guns away.

See McDonald v. Chicago, 561 U.S. 742, 778, 786-787 (2010)

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary toour system of ordered liberty.

2

Despite all this evidence, municipal respondents contend that Congress, in the years immediately following the Civil War, merely sought to outlaw “discriminatory measures taken against freedmen, which it addressed by adopting a non-discrimination principle” and that even an outright ban on the possession of firearms was regarded as acceptable, “so long as it was not done in a discriminatory manner.” Brief for Municipal Respondents 7. They argue that Members of Congress overwhelmingly viewed §1 of the Fourteenth Amendment “as an antidiscrimination rule,” and they cite statements to the effect that the section would outlaw discriminatory measures. Id., at 64. This argument is implausible

[...]

As evidence that the Fourteenth Amendment has not historically been understood to restrict the authority of the States to regulate firearms, municipal respondents and supporting amici cite a variety of state and local firearms laws that courts have upheld. But what is most striking about their research is the paucity of precedent sustaining bans comparable to those at issue here and in Heller. Municipal respondents cite precisely one case (from the late 20th century) in which such a ban was sustained. See Brief for Municipal Respondents 26–27 (citing Kalodimos v. Morton Grove, 103 Ill. 2d 483, 470 N. E. 2d 266 (1984)); see also Reply Brief for Respondents NRA et al. 23, n. 7 (asserting that no other court has ever upheld a complete ban on the possession of handguns). It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

Municipal respondents argue, finally, that the right to keep and bear arms is unique among the rights set out in the first eight Amendments “because the reason for codifying the Second Amendment (to protect the militia) differs from the purpose (primarily, to use firearms to engage in self-defense) that is claimed to make the right implicit in the concept of ordered liberty.” Brief for Municipal Respondents 36–37. Municipal respondents suggest that the Second Amendment right differs from the rights heretofore incorporated because the latter were “valued for [their] own sake.” Id., at 33. But we have never previously suggested that incorporation of a right turns on whether it has intrinsic as opposed to instrumental value, and quite a few of the rights previously held to be incorporated—for example the right to counsel and the right to confront and subpoena witnesses—are clearly instrumental by any measure. Moreover, this contention repackages one of the chief arguments that we rejected in Heller, i.e., that the scope of the Second Amendment right is defined by the immediate threat that led to the inclusion of that right in the Bill of Rights. In Heller, we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. 554 U. S., at ___ (slip op., at 26). On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.” Ibid.


114 posted on 06/05/2022 2:21:59 PM PDT by woodpusher
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To: woodpusher

I appreciate you taking the time to make these detailed answers.
You said classes of firearms. Are semi-automatic weapons a class, and what would stop Biden from outlawing them?

If he packs the Supreme Court, which at this point seems unlikely, but if he did, he could pretty much ban whatever he wanted, and the Court would go along with him.

Would you still hold to the line that the Supreme Court decides the Constitution, or would you say, to heck with them, the baby, and the bathwater, it says “shall not be infringed?”


118 posted on 06/05/2022 7:18:54 PM PDT by David Treibs (http://www.comeandtakeit.com Battle Flags, Etc.)
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